author: DAVID S. GORBATY, Judge.

text:
    SUCCESSION OF Florence Veronica Fitzmorris, Wife of/and George Rennyson SIMNO, Jr.
    No. 2006-CA-1169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 2006.
    Jerome J. Reso, Jr., Lance J. Arnold, Baldwin Haspel, L.L.C., New Orleans, LA, for Appellant.
    Eric Oliver Person, New Orleans, LA, for Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

hln this appeal, Beth Ann Simno contends that the trial court erred in dismissing her Motion to File and Record Notarial Testaments and for Confirmation of Testamentary Executrix and Dative Testamentary Executrix and to Rescind Letters of Administration and Revoke Appointment of Administration for the Notarial Testament of George Rennyson Simno, Jr. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises out of the Succession of George Rennyson Simno, Jr. Mr. Simno died on June 5, 2005, leaving a Last Will and Testament dated July 30, 2004. In this document, Mr. Simno named his daughter, Beth Ann Simno, as Testamentary Executrix. Mr. Simno was predeceased by his wife, Florence Veronica Fitz-morris Simno.

On June 29, 2005, George Rennyson Simno III petitioned the court for appointment of Administrators of the Successions of Florence Veronica Fitzmorris Simno, wife of/ and George Rennyson Simno, Jr., alleging both successions were | ¿intestate. Subsequently, Beth Ann Simno presented the court with Mr. Simno’s Last Will and Testament. She filed a motion requesting that she be confirmed as Testamentary Executrix of the Estate of George Renny-son Simno, Jr., and named Dative Testamentary Executrix of the Estate of Florence Veronica Fitzmorris Simno. George Simno III filed an opposition, asserting a variety of infirmities of both of his parents’ wills.

After a hearing, the trial court denied Beth Ann’s motions. The court found that the will was invalid because of improper form. Specifically, the court held that the will did not comply with La. C.C. art. 1577(2) because the required attestation clause was missing from the will. Beth Ann subsequently filed this appeal. For the reasons set forth below, we affirm.

DISCUSSION

Beth Ann Simno asserts that the trial court erred in finding the Notarial Testament of George Rennyson Simno, Jr. to be null and void on its face for want of form promulgated in Louisiana Civil Code art. 1577(2).

La. C.C. art. 1577 provides:
The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and read and is physically able to do both, then:
1. In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each separate page.
2. In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_ day of_”

I oThe notarial testament of George Ren-nyson Simno, Jr. is one page long. It bears the signatures of the decedent, witnesses, and notary. The final paragraph of the instrument reads, “I hereby sign my name in the presence of the two undersigned competent witnesses and notary public affirming that this is my last will and testament on the date aforementioned above.” Appellant claims that this sentence is the attestation clause, as required by C.C. art. 1577. Appellant further argues that although the clause does not use the exact words suggested in the article, it uses words that are “substantially similar” and thus should not be held invalid.

In Succession of Richardson, 2005-0552 (La.App. 1 Cir. 3/24/06), 934 So.2d 749, writ denied, 2006-0896 (la.6/2/06), 929 So.2d 1265, the decedent’s will concluded:

IN WITNESS WHEREOF, I have signed my last will and testament in the presence of the undersigned witnesses and before a Notary.
Baton Rouge, Louisiana this 15th day of May 2003
(signed)
Willie Richardson, (Testator)

The court found that the will was invalid because there was no attestation clause or clause of declaration signed by the witnesses and the notary. The court further held that such a defect could not be cured through testimony of witnesses and the notary.

In Succession of Brown, 458 So.2d 140 (La.App. 1 Cir.1984), the court held that all of the formal requisites for confection of a notarial testament must be | ¿observed, under penalty of nullity. Although its form is not sacrosanct, there must be an attestation clause, or clause of declaration signed by the witnesses and the notary.

In the instant case, the will contains an attestation by the testator, but none in a similar form, or in any other manner, by the notary and witnesses. La. Civil Code art. 1577 requires two separate attestation clauses: one by the testator, and one by the notary and witnesses. Appellant seeks to have the attestation by the testator to be a substitute for the requirement for an attestation by the notary and witnesses. The will does not contain an attestation clause by the notary and witnesses at all; the attestation clause by the testator cannot be a substitute. The will contains no phrase that is “substantially similar” to the wording suggested for an attestation clause by the notary and witnesses. The La. Civil Code art. 1577(2) requirement for an attestation clause by the notary and witnesses was not complied with; the clause is completely absent. Thus, the trial court properly declared the will null for improper form. This assignment of error has no merit.

Beth Ann Simno further argues that the trial court erred by not requiring George Rennyson Simno III, objecting party to the will, to present exceptionally compelling proof of any actual nonobservance of formalities, to rebut the presumption of validity of testaments.

As discussed above, the attestation by the notary and witnesses was not included in the will, as required. The will itself provided proof of the noncompliance with the necessary formalities. It was not necessary for George Rennyson Simno, III to introduce further “exceptionally compelling proof.” This assignment of error is meritless.

| ¿CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: STEWART, J. BROWN, Chief Judge,

license: Public Domain

text:
    George ADAMS and Michelle Adams, Individually and on Behalf of their Minor Children, Janelle Adams and Jamal Adams, Plaintiffs-Respondents v. HARRAH’S BOSSIER CITY INVESTMENT COMPANY, L.L.C., Defendant-Applicant.
    No. 41,468-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 2007.
    Rehearing Denied Feb. 22, 2007.

      Cook, Yancey, King & Galloway, by Gregg A. Wilkes, Shreveport, for Defen-dani/Applicant.
    Joey W. Hendrix, Shreveport, Edward M. Campbell, Baton Rouge, for Plaintiffs/Respondents.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP, by Edwin H. Byrd, III, Shreveport, for Defendant/Respondent, City of Shreveport.
    Before BROWN, STEWART & GASKINS, MOORE & LOLLEY, JJ.
   STEWART, J.

hThis civil action arises from the arrest of Plaintiff George Adams at Defendant’s, Harrah’s Bossier City Investment Co., L.L.C., (“Harrah’s”), casino on December 31, 2002. Based on a videotape recording of surveillance footage, Harrah’s and the investigating police officers concluded that Mr. Adams had stolen a $500 chip at the craps table where he and his wife were playing. Mr. Adams was charged with felony theft. The district attorney’s office ultimately dismissed this charge. Plaintiffs, George Adams and his wife, Michelle Adams, individually and on behalf of their children, Janelle Adams and Jamal Adams, sued Harrah’s for damages allegedly arising out of the arrest. Plaintiffs later amended their petition to add the City of Shreveport as a defendant. Harrah’s filed a motion for summary judgment, which the trial court denied. Harrah’s then sought a writ of supervisory review, which this court granted to docket, and this appeal ensued. For the reasons stated herein, the trial court’s judgment denying Har-rah’s motion for summary judgment is reversed.

FACTS

On December 31, 2002, George Adams was standing behind his wife at the craps table at Harrah’s Casino when he reached around her toward the area on the table where the trays of chips were located. Mr. Adams asserted in his deposition that he took chips from his wife’s chip tray, but Harrah’s employees, watching the video surveillance, thought that he had taken a $500 chip from the tray of Harley Webb, who was standing next to Mr. Adams’ wife. The alleged incident was recorded by security video, andJ^Harrah’s employees notified the Shreveport Police Department that a theft had occurred.

The police department dispatched three police officers to the scene; and, when they arrived, Mr. Adams was removed from the casino floor to a security office where he was advised of his Miranda rights and interviewed regarding the alleged theft. Two of the officers viewed the security video and concluded that Mr. Adams had taken a chip from Mr. Webb. When they returned from viewing the video, they told Mr. Adams that he was under arrest, searched and handcuffed him and transported him to the Caddo Correctional Center. When Mr. Adams was searched, however, no $500 chip was found. Mr. Webb was unaware of the alleged theft, but told police officers that he would be willing to press charges against Mr. Adams. As previously stated, the district attorney subsequently • dismissed the charges.

Plaintiffs filed this civil suit against Har-rah’s on May 14, 2004, alleging facts that could support claims for general negligence, intentional infliction of emotional distress and false arrest. On November 28, 2005, the trial court granted Plaintiffs leave to file their supplemental and amending petition adding the City of Shreveport as a defendant. On December 6, 2005, Harrah’s filed a motion for summary judgment. Harrah’s asserted that it could have no liability for false arrest by virtue of its good-faith reporting of the theft to the police officers. Harrah’s focused on the fact that the Shreveport police officers conducted an investigation into the alleged theft by Mr. Adams and concluded that there was probable cause for arrest based on their investigation.

| -¡The trial court denied the motion for summary judgment after the matter was submitted on briefs without oral argument, finding that genuine issues of material facts existed that precluded summary judgment. At Harrah’s request, the trial court delineated the questions of facts as:

I think the question of fact here is exactly who was the complainant in this matter, whether it was Harrah’s or the victim. Also, I didn’t see anything there as a sworn statement by the supposed victim in this action as to whether he missed the $500.00 chip that was supposedly stolen from him.. It’s going to be impossible for me to determine what the facts are in this case for purposes of a judgment without hearing him testify live and in open court or at least having their depositions for trial purposes.

The trial court also denied Plaintiffs’ motion for continuance based on incomplete discovery, stating that a continuance was unnecessary given its denial of Harrah’s motion for summary judgment. Thereafter, Plaintiffs again amended their petition, with leave of court, adding claims for malicious prosecution and defamation.

DISCUSSION

The standard of review for the grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether or not a summary judgment is appropriate — (1) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Id. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, |4show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The moving party must show that reasonable minds would inevitably conclude that judgment is warranted as a matter of law on the facts before this court. Id.

Further, in a motion for summary judgment, the burden of proof is on the mov-ant. La. C.C.P. art. 966(C)(2). When the burden of proof at trial is on the non-movant, the burden on the movant at summary judgment is to demonstrate an absence of factual support for one or more elements essential to the adverse party’s claim; Id. If the non-movant then fails to produce sufficient factual support to show he can meet the evidentiary burden at trial, there is no genuine issue of material fact. In the case sub judice, the burden at trial is on Plaintiffs to prove their claims. As movant, Harrah’s must only point out an absence of factual support, which they do here. The burden on this motion shifts, therefore, to Plaintiffs to establish the requisite evidentiary support on the claims they assert.

The supreme court recently decided a case factually similar to the instant case, Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669. In Kennedy, the plaintiff attempted to pay at a Jack-in-the Box drive-through window with a 1974 series $100 bill. The drive-through teller suspected that the bill was counterfeit and called the sheriff. The sheriff determined that the bill looked suspicious and arrested the defendant. At the substation, the sheriff verified the authenticity of the bill and released the defendant.

IsAddressing the malicious prosecution claim, the supreme court held that the independent actions and investigation of the sheriff broke the chain of causation between the Jack-in-the Box complaint and the defendant’s arrest. This rational is not limited to Plaintiffs’ malicious prosecution claim, but applies to all Plaintiffs’ claims. See, e.g., Banks v. Brookshire Brothers, Inc., 93-1616 (La.App. 3d Cir.6/1/94), 640 So.2d 680 (malicious prosecution); Hughes v. Gulf International, 593 So.2d 776 (La.App. 4th Cir.1992) (false arrest), writ denied, 595 So.2d 658 (La.1992).

In the case sub judice, the Shreveport police conducted a similar independent investigation into the suspected theft. After the three police officers arrived, two of them viewed the video recording and arrived at a decision to arrest Mr. Adams independent of Harrah’s. Plaintiffs argue that Harrah’s possible involvement in commenting on the video distinguishes this case from Kennedy. In particular, Plaintiffs point out that the usual procedure, as described by one of the investigating police officers, is for Harrah’s security to review the video tape with the police and point out what they believed was the criminal act. The officer was unable to recall if, in this particular instance, Harrah’s security had such involvement. Even if they did, this involvement does not rise to such a level as to prevent the police investigation from being independent of Harrah’s own suspicions. As such, the independent investigation by the police breaks any legal causation.

Plaintiffs further argue that Kennedy is distinguishable because, unlike the employees in Kennedy, Harrah’s security force is composed of | ^highly trained personnel amounting to a private police force. We find this distinction unpersuasive. The reasoning of the Kennedy court is not based on the qualifications of who made the complaint, but, instead, on subsequent and intervening law enforcement investigation. The police in the instant case made an independent investigation just as the Sheriffs Office did in Kennedy. This is the critical factor that prevents Plaintiffs from proving legal causation on any of their claims.

While discussing the defamation claims arising from the same facts, the Kennedy court focused on the need to encourage honest and good faith reporting to law enforcement. We find this policy consideration equally applicable in evaluating any claim that arises from a private citizen making a report to law enforcement. The court considered that “[i]t would be self-defeating for society to impose civil liability on a citizen for inaccurately reporting criminal conduct with no intent to mislead. If the risks to the citizen are too high, a fertile field for criminal suppression will have disappeared.” Kennedy, supra, citing Arellano v. Henley, 357 So.2d 846 (La.App. 4th Cir.1978). It further emphasized that, “vital to our system of justice is that there be the ability to communicate to police officers the alleged wrongful acts of others without fear of civil action for honest mistakes.” Kennedy, supra.

The court recognized the need for balance between a person’s individual interests and society’s interest in crime prevention.

[The court’s holding] strikes a necessary and appropriate balance between a person’s interest in protecting his or her reputation and the need to encourage individuals to report suspected criminal activity to the proper authorities without fear of being exposed to |7civil liability for honest mistakes. Unless such protection is extended, fear of being exposed to civil liability could discourage individuals from alerting police to suspicious activity, thereby enabling criminals to escape detection and endangering other potential victims. Individuals who engage in behavior beneficial to society should not be penalized by facing exposure to civil liability for mistakes in judgment attributable to simple negligence.

Kennedy, supra. Notably, these policy considerations are only applicable in cases of honest and good-faith reporting.

Further, the Kennedy court expressly limited its holding to the facts before it. Those facts do-not indicate anything but a good-faith report on the part of the Jack-in-the Box employees. The issue, therefore, becomes whether Harrah’s was in good faith in making its complaint and who had the burden on summary judgment on that issue. As Plaintiffs have the burden of proof at trial on all their claims, they have the burden of proof at summary judgment to overcome Kennedy by establishing Harrah’s lack of good faith. La. C.C.P. art. 966(C)(2). They fail to do so.

Attached to the motion for summary judgment were the depositions of Mr. Adams and two of the investigating officers, along with the police reports. The video at issue was not submitted. The only evidence arguably going to Harrah’s lack of good faith is the fact that no $500 chip was found on Mr. Adams, that Har-rah’s could not explain the absence of the chip and that Mr. Webb did not miss the chip before being informed of the suspected theft. These facts, at most, show possible error on the part of Harrah’s, but do not amount to a genuine fact issue on good faith. Plaintiffs failed to show a genuine issue of material fact to survive summary judgment. Accordingly, we reverse the trial court and grant Harrah’s motion for summary judgment.

| RThis holding is consistent with the policy considerations previously expressed by this court:

Reasonable efforts by a citizen toward [the] suppression of crime, even where a simple mistake exists, do not automatically impose civil liability ..., if all the circumstances indicate the efforts were reasonable. The law should, and does, encourage citizens to report suspected criminal activity to the proper authorities.

Craig v. Carter, 30,625 (La.App.2d Cir.9/23/98), 718 So.2d 1068, writ denied, 98-2698 (La.12/18/98), 734 So.2d 636, quoting Sapp v. J.A. West Co., 352 So.2d 268 (La.App. 2d Cir.1977), writ denied, 353 So.2d 1337. The record shows that Har-rah’s did little more than report their suspicions, even if it was ultimately mistaken. Its behavior was reasonable given the circumstances.

Further, in attempting to avoid summary judgment, the Plaintiffs, in their second amending and supplemental petition, allege that Harrah’s provided the police with an edited or doctored security tape. This bare allegation is unsupported by the record. Alternatively, Plaintiffs’ counsel further responded at oral argument that its motion for continuance was improperly denied. Counsel, however, failed to assert denial of this motion as an assignment of error on appeal. It is, therefore, not before this court. See Uniform Rules, Courts of Appeal, Rule 2-12.4.

Our de novo review of the record reveals no genuine issue of material fact; and, therefore, we conclude that Harrah’s is entitled to judgment as a matter of law. The facts, as supported by the record, entitle Harrah’s to summary judgment dismissing any claims against it. In particular, Plaintiffs | ¡¡cannot establish the requisite causation between Harrah’s actions and Mr. Adams’ arrest.

CONCLUSION

For the foregoing reasons, the trial court erred in denying Harrah’s motion for summary judgment. Accordingly, we reverse the denial of summary judgment. Judgment is hereby rendered in favor of Harrah’s, dismissing Plaintiffs’ claims with prejudice. Costs are assessed to Plaintiffs.

REVERSED AND RENDERED.

BROWN, C.J., dissents with written reasons.

BROWN, Chief Judge,

dissenting.

Lin its motion for summary judgment, Harrah’s does not contend that George Adams was guilty of any crime, rather Harrah’s interposes the police as a shield against liability, citing Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.07/10/06), 935 So.2d 669. The court in Kennedy, however, held that “[Gjiven these facts, which were not controverted by plaintiff, it is clear that any chain of causation regarding plaintiffs subsequent detention was broken (by an independent police investigation and action).” Given the facts in the case at bar, Harrah’s bare profession by its attorney of good faith was controverted by plaintiffs submissions in opposition to the MSJ and the trial court correctly found that there existed material fact questions concerning reckless disregard and abuse by Harrah’s.

In Craig v. Carter, 30,625 (La.App.2d Cir.09/23/98), 718 So.2d 1068, writ denied, 98-2698 (La.12/18/98), 734 So.2d 636, this court rejected defendant’s contention that the plaintiffs arrest stemmed solely from a determination by the police rather than any request by Brookshire’s store employees. After acknowledging the grant of summary judgment in Banks v. Brookshire Bros. Inc., 93-1616 (La.App. 3rd Cir.06/01/94), 640 So.2d 680, in which store employees merely reported their observations to police officers who then conducted their own investigation, we stated that the record in Craig showed broad reliance on the facts provided by the store employees and only limited independent inquiry by the police. Thus, this court concluded in Craig that the plaintiffs arrest occurred at the instigation of the grocery store employees.

|aIn the case at bar, the facts, like those of Craig, are equally distinguishable from those of Banks and Kennedy. The majority opinion states that plaintiff, George Adams, was arrested, jailed, and charged “based on a video tape recording of surveillance footage.” This video, however, was not submitted with Harrah’s MSJ nor did Harrah’s submit any affidavits or depositions based on personal knowledge of casino employees who made the decision that Adams had stolen a $500 chip from Harley Webb. They stuck to this decision in face of Webb’s denial of any theft and even after a search of Adams by these casino security officers failed to find a $500 chip. Subsequently, the charge was dismissed by the Caddo Parish District Attorney.

In support of its summary judgment motion, Harrah’s presented the depositions of George Adams and two of the three responding Shreveport Police Department officers. As stated, neither the surveillance videotape nor affidavits/depositions of Harrah’s security officers were provided. In fact, the Harrah’s security officers were never identified. In response to Harrah’s motion for summary judgment, Adams attached his deposition, the bill of information charging him with felony theft, and the dismissal of prosecution filed by the state.

As this record stands, the submissions in support of and in opposition to the MSJ show that there was no victim and no crime. SPD Corporal Laura Sorrells was the arresting officer, and she wrote the incident report. In her deposition, she did not fully remember the incident and had to refer to | sher report. When asked “but do you remember actually being there and doing these things indicated in the report?” Cpl. Sorrells responded:

A .... no, I, you know, other than going by my report, no. I’ve made a bunch of arrests since then, especially at the boat, so, they all get mixed together.

Corporal Sorrells’ report lists Harrah’s as the complainant and states that the alleged victim, Harley Webb, was unaware of any theft. Contrary to the majority opinion, nowhere in this record does anyone claim that Webb ever said he was a victim of theft. In particular, in her deposition, Cpl. Sorrels stated:

Q. And Mr. Webb said he didn’t know that anyone had taken his chip; right?
A. Correct.
Q. Did y’all ask him any other questions, like had he counted his money? Was ...
A. No.
Q. Was he, in fact, $500 short?
A. I don’t recall if we ever did or did not.
Q. So, really, he didn’t know that anybody had taken anything from him; is that correct?
A. That’s what he stated; yeah.
Q. And then Harrah’s security told y’all that they had a surveillance tape and that they observed a theft on that surveillance tape?
A. Correct.
(Emphasis added)

Corporal Sorrells never viewed the video and never identified any casino informant. There is no indication of whether that casino informant 14was simply repeating what he/she was told or had personal knowledge. According to Cpl. Sorrells’ report, Harley Webb had been taken from the gaming area by casino security officers to an interrogation room where he told Cpl. Sorrells that he was unaware of any theft. This denial was witnessed by casino officers. Obviously, Webb had been told of the alleged theft and would have checked his cachet of chips. As noted by the trial court, “I didn’t see anything there (such) as a sworn statement by the supposed victim (Webb) in this action as to whether he missed the $500 chip that was supposedly stolen from him.” Further, corroborating that no theft occurred is the dismissal of .prosecution and the fact that when searched by Harrah’s security officers, Adams had on his person only $108 in chips, the largest being a $25 piece. The two SPD officers that gave depositions both stated that they had no recollection of searching Adams. In his deposition, Adams stated that he was searched by Harrah’s security officers. Again, no one controverted Adams’ statement. Specifically, Adams said that there were always three Harrah’s security officers present and that:

... the Harrah’s security said, oh, you got chips. Yeah, I got, did you check me, you know, yeah. So they pulled them out of my pocket and I had about $108 of chips in my pockets. So they searched me after I asked them, let me give my wife my chips.

Lack of good faith never depended, as asserted by the majority, on whether a $500 chip was found on Adams; rather, it depended on what Harrah’s security officers saw initially and learned thereafter to justify their pursuit of criminal charges against Adams. No affidavits or depositions Isfrom these security officers were furnished with Harrah’s summary judgment motion, nor was the videotape of what they saw provided. Thus, this record provides no professions of good faith. It is also clear that the SPD officers, who were patrolling downtown on bicycles, showed up when called by Harrah’s, and as stated in their depositions, relied on the information given by Harrah’s security officers. Corporal Sorrells talked to only two people, Webb, who said he suffered no loss and Adams, who explained that he reached across his wife and took a chip from her tray. There is no identified Harrah’s employee from whom any statement was taken.

Harrah’s was listed by the police as the complainant and in so far as this arrest is concerned, the relationship between Har-rah’s and the police is problematic. After speaking with Harley Webb, Cpl. Sorrells wrote that “Harrah’s security approached (Adams) and asked him to accompany them.” At this time, only Harrah’s security personnel had seen the video from the surveillance camera. Corporal Sorrells interviewed Adams, who was cooperative, telling her that his wife had a place at the craps table and that he reached around her and took a $25 chip from her tray and put it in his pocket. This same story was repeated in his deposition.

Corporal Sorrells did not search Adams and as previously stated, none of the SPD officers admitted to searching Adams. Adams said that he was searched by Har-rah’s security. This statement is uncon-troverted and it demonstrates the extent to which this arrest was controlled by Har-rah’s. J^Even after the incident, the surveillance camera continued to film Adams, but the record is silent as to what this recording showed.

Corporal Sorrells did not recall whether Harrah’s security took Adams out of the casino and to a police van; however, she stated that this was the standard procedure. Corporal Sorrells never viewed the videotape.

Officer Jimmy Ray did view the videotape with Harrah’s security personnel. He had no specific memory of what he saw but explained that the standard procedure was that Harrah’s security officers would point out the alleged crime. “[T]hat is the standard of what they (Harrah’s) do. Otherwise we don’t know what we are looking for, you know.” (Emphasis added). In his deposition, Officer Ray further responded as follows:

Q. Is it (the videotape) queued up to a certain spot when you take a look at the tape?
A. I have no idea.
Q. Would they point out people to you who they believe were perpetrating a crime?
A. Yes, they would.
Q. So in order to review that tape and determine who the suspect is, they’re going to show you the videotape and say, here is the suspect reaching across and taking a chip; is that right?
A. Uh-huh.
Q. Do you recall if they run the tape back and forth several times?
A. I have no idea.
Q. Did they slow it down and put it on slow motion for you?
|7A. Have no idea.

Officer Ray’s participation was limited to reading Adams his Miranda rights and being taken by Harrah’s security personnel to view the film. He specifically stated that he did not make the arrest or determine probable cause. When asked if the arrest “was based on the investigation that the Shreveport Police Officers did,” Ray responded, “And the evidence that was provided by Harrah’s.” All you can possibly glean from Officer Ray’s testimony is that Adams reached around his wife and took a chip off her tray.

The third responding officer, Steven Lowery, neither was deposed nor did he prepare an affidavit. Officer Lowery did write a one paragraph report; however, a police report not accompanied by an affidavit or a deposition of the officer is not considered as competent evidence in a summary judgment proceeding. La.C.C.P. art. 967; Encalade v. United Insurance Company of America, 99-0085 (La.App. 4th Cir.06/02/99) 735 So.2d 954. I note that the report did say that Adams reached around a woman and took a chip, and then placed the chip in his pocket. Despite the fact that Adams was continuously under surveillance, no other video was provided to the SPD officers.

The Adams family, residents of Carrol-ton, Texas, had traveled to Shreveport from Texas with their two teenaged children and were staying at the Horseshoe Casino Hotel for the holidays. This incident occurred in the early afternoon of December 31, 2002. Because of the holidays and the difficulty in finding a judge to set bail, Adams was in jail for two days and | anights. Adams, who was a 40-year-old African-American, had no prior criminal record and worked as a youth counsel- or. He had played college football at the University of Kentucky and was a first round draft pick in the NFL. Adams played seven years as a professional in the NFL with the New York Giants and New England Patriots. Adams was retired from the NFL and disabled.

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice. Jones v. Estate of Santiago, 03-1424 (La.04/14/04), 870 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.04/07/04), 870 So.2d 1131, writ denied, 04-1420 (La.09/24/04), 882 So.2d 1142. ‘One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App.2d Cir.08/18/99), 740 So.2d 263, writ not considered, 99-2729 (La.11/24/99), 750 So.2d 993. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Hooker, supra.

In Kennedy, supra, our supreme court recognized that the chain of causation for malicious prosecution can be broken when law enforcement conducts an independent investigation. In Kennedy, the plaintiff attempted to pay at a Jack-in-the-Box drive-thru window with a $100 bill. The drive-thru teller suspected that the bill was counterfeit and called the authorities. The deputy sheriff determined that the bill looked suspicious and took the | gdefendant to a substation to further examine the $100 bill. The deputy verified the authenticity of the bill and immediately released the defendant. On the malicious prosecution claim, the supreme court held that the independent actions and investigation of the sheriff broke the chain of causation between the Jack-in-the-Box call to police and the defendant’s arrest.

Unlike Jack-in-the-Box, Harrah’s Casino maintained a large professional security force and monitored all gaming activity. That the majority opinion would impose no greater scrutiny on such a professional security force than a minimum wage worker in a fast food drive-thru is difficult to comprehend. Harrah’s and the police also had an understanding or standard operating procedure that Harrah’s security force would handle events in the casino; however, there is no specification in this record of what the standard procedure was except that such a procedure existed.

In this case, Harrah’s security took Webb off the floor and heard him say that he knew of no theft; Adams was also taken off the floor and into a security room by Harrah’s security officers. It was Har-rah’s security who searched Adams and failed to find the alleged stolen chip; it was also Harrah’s security personnel who refused to let Adams see the video and explain his actions. When Adams was arrested, he was taken out of Harrah’s by casino security officers. Corporal Sorrells, the arresting officer, did not view the video and Officer Ray, who did see the video, had no specific memory of what he watched. Officer Ray explained that it was Harrah’s security personnel who told him that the tape purportedly showed |inthe theft. Officer Lowery’s report of what he saw on the video is not admissible but arguably supports what Adams said he did, i.e., reached around or across his wife to take a chip from her tray. How anyone could distinguish a $500 chip from a $25 chip or what tray belonged to who is unknown. If the camera was sophisticated enough to distinguish by color or numbers the chips, then it would clearly have shown who did what.

From the motion for summary judgment and attachments it appears that the SPD officers relied on the casino security force in making this arrest. One reasonable interpretation of the limited record is that Harrah’s security force instigated the arrest and that they initially acted recklessly and without a reasonable suspicion, that is, what they saw was Adams reach around his wife and take a chip from her tray. Thereafter, they searched Adams and found no stolen chip but continued to push for his arrest. There is no fixed test to measure acts constituting a reckless instigation of an arrest. Each case depends upon its own particular facts established by both direct and circumstantial evidence. From what has been presented, as well as what has not been shown, plaintiff has a sustainable case and summary judgment was properly denied.

I also agree with the trial court that this summary judgment motion was premature and that more discovery is in order.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, MOORE and LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

      . Kennedy was released after the trial court's ruling, so the court did not have the benefit of its guidance.

      . In á factually similar case out of Missouri, Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466 (Mo.App. W.D.2005), a casino patron was detained by security and arrested by a gaming commission officer under suspicion of stealing gambling chips. Later, the patron sued the casino and the officer for false arrest; the officer was granted summary judgment, but Harrah’s was found liable for the false arrest. Harrah's filed a cross appeal claiming that the trial court erred in denying its motion for directed verdict and for JNOV on liability. As in Louisiana, the elements of false arrest were restraint of the plaintiff against his will and the unlawfulness of the restraint. The court noted that a defendant may be liable for false arrest even if he did not actually confine the plaintiff, if the defendant instigated, caused, or procured the arrest; however, merely providing information to the police is not sufficient to find that a defendant caused the arrest. In considering Harrah's cross appeal, the court noted that a defendant is entitled to have a motion for directed verdict or JNOV granted only if the plaintiff fails to make a sustainable case. To make a sustainable case the plaintiff must present substantial evidence for the essential elements of liability (i.e., evidence, which, if true has probative force on the issues, and from which a trier of fact can reasonably decide the case).
      In Blue, Harrah’s claimed that it could not be liable for bringing the theft of the chip to the officer’s attention and for then following his directions. Harrah’s claimed that all they did was report the theft to the officer once the surveillance department confirmed that the theft actually occurred and that Harrah's was simply cooperating with the officer during the course of the investigation by stopping the plaintiff on the officer’s orders and providing handcuffs when the officer requested them.
      The court noted that because the question of denial of motion for JNOV concerned only whether the plaintiff had made a sustainable case that Harrah’s instigated the arrest, the court would not actually weigh the evidence that the plaintiff presented. The plaintiff presented evidence that Harrah's told the officer about the theft, showed him the videotape of the theft, and searched for anyone who resembled the thief. Harrah's employees followed the officer's directions which ultimately resulted in the arrest. The court said:
      Although some of this evidence is in Har-rah’s favor, some of it is not. This creates two possible interpretations about what happened; so a sustainable case was made, and it was for the jury to decide whom to believe.


author: SEXTON, J.

text:
    Lenzy JACKSON, Plaintiff-Appellant v. LOUISIANA BOARD OF REVIEW and Wyatt Manor Nursing Home, Defendants-Appellees.
    No. 41,862-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 2007.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, Teresa Culpep-per Carroll, for Appellant.
    J. Jerome Burden, Baton Rouge, for Appellee, Administrator, LA Dept, of Labor.
    Onebane Law Firm, by Gregory Guidry, Joan Angela Labbe Boudreaux, for Wyatt Manor Nursing Home.
    Before WILLIAMS, GASKINS & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| Claimant, Lenzy Jackson, appeals from a judgment affirming the denial of his demand for unemployment compensation benefits. For the reasons stated herein, we affirm.

FACTS

Mr. Jackson was employed as a maintenance man by the Wyatt Manor Nursing Home in Winnfield. When hired, he signed the facility’s drug and alcohol policy, which provided, in part, that the use, sale, transfer or possession of drugs was strictly prohibited. He was fired on October 27, 2005, due to circumstances related to a violation of the drug policy and, thereafter, sought unemployment benefits. The Louisiana Department of Labor (“LDOL”), Office of Employment Security, initially determined that Mr. Jackson was qualified to receive benefits, but Wyatt Manor appealed that decision to the LDOL Board of Review (“the Board”) urging that Mr. Jackson was fired for misconduct.

On January 10, 2006, the Board held a hearing and heard testimony from Mr. Jackson and from a representative of Wyatt Manor, Pam Masters. Ms. Masters was the administrator of Wyatt Manor and was Mr. Jackson’s supervisor. Through Ms. Masters, Wyatt Manor introduced an “Employee Counseling Form” created by Wyatt Manor on the day Mr. Jackson was discharged. The form provides:

PROBLEM: Investigation of illegal substances in the building and being given to residents by ah employee. Employee had knowledge of this dealing and did not report it to administration.
STATEMENT BY EMPLOYEE: Resident asks employee about where he could get some “joints.” Employee states he 12told resident where he could get some from another employee. “He aske (sic) me for some drug, (sic)”
RESOLUTION OF PROBLEM OR ACTION TAKEN: Reviewed company policies with employee. Explained the knowledge of drug dealing within the building is not tolerated and is a violation of company policies. Employee was counseled that the administrator of the building should have been notified immediately. Employee terminated for violation of company policy.

Mr. Jackson’s apparent involvement in a scheme to furnish marijuana to a Wyatt Manor resident and his failure to notify his employer of the situation was, thus, the cause of his termination.

The hearing was conducted informally, with both Mr. Jackson and Ms. Masters engaging in a colloquy with the administrative law judge. The judge heard the testimony of both parties, and each witness’ testimony included hearsay concerning the selling of drugs in the facility by employees. The details of the drug selling scheme cannot be determined with any accuracy, but the employer alleges that Mr. Jackson and his sister-in-law, also a Wyatt Manor employee, worked together to sell marijuana to a Wyatt Manor resident. Wyatt Manor fired both Mr. Jackson and his sister-in-law as a result of the incident. In his testimony, Mr. Jackson placed most of the blame for the scheme on his sister-in-law and denied knowing that she was selling drugs. Mr. Jackson admitted, however, that he had knowledge of the resident’s desire for drugs and that he (Mr. Jackson) had advised the resident that he may know where the resident could get the drugs. Mr. Jackson engaged in the following exchange with the administrative law judge:

| aJudge: It [the employee counseling form] said “He asked me for some drugs.” (Sic.)
Jackson: (Inaudible)
Judge: And you told him where he could get some?
Jackson: I told him where he might.

Mr. Jackson admitted talking to his sister-in-law about his conversation with the resident, but then repeated that his sister-in-law was actually responsible for bringing the drugs into the facility and selling them to the resident. Despite admitting that he told the resident “where he might” obtain drugs, Mr. Jackson denied that he told the resident that his sister-in-law was the person who the resident should talk to about the drugs. Mr. Jackson did not report the incident to anyone at Wyatt Manor.

On January 11, 2006, the administrative law judge reversed the initial decision of the LDOL, stating in part:

The testimony and evidence in this case indicate the claimant ... was terminated from his employment after he was involved in a transaction involving the selling of marijuana to a resident. His actions demonstrate a standard of behavior beyond what an employer has the right to expect of an employee and a deliberate disregard of their rules. His discharge was for misconduct connected with the employment.

Mr. Jackson appealed this decision to the LDOL Board of Review, and the Board affirmed the decision on March 3, 2006. Mr. Jackson appealed that decision to the district court, and a hearing was held on June 12, 2006, to consider the case. The parties submitted the case on memoranda and the district court charged itself with the appropriate law concerning the standard of review under La. R.S. 23:1634(B) and concluded that the Board’s findings were supported by sufficient evidence and were correct as a matter | ¿of law. Accordingly, the district court affirmed the Board’s decision and Mr. Jackson now appeals.

DISCUSSION
La. R.S. 23:1601(2) provides, in part:
An individual shall be disqualified for benefits:
(2)(a) If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment. Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.

The employer bears the burden of proving that the discharge resulted from disqualifying conduct. Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981). The scope of judicial review by the courts is limited to questions of law and to the question of whether the decision is supported by “sufficient evidence.” Delta American Healthcare, Inc. v. Burgess, 41,108 (La.App.2d Cir.5/17/06), 930 So.2d 1108; Bowman v. State, Office of Employment Security, 403 So.2d 825 (La.App. 2d Cir.1981). Specifically, with regard to the district court, La. R.S. 23:1634(B) provides, in pertinent part:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified findings and conclusions, together with a transcript of the additional record.

5In Lafitte v. Rutherford House, Inc., 40,395 (La.App.2d Cir.12/14/05), 917 So.2d 684, this court observed:

Based on this statutory provision, the jurisprudence has defined judicial review in cases such as this one as requiring a determination of whether the facts are supported by competent evidence and whether the facts, as a matter of law, justify the action taken. Judicial review does not permit the weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of the facts. [Citations omitted.]

See also Delta American, supra.

On appeal, Mr. Jackson argues that the decisions of the lower courts were based largely on hearsay evidence and, in particular, upon statements made by his sister-in-law in the course of the Wyatt Manor investigation and at her hearing before the administrative law judge. Mr. Jackson argues that this evidence was not competent to form the basis of a decision disqualifying him from benefits.

In administrative hearings, the usual rules of evidence do not apply and hearsay may be admissible in accordance with regulations prescribed by the Board. La. R.S. 23:1631; CEG Welding Supply, Inc. v. Moore, 31,167 (La.App.2d Cir.12/14/98), 723 So.2d 524. La. R.S. 23:1631 provides, in part:

The manner in which appealed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the board of review for determining the rights of the parties, whether or not such regulations conform to the usual rules of evidence and other technical rules of procedure.

|fiThe jurisprudence recognizes, however, that hearsay evidence is not competent to overcome an employee’s direct, contradictory testimony. Credit v. Whitfield, 488 So.2d 1064 (La.App. 2d Cir.1986).

Review of the lower court’s rulings indicates that the administrative law judge heard and considered testimony given at Mr. Jackson’s sister-in-law’s unemployment hearing, which implicated Mr. Jackson in the procuring and selling of the marijauna at Wyatt Manor. Mr. Jackson denied that he was involved in the actual transaction. Alone, the hearsay evidence consisting of statements made by the sister-in-law would not be sufficient competent evidence to support the administrative law judge’s conclusion that Mr. Jackson had engaged in misconduct justifying termination under La. R.S. 1601(2). Mr. Jackson, however, admitted at the hearing that he told a Wyatt Manor resident “where” the resident might obtain drugs and it is undisputed that Mr. Jackson did not report this incident to Wyatt Manor. In addition, while we do not know the specifics of the conversation, Mr. Jackson admitted that he spoke with his sister-in-law about the resident’s request. The hearsay evidence in this case simply corroborated Mr. Jackson’s own admissions.

The facilitation of the sale of mari- ■ juana is misconduct; it is a violation of law. Even if not characterized as facilitation of the sale of drugs, we conclude that advising a resident that he may know where drugs |7can be obtained, telling his sister-in-law that the resident wanted drugs and then failing to inform the employer of the drug-related activity at the workplace collectively constitutes misconduct under the statute. Specifically, such actions are dishonest and constitute wrongdoing and are violations of Wyatt Manor’s policies. We find that the record in the case sub judice contains sufficient competent evidence to support Mr. Jackson’s discharge for misconduct and, thus, the denial of unemployment benefits.

CONCLUSION

Since we find that the decisions of the lower courts were based on sufficient competent evidence and justify the action taken as a matter of law, we affirm the judgment of the district court at Appellant’s, Lenzy Jackson, cost.

AFFIRMED.

      . In the opinion section of the written decision, the administrative law judge indicates his finding that Mr. Jackson was terminated “after he was involved in a transaction involving the selling of marijuana to a resident.” During the hearing, the administrative law judge advised Mr. Jackson that his sister-in-law had testified in her hearing (over which he presided) that Mr. Jackson had "set her up” by advising her that the residents wanted drugs.


author: BROWN, Chief Judge.

text:
    David R. HAMPTON, Jr., Plaintiff-Appellant v. AUDUBON INSURANCE COMPANY, Defendant-Appellee.
    No. 41,833-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 2007.
    Rehearing Not Considered Feb. 22, 2007.

      Louis G. Scott, for Appellant.
    Bienvenue, Foster, Ryan & O’Bannon, by David E. Walle, New Orleans, for Ap-pellee.
    Before BROWN, MOORE, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

| plaintiff, David R. Hampton, Jr., seeks reversal of the trial court’s judgment granting the peremptory exception of prescription filed by defendant, Audubon Insurance Company. For the following reasons, the judgment of the trial court is affirmed.

Facts

Plaintiff, David R. Hampton, Jr., had a fire at his home in Lake Providence, East Carroll Parish, Louisiana, on September 27, 2003. He was insured under a standard fire insurance policy issued by Audubon. Over the next several months Hampton filed various proof of loss forms on his home and its contents. Audubon never made a payment on the claim.

On October 6, 2004, Hampton filed suit against Audubon for damages arising from the fire and for penalties, interest, attorney fees, and costs. Audubon responded by filing a peremptory exception of prescription claiming that the suit had prescribed.

The exception was submitted on memo-randa and on February 7, 2006, the trial court rendered judgment granting the exception of prescription and dismissing Hampton’s claim. Hampton filed a motion for new trial which was denied on March 8, 2006. The instant appeal followed.

Discussion

Louisiana Revised Statute 22:691 requires that fire insurance contracts contain language providing that a suit or action for recovery of a | ..claim shall not be sustainable unless the insured has complied with all of the policy requirements and suit is commenced within twelve months after the inception of the loss. La. R.S. 22:691; Greeson v. Acceptance Insurance Company, 32,159 (La.App. 2d Cir.08/18/99), 738 So.2d 1201. The provisions required by La. R.S. 22:691 are mandatory and a fire insurance policy must be written either in conformity with the statute or in a manner which is equivalent to or exceeds the coverage provided by statute. Osbon v. National Union Fire Insurance Company, 93-1975 (La.02/28/94), 632 So.2d 1158.

The Audubon policy provides:

Suits Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss. (Emphasis added).

Thus, the Audubon policy was consistent with state law and a prescriptive period of one year applied to this case to claims for coverage under the policy.

When the petition clearly evidences that the time limitation for commencing an action has run, the burden is on the plaintiff to show an interruption of prescription to avoid dismissal. Lima v. Schmidt, 595 So.2d 624 (La.1992); Bank of Jena v. Robbie’s Auto Body, Inc., 621 So.2d 136 (La.App. 2d Cir.1993). Hampton filed suit on October 6, 2004, more than one year after the fire occurred. Accordingly, Hampton faced the burden of proving that his claim had not prescribed. Hampton has not made any arguments or presented any evidence to show interruption or suspension of prescription on his claim for recovery under the policy’s coverage terms hand, therefore, we must conclude that the trial court did not err in granting the exception in that regard.

This does not, however, answer the question of whether Hampton’s claim for penalties and attorney fees has prescribed. The petition asserts entitlement to penalties on the basis that Hampton’s claim was not paid within 30 days after he filed his proof of loss. This claim is based on La. R.S. 22:658, which obligates an insurer to pay claims within 30 days after receipt of proof of loss. Failure to do so subjects the insurer -to penalties and attorney fees in addition to the amount of the loss if the failure to pay was arbitrary, capricious, or without probable cause. The statute is silent as to prescription.

The law is not clear as to what prescriptive period applies to claims for penalties and attorney fees under La. R.S. 22:658. There is language in other cases that indicates that such a claim is distinct from a claim under the insurance policy and is not governed by the one-year prescriptive period but rather by a ten-year prescriptive period for personal actions under La. C.C. art. 3499. We Sell Used Cars, Inc. v. United National Insurance Company, 30,671 (La.App. 2d Cir.06/24/98), 715 So.2d 656; Cantrelle Fence and Supply Company v. Allstate Insurance. Company, 550 So.2d 1306 (La.App. 1st Cir.1989), writ denied, 559 So.2d 123 (La.1990).

These cases are distinguishable from the present case. In the above cited cases, the losses or damages covered by the insurance policies were viable and had not prescribed. In the case at bar, judicial recovery of the | ¿fire loss was time-barred at the time the action for penalties under La. R.S. 22:658 was filed.

The language of La. R.S. 22:658 suggests that the legislature did not intend to permit recovery of La. R.S. 22:658 penalties in cases in which contractual damages are not awarded. In particular, La. R.S. 22:658(B) provides that the capricious failure to pay “shall subject the insurer to a penalty in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured....” (Emphasis added). The phrasing of the penalty called for by the statute as an add-on percentage of the recovery indicates an intent to prohibit penalty recovery regarding claims which are no longer viable. In the case in which this court has applied the longer prescriptive period applicable to personal actions, We Sell Used Cars, Inc., supra, the underlying claim on the policy was still viable. See Gordon v. State Farm Fire and Casualty Company, 895 F.2d 1036 (5th Cir. 1990). The court in Gordon, supra, concluded that a claim for penalties and attorney fees pursuant to La. R.S. 22:658 for arbitrary and capricious failure to pay a loss under a fire insurance policy is not recoverable if there is no liability for the underlying fire loss because it was time-barred.

Further, the insurance contract in the instant case provides that “no action” could be brought unless it is brought within one year of the date of loss. Similarly, the language in La. R.S. 22:691 prohibits “the recovery of any claim” unless brought within one year. Clearly, “no action” and “any claim” would include one for penalties and attorney fees.

| ^Recovery under fire insurance policies, both for policy coverage and under the penalty statute, is not available if all recovery on the underlying contract is barred by prescription. As such, we find no error in the trial court’s granting of the exception of prescription.

Conclusion

For the reasons set forth above, the judgment of the trial court granting Audubon’s exception of prescription is hereby affirmed. Costs of this appeal are to be borne by plaintiff, David R. Hampton, Jr.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, MOORE, and SEXTON (Pro Tempore), JJ.

Rehearing not considered, not timely.

      . There is a question about whether the motion for new trial was timely filed. However, because the appellate delays from the judgment of February 7, 2006, had not expired at the time the motion for appeal was filed, this court has jurisdiction over the appeal regardless of whether the motion for new trial was timely.


text:
    STATE of Louisiana, Appellee v. Fredrick Dewayne GRAY, Appellant.
    No. 41,732-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 2007.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, Geya D. Williams Prud-homme, Brady D. O’Callaghan, J. Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| t This criminal appeal arises from the conviction in a bench trial of Defendant, Fredrick Dewayne Gray, for attempted simple kidnapping. The trial court sentenced him as a second-felony offender to three and a half years at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals. Defendant’s conviction is affirmed. His sentence is affirmed as amended, and the case is remanded for correction of the minutes.

FACTS

During the early morning hours of February 9, 2003, Deputy Gary Baird of the Caddo Parish Sheriffs Office responded to a 911 call on Hiawatha Street during which a resident there had stated that there was a female on his front porch screaming that someone tried to rape her. Deputy Baird testified for the State as to his investigation of the incident, including his conversation with the victim. She told him that someone tried to rape her and described the assailant as a black male of average size wearing dark pants and top. Deputy Baird noticed swelling on the victim’s left eye.

According to Deputy Baird’s testimony, the victim gave the following account of the events. The victim was in the parking lot of the Econo Lodge on Monkhbuse Drive when Defendant offered her a ride home and “put” her in his vehicle. She did not know him, but accepted his offer to take her home. Deputy Baird’s understanding was that she did get into the vehicle voluntarily. She told Defendant where she lived; but, as “the ride went on,” she became uneasy and asked him to let her out of the vehicle. In response, [^Defendant told her she could get out if she wanted, but that he refused to stop the car. Defendant offered her money for sex and he offered her beer and wine to drink. Defendant threatened physical harm to her if she did not allow him to touch her. He proceeded to touch her breasts and vaginal area without her consent. When Defendant drove her to the parking lot at Lakeview Baptist Church on Tacoma Street, she was able to get out of the vehicle and run away.

The victim pointed out to Deputy Baird where Defendant’s car was parked. The vehicle was empty. Soon thereafter, Deputy Baird saw a man matching the victim’s description running in the road where Hiawatha Drive and Tacoma Street intersect. When he stopped the man, Defendant told him that he was out jogging because it was quiet and peaceful, in spite of the fact that it was dark and raining and that he knew no one in that area of town. After placing Defendant under arrest and receiving consent to a search from the owner of the vehicle, Deputy Baird found beer and wine in the vehicle.

Defendant eventually admitted that he had a companion in the vehicle with him, a female named “Deonshay,” which was not the name of the victim. He admitted that he went to the Econo Lodge to pick up this friend, whom he had known for a little over a month. He was giving her a ride home when she asked him to stop the vehicle and let her out. After he let her out of the vehicle, he followed her and asked her what was wrong, but she told him nothing was wrong and would not talk to him. Defendant told Deputy Baird that he was out looking for her when they saw him running. Defendant denied touching the victim. In addition, through Deputy Baird’s testimony, 13the State played a videotape depicting the weather conditions, the victim and her voice and Defendant being arrested.

The State presented the testimony of Don Adley, the person who called 911, and the owner of the house where the victim went for help. Mr. Adley testified that the victim was on his front porch, very upset, and saying that someone was after her. He noticed Defendant’s vehicle driving by his house twice with the occupant shouting, “I love you.”

According to the victim at trial, she was leaving a bachelorette party at the Econo Lodge when Defendant drove up to her in the parking lot. She had met Defendant two months earlier through her cousin when he had given them both a ride to a party, but this was the only time she had ever seen Defendant before. She got in the car with Defendant because she thought he was going to give her a ride home. She realized that he was not going to take her home when he began driving to different places and started touching her. While Defendant was driving, he touched her breasts and put his hand down her pants, touching her vagina, without her permission. She tried to stop someone driving by, but Defendant told the driver that she was his girlfriend and that they were just having problems.

The victim testified that, once they arrived at the church parking lot, she was able to get out of the vehicle and run away. Defendant was not touching her at the time they were in the parking lot. Once she got away, she went to one house, but no one came to the door. She next went to Mr. Adley’s home. While he was calling 911, Defendant came onto the front porch and hit her in the head when she refused to leave with him. He then ran haway from the front porch, but kept driving by the house while she was waiting for law enforcement to arrive. She saw Defendant park his SUV down the street and run away shortly before law enforcement arrived.

Defendant testified on his own behalf. According to his testimony, he had left work and took a friend to the Econo Lodge when he saw the victim leaving. She asked him for a ride home and he knew her because he had met her once before. He insisted that he was driving on the back roads because he was not familiar with the interstate due to the fact that he just gotten out of prison after serving a sentence for forcible rape. The victim asked him for $50, then took $25 from his console without his consent and refused to put the money back. Then the victim got out of the car with his money after a struggle that included the victim also taking a ring off of his finger. He followed her to the house to demand his money and ring back, but in response, the victim threw it all on the ground. He then scooped up the money and was on his way back to his vehicle when law enforcement arrived. Defendant admitted being evasive with Deputy Baird because he was nervous due to the fact that he had only gotten out of prison nine months earlier.

Based upon the evidence presented at the bench trial, the trial court found Defendant guilty of attempted simple kidnapping as a responsive verdict to the original charge of simple kidnapping and found him not guilty of sexual battery.

DISCUSSION

Defendant contends that the evidence was insufficient to support his conviction of attempted simple kidnapping because there was no evidence |Bthat he intended to forcibly seize the victim and carry her from one place to another without her consent or that he committed an overt act in furtherance of that intention. Specifically, Defendant relies upon the fact that the victim voluntarily got into his vehicle. He submits that they struggled over the money the victim ,was taking from him and that there is a lack of evidence indicating that he tried to put the victim back in his vehicle after she got out of it.

The State argues that while the victim voluntarily entered Defendant’s vehicle, her consent was vitiated at the point it became apparent to her that he was not driving her home, but, instead, taking her to another location to sexually molest her. It contends that Defendant refusing to stop the car when the victim asked him to do so and hitting the victim in the head when she refused to leave Mr. Adley’s house were overt acts in furtherance of his attempt to take her someplace against her will. To support its position, the State demonstrates the consistency between the victim’s account of the offense and the testimony of Mr. Adley regarding her physical and mental condition at the time and his observation of Defendant driving by his house. It further emphasizes that Deputy Baird’s observations corroborate the victim’s account. Deputy Baird discovered beer and wine in Defendant’s vehicle, which the victim had previously claimed that he offered to her, and observed swelling on the victim’s left eye consistent with Defendant having struck her several times in the head, as she testified.

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 6970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt, in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. Thus, the standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App.2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434, citing State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess [7the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writ denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The offense of simple kidnapping is defined, in pertinent part, as “[t]he intentional and forcible seizing and carrying of any person from one place to another without his consent.” La. R.S. 14:45(A)(1). To commit the offense of attempted simple kidnapping, Defendant must have had the specific intent to commit the offense of simple kidnapping while taking some action in furtherance of accomplishing that offense. La. R.S. 14:27(A). Specific intent is a state of mind existing when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act. State v. Davies, 35,783 (La.App.2d Cir.4/5/02), 813 So.2d 1262, writ denied, 02-1564 (La.5/9/03), 843 So.2d 389, citing La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993). Since specific intent is a state of mind, it need not be proved as a |sdirect fact, and it may be inferred from the circumstances. State v. Davies, supra, citing State v. Graham, 420 So.2d 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989).

In the present case, the victim testified that she voluntarily got in the vehicle with Defendant because she thought he was going to give her a ride home, but that she asked him to stop the vehicle and let her go when she realized that he was not driving her towards home and when he began touching her in a sexual manner without her permission. Although Defendant claims that he could not have attempted to commit simple kidnapping because the victim voluntarily got into the vehicle with him, her consent ceased when she asked him to let her out of the vehicle. In State v. Logan, 213 La. 451, 34 So.2d 921 (1948), the supreme court found that the defendant committed simple kidnapping, even though the victim voluntarily got into the vehicle, when he refused to stop the vehicle after the victim asked him to do so:

We think, as did the trial judge, that the fact that the defendant did not lay hands on her until she endeavored to get out of the truck does not mean that force was not used in keeping her in the truck for by keeping her in the truck against her will while that vehicle was traveling at a rapid rate of speed constituted a forcible seizure just the same as if the accused had held her therein at the point of a gun without laying hands on her, and certainly no one would doubt that holding a person at the point of a gun does not constitute forcible seizure and detention. Consequently, when the defendant transported the prosecutrix under these conditions from the place where she wanted to get out of the truck, passed the road leading into Cotton Valley, to the point where she jumped or fell from the moving truck, all against her will, the added element of transportation makes this crime one of Simple Kidnapping. ...

In State v. Davies, supra, this court similarly found that a kidnapping occurred even though the victims voluntarily got into the defendant’s vehicle. |flIn that case, the defendant refused to take the victims home after they pleaded with him to do so; and he, instead, drove to another location while threatening to kill them, demanding sex from them, fondling one of the victims and wielding a bat and knife as weapons. This court found that the testimony of the surviving victim to these facts was sufficient evidence to establish that the defendant had forcibly seized the victims and carried them from one place to another without their consent.

Therefore, the fact that the victim voluntarily entered Defendant’s vehicle for a ride to her home does not preclude Defendant from being found guilty of attempted simple kidnapping. The victim’s consent to be in the vehicle ceased at the point she asked Defendant to stop the car and let her out. Defendant’s actions of refusing to stop the car and continuing to drive constituted the forcible seizing and carrying of the victim from one place to another.

Several of Defendant’s actions indicated his intent to commit simple kidnapping. First, he sabotaged her first attempt at help by telling the driver of a passing car that she was his girlfriend and they were just having problems. Then he pursued the victim after she escaped and struck her in the face when she refused to leave the Adley residence. Deputy Baird’s observation of swelling around her left eye supports the victim’s testimony. Further, Defendant continued to drive by before law enforcement arrived and was even then still on foot in the area near the victim. Accordingly, sufficient evidence' exists for the trial court to find beyond a reasonable doubt that Defendant committed the offense of attempted simple kidnapping. We, 11f)therefore, affirm the conviction of Defendant for attempted simple kidnapping.

Defendant also attacks the enhancement of his sentence as a second-felony offender. He asserts that the State did not adequately prove the prior conviction or that he was the same person in the proffered prior conviction. Defendant claims that the State did little more than present paperwork to prove the prior conviction and that the photographs from the pen pack and the 48-hour affidavit were not sufficient to prove that he is the same person in the proffered prior conviction.

In habitual felony proceedings, when a defendant denies having a prior felony conviction, the State must establish the existence of the prior felony conviction and prove that the defendant is the person convicted in that earlier offense. State v. King, 41,083 (La.App.2d Cir.6/28/06), 935 So.2d 354. In State v. Shelton, 621 So.2d 769 (La.1993), the supreme court explained the process of proving prior felony convictions in habitual offender proceedings under La. R.S. 15:529.1, when that prior felony conviction is the result of a guilty plea:

If the defendant , denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” Intranscript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. (Footnotes omitted.)

The supreme court found that it was appropriate to shift the burden to the defendant after the state makes the initial showing that the defendant made the guilty plea with the representation of counsel because there is a “presumption of regularity that attaches to final judgments.” State v. Shelton, supra, citing Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992).

Proving that a defendant is the same person convicted in the earlier offense may be accomplished through different means, including the testimony of witnesses, expert testimony as to the fingerprints of the accused when compared to those in the prison record introduced or by photographs contained in the duly authenticated record. State v. Mays, 05-2555 (La.5/26/06), 929 So.2d 1231, citing State v. Brown, 514 So.2d 99 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988); State v. Jones, 408 So.2d 1285 (La.1982); State v. Curtis, 338 So.2d 662 (La.1976); State v. King, supra, citing State v. White, 28, 095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, and 98-0282 (La.6/26/98), 719 So.2d 1048; State v. Young, 27,237 (La.App.2d Cir.8/23/95), 660 So.2d 548; State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990).

|12At the habitual offender proceeding in the present case, the State presented a certified copy of a bill of indictment showing that Defendant was charged with attempted aggravated rape, aggravated rape and burglary of an inhabited dwelling in Caddo Parish Docket No. 111,677. The State also presented a certified copy of the transcript for the prior conviction which showed Defendant’s name. The transcript shows that Defendant pleaded guilty to the charge of attempted aggravated rape and the amended charge of forcible rape in exchange for dismissal of the burglary charge and a sentence of 20 years at hard labor without benefit of parole, probation or suspension of sentence. The transcript of the colloquy shows that Defendant was informed and waived his right to a trial by jury, right against self-incrimination and right of confrontation. The state also presented certified documents from the Louisiana Department of Public Safety and Corrections which showed its inmate was released from prison on February 2, 2002, on the charges in Caddo Parish Docket No. 111,677. The documents describe the inmate as a black male born on March 25, 1961, and contain a photograph of the inmate. The incident report and arrest report show that Defendant - is a black male with a date of birth of March 25, 1961.

| isThe trial court filed an Opinion thoroughly explaining its finding that Defendant was a second-felony offender. It found that Defendant was represented by counsel when he pleaded guilty to forcible rape in Docket No. 111,677 and that he knowingly and voluntarily waived his three Boykin rights. In finding that the State proved that Defendant was the same person-convicted in Docket No. 111,677, the trial court expressly relied on the identity of Defendant’s gender, race and date of birth to those of the defendant in the prior conviction, and the resemblance of the photograph to Defendant.

Further, Defendant stated during his trial testimony that he had pleaded guilty to forcible rape in 1979 and that he had only been released from prison nine months before the incident in the present case. In State v. King, supra, this court held that a defendant’s prior felony conviction was proved by his own admission along with the certified bill of information and minutes.

Review of the record shows that the State presented adequate evidence to prove the existence of the prior felony conviction and that Defendant was the same person in the prior felony conviction. Accordingly, the trial court did not abuse its discretion in adjudicating Defendant as a second-felony offender. We affirm the Defendant’s adjudication as a second-felony offender.

Finally, we amend Defendant’s sentence to correct the trial court’s error in sentencing him without benefit of parole. The trial court sentenced Defendant as a second-felony offender, stating that the three-and-a-half-year sentence should be served “without benefit.” The minutes reflect that the | usentence should be served without benefit of parole, probation or suspension of sentence. Both Defendant and the State agree that it was improper to impose the sentence without benefit of parole. The sentencing provisions applicable to attempted simple kidnapping do not require the sentence to be served without benefit of parole. La. R.S. 14:27 & 14:45. Further, the sentencing provisions for second-felony offenders do not remove parole eligibility; rather, as a second-felony offender, Defendant is only deprived of the benefits of probation and suspension of sentence. La. R.S. 15:529.1(A)(l)(a) & (G). Accordingly, the sentence is amended to delete the prohibition on parole eligibility, and the case is remanded to the trial court for correction of the court minutes to reflect that Defendant is parole eligible.

CONCLUSIONS AND RECOMMENDATIONS

For the foregoing reasons, we affirm Defendant’s conviction for attempted simple kidnapping. We affirm Defendant’s sentence as amended and remand for correction of the minutes to reflect that Defendant is parole eligible.

CONVICTION AFFIRMED. SENTENCE AFFIRMED AS AMENDED AND REMANDED.

      . The Honorable Fred C. Sexton, Jr. was the trial judge for the First Judicial District Court in which Defendant entered his guilty plea on Docket No. 111,677. Judge Sexton now writes this opinion as judge pro tempore on this court. His acceptance of the guilty plea does not constitute performance of "a judicial act in .the case in another court,” which would require recusal under La. C. Cr. P. art. 671(A)(5). See State v. Yokum, 155 La. 846, 99 So. 621 (1923). Further, Defendant does not attack the propriety of Judge Sexton's acceptance of the guilty plea in the prior conviction, only the State’s evidence in proving that Defendant was the defendant in Docket No. 111,677,

      . The Certificate of Release shows the inmate's date of birth as March 26, 1961, but the other documents from the Louisiana Department of Public Safety and Corrections show the date of birth as March 25, 1961.


author: EDWIN A. LOMBARD, Judge.

text:
    Novia Mathews GERRETS v. Charles J.D. GERRETS, III, Whitney National Bank and Francis C. Jummonville in his Capacity as Testamentary Executor.
    No. 2006-CA-0087.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 2007.
    Rehearing Denied Feb. 15, 2007.

      Warren A. Goldstein, Warren A. Gold-stein, A PLC, New Orleans, LA, for Plain-tiffAppellant.
    Richard A. Aguilar, Edward L. Fenasci, McGLINCHEY STAFFORD, PLLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| TPlaintiff, Novia Gerrets (“Ms.Gerrets”), appeals the judgment of the trial court sustaining the Exception of Improper Venue brought by Defendant, Jack Dienes (“Mr.Dienes”), and transferring the case to Iberia Parish. For the reasons stated herein, we affirm the trial court’s judgment.

Relevant Facts

In 1989, Ms. Gerrets filed a “Petition for Declaratory Judgment and Equitable Relief’ in the Civil District Court for the Parish of Orleans (“CDC”), Division “C,” against her stepson, Charles J.D. Gerrets (“Jeff Gerrets”), Whitney Bank, and Francis Jummonville, after a dispute arose over the validity and interpretation of a 1978 intervivos trust and will executed by her deceased husband, Charles J.D. Gerrets, Jr. In April 1989, after extensive negotiations, the parties to the declaratory judgment suit, resolved their differences and executed a settlement agreement (the “Settlement Agreement”) and a “Reformed Trust Instrument.” On May 23, 1989, after a hearing, the trial court entered a Consent Judgment in the declaratory judgment proceeding. In the Consent Judgment and the incorporated Settlement Agreement and Reformed Trust Instrument (“the Agreements”), Ms. Gerrets was named the income beneficiary of her deceased husband’s stock in the two companies held in trust (the “trust stock”) under the 12new Reformed Trust Instrument, while Jeff Gerrets was named the principal beneficiary and Initial Investment Advisor of the trust. As Initial Investment Advis- or, Jeff Gerrets was solely authorized to vote the trust stock and direct the sale of the trust stock. The Consent Judgment provided that the Civil District Court for the Parish of Orleans (“CDC”) would retain continuing jurisdiction and venue to implement, interpret, and enforce the Consent Judgment and the Agreements.

Jeff Gerrets died fifteen years later, on July 23, 2004, and his succession was opened on or about August 4, 2004 in Iberia Parish (“the Succession”). Jack Dienes (“Mr. Dienes”) was named the executor of the Succession. In December 2004, several months after Jeff Gerrets’ death, Ms. Gerrets filed a “Petition for Supplemental Relief and Damages” under the caption and docket number of the original 1989 declaratory judgment suit in Division “C” of CDC, adding as the defendant, Mr. Dienes, in his capacity as representative of the Succession, and seeking monetary damages. The day after filing the Petition in Division “C”, Ms. Gerrets filed a separate, and almost identical action, against Mr. Dienes, in a new case, bearing docket number 2004-18,1839, in Division “J” of CDC. This case was captioned, “Novia Gerrets v. Jack D. Dienes, in his Capacity as the Testamentary Executor of the Succession of Charles J.D. Gerrets, III.” Ms. Gerrets later moved to transfer the second action to the same division of CDC as the original action. The trial court granted the transfer. As a result, the operative petition that gives rise to this appeal is Ms. Gerrets’ “Second Amended Petition for Supplemental Relief and Damages” that was filed under the docket number and caption of the 1989 suit. In her Amended Petition, Ms. Gerrets specifically alleges that Jeff UGerrets, during his lifetime, breached the purported fiduciary duties outlined in the Reformed Trust Instrument, as well as duties arising as “a matter of law.”

On March 16, 2005, Mr. Dienes filed an Exception of Improper Venue arguing that at the time that Ms. Gerrets brought her claims against him as Testamentary Executor of Jeff Gerrets estate, the Succession had already been judicially opened in Iberia Parish and, therefore, according to Article 81(1) of the Louisiana Code of Civil Procedure, which mandates that personal claims by a creditor of the deceased be brought in the parish where the decedent’s succession is open and pending, venue was proper in only in Iberia Parish.

At the hearing, on the Exception, the district court judge opined that the venue provision of Louisiana Code Article 81(1) was mandatory, yet waivable, and that Louisiana has a strong public policy that all succession matters be adjudicated in the court where a succession is open and pending. The district court judge further stated that even though the forum selection clause contained in the Consent Judgment may have been valid and enforceable in regard to claims brought against Jeff Gerrets before his death, Article 81(1) primes the contractual forum selection clause and mandates that the instant claims be brought in Iberia Parish. Accordingly, the trial court granted Mr. Dienes’ Exception of Improper Venue and, pursuant to Louisiana Code of Civil Procedure Article 932, ordered that Ms. Gerrets’ claims against Mr. Dienes be transferred to the 16th Judicial District Court for the Parish of Iberia, where the succession of Jeff Gerrets was open and pending.

On appeal, Ms. Gerrets argues that the district court erred in granting Mr. Dienes’ Exception because CDC was the proper venue for her claims against the Succession. She bases her argument, in part, on the fact the four parties to the 141989 Consent Judgment and Agreements agreed that CDC would retain jurisdiction to implement, interpret, and enforce the Agreements and that this contractual forum selection clause is valid and legally binding upon Mr. Dienes. Mr. Dienes, on the other hand, argues that the trial court was correct in granting the exception because despite the contractual forum selection clause, Louisiana law clearly mandates that a succession must be sued in the court in which the succession is opened.

Law and Discussion

At the outset, we note that the trial court’s judgment sustaining the Mr. Dienes’ Exception of Improper Venue is an appealable interlocutory judgment. • At the time this appeal was filed, the Louisiana Code of Civil Procedure allowed an immediate appeal of interlocutory judgments such as this one if failure to do so may cause irreparable harm. Louisiana courts have held that failure to review a judgment sustaining an exception of improper venue could cause irreparable harm because the effect of such a judgment, trying the case in a parish of improper venue, cannot, as a practical matter, be corrected on appeal. See, e.g., Caldwell v. VAC Federal Credit Union, 545 So.2d 697 (La.App. 2 Cir.1989), citing, Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, note 1 (La.1981).

Venue is a question of law. Crawford v. Blue Cross and Blue Shield of La., 814 So.2d 574, 577 (La.App. 4 Cir.2001). Accordingly, we will review the trial court’s granting of Defendant’s Exception of Improper Venue de novo.

^Louisiana law is clear that, “a proceeding to open a succession shall be brought in the district court of the parish where the deceased was domiciled at the time of his death.” La.Code Civ. Proc. art. 2811 (West 2006). Moreover, the Louisiana Code of Civil Procedure dictates that when a succession has been opened judicially, a personal action by a creditor of the deceased must be brought in the court in which the succession is pending. La.Code Civ. Proc. art 81(1) (West 2006).

Specifically, Article 81(i) of the Code provides, in relevant part:

When a succession has been opened judicially, until rendition of the judgment of possession, the following actions shall be brought in the court in which the succession proceeding is pending:
(1) A personal action by a creditor of the deceased; but an action brought against the deceased prior to his death may be prosecuted against his succession representative in the court in which it was brought.

Id. (emphasis added).

Pursuant to Louisiana Code of Civil Procedure Article 2811, the Succession of Jeff Gerrets was opened, and was pending, at the time the instant claims were filed, in Iberia Parish. Mr. Dienes argues that because Ms. Gerrets claims against him, in his capacity of executor of the Succession, constitute a personal action by a creditor of the deceased, Article 81(1) primes the contractual forum selection clause and mandates that venue is proper only in Iberia Parish.

While not disputing that her claims are, in fact, personal actions by the creditor of a deceased, Ms. Gerrets makes several arguments to support her contention that venue is proper in Orleans Parish. First, she argues that the |fiConsent Judgment clearly provides that Orleans Parish retains continuing jurisdiction over the instant claims, which she characterizes as claims to enforce the 1989 Consent Judgment. Ms. Gerrets further argues that the trial court erred in failing to bind Mr. Dienes to the 1989 Consent Judgment and Agreements to which his testator was a party and with whom he was in privity. Third, Ms. Gerrets argues that Article 81(1) is permissive rather than mandatory, and is not clearly expressive of a strong state public policy. Finally, Ms. Gerrets argues that the trial court erred in failing to apply other Louisiana Code articles and caselaw that would permit the continuation of the suit in Orleans Parish.

We find Ms. Gerrets arguments to be unpersuasive. Ms. Gerrets’ contentions that the trial court erred in abrogating the Consent Judgment and in failing to bind Mr. Dienes to the Consent Judgment, are without merit. Mr. Dienes did not argue, and the trial court did not hold, that the Consent Judgment was not binding, in general, upon Mr. Dienes. What Mr. Dienes argued, and the court held, is that, under the circumstances, Article 81(1) primes the purported forum selection clause contained in the Consent Judgment and mandates that Ms. Gerrets’ claims against Mr. Dienes, in his capacity as executor of the Succession, be filed in Iberia Parish. Mr. Dienes correctly points out that Article 81(1) requires that suits contemplated by that article be brought against a decedent’s succession in the court in which it is pending, even if the decedent could have been sued elsewhere during his lifetime. For example in Fusilier v. Estate of Lionel J. Peschier, 412 So.2d 172 (La.App. 3 Cir.1982), the court of appeal held that although the plaintiffs 17claims of negligence against the decedent could have been brought in another parish during the life of the defendant, article 81(1) required that claims brought after the decedent’s death be brought in the parish where the decedent’s succession proceeding was pending. Id., p. 173-174.

We also disagree with Ms. Gerrets assertion that the venue directive contained in Article 81(1) is permissive rather than mandatory. To support her argument, Ms. Gerrets cites a number of cases that she alleges stand for the proposition that certain venue provisions of the Code of Civil Procedure, including Article 81(1) are “waivable” or “not jurisdictional” and argues that based on these cases, Article 81(1) does not provide mandatory venue in this case. However, we find that the venue directive in Article 81(1), which uses the word “shall” rather than “may,” is mandatory. See Fusilier, supra, where the court relied on the “mandatory provision” of Article 81(1) to affirm the granting of defendant’s exception to venue.

Ms. Gerrets further argues that it is impossible for a “waivable” venue article to also be “mandatory.” Mr. Dienes argued, and the trial court agreed, that the venue dictated by Article 81(1) is mandatory as long as it is not waived. The Louisiana Supreme Court has acknowledged that a venue provision can be both “mandatory” and “waivable.” However, pursuant to Article 44(A) of the Louisiana Code of Civil Procedure, such a waiver can only occur after the institution of the relevant action. La.Code Civ. Proc. 44(A) (West 2006). In this Lease, venue was not waived because Mr. Dienes filed an exception of improper venue, and thus, the directive contained in Article 81(1) is mandatory.

We also find no merit in Ms. Gerrets’ argument that Louisiana does not have a strong public policy that all succession matters be adjudicated in the same court. We agree with Mr. Dienes, as did the trial court, that Article 81(l)’s directive that all judicial actions against a succession representative be filed in the same court as the succession proceeding is consistent with the state’s public policy that succession proceedings are to be brought through the succession representative, in order to further the orderly administration of the succession and the preservation of the successions’ assets. See La.Code Civ. Proc. Art. 44 (West 2006).

The claims brought by Ms. Gerrets against Mr. Dienes are new claims arising out of obligations that she alleges arose, in part, “as a matter of law.” These claims constitute a personal action by an alleged creditor of the deceased, Jeff Gerrets. Accordingly, Ms. Gerrets’ claims must be brought in Iberia Parish, where the Succession proceeding is pending, pursuant to the clear directive of Louisiana Code of Civil Procedure Article 81(1). Thus, the judgment granting Mr. Dienes’ Exception of Improper Venue and transferring the case to Iberia Parish was correct. Accordingly, we affirm the district court’s judgment.

AFFIRMED.

      . Effective January 1, 2006, the legislature amended Article 2083, which now provides that an interlocutory judgment is appealable only when expressly provided for by law. La. Code Civ. Proc. art. 2083 (West 2006). However, because the Motion for Suspensive Appeal was filed in 2005, prior to the effective date of the amendment, the 2005 version of the article applies in this case. See, Callender v. Callender, (La.App. 5 Cir.2006); 921 So.2d 1255, 1256, n. 2

      . The Louisiana Code of Civil Procedure defines a personal action as one brought to enforce an obligation against the obligor, personally or independently of the property which he may own, claim, or possess, while a real action is defined as one brought to enforce rights in, to, or upon immovable property. LA.Code Civ. Proc. art. 422

      . See, Franques v. Evangeline Parish Police Jury, 625 So.2d 157 (La.1993) (holding that the venue requirement of La. R.S. 13:5104(B) is "mandatory but waivable.”)