author: HUGHES, J.

text:
    STATE of Louisiana v. Ronald O. CLESI.
    No. 2006 KA 1250.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.

      Walter P. Reed, District Attorney, Cov-ington, Kathryn Landry, Special Appeals Counsel, Baton Rouge, Counsel for Appel-lee State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, Counsel for Defendant/Appellant Ronald 0. Clesi.
    Ronald 0. Clesi, Angola, Pro Se.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

12The defendant, Ronald 0. Clesi, was charged by bill of information with possession of a schedule II controlled dangerous substance (cocaine), a violation of LSA-R.S. 40:967(C). The defendant pled not guilty. Following a jury trial, the defendant was found guilty as charged. The defendant was sentenced to five (5) years imprisonment at hard labor. The State filed a multiple offender bill of information. Following a multiple offender hearing, the trial court found the defendant to be a fourth felony offender. The defendant was sentenced to life imprisonment at hard labor pursuant to LSA-R.S. 15:529.1(A)(l)(c)(i), and the five-year sentence for the possession of cocaine conviction was vacated. The defendant objected to the sentence as being excessive. The defendant now appeals, asserting three counseled assignments of error and three pro se assignments of error. We affirm the conviction. However, we reverse the adjudication of the defendant as a fourth or subsequent felony habitual offender, vacate the enhanced sentence, and remand for further proceedings.

FACTS

On December 12, 2001, at about 11:00 p.m., based on an anonymous citizen’s complaint about narcotics at the defendant’s residence in Slidell, Detective Kevin Swan of the Slidell Police Department, along with three other police officers, including Sergeant Danny Fonte of the St. Tammany Parish Sheriffs Office, went to the Chá-male Condominiums where the defendant lived. Prior to going to defendant’s residence, the police officers determined the defendant had an outstanding warrant for his arrest. | ¡¡Detective Swan knocked on the defendant’s door, identified himself and, after a period of time, the defendant opened the door and invited the officers inside. Two females were also in the defendant’s residence. Detective Swan informed the defendant about the narcotics complaint and about the warrant for his arrest. Detective Swan found a kitchen knife in the small of the defendant’s back. The defendant explained that he had armed himself because he was worried about being robbed by drug dealers. The defendant was patted down for weapons and no other weapons were found.

Detective Swan produced a consent to search form. After going over the form with the defendant, the defendant signed the form. The defendant also gave verbal consent to search his residence. Following the consent of the defendant, all three occupants of the residence were advised of their Miranda rights. Sergeant Fonte found rocks of crack cocaine in the garbage disposal of the kitchen sink. Detective Swan found $3,944.00 in the defendant’s bedroom closet. The defendant told Detective Swan that he had purchased $1,000.00 worth of crack cocaine and that they had been ingesting it. He also told Detective Swan that when the police knocked on the door, July Driebe, one of the female occupants, ran to the kitchen and placed crack cocaine in the kitchen sink. The defendant was arrested and, before being placed into a police unit, was patted down thoroughly. A bag containing small rocks of crack cocaine was found in the defendant’s right front pocket.

| ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues that his sentence imposed is illegal. Specifically, the defendant contends that the trial court failed to specify that the sentence is not subject to probation or suspension of sentence, as required by LSA-R.S. 15:529.1(G).

The trial court should have imposed the sentence without benefit of probation or suspension of sentence. However, no corrective action is necessary, as LSA-R.S. 15:301.1(A) makes the statutory restrictions self-activating. State v. Joseph, 2004-1240, p. 14 (La.App. 5 Cir. 4/26/05), 901 So.2d 590, 599, writ denied, 2005-1700 (La.2/3/06), 922 So.2d 1176, citing State v. Esteen, 2001-879, pp. 29-30 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78-79, writ denied, 2002-1540 (La.12/13/02), 831 So.2d 983.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In these assignments of error, the defendant argues that the sentence imposed is excessive. Because we must reverse the habitual offender adjudication and vacate the sentence, we do not reach the merits of these assignments of error.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant argues the trial court failed to inform him of the delays for filing for postconviction relief.

The trial court did not advise the defendant of the time limits for filing for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. Upon resentencing, the trial court is directed to give the defendant notice of the prescriptive period for applying for postconviction relief.

|KPRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his second pro se assignment of error, the defendant argues that the evidence presented at the multiple offender hearing was insufficient to prove that the defendant was a fourth felony offender. Specifically, the defendant contends that the State failed to prove the identity of the defendant as the same person convicted of the previous convictions.

In order to obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. In attempting to do so, the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical driver’s license number, sex, race, and date of birth. State v. Payton, 2000-2899, p. 6 (La.3/15/02), 810 So.2d 1127, 1130-1131.

At the habitual offender hearing, the State submitted into evidence exhibits and testimony that established five prior felony convictions of the defendant. The five pri- or convictions, all by guilty pleas, are as follows: (1) 1975 conviction for possession of preludin, a violation of LSA-R.S. 40:967, Criminal District Court, Parish of Orleans, docket number 247635; (2) 1982 conviction for forgery (four counts), a violation of LSA-R.S. 14:72, Criminal District Court, Parish of Orleans, docket number; (3) 1982 conviction for theft of property valued over $500.00, a violation of LSA-R.S. 14:67, 34th Judicial District Court, Parish of St. Bernard, docket number 69543; (4) 1992 conviction of unlawful touching (of a child under fourteen years of age), a violation of section 97-5-23, Mississippi Code of 1972, Circuit Court, Hancock County, docket number 7584; and (5) 1998 conviction for attempted possession of cocaine, a violation of LSA-R.S. |fi40:967(C) and 40:979, 22nd Judicial District Court, Parish of St. Tammany, docket number 270430.

For each of the defendant’s convictions, the State submitted into evidence certified copies of the bills of information (indictment for the Mississippi conviction), guilty pleas, and arrest registers containing the defendant’s fingerprints. The bills of information for the forgeries, the theft, and the attempted possession of cocaine contain the defendant’s fingerprints. The bill of information for the possession of prelu-din, which does not contain the defendant’s fingerprints, was submitted into evidence with the corresponding arrest register, which contains the defendant’s fingerprints. The (Mississippi) bill of indictment for the unlawful touching is part of a “pen pack,” which contains the defendant’s fingerprints.

The State called Deputy Angela Powell with the St. Tammany Parish Crime Lab Division to testify about fingerprint comparisons. The trial court accepted her as an expert in the field of fingerprint analysis and comparison. Deputy Powell testified that she prepared a fingerprint card of the defendant’s fingerprints on that day (the day she testified). The fingerprint card was submitted into evidence. Deputy Powell compared the defendant’s fingerprints on the bills of information (or indictment, i.e., Mississippi pen pack) and/or arrest registers with the defendant’s prints on the fingerprint card. Deputy Powell concluded that the person whose prints Jjwere on the bills of information and/or arrest registers and the defendant’s fingerprint card were one and the same person.

We find that the State proved through expert testimony and the aforementioned exhibits submitted into evidence that the defendant was the same person convicted of the five predicate felony convictions. This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his third pro se assignment of error, the defendant argues that the trial court erred when it failed to quash the habitual offender bill. Specifically, the defendant contends that at several of his prior guilty pleas, he was not properly Boykinized. The defendant further contends that the State failed to prove that the “cleansing period” for one or more of his convictions had not expired. This argument has merit.

In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. If the defendant denies the allegations of the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when it was 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. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, i.e., either the transcript of the plea or the minute entry. State v. Henry, 2000-2250, p. 8 (La.App. 1 Cir. 5/11/01), 788 So.2d 535, 541, writ denied, 2001-2299 (La.6/21/02), 818 So.2d 791. While a colloquy between the judge and defendant is the preferred method of proof of a free and voluntary waiver, the colloquy is not indispensable when the record contains some other affirmative showing of proper waiver. State v. Carson, 527 So.2d 1018, 1020 (La.App. 1 Cir.1988). Everything that appears in the entire record concerning the predicate, as well as the trial judge’s opportunity to observe the defendant’s appearance, demeanor, and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. Boy-kin only requires that a defendant be informed of the three rights enumerated above. The jurisprudence has been unwilling to extend the scope of Boykin to include advising the defendant of any other rights he may have. State v. Henry, 2000-2250 at pp. 8-9, 788 So.2d at 541.

At the habitual offender hearing, following the State’s presentation of its evidence, the defendant objected to the first four prior guilty pleas in evidence as inadequate because he was not advised of his Boykin rights. The defendant met his burden in showing an infringement of his rights in the taking of the pleas. Instead of the State pointing out, however, that the | sguilty pleas were constitutional because perhaps the defendant had, indeed, been informed of each of his Boykin rights, the prosecutor stated:

Your Honor, at this point we’re simply on the issue of admissibility. These are certified copies. I don’t think the issue defense raises relates to the issue of admissibility, perhaps an appropriate argument as to whether, in fact, these are constitutionally valid convictions that could be used to enhance his sentence.

Notwithstanding the State’s analysis of the burden-shifting principles involved in a habitual offender hearing, the trial court indicated that it was going to review all of the submitted evidence and that it was going to take the matter under advisement. The trial court found the defendant to be a fourth felony habitual offender upon proof of five prior felony convictions.

For proof of the defendant’s 1975 conviction for possession of preludin (docket number 247635), the State submitted into evidence the minute entry of the guilty plea. The minute entry does not indicate that the defendant was informed of each of his Boykin rights. Because this minute entry does not reflect a valid guilty plea, it cannot be used to enhance the defendant’s sentence for the instant offense.

For proof of the defendant’s 1982 conviction for theft of property valued over $500.00 (docket number 69543), the State submitted into evidence the minute entry of the guilty plea. The minute entry does not indicate that the defendant was informed of each of his Boykin rights. Because this minute entry does not reflect a valid guilty plea, it cannot be used to enhance the defendant’s sentence for the instant offense.

|inFor proof of the defendant’s 1992 Mississippi conviction for unlawful touching (docket number 7584), the State submitted into evidence a pen pack, which contained the court’s order of the defendant’s sentence. Similar to a minute entry, the order summarizes the defendant’s guilty plea. The order does not indicate that the defendant was informed of each of his Boykin rights. Furthermore, the pen pack does not contain the transcript of the guilty plea. Because this order does not reflect a valid guilty plea, it cannot be used to enhance the defendant’s sentence for the instant offense.

Based on the record before us, we find that three of the defendant’s prior convictions cannot be used to enhance his sentence for the instant offense. Since two prior convictions, at most, could be used to adjudicate the defendant a third felony habitual offender, the trial court erred in adjudicating the defendant a fourth felony habitual offender. Accordingly, we must reverse the defendant’s fourth felony habitual offender 17 1 adjudication, vacate his sentence and remand this matter for further proceedings. The defendant is not protected by principles of double jeopardy from being tried again under the Habitual Offender Law. See State v. Young, 99-1310, p. 5 (La.App. 1 Cir. 4/17/00), 769 So.2d 12,14.

CONVICTION AFFIRMED. ADJUDICATION OF DEFENDANT AS FOURTH OR SUBSEQUENT FELONY HABITUAL OFFENDER REVERSED AND SENTENCE VACATED. REMANDED FOR FURTHER PROCEEDINGS.

      . Louisiana Revised Statute 15:529.l(A)(l)(c)(i) provides: "The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life....”

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The rocks were loose in the disposal, not in any type of bag or container.

      . The rocks found in the sink and on the defendant were sent to the Louisiana State Police Crime Lab and tested positive for cocaine.

      .Subsection (G) states: "Any sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sentence.”

      . A "pen pack” is that packet of information from the Department of Corrections (the penitentiary) about the defendanVprisoner, usually containing the time calculations for the defendant’s release date from prison, applicable bills of information and/or arrest sheets, a photograph of the defendant, relevant information about the defendant (e.g. address, physical description, social security number, date of birth), and the defendant’s fingerprints.

      .In his brief, the defendant suggests that Deputy Powell should not have been qualified as an expert. However, following the trial court's ruling that Deputy Powell qualified as an expert, the defendant did not lodge a contemporaneous objection to the ruling. The defendant is, therefore, precluded from raising the issue on appeal. See LSA-C.Cr.P. art. 841(A).

      . See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . See State v. Everett, 2000-2998, pp. 6-7 (La.5/14/02), 816 So.2d 1272, 1276, for a discussion of the term “cleansing period.” See also its use in State v. Washington, 2005-1330, p. 2 (La.4/28/06), 927 So.2d 271, 272.

      . At this point in the hearing, the trial court asked the defendant to address his motion to quash, which was filed prior to the hearing.

      . The relevant portion of the minute entry states: "The Court explained to the Defendant his Constitutional Rights and questioned the Defendant relative to his plea of guilty. The Court found that there was a basis in fact for the plea of guilty, and further found that the Defendant’s plea of guilty was voluntarily and intelligently entered.”

      .The relevant portion of the minute entry states: "Defendant Ronald Clesi withdrew former plea and pleaded guilty. Defendant was duly sworn, re-arraigned, and boykinized [sic]. Court accepts guilty plea and defendant waived all delays in sentencing.”

      . The relevant portion of the minute entry states:
      The Defendant, RONALD O'DELL CLESI, having filed a petition to enter a plea [of] Guilty in which RONALD O'DELL CLESI, was advised of his legal and constitutional rights in the premises and being further advised of the consequences of such a plea, did then and there enter his plea of Guilty to said charge. The Court thereupon found that the Defendant knowingly and voluntarily waived his constitutional rights to trial; that the plea of Guilty was freely and voluntarily made; that the Defendant is Guilty based upon the facts offered to the Court and the Court adjudicates the Defendant to be Guilty of the charges of UNLAWFUL TOUCHING in cause number 7584.

      . The State submitted into evidence valid guilty pleas for the defendant’s other two convictions. For proof of the defendant's 1982 conviction for forgery (docket number 287130), the State submitted the minute entry of the guilty plea, wherein the court informed the defendant of his Boykin rights, i.e., each right appears in the minute entry. Along with this minute entry, the State submitted a waiver of constitutional rights, dated and signed by the defendant, his attorney, and the judge. The waiver explains each of the Boykin rights being waived pursuant to his guilty plea. For proof of the defendant's 1998 conviction for attempted possession of cocaine (docket number 270430), the State submitted the minute entry of the guilty plea, wherein the court informed the defendant of his Boykin rights, i.e., each right appears in the minute entry. Along with this minute entry, the State submitted the transcript of the Boykin hearing, wherein the defendant is explained his rights.

      .We indicate “at most” because it is not clear whether the cleansing period for the 1982 conviction for forgery (docket number 287130) had expired or not. Not counting the 1982 conviction for theft of property valued over $500.00 (docket number 69543) because of the invalid guilty plea, it is not clear from the record before us that in the ten-year period between the 1982 forgery conviction and the 1992 unlawful touching conviction, the cleansing period did not expire. The State failed to establish a date of discharge for the 1982 forgery conviction.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Sheila VANDERBROOK Wife of/and Terry B. Trahan, Dolores DeLaune Wife of/and John B. Middleton, E. Ray Wilkes, Jr., Anne Lester Wife of/and Robert R. Raposo, Sherrie Landry Wife of/and Raymond C. Burkart, Jr., and Stacy Miller Wife of/and Lance L. Engolia, Sr. v. Christopher R. JEAN; Lee Road Development Company; Highland Lakes Development Corporation; Johnny F. Smith Truck and Dragline Service, Inc.; Highlands Homeowners Association of St. Tammany, Inc.; Palmers, Inc.; Alternative Design/Build Group, L.L.C.; Northlake Truck Center, L.L.C.; Muller & Muller, Attorneys at Law; Johnny F. Smith Testamentary Trust; Richard L. Muller; Silvia G. Muller; Janice Seal Smith Stumpf Individually and as Trustee of the Johnny F. Smith Testamentary Trust; Barney L. Core; Gary Salathe; Martin Murphy; David T. Glass; Wade Glass; Adrian Spell; Jodi McIntyre Wife of/and Gregory “Scott” Bridges; Willis A. Palmer.
    No. 2006 CA 1975.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.

      Raymond C. Burkart, Jr., Covington, Counsel for Plaintiffs/Appellants Sheila Vanderbrook, et al.
    Julian J. Rodrigue, Jr., Covington, Counsel for Defendant/Appellee Northlake Truck Center, L.L.C.
    William J. Jones, Jr., Leland R. Gallas-py, Covington, Counsel for Defendant/Ap-pellee Lee Road Development.
    Roger C. Linde, Metairie, Counsel for Defendants/Appellees Alternative Design/Build Group, L.L.C., Gary Salathe, & Martin Murphy.
    Michael F. Weiner, Mark W. Frilot, Mandeville, Counsel for Defendants/Appel-lees Christopher R. Jean, Highland Lakes Development Corp., Johnny F. Smith Truck & Dragline Service, Inc., The Highlands Homeowners Association of St. Tammany, Inc., Johnny F. Smith Testamentary Trust, Janice Seal Smith Stumpf, and Barney L. Core.
    James Lamz, Deanna J. Hamilton, William J. Faustermann, Jr., Slidell, Counsel for Defendants/Appellees Palmers, Inc. and Willis Palmer.
    Alan A. Zaunbrecker, Covington, Counsel for Defendants/Appellees David Glass, Wade Glass, and Glass Contracting of St. Tammany, Inc.
    Michael P. Mentz, Alayne R. Corcoran, Metairie, Counsel for Defendants/Appel-lees Muller & Muller, L.L.C., Richard Muller, and Silvia Muller.
    Jesse L. Wimberly, III, Mandeville, Counsel for Defendant/Appellee Adrian Spell.
    Jack E. Truitt, Nancy N. Butcher, Madi-sonville, Counsel for Defendants/Appellees Jodi McIntyre, wife of/and Gregory “Scott” Bridges.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

| sIn this appeal, plaintiffs seek review of the trial court’s dismissal of their claims against defendants, Christopher R. Jean, Highland Lakes Development Corporation, Johnny F. Smith Truck & Dragline Service, Inc., The Highlands Homeowners Association of St. Tammany, Inc., Johnny F. Smith Testamentary Trust, Janice Seal Smith Stumpf, and Barney L. Core (collectively “Jean defendants”). For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, owners of immovable property and improvements in Highland Lakes Subdivision in St. Tammany Parish, filed a lengthy petition on April 8, 2004, against a number of defendants seeking a declaratory judgment and damages as a result of the development, ownership, and construction of the lakes, earthen dams, spillways, and roadways of Highland Lakes Subdivision. In their petition, plaintiffs made numerous allegations, some of which included fraud, negligence, breach of duties, intentional acts, and respondeat superior. The Jean defendants answered plaintiffs’ petition on May 28, 2004, and asserted several affirmative defenses and peremptory exceptions. On June 3, 2004, the Muller defendants, Lee Road Development, Palm-ers Inc., Willis Palmer, Jodi McIntyre Bridges, Gregory Bridges, Alternative Design/Build Group, L.L.C., Gary Salathe, and Martin Murphy filed dilatory exceptions raising the objections of vagueness and nonconformity of the petition with La. C.C.P. art. 891. Following a hearing on these exceptions, the trial court signed a judgment on September 10, 2004, sustaining these exceptions and ordering plaintiffs to amend their petition within fifteen days of the signing of the judgment.

|4On September 20, 2004, plaintiffs filed their first supplemental and amending petition. On November 3, 2004, the Muller defendants re-urged their exception raising the objections of vagueness and nonconformity of the petition and filed a motion to dismiss plaintiffs’ claims, without prejudice, for their failure to cure the deficiencies of the original petition. Additionally, on November 18, 2004, the Jean defendants filed an exception raising the objections of vagueness and nonconformity as to the amended petition. Following a hearing on the exceptions and the motion to dismiss, the trial court signed a judgment on March 31, 2005, sustaining the Jean and Muller defendants’ exceptions as to vagueness and allowing plaintiffs fifteen days from the signing of the judgment to amend their petition.

On June 24, 2005, the Jean defendants filed a motion to dismiss plaintiffs’ claims for their failure to timely amend their petition. Subsequently, plaintiffs filed a second supplemental and amending petition on July 1, 2005. Following a hearing on the Jean defendants’ motion to dismiss, the trial court signed a judgment on June 27, 2006, granting the motion and dismissing without prejudice plaintiffs’ claims against them. Plaintiffs now appeal from this judgment, asserting that the trial court erred in sustaining the Jean defendants’ exception raising the objections of vagueness and nonconformity of the petition and in dismissing their claims for failing to timely file their second supplemental and amending petition.

1 .DISCUSSION

Louisiana Code of Civil Procedure article 891 requires that a petition “contain a short, clear, and concise statement of all causes of action arising out of, and of the material fact's of, the transaction or occurrence that is the subject matter of the litigation.” There are no technical forms of pleadings; all allegations of fact shall be set forth in numbered paragraphs, and shall be simple, concise, and direct. La. C.C.P. art. 854. In pleading fraud, the circumstances constituting fraud must be alleged with particularity; malice, intent, knowledge, and other conditions of mind of a person may be alleged generally. La. C.C.P. art. 856.

The purpose of the objection of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action, thus preventing its future relitigation after a judgment is obtained in the present suit. Snoddy v. City of Marksville, 97-327, p. 5 (La.App. 3rd Cir.10/8/97), 702 So.2d 890, 893. However, the objection of vagueness does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary to fulfill the aims outlined above. Snoddy, 97-327 at p. 5, 702 So.2d at 893. If the plaintiffs petition fairly informs the defendant of the nature of the cause of action and includes sufficient substantial particulars to enable the defendant to prepare its defense, then the exception of vagueness will be denied. Whipple v. Whipple, 408 So.2d 390, 392 (La.App. 1st Cir.1981), writ not considered, 412 So.2d 1089 (La.1982). Because the exception of vagueness is a dilatory exception, it must be pleaded prior to or in the answer, or it is waived. La. C.C.P. arts. 926(A) and 928. Shatoska v. Whiddon, 468 So.2d 1314, 1318 (La.App. 1st Cir.), writ denied, 472 So.2d 35 (La.1985).

In the instant case, the Jean defendants answered the plaintiffs’ original petition and asserted therein several affirmative defenses and peremptory exceptions. However, the Jean defendants failed to assert the dilatory exception Rraising the objections of vagueness and nonconformity of the petition. As such, that exception was waived as to the original petition. See La. C.C.P. art. 928. Furthermore, though the Jean defendants filed an exception raising the objection of vagueness as to plaintiffs’ first supplemental and amending petition, that petition did not assert any new claims against the Jean defendants, but merely sought to clarify the claims previously asserted in the original petition. As such, to the extent that the Jean defendants- answered the original petition and presumably were fairly informed of the claims against them so as to enable them to prepare a defense, it is difficult to fathom that they were no longer fairly informed after the filing of the more detailed supplemental and amending petition. Therefore, the trial court erred in sustaining the Jean defendants’ exception raising the objection of vagueness and in dismissing the plaintiffs’ claims against the Jean defendants.

CONCLUSION

For the foregoing reasons, we reverse the judgments of the trial court sustaining the Jean defendants’ exception raising the objection of vagueness and dismissing plaintiffs’ claims against them without prejudice. Plaintiffs’ claims as to the Jean defendants are reinstated, and this matter is remanded to the trial court for further proceedings. All costs of this appeal are to be borne by the appellees, Christopher R. Jean, Highland Lakes Development Corporation, Johnny F. Smith Truck & Dragline Service, Inc., The Highlands Homeowners Association of St. Tammany, Inc., Johnny F. Smith Testamentary Trust, Janice Seal Smith Stumpf, and Barney L. Core.

REVERSED AND REMANDED.

PARRO, J., concurs.

McCLENDON, J., concurs in the result reached by the majority.

      . The instant appeal only concerns the claims against the Jean defendants. The claims against the Muller defendants, consisting of Muller & Muller, L.L.C., Richard Mulller, and Silvia Muller, are the subject of a separate appeal decided this date. Vanderbrook v. Jean, 2005-2540 (La.App. 1st Cir. 2/14/07), 2007 WL 466755 (unpublished opinion).

      . At this hearing, the trial court also considered a dilatory exception raising the objection of improper cumulation of actions filed by defendants, David Glass, Wade Glass, Glass Contracting of St. Tammany, Inc., Alternative Design/Build Group, L.L.C., Gary Salathe, and Martin Murphy (collectively "Glass defendants”).

      . The plaintiffs previously appealed this judgment, which also sustained the Glass defendants’ dilatory exception raising the objection of improper cumulation of actions and dismissed plaintiffs’ claims against them. However, this court dismissed the appeal as it related to the trial court’s sustaining of the Jean and Muller defendants’ exceptions of vagueness and nonconformity of the petition, as that judgment was not a final appealable judgment on those issues. See Vanderbrook v. Jean, 2005-1122 (La.App. 1st Cir.9/20/06), 937 So.2d 937 (unpublished opinion).

      . When an appealable judgment is rendered in a case, the correctness of any interlocutory judgment can also be considered on the appeal. People of the Living God v. Chantilly, 251 La. 943, 207 So.2d 752, 753 (1968).


text:
    Francois SINGLETON v. Tim WILKINSON, Warden, Winn Correctional Center; Richard Stalder, Secretary, Department of Public Safety and Corrections.
    No. 2006 CA 0637.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.
    Francois Singleton, Winnfíeld, Counsel for Plaintiff/Appellant Francois Singleton.
    William L. Kline, Baton Rouge, Counsel for Defendant/Appellee Department of Public Safety and Corrections.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| ¿This is an appeal by plaintiff, Francois Singleton, from a November 2, 2005 judgment of the 19th Judicial District Court. The judgment affirmed the decision of the Department of Public Safety and Corrections for the State of Louisiana to uphold a forfeiture of 180 good time days, a penalty imposed on Mr. Singleton by Corrections Corporation of America personnel, which is the private administrator of the Winn Correctional Center where Mr. Singleton is an inmate. We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On or about August 12, 2004 Francois Singleton, an inmate at Winn Correctional Center, was involved in an incident that led to a disciplinary hearing on that day, at which Mr. Singleton pled guilty to a violation of Department of Public Safety and Corrections (DPSC) Disciplinary Rule # 3, Defiance. The incident report is dated October 9, 2004 and seems to have been signed by a Disciplinary Board Chairman, identified by Mr. Singleton as “Carl Coleman,” and a Disciplinary Board Member, “E. Child.” The report indicates that Mr. Singleton’s penalty entailed an upgrade to maximum custody status and forfeiture of 180 good time days. Mr. Singleton appealed unsuccessfully within the DPSC and then to the 19th Judicial District Court, where a judgment handed down on November 2, 2005 affirmed for the DPSC.

Mr. Singleton appeals this judgment, arguing that when the prison disciplinary board, comprised of employees of the private entity Corrections Corporation of America (CCA) rather than DPSC personnel, imposed his forfeiture of good time, it exceeded its authority under La. R.S. 39:1800.5, which bars delegation of the State’s power to set inmate sentences to outside contractors.

|aLAW AND ANALYSIS

Standard of Review

Inmate lawsuits challenging DPSC rulings are governed by La. R.S. 15:1177(A), which provides for de novo judicial review of agency actions and reads in pertinent part:

(8) The court may affirm the decision of the agency or remand the case for further proceedings, or order that additional evidence be taken.
(9) The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law.
(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

At issue here is whether the 19th Judicial District Court erred in affirming the DPSC decision to uphold the CCA disciplinary board’s imposition of forfeiture of Mr. Singleton’s good time. If so, the court may have allowed a violation of La. R.S. 39:1800.5, known as the Louisiana Corrections Private Management Act. The statute provides in pertinent part:

No contract for correctional services shall authorize, allow, or imply a delegation of authority or responsibility to a prison contractor for any of the following:
_k* * *
(5) Granting, denying, or revoking sentence credits.

The contract between CCA and the State supplements the statute in Section 5.21, entitled “Good Time”:

Contractor shall provide specific information to the State for the purposes of award or forfeiture of good time. The final decision on awarding or forfeiture of good time rests with the State, although Contractor shall be responsible for providing information as to performance and behavior of inmates.

As DPSC has not provided a brief in this manner, we refer to the DPSC Commissioner’s Report in the record, which claims that CCA’s practice of imposing good time forfeitures does not violate the statute because (1) the appeal process allows the inmate to have a State official render the “final decision” in a matter and (2) the State is indeed engaged at the facility level through the presence at Winn Correctional Center of “a full time state employee, Rodney Slay.. .to recalculate good time, when necessary.” The DPSC’s “First Step Response” to Mr. Singleton’s appeal fleshes out Mr. Slay’s role in this process: “He is at Winn Correctional Center twice a week, reviewing and initialing all disciplinary reports.... ”

Concerning the first point, the Commissioner’s Report states that its interpretation of the “final decision” remaining in the hands of the State through the administrative appeals process has been upheld “in every case” in the many times it has been raised in the 19th Judicial District Court. But the Commissioner’s Report fails to cite a single case that provides judicial authority for this position. We note that the DPSC’s “First Step Response” to Mr. Singleton’s appeal quotes a 19th Judicial District Court case titled Garcia v. Hubert, but this case has not been reported. Our research has not uncovered a single case in Louisiana jurisprudence that supports the DPSC’s interpretation of the CCA contract and La. R.S. 39:1800.5. As noted above, |sDPSC has not responded to Mr. Singleton’s appeal with a brief of its own, thus, this court has been given no authority or basis upon which to accept the DPSC’s interpretation, even if the policy of having the CCA staff “impose” sentences subject to approval by DPSC personnel makes sense on a practical level.

The DPSC’s second point goes to the application of this policy. While it is understandable that for practical purposes, Mr. Slay or a similarly situated and experienced DPSC employee may not be present at each and every CCA inmate disciplinary hearing, the system in place should ensure that DPSC oversight of such proceedings be consistent and clearly delineated by the presence of a DPSC official’s initials on each disciplinary report that is reviewed. In this regard, the language quoted above from the DPSC’s First Step Response bears repeating: “He [Mr. Slay] is at Winn Correctional Center twice a week, reviewing and initialing all disciplinary reports.” Additionally, the DPSC’s “Second Step Response” to Mr. Singleton states: “Mr. Slay, a full time DOC employee, reviews all disciplinary actions by the CCA staff.”

We do not necessarily disagree with this policy, but we note that the copy of Mr. Singleton’s disciplinary report in the record is of poor quality and it is not at all clear to this court that Mr. Slay or any other DPSC official reviewed the CCA disciplinary officials’ decision to forfeit Mr. Singleton’s good time days. It is thus not clear from the record that the necessary DPSC oversight and approval required to validate the CCA officials’ decision imposing forfeiture of Mr. Singleton’s good time days pursuant to La. R.S. 39:1800.5 has occurred.

Based on the record, we cannot conclude that the DPSC’s affirmation of the CCA officials’ imposition of Mr. Singleton’s loss of good time days | fiwas in compliance with the statutory provisions of La. R.S. 39:1800.5, pursuant to La. R.S. 15:1177(A)(9)(a). We reverse the judgment of November 2, 2005 and remand to the 19th Judicial District Court with instructions to either (1) order additional evidence that may clarify whether Mr. Slay approved Mr. Singleton’s sentence or (2) to remand the matter to DPSC for further proceedings pursuant to La. R.S. 15:1177(A)(8).

CONCLUSION

For the above and foregoing reasons, the November 2, 2005 judgment in this matter is reversed. We remand to the 19th Judicial District Court for further proceedings commensurate with this decision. Costs in the amount of $404.81 will be assessed against the Department of Public Safety and Corrections.

REVERSED AND REMANDED.


author: McClendon, j.

text:
    STATE of Louisiana in the Interest of C.J.
    No. 2006 CJ 1441.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.
    Writ Denied April 5, 2007.
    Scott Perrilloux, District Attorney, Livingston, Counsel for Appellee State of Louisiana.
    Theresa A. Beckler, Covington, Counsel for Appellee State of Louisiana Department of Social Services.
    Kerry Carpenter, Public Defenders Office, Livingston, Counsel for Appellee Minor Child, C.J.
    Cassandra Butler, Independence, Counsel for Appellants C.W., Grandmother, and M.B., Great-Grandfather.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

Un this matter, C.W. and M.B., the maternal grandmother and great-grandfather of the minor child, C.J., appeal the juvenile court’s judgment denying their motion to vacate the judgment adjudicating C.J. a child in need of care. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

The proceedings in this matter were initiated on November 29, 2004, when an instanter order issued, placing C.J. in the custody of the State of Louisiana, through the Department of Social Services, Office of Community Services (OCS or State), based on allegations of neglect by the child’s mother, R.J. C.J. was placed in a certified foster home. Following a continued custody hearing on December 2, 2004, the juvenile court found reasonable grounds for continued custody with OCS, including but not limited to:

[R.J.] was arrested for possession of schedule II drugs and paraphernalia and admitted to using cocaine. [R.J.] stated that her mother, [C.W.], was an alcoholic and could not provide care for [C.J.]. [R.J.] did not provide the agency with any other relatives that could provide care for the child.

Thereafter, on December 30, 2004, the State, through the district attorney, filed its petition requesting that C.J. be adjudicated a child in need of care. The petition alleged that on November 16, 2004, OCS received, investigated, and validated a report of neglect of the child by his mother, 13R.J. The petition referred to R.J.’s drug abuse and her arrest on November 24, 2004, for possession of a Schedule II substance and paraphernalia. The petition further alleged that R.J. reported to OSC that her mother, C.W., is an alcoholic. The petition also asserted that C.W. admitted to drinking every day and being on medication for depression. With regard to C.J.’s father, the petition asserted that C.J.’s father admitted having little contact with the child.

On February 2, 2005, at the adjudication hearing, R.J. stipulated that C.J. was in need of care, without admitting to the allegations of the petition. The juvenile court, after questioning the mother, who was represented by counsel, and following the introduction of the investigation report by the State, accepted the stipulation of R.J., additionally found a factual basis for the adjudication, and rendered judgment adjudicating C.J. a child in need of 14care. The court further found the current placement of C.J. with foster parents to be the most appropriate and in the best interest of the child. Judgment was signed on April 14, 2005. Also on April 14, 2005, following the disposition hearing, a judgment of disposition was rendered and signed decreeing that custody of C.J. remain with OCS. Neither the adjudication or disposition judgment was appealed.

Thereafter, on October 25, 2005, C.W. and M.B. filed a Motion and Order to Vacate Judgment of Adjudication and also a Motion and Order for Consideration as Custodial (sic) of Minor Child. The motions were set for hearing on November 23, 2005, at which time C.W. was present with her attorney. According to the minutes of the court, counsel for C.W. “made representations to the court,” after which the court advised C.W. of a list of things she was to do, including a random drug screen of hair and urinalysis. The matter was continued to February 23, 2006, at 1:00 p.m. However, the minutes of the court reflect that “court convened at the usual hour of nine thirty a.m.” on February 23, 2006. No one was present on behalf of C.W. and M.B., and the court orally denied their motions without any hearing. The denial of the motion for consideration was not appealed by C.W. and M.B, but on April 4, 2006, C.W. and M.B. moved to devolutively appeal the denial of the motion to vacate the adjudication due to lack of jurisdiction. The appeal was granted by the juvenile court on April 6, 2006.

This court, on September 8, 2006, remanded the appeal for the limited purpose of ordering the juvenile court to sign a judgment regarding the February 23, 2006 ruling. On September 28, 2006, judgment was signed | ^denying the request for consideration as custodian and denying the motion to vacate the adjudication. On November 9, 2006, following a show cause order, this court maintained the appeal stating: “Appellants filed their motion and order for appeal prior to signing of the judgment reflecting the court’s rulings of February 23, 2006. However, the defect of prematurity was cured once the court signed a judgment on September 28, 2006.”

In their sole assignment of error, C.W. and M.B. allege that the juvenile court erred in denying the motion to vacate the adjudication where the facts do not show or support a finding that the child was either abused or neglected.

DISCUSSION

Louisiana Children’s Code article 667 provides:

A. On motion of the child or the parent, an adjudication shall be vacated and a new adjudication hearing ordered if, after contradictory hearing, the court finds that:
(1) The adjudication was obtained by fraud or mistake sufficient to justify vacating the adjudication.
(2) The court making the adjudication lacked jurisdiction.
(3) New evidence not previously discoverable by due diligence requires vacating the adjudication in the interest of justice. A motion based upon this ground must be brought within one year of the adjudication.
B. In the interest of justice, the court may vacate an adjudication prior to disposition.

In their motion to vacate the adjudication, C.W. and M.B. alleged that the petition in this matter listed numerous problems with C.J’s mother, as well as with the grandmother, C.W., but that, even if all the allegations were true, it failed to show that C.J. was a child in need of care. Thus, C.W. and M.B. argue that the juvenile court lacked jurisdiction over these child in need of care proceedings.

| (¡However, before addressing the arguments of C.W. and M.B., we must first determine whether this court has jurisdiction to review the matter.

Article 330 of the Children’s Code provides:

A. An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
B. In delinquency proceedings pursuant to Title VIII, child in need of care proceedings pursuant to Title VI, and families in need of services proceedings pursuant to Title VII, an appeal may be taken only after a judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition.

Pursuant to this article, an appeal may be taken only after a judgment of disposition. A judgment denying motions is not a judgment of disposition, and this court lacks jurisdiction to consider the matter appealed. Accordingly, this appeal must be dismissed.

CONCLUSION

For the foregoing reasons, the appeal of the judgment of the juvenile court, denying the motion to vacate the judgment of adjudication, is dismissed. Costs are assessed against C.W. and M.B.

APPEAL DISMISSED.

      . The 21st Judicial District Court has original juvenile jurisdiction for the parishes within its district. See LSA-Ch.C. art. 302. Article 604 of the Louisiana Children's Code also provides the court with exclusive original jurisdiction over any child alleged to be in need of care and the parents of such child. Accordingly, we will refer to the district court as the juvenile court throughout these proceedings.

      . Louisiana Children's Code article 631 A provides:
      A child in need of care proceeding shall be commenced by petition filed by the district attorney. Any other person authorized by the court may file a petition if there are reasonable grounds to believe that the child is a child in need of care.

      . Louisiana Children’s Code article 606 sets forth the grounds on which a child can be found a child in need of care, including that the child is a victim of neglect. LSA-Ch.C. art. 606A(2).

      . On September 20, 2005, C.J.’s father, J.J., voluntarily surrendered custody of C.J. to the Louisiana Department of Social Services for placement and adoption.

      . Article 647 of the Children’s Code permits such a stipulation, and provides as follows:
      With the approval of the petitioner and the department, if a child is in the custody of the department, a parent whose child is the subject of pending proceedings may, with or without admitting the allegations of the petition, stipulate that the child is in need of care according to Article 606, provided that:
      (1) A prehearing conference has been convened in accordance with Article 646.1.
      (2) The parent personally appears before the court.
      (3) The court fully informs the parent of his rights as required by Article 625.
      (4) The court fully informs the parent of the consequences of such a stipulation, including the parent's responsibility to comply with the case plan and correct the conditions requiring the child to be in care.
      (5) The parent knowingly and voluntarily consents to the judgment.

      .We note that throughout these child in need of care proceedings, C.J. was represented by counsel from the Public Defender’s Office.

      . The record contains an order for the motion to vacate, but not for the motion for consider-alion.

      . The source article of LSA-Ch.C. art. 330 was Article 97 of the Code of Juvenile Procedure, which provided, as follows:
      In cases in which a child is adjudicated to be a delinquent, in need of supervision, or in need of care, an appeal may be taken only from a judgment of disposition, and shall be to the appropriate court of appeal. The appeal shall include all errors assigned concerning the adjudication and disposition.
      While we note that in enacting Article 330, the legislature chose to use the phrase "after a judgment of disposition” rather than "from a judgment of disposition,” we find no intent to change the application of the codal provision.


author: GUIDRY, J. McCLENDON, J.,

text:
    Craig J. MATHERNE v. Remedia Matherne BROUSSARD, Remedia Trahan Matherne, and Pamela E. Matherne.
    No. 2006 CA 0838.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.

      Ronald J. Fiorenza, John D. Ryland, Alexandria, Timothy C. Ellender, Jr., Hou-ma, Counsel for Plaintiff-Appellant Craig J. Matherne.
    John Paul Massicot, Frank A. Silvestri, M. Damien Savoie, New Orleans, Counsel for Defendants-Appellees Remedia Math-erne Broussard and Remedia Trahan Matherne.
    William A. Stark, Houma, Counsel for Defendant Pamela Matherne.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

12Plaintiff appeals a trial court judgment sustaining two defendants’ peremptory exception raising the objection of prescription. For the following reasons, we amend the judgment and affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Craig Matherne, was born on October 4, 1962, to Rose Mary Rink Math-erne and her husband, Augustin Matherne. Augustin had a brother named Carrol Matherne, who died in November of 1984. Craig contends that, in September 2003, at the age of 40, he was informed for the first time that Carrol was possibly his biological father. Consequently, Craig underwent DNA testing, the result of which, he claims, confirmed that Carrol Matherne, and not Augustin Matherne, was his biological father.

On September 8, 2004, Craig filed a “Petition for Recognition of Right of Inheritance” and named as defendants, Remedia Trahan Matherne, Remedia Matherne Broussard, and Pamela Math-erne, the widow and two daughters of Car-rol Matherne, respectively. In his petition, he claimed that one or more of the defendants intentionally concealed from him the fact that Carrol was his biological father. Accordingly, he sought “recognition of his right of inheritance” and his entitlement to “an undivided interest of the succession property of Carrol J. Math-erne.” Thereafter, Craig supplemented his petition to assert a claim for damages due to the defendants’ “tortuous [sic] conduct” in intentionally concealing the facts regarding his paternity.

Remedia Trahan Matherne and Remedia Matherne Broussard filed various exceptions, including the peremptory exception raising the objection of prescription. Specifically, they urged that Craig had failed to timely assert an action for filiation within the time mandated by former La. C.C. art. | ⅞209 (hereinafter “La. C.C. art. 209”). Craig countered that the time limitation set forth in La. C.C. art. 209 was prescriptive and, therefore, subject to the doctrine of contra non valentem. Pursuant to this doctrine, Craig claimed that prescription had been suspended because he had no knowledge of his potential cause of action until September 2003.

Following a hearing on January 5, 2005, the trial court took the matter under advisement. On November 9, 2005, the trial court issued reasons for judgment wherein it implicitly determined that the period to assert a claim for filiation under La. C.C. art. 209 was peremptive and not prescriptive and, thus, not subject to the doctrine of contra non valentem. It further concluded that Craig’s claims did not fall within the “tort exception” of La. C.C. art. 209. Accordingly, the trial court signed a judgment sustaining the peremptory exception raising the objection of prescription and dismissing Craig’s claims with prejudice. From this judgment, Craig now appeals.

LAW AND DISCUSSION

At issue herein is La. C.C. art. 209, which provided, in pertinent part, as follows:

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors |4and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

Craig asserts that the trial court erred in concluding that the time limitation provided in La. C.C. art. 209 was peremptive and, hence, not susceptible to suspension under the doctrine of contra non valentem. The distinction between prescription and peremption was recently reiterated by our supreme court in State Bd. of Ethics v. Ourso, 2002-1978, p. 4 (La.4/9/03), 842 So.2d 346, 349, as follows:

Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation; peremption, however, extinguishes or destroys the right. Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremp-tive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. (Internal citations omitted.)

In support of his argument that the time limitation provided for in La. C.C. art. 209 is prescriptive, Craig relies on jurisprudence referencing the article’s “prescriptive period” and considering various parties’ arguments that such a period had been interrupted. However, we note that the distinction between peremption and prescription was not at issue in any of those cases; thus, we do not view them as controlling authority. See Pounds v. Schorl, 369 So.2d 1090, 1091 (La.App. 1 Cir.), aff'd., 377 So.2d 1195 (La.1979). Conversely, while this court has characterized the time period set forth in La. C.C. art. 209 as peremptive rather than prescriptive, we have |Bnever specifically ruled on the point. See In re Succession of Young, 98-1073, p. 4 n. 3 (La.App. 1 Cir. 5/14/99), 732 So.2d 833, 835 n. 3, writ denied, 99-1764 (La.10/1/99), 748 So.2d 446; see also Talbert v. Scott, 451 So.2d 1304 n. 1 (La. App. 1 Cir.1984). Indeed, we know of no state case definitively holding the pertinent time limitation to be prescriptive or peremptive. Accordingly, we now address this issue res nova.

Because the Louisiana Civil Code provides no guidance on how to determine whether a particular time limitation is prescriptive or peremptive, our supreme court has resorted to an exploration of the legislative intent and public policy underlying a particular time limitation, for it is primarily whether the legislature intended a particular time period to be prescriptive or peremptive that is the deciding factor in such a case. Therefore, we are instructed to look to the language of the codal provision, the purpose behind the provision, and the public policy mitigating for or against suspension, interruption, or renunciation of that time limit in making our' determination. See Ourso, 2002-1978 at pp. 4-5, 842 So.2d at 349.

We begin by examining the plain language of La. C.C. art. 209, which stated, in pertinent part, as follows:

C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages' under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulat-ed with the action to recover damages. (Emphasis added.)

The article clearly stated that the time limitation “shall run against all persons.” Obviously, this would include those individuals, such as Craig, who are unaware they possess a potential cause of action. Thus, a cursory breading of La. C.C. art. 209 would tend to indicate that the legislature intended the subject time limitation to be peremptive. While the article did not expressly use the terms “peremptive” or “peremption,” such an omission is not dis-positive. The supreme court has held that it is unnecessary for the legislature to state in a codal provision that it is peremp-tive in order for this court to hold that it is so. See Ourso, 2002-1978 at p. 5, 842 So.2d at 349.

Significantly, Article 209 required that actions “be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.” That the article itself did not allow for a delay in bringing an action by permitting an individual to file upon the latter of the two occurrences further supports a finding that the time limitation .is peremptive and, thus, not subject to interruption or suspension.

' Finally, the language of the provision displayed a characteristic that historically has been found relevant in determining whether a time limitation is prescriptive or peremptive, that is, the text in Article 209 both created a right of action and stipulated the time within which the right may be executed. In Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 722 (La.1986), the supreme court noted that peremption statutes generally create the right of action and stipulate the delay during which the right may be exercised.

Having thus examined the language of the codal provision, we now consider the legislative purpose sought to be achieved by imposing the time limitation. The express purpose of 1981 La. Acts, No. 720 and 1984 La. Acts, No. 810, which amended and reenacted La. C.C. art. 209, was “to provide for proof of filiation by children or on their behalf; to provide a procedure and time limitations for proceedings to establish filiation; to provide for the method and standard of proof in such actions; and to provide |7that the failure to institute timely such a proceeding shall bar the claims of the persons covered by the Act[s].” Reese v. State Dept. of Public Safety and Corrections, 2003-1615, pp. 4-5 (La.2/20/04), 866 So.2d 244, 247-248.

In Gibbs v. Delatte, 2005-0821, p. 12 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, 1138, writ denied, 2006-0198 (La.4/24/06), 926 So.2d 548, we recognized that one of the legislature’s main purposes for imposing the time limitation in La. C.C. art. 209(C) was to bar future succession claims if a filiation action were not timely instituted. Clearly, the state has a well-recognized interest in providing for the just and orderly disposition of property at death and in ensuring the dependability of titles to property passing through successions. See Succession of Grice, 462 So.2d 131, 134 (La.1985). To allow for an extension of the period of time in which an action for filiation can be instituted would run counter to this strong state interest. The facts herein aptly illustrate this. Carrol Math-erne died in 1984; following a succession proceeding, his legatees were placed in possession of his estate. However, twenty years after Carrol’s death, Craig filed the present suit claiming an interest in succession property. The potential ramifications of allowing such claims are both obvious and significant. Hence, public policy would mitigate in favor of finding the time limitation for instituting a filiation action to be peremptive.

However, in imposing the time limitation in Article 209, the legislature did not intend to deprive an illegitimate child of the right to bring a wrongful death claim, nor could it constitutionally do so. Gibbs, 2005-0821 at p. 12, 927 So.2d at 1138. Accordingly, it established an exception for filiation actions instituted for the sole purpose of establishing the right to recover damages under Article 2315. The purpose of this exception was to allow the child who is over the age of nineteen at the time of the alleged [ parent's death to bring a filiation action, but only for the purpose of establishing the right to recover survival or wrongful death damages and not for any other purpose, such as recovering succession rights. Reese, 2003-1615 at p. 5, 866 So.2d at 248.

In Grice, 462 So.2d at 136, the supreme court upheld the constitutionality of the time limitations as those limitations related to successions, reasoning that they were substantially related to the state’s interest in providing for the just and orderly disposition of a decedent’s property where paternal inheritance is concerned. The court further noted that the sole exception to the time limitation in Article 209 illustrates that the state’s interest in providing for the just and orderly disposition of property at death is greater than its interest in the distribution of an award for damages under Article 2315. Id.

Therefore, considering the explicit language of Article 209, the legislature’s purpose in enacting the article, and the state’s strong interest in the orderly disposition of property upon death, we hold that the time limitation in La. C.C. art. 209 was peremp-tive. Accordingly, we find no merit in Craig’s argument that the trial court erred in failing to find that the period was prescriptive and subject to the doctrine of contra non valentem.

Alternatively, Craig argues that his claim for intentional concealment is one sounding in tort; therefore, it is exempt from the peremptive period pursuant to the tort exception contained in La. C.C. art. 209. We respectfully disagree. The supreme court has narrowly construed the tort exception in La. C.C. art. 209, finding that the purpose of the exception is to allow a child who is over the age of nineteen at the time of the alleged |flparent’s death to bring a filiation action, but only for the purpose of establishing the right to recover survival or wrongful death damages and not for any other purpose, such as recovering succession rights. Reese, 2003-1615 at p. 5, 866 So.2d at 248. Craig does not assert a survival or wrongful death claim; rather, he advances a claim against the former executors of Car-rol Matherne’s succession for the alleged wrongful concealment of his paternity. Nevertheless, he argues that this fraud claim falls within the ambit of the tort exception in La. C.C. art. 209. The third circuit previously rejected a similar argument. In In re Succession of Winters, 2002-0961 (La.App. 3 Cir. 2/5/03), 837 So.2d 1287, a 35-year-old plaintiff filed a claim in a succession proceeding asserting that the succession representative had perpetrated fraud in failing to recognize the plaintiff as the decedent’s child. In response, the succession representative filed a peremptory exception raising the objection of prescription. The trial court, construing the claim as an action to establish filiation, sustained the exception and dismissed the plaintiffs claim. The appellate court affirmed, stating: “Although [the plaintiff] characterized his claim as one in tort, the trial court viewed it as simply a suit to establish filiation. His claim was essentially to establish himself as an heir, a claim which may have merit but has not been filed timely.” Id. at 1288.

We likewise conclude that Craig’s action is one to establish filiation in an effort to recover lost succession rights. Notwithstanding his creative claim for mental pain and suffering, Craig essentially seeks a portion of the former succession property, or, alternatively, to receive the value of that property in “tort” damages. Indeed, in his brief to this court, he argues that “persons who inherited through the Succession are liable” to him for damages “equivalent to his loss of succession rights.” Accordingly, we find |10that Craig’s claims were not exempt from the peremptive period by virtue of the tort exception in La. C.C. art. 209.

In his third assignment of error, Craig argues that the trial court nonetheless erred in sustaining the peremptory exception raising the objection of prescription because fraud is a well-established exception to the doctrine of peremption. In support of his contention, he cites La. R.S. 9:5604-5606. However, in those statutes, the legislature expressly exempted from the pertinent peremptive periods cases of fraud as defined in La. C.C. art. 1953. Louisiana Civil Code article 209 contained no such express exception for fraud. Nor does there exist any general fraud exception to peremption. The very nature of peremption precludes such an exception. Nothing may interfere with the running of a peremptive period; it cannot be interrupted, suspended, or renounced.

On appeal, Craig makes a general allegation that to the extent the peremp-tive period set forth in La. C.C. art. 209 did not contain an exception for fraud, it was unconstitutional. However, it is well settled that a constitutional challenge must be specially pled in the trial court with the grounds for the claim particularized. Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089, p. 8 (La.6/29/05), 914 So.2d 533, 541. Because this particular argument was not properly raised in the trial court and was not considered by the trial court, we will not address it now. Moreover, we find it unnecessary to remand the matter to allow Craig to amend his petition to assert a constitutional challenge since he has proffered no factual or legal allegations to support such a challenge. Accordingly, we find all of Craig’s alleged assignments of error to be without merit.

Nevertheless, in examining the judgment, ex proprio motu, we note that it refers to the defendants as “Remedia M. Broussard, et ais.” The hijudgment further sustains the “defendants” peremptory exception raising the objection of prescription and renders judgment “in favor of defendants and against plaintiff, dismissing plaintiffs action with prejudice.” In the instant case, suit was filed against three defendants. However, the record only contains exceptions filed on behalf of two of those defendants: Remedia Trahan Matherne and Remedia Matherne Brous-sard. According to La. C.C.P. art. 1918, a final judgment must contain appropriate language. Revision comment (a) for La. C.C.P. art. 1918 provides as follows:

In Louisiana the form and wording of judgments is not sacramental. Nonetheless, Louisiana courts require that a judgment be precise, definite and certain. However, it has been held that a judgment is not invalid on account of the insertions of an incorrect middle initial or the omission thereof, or on account of failure to name specifically all defendants against whom it is rendered. (Internal citations omitted.)

Thus, a final judgment has been found valid when it was rendered against “defendant, Paul E. Manning, et ais ” or when it decreed that “all costs of this proceeding to be paid by the defendants.” J.P. Hudson & Sons v. Uncle Sam Planting & Mfg. Co., 136 La. 1071, 68 So. 129 (1915); Glen Falls Indemnity Co. v. Manning, 168 So. 787 (Orleans 1936).

Accordingly, we cannot say that the judgment herein is invalid. However, pursuant to La. C.C.P. art. 2164, we amend the judgment to sustain the peremptory exception raising the objection of prescription filed by defendants Remedia Trahan Matherne and Remedia Matherne Brous-sard, and we dismiss Craig’s claims as to those two defendants.

CONCLUSION

For all of the foregoing reasons, the judgment of the trial court is amended to state that the peremptory exception raising the objection of prescription filed by defendants Remedia Trahan Matherne and Remedia Matherne Broussard is sustained, and Craig Matherne’s claims against | ^Remedia Trahan Matherne and Remedia Matherne Broussard are dismissed. In all other respects, the judgment is affirmed. All costs of this appeal are assessed to Craig Matherne.

AMENDED; AFFIRMED AS AMENDED.

MCCLENDON, J., agrees in part and concurs in part and assigns reasons.

McCLENDON, J.,

agrees in part, concurs in part.

hi agree with the findings on the issue of peremption, but otherwise concur with the majority opinion.

      . The Louisiana legislature enacted 2005 La. Acts, No. 192, which amended and reenacted La. C.C. arts. 178 through 211. This act became effective June 29, 2005. However, it is undisputed that former La. C.C. art. 209 is controlling in this matter. Therefore, for the sake of clarity, we will refer to the pertinent Civil Code articles as they existed prior to the 2005 revision.

      . This court has often held that, as a general rule, the peremptory exception raising the . objection of no cause of action is the correct procedural device for raising the issue of per-emption. However, a defendant may raise the issue of peremption via the peremptory exception raising the objection of prescription. Saia v. Asher, 2001-1038, p. 4 n. 5 (La.App. 1 Cir. 7/10/02), 825 So.2d 1257, 1259 n. 5.

      . Our conclusion is buttressed by the enactment of the new La. C.C. art. 197 by 2005 La. Acts, No. 192. The new La. C.C. art. 197, which contains the essence of former La. C.C. art. 209, expressly states that, for succession purposes, a filiation action is subject to a peremptive period of one year, commencing to run from the day of the death of the alleged father.


text:
    George WAGUESPACK v. RICHARD WAGUESPACK, INC. and Everest Indemnity Insurance Company.
    No. 2006 CA 0711.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.

      Aub Ward, Baton Rouge, Counsel for Plaintiff/Appellant George Waguespaek.
    David C. Kimmel, Baton Rouge, Counsel for Defendant/Appellee Richard Wagues-pack, Inc.
    David I. Bordelon, Matthew Ungarino, Metairie, Counsel for Defendant/Appellee Everest Indemnity Insurance Co.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

|2In this negligence action, plaintiff, George Waguespaek, appeals the trial court’s granting of defendant’s, Everest Indemnity Insurance Company (Everest), motion for summary judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 18, 2003, plaintiff was using an all-terrain vehicle (ATV) to hunt on property located in Darrow, Louisiana. The property and ATV were owned by Richard Waguespack, Inc., which had given plaintiff permission to use the ATV and to hunt on its property. After hunting, plaintiff drove the ATV back to his truck in order to return the ATV to Richard Waguespack, Inc. While attempting to load the ATV onto his truck, by way of an inclined ramp, the ATV became difficult to control, veered to the left, and plaintiff was thrown from the ATV.

On May 18, 2005, plaintiff filed a petition for damages, naming Richard Wagues-pack, Inc. and its insurer, Everest, as defendants, and asserting negligence claims based on Richard Waguespack Inc.’s failure to warn and custody of a defective thing. See La. C.C. arts. 2315 and 2317.1. Thereafter, Everest filed a motion for summary judgment, asserting plaintiffs claim against it had prescribed, and that the insurance policy did not provide coverage based on a limitation of coverage clause. Following a hearing on Everest’s motion, the trial court signed a judgment, granting the motion and dismissing plaintiffs suit against Everest with prejudice. Plaintiff now appeals from this judgment.

STANDARD OF REVIEW

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. The |smotion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Boland v. West Feliciana Parish Police Jury, 03-1297, p. 4 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 812, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231. Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486. Additionally, the issue of prescription may be raised by a motion for summary judgment. Parish National Bank v. Wilks, 04-1439, p. 6 (La.App. 1st Cir.8/3/05), 923 So.2d 8, 12.

DISCUSSION

The trial court, in its reasons for judgment, indicated that it was granting Everest’s motion for summary judgment on the basis of prescription, finding plaintiff did not present any evidence that Everest knew of the accident prior to the filing of the suit or that Everest made any express, tacit, or implied acknowledgement of liability so as to interrupt prescription. Plaintiff, however, asserts on appeal that the trial court erred in failing to consider: (1) Richard Waguespack, Inc. and Everest are solidary obligors; (2) Richard Wagues-pack, Inc. interrupted prescription when it acknowledged its delictual obligation; and (3) the interruption of prescription applied equally to Everest.

When the face of the petition reveals that the plaintiffs claim is prescribed, the plaintiff has the burden of demonstrating that prescription was suspended or interrupted. In re Medical Review Panel for Claim of Moses, 00-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177. Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to | ¿prescribe. La. C.C. art. 3464; Schilling v. Cooper, 04-2460, p. 5 (La.App. 1st Cir.12/22/05), 928 So.2d 19, 22. Further, La. C.C. arts. 1799 and 3503 provide that interruption of prescription against one solidary obligor interrupts prescription against all solidary obligors. However, when the plaintiffs basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. Younger v. Marshall, 618 So.2d 866, 869 (La.1993).

Louisiana Revised Statute 22:655, the Direct Action Statute, expressly states that a liability insurer and its insured are solidarily liable to the tort victim. See La. R.S. 22:655(B)(1). However, the solidarity between the insured and the insurer toward the victim is only within the policy limits and coverages of the insurance contract. Sumrall v. Bickham, 03-1252, pp. 9-10 (La.App. 1st Cir.9/8/04), 887 So.2d 73, 79, writ denied, 04-2506 (La.1/7/05), 891 So.2d 696; see also Anderson v. Ichinose, 98-2157, p. 9 (La.9/8/99), 760 So.2d 302, 307.

Richard Waguespack, Inc.’s insurance policy with Everest, which is a commercial general liability policy, specifically limits coverage to “[c]onstruction debris landfill operations” and provides that “[t]his insurance does not apply to ‘bodily injury’, ‘property damage’ ... or other injury or damage that does not arise out of your operations described in the above Schedule and performed by you or on your behalf.” Furthermore, reading the insurance contract as a whole, and following the legal axioms governing interpretation of insurance contracts as | .^outlined by the Louisiana Supreme Court in Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, judgment amended, 95-0809 (La.4/18/96), 671 So.2d 915, we find the policy clearly limits coverage to construction debris landfill operations. In plaintiffs petition and the affidavits submitted in conjunction with the motion for summary judgment, plaintiff acknowledged that the accident at issue occurred while using the ATV to hunt on Richard Waguespack, Inc.’s property. This purely recreational activity cannot logically be construed so as to come within the construction debris landfill operation coverage limitation. Therefore, because this activity does not come within the coverage of the insurance contract, plaintiff has failed to show that Everest was a solidary obligor as to his claim. Accordingly, plaintiffs claim against Everest is prescribed, and the trial court was correct to grant summary judgment in favor of Everest.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, granting summary judgment in favor of Everest. All costs of this appeal are to be assessed against plaintiff, George Waguespack.

AFFIRMED.

      . La. R.S. 22:655(B)(1) provides, in part, ‘‘[t]he injured person ... shall have a right of direct action against the insurer within the terms and limits of the policy ... and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido.’'

      . The policy also contains pollution liability and professional liability coverage, but those portions of the policy are not at issue in the instant case.

      . In Ledbetter, 95-0809 at pp. 3-4, 665 So.2d at 1169, the supreme court set forth the following legal axioms concerning the interpretation of insurance policies:
      An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. The parties’ intent, as reflected by the words of the policy, determine the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written.
      Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. However, the rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. (Citations omitted.)

      . Based on our determination above, we pre-termit discussion of whether an acknowledgement of liability by an insured can interrupt prescription as to the insurer.


author: McClendon, j. GUIDRY, J.,

text:
    Melanie MATHIES and Lionel Mathies v. Rayette BLANCHARD and Allstate Insurance Company.
    No. 2006 CA 0559.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 21, 2007.

      Sean Fagan, Chad Dudley, Baton Rouge, Counsel for Plaintiffs/Appellees Melanie Mathies and Lionel Mathies.
    Robert L. Manard, Paul E. Mayeaux, New Orleans, Counsel for Defendant/Plaintiff-in-Cross-Claim/Appellant Rayette Blanchard.
    Robert J. Burns, Jr., Baton Rouge, Counsel for DefendantyDefendant-in-Cross-Claim/Appellee Allstate Insurance Company.
    Donald R. Smith, Baton Rouge, Counsel for Defendants/Appellees Rayette Blanchard and Allstate Insurance Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

12This appeal challenges the action of a trial court in sustaining a dilatory exception raising the objection of prematurity. We affirm.

BACKGROUND

On August 24, 2004, vehicles driven by Melanie Mathies, Rayette Blanchard and Melissa Broussard were involved in a collision on Interstate 12 in Denham Springs, Louisiana. On March 22, 2005, after settling her claims with her uninsured/under-insured carrier, Mrs. Mathies filed this lawsuit against Ms. Blanchard and her liability insurer, Allstate Insurance Company. Mr. Mathies joined the lawsuit, asserting a loss of consortium claim. The Mathieses indicated their intent to pursue an excess judgment against Ms. Blanchard.

Ms. Blanchard filed a cross-claim against Allstate, alleging that Allstate’s failure to settle the Mathieses’ claims within the limits of the liability policy was unreasonable, arbitrary and capricious. She further averred that Allstate’s “bad faith claims adjustment” exposed her to an excess judgment in the underlying lawsuit. Ms. Blanchard sought to recover general and special damages, statutory penalties and attorney fees pursuant to LSAR.S. 22:1220, costs and interest.

In response, Allstate filed a dilatory exception raising the objection of prematurity. Therein, Allstate asserted that Ms. Blanchard’s cause of action for bad faith failure to settle the claim within the policy limits had not yet arisen because no excess judgment had been rendered. Allstate posited that the cross-claim demanded reimbursement for damages Ms. Blanchard had not yet suffered and was by definition premature. The trial court agreed and sustained Allstate’s objection of prematurity, dismissing Ms. Blanchard’s cross-claim without prejudice. The judge concluded that Ms. Blanchard Rwould not be prejudiced by having her bad faith claim deferred until the underlying lawsuit was decided; however, there could be substantial prejudice to Allstate in litigating the main demand and the bad faith demand simultaneously. From this judgment, Ms. Blanchard appealed.

PREMATURITY

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. The objection is designed to retard the progress of the action rather than to defeat it. LSA-C.C.P. art. 923. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. LSA-C.C.P. art. 423. The objection of prematurity raises the issue of whether the judicial cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Eusea v. Blanchard, 04-1855, pp. 3-4 (La.App. 1 Cir. 2/11/05), 899 So.2d 41, 43. The viability of the exception is determined by the facts existing at the time the lawsuit is filed. Id.

A liability insurer is the representative of the interests of its insured, and when handling a claim against its insured, the insurer must carefully consider not only its own self-interest, but also its insured’s interest, to protect the insured from exposure to excess liability. Smith v. Audubon Insurance Company, 95-2057, pp. 7-8 (La.9/5/96), 679 So.2d 372, 376. In light of this principle, this court has held that an insurer who fails to deal in good faith with a claim against its insured may be held liable to its insured for all or part of any excess judgment, as well as the insured’s attorney fees and consequential damages. Lafauci v. Jenkins, 01-2960, pp. 13-14 (La.App. 1 Cir. 1/15/03), 844 So.2d 19, 29, writ denied, 03-0498 (La.4/25/03), 842 So.2d 403; Maryland Casualty Company v. Dixie Insurance Company, 622 So.2d 698, 702-03 (La.App. 1 Cir.), writ denied, 629 So.2d 1138 (La.1993); Domangue v. Henry, 394 So.2d 638, 640-41 (La.App. 1 Cir.1980), writ denied, 399 So.2d 602 (La.1981). See also Shelby McKenzie & H. Alston Johnson, III, 15 Louisiana Civil Law Treatise-Insurance Law and Practice § § 218-220 (1986) (discussing the evolution of the cause of action against an insurer for bad faith failure to settle a claim against its insured that exposes its insured to an excess judgment).

While Louisiana courts have recognized a cause of action against an insurer for bad faith failure to settle a claim against its insured within the policy limits, no Louisiana court has been called upon to determine when the right to enforce the cause of action arises. However, numerous courts in other jurisdictions have squarely addressed the issue, and have repeatedly held that an excess judgment is a prerequisite to an action for bad faith failure to settle a claim against an insured within the policy limits. See Romstadt v. Allstate Insurance Company, 59 F.3d 608, 611 (6 Cir.1995); Kelly v. Williams, 411 So.2d 902, 904 (Fla.App. 5 Dist.1982); Crabb v. National Indemnity Company, 87 S.D. 222, 231, 205 N.W.2d 633, 638 (S.D.1973); Amoco Oil Company v. Reliance Insurance Company, 1998 WL 187336 (W.D.Mo.4/14/98); Ragas v. MGA Insurance Company, 1997 WL 79357 (E.D.La.2/21/97).

We agree with the consistent line of reasoning from the authorities cited above and hold that a right to enforce the cause of action for damages, based on an insurer’s bad faith failure to settle a claim against its insured within the policy limits, does not arise until the entry of a judgment against the insured in excess of the policy limits. It is the entry of the judgment on the principal demand in excess of the policy limits that harms the insured Land gives rise to the right to enforce the cause of action for damages. In the absence of an excess judgment, Ms. Blanchard cannot prove the full extent of the actual damages to her, and thus, her claim for damages against Allstate is premature. Therefore, the trial court correctly sustained Allstate’s dilatory exception raising the objection of prematurity.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Ray-ette Blanchard.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

hi respectfully dissent from the majority opinion. As a preliminary matter, the opinion does not address the insured’s alleged claim for penalties pursuant to La. R.S. 22:1220. In Sultana Corporation v. Jewelers Mutual Insurance Company, 03-0360 (La.12/3/03), 860 So.2d 1112, our supreme court held that actual damages are not necessary in order to pursue a claim for penalties under La. R.S. 22:1220. Accordingly, to the extent that the insured asserts a valid claim under La. R.S. 22:1220, which is disputable, it cannot be considered premature based upon the fact that no excess judgment has been rendered.

Admittedly, this case presents problematic issues; however, in addressing those issues, I believe we are compelled to apply the law as it exists in this state. The majority relies on jurisprudence from foreign jurisdictions, while concomitantly disregarding, and possibly contravening, positive Louisiana law.

For example, based on the same transaction or occurrence, an insured may assert claims seeking to recover the amount of any excess judgment rendered against him as well as penalties pursuant to La. R.S. 22:1220. See e.g. McGee v. Omni Insurance Company, 02-1012 (La.App. 3d Cir.3/5/03), 840 So.2d 1248, writs denied, 03-1376, 03-1382 (La.12/12/03), 860 so.2d 1149; see also Lafauci v. Jenkins, 01-2960, p. 15 (La.App. 1st Cir.1/15/03), 844 So.2d 19, 29-30, writ denied, 03-0498 (La.4/25/03), 842 So.2d 403. Pursuant to Sultana, regardless of whether the insured sustains any actual damages, such as an excess judgment, due to the insurer’s breach of its duties, the insurer may still recover penalties under La. R.S. 22:1220. Sultana, 03-0360 at 7-8, 860 So.2d at 1118. Thus, an excess judgment need not be rendered before an insured may assert a cross claim based on this statute against his insurer in the tort proceeding. Under La. C.C.P. art. 425, the insured would then be required to assert his claim regarding any excess judgment or lose such claim forever.

Even if the facts underlying the insured’s claim seeking indemnification for an excess judgment would not entitle him to penalties pursuant to La. R.S. 22:1220, thereby rendering it a mandatory cross claim, the insured is still entitled, under Louisiana law, to assert a claim against his insurer prior to the entry of an excess judgment. Louisiana Code of Civil Procedure article 1071 expressly provides:

A party by petition may assert as a cross-claim a demand against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action. The cross-claim may include a demand that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the demand asserted in the action against the cross-claimant. (Emphasis added.)

Similarly, La. C.C.P. art. 1111 provides, in pertinent part:

The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand. (Emphasis added.)

Thus, under the foregoing provisions, an insured is entitled to assert a cross claim against his insurer prior to the rendition of an excess judgment.

Finally, when an insured is exposed for an amount in excess of his policy limits, most insurance companies send an “excess letter” to the insured. Such ^excess letter generally informs the insured that he has been sued for an amount in excess of his policy limits and that he will be personally responsible for such excess amount. The insured is advised of the name of counsel retained by the insurance company to defend him, and he is usually informed of his right to associate at his own expense separate counsel to advise him with respect to his excess exposure. Shelby McKenzie & H. Alston Johnson, III, Insurance Law and Practice § 219, in 15 Louisiana Civil Law Treastise 637, 640 (3d ed.2006). However, the majority holds that while the insured may employ counsel to protect him from the tort plaintiff regarding any excess liability on the plaintiffs main demand, the insured may not assert a cross claim against his insurer regarding liability of any excess judgment due to the insurer’s bad faith settlement practices. Should the tort plaintiff obtain an excess judgment against the insured, the plaintiff may begin executing on the judgment, while the insured must then file a new, and potentially time-consuming, suit in order to recoup the amount of the excess judgment that was obtained due to the insurer’s bad faith settlement practices. Such a result is contrary to the very purpose of liability insurance. Accordingly, I believe the insured’s cross claim in this matter is not premature.

      . A judgment sustaining a dilatory exception raising the objection of prematurity is a final judgment. LSA-C.C.P. arts. 933(A) and 1915(A)(1); South Louisiana Bank v. White, 577 So.2d 349, 350 (La.App. 1 Cir.1991).

      . Further, to recognize the right to enforce the cause of action arising prior to the rendering of a judgment against the insured would lead to the untenable situation of an insured seeking to prove that the plaintiff is not enti-tied to a judgment in excess of the policy, thereby avoiding excess exposure, while at the same time arguing that the plaintiff’s claim is clearly in excess of the policy limits, such that the insurer is liable for a bad faith claim.