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

text:
    JOHN CHERBONNIER CONSTRUCTION v. BIG EASY ROOFING, INC. and Barbara Silvers.
    No. 05-CA-803.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Rodney J. Madere, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Brian T. Carr, Attorney at Law, Metair-ie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

1 ¡¿Defendant/appellant, Barbara Silvers, appeals a trial court judgment that awarded $6,213.36 in satisfaction of a workman’s lien filed by plaintiff. For the reasons that follow, the judgment of the trial court is reversed.

FACTS AND PROCEDURAL HISTORY

Defendant/appellant, Barbara Silvers, through her husband, David Bergeron, entered into a contract with Big Easy Roofing, Inc. (“Big Easy”) on August 30, 2002 to perform a range of repairs to a home that Silvers owned in Jefferson Parish. Silvers remitted $4,000 to Big Easy as an advance deposit on a job that was quoted at $11,000. Claiming that all of the work had been performed, on 1 ?,October 7, 2002, Big Easy sent an invoice to Silvers for the balance of $6,250 owed under their contract.

On October 15, 2002, John Cherbonnier (“Cherbonnier”), owner of John Cherbon-nier Construction, Inc., sent a certified letter to Silvers, asserting that he was a filing an Affidavit to Preserve Lien for work and supplies performed and supplied in conjunction with construction on her property, which was completed on or about September 21, .2002. The amount of the lien was for $6,213.36, plus attorney’s fees.

On November 19, 2002, counsel for Silvers and Bergeron sent a letter to Big Easy demanding that Big Easy return her $4,000 deposit because “not all of the repairs were made” and “[t]he roof installed on the new front porch leaks and is defective.” The letter further acknowledged the material man/labor lien filed by Cher-bonnier as Big Easy’s subcontractor.

On August 29, 2003, Cherbonnier filed suit in First Parish Court for the Parish of Jefferson against Big Easy Roofing and Barbara Silvers. Silvers .answered the suit and further filed a cross claim against Big Easy, alleging that the work at issue was never completed and was defective. Because of its failure to appear and answer, the court awarded Silvers $4,000 with legal interest against Big Easy on January 11, 2004.

A bench trial on the matter was held on June 23, 2005. On June 30, 2005, the trial court found in favor of Cherbonnier, awarding him the sum of $6,213.36, plus interest and costs. Silvers timely filed the present appeal.

\ ¿LAW AND ARGUMENT

In her second assignment of error, Silvers asserts that the trial court erred in holding that Cherbonnier presented sufficient corroborating evidence to prove the existence of an oral contract exceeding five hundred dollars in value.

Inasmuch as this appeal turns on factual determinations by the trial judge, we must review the record using the manifest error-clearly wrong standard of appellate review. That standard was recently reviewed by our supreme court in Cenac v. Public Access Water Rights Ass’n,

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

LSA-C.C. art. 1846 provides:

When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.

In the present case, Cherbonnier testified at trial. Cherbonnier stated that, in September of 2002, he contracted with by Bob Pegues, President of Big Easy Roofing Company, to perform work at 4004 Rivage Court in Metairie. Cherbonnier testified that he had, in fact, performed the work for a cost of $6,213.36. Cherbonnier entered into evidence receipts, his company’s payroll | ¡¡register, and his lien affidavit, all of which he claims support his lien on Silvers’ property. Cherbonnier also entered pictures into evidence of the property that he took himself, which he contends prove that he performed the work.

In regard to oral contracts in excess of five hundred dollars, this Court noted in Madere v. Adda Carpet and Flooring:

When a writing is not required by law, a contract with a value in excess of $500.00, and not reduced to writing, must be proved by at least one witness and other corroborating circumstances. Although a party may offer his own testimony in support of such claim, the other circumstances which corroborate the claim must come from a source other than the plaintiff. Only general corroboration is required, it is not necessary that a plaintiff offer independent proof of every detail. The question of whether evidence presented is sufficient to corroborate a claim under article 1846 is a finding of fact to be made by the trier of fact and will not be overturned unless it is clearly wrong.

(Emphasis added; footnotes with citations omitted.)

In Madere, we considered a similar issue of what evidence would constitute “sufficient corroboration” in circumstances involving an oral contract. In that case, the plaintiff sued a subcontractor on the basis that it had improperly installed flooring in his home. In our review, this court summarized the evidence presented as follows:

In the present case, the only evidence supplied to the court was the testimony of Mr. Madere, photographs of the floor, and estimates of repair. Although there was some evidence of a defective floor, there was no corroborating evidence of the existence of a contractual relationship between Madere and Adda in the record....

Based on the foregoing, we reversed the trial court’s default judgment against the defendant.

Un the case of Deubler Elec. Inc. v. Knockers of Louisiana, Inc., the plaintiffs performed substantial electrical work to a building that was leased by the defendant. When the defendant failed to pay for the work, plaintiff filed a lien against the property and ultimately prevailed at trial. As in the present case, there was no written contract between the plaintiff and either the lessee or the property owner. At trial, the plaintiff introduced copies of the lien filed, a written quotation for services, and correspondence to the defendant. Further, the owner and president of the plaintiff company testified as to the scope of the work performed. On appeal, however, we reversed the trial court based, in part, on what we deemed to be an absence of corroborating evidence regarding an oral contract. Specifically, we noted that there was not sufficient testimony to prove that an oral contract was created between the plaintiff and the defendant.

Similarly, in the present case, all of the extrinsic evidence presented to establish an oral contract came from Cherbonnier himself. While Cherbonnier testified that he had an agreement with Big Easy Roofing, Inc. to serve as a subcontractor, the record reflects that there was no independent corroboration of his claim. As per our holdings in Madere and Deubler, supra, we find that the trial court clearly erred in qualifying Cherbonnier’s exhibits as “corroborating evidence” sufficient to establish an obligation on the part of Silvers.

Because of this finding, we will preter-mit discussion of appellant’s remaining assignment of error.

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed. Costs are assessed to the appellee.

REVERSED.

CANNELLA, J., dissents with reasons.

CANNELLA, J.,

dissenting with reasons.

hi respectfully disagree with the majority opinion. The Plaintiff was a subcontractor who provided materials and labor in making improvements on the Defendant Silvers’ immovable property. The Plaintiff testified regarding the agreement he had with the contractor and produced exhibits evidencing receipts for materials, his payroll register, a job report, his bill to the contractor and pictures of the finished work. The Plaintiff also filed in evidence his lien affidavit and demand letter. The trial judge found that based on the foregoing, the Plaintiff had adequately proven his entitlement to payment by the owner of the property for the materials and labor used to make improvements to her immovable property.

The majority reverses the trial court judgment on a finding that the oral contract between the subcontractor and contractor was not adequately proven by evidence corroborating the Plaintiffs testimony regarding the contract. In my view this is not proper grounds for reversal.

First, I disagree that the evidence presented does not adequately corroborate the Plaintiffs testimony of the contract. The existence of the contract was not disputed and the Plaintiff was questioned at length by defense counsel regarding the terms of the contract. Further, the determination of whether the corroborating evidence was adequate is a question of fact which can only be overturned by a finding of manifest error. On the record before us, I cannot say that the trial judge hwas clearly wrong in finding that the evidence adequately corroborated the contract.

More importantly, however, I do not find that the existence or terms of the contract between the Plaintiff and the contractor is dispositive of this case. Under the Private Works Act, the subcontractor who supplies materials for improvements to immovable property has a right of action for payment from the owner of the immovable property and a right to secure a lien for payment on the property. The contract between the subcontractor and contractor is not relevant to the claim where proof as required of the delivery and use of materials is presented.

Accordingly, although the proof may not be sufficient to support the total amount awarded, I find the record amply supports the trial court finding, of liability and, therefore, dissent from the majority opinion reversing the trial court judgment rendered in favor of the subcontractor.

      . The contract, which was entered into evidence, stipulated that Big Easy would
      dismantle and remove the front porch. Save the columns and reuse. Then reconstruct including changing the pitch of the flat roof to drain forward. Work includes new roof of modified bitumen and joining existing shingle roof. All trim and paints. Change gutters in front of house. In rear we will change fascia board. Renail ceiling. Caulk all seams smooth and paint. Remove all trash from job site.

      . Big Easy provided a $750 credit for "work not done,” although it is not clear what tasks were not completed.

      . The record indicates that this award was discharged in a subsequent bankruptcy filing by Big Easy.

      . 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006, 1023.

      . 00-194 (La.App. 5 Cir. 9/26/00), 770 So.2d 828.

      . Id. at 830.

      . Id. at 830.

      .95-372 (La.App. 5 Cir. 11/15/95), 665 So.2d 481.


source: Caselaw Access Project

author: THOMAS, F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brandon L. ATKINS.
    No. 05-KA-823.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Donald A. Rowan, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

      Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   THOMAS, F. DALEY, Judge.

12Defendant, Brandon Atkins, appeals his conviction of possession of cocaine, a violation of LSA-R.S. 40:967(C). Defendant pled guilty under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the trial court’s denial of his Motion to Suppress Evidence. After review, we reverse holding that the Motion to Suppress was improperly denied and remanded for further proceedings.

FACTS:

On June 14, 2005, a hearing was held on defendant’s motion to suppress the evidence. No testimony was taken at that hearing, but the Kenner Police Department Incident Report, which memorialized the fact surrounding the defendant’s arrest, was introduced into evidence by stipulation of the parties. The report sets forth the following information:

Probable cause statement:

The defendant matched the description of a suspricious (sic) person possibly selling narcotics, given by H.Q. This R/O conducted a field interview of the defendant, asking him to place his hands on the trunk of the patrol unit. The defendant complied but kept his left 1 Rand cupped. When asked to open it, he did so, revealing four off-white rock-like objects, that later tested positive for cocaine. This felony violation occurred in a posted “drug free” zone, approximately 284 feet from the posted “drug free zone” sign.

Narrative:

On February 5, 2005 at approximately 1316 hours, Kenner police dispatch broadcasted a call of four black males possibly selling drugs at the corner of 27th Street and Augusta Street. One black male was described as wearing a red t-shirt and blue jeans,- another described as wearing a black hat. No further descriptions were given regarding the other black male subjects.
This officer advised police dispatch that he was around the corner and would respond. This officer arrived on the scene within a minute, but no one was on that corner. However, 4 black males were observed on the next corner, 27th Street and Dawson Street. One of the black males were (sic) wearing a red t-shirt and blue jeans. The four black males were standing on the northeast quadrant of the intersection.
This officer casually proceeded to the corner of 27th Street and Dawson Street, in an attempt not to alarm the four black males. This officer stopped his patrol car next to them and exited. The four black males started to walk away. This officer asked the four black males to come to the patrol car and place their hands on it. This officer met with the black male wearing the red t-shirt and blue jeans at the trunk of the vehicle. This black male, later identified as Brandon L. Atkins, placed his hands on the trunk. However, Brandon Atkins kept his left hand cupped. Brandon Atkins was then asked to open his left hand. He did so, revealing four off-white rock-like objects which tumbled onto the trunk. This officer secured the four off-white rock-like objects. Brandon Atkins was handcuffed and remained positioned at the rear of the vehicle.
Meanwhile, the three other black males placed their hands on the passenger side of the vehicle. Positioned from the rear forward were J.R.B., L.J.G., (both juveniles) and Albert D. Cox.
This officer proceeded to the passenger side of the vehicle and observed a piece of white plastic, tied, with numerous small objects contained inside, on the ground at the feet of J.B. and L.G. This officer secured the piece of white plastic and opened it, revealing numerous off-white rock-like objects. Unable to determine ownership, this officer conducted criminal history checks and completed field interview cards on J.R.B., L.J.G., and Albert D. Cox.
14During the investigation, Brandon L. Atkins’ father arrived on the scene and asked what was going on with his son. This officer advised him to asked (sic) Brandon. After doing so, Brandon answered his father stating “I had rocks on me.”
This officer had headquarters contact the mothers of J.R.B. and L.J.G. Upon their arrival, this officer advised their mothers of the investigation at hand and what was found at their sons’ feet. J.B. and L.G. were released into the custody of their mothers. Abert (sic) Cox was released at the scene.
A chemical field test was conducted on a sample of the off-white rock-like objects found in Brandon Atkins’ possession. The test returned a positive result for the presence of cocaine, with a recorded weight of 6/10 gram.
Brandon Atkins was transported to the Kenner lock-up, advised of his rights, and charged accordingly.
At the request of this officer, crime scene technician Larry Lacrouts obtained photographs of the scene in regards to the posted “drug free” zone signs which was (sic) approximately 284 feet from the scene and faced east towards the scene. The posted sign is located on the corner of 27th Street and Albany Street.
The four off-white rock-like objects were logged as evidence article # 1. The piece of white plastic containing numerous off-white rock-like objects were logged as evidence article # 2. The evidence was then forwarded to evidence custodian James Devlin. Evidence article # 2 recorded a weight of 1.5 grams.
Case closed.

At the suppression hearing, defense counsel argued that the police could not stop someone based on an anonymous call, and that they needed other corroborating information of criminal activity. Defense counsel contended that the description of the drug dealers provided by the caller was ambiguous, and that there was no reasonable suspicion to detain defendant, order him to the car, and conduct a pat-down. The prosecutor responded that the officer received a tip that an individual was selling narcotics at a particular area, and that the officer went to that area where he located defendant who matched the description given by the caller. The prosecutor argued that the officer approached defendant to conduct a [5field interview, that the officer was allowed to do that, and that defendant did not have to talk to him. He stated that the officer asked defendant for safety reasons to place his hands on the vehicle, and when he did so, defendant had his hand cupped and refused to open it at first. He said that when defendant finally did open his hand, the officer found narcotics.

Defense counsel stated that the officer did not give specific and articulable facts to indicate that his safety was at issue. The prosecutor argued that the fact that defendant would not open his hand would have made him suspicious that something was going to happen. The judge asked defense counsel whether she placed any weight on the fact that defendant was asked to open his hand and voluntarily did so. Defense counsel said she did not, claiming that when the officer asked the boys to come over to the police car that they were under the officer’s control and detention.

After additional argument, the judge denied the motion, stating:

Well, I think that if it’s a drug zone and a known drug area, the cursory rights of the policeman involve safety and a cupped hand does not indicate a safe position. Motion denied. Note objection.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred by failing to suppress physical evidence gathered as the result of an illegal seizure. He contends that the officer did not have reasonable suspicion of criminal activity to detain him or to conduct an investigatory stop, and that the evidence gathered as the result of the illegal seizure should be suppressed.

The state responds that the encounter between the officer and defendant was consensual in nature and, therefore, no Fourth Amendment implications were triggered. The state argues alternatively that if this Court finds that the encounter 1 fiwas not consensual or voluntary, then it could find that the officer had reasonable suspicion to conduct an investigatory stop given the report of possible narcotics activity, defendant’s conduct, and the high crime nature of the area. As such, the state concludes that the trial court did not err in denying defendant’s motion to suppress the evidence.

In a hearing on a motion to suppress, the state bears the burden of proof in establishing the admissibility of evidence seized without a warrant. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id.

The first issue is whether the officer’s encounter with defendant constituted a stop under the Fourth Amendment. In State v. Tucker, 626 So.2d 707, 712 (La.1993), the Louisiana Supreme Court held that an individual has not been “actually stopped” unless he submits to a police show of authority or he is physically contacted by the police. In the instant ease, the police report indicates that the officer approached defendant and the three other black males and ordered them to come to the patrol car and place their hands on it, thereby asserting official authority over them, and that they complied. Thus, we find that a stop of defendant occurred because defendant submitted to a police show of authority when he complied with the officer’s requests.

The next issue is whether the officer had reasonable suspicion of criminal activity to justify the stop. The Fourth Amendment to the United States Constitution and La. Const. Art. 1, § 5 protect individuals from unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, the right of law enforcement officers to stop and question a person where there is reasonable |7suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also: State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Duran, 96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2, 3, appli cation dismissed, 97-1485 (La.1/9/98), 705 So.2d 1087.

The requirements for a valid Terry stop and for any search incident to the stop was codified in LSA-C.Cr.P. art. 215.1, which provides in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

Investigatory stops require reasonable suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048.

|rAn officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98. Unfortunately, in this case, the arresting officer did not testify; hence neither the trial court, nor this Court on appeal has before it any evidence concerning the officer’s experience, his knowledge of recent criminal patterns and/or any detailed observations concerning the behavior of the defendant prior to the Terry stop.

In State v. Jernigan, 377 So.2d 1222, 1225 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980), the Louisiana Supreme Court held, “[A]n anonymous tip can provide the basis of an investigatory stop. However, the information received from the anonymous tipster must carry enough indicia of reliability, such as specificity of the information and corroboration by independent police work, to justify the stop.” In this case the only evidence introduced to support the Terry stop was a police report, which indicated that at, “1316 hours, Kenner Police dispatch broadcasted a call of four black males possibly selling drugs at the corner of 17th Street and Augusta Street.” The evidence introduced does not establish the source of this information. Also, importantly, the police broadcast did not report actual criminal conduct, but reported possible criminal activity.

In State v. Johnson, 01-2436 (La.1/25/02), 806 So.2d 647, 648, the Louisiana Supreme Court made clear that a tip,

provided by the anonymous informant may have provided accurate information with regard to respondent’s clothing and physical location but it did not, without additional corroborating circumstances, provide reasonable suspicion or probable cause that respondent was engaged in criminal activity.

In Johnson the Louisiana Supreme Court relied on the United States Supreme Court case, Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000), quoting language from the Florida case indicating that, “reasonable suspicion ... requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” While the police have a right to engage anyone in conversation, even without reasonable grounds to believe that they committed a crime, once the officer in this case ordered the defendant to place his hands on the police vehicle, that sign of police force required some reasonable suspicion of criminal activity.

In State v. Bridges, 610 So.2d 827, 828-829 (La.App. 4 Cir.1992), the appellate court found reasonable suspicion to justify a stop under circumstances similar to the instant case. In Bridges, officers received a call at 10:56 p.m. from the dispatcher concerning a suspicious person possibly selling narcotics at Clio and Baronne Streets. The person was described as a black male wearing a yellow shirt. The officers arrived at that location a few minutes later and saw Bridges, who wore a yellow shirt, standing in the doorway of a convenience store. Bridges was the only person in the area who fit the description. Bridges saw the police officers arrive, and he walked into the “lobby area” of the convenience store. The officers walked up to Bridges to interview him, then decided to frisk him because the area was known for a high amount of sales and use of narcotics and drug dealers were known to carry weapons. Id.

The officers asked Bridges to place his hands against the wall, and Bridges placed his left hand flat against the wall but kept his right hand clenched. Believing that Bridges may have had “some type of weapon or narcotics in his right hand,” one of the officers asked Bridges to unclench his hand. Bridges refused to do so, and a struggle ensued between him and the officers. Bridges was |insubdued and handcuffed, and Bridges’s hand was unclenched revealing a broken glass tube with a burned residue inside. The tube was believed to be used to smoke crack cocaine, the source of the burned residue. Id. at 828.

On appeal, defendant, Bridges, complained that the trial court erred in denying his motion to suppress the evidence. He argued that the police had no reasonable suspicion when they stopped him because he was not doing anything suspicious when they saw him and they did not corroborate the information received from the dispatcher. He further argued that the forcing open of his closed hand exceeded the permissible scope of a search incident to an investigatory stop because the officer testified that Bridges’s hand was forced open to see if he held a weapon or narcotics. Bridges also argued that the officers had no reasonable basis to believe that he actually had a weapon in his closed hand. Id. at 829.

The appellate court found in Bridges that, although Bridges was not engaged in any kind of suspicious activity when the police arrived at the scene and the description of the suspicious person given by the dispatcher was not very detailed, Bridges was wearing a yellow shirt and was where the dispatcher stated that the suspicious person wearing the yellow shirt would be. Additionally, it noted that that person was said to be possibly selling drugs, and that the area was known for its high incidence of narcotics trafficking. The appellate court found that, considering the totality of the circumstances, the police had reasonable suspicion to make an investigatory stop of Bridges. Id. The appellate court further found that, under the circumstances, the officers were justified in forcing open Bridges’s clenched fist, because the officer unequivocally stated that he believed that Bridges could have had a weapon in his hand. Id.

Unlike the facts in Bridges, no evidence of past narcotics activity in this area was introduced during the suppression hearing. Also, in this case, unlike Bridges, |nthe defendant was not found at the location indicated by the broadcast. Although the dispatch indicated possible drug activity at the corner of 27th Street and Augusta Street, the four black males, who were stopped, were found at 27th Street and Dawson, the next corner, and not at the 27th Street and Augusta Street corner, which was indicated in the broadcast. The broadcast did indicate that one of the black males was wearing a red t-shirt and blue jeans and that one of the black males was wearing a hat. The officer who conducted the Terry stop observed one of the four individuals was wearing a red t-shirt and blue jeans, but observed no one wearing a hat. The police report does not indicate that the officer saw hand to hand transactions or any drugs at the reported location. These factors enter into the totality of circumstances and are to be reviewed by the courts in determining whether corroborating circumstances provided reasonable suspicion to make an investigatory stop of defendant. In light of the Supreme Court’s decision in Florida v. J.L., we find that the State did not meet its burden of demonstrating that the stop was constitutionally valid because it failed to establish sufficient corroborating circumstances to establish suspicion of criminal activity.

In State v. Chark, 96-1667 (La.App. 3 Cir. 4/30/97), 693 So.2d 316, 317-320, a ease similar to the instant one, the appellate court found no reasonable suspicion to justify the stop. In Chark, police officers observed defendant on a street corner in a high crime area at 11:30 p.m. leaning against a tree. They testified that when defendant saw them, he walked away from the tree and approached his bicycle. The officer approached Chark and questioned him. At that time, the officer noticed that Chark’s fist was clenched. The officer asked defendant to show him what he was holding in his hand, and defendant eventually complied, revealing four rocks of cocaine. The appellate court concluded that defendant had been stopped within the meaning of the Fourth Amendment, and 119that the record did not support a finding of reasonable suspicion to justify the stop. It noted that the officer did not see the clenched fist until after the defendant had been detained. The court found that, at most, the officer had an unparticularized, general hunch regarding the defendant’s possible involvement in criminal activity, which did not support the investigatory stop. Id. Because, in this case, there is no information regarding the source of the police broadcast, we do not know whether the information broadcasted was based by an unparticularized general hunch, or an anonymous caller or some other source. Additionally, like in the Chark case the police conduct was based on the possibility of criminal conduct and not some articula-ble suspicion of criminal conduct.

For the foregoing reasons, the denial of the Motion to Suppress is reversed, the defendant’s conviction is reversed and this matter is remanded to the trial court for further proceedings.

REVERSED; VACATED; AND REMANDED.

CHEHARDY, J., dissents.

      . Initials are used to protect their identity because they are juveniles.


author: CLARENCE E. McMANUS, Judge. DALEY, J.,

text:
    Doris JONES v. Ronald BRISCOE, Susan Briscoe, Chris Angelette, Carolyn Angelette and Scottsdale Insurance Company.
    No. 05-CA-646.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.
    Lisa A. Condrey, Joseph- R. Ward, Jr., Ward & Condrey Attorneys at Law, Cov-ington, Louisiana; for Plaintiff/Appellant.
    John E. McAuliffe, Jr., Frederick A. Miller & Associates, Attorney at Law, Me-tairie, Louisiana, and Lloyd T. Bourgeois, Attorney at Law, Thibodaux, Louisiana, for Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| gThe plaintiff, Doris Jones, is appealing from the trial court’s ruling granting summary judgment in favor of defendants, Chris and Carolyn Angelette, dismissing them from this suit. For the reasons that follow, we affirm the decision óf the trial court.

The procedural history relevant to this suit is as follows. Plaintiff, Doris Jones, filed suit for damages on November 19, 2003. In her petition she alleged that, on June- 5, 2003, she was staying at an apartment complex at 178 Catherine Street in Grand Isle, Louisiana. She was attempting to sit in a chair on a deck attached to the apartment complex. The porch deck railing gave way and she fell backwards off the deck, approximately 8½ feet to the ground below. In her petition, she named as defendants, Ronald and Susan Briscoe, owners of the complex, Scottsdale Insurance Company, the owner’s liability carrier, and Chris and Carolyn Angelette, who had sold the complex to the Briscoes.

During the course of the proceedings, Ms. Jones settled her suit with the Bris-coes and Scottsdale Insurance Company, and they were dismissed from the suit, leaving only Mr. and Mrs. Angelette as defendants.

The Angelettes filed a motion for summary judgment, arguing that an “As Is” clause in the contract of sale between the Briscoes and the Angelettes relieved lathem of liability. The trial court denied the motion on July 26, 2004. Trial commenced on March 7, 2005, at which time the trial court granted a motion in limine, prohibiting defendants from arguing that the “As Is” clause in the act of sale relieved the Angelettes from liability. Writs were taken with this Court and the panel reversed, Jones v. Briscoe, 05-C-622 (La.App. 5 Cir. 3/9/05). This Court concluded that the “As Is” clause was relevant to the potential liability of the previous owners of the property, and was admissible evidence, relying on Kreher v. Bertucci, 01-1730 (La.App. 4 Cir. 3/20/02), 814 So.2d 614. Plaintiffs writ application to the Louisiana Supreme Court was denied, 05-0610 (3/9/05). On March 9, 2005, the trial court granted defendants’ motion for mistrial.

On March 17, 2005, Ms. Jones filed a motion for summary judgment, and on April 13, 2005, the defendants filed another motion for summary judgment. After a hearing, the ■ trial court denied plaintiffs motion and granted defendants’ motion, dismissing plaintiffs suit against them.

In this appeal, Ms. Jones argues that the trial court erred in granting the motion for summary judgment filed by the Ange-lettes and in denying the summary judgment of the plaintiff.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.... ” LSA-C.C.P. art. 966(A)(2).

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

The facts show that Chris and Carolyn Angelette purchased the property in 2000. Angelette constructed the deck with guardrails in the summer of 2001, while he was the owner of the property. He applied for and obtained a building permit prior to constructing the deck. The deck and railing were inspected by an inspector for the town of Grand Isle before, during and after construction, and it complied with the codal provisions for the town. Mr. Angelette stated he constructed the deck with a top rail, a middle rail and a bottom rail, and that the bottom rail was in place when the property was sold. Ms. Jones claimed that the bottom rail was missing at the time of the accident. There is no evidence to show when the bottom rail went missing.

The Angelettes sold the property to Ronald and Susan Briscoe on February 27, 2002. The Act of Sale between the parties contained an “As Is” clause, which states

“PURCHASERS acknowledge and recognize that the subject property, buildings and improvements thereon are being sold in “AS IS” condition, and, accordingly, PURCHASERS hereby relieve and release SELLERS and all previous owners from any and all liability for any vices or defects in such property, whether obvious or latent, known or unknown, easily discoverable or hidden, and particularly from any and all liability for any claim or cause of action for redhibition pursuant to the provisions of Louisiana Civil Code Articles 2520 et seq., or for dimunition[diminution] of the purchase price pursuant to the provisions of Louisiana Civil Code 2541 et seq. PURCHASERS acknowledge and understand that Louisiana redhibition law enables the PURCHASERS to hold the SELLERS responsible for any hidden defects in the property existing on the date of the act of sale and PURCHASERS hereby specifically waive that right. Additionally, PURCHASERS acknowledge and agree that this sale is made without warranty of fitness for any ordinary or particular use pursuant to Louisiana Civil Code Article 2524. PURCHASERS acknowledge that the above waiver has been explained to them and |sthat they have read and understand these terms and agree to be bound by this waiver of warranty.

Plaintiff stated her cause of action as one in negligence, relying on LSA-C.C. arts. 2315 and 2316. She alleges that Mr. Angelette was negligent in his construction of the rail and that his negligence caused her injuries. She further argues that the “As Is” clause does not apply to this case, as it is a redhibition waiver.

By the terms of the “As Is” clause the Briscoes, as purchasers, were relieved “from any and all liability for any vices or defects in such property, whether obvious or latent, known or unknown, easily discoverable or hidden, from any and all liability for any vices or defects in such property, whether obvious or latent, known or unknown, easily discoverable or hidden.” Therefore, the Angelettes were released from liability for any injury occurring as a result of a defective condition in the property. Further, we do not agree with plaintiffs contention that the “As Is” clause only relieves the seller of liability for red-hibitory defects. While the clause clearly spells out that there is no liability for redhibitory defects, it does not limit the waiver to only those causes.

The trial court, in reasons for judgment stated that “After further review and a rereading of the Kreher case, this Court believes that any defect in the guardrail, whether constructed by Chris Angelette or not, was easily discoverable and therefore, this Court finds that the “As Is” clause relieves Chris Angelette from liability. In the case of Kreher v. Bertucci, supra, plaintiff filed suit for injuries received when he slipped and fell in the kitchen of the apartment he was renting. In his petition he alleged that the gutters above the frame of the sliding glass door were worn, allowing rain water to leak inside the premises and onto the kitchen floor. He named as defendants the current owner of his apartment, as well as the | fiprevious owner, who had sold the property one month prior to the accident, pursuant to a bond for deed. The sale document contained “as is” language.

The appellate court found that the previous owner had no liability under the theory of negligence, stating that

Louisiana Civil Code Article 2315 provides that “every act whatsoever of man that causes damage to another obliges him by whose fault it happened to repair it.” The standard analysis of whether to impose liability for negligence under article 2315 is the duty/ risk analysis. As discussed earlier, Bertucci bought the property “as is,” and was well aware of the many defects in the property, including the one that allegedly caused plaintiffs injury, before she purchased it. No evidence was presented at trial, nor was it argued, that Worley concealed the defect in any way. Consequently, any duty owed to plaintiff was specifically assumed by Bertucci as the putative owner when she purchased the property. Worley relinquished any duty owed to the plaintiff when he sold the Bellaire property.

At page 617.

We too find the Krehler case applicable, and we find no error in the grant of summary judgment in favor of defendants. Plaintiff argues on appeal that her claims against the Angelettes are based on negligence, and that the “As Is” clause does not operate to extinguish any duty that the Angelettes owed to her. However, as clearly stated in the Krehler case, supra, any duty owed to plaintiff was assumed by the Briscoes when they purchased the property, and the Angelettes relinquished any duty owed to plaintiff when they sold the property.

Plaintiff further argues that the presumption of res ipsa loquitur is applicable to this case. The doctrine is a rule of circumstantial evidence which permits the fact finder to infer negligence where 1) the circumstances surrounding the event are such they would not normally occur in the absence of negligence on someone’s part, 2) the instrumentality was in the exclusive control of the defendant, and 3) the negligence falls within the duty of care owed the plaintiff. Poplar v. Dillard’s Dept. Stores, Inc., 03-1023 (La.App. 5 Cir. 12/30/03), 864 So.2d 789, writ not considered, 04-0287 (La.3/26/04), 871 So.2d 335. The undisputed facts show that the deck and railing were not in the exclusive control of the Angelettes. In addition, we have previously said that any alleged negligence of Mr. Angelette in constructing the railing was relinquished by the “As Is” clause.

For the above discussed reasons, we affirm the decision of the trial court granting summary judgment in favor of Chris and Carolyn Angelette, dismissing plaintiffs suit against them. All costs are assessed to plaintiff appellant.

AFFIRMED

DALEY, J., dissents with reasons.

DALEY, J.,

dissenting with reasons.

hi respectfully dissent from the majority opinion in this case. A contract of sale between a buyer and seller with an “as is” clause does not negate a third party’s cause of action against the seller for personal injuries caused by a defect created by the seller’s negligence. The majority and the trial judge rely on Kreher v. Bertucci, 01-1733 (La.App. 4 Cir. 3/20/02), 814 So.2d 614, to support the granting of the defendants’ summary judgment motion. I find that case distinguishable because it deals with an alleged defect that was known to the purchaser and which was not constructed by the seller. In this ease defendant, Chris Angelette, allegedly constructed defective guardrails.

A contract between the Angelettes and Briscoes, wherein the Angelettes sold the property to the Briscoes in an “as is” condition, does not provide immunity to the Angelettes for negligent acts or for non-disclosed hidden defects. See Learson v. Bussey, 96-2339 (La.App. 4 Cir. 3/26/97), 691 So.2d 1301, which held that a sale of the property does not automatically absolve the former owner of liability for his or her negligent acts. The Fourth Circuit found that, at the very least, the former owner has a duty to advise the new owner of the conditions that could pose a danger to others. Supra at 1303. The Court in Learson went on to declare that “where a defective thing is involved, not only can its owner be responsible for damages, but also the party who actually created the risk whether or not he is the owner.” Id. 1303 citing Williams v. City of Monroe, 27,065, 27,066 (La.App. 2nd Cir.7/3/95), 658 So.2d 820, writ denied, 95-1998 (La.12/15/95), 664 So.2d 451 and 95-2017 (La.12/15/95), 664 So.2d 452.

For the above reasons, I respectfully dissent and would have reversed the grant of summary judgment, reinstated the cause of action of against the Angelettes, and remanded the matter for further proceedings.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Leah F. VERDIN, Individually and on Behalf of Her Deceased Husband, Randall S. Verdin and Jeff Verdin v. Slade A. ROGERS, Louisiana Farm Bureau Mutual Insurance Company, Gertrude Gardner, Incorporated, ABC Inspection Co., and The ABC Insurance Company.
    No. 05-CA-664.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Vincent J. Glorioso, Jr., Vincent J. Glori-oso, III, Maria B. Glorioso, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Andre P. Guichard, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

[¡¡This matter comes before this Court on a grant of an exception of no right of action filed by defendant, Mitch Kapoulas. For reasons that follow, we affirm.

Plaintiffs filed the underlying wrongful death and survival action for damages as a result of the death of Randall S. Verdin when he sustained a fatal electrical shock while servicing an air-conditioning unit at the home of Slade A. Rogers on June 21, 2002. Plaintiffs allege the electrocution resulted from a frayed ground wire undetected by the home inspection at the time of the sale of the house to Mr. Rogers two years earlier.

Named as defendants were Mr. Rogers, the home owner, and his insurer, Louisiana Farm Bureau Mutual Insurance Company, and GBS Properties, L.L.C. d/b/a Prudential Gardner Realtors (GBS), realtor in the transaction in which Mr. Rogers acquired the house. By a supplemental and amending petition, plaintiffs 13also named Mitch Kapoulas as a defendant, alleging he conducted the home inspection in the real estate sale.

This matter has been before this Court in an earlier appeal contesting the grant of a similar motion at issue herein filed by defendant GBS. This Court affirmed the grant of a no right of action exception filed by GBS. Verdin v. Rogers, 03-1457 (La.App. 5 Cir. 4/27/04), 873 So.2d 804, writ denied, 04-1231 (La.9/24/04) 882 So.2d 1128.

In the second supplemental and amending petition adding Mitch Kapoulas as a defendant, plaintiffs allege that Mr. Ka-poulas,

... .was retained to and did perform certain inspections and/or appraisals which included electrical and cooling systems and, specifically, the air-conditioning condensing unit and panel board, “load center” referred to in paragraphs IV, V and VI above and, in connection with such inspections/appraisal, defendant Mitch Kapoulas negligently failed to discover the danger/hazard/defect hereinabove referred to and/or/ negligently failed to disclose same.

The paragraphs referred to in the above allegation related back to the original petition in which plaintiffs allege Randall Ver-din died of electrical shock while servicing an air-conditioning condensing unit which had an “intermittent fault causing or allowing the casing thereof to become ‘electrically hot’.” Additionally, the petition alleges that;

The ‘path to ground’ had been interrupted by virtue of a cutting or other severing/parting of the ‘ground wire’ within the ‘load center’ or panel board, thus eliminating a critical safety feature and causing or allowing the electrical current to pass through decedent and into the ground, electrocuting him.

In support of the exception of no right of action, Mr. Kapoulas attaches documentation to show that he was the appraiser on the sale of the property to Mr. Rogers. The appraisal made by Mr. Kapoulas, dated June 19, 2000, includes the following statement of terms;

1 Conditions of Appraisal: No structural, mechanical plumbing or electrical warranties made or implied as this is not within the scope of the appraisal assignment. See VC sheet.

The “VC sheet” refers to a form used by the Department of Housing and Urban Development entitled “Comprehensive Valuation Package Valuation Conditions.” That form was completed by Mr. Kapoulas and is included in the appraisal. It indicates that there was no exposed visible wiring in the living areas of the home and that there was no frayed wiring.

In the opposition to the exception, plaintiffs assert that Mr. Kapoulas negligently misrepresented the safety of the electrical system and that the negligent misrepresentation arises ex dilecto under La. C.C. art. 2315. Thus, no privy of contract is required. Attached to the memorandum are photos of frayed wiring and the appraisal.

The Louisiana Supreme Court set forth the rule of law on the exception of no right of action in Louisiana Paddlewheels v. Louisiana Riverboat Gaming, 94-2015 (La.11/30/94), 646 So.2d 885 at 888.

An action can only be brought by a person having a real and actual interest which he asserts. La.Code Civ.Proc. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La.Code Civ.Proc. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Baily[Bailey] Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation.

As we explained in Verdin v. Rogers, supra, 873 So.2d at 807,

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. The inquiry is whether the plaintiff has any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim.
(citations omitted)

|sThe plaintiffs assert that Mr. Ka-poulas owes them a duty under general tort principles for the tort of negligent misrepresentation. In support of that assertion plaintiffs cite the Restatement (Second) Torts § 324A, more commonly known as the “good Samaritan rule,” and its interpretation in Bujol v. Entergy Services, Inc. et al., 03-0492, 502 (La.5/25/04), 922 So.2d 1113; rehearing granted 10/29/04.

Restatement (Second) Torts § 324A provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Plaintiffs do not argue that Mr. Kapoulas had a duty to Mr. Randall Verdin. They cite no law to suggest that an appraiser of a home in the process of a sale has a duty to an air-conditioning repair man two years after the sale. However, plaintiffs argue that Mr. Kapoulas assumed a duty to Mr. Verdin when he appraised the home. We are not persuaded by that argument. While we agree with plaintiffs that a cause of action for negligent misrepresentation exists in Louisiana law, the issue before us is not whether there is a cause of action, but rather whether there is a right of action. To defeat the exception of no right of action, plaintiffs would have to show that Mr. Kapoulas assumed the duty to protect Mr. Verdin. In Bujol, the Court examined the concept of voluntary assumption of a duty by affirmative conduct. The Bujol Court explained:

|fiThe plain language of the introductory portion of § 324A establishes that an assumption of duty arises when the defendant (1) undertakes to render services, (2) to another, (3) which the defendant should recognize as necessary for the protection of a third person. Even if a plaintiff proves the assumption of a duty under that standard and that the defendant failed to exercise reasonable care to perform this undertaking, he can only recover if he further proves that either (a) the defendant’s failure to exercise reasonable care increased the risk of such harm; or (b) the defendant has undertaken to perform a duty owed by the employer to the injured employee; or (c) harm is suffered because of reliance of the employer or the injured employee upon the undertaking. (Citations and footnote omitted) Bujol, 922 So.2d at 1129.

Using the above law, we find no showing that Mr. Kapoulas as the appraiser assumed a duty to Mr. Verdin as a repairman entering the home two years later. Mr. Kapoulas was an appraiser and it is clear from the appraisal that no warranty on the electrical system was made. There is no indication that Mr. Kapoulas voluntarily assumed a duty to third parties not involved in the sale of the house. Accordingly, we find the ruling of the trial judge on the exception of no right of action is correct.

AFFIRMED.


author: JAMES L. CANNELLA, Judge.

text:
    R.M. JACKSON v. HOUSING AUTHORITY FOR The PARISH OF ST. JAMES.
    No. 05-CA-665.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Robert A. Barnett, Guste, Barnett & Shushan, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellant.
    Michael K. Heltz, Kliebert and Heltz, Gramercy, Louisiana, for Defendant/Ap-pellee:

      Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   JAMES L. CANNELLA, Judge.

lain an employment termination case, the Plaintiff, R.M. Jackson, appeals from a judgment dismissing her suit against the Defendant, the Housing Authority for the Parish of St. James (Housing Authority) for breach of contract, damages and unpaid wages. We affirm.

Jackson was hired by the Housing Authority in March of 1998 as its Executive Director. The parties executed a three-year contract of employment, which commenced on March 16, 1998 and ended on March 31, 2001. On October 24, 2000, she received written notice that a specially convened meeting was to be held by the Board of Commissioners (the Board) of the Housing Authority on October 26, 2000 to discuss her continued employment. Jackson and her counsel appeared at the meeting, but were not allowed to participate in the discussion. Following discussion, the Housing Authority terminated her “without cause” based on the contract. No reason was given for the termination at that time, but the trial |afacts established that the Housing Authority had received complaints about Jackson’s performance from employees of the Department of Housing and Urban Development (HUD), who threatened to cut off federal funding if she were not terminated. The Housing Authority issued Jackson’s final paycheck on October 30, 2000 and gave it to her in person on November 1, 2000 at the Housing Authority’s office. Jackson subsequently sent two demand letters to the Housing Authority seeking unpaid wages and benefits due under the contract of employment. When the Housing Authority failed to respond, on November 21, 2000, Jackson filed a suit seeking damages for breach of contract and unpaid wages, including vacation and sick leave pay. A judge trial was held on August 20, 2004, during which Jackson asserted that she was denied due process in the hearing on the termination, and for the first time, raised the issue of the unconstitutionality of the employment contract provision which allowed her to be terminated without cause.

On January 14, 2005 the judgment was rendered in favor of the Housing Authority. The trial judge found that the Housing Authority did not breach the employment contract because the contract permitted Jackson to be terminated “with” or “without” cause, and that the Housing Authority had paid her all of the wages and vacation pay owed. The trial judge also found that, based on the contract and the employee policy manual, sick leave was not payable upon termination of employment. Thus, no payments for accrued sick leave were due.

On appeal, Jackson asserts that the trial judge erred in failing to find that the special meeting was improperly called and conducted, that she was improperly excluded from participation in the meeting, and that she was denied due process relative to her termination at the meeting. Jackson also asserts that the trial judge erred in failing to find that she had no property right in her expectation of | continued employment under the contract terms, that she is entitled to damages, and that the trial judge abused his discretion. Further, she asserts that the unilateral “without cause” clause in the contract is unconstitutional as applied and should be severed from the employment contract. Finally, Jackson asserts that she is due attorney’s fees for unpaid wages and benefits.

PROPRIETY OF THE PROCEEDINGS

Jackson cites several cases in support of her allegation that she was denied due process by her inability to respond to the charges of incompetence asserted against her at the meeting by employees of HUD. However, the cases she cites are not applicable. Jackson is an unclassified employee. The cases all involve either classified civil servants, and/or did not involve contracts containing a termination “without cause” clause.

The basis of Jackson’s termination is a contractual provision. The contract provides that she will receive, inter alia, the use of a ear, and all expenses related to travel to and from work and other travel and repair expenses, medical insurance coverage, 15 days of vacation per year, and “termination pay, sick leave, and other benefits as set out forth in the personnel policy manual of the Housing Authority for regular employees.” Employee Contract, Section 5(d). The Employment Contract, Section 9 provides for termination. It states:

The employee may not be terminated • during the Term of this Agreement except upon written notice and for cause. Cause shall include, but not be limited to the following:
a) Serious offenses as defined in Section VII of the Employer’s Personnel Policy.
b) The Employee shall be provided a reasonable opportunity to correct any deficiencies prior to any notice of termination. The time-frame and conditions for correcting said deficiencies shall be established by the Board of Commissioners. The language set forth |sin this paragraph shall in no way limit the Employer’s authority to discontinue the employment of the Employee at the conclusion of the term described in paragraph 2 above.
(c) The Employee shall be entitled to the, following severance pay, exclusive of vacation and sick time, should she be terminated for reasons other than “for cause” prior to the conclusion of the “term” described in paragraph 2 above.... ■

The contract sets out the amount of severance pay for various periods of employment. Jackson was entitled, to and received one month’s severance pay. Section 9(c) clearly envisions the possibility that the Housing Authority might choose to terminate the Plaintiff “without cause.” That means without any reason whatsoever. In that event, severance pay is the penalty that the Housing Authority agreed to as compensation for discharging Jackson prior to the completion of the term.

In Corbello v. Iowa Production, 02-0865, p. 6 (La.2/25/03), 850 So.2d 686, 693, the Supreme Court restated the basic principles of contract law:

Since a contract establishes the law between the parties, the purpose of contract interpretation is to determine the common intent of the parties. The meaning and intent of the parties to a written instrument should be determined within the four corners of the document and its terms should not be explained or contradicted by extrinsic evidence. When a contract is subject to interpretation from the four corners of the instrument, without the necessity of extrinsic evidence, that interpretation is a matter of law. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation need be made into the parties’ intent. Further, parties are free to contract for any object that is lawful, possible, and determined or determinable.

See also: Lee v. First Nat. Bank of Commerce, 04-659, p. 8 (La.App. 5th Cir.2/15/05), 893 So.2d 1030, 1034-1035.

Jackson testified that she provided input into the contract provisions. She requested and received medical insurance, an automobile for work travel, and related automobile expenses. Jackson read and signed the contract. There is no evidence that she did not understand the contract. Furthermore, the contract is not | fiambiguous. As such, no further inquiry is necessary into the intent of the parties. Jackson is bound by the provisions of the contract which she agreed to when she was hired. Despite this, she insisted at trial that she was treated unfairly. She testified that she counted on being employed for three years and had performed her job competently. She felt that she should have been allowed to defend her performance at the Board’s meeting. She also contends that the manner in which the meeting was called and conducted violated both her due process rights and the open meeting requirements of public bodies, set out in La. Const. Art. XII, Sec. 3. She also claims that the “without cause” provision is unconstitutional.

Jackson’s job performance, the constitutional provision cited, and the argument related to the constitutionality of the “without cause” clause are irrelevant. This is simply an employment contract case. There are no issues of due process, constitutional, or open meeting laws. Jackson signed and agreed to the terms of an employment contract which she was free to refuse. Protections are afforded in the contract to an employee that the Board may possibly consider terminating “for cause.” A penalty (compensation) is provided in favor of an employee terminated “without cause.” No reason is necessary for an employer to terminate an employee “without cause,” and such provisions in employment agreements are not against the public policy of Louisiana or the federal law. Thus, since the Housing Authority did not terminate Jackson “for cause,” it had no duty under the contract or the law to afford her an opportunity to discuss the matter at the Board meeting, nor was it prohibited from terminating her at will. Furthermore, the evidence shows that Housing Authority paid Jackson severance pay of one month, thereby satisfying its obligation. Accordingly, we find that the trial judge did not err in finding that Jackson was not denied due process in the termination procedure, or that the contract was unenforceable.

17P AM AGES, PENALTIES AND ATTORNEY’S FEES

Jackson next argues that she is entitled to damages for the early termination of her contract. Based on our conclusion that she was terminated legally in accordance with her contract, no damages are due for breach of contract.

Jackson also argues that she is entitled to penalties and attorney’s fees for the Housing Authority’s delay in paying her wages, under La.R.S. 23:631 and 23:632. She contends that the Housing Authority did not pay her until six days after she was terminated on October 26, 2000, instead of the 3 days provided for in R.S.23:631. Because her termination was allegedly improper, she also contends that she is entitled to nine additional hours of vacation leave pay and unused sick leave pay.

Under the pertinent provisions of La. R.S. 23:631 A. (l)(a) in effect at the time Jackson was terminated, when an employee was discharged (as opposed to the employee’s resignation,) the employer was required to pay “the amount then due under the terms of employment, ... not later than three days following the date of discharge.” Unless the payment was mailed with pre-paid postage and self-addressed, the payment was to be made at the place and in the manner which had been customary during the employment. R.S. 23:631 A. (2).

La.R.S. 23:632 provides as follows for penalties and attorney’s fees when an employer fails to comply with R.S. 23:631:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages | ¿whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

In order to recover “penalty” wages, Jackson must prove the elements of the claim: that the wages were due and owing, that a demand for payment was made at the place where she was usually paid, and that the employer failed to pay following demand. Batiansila v. Advanced Cardiovascular Systems, Inc. 952 F.2d 893, 897, footnote 17 (C.A.5 (La.), 1992), citing, Thomas v. DeJohn’s Plumbing & Heating Co., 380 So.2d 161 (La.App. 1st Cir.1979); Carey v. Orleans Ins. Co., 337 So.2d 317 (La.App. 4th Cir.1976); and Otwell v. Howard Lumber & Supply Co., 283 So.2d 826 (La.App. 2nd Cir.), writ denied, 286 So.2d 364 (La.1973).

Jackson was terminated at the end of the meeting on October 26, 2000, a Thursday. Payment of her wages was due no later than Monday, October 30, 2000, and was issued on that date. It was picked up by her on November 1, 2000. There was no evidence that she made any demand for wages prior to that date. Jackson’s demands for further payment of wages due were made by letter after she had received her final paycheck on November 1, 2000. Furthermore, the evidence shows that Jackson was paid all amounts due in her final paycheck.

1) Vacation Time:

Under the contract, Jackson was entitled to 15 days of vacation time per year for a three year period. One year equals 120 hours (eight hours per day times 15 days per year.) Three years equals 360 hours. The Plaintiff had been paid for 40 hours of vacation time prior to her termination. Thus, if she was entitled to the full three years of vacation pay, she would have been owed 326 hours. However, she did not complete her third year, and had actually earned 310 hours of vacation time. The Defendant paid her a total of 369.26 hours (40 hours for time used, and 19another 329.26 hours.) The amount the Defendant paid the Plaintiff exceeded the amount what she was owed by 59.26 hours for the time she actually worked, or nine hours for the full three years. Thus, she was overpaid for vacation time, and is clearly not owed any further amounts.

b) Sick Leave:

The contract provides that Jackson shall receive sick leave as set forth in the personnel policy manual. Thus, the policy manual forms part of the employment agreement. The manual states that sick leave benefits are available only if the employee is sick or has a medical or dental appointment. Although the amount of unused sick leave time is accrued from year to year, the employee is not entitled to payment for unused sick leave time when the employee terminates employment with the Housing Authority. Sick pay begins on the first day of any proven illness, and during sickness, the accumulation of days may be drawn upon to substitute for regular pay that was not being earned due to the employee’s absence from illness. There was no evidence that Jackson had not been paid for any sick days that she used due to illness. She argues that she “understood” that she was to be paid for unused sick time in the event of her termination. As we have already found, Jackson and the Housing Authority are bound by the contract of employment. Under the contract, she is not entitled to pay for unused sick time. Thus, the trial judge did not err in denying this claim.

c) Attorney’s Fees:

Jackson asserts that she is entitled to attorney’s fees. However, she had no valid claim for unpaid wages, or employment benefits. The Housing Authority paid her more than the sums owed to her upon her discharge. Under these facts, Jackson is not entitled to attorney’s fees as the suit was not well-founded. See: R.S. 23:632.

|inDECREE

Accordingly, the judgment of the trial court is hereby affirmed. Costs of appeal are to be paid by Jackson.

AFFIRMED.

      . Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 Ed.; Riggins v. Department of Sanitation, 617 So.2d 112 (La.App. 4th Cir.1993); Webb v. Department of Safety & Permits, 543 So.2d 582 (La.App. 4th Cir.1989); Williams v. Sewerage and Water Bd., 04-0025 (La.App. 4th Cir.5/19/04), 876 So.2d 117.

      . It has since been amended, in 2001 and 2003.

      . See: La.C.C.P. art. 5059.


text:
    Patrick CHESSER v. ROYAL & SUNALLIANCE INSURANCE COMPANY.
    No. 05-CA-678.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      James B. Guest, Kenner, Louisiana, for Plaintiff/Appellant.
    Thomas J. Eppling, Alejandro E. Gomez, Staines & Eppling, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   JAMES L. CANNELLA, Judge.

| j,The Plaintiff, Patrick Chesser (Ches-ser), appeals from the summary judgment granted in favor of his insurer, the Defendant, Royal and Sunalliance Insurance Company (Royal), finding that Royal did not provide uninsured/underinsured motorist (UM) coverage for Chesser under the facts of this case. For the reasons which follow, we reverse and remand.

On August 22, 2002, Chesser was involved in an automobile accident when the Freightliner Tractor that he was driving was rear-ended by a vehicle driven by Rebecca Williams (Williams). At the time of the accident Chesser was insured under an automobile liability policy with Royal in which he was the named insured and his Freightliner Tractor was a covered vehicle. A separate endorsement to the policy provided UM coverage. At the time of the accident Chesser was operating his vehicle under a dispatch or contractor lease agreement with Triple G Express, Inc. (Triple G). Triple G was insured by Valley Forge Insurance Company (Valley |3Forge). Williams was insured by U.S. Agencies Insurance Company (U.S. Agencies). US Agencies paid its policy limits of $10,000 to Chesser. Chesser sought recovery for additional damages he sustained under the UM part of his policy with Royal.

Royal has disputed liability, contending that it does not provide UM coverage under the circumstances of this case, where the insured was under dispatch at the time of the accident. Liability coverage under the Royal policy is excluded while a “covered auto” is “under the direction, dispatch or control of a motor carrier.” Therefore, Royal argues, since liability coverage would not have applied at the time of the accident, UM coverage did not apply either.

In response to Chesser’s suit, Royal filed a motion for summary judgment arguing that it did not provide UM coverage. Chesser added Valley Forge as a defendant, claiming UM coverage under that policy. Valley Forge also filed a motion for summary judgment denying UM coverage. Following a hearing on the motions, the trial court granted summary judgment in favor of Royal, dismissing the claims against it, and denied Valley Forge’s motion. Chesser appeals the dismissal of Royal.

On appeal Chesser argues that the trial court erred in granting summary judgment in favor of Royal. Chesser contends that the exclusion under the liability coverage section of the policy does not apply to exclude coverage under the UM section, especially here where the claimant is the named insured, the auto is the covered auto and the UM endorsement to the policy expressly covers “all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured motor vehicle,’ ” without any exclusions. Moreover, Chesser points out that the Supreme Court has clearly held that UM coverage attaches to and follows the person of the insured, not the vehicle.

14Royal takes the contrary position that where, as here, the policy provides no liability coverage, there is no UM coverage. It is not disputed that Chesser was under dispatch at the time of the accident and was, therefore, excluded from liability coverage under the policy.

It is well settled that summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Schroeder v. Board of Sup’rs. of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate, whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, 639 So.2d at 750.

None of the parties assert that any genuine issues of material fact exist, and, after our review of the record, we find none. The issue is purely and simply one of law. So, we must determine, as a matter of law, whether UM coverage for Chesser was excluded under the policy Royal issued to him, and, if so, that Royal is entitled to summary judgment.

Under Louisiana’s UM statute, La. R.S. 22:1406(D), automobile liability insurance delivered or issued for delivery-in Louisiana and arising out of ownership, maintenance, or use of a motor vehicle registered in Louisiana and designed for use on public highways must provide UM motorist coverage equal to the liability coverage provided for bodily injury, unless UM coverage has been validly rejected or lower UM limits have been selected. Jones v. Henry, 542 So.2d 507, 508 (La.1989). The requirement that there be UM coverage is an implied amendment of any automobile liability policy, even one which does not expressly ^address the subject matter, as UM coverage will be read into the policy unless validly rejected. Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987). Moreover, as held by the Supreme Court in Howell v. Balboa Ins. Co., 564 So.2d 298, 301-302 (La.1990), “UM coverage attaches to the person of the insured, not the vehicle, and ... any provision of UM coverage purporting to limit insured status to instances involving a relationship to an insured vehicle contravenes La. R.S. 22:1406(D). In other words, any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.”

In interpreting the provisions of an insurance policy, there are well-settled principles which are followed. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art. 2045. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. Guar. Ass’n, 630 So.2d at 763. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id.

With these settled principles of construction in mind, we turn to the contractual terms of the Royal policy to determine whether it extended UM coverage to Chesser at the time of the accident. The Royal policy is an automobile | ^liability policy. Chesser is the named insured under the policy. Therefore, as statutorily required, UM coverage must have also been provided for Chesser unless it was validly rejected. Based on our review of the policy provisions herein, there was no rejection of UM coverage. To the contrary, UM coverage was provided under a separate endorsement and expressly provided: “We [Royal] will pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured motor vehicle.’ ” There are no applicable exclusions to coverage in the endorsement. As the insured under the policy, Chesser was provided UM coverage and that coverage attaches to the person of the insured and not the vehicle. Therefore, we find that the Royal policy through its terms and provisions, as well as by law, provided UM coverage to Chesser at the time of this accident.

Royal relies on the case of Magnon v. Collins, 98-2822 (La.App. 5th Cir.7/7/99), 739 So.2d 191, in support of its argument that if there was no liability coverage under the policy for the accident then there was no UM coverage. However, we find that reliance on that case, under the facts here, is misplaced. In Magnon, the plaintiffs UM carrier, State Farm, had filed a third-party action against Vigilant Insurance Company (Vigilant), Magnon’s employer’s UM carrier, arguing that they also provided UM coverage since Magnon was in the course and scope of his employment at the time of the accident. The issue decided in the case was whether Magnon was an insured under the Vigilant policy at all and not, as here, whether, as an insured, UM coverage applies.

As stated by the Supreme Court in Howell v. Balboa, Ins. Co., 564 So.2d at 301-302:

The purpose of the UM statute is “to protect the insured at all times against the generalized risk of damages at the hands of uninsured motorists.” Jones v. Henry, 542 So.2d 507, 508 (La.1989) (citing Block v. Reliance Insurance Co., 433 So.2d 1040 (La.1983)). The courts of this state have recognized, both impliedly and explicitly, that this coverage cannot be qualified by a requirement of a relationship with an insured vehicle. See, e.g., Elledge v. Warren, 263 So.2d 912, 918 (La.App. 3rd Cir.), writ denied, 262 La. 1096, 266 So.2d 223 (1972) (“[t]here is no requirement in the statute that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer”) (emphasis added); Griffin v. Armond, 358 So.2d 647, 649 (La.App. 1st Cir.1978) (“the intent of the statute ... [is] to provide protection to an insured who becomes the innocent victim ... even though the insured may be riding in a vehicle which is not insured under his own insurer’s policy”); Hastings v. International Service Insurance Co., 490 So.2d 656, 659 (La.App. 2nd Cir.), writ denied, 493 So.2d 1223 (La.1986) (“[u]ninsured motorist coverage protects an insured without regard to whether the insured is in, or intends to enter, the insured vehicle”). See also Fisher v. Morrison, 519 So.2d 805 (La.App. 1st Cir.1987) (holding a “public conveyance” exclusion invalid under the UM statute; the exclusion was necessarily connected to a particular use of the insured vehicle).
* * *
We expressly hold that UM coverage attaches to the person of the insured, not the vehicle, and that any provision of UM coverage purporting to limit insured status to instances involving a relationship to an insured vehicle contravenes LSA-R.S. 22:1406(D). In other words, any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.

Royal’s argument in support of summary judgment in its favor is based on the mistaken view that an insured only has UM coverage if he would have liability coverage under the specific circumstances presented. However, that position is not supported by the jurisprudence. The jurisprudence takes a broader view deciding whether the person was an insured under the policy at all. Where it is found that the person was an insured, then he has UM coverage regardless of whether the I ¿vehicle he was in at the time of the accident is covered for liability under the policy. Here, Chesser was the named insured in an automobile liability policy that provided UM coverage by separate endorsement without any applicable exclusions. Thus, under the terms of the policy, UM coverage was not excluded. Moreover, under the jurisprudence, as a named insured in an automobile liability policy that did not reject UM coverage, he has UM coverage protection if he sustains injury by an uninsured or underinsured motorist. Howell v. Balboa, supra. Therefore, we find that the ruling granting summary judgment in favor of Royal upon a finding that there Royal did not afford UM coverage in favor of its insured, Ches-ser, is erroneous and must be reversed.

Accordingly, for these reasons the summary judgment rendered in favor of Royal is reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein. Costs of appeal are taxed to Royal.

REVERSED AND REMANDED.

      . La. R.S. 22:1406(D) was redesignated La. R.S. 22:608 by Acts 2003, No. 456, § 3. However, since the accident giving rise to the claim in this case occurred before the redesig-nation we have referenced the applicable statute as it appeared at the time of the accident.