author: DREW, J. WILLIAMS, J.,

text:
    STATE of Louisiana, Respondent v. Jennifer COX, Applicant.
    No. 42,232-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2007.
    Rehearing Denied Sept. 13, 2007.
    Whitley Robert Graves, Benton, for Defendant-Applicant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Robert Randall Smith, Assistant District Attorneys, for Plaintiff-Respondent.

      Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

LWe granted a writ application by the defendant, Jennifer L. Cox, concerning the trial court’s denial of her motion to suppress. After obtaining the record from the trial court, we placed the matter on the appellate docket for argument and decision.

Ms. Cox complains:
• that her stop for speeding was illegal, because the state trooper lacked jurisdiction, under these facts, to enforce a parish ordinance on this particular road, owned by Bossier Parish, not the state; and
• in consequence thereof, all evidence of her impairment flowing from the traffic stop should be suppressed.

We affirm the judgment of the trial court, which denied defendant’s motion to suppress.

FACTS AND PROCEDURAL POSTURE

On July 22, 2006, sometime after 2:00 a.m. on a weekend night, Cox drove her vehicle on Kingston Road, a parish road in Bossier Parish. A Louisiana State Trooper stopped her for speeding 53 mph in a 45 mph speed zone, in violation of a parish ordinance. Though driving over the parish posted speed limit, she was still operating at less than the presumptive state highway speed limit of 55 mph, established by La. R.S. 32:61.

The trooper immediately observed signs of impairment. When Cox refused to submit to tests to determine whether she was intoxicated, the trooper arrested Cox for speeding in violation of La. R.S. 32:63 and DWI in violation of La. R.S. 14:98.

^Defendant filed a motion to quash the speeding charge, asserting that La. R.S. 32:63 only allows the state to reduce a speed limit lower than 55 mph on a two-lane highway after the Department of Transportation and Development (“DOTD”) has conducted a survey and determined that a slower speed is appropriate. Such a survey was not done in this situation.

The trial court quashed prosecution of the speeding charge under the state statute, since she was not violating La. R.S. 32:61-64. Since defendant maintains that the initial stop was illegal, she urges that all observations of her alleged intoxication were the product of an illegal detention and should be suppressed, as fruit of the poisonous tree. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Facially at issue here is the authority of the Louisiana State Police (“LSP”) to enforce a local (parish) traffic ordinance on a road owned by the parish, for an act that does not violate state law. The ultimate question is the legality of the initial stop for speeding by the trooper, since everything else flows from that stop. If the stop is lawful, then the trial court properly denied the motion to suppress all evidence accruing after the stop.

In denying the motion to suppress, the trial court stated, “[T]his Court believes that once the state troopers were given the authority to act over the highways that they were able to enforce the speed limits on any of the highways in the State of Louisiana.”

J^PROSE CUTION VIEW OF DISPUTE AND LEGAL AUTHORITIES

The prosecution argues that the State Police have authority to enforce violations of state DWI laws on any highway in the state, citing La. R.S. 32:2, which grants law enforcement authority to the DOTD to “supervise and regulate all traffic on all highways within the state highway system and shall have the authority in its discretion to supervise and regulate all traffic on all highways within this state[.]”

The State further cites La. R.S. 32:3, which sets forth the authority of the Department of Public Safety and Corrections. It provides in part:

A. The Department of Public Safety and Corrections shall enforce the provisions of this Chapter and the commissioner’s regulations adopted pursuant thereto on all highways of this state within its jurisdiction and shall exercise such other power and authority as is specifically set forth in this Chapter or other laws of this state.

The prosecution broadly construes “all highways of this state within its jurisdiction” so as to validate the stop in question, further arguing that the authority of the State Police is statewide and not limited by local ordinances unless specifically adopted pursuant to La. R.S. 32:41, the pertinent part of which is set forth below.

La. R.S. 32:21, regarding uniform application, provides:

The provisions of this Chapter and the regulations of the department adopted pursuant thereto shall govern the operation of vehicles and pedestrians upon all highways within this state and other areas specifically set forth; provided, however, that local authorities may adopt local traffic regulations in accordance with the provisions of R.S. 32:41, 32:42.

La. R.S. 32:41 provides for the power of local municipal authorities as follows, in pertinent part:

14A. Except as otherwise provided by law, this Chapter shall not be deemed to prevent local municipal authorities, with respect to highways other than state maintained highways within their corporate limits, from adopting ordinances:
* * *
(9) Establishing speed limits and speed zones, provided that no speed shall be permitted which is in excess of the specific maximum speed limits established by this Chapter;
* * *
(13) Creating additional regulations controlling traffic upon nonstate maintained highways within their corporate limits under their general police power so long as such regulations do not modify, or conflict with, the provisions of this Chapter or regulations of the department and the commissioner adopted pursuant hereto.
C. Local municipal authorities also may adopt ordinances regulating traffic on state maintained highways within their corporate limits, so long as such ordinances do not establish regulations different from, or in addition to, the provisions of this Chapter and the regu-Iations of the department and the commissioner adopted pursuant thereto....
La. R.S. 32:42(A) provides:
A. Local parish authorities ... shall, with respect to highways other than state maintained highways and with respect to public roads within their territorial limits, but outside corporate limits of any municipality therein, have henceforth, power to adopt ordinances regulating the matters enumerated in R.S. 32:41.

La. R.S. 33:1236, regarding powers of parish governing authorities, provides a limited backdrop for this dispute as it states in pertinent part:

(28) To enact ordinances regulating the traffic on all public roads outside of incorporated municipalities and within recognized subdivisions other than state constructed and maintained streets and highways, including but not by way of limitation the right to establish speed limits and speed zones, to regulate the parking of vehicles, to establish rules and regulations for the movement of traffic, including the designation of one-way streets, and for such other similar rules and regulations; provided that insofar as such ordinances may affect state highways they shall not be in conflict with any rules and regulations established by the legislature for the use of highways forming part of the state highway system.

|RThe prosecution contends that local authorities do not have authority to limit the law enforcement power of the State Police as to La. R.S. 14:98, the DWI law.

DEFENSE VIEW OF DISPUTE AND LEGAL AUTHORITIES

Defendant argues that:
• the LSP may only be granted authority to enforce laws passed by the legislature and do not have the authority to enforce parish ordinances;
• the history of the formation of the present-day Louisiana State Police buttresses this argument;
• previous versions of La. R.S. 40:1379 also bolster her view;
• previous versions of La. R.S. 40:1387 arguably support her case; and
• the conclusion is clear that even though the LSP has the authority to enforce all legislatively enacted criminal laws everywhere in the state, such powers are restrained in certain situations and the authority to control the State Police is retained by local officials.

La. R.S. 40:1379 sets forth the duties and powers of state police employees as follows:

A. The police employees of the division shall prevent and detect crime, apprehend criminals, enforce the criminal and traffic laws of the state, keep the peace and good order in the state in the enforcement of the state’s police powers, and perform any other related duties imposed upon them by the legislature. B. Police employees of the division are peace officers and, any provision of the law to the contrary notwithstanding, except h;R.S. 40:1386, they have, in any part of the state, the same' powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions. They have all the immunities and matters of defense now available or hereafter made available to sheriffs, constables, and any police officers in any suit brought against them in consequence of acts done in the course of their employment.

The defendant strictly interprets “enforce the criminal and traffic laws of this state” to restrict LSP to enforcement of only state legislative statutes.

There is little helpful jurisprudence, though Cox cites two older cases which arguably recognize the limitations of powers of state enforcement agencies. See State v. Swain, 292 So.2d 495 (La.1974), and State v. Longlois, 374 So.2d 1208 (La.1979), which arguably hold that neither the LSP nor any other state law enforcement agency has full and unbridled authority to enforce all laws which may exist in a particular geographical location (ie., the boundaries of the state of Louisiana), much less ordinances passed by political subdivisions of the state.

La. R.S. 40:1388, regarding contracts with municipalities for police protection, is cited by Cox, as follows:

The mayor or chief police officer of any municipality and the sheriff of any parish within this state may contract with the department, acting on behalf of the state, for the regular assignment of an agreed number of employees of the division of state police to the municipality or parish, as the case may be, so as to provide police protection therein and to enforce both state laws and local ordinances, in consideration of the payment by the municipality, parish, or other unit of government of a sum agreed upon by them and the department. The department may enter into such a contract or contracts or may refuse to do so for the good of the service.
|7Any police employee of the division so assigned shall continue to have all the powers and duties granted and bestowed in this Sub-part but he shall not be subject to the restrictions contained in R.S. 40:1386 and 40:1387 with reference to the municipality to which he has been assigned.
Cox argues that:
• the above exception would be unnecessary if the State Police already had the authority to enforce local ordinances;
• the Home Rule Charter provisions of the Louisiana Constitution preclude the state from unduly usurping power from political subdivisions, which would upset a political subdivision’s checks and balances of power between the three branches of government;
• La. R.S. 32:41(9) allows parishes to establish speed limits and speed zones as long as the maximum speed limit doesn’t exceed that allowed in Title 32; and
• the local ordinance in the case sub judice, under these facts, must only be enforced by local, not state, peace officers.

The defendant’s narrow reading of La. R.S. 32:3 would grant the state police general authority to enforce traffic laws only on state highways.

DISCUSSION

The law pertinent to appellate review of a suppression motion is well settled. La. C. Cr. P. art. 703, regarding a motion to suppress evidence, provides in pertinent parts:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

|SA trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. White, 39,681 (La.App. 2d Cir.5/11/05), 903 So.2d 580; State v. Normandin, 32,927 (La.App. 2d Cir.12/22/99), 750 So.2d 321, writ denied, 00-0202 (La.9/29/00), 769 So.2d 550.

Our summary appreciation of each side’s position is as follows:

• Cox presents strictly-construed statutory interpretations to bolster her position that the LSP is without authority to stop a speeder who is violating a parish speeding ordinance, if that person at the same time is not violating statutory speeding laws enacted by the legislature. She further reasons that if the stop was unlawful, then the subsequent observations of her alleged intoxication, being tainted, must be suppressed. (See Wong Sun, supra.)
• The prosecutor wraps his argument around a broader statutory construction, together with the crucial public policy of enforcing DWI laws, to keep the roads safe, and to prevent safe havens for drunk drivers.
Two vital points stand out here.

First, as to the propriety of this particular stop, the issue is to determine whether or not the actions of the officer, in making the stop, were “objectively reasonable.” Stated another way, actions of law officers, for more than a decade, have been judged against the standard of “objective reasonableness.”

Consider the following cases:
Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)—upheld a pretextual traffic stop in a situation where the officers had another agenda, other than the observed traffic infraction, finding the stop to be objectively reasonable;
State v. Dumas, 2000-0862 (La.5/4/01), 786 So.2d 80—A Shreveport Police Officer frisked an acquaintance, even though the officer personally felt no fear. The contraband discovered was allowed into evidence, because it was objectively reasonable for an |9officer to have frisked Dumas at that time and in that place, even though this particular officer expressed no reasonable suspicion of danger relative to this particular detainee;
U.S. v. Santiago, 310 F.3d 336 (5th Cir.2002)—A traffic stop by an LSP trooper was upheld, based on his developing reasonable suspicion that an SUV was in violation of La. R.S. 32:327(C) because of a flashing light from the rearview mirror, later held not to be a traffic violation (the stop was held objectively reasonable, but the evidence was suppressed on other grounds);
State v. Strange, 2004-0273 (La.5/14/04), 876 So.2d 39—Another stop by an LSP trooper was upheld, even though the stop was predicated on the mistaken belief that this Texas driver was violating the law by driving in Louisiana with both temporary and permanent plates, which is entirely legal under Texas law;
Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)—An officer made an arrest for one crime, lacking probable cause by which to justify the arrest. Even so, the arrest was objectively reasonable, and not civilly actionable, because there existed probable cause to arrest for another (not closely related) charge;
• State v. Kelley, 2005-1905 (La.7/10/06), 934 So.2d 51—Louisiana officer, mistakenly thinking he has developed probable cause for driving under suspension (La. R.S. 32:415), orders defendant out of the car, intending to effectuate the arrest, whereupon he spies drugs in plain view on the seat of the car. The evidence was allowed because it was objectively reasonable for the officer to require a vehicular occupant out of any vehicle, for officer safety, and thus the evidence would have been seen anyway; and
• State v. Canezaro, 2007-668 (La.6/1/07), 957 So.2d 136—Even though the officer categorized his search of a passenger compartment as being pursuant to an inventory, the court held itself not bound by the officer’s categorization, and allowed the items secured into evidence, as being the product of an objectively reasonable search incident to an arrest.

|inWe find the above seven cases quite helpful in arriving at our conclusion that the officer’s stop was objectively reasonable, legitimizing the usage of the trooper’s observations after the vehicular traffic stop.

Second, even were we to reach the conclusion that the initial stop was illegal, which we do not, we would then be faced with a question to ponder as to whether suppression under these facts would be appropriate: ie., whether suppression would help deter police misconduct, the rationale of the state exclusionary rule, and one of the primary considerations for Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081(1961).

As in Hudson v. Michigan, — U.S. -, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), the answer is “No.” In Hudson, the Michigan law officers admittedly violated the general knock and announce rule by entering the premises three seconds after the knock, as opposed to the 15 to 20 seconds required by U.S. v. Banks, 540 U.S. 31, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003). Notwithstanding this mistake, the physical evidence seized pursuant to the execution of the search warrant was not suppressed. An interesting comment is found in that majority opinion: “Suppression of evidence, however, has always been our last resort, not our first impulse.” Hudson, supra, 126 S.Ct. at 2163.

Buttressing the U.S. Supreme Court’s decision not to suppress the physical evidence was the court’s recognition of three realities of today that did not exist in 1961, when Mapp was rendered:

• aggressive internal affairs components of police forces;
• more professional law officers, due to increased training; and
In* civil rights lawsuits.

We find three other cases helpful in our inquiry into the Cox stop:

Michigan v. Tucker, 417 U.S. 483, 447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974):
“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the right of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.”
U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the original “good faith” case, in favor of law enforcement.
U.S. v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir.1999):
“Generally, the fruits of illegal searches and seizures are inadmissible under the exclusionary rule_But the good-faith exception to the exclusionary rule allows the admission of the fruits of some illegal stops.”

Internal citations omitted.

This record contains not a whiff of bad faith. The trooper was doing his job, trying to keep the roads safe.

We find that state troopers are authorized to enforce traffic laws governing the operation of vehicles and pedestrians upon all public highways located within the state of Louisiana. See La. R.S. 32:21.

We accordingly disagree with defendant’s narrow interpretation of the powers of the Louisiana State Police to enforce local government’s traffic laws, but arriving at that conclusion is unnecessary for this court to Invalidate this traffic stop. This particular stop was legal because this particular trooper, on these particular facts, was objectively reasonable in making this traffic stop. Ms. Cox was speeding 53 mph on a road marked with a 45 mph speed limit sign, and the stop was good. Further, suppression of the trooper’s observations of impairment, immediately after the stop, would satisfy no rational societal objective.

DECREE

We affirm the trial court’s denial of the motion to suppress. This matter is remanded to the trial court for further proceedings.

AFFIRMED AND REMANDED.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, J.,

dissenting.

hi respectfully dissent.

Based on a stipulation by the state and the defense, the trial court ruled that only the initial stop (up to the point where the state trooper activated his blue lights) would be considered and “if the initial stop is suppressed,” then the DWI would “be suppressed also.” The trial court then proceeded to quash the speeding ticket, but denied the motion to suppress the evidence with regard to the DWI.

LSA-R.S. 40:1379 provides, in pertinent part:

A. The police employees of the division shall prevent and detect crime, apprehend criminals, enforce the criminal and traffic laws of the state, keep the peace and good order in the state in the enforcement of the state’s police powers, and perform any other related duties imposed upon them by the legislature. B. Police employees of the division are peace officers and, any provision of the law to the contrary notwithstanding, except R.S. 40:1386,113 they have, in any part of the state, the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions....

(Emphasis added). However, LSA-R.S. 40:1388 provides:

The mayor or chief police officer of any municipality and the sheriff of any parish within this state may contract \ 9with the department, acting on behalf of the state, for the regular assignment of an agreed number of employees of the division of state police to the municipality or parish, as the case may be, so as to provide police protection therein and to enforce both state laws and local ordinances, in consideration of the payment by the municipality, parish, or other unit of government of a sum agreed upon by them and the department. The department may enter into such a contract or contracts or may refuse to do so for the good of the service.
Any police employee of the division so assigned shall continue to have all the powers and duties granted and bestowed in this Sub-part but he shall not be subject to the restrictions contained in R.S. 10:1886 and 10:1387 with reference to the municipality to which he has been assigned.

(Emphasis added).

In State v. Swain, 292 So.2d 495 (La.1974), the defendant was arrested by a state trooper while operating a vehicle within the city limits of Baton Rouge. The Supreme Court reversed the trial court’s determination that the state trooper lacked the authority to arrest the defendant, pointing out that the chief of police for the city of Baton Rouge had, by letter, requested the state police to issue traffic citations within the city limits. Nevertheless, the Court recognized the limitations of the state police’s authority, stating:

The primary purpose of the limitation of the authority of state police officers contained in R.S. 40:1387 is to aid in the effectuation of the home rule provisions of our Constitution and to prevent unwarranted intrusions into local affairs by state police officers.

Id. at 496.

In the instant case, no municipal or parish authority had contracted with or requested the assistance of the state police. Thus, the state trooper’s |astop and arrest of the defendant constituted an unwarranted intrusion into local affairs by a state police officer. Since the initial stop for the speeding violation was invalid, then the trooper’s subsequent observations of the defendant’s alleged intoxication were a product of an illegal detention and should have been suppressed. See, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

For the foregoing reasons, I would reverse the trial court’s ruling on the motion to suppress.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      . Technical observation about the speeding arrest: La. R.S. 32:57(C) requires an officer to accept a written promise to appear, unless the speeding is alleged to be 15 mph or more over the speed limit, as per La. R.S. 32:57(E). This arrest for speeding, however, was in conjunction with an arrest for DWI, so Cox was arrested on both charges, which is apparently a common practice in this state.

      . Our understanding of the ruling on the motion to quash is that the offense could not be prosecuted under the state statute, but could have been re-filed and prosecuted under the Bossier Parish ordinance. The record is silent as to whether this was done.

      . The LSP was formed in 1936 when the Louisiana Highway Commission (which had authority over the traffic laws passed by the state) and the Bureau of Criminal Identification (which had authority over state criminal laws) were combined.

      . Previous versions of the statute gave the State Police specific powers to enforce criminal and traffic laws of the state, but limited the circumstances in which the State Police could usurp the powers and control of local officials.

      .This statute was amended in 1974 to empower State Police Officers to act within the city limits of a municipality which has a police force, but only when the chief law enforcement official decided that an emergency existed.

      . La. R.S. 40:1386 concerns use of the LSP in industrial disputes and has no application to this case.

      . Meaning, in her opinion, highways owned by the state, rather than all highways physically located within the state.

      . See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Landry, 588 So.2d 345 (La.1991); and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

      . Leon was framed in the context of an officer securing a search warrant. Even with a technical glitch, the evidence was allowed, because the officer was in "good faith.” Leon is now often cited anytime an officer makes a mistake; consequently, its ambit has expanded through the years.

      . LSA-R.S. 40:1386 provides, in pertinent part:
      The police employees of the division shall not be used or called upon for service within any municipality in any industrial dispute unless actual violence has occurred therein or the threat of violence exists and then only by order of the superintendent of state police.... The provisions of this Section do not apply in the case of a municipality which has elected to operate under a contract pursuant to R.S. 40:1388.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Winnifred A. HOLLINGSWORTH, Plaintiff-Appellant, v. Britt K. CHOATES, Judy Shores, Susan King, and Prudential Preferred Properties, Defendants-Appellees.
    No. 42,424-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2007.

      Sheva M. Sims, Shreveport, for Appellant.
    Jefferson R. Thompson, for Appellee, Britt K. Choate.
    Julio E. Rios, Shreveport, for Appellee, Judy Shores.
    Mayer, Smith, & Roberts, LLP by Walter Hunter, Jr., Alexandria, for Appellees, Susan King and Prudential.
    Before STEWART, CARAWAY, and LOLLEY, JJ.
   LOLLEY, J.

|, Winnifred Hollingsworth appeals a judgment by the Twenty-Sixth Judicial District Court, Parish of Bossier, Louisiana, which dismissed her suit based on prescription in favor of Britt Choate, Judy Shores, Susan King, and Prudential Preferred Properties. For the following reasons, we affirm in part and reverse in part.

FACTS

This lawsuit arises from the sale of a home located at 112 Esplanade Court, Bossier Parish, Louisiana, by the seller, Judy Shores, to the buyer, Winnifred Hollings-worth, on June 17, 2005. Hollingsworth, an attorney, brought suit alleging a “major leak in the front of the bedroom of said property” against: the seller, Shores; the real estate agent, Susan King and Prudential Properties; and the alleged builder, Britt Choate. Hollingsworth fax-filed a petition on June 16, 2006, and filed the original petition under the same suit number on June 23, 2006. Defendants assert that the original petition filed on June 23rd differed from the fax-filed suit on June 16th. The petition, they argue, had no force or effect as set forth in the provisions of La. R.S. 13:850, and as a result the instant suit was untimely. Accordingly, each defendant filed an Exception of Prescription alleging that one year had passed, and the causes of action had prescribed. After a hearing on the issue of prescription, the trial court granted the exception as to all defendants. We note that Choate also filed an exception of no cause of action which was not disposed of at the hearing. Hollingsworth now appeals.

CLAW AND DISCUSSION

At the outset we agree with the trial court’s finding that the first petition fax-filed by Hollingsworth was moot in light of the fact that the petition that was physically filed was different. Louisiana R.S. 13:850 states, in part:

A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.

(Emphasis added.) Accordingly, the date that will be used in determining the timeliness of the various causes of action in the case at hand will be the latter date of June 23, 2006.

The Builder

No Cause of Action

Choate contends that he is not the “builder” as defined by the New Home Warranty Act, La. R.S. 9:3141, et seq. Louisiana R.S. 9:3143(1) provides:

| ^“Builder” means any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence. A person, corporation, partnership, limited liability company, joint vénture, or other entity which constructs a home, or any addition thereto, is a “builder”, whether or not the consumer purchased the underlying real estate with the home.

Choate asserts that no cause of action exists in light of the fact that the New Home Warranty Act, which is the exclusive remedy between builder and seller, does not apply to him in his individual capacity. We agree.

In reviewing an exception of no cause of action, the appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears on the record. Toledo Bend Proprietors v. Sabine River Authority, 395 So.2d 429, (La.App. 3d Cir.1981), unit denied, 400 So.2d 903 (1981). Further, when the petition fails to state a cause of action but may be amended to cure the defect, the court shall grant the plaintiff leave to amend. La. C.C.P. art. 934; Carter v. Exide Corp., 27,358 (La.App.2d Cir.09/29/95), 661 So.2d 698, citing Thornton v. Heritage Fed. Sav. and Loan Ass’n, 459 So.2d 115 (La.App. 2d Cir.1984).

Here, the exclusive remedy available to Hollingsworth against a builder arises from the New Home Warranty Act. La. R.S. 9:3150; Nolan v. Roofing Supply, Inc., 36,403 (La.App.2d Cir.11/26/02), 833 So.2d 1026. After a review of the record, we find that Hollingsworth failed to bring suit against the correct party. It is clear that Choate is not the “builder” as defined by the New Home Warranty Act; Holl-ingsworth erroneously brought suit against him personally in that capacity. To support his exception of no cause of action, Choate included the initial cash sale deed I into evidence. The deed reflects that on March 3, 2003, the property at issue was conveyed to the initial purchaser, Shores, by Briley Companies, LLC, the actual builder. Whereas Choate signed the cash sale deed as manager on behalf of Briley Companies, LLC, and may have had a role in the construction of the property at issue, Choate cannot be sued personally as the builder. La. R.S. 12:1320(C); Northeast Realty, L.L.C. v. Misty Bayou, L.L.C., 40,573 (La.App.2d Cir.01/25/06), 920 So.2d 938. Therefore, we grant the exception of no cause of action. We reverse and remand to the trial court and allow Hollings-worth leave to amend the petition.

Prescription

We further note that should Hollings-worth amend the suit to include the appropriate party, the cause of action stemming from the New Home Warranty Act has not prescribed in its entirety. Louisiana R.S. 9:3144 states, in part:

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(3) Five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

|BThe “warranty commencement date” is “the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.” La. R.S. 9:3143(7). Any action to enforce rights under this act “shall be subject to a preemptive period of thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.” La. R.S. 9:3146.

Since the instant suit was filed over three years after the warranty commencement date of March 4, 2003, the date of the initial cash sale deed, Hollingsworth is per-empted from bringing a cause of action for defects that are covered under the one- and two-year warranties as provided by subsection (A)(1) and (A)(2). However, a trial on the merits will determine whether the defect at issue is warrantied under the five-year prescriptive period: this limited action has not prescribed.

The Seller

Hollingsworth’s claims against Shores are based on redhibition. The seller of a house warrants the buyer against redhibitory defects which render the house either useless or its use so inconvenient that it must be presumed the buyer would not have purchased it had he known of the defect or would have purchased it at a lesser price. La. C.C. art. 2520. Damages that may be demanded are the difference between the sale price and the price that a reasonable buyer would have paid if he had known the defects. La. C.C. art. 2541, Official Revision Comment (b); Whitehead v. Humphrey, 42,078 (La.App.2d Cir.05/04/07), 954 So.2d 859.

A redhibitory action involving the sale of residential immovable property prescribes one year from the day delivery of the property was made |Bto the buyer when the seller did not know of the existence of the defect, or one year from the day the defect was discovered by the buyer when the seller either knew or is presumed to have known of the defect. La. C.C. art. 2534(C). The seller bears the burden of showing the redhibitory action is barred by prescription. Manning v. Scott-Hixson-Hopkins, Inc., 605 So.2d 233 (La.App. 2d Cir.1992). However, where the petition shows that the claim has prescribed, the buyer must prove otherwise. Id. Also, once the seller proves the lapse of one year, either from the date of delivery or the date of discovery of the defect, whichever applies, the burden shifts to the buyer to show an interruption or suspension of prescription. Id.

In the instant case, Shores made Holl-ingsworth aware of the leak at the time of sale. At the time of sale, Shores included a document, signed by Hollingsworth, which explained that the problem “was a piece of rubber weather stripping missing at the base of the window.” Unfortunately, after further investigation the cause of the leak differed from the original determination Shores had conveyed. At the hearing, the cause of the leak was briefly discussed where it was explained that the cause may not be the window, but rather the stucco was improperly installed at the window ledge. Because the cause, namely the stucco on the ledge, was unknown to Shores at the time of sale, it is clear that Shores was in good faith when she sold the house. As such, the claim of redhibition on the face of the petition appears to have prescribed since the lapse of one year has occurred from the date of delivery. The burden shifts to Hollingsworth to show that interruption has occurred and that her claim has not prescribed.

17Louisiana C.C. art. 2534(C) states that, “In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.” Although the record shows some evidence that Shores was made aware of the new reason for the leak, nothing suggests that she “accepted” the house for repair. Choate may have discussed the matter with Shores; however, the record suggests that Choate was attempting to repair the leak of his own accord, and not on behalf of Shores as a seller. At the hearing, Hollingsworth herself admitted that she never spoke with Shores about fixing the problem. We find that Hollingsworth failed to carry her burden to show that Shores agreed to make the repairs; therefore, since prescription was not tolled, pursuant to La. C.C. art. 2534, the action is prescribed.

The Real Estate Agent

Hollingsworth’s action against Susan King and Prudential Preferred Properties (“Prudential”) is based upon fraud or negligent misrepresentation. A purchaser’s remedy against a real estate broker is limited to damages for fraud under La. C.C. art. 1953, et seq. or for negligent misrepresentation under La. C.C. art. 2315. Duplechin v. Adams, 1995-0480 (La.App. 1st Cir.11/09/95), 665 So.2d 80, writ denied, 1995-2918 (La.02/02/96), 666 So.2d 1104. King and Prudential contend that these claims against them, which are subject to the one-year liberative prescription for delictual actions, have prescribed. We agree. Simply, since the petition was filed over a year after the sale of the home, and nothing in lathe record or on appeal refutes the one-year prescriptive period, we affirm the trial court.

CONCLUSION

For the foregoing reasons, we affirm the findings of the trial court with respect to Susan King and Prudential Preferred Properties and Judy Shores. This case is remanded to the trial court for Winnifred Hollingsworth to amend her petition within 15 days to identify the builder and continue her cause of action. The costs of this appeal are to be borne by Hollings-worth.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . In her petition, Hollingsworth incorrectly identified Britt K. Choate as Britt K. Choates.


author: DREW, J.

text:
    Sandra Joyce BIRDSONG and Jimmy Ray Birdsong, Plaintiff-Appellant, v. HIRSCH MEMORIAL COLISEUM and Feld Entertainment, Inc. (Ringling Brothers), Defendant-Appellee.
    No. 42,316-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2007.

      Joseph William Hendrix, for Appellants.
    David Daniel Palay, Jr., for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

hFrom a judgment sustaining Feld Entertainment, Inc.’s peremptory exception of no cause of action, Sandra Joyce and Jimmy Ray Birdsong appeal the dismissal of their action for damages. Exiting from an ice show, Mrs. Birdsong suffered injuries from a slip and fall accident in Hirsch Memorial Coliseum in Shreveport. The plaintiffs contend that Feld failed to protect its patrons from dangerous conditions which Feld knew or should have known existed. The judgment of the trial court is reversed and the matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal to this court involving this claim. In Birdsong v. Hirsch Memorial Coliseum, 39,101 (La.App.2d Cir.12/15/04), 889 So.2d 1232, 1233 (Birdsong I), this court set out the facts:

On March 5, 2000, Sandra Birdsong, her granddaughter and some friends attended a “Disney On Ice” production at Hirsch Memorial Coliseum (“Hirsch”). Birdsong was seated in an upper level row, and at the conclusion of the hour- and-a-half program, she and her granddaughter descended the concrete steps while heading toward the exit. When Birdsong reached the bottom step, she slipped on something wet, fell, and injured her head, elbow and leg.
Birdsong and her husband sued Hirsch and the promoter, Feld Entertainment. Feld filed a cross-claim against the State Fair of Louisiana (“the Fair”), Hirsch, citing an agreement between them for the Fair to be responsible for keeping the arena safe from hazards.

|?Mrs. Birdsong and her husband alleged that both Hirsch and Feld were negligent in the maintenance and inspection of the premises on the night of the accident. Hirsch moved for summary judgment, claiming that there was insufficient evidence to satisfy the burden of proof that Hirsch was negligent. Hirsch contended that Mrs. Birdsong could not prove the origin, duration, or the cause of the spill because there were no witnesses. The trial court granted Hirsch’s motion for summary judgment, but this court later reversed the judgment in Birdsong /, supra. This record reveals the Birdsongs and Hirsch Memorial Coliseum settled their dispute and contains an order dismissing Hirsch from the action, while reserving the Birdsongs’ rights against Feld.

The trial court sustained Feld’s peremptory exception of no cause of action, concluding that the contract stated that Hirsch was solely responsible for the maintenance and safety of the premises. Therefore, Feld owed no duty to inspect or clean the area. In oral reasons, the trial court cited ¶ 2(1) of the contract, which stated that the State Fair was responsible for providing employees and controlling a number of things: “including, but not limited to, the cleaning of the entire spectator premises before moving in, during and pri- or to each performance.” Finding that the State Fair (Hirsch) had the responsibility and the ability to clean, the court noted that Feld could not “have done it if they had wanted to under this contract.”

PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Hayes v. Gallagher Bassett Services, Inc., 41,579 (La.App.2d Cir.12/13/06), 945 So.2d 911, writ denied, 2007-0085 (La.3/30/07), 953 So.2d 73. In Dejoie v. Medley, 41-974, 41,333 (La.App.2d Cir.12/20/06), 945 So.2d 968, this court explained that the exception is triable on the face of the petition, each well-pled fact of which must be accepted as true. There is no requirement that the court accept as true any conclusions of law alleged in the petition. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931.

Appellate courts conduct a de novo review of a district court’s ruling sustaining an exception of no cause of action, because the exception raises a question of law and the district court’s decision should be based only on the sufficiency of the petition. An exception of no cause of action is sustained only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La.3/17/06), 929 So.2d 1211.

La. C.C.P. art. 934 states that:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to |4amend, the action, claim, demand, issue, or theory shall be dismissed.

In their initial petition, the Birdsongs named as defendants Hirsch Memorial Coliseum and Feld Entertainment, Inc. (Ringling Brothers). The plaintiffs stated that, at the conclusion of the program, Mrs. Birdsong and her granddaughter descended the stairs to meet a friend. At the last step, Mrs. Birdsong slipped on something wet and fell, injuring her head, elbow, and leg. She went by ambulance to Willis-Knighton Medical Center Emergency Room. In addition to Mrs. Birdsong’s injuries, which were characterized as severe, disabling and permanent, the Bird-songs sought to recover for Mr. Birdsong’s loss of consortium. Plaintiffs asserted that the defendants were negligent in failing to post a warning sign concerning the dangerous condition of the steps, in neglecting to use reasonable care to have hazard-free premises, in not inspecting the premises, and in committing any other acts of negligence proven at trial. In an amended petition, the Birdsongs asserted that Mrs. Birdsong was hypervigilant and used the utmost care in going down the steps. The plaintiffs also added the following assertions of defendants’ negligence by failure:

• to warn patrons of unreasonable risk of harm due to condition of the facility;

• to properly clean up to maintain a safe environment;

• to implement a proper plan to inspect and remove hazardous and unreasonably dangerous conditions;

• to paint concrete steps -with paint that would not become slippery when wet;

• to provide a safe environment for patrons; and

Is* to remedy unreasonably dangerous conditions of which defendants had actual or constructive knowledge.

The trial court considered and relied upon the contents of the contract of lease between Feld and Hirseh in sustaining Feld’s peremptory exception of no cause of action. La. C.C.P. art. 931 mandates that no evidence may be used to decide the exception of no cause of action. A peremptory exception of no cause of action must be decided on the face of the petition, the allegations of which are presumed to be true. Evidence introduced without objection has been recognized as an exception to the foregoing general rule. In Block v. Bernard, Cassisa, Elliott & Davis, 04-1893 (La.App. 1st Cir.11/4/05), 927 So.2d 339, the court stated that evidence introduced without objection is considered as having enlarged the pleadings. See also, Rebardi v. Crewboats, 04-0641 (La.App. 1st Cir.2/11/05), 906 So.2d 455.

THE LEASE

The lease provided in pertinent part the following:

2. For the engagement of the Ice Show hereunder, Lessor shall, at its sole cost and expense:
(l) Provide, employ and control (I) building superintendent, (ii) sufficient janitors, sweepers, cleaners, restroom attendants and other custodial workers for the proper cleaning of the Coliseum, including but not limited to, the cleaning of the entire spectator premises before move-in, during and prior to each performance ....

Additionally, the lease stated that lessee would maintain public liability insurance from an approved company authorized to do business in 1 (;the State of Louisiana, “naming Lessor and also the City of Shreveport and their respective agents and employees as additional insureds for the Engagement against liability for bodily injuries, including injuries resulting in death, and against liability for property damage.... ” However, claims arising out of the structural or design defects in and of the coliseum or liability resulting from the negligence or negligence per se of the lessor would be excluded.

DISCUSSION

The Birdsongs’ petition and amended petition do not refer to the lease contract. In its memo in support of the exception of no cause of action, Feld attached the February 8, 2000, letter agreement between Feld (Ringling Bros.-Barnum & Bailey Combined Shows, Inc.) and State Fair of Louisiana, which incorporated by reference the attached June 18, 1998, lease between the same parties. The lease period covered Thursday, March 2, 2000, through Sunday, March 5, 2000.

After identifying the issue as to which party had garde of the premises, the trial court at the October 2, 2006, hearing had attorneys “walk me through the contract parts you think are pertinent....” The arguments of both attorneys included references to the contents of the contract. Neither objected to the trial court’s consideration of the contract in reaching its decision. As previously noted, the trial court found that Feld owed no duty to inspect or clean the area, because under the lease contract, Hirsch was solely responsible for the maintenance and safety of the premises.

17A discussion in Pamplin v. Bossier Parish Community College, 38,538 (La. App.2d Cir.7/14/04), 878 So.2d 889, 893, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266, explained liability based upon the concept of garde, noting that garde exists when one has the right of direction and control over things in one’s care.

An individual is responsible for the damage caused by things in his custody. La. C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such care. La. C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect.

In a lease, ownership and possession are generally split, and whether the law imposes the duty of garde on lessor or lessee is a factual question. The lease creates a factual dispute regarding garde and the assessment of fault against the lessor or lessee. Pamplin, supra. Nevertheless, Pamplin observed that a negligence duty to protect guests on leased premises from known defects is uniformly applicable to both lessor and lessee alike.

While the Birdsongs argue that the cases relied upon by Feld are inapplicable, we consider both relevant. In Mix v. Krewe of Petronius, 95-1793 (La.App. 4th Cir.5/22/96), 675 So.2d 792, the City of New Orleans leased the Municipal Auditorium to a Mardi Gras krewe. Mix fell on an inadequately-lighted step painted the same color as the landing. This was found to be an unreasonably dangerous condition by the trial court. | sWhile the lessor/City was held negligent for the unreasonably dangerous condition, the krewe leased the building for only 15 hours and 59 minutes, as opposed to months or years. The krewe had no opportunity to inspect, repaint, or reconfigure the lighting system. The krewe had no garde of the steps, landing, or lighting and was not liable for Mix’s injury.

In contrast, the lessee was liable in Guillory v. Foster, 93-996 (La.App. 3d Cir.3/2/94), 634 So.2d 1372, when Guillory fell on a board the lessee had installed on the dance floor in preparation for building a rail to separate the dancers from the band. On appeal, Guillory wanted the lessor/building owner found liable under La. R.S. 9:3221, which makes an owner responsible for defects in the leased premises about which the owner knew or should have known. After the lessee took possession of the leased premises, the lessee affixed the board to the floor in violation of the lease and without the owner’s knowledge. The lessee had garde (supervision and control) of the dangerous board. The court rejected Guillory’s argument that the board was a structural defect, since the board was an alteration and not a component structural part of the building.

Even if we consider the pleadings enlarged by the consideration of the lease contract requiring Hirsch Coliseum to be responsible for cleaning, the Birdsongs’ action should not have been dismissed. The lease may indicate that Hirsch retained garde of the building and the responsibility for cleaning spills caused by the patrons. However, the lease is a contract ^solely between Hirsch and Feld to which the Birdsongs, the alleged tort victims, were not parties. The Birdsongs were patrons to Feld’s production and under that entertainment agreement were Feld’s guests on the premises. As in our ruling in Pamp-lin, supra, the inquiry into Feld’s responsibility for this accident does not end upon a finding of retained garde in the lessor, Hirsch, because of Feld’s duty of care owed to its patrons which must be further considered under the La. C.C. art. 2315 and our general law of negligence.

The Birdsongs’ petition alleged the existence of an unreasonably dangerous condition of which Feld had knowledge. In our de novo review, we accept the allegations as true for purposes of the peremptory exception. Moreover, in Birdsong I, supra, this court noted that the Birdsongs had shown circumstantially that the wet area where the fall could have occurred resulted from condensation on the floor due to the cold condition from the ice rink.

These allegations are enough to support an independent claim for negligence against Feld which must be considered apart from the asserted retention of garde by Hirsch under the lease. Feld’s duty was to act to protect its patrons from any unreasonable risk of harm, such as the alleged condensation problem, that was caused by a defective condition in the building known to Feld. The party with garde may be liable for its connection to the defect because of its ownership and possession. Regardless of that garde, Feld may be liable for its knowledge of the | indefective condition of the premises with its solicitation of patrons to the allegedly defective setting.

In addition to the reliance on the lease contract, the Birdsongs’ attorney cited the depositions and affidavits filed into the record supporting and opposing the motion for summary judgment litigated in Birdsong I, supra. Clearly this dispute is inappropriate for resolution via a peremptory exception of no cause of action.

The Birdsongs’ alternative to recovery would be to show Feld’s responsibility for a spill made by a member of the public. The opinion in Birdsong I, supra, at pp. 1235-1236, discussed that burden:

In Holden v. Louisiana State University Medical Center-Shreveport, 29,268 (La.App.2d Cir.2/28/97), 690 So.2d 958, writ denied, 97-0797 (La.5/1/97), 693 So.2d 730, we reviewed Louisiana’s negligence law for slip and falls in public places where a member of the public is the most likely source of a substance spilled on the floor. Though the special merchant statute, La. R.S. 9:2800.6, was inapplicable for the hospital/defendant in Holden, we concluded that in merchant and non-merchant settings alike, the following applies:
In the absence of proof that the hazardous spill was caused by the defendant’s own actions, the duty to keep the premises in a safe condition must be shown to have been breached by some proof of an inadequate inspection procedure. From our review of the slip and fall cases, the burden of producing such evidence is now clearly back on the plaintiff in the storekeeper/merchant context, and it was never removed from the plaintiffs burden in the non-merchant setting such as this case.

Id. at 964.

La. R.S. 9:2800.6(A) defines the merchant’s duty as follows:

A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his Inaisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

DECREE

For the foregoing reasons, we reverse the judgment granting Feld Entertainment, Inc.’s exception of no cause of action and dismissal of the Birdsongs’ action. This matter is remanded for further proceedings. Costs of this appeal are assessed against Feld Entertainment, Inc.

REVERSED AND REMANDED.

      . In Birdsong I, plaintiffs named as defendant Hirsch Memorial Coliseum, which filed its answer in that name. The other named defendant was Feld Entertainment, Inc. (Ringling Brothers). State Fair of Louisiana (Hirsch) and Ringling Bros.-Barnum & Bailey Combined Shows, Inc. (Feld) are the parties to the February 8, 2000, letter agreement (on Feld Entertainment, Inc. letterhead) and the June 18, 1998, contract incorporated by reference. There is no answer to Feld's cross-claim against State Fair of Louisiana. The nature of that State Fair entity and its relationship with Hirsch is unexplained. This ambiguity hampered neither the parties nor the trial court during the course of the litigation, since apparently all agreed as to the nature and identity of the Hirsch/State Fair defendant and the Feld/Ringling Bros, defendant.

      . In Borden v. West Carroll Parish Police Jury, 28,967 (La.App.2d Cir. 12/11/96), 685 So.2d 454, this court suggested, but did not state, that the evidence could have been considered on the exception of no cause of action had the record contained a transcript or factual narrative demonstrating that the evidence had been introduced without objection.

      . In Birdsong I, supra, the contract was made part of the record and used by the trial court and this court in deciding the merits of Hirsch’s motion for summary judgment.


text:
    STATE of Louisiana, Appellee, v. Richard KENNEDY, Appellant.
    No. 42,087-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2007.

      Louisiana Appellate Project by James Edward Beal, for Appellant.
    Paul Joseph Carmouche, District Attorney, J. Dhu Thompson, John Ford McWil-liams, Jr., Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   DREW, J.

11 Richard Kennedy pled no contest to unauthorized use of collateral securities. La. R.S.14:201(1). He received, as agreed, a five-year hard labor sentence, all suspended, with five years of supervised probation. The agreement was that the court set the amount of restitution. After a hearing, the court did so, fixing the amount as payment of $53,190.71, all owed to Citizen’s Bank (“Bank”) as restitution. The defendant now appeals the amount of restitution. We affirm, with instructions.

FACTS

The material facts are uncontroverted. In December 2001, the defendant (as the owner/operator of Ark-La-Tex Marine) entered into a “floor plan” loan agreement with the Bank which allowed the defendant a revolving line of credit up to $101,045.00 for the purchase of boats, motors, and trailers. To secure this line of credit, Kennedy granted the Bank a security interest in “all inventory” as collateral. As each boat product was sold, defendant was supposed to pay the invoice amount to the Bank.

Kennedy became ill in early 2002, and the business suffered. In March of that year, an independent audit revealed that the products were being sold out of trust without payment to the Bank. The defendant went broke and closed his business in July 2002.

In August 2002, the defendant was charged by bill of information, originally pleading not guilty. In February 2005, he withdrew his former plea and pled nolo contendere as charged. The terms of the plea bargain were that, in exchange for the no contest plea, defendant would receive the sentence as outlined before, with only the amount and conditions of 12restitution being left up to the discretion of the trial court at a restitution hearing. All terms and conditions of the plea were agreed upon, with the exception of restitution.

A hearing was held on May 31, 2006, at which time the Bank’s business records showed an outstanding principal balance of $53,190.71, and another $17,741.26 in lost accrued interest. These amounts were confirmed at the hearing by Robert Yanich (the Bank’s current asset manager) and Beverly McMillan (the Bank’s former compliance officer who served in that capacity at the time of defendant’s loan and default).

At the restitution hearing, Kennedy admitted his noncompliance with the loan agreement. He contended, however, that when he closed his business in July 2002, he had approximately $82,089 worth of inventory (consisting mostly of used boat products that were traded in by customers for the purchase of new boat products). He asserted that the value of this inventory was more than enough to cover the outstanding balance on his loan. During cross-examination, Ms. McMillan acknowledged that there were used boat products in defendant’s remaining inventory, but the Bank was not able to sell them because it did not believe that it had lawful title to the products. The only payments or proceeds applied against the balance of defendant’s loan were made on March 8, 2002 (principal), April 1, 2002 (principal), April 2, 2002 (principal), June 12, 2002 (principal), and November 13, 2002 (interest), respectively, thus reducing the principal loan | abalance to $53,190.71. As of May 31, 2006, no other payments or proceeds were applied against the loan balance.

At the hearing, neither the state nor the defense presented any testimony or evidence regarding defendant’s current earning capacity, his remaining assets, or lack thereof. The record does not even reflect whether defendant was employed as of May 31, 2006.

At the conclusion of the hearing, the learned trial court set the amount of restitution at $53,190.71, to be paid monthly during the probationary period. The trial court further stated that:

[I]f it’s determined that there are some credits that have not been credited to Mr. Kennedy’s account at some later date but that should be, then any credits against that balance are to be provided to the probation office, and the Court will give him credit for that, any credits that he would have due based on that amount.

DISCUSSION

Defendant’s Alleged Indigency

The defendant did not request reconsideration of the sentence, nor of the amount of restitution, but instead filed a motion for appeal. In his motion, he requested “to have an attorney appointed to him because of his financial situation and his inability to afford an attorney.” The trial court granted an order of appeal but denied defendant’s request for appointment of appellate counsel' because there was no showing of indigency.

|4Months later, in January 2007, both defendant and his trial counsel filed motions with this court. Defendant sought an extension of time within which to file his appeal brief. His lawyer sought to withdraw and requested that the case be remanded to the trial court for an indigen-cy hearing to appoint appellate counsel. On January 4, 2007, this court did so, ordering:

As no inquiry has been made regarding the defendant’s present financial situation, the trial court is hereby directed to conduct necessary proceedings in accordance with La. R.S. 15:147 for a determination of indigency within 45 days of the date of this order and, if necessary, to appoint counsel for the appeal.
The defendant’s current attorney, Robert Thompson, who did not withdraw from his representation of the defendant at the conclusion of the trial proceedings, and is thus still attorney of record in this appeal, shall be directed by the trial court to participate in any necessary proceedings to determine the defendant’s indigency and his representation on appeal. The trial court is directed to cause the supplementation of the appeal record, in duplicate certified original, with the minutes, transcript and any orders arising from the proceedings we now direct, within 60 days of this order.

The trial court subsequently supplemented the appeal record with the following minute entry dated January 29, 2007:

The accused, PRESENT with counsel, Rob-ERT Thompson, counsel FOR the accused MADE AN ORAL MOTION TO WITHDRAW AS COUNSEL. Said motion was submitted and GRANTED. THE ACCUSED STATED TO THE COURT THAT HE IS UNABLE TO HIRE COUNSEL, AND THE COURT APPOINTED THE APPELLATE PROJECT AS COUNSEL FOR THE ACCUSED.
(Judge R. Emanuel)

The instant appeal involves an agreed sentence with a contested special condition of probation, as to the amount of restitution.

| ¡¡Conditions of probation are tangential to sentencing, and reviewable for errors patent. See State v. Lam, 36,862 (La.App.2d Cir.2/11/03), 837 So.2d 749, writ denied, 2003-0945 (La.10/3/03), 855 So.2d 308.

When a defendant is placed on probation, it may impose any specific condition of probation that is reasonably related to rehabilitation, including a requirement of making reasonable restitution to the aggrieved party for direct losses caused by his offense. See La. C. Cr. P. art. 895.1.

The trial court ordered defendant to pay the Bank $53,190.71 in monthly installments during the term of his probation, or $886.51 per month ($53,190.71 divided by 60 months). Although the trial court recognized that this amount was “a large, substantial amount,” this record does not reflect anything relative to defendant’s financial condition at the time of the hearing, including his income or funds from employment or any other source, property owned by him or in which he has an economic interest, outstanding obligations, number and ages of dependents, or job training history. There is no pre-sentence investigation report. These facts preponderate that a standard PSI would have been very helpful.

Defendant’s financial condition is significant because unless the restitution amount is “reasonable” based on defendant’s earning capacity and assets, such a requirement for an indigent person serves no rehabilitative purpose and would be constitutionally excessive on its face. See State v. Carey, 392 So.2d 443 (La.1981); State v. Stephenson, 32,931 (La.App.2d Cir.3/10/00), 755 So.2d 373, writ denied, 2000-1239 (La.2/9/01), 785 So.2d 28.

| (¡Adjustments and credits to the amount of restitution must be addressed by the trial court, not the probation department. See State v. Peters, 611 So.2d 191 (La.App. 5th Cir.1992). See also State v. Dauzat, 590 So.2d 768 (La.App. 3d Cir.1991), writ denied, 598 So.2d 355 (La.1992). Because the trial court made no findings on the record as to the issue of credits even though defendant devoted much of his testimony and evidence to that issue, it is unclear whether the court found that defendant’s testimony was not credible or whether it merely decided to leave that determination to the probation office, or whether there was another reason.

The learned trial court did an excellent job in determining the amount of restitution, and we affirm its ruling in the matter. However, should our sister judge consider revocation in the future, these issues must be examined or re-examined at or before any revocation hearing:

• whether defendant is entitled to appointed counsel on the trial level, based on his financial situation at that time;

• whether the trial court should adjust any outstanding principal loan balance in any way, as to any credits due;

• whether defendant’s present earning capacity and assets continue to justify the amount determined by the court;

• whether any civil suits or bankruptcy proceedings justify an adjustment to the restitution amount;

|7« whether the bank s claim should be reduced on account of any security interest validly possessed by the bank at the time defendant walked away from the business; and

• whether the Bank wasted or sold these assets in detriment to defendant’s rights.

, We affirm the trial court’s fixing of the amount of restitution. We instruct the trial court to examine the questions noted herein, before entertaining the option of revocation, in the event of nonpayment.

DECREE

AFFIRMED, WITH INSTRUCTIONS.

      . Defendant valued his inventory, including parts and accessories, at $67,329; furniture and fixtures were valued at $14,760. These amounts total $82,089.

      . At the hearing, defense counsel made references to a purported civil suit that the Bank filed against defendant. We do not know, however, when the lawsuit was filed, what the lawsuit concerned, its outcome, or whether it is still pending. Though he claimed that he was bankrupt, we also don't know whether or not he availed himself of the protection of a formal bankruptcy proceeding.

      . Defendant agreed that some restitution would be made as a special condition of probation.

      . Probation condition that ordered restitution in lump sum and left probation department to determine if sufficient amount had been paid each month was insufficient to fulfill statutory requirement that court set amount of restitution and, thus, remand was required to afford court opportunity to consider earning capacity and assets of defendant and set more determinate amount of restitution.

      .When a sentencing judge orders a defendant to make restitution to a victim, La. C. Cr. P. arts. 895(A)(7) and 895.1(A) require the trial court, not the probation officer, determine the amount of restitution — this error cannot be corrected by the appellate court.


author: WALLER, Presiding Justice,

text:
    Charles C. EDWARDS and Mississippi Democratic Party State Executive Committee v. Mary Ann STEVENS.
    No. 2007-EC-00710-SCT.
    Supreme Court of Mississippi.
    May 31, 2007.
    Beth Burton, Wayne Dowdy, Magnolia, attorneys for appellants.
    Ben J. Piazza, Jr., attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

Statement of the Case

¶ 1. Incumbent Representative Mary Ann Stevens timely filed qualifying papers with the Mississippi Democratic Party State Executive Committee (MDPSEC) for the purpose of being certified as a candidate for the House of Representatives, District 48, in the August 7, 2007, party primary election. Stevens received a letter on March 16, 2007, notifying her that her qualifications were being challenged and that a hearing was set for March 17, 2007. Stevens asserts that her party loyalty was questioned at the hearing and that the MDPSEC refused to certify her as a candidate for the Democratic Party on that basis. The MDPSEC did however certify Charles C. Edwards as a candidate for the post.

¶ 2. Stevens filed a petition for judicial review in the Hinds County Circuit Court on March 20, 2007, and Special Judge Billy Joe Landrum was appointed to hear the matter. On April 20, 2007, the court entered an agreed order which declared Stevens to be qualified for certification as a candidate for House District 48 in the Democratic Party Primary Election. All costs were assessed to the MDPSEC.

¶3. The court next held a hearing on April 26, 2007, to determine whether Charles Edwards was qualified to be certified as a candidate based on a challenge to his residency. Judge Landrum issued his opinion the next day finding that Edwards had not lived in the district for two years prior to the election. Judge Landrum ordered that Edwards’ name be removed from the ballot. The present appeal comes from that judgment. Consistent with Miss.Code Ann. § 28-15-961(6) (Rev. 2001), we have treated this appeal as a preference case, stayed proceedings below pending this decision, and expedited briefing and our decision.

Analysis

¶ 4. The Mississippi Constitution provides and requires that a candidate for the House of Representatives live/reside in the district which he will serve for a period of two years immediately preceding the election. Miss. Const, art. 4, § 41. The general election for House District 48 will take place on November 6, 2007. A potential candidate must therefore be able to prove residency in the district since at least November 7, 2005.

¶ 5. Within the context of a challenge to the qualifications of an election candidate, all questions of law will be reviewed de novo. Ladner v. Necaise, 771 So.2d 353, 355 (Miss.2000) (citing Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000)). We review questions of law de novo, and we review findings of fact by a trial judge sitting without a jury for manifest error, i.e., whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence. Boyd v. Tishomingo Co. Democratic Exec. Comm., 912 So.2d 124, 128 (Miss.2005).

¶ 6. At the hearing, Edwards testified that, despite periodically living outside the district, he always intended to return to establish a permanent residence. Both sides agree that Edwards grew up on his parents’ farm in House District 48, where the mailing address is 27586 Highway 17 North, Lexington, Mississippi, and that Edwards left home to attend college and law school. The parties disagree as to whether Edwards intended to return and took steps to accomplish that purpose.

¶ 7. Edwards’ own testimony reflects that, after graduating from law school, he lived in Greenwood for ten months while employed as a law clerk. Edwards next rented an apartment in Hattiesburg while he worked in the Hattiesburg office of Boutwell and Gowan. Thereafter, Edwards returned to Holmes County where he continued to work for Boutwell in the Lexington office. Edwards claimed that he did not live in Boutwell’s in-town house although he had residential telephone service there as evidenced by the local phone directory for 2003-2004. Edwards admitted that he stayed there quite often and kept furniture and clothes there. The in-town location was not in House District 48.

¶ 8. In August 2003, Edwards purchased a house located at 417 Boulevard Street, Lexington. He married Angela Acy in September 2003, and the two moved into the home together. This home was not located in House District 48. In June 2006, the two filed a joint complaint for divorce in the Holmes County Chancery Court and declared the marital residence to be 417 Boulevard Street. The document recited that Edwards abandoned the marital home on April 28, 2006.

¶ 9. Edwards offered proof that he was registered to vote in House District 48 and that the voter profile reflected the Highway 17 address. He also testified that he had intended to buy a house and lot across the street from his parents’ farm but had not done so. He registered his cars at the Highway 17 address but kept them in town.

¶ 10. Edwards testified that in January 2007, he filed an application claiming homestead exemption for the property at 417 Boulevard Street. He admitted that he later sought to withdraw the exemption claim on March 9, two days after his residency qualification was challenged. “[T]he filing of a homestead exemption conclusively establishes domicile for electoral purposes.” Gadd v. Thompson, 517 So.2d 576, 579 (Miss.1987), overruled in part by Foster v. Harden, 536 So.2d 905, 907 (Miss.1988). In that case, a would-be candidate (Gadd) filed a homestead exemption claim only to later withdraw it and repay the tax assessor after learning of the filing’s adverse impact on his qualification for candidacy in another voting district. We did not find the repayment persuasive and observed that condoning such a practice could result in very undesirable consequences. Id. While no longer conclusive as a matter of law, the filing of a homestead exemption claim still creates a strong but rebuttable presumption of residency. Hinds Co. Election Comm’n v. Brinston, 671 So.2d 667, 669 (Miss.1996).

¶ 11. Edwards is required to “show absolute proof, he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office.” Miss.Code Ann. § 23-15-299(7) (Supp. 2006) (emphasis added). ' If he fails to prove absolutely any one of the qualifications, his name may not be placed on the ballot. Cameron v. Miss. Republican Party, 890 So.2d 836, 838 (Miss.2004). Edwards must show residency in House District 48 for the two years prior to the 2007 general election on November 6. The record clearly shows that Edwards resided outside the district from November 2005 until April 2006, when he abandoned the marital home.

¶ 12. We expressly reject Edwards’ contention that he had actually lived in House District 48 following graduation from law school as well as for the two years preceding this year’s general election. His testimony and employment have shown otherwise. Likewise unpersuasive is his argument that it was always his intention to return to House District 48. The record belies that notion also. Edwards has simply failed to meet all the requirements for certification to the House District 48 ballot for the 2007 general election.

CONCLUSION

¶ 13. The judgment of the special judge is affirmed and the prior stay issued by this Court is hereby vacated. The motion to transcribe and receive the record is dismissed as moot. Because of the expedited requirements set out by Miss.Code Ann. § 23-15-961(6) (Rev.2001), any motion for rehearing shall be filed no later than Monday, June 4, 2007. Any response thereto shall be filed no later than Wednesday, June 6, 2007.

¶ 14. AFFIRMED.

SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.


author: DIAZ, Presiding Justice,

text:
    GENERAL AMERICAN LIFE INSURANCE COMPANY v. Stephen McCRAW.
    No. 2004-CA-01417-SCT.
    Supreme Court of Mississippi.
    June 7, 2007.

      Fred L. Banks, Jr., Jackson, Brooke Ferris, Richard 0. Burson, Laurel, Rebecca L. Hawkins, Jackson, attorneys for appellant.
    Mariano Javier Barvié, Gulfport, attorney for appellee.
    Before WALLER, P.J., DIAZ, P.J., and CARLSON, J.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. This case concerns when a principal must indemnify its agent.

Facts and Course of Proceedings Below

¶ 2. The facts that give rise to this case are undisputed. Steve McCraw, acting as an insurance agent for General American Life Insurance Company, sold a life insurance policy to Harlena Jones. Jones later filed suit in Jasper County Circuit Court against McCraw and General American for a variety of reasons, including fraud, for selling her what is known as a “vanishing premium” policy. McCraw requested that General American defend him in the suit. The company declined, and McCraw filed a crossclaim against his principal for failure to indemnify and for emotional distress.

¶ 3. After verdict, General American settled with Jones, who had obtained a judgment against the company and in her favor. The jury trial resulted in separate verdicts of $150,000 in compensatory damages and one million dollars in punitive damages in favor of McCraw in his action against the company. General American filed a motion for judgment notwithstanding the verdict. The trial court granted the JNOV in part, vacating the punitive damage award, but declined to overturn the award of compensatory damages.

¶ 4. Aggrieved, General American appeals, citing errors in the trial, and McCraw cross-appeals the trial court’s grant of JNOV vacating the punitive damages.

Standard of Review

¶ 5. When reviewing the grant or denial of a JNOV, we consider the evidence in the light most favorable to the appellee, and give that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Blake v. Clein, 903 So.2d 710, 731 (Miss.2005). If the facts considered in that light point so overwhelmingly in favor of the party requesting the JNOV that reasonable persons could not have arrived at a contrary-verdict, we will reverse and render. Id.

¶ 6. If there is substantial evidence in support of the verdict we will affirm the denial of the JNOV. Id. “Substantial evidence” is information of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions. Id. When examining questions of law, we conduct a de novo review. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000).

I. Indemnity between a Principal and an Agent.

¶ 7. We must first determine whether General American had a duty to indemnify McCraw. Indemnification is not automatic, but can only be found after certain factors are met.

¶ 8. We previously addressed principal-agent indemnification in Mutual Life Insurance Co. of New York v. Wesson, where we detailed the requirements for a finding of indemnification where an agent is sued and there is no explicit contract for indemnification. 517 So.2d 521, 535 (Miss.1987). At the time, we held that “[u]nless otherwise agreed, a principal is subject to a duty to exonerate an agent who is not barred by the illegality of his conduct to indemnify him for ... expenses of defending actions by third persons brought because of the agent’s authorized conduct, such actions being unfounded but not brought in bad faith.” Id. (quoting Restat. 2d of Agency, § 439). Under that version of the Restatement, the conduct of the agent must have been authorized and the defense against the suit must have been successful.

¶ 9. In the time since Wesson was decided, the authors of the Restatement have clarified the requirements to satisfy indemnification. The Restatement Third sets out that:

A principal has a duty to indemnify an agent
(1) in accordance with the terms of any contract between them; and
(2) unless otherwise agreed,
(a) when the agent makes a payment
(I) within the scope of the agent’s actual authority, or
(ii) that is beneficial to the principal, unless the agent acts officiously in making the payment; or
(b) when the agent suffers a loss that fairly should be borne by the principal in light of their relationship.

Restatement (Third) of Agency, § 8.14 (2006). This modern approach is more streamlined in its application than the previous test we adopted in Wesson, and provides better guidance to trial courts and practitioners in determining when indemnity is warranted. Accordingly, we adopt the Restatement Third approach to determining whether there is a duty to indemnify between a principal and an agent and abandon the previous test set out in Wesson.

A) Is McCraw Entitled to Indemnity?

¶ 10. Under the Restatement Third, there are four ways an agent may obtain indemnity from a principal. The applicable section to the evidence in this case is part 2(b). Whether McCraw suffered a loss which should fairly be borne by General American is a question for a jury to resolve. We note for clarification that “[a] principal does not have a duty to indemnify an agent against losses caused by unauthorized action taken by the agent that did not benefit the principal or losses caused solely by wrongful acts committed by the agent.” Restatement (Third) of Agency, § 8.14 cmt. d (2006). Whether an agent was acting under the scope of authority is a question for the jury. Pittman v. Home Indem. Co., 411 So.2d 87, 90 (Miss.1982).

¶ 11. Accordingly, we reverse and remand for a jury to determine whether McCraw suffered a loss which, in light of the relationship between McCraw and General American, should fairly be borne by the company.

B) What damages are warranted in a claim for indemnification?

¶ 12. At trial, McCraw was awarded $150,000 in actual damages and one million dollars in punitive damages for General American’s refusal to indemnify him at trial. General American asked the trial court for a judgment notwithstanding the verdict regarding the punitive damages award. The trial court agreed with the motion and eliminated the punitive award. On appeal, General American argues that one may not recover more than the expenses and fees associated with obtaining indemnity, and that damages for emotional distress are improper. McCraw seeks reinstatement of the punitive damages award previously vacated by the trial court.

I) Punitive Damages.

¶ 13. McCraw’s argument for punitive damages centers on an analogy to bad-faith refusal to defend. However, as noted supra, indemnification is not like the duty to defend, which may attach immediately upon suit. It is also not governed by what is contained in a complaint. “The right to indemnification for litigation expenses should not depend on the pleading choices of a third party, who through an excess of caution or optimism, may allege far more than he can prove at trial.” INA Ins. Co., 150 Ariz. at 254, 722 P.2d 975.

¶ 14. Rather, it is generally accepted that principal-agent indemnity is a form of reimbursement, generally for legal fees. “[A] basic principle of indemnity” is that “[t]he right exists when there is a legal obligation on the indemnitee to pay or a sum is paid by him for which the indemnitor should make reimbursement.” Id. at 253, 722 P.2d 975; see also Zontelli & Sons, Inc. v. Nashwauk, 373 N.W.2d 744, 755 (Minn.1985) (“indemnity usually requires that one party reimburse another entirely for its liability”); Allen v. Standard Oil Co., 2 Ohio St.3d 122, 126, 443 N.E.2d 497 (Ohio 1982) (“when an indem-nitor wrongfully refuses to defend an action against an indemnitee, the indemnitor is liable for the costs, including attorney fees and expenses, incurred by the indem-nitee in defending the initial action and in vindicating its right to indemnity in a third-party action brought against the in-demnitor”).

¶ 15. “The traditional rule of strict indemnity requires the indemnitor to reimburse only actual loss and not to discharge the liability of the indemnitee ... and thus one who agrees to indemnify against loss should not be required to pay more than what is actually lost.” Hernandez v. Great American Ins. Co., 464 S.W.2d 91, 93-94 (Tex.1971). Indemnification is for reimbursement of the costs related to defending the action and pursuing indemnification. Accordingly, punitive damages for refusing to immediately indemnify an agent are not recoverable. The trial court was therefore correct in granting General American’s motion for JNOV on the issues of punitive damages, as punitive damages cannot be claimed in an action for indemnification.

ii) Damages for Emotional Distress.

¶ 16. A portion of the damages assessed against General American were for McCraw’s alleged emotional distress. As established supra, indemnity is a vehicle for the reimbursement of an agent by a principal. Emotional distress damages are not a component of reimbursement and therefore cannot be awarded in an action for indemnification.

iii) Attorney’s Pees and Expenses.

¶ 17. The comment to the Restatement Third notes that “[t]he agent’s right [to indemnity] is limited to recovery of expenses and losses in amounts that are reasonable.” Such expenses and losses include “attorney fees and expenses ... incurred by the indemnitee in defending the initial action and in vindicating its right to indemnity in a third-party action brought against the indemnitor.” Allen, 2 Ohio St.3d at 126, 443 N.E.2d 497. McCraw asserted that he incurred $44,156.95 in attorneys’ fees and expenses pursuing his defense. Previously, McCraw’s attorneys’ fees and expenses were bundled with the other damages. We remand for a jury trial to determine what expenses were actually incurred by McCraw; that amount is the value of his indemnity by General American if the jury concludes indemnification is warranted.

Conclusion

¶ 18. There are certain times when a principal must indemnify an agent, even if there is no written contract guaranteeing indemnification. Indemnity is proper if an agent suffers a loss that fairly should be borne by its principal; this determination is for a jury. This indemnification includes costs and fees associated with defending the primary suit against her and in establishing that her principal should indemnify her. However, indemnification is limited to a reimbursement for those fees and expenses that are actually incurred and does not include other damages, such as damages for emotional distress or punitive damages.

¶ 19. Accordingly, the trial court is reversed and rendered regarding the award of damages to McCraw for emotional distress; reversed and remanded for a determination of whether McCraw has suffered a loss that fairly should be borne by General American; and affirmed regarding McCraw’s cross-appeal of the JNOV dismissing punitive damages against General American.

¶ 20. ON DIRECT APPEAL: REVERSED & REMANDED IN PART; REVERSED & RENDERED IN PART. ON CROSS-APPEAL: AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. EASLEY, J., NOT PARTICIPATING.

      . McCraw repeatedly refers to indemnification as a "duty to defend.” However, that term is more properly used in the context of a relationship between an insured and an insurer. See generally INA Ins. Co. v. Valley Forge Ins. Co., 150 Ariz. 248, 255, 722 P.2d 975 (Ariz.Ct.App.1986) (“The duty to defend arises at the earliest stages of litigation and generally exists regardless of whether the insured is ultimately found liable,” while "[t]he duty to indemnify depends on whether the indemni-tee engaged in actual, active wrongdoing”).