author: WELCE, J. GAIDRY, J.

text:
    Godfrey J. and Lydia BERGERON v. ARGONAUT GREAT CENTRAL INSURANCE COMPANY, et al.
    No. 2006 CA 0813.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.
    Writ Denied March 23, 2007.

      John 0. Charrier, Jr., G. Bruce Kuehne, Baton Rouge, LA, for Plaintiffs — Appel-lees, Godfrey J. and Lydia Bergeron.
    Eric J. Halverson, Jr., Metairie, LA, for Defendants — Appellants, Frank Billeau-deau, Elsa Billeaudeau, d/b/a Jazz Seafood & Steakhouse, and Argonaut Great Central Ins. Co.
    Craig R. Nelson, New Orleans, LA, for Defendant — Appellee, La. Dept, of Health and Hospitals.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   WELCE, J.

| ¡/This is an appeal by Frank Billeaudeau and Elsa Billeaudeau, d/b/a Jazz Seafood & Steakhouse and Argonaut Great Central Insurance Company (collectively referred to as “Jazz”) from a summary judgment dismissing, with prejudice, the State of Louisiana, Department of Health and Hospitals (“DHH”) from the plaintiffs’ action for damages arising out of the consumption of raw oysters. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On July 28, 2001, Godfrey Bergeron ate approximately one dozen raw oysters in the oyster bar at the Jazz Seafood & Steakhouse in Kenner, Louisiana. Approximately two to three days later, Mr. Bergeron became very ill and was admitted to the Medical Center of Southwest Louisiana. Mr. Bergeron was diagnosed with a vibrio vulnificus infection, a flesh-eating bacterial infection, which he contracted from ingesting raw oysters that contained the vibrio vulnificus bacteria. As a result of the vibrio vulnificus infection, Mr. Bergeron required an extensive hospital stay, incurred significant medical expenses, and sustained permanent damage to his nerves and skin.

On June 19, 2003, Mr. Bergeron and his wife instituted this action for damages against Jazz and DHH. Specifically with regard to Jazz, the plaintiffs alleged that Jazz was obliged by the Louisiana sanitary code to, but did not, post a warning to susceptible persons of the dangers of eating raw oysters, and alternatively, that any warning which it posted was inadequate and was hidden or so inconspicuous that it was inadequate. With regard to DHH, the plaintiffs alleged that DHH had an affirmative duty to cause restaurants, such as Jazz | ^Seafood & Steakhouse, to post warnings about the dangers of eating raw oysters and that DHH failed to perform duty.

The DHH moved for summary judgment alleging that it could not be held liable to the plaintiffs for any damages suffered as a result of eating raw oysters because it had complied with its obligation to enforce the sanitary code with regard to Jazz Seafood & Steakhouse, and therefore, DHH sought dismissal from these proceedings. Jazz filed an opposition to the motion for summary judgment on the basis that the dismissal of DHH from the plaintiffs’ lawsuit would deprive it of a comparative offset for any fault attributable to DHH with regard to the presence and adequacy of the warnings. On December 22, 2004, the trial court signed a “final judgment” granting DHH’s motion for summary judgment and dismissing the plaintiffs’ claims against it with prejudice, and on March 14, 2005, the trial court signed a judgment denying Jazz’s motion for new trial. It is from these two judgments that Jazz has appealed.

II. SUMMARY JUDGMENT LAW

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. MSOF Corp. v. Exxon Corp., 2004-0988, p. 17 (La.App. 1st Cir. 12/22/05), 934 So.2d 708, 720, writ denied, 2006-1669 (La.10/6/06), 938 So.2d 78. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); MSOF, 2004-0988 at pp. 6-7, 934 So.2d at 714.

III. LAW AND DISCUSSION

In this case, the plaintiffs’ petition for damages is against both Jazz and DHH and is based on negligence. In Louisiana, a defendant’s liability for its negligence is determined by using the traditional duty-risk tort analysis, which requires the plaintiff to prove five essential elements: (1) duty (proof that the defendant had a duty

to conform his conduct to a specific standard); (2) breach of duty (proof that the defendant’s conduct failed to conform to the appropriate standard); (3) cause-in-fact (proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries); (4) scope of liability or scope of protection (proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries); and (5) damages (proof of actual damages). Perkins v. Entergy Corp., 2000-1372, p. 7 (La.3/23/01), 782 So.2d 606, 611. Moreover, “[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined.... ” La. C.C. art. 2323.

In 1991, due to the growing number of cases of vibrio vulnificus infections arising from the consumption of raw oysters, the DHH published a rule in the sanitary code requiring all restaurants that sell or serve raw oysters to provide clearly visible warnings about the consumption of raw shellfish at the point of sale. See Gregor v. Argenot Great Central Ins. Co., 2002-1138, pp. 1-2 (La.5/20/03), 851 So.2d 959, 961. This rule is presently set forth in La. Admin. Code 51:XXIII.1109 and it provides, in pertinent part, as follows:

A. All establishments that sell or serve raw oysters must display signs, menu notices, table tents, or other clearly visible messages at point of sale with the following wording: “THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.” ...

In Gregor, the Louisiana Supreme Court held that DHH has a mandatory duty to properly enforce this provision of the sanitary code by ensuring that every restaurant post sufficient warnings regarding the health hazards associated with the ingestion of raw oysters at the “point of sale.” In Gregor, the court determined that the “point of sale” was at the dining room table where the raw oysters were ordered. Although the restaurant had an oyster warning sign posted in its oyster bar, since there were no signs, menus notices, table tents, or other clearly visible messages conveying the warning in the dining room where the order for oysters was made, DHH was held liable for damages resulting from its negligent failure to enforce this provision at the “point of sale.” Gregor, 2002-1138 at pp. 12-13; 851 So.2d at 967-68. However, the Supreme Court reversed the appellate court’s finding that DHH was 75% at fault for its negligent enforcement of the sanitation code and that the restaurant was 25% at fault and it changed the apportionment of fault to 50% each. The basis for the increasing the restaurant’s fault was the fact that not only did the restaurant fail to give any warning to patrons who ordered raw oysters in its dining rooms, which accounted for 20-25% percent of its sales of raw oysters, but it also “failed to give adequate warning to its oyster bar patrons because the clutter surrounding the signage.” Gregor, 2002-1138 at pp. 16-17; 851 So.2d at 970. Thus, on the issue of the failure to place any warnings at the “point of sale,” both the restaurant and the DHH were held responsible. However, the “clutter” issue with regard to the warnings at the oyster bar was attributable solely to the restaurant.

Accordingly, in this case, DHH had a mandatory duty under the sanitary code to ensure that Jazz Seafood & Steakhouse posted adequate warnings regarding the consumption of raw shellfish at the “point of sale.” DHH contends, in its motion for summary judgment, that it fulfilled its duty under the sanitary code with regard to Jazz Seafood & Steakhouse, that there is an absence of factual support that DHH breached this — an element essential to their negligence claim — and therefore, DHH cannot be held responsible to the plaintiffs for any damages sustained as a result of the consumption of raw oysters by Mr. Bergeron.

In support of its motion for summary judgment, the DHH submitted the deposition testimony of Clarence Hebert Francis, a sanitarian employed by DHH. According to Mr. Francis’s testimony, as a sanitarian, his duties included inspecting any “retail food operation” (restaurants, grocery stores, or any other place where retail food was sold) in the city of Kenner to ensure that those places complied with their responsibilities under the sanitary code, including the obligation to post notices or warning pertaining to the consumption of raw |7shellfish. Mr. Francis testified that DHH guidelines provided that restaurants were to be inspected at least four times a year, and that he was responsible for inspecting the Jazz Seafood & Steakhouse in 2000 and in 2001. Mr. Francis testified that he never cited Jazz Seafood & Steakhouse for the failure to comply with posting the official notice pertaining to eating raw shellfish, that Jazz Seafood complied with the warning requirements for raw shellfish by posting three to four notices at the oyster bar and by placing the warning on its menu, and that the warnings were visible and legible.

According to the documentary evidence submitted during Mr. Francis’s deposition testimony, the warning signs at the oyster bar at Jazz Seafood & Steakhouse provided: “WARNING: THERE MAY BE A RISK ASSOCIATED WITH, [sic] CONSUMING RAW SHELLFISH (OYSTERS), IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER OR BLOOD OR IMMUNE DISORDER. YOU SHOULD EAT THESE PRODUCTS FULLY COOKED!!!” Additionally, the warning on the menu at Jazz Seafood & Steakhouse provided: “WARNING THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED!!!”

Mr. Francis acknowledged that there was a slight difference between the warning signs posted at the oyster bar (and on the menu) at Jazz Seafood & Steakhouse and the warning required by the sanitary code; however, Mr. Francis stated that the warnings in place at Jazz Seafood & Steakhouse accomplished the purpose of the sanitary code provision, which was to warn consumers of the dangers of eating raw oysters. In fact, Mr. Francis stated that the notices posted at Jazz Seafood & Steakhouse were a little “stronger” than that required by the ^sanitary code because the word “warning” appeared in its notice (which is not required by the sanitary code provision), and because Jazz Seafood & Steakhouse’s notice specifically referenced both oysters and shellfish rather than just shellfish.

Lastly Mr. Francis testified that after he received a complaint about the incident involving Mr. Bergeron, he went to Jazz Seafood & Steakhouse on July 31, 2001, and the oyster warning notices were present at the oyster bar and on the menu.

In opposition to DHH’s motion for summary judgment, Jazz contends that there are genuine issues of material fact as to whether there were any oyster warnings in place in the restaurant, whether any warnings that were in place were adequate, and whether DHH breached its duty under the sanitary code. Thus, Jazz contends that dismissing DHH from the plaintiffs’ lawsuit would deprive Jazz of the comparative offset from any fault attributable to DHH with regard to the presence and adequacy of the warnings in accordance with Gregor. In opposition to the motion for summary judgment, Jazz submitted the deposition testimony of Mr. Bergeron; Leon Casada-ban and Bruce Jay Reiben, Mr. Bergeron’s co-workers who joined Mr. Bergeron for dinner at Jazz Seafood & Steakhouse after Mr. Bergeron had consumed the raw oysters; Mr. Francis; and David Lee Bowman, the Jazz Seafood & Steakhouse employee who prepared the warning signs posted in the restaurant’s oyster bar.

According to the deposition testimony of Mr. Bergeron, he ate the raw oysters at the oyster bar, and did not order the raw oysters from the menu. He testified that while sitting in the oyster bar at Jazz Seafood & Steakhouse on July 23, 2001, he did not see any warnings, cards, or others notices warning about the danger of eating raw seafood or raw oysters.

Both Mr. Casadaban and Mr. Reiben testified in their depositions that they did not see or “[take] notice of any signs” or notices containing a warning about |3the consumption of raw oysters at the Jazz Seafood & Steakhouse on July 23, 2001. Mr. Casadaban testified that after the incident involving Mr. Bergeron, he went to Jazz Seafood & Steakhouse to see if there were any warnings on the menus, and that he did not see any warning signs on the tables or any signs hanging on the walls.

Mr. Bowman’s deposition testimony indicated that he had prepared the warning signs at Jazz Seafood & Steakhouse on his computer, and that he was instructed to make the warnings larger after the investigation into the incident involving Mr. Bergeron commenced. Mr. Bowman also acknowledged1 that the warning signs he had prepared were slightly different than the warning required by the sanitary code, and that the warning signs had been “retyped” to conform to the language of the sanitary code after the incident involving Mr. Ber-geron.

Based on our de novo review of the record, we find there was no genuine issue of material fact, and summary judgment was appropriate as a matter of law. At issue in the plaintiffs’ case against the DHH was the existence of the warning signs at the “point of sale,” and thus, whether DHH had breached its duty to enforce the sanitary code, whereas at issue in the plaintiffs’ case against Jazz is allegedly inconspicuous warnings or sign “clutter.” The evidence submitted by DHH established that the oyster warnings were posted or displayed at Jazz Seafood & Steakhouse in the oyster bar where Mr. Bergeron ordered the oysters — the “point of sale” — in accordance with the sanitary code and that the had DHH fulfilled its duty to enforce the sanitary code by performing routine inspections of Jazz Seafood to ensure its compliance with the sanitary code. While the evidence submitted by Jazz indicated that Mr. Bergeron and his dinner companions did not see (or take notice of) the warning signs pertaining to oysters, this evidence was insufficient to establish that the signs were not present at the oyster bar or that the inspections by DHH to ensure compliance with the sanitary code were improper or | ^deficient. Rather, such evidence addresses the plaintiffs’ alternative claims against Jazz, ie., that the signs were inconspicuous or there was sign “clutter” rendering the warnings less noticeable. Accordingly, we find the evidence submitted by Jazz was insufficient to establish that there was a genuine issue of material fact as to whether DHH had breached its duty to enforce the sanitary code.

IV. CONCLUSION

The evidence submitted by the DHH in support of its motion for summary judgment negated breach of duty, an essential element of the plaintiffs’ claim and the claims of Jazz that fault on the part of DHH would reduce its own percentage of fault. When the burden shifted to Jazz, Jazz failed to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial on this element. Therefore, there is no genuine issue of material fact, and summary judgment was appropriate as a matter of law. The December 22, 2004 and the March 14, 2005 judgments of the trial court are hereby affirmed.

All costs of this appeal are assessed to the defendants/appellants, Frank Billeau-deau and Elsa Billeaudeau, d/b/a Jazz Seafood & Steakhouse and Argonaut Great Central Insurance Company.

AFFIRMED.

GAIDRY, J., dissents and assigns reasons.

GAIDRY, J.

hi disagree with the majority’s application of Gregor v. Argenot Great Central Ins. Co., 2002-1138, pp. 1-2 (La.5/20/03), 851 So.2d 959, 961, to the facts of this case. Specifically, I disagree with thé majority’s statement that in Gregor, the “clutter” issue was attributable solely to the restaurant. Gregor merely states that the restaurant bears some liability for the clutter surrounding the warning sign; it does not state that the restaurant is solely liable for the clutter; it does not exonerate DHH for the clutter. I believe that the use of Gre-gor to dismiss DHH on a motion for summary judgment in the instant suit goes beyond the scope of the Gregor holding. For this reason, I respectfully dissent.

      . Vibrio vulnificus occurs naturally in saltwater environments. Whenever vibrio vulni-ficus is present in water where an oyster lives, the oyster will contain the bacteria. Generally, vibrio vulnificus is dangerous only to persons with chronic health problems, gastric disorders, liver diseases, and immune disorders. Proper cooking will kill vibrio vulnifi-cus bacteria present in an oyster. See Gregor v. Argenot Great Central Ins. Co., 2002-1138, pp. 1-2 (La.5/20/03), 851 So.2d 959, 961.

      . The plaintiffs did not oppose DHH's motion for summary judgment.

      . On May 4, 2005, the trial court issued written reasons for judgment, which set forth seven specific findings as the basis for its prior rulings. These written reasons were issued in response to a request for written reasons by Jazz and a remand by this court ordering that the trial court comply with that request. See Bergeron v. Frank Billeaudeau, et al., 2005 CW 0769 (La.App. 1st Cir. 4/29/05) (unpublished writ action). However, also contained in the trial court's "Written Reasons for Judgment” was the following decre-tal language: "IT IS FURTHER ORDERED that Judgment be, and is hereby rendered and entered in favor of the defendant mover, The Department of Health and Hospitals, and against the Plaintiff, Godfrey Bergeron.” Notably absent from these written reasons for judgment, which also purports to be judgment, are words that grant the DHH's motion for summary judgment and that dismiss the DHH from this suit. See Carter v. Williamson Eye Center, 2001-2016, p. 2 (La.App. 1st Cir. 11/27/02), 837 So.2d 43, 44 (holding that a final judgment must identify the party in whose favor judgment is rendered, the party against whom the judgment is rendered, and the relief granted or denied). As such, to the extent that the written reasons contain or set forth a judgment, for the record, we note that such judgment is of no legal effect because it lacks appropriate decretal language.

      . See also La. Admin. Code 51:IX.319(D)(1).


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kareem NICHOLAS.
    No. 06-KA-903.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Thomas S. Block, Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

12Defendant, Kareem Nicholas, appeals his conviction for possession of a firearm while in possession of cocaine, a violation of LSA-R.S. 14:95(E). On appeal, he argues that the district court committed manifest error by denying his Motion to Suppress because the evidence presented at the suppression hearing indicated that the officers entered Nicholas’s house without a search warrant or probable cause and they illegally confiscated items out of Nicholas’ home that were not immediately visible or in plain sight. After thorough consideration of the evidence and applicable law, we affirm the conviction.

PROCEDURAL BACKGROUND

On April 12, 2006, defendant was charged by Bill of Information with possession of a firearm while in possession of cocaine in violation of LSA-R.S. 14:95(E). Defendant pled not guilty to this charge on April 24, 2006. On June 1, 2006, defendant filed Motions to Suppress Evidence and Statement, which were denied by the trial court on July 19, 2006. Defendant withdrew his not guilty plea Land plea guilty to possession of a firearm while in possession of cocaine under State v. Crosby on July 20, 2006. Defendant was sentenced to five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On July 20, 2006, defendant filed a timely Motion for Appeal, which was granted on August 10, 2006.

FACTS

At the hearing on the Motions to Suppress hearing, Detective Kevin M. Treigle of the Kenner Police Department, Narcotics Investigative Section, testified that he conducted an investigation that led to defendant’s arrest on March 8, 2006. Detective Treigle and Sergeant Nicholas Huth obtained information through Kenner’s drug hotline of narcotics activity at 2142 Eleventh Street in Kenner. Detective Trei-gle testified that this was not the first complaint received regarding narcotics activity at that location, and he had made arrests at the residence before. From his experience, Detective Treigle was aware that Irvin Nicholas resided at this address.

After surveillance was conducted and foot traffic was observed going in and out of the residence, Detective Treigle approached the residence with the intention to do a “knock and talk.” He testified that the door was wide open. He observed defendant lying on the couch, sleeping in the living room. The officers knocked on the door frame and announced their presence. Irvin Nicholas emerged from the rear of the residence. Sergeant Huth advised him they received complaints about narcotics activity and wanted to talk. According to Detective Treigle, Irvin Nicholas invited them inside. Detective Treigle believed Irvin Nicholas was an occupant of 2142 Eleventh Street.

|4Detective Treigle testified, once inside, Irvin Nicholas advised them that he was living at the residence with his cousin and that he was in the process of moving out. Irvin Nicholas told them that his nephew Kareem was sleeping on the couch. After Irvin Nicholas advised them that other individuals were in the house, the individuals were summoned to the front of the residence and a protective sweep was conducted for officer safety. Irvin Nicholas was advised of his rights once they were inside of the residence.

Detective Treigle testified that a clear plastic bag containing two off-white rocks similar to crack cocaine and a steak knife were discovered in plain view on the bookshelf in the living room. Irvin Nicholas and the other individuals were then detained, and Sergeant Huth attempted to wake up defendant. Defendant awoke, and when he sat up, a handgun was observed underneath his stomach where he was lying. Defendant was detained and was advised of his Miranda rights. When asked if he had other weapons and/or narcotics on his person, defendant responded “I got a little crack in my pocket.” A clear plastic bag was removed from his pocket and its contents were field tested. The contents tested positive for crack cocaine. Defendant was arrested.

Detective Treigle clarified that they did not search the residence, but only seized evidence that was found in plain view once they had secured permission to enter from Irvin Nicholas.

Irvin Nicholas testified that he was sitting on the front porch with the door half open when the police, whom he knew were narcotic detectives, arrived. He denied giving them permission to enter or search the residence, and testified that he told them the residence was not his, but was leased to his cousin, Anthony |sHolmes. Irvin Nicholas stated he was staying at the house and had been living there since around November after the “storm,” but at the time was in the process of moving.

The trial court found the evidence seized was admissible and constitutionally obtained. The trial judge explained Mr. Nicholas had apparent and actual authority to allow entry into the house and by his own testimony he revealed he was a resident, although in the process of moving out. The trial court also found that the statement was constitutionally obtained after a waiver of rights was given.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court erred in denying his Motion to Suppress because law enforcement officers entered the residence without a valid search warrant, probable cause, exigent circumstances, good faith or consent from the legitimate owner of the residence and confiscated items not in plain view. Defendant further argues the officers did not attempt to verify the alleged complaints and they needed reasonable suspicion to knock and announce their presence. He complains any evidence or statements obtained were in violation of the Fourth Amendment and should have been suppressed.

The State responds the trial court did not err in denying defendant’s Motions to Suppress Evidence and Statements. The State argues that the police had valid consent to enter the residence and observed contraband in plain view. The State further argues after defendant made a free and voluntary statement admitting to I shaving contraband on his person so the police had probable cause to seize the cocaine from his pocket.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Warrant-less searches and seizures are unreasonable per se unless justified by one of the exceptions to the warrant requirement. The State bears the burden of proving the admissibility of evidence that is seized without a warrant. A trial court has great discretion when ruling on a Motion to Suppress, and its ruling will not be disturbed absent an abuse of that discretion.

Defendant’s brief focuses on the officers’ entry into the residence, arguing that the evidence and statement obtained thereafter are “fruit of the poisonous tree.”

The exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of illegality, or “fruit of the poisonous tree.” Louisiana Code of Criminal Procedure Article 703(A) provides that a defendant who is adversely affected may move to suppress any evidence from use at the trial on the merits on |7the ground that it was unconstitutionally obtained. Thus, if entering the residence was unlawful, then the exclusionary rule would bar the admission of the subsequent physical and verbal evidence in this case.

Detective Treigle testified his intentions were to do a “knock and talk.” His intentions were based upon previous complaints of narcotics activity at this residence, previous narcotics arrests at this residence, and surveillance of the residence. In State v. Sanders, 374 So.2d 1186, 1188 (La.1979), the Louisiana Supreme Court held that an officer’s knocking on a door does not constitute an investigatory stop. And when a door is opened in response, it is a “consent” to confront the caller and the police then have the right to speak to the occupant if the occupant agrees. Accord, State v. Haywood, 783 So.2d at 575-576.

Although defendant argues that the officers failed to verify the complaints, there was no investigatory stop when the officers knocked on the door frame, and therefore, the reliability of the complaints did not need to be established before the officers knocked. Defendant cites State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268 in support of his argument. Robertson involves an anonymous tip that failed to generate reasonable suspicion for an investigatory detention. In the present case, the officers had reasonable suspicion to knock on the door frame after receiving information about drug activity from the hotline.

In the present case, there were discrepancies in the testimonies of Detective Trei-gle and Irvin Nicholas. Detective Treigle testified that the door of the residence was wide open, while Irvin Nicholas testified the door was half open. Detective Treigle testified after they knocked on the door frame and announced their presence, Irvin Nicholas came from the rear of the residence, was advised of the complaints and invited them inside. However, Irvin Nicholas testified he was | fitting on the front porch when the police arrived and denied giving them permission to enter or search the residence.

A consent to search constitutes one of the exceptions to the probable cause and warrant requirements of the Fourth Amendment when it is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. In United States v. Matlock, 94 S.Ct. at 993, n. 7, the United States Supreme Court made clear that someone who has common authority over a residence,, described as “mutual use” and “joint access and control for most purposes,” may consent to a search that is valid as against a co-occupant who is not present and has not consented. Matlock relied on the concept that one co-occupant assumes the risk that the other person will give permission for a search. Id. The Louisiana Supreme Court in State v. Edwards followed Matlock, as did this Circuit in State v. Cambre.

The State has the burden of proving the consent was given freely and voluntarily when it relies on consent to justify a warrantless search. “Voluntariness is a question of fact to be determined by the trial judge under the totality of the circumstances.” State v. Joseph, supra (citation omitted).

A warrantless search may be valid even if consent was given by one without authority, if facts available to the officers at the time of entry justified the officers’ 1¿reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises.

Detective Treigle testified that Irvin Nicholas gave the officers consent to enter the residence, not consent to search the residence. Irvin Nicholas testified that he was staying at the house and had been living there since “about November after the storm,” but at the time was in the process of moving. The facts presented at the Motion to Suppress support the officers’ reasonable belief, that Irvin Nicholas had actual authority to allow the officers entry into the residence. Although defendant argues that the officers were not in good faith, there is no indication that the officers stormed into the residence, nor is that position supported by the testimony of Irvin Nicholas. The trial court could have reasonably concluded that the police officers were allowed into the house by an occupant with apparent authority to consent.

Detective Treigle testified that he performed a protective sweep of the residence. A “protective sweep” is a quick and limited search of a premises, conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court held that the Fourth Amendment to the United States Constitution permits a limited protective sweep in conjunction with an in-home |inarrest when the searching officer possesses a reasonable belief, based on specific and articula-ble facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. In the instant case, Detective Treigle offered no specific facts nor stated that he reasonably believed officer safety to be at issue. His testimony implies that the protective sweep was performed more as a matter of policy, rather than justification by exigent circumstances. However, the contraband in this case was not discovered during a protective sweep of the residence. Hence the justification for the sweep is not at issue.

The evidence that was seized was located in the living room, the very room into which Detective Treigle was allowed by Nicholas, and was discovered in plain view. It is well established that evidence in the open or plain view of a police officer who is legally on the premises from which he obtains the view is subject to seizure without a warrant. The evidence and statement that followed the entry into the residence need not be suppressed as “fruit of the poisonous tree.” As such, the trial court did not err in denying defendant’s Motion to Suppress.

Accordingly, defendant’s conviction is affirmed.

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . It is noted that defendant stated in his brief that surveillance was not conducted.

      . It is noted that defendant’s brief suggests it is defendant’s residence.

      .Hurricane Katrina.

      . In his Motion for Appeal, defendant only includes the denial of his Motion to Suppress Evidence without mentioning his Motion to Suppress Statement. However, when he pleaded guilty, he reserved his rights under Crosby to appeal the Motion to Suppress.

      . It is noted that in its brief, the State justifies the seizure of the contraband found in plain view, the voluntariness of defendant’s statement and the contraband found on defendant's person; however, it appears defendant is only arguing that because the entry into the residence was tainted, everything that followed was "fruit of the poisonous tree.”

      . State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585.

      . Id. (citation omitted).

      . State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, 335-336 (citations omitted).

      . LSA-C.Cr.P. art. 703(D); State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574 (citation omitted).

      . State v. Haywood, supra (citation omitted).

      . State v. Stanfield, 05-839 (La.App. 5 Cir. 3/14/06), 925 So.2d 710, 715 (citations omitted).

      . Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (citations omitted).

      . United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974).

      . 97-1797 (La.7/2/99), 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999).

      . 04-1317 (La.App. 5 Cir. 4/26/05), 902 So.2d 473, 482, writ denied, 05-1325 (La.1/9/06), 918 So.2d 1039.

      . State v. Joseph, 04-1240 (La.App. 5 Cir. 4/26/05), 901 So.2d 590, writ denied, 05-1700 (La.2/3/06), 922 So.2d 1176 (citing State v. Taylor, 04-90 (La.App. 5 Cir. 5/26/04), 875 So.2d 962, 967, writ denied, 04-1649 (La.11/19/04), 888 So.2d 193).

      . State v. Cambre, supra at 482 (citing Illinois v. Rodriguez, 497 U.S. 177, 185-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); State v. Edwards, supra).

      . This court notes that when Irvin Nicholas was arrested in this incident, he supplied this address as his.

      . Defendant cites several cases in his brief that are distinguishable from the issue in this case. In challenging the warrantless entry into the residence, defendant cites State v. Mayo, 450 So.2d 718 (La.App. 4 Cir.1984), writ denied, 452 So.2d 176 (La.1984) and State v. Campbell, 99-0892 (La.App. 4 Cir. 1/3/01), 778 So.2d 636, judgment vacated in part by 01-0329 (La.11/2/01), 799 So.2d 1136, cases involving warrantless automobile searches. Defendant also cites State v. Jones, 02-1931 (La.App. 4 Cir. 11/6/02), 832 So.2d 382, writ denied, 02-2895 (La.12/4/02), 831 So.2d 973. However, this case involves a warrantless search of a residence, while the present case involves consent to enter the residence. Defendant cites State v. Brown, 04-1194 (La.App. 5 Cir. 4/26/05), 902 So.2d 542, writ denied, 05-1637 (La.2/3/06), 922 So.2d 1173, which involved the discovery of evidence pursuant to the execution of a valid search warrant after a warrantless entry. Defendant cites another case involving a search warrant, State v. Robinson, 03-1350 (La.App. 5 Cir. 3/30/04), 871 So.2d 575, which is inapplicable here.

      . A protective sweep does not have to always be incident to an arrest. State v. Ledford, 40,318 (La.App. 2 Cir. 10/28/05), 914 So.2d 1168, citing United States v. Gould, 364 F.3d 578 (5th Cir.2004), cert denied 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004).

      . State v. Shed, 36,321 (La.App. 2 Cir. 9/18/02), 828 So.2d 124.


text:
    Lisa Montgomery PITTMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Ken Moore.
    No. 06-CA-920.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.

      George F. Riess, Law Offices of George F. Riess & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Lisa Montgomery Pittman.
    Henry G. Terhoeve, Stephen Dale Cronin, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Robert H. Cooper, Pelleteri, Wiedorn & Cooper, New Orleans, LA, for Defendant/Appellee, Ken Moore.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

hThe plaintiff, Lisa Montgomery Pittman, has appealed the trial court judgment in favor of State Farm Mutual Automobile Insurance Company and its employee, Ken Moore. For the reasons that follow, we reverse.

FACTS:

Plaintiff filed suit against State Farm Mutual Automobile Insurance Company (hereinafter State Farm) and its employee, Ken Moore, alleging that she was damaged when State Farm filed a fraudulent malpractice claim against her. Plaintiff is an attorney who provided legal services to State Farm and its insureds. During the course of her representation of State Farm, plaintiff represented State Farm and its insured in the case of Hickey v. Lazaro, et al. The Hickey case proceeded to trial and an excess judgment was rendered against State Farm’s insured. State Farm then filed a legal malpractice claim with plaintiffs malpractice insurer, Acceptance Insurance Company (hereinafter Acceptance Insurance). At some point during the pendency of this claim, State Farm agreed |4through its employee, Ken Moore, to settle the claim for $20,000.00. A check was forwarded to State Farm in this amount. Upon review of the settlement documents and release agreement, Mr. Moore noted that the documents contained language to which State Farm did not agree. Although these documents are not contained in the record, the parties state that this language provided that State Farm would continue to assign cases to plaintiff wherein plaintiff would represent State Farm and its insureds. State Farm notified Acceptance Insurance that it did not agree to the language in the documents; however, State Farm deposited the check that accompanied the documents. State Farm and Acceptance Insurance never reached an agreement as to the language in the settlement documents and release agreement and thus the documents were never signed by State Farm. State Farm did send a check returning the settlement proceeds to Acceptance Insurance, however, State Farm claims Acceptance Insurance refused the check.

Plaintiff then filed suit against State Farm and Moore alleging State Farm violated the Louisiana Unfair Trade Practices Act in their “unlawful settlement practices” and/or illegally converted the settlement proceeds to its own use and benefit without authority. The petition further alleged that plaintiff was told by Mr. Moore that when the malpractice claim was resolved, she would receive new assignments of cases from State Farm and for this reason plaintiff urged Acceptance Insurance to settle the malpractice claim, however, immediately after the settlement of the malpractice claim, State Farm requested the return of all assignments and files in plaintiffs office. The petition alleged that this essentially destroyed plaintiffs law practice because State Farm was her major client.

State Farm and Mr. Moore answered with general denials. Both moved for and were granted summary judgment. This timely appeal followed.

_yLAW AND DISCUSSION:

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment shall be granted after adequate discovery if the motion shows there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(C)(1). The burden of proof is on the mover; however, if the mover will not bear the burden of proof at trial, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id.

In its Motion for Summary Judgment, State Farm argues there was no settlement with Acceptance Insurance and plaintiff. In support of this position, State Farm relies on C.C. art. 3071, which provides that a compromise agreement must be in writing, and argues that since the settlement documents in this matter were not executed, there is no enforceable settlement. State Farm further argues that there was no “meeting of the minds” as to a settlement, therefore, there was no settlement. State Farm denies its negotiation of the $20,000.00 check equates a settlement because there is no proof that State Farm intended to accept the settlement under the terms and conditions set forth in the unexecuted settlement documents.

Alternatively, State Farm argues that even if there was a binding settlement, it is unenforceable. Relying on Rule 1.16 of the Rules of Professional Conduct giving the absolute right of a client to discharge his attorney, State Farm explains that plaintiff was counsel for State Farm, at the will of State Farm, and plaintiff | (¡never had the authority to compel further referral of cases with or without the alleged settlement agreement. Attached to State Farm’s motion is an affidavit executed by Mr. Moore, a claim section manager for State Farm. Mr. Moore attests that State Farm asserted a malpractice claim against plaintiff to which State Farm agreed to settle for $20,000.00. State Farm received a check for $20,000.00 and informed counsel for plaintiff that it opposed the language in the settlement documents. When there was a failure to agree to the language in the settlement documents, State Farm forwarded a check to counsel for plaintiff and Acceptance Insurance for $20,000.00 plus interest, however, the check was refused.

In his Motion for Summary Judgment, Mr. Moore argues that at all times pertinent to this matter he was acting as a mandatory for State Farm and was within the limits of his authority, therefore, he can have no personal liability in this matter. He further adopted the arguments made by State Farm in its motion. Attached to this motion is an affidavit by Mr. Moore attesting that as a claim section manager for State Farm, he had authority to negotiate a compromise of the malpractice claim against plaintiff and in doing so, he acted within the scope of this authority.

The appellate record contains three memoranda in opposition to the motions for summary judgment. In the opposition filed March 22, 2005, entitled “Supplemental Memorandum in Opposition to Defendant’s Motion for Summary Judgment” plaintiff argues that defendant misunderstands her cause of action. Plaintiff explains that she was induced to make substantial investments in office space and equipment as a result of assurances by Mr. Moore that upon resolution of the malpractice claim, new assignments of cases would be made to her by State Farm. She further explains that the legal malpractice claim filed against her was baseless and an integral part of her fraud claim. She does not dispute that a client |7may discharge his attorney at any time, but argues the client does not enjoy immunity from damages caused by instituting a fraudulent malpractice claim and assuring counsel that upon resolution of said claim, the client will resume making new assignments of cases to counsel. She argues that Mr. Moore’s affidavit does not address these claims. Plaintiff further argues that she is at a disadvantage in defending this motion because State Farm has refused to produce the claim filed in the Hickey case and other outstanding discovery. Attached to this opposition is a copy of plaintiffs petition and a copy of plaintiffs Motion to Compel Discovery.

In the opposition filed April 27, 2005 entitled “Second Supplemental Memorandum in Opposition to State Farm’s Motion for Summary Judgment,” plaintiff again argues that defendants’ summary judgment fails to address her causes of action. She argues that allegations of fraud by their nature pose factual questions, which are not to be resolved by summary judgment. Plaintiff further argues that adequate discovery has not been conducted and refers to her Motion to Compel. She contends that in his deposition, Mr. Moore refused to answer certain questions and to produce certain documents regarding the malpractice claim. She explains that her Motion to Compel was set for September 16, 2004, but was cancelled due to the court being closed for a hurricane. Plaintiff states she did not immediately seek to reset the motion because her husband suffered a grave illness. Specifically, plaintiff argues that Mr. Moore invoked the attorney client privilege when he was asked to produce State Farm’s file and questioned as to facts regarding the Hickey case and refused to answer questions regarding State Farm’s policies regarding handling of the Hickey ease. Plaintiff then lists numerous questions she would like answered by State Farm, which relate to the criteria employed by State Farm in asserting a professional malpractice claim against its |sattorneys and the names of attorneys against whom State Farm has filed malpractice claims.

Plaintiff filed a Memorandum in Opposition to defendant, Ken Moore’s, Motion for Summary Judgment on April 27, 2005. In this opposition, plaintiff argues that as a party who participated in the fraud, Mr. Moore is a proper party to this litigation. She contends Mr. Moore’s agency defense is a factual question, which is not an issue to be resolved on summary judgment. Plaintiff also argues that whether Mr. Moore exceeded his authority by refusing to sign the release, but negotiating the settlement check is likewise a factual issue.

State Farm filed a reply memorandum arguing that plaintiffs affidavit is inadmissible because it does not make statements of fact, rather it asserts legal conclusions and beliefs that lack foundation. State Farm further argues that the failure of plaintiff to produce any evidence of any material factual disputes mandates the granting of its summary judgment.

We will first address plaintiffs argument that summary judgment was premature because discovery was not complete. The appellate record indicates that plaintiff filed a Motion to Compel on March 27, 2003. She requested the court compel defendant, State Farm, to respond to Interrogatories and Requests for Production of Documents that were served on State Farm on March 4, 2002. The Motion to Compel was set to be heard on May 6, 2003. Apparently, the parties entered into a protective order regarding these discovery requests and the motion was not argued. A minute entry dated May 6, 2003, states a Motion to Compel was set to be heard on this date and no one appeared in court.

Mr. Moore’s deposition was taken by plaintiffs counsel on January 21, 2003 and on April 8, 2004. In its brief, State Farm states that during the January deposition, Mr. Moore refused to answer questions and produce documents related |sto State Farm’s obligation to outside counsel. The deposition was stopped. It is unclear whether plaintiff obtained a ruling on this issue. During the course of the April deposition, Mr. Moore refused to answer certain questions regarding the Hickey case and other questions related to State Farm’s Legal Services Program. State Farm also refused to produce its file on the Hickey case. On July 20, 2004, plaintiff filed a Motion to Compel these answers and documents. Plaintiffs Motion to Compel set to be heard on September 16, 2004, but was continued without date by the court due to the court’s closure for an impending hurricane.

The record reflects that State Farm filed its Motion for Summary Judgment on January 5, 2005. Plaintiff moved to have the Motion to Compel reset on March 28, 2005. The Motion for Summary Judgment was originally set to be heard on March 23, 2005. Pursuant to plaintiffs request the hearing was continued to May 3, 2005. Plaintiff then moved to have her Motion to Compel heard at the same time.

Although the language of Code of Civil Procedure article 966 does not grant a party an absolute right to delay a decision on a Motion for Summary Judgment until all discovery is complete, the law does require that parties be given a fair opportunity to present their claim. West v. Watson, 35,278 (La.App. 2 Cir. 10/31/01), 799 So.2d 1189. Plaintiff represented to the trial court and to this Court that she did not immediately move to reset her Motion to Compel for hearing after it was continued without date due to the court’s closure because her husband suffered a grave illness. There is no indication from the record that plaintiff was repeatedly using delay tactics to retard the progression of her own claim. Rather, the record reflects that when State Farm moved for summary judgment, plaintiff moved to set the Motion to Compel for hearing in an attempt to obtain answers to her discovery requests to adequately oppose the Motion for Summary Judgment. |1fl0ur review of the entire record before us leads to the conclusion that the trial court erred in granting defendants’ Motions for Summary Judgment when a Motion to Compel Discovery was outstanding, which plaintiff argues affected her ability to defend the Motions for Summary Judgment.

Plaintiff further argues that defendants Motions for Summary Judgment and Mr. Moore’s affidavits do not dispose of plaintiffs entire claim. In her petition, plaintiff asserts three possible causes of action, namely, malicious prosecution, defamation, and detrimental reliance. In its Motion for Summary Judgment State Farm argues plaintiff has no cause of action against it because there was no settlement on the malpractice case. State Farm contends there was no settlement because there was nothing in writing that was signed by both parties, there was no meeting of the minds because State Farm did not agree to language in the settlement documents whereby State Farm would continue to refer cases for defense to plaintiff, and there was no accord and satisfaction because their deposit of the check did not bind State Farm to the terms of the proposed settlement documents. State Farm then argues even if there was a binding settlement, it is not enforceable because a client has an absolute right to discharge his attorney at any time. The affidavit by Mr. Moore states that State Farm never filed suit against plaintiff, rather a “letter claim” was made with Acceptance Insurance and State Farm agreed to accept $20,000.00 to resolve the claim. He further attests that State Farm expressed its opposition to the language in the proposed settlement documents and deposited the check. He goes on to state that since the filing of the malpractice claim State Farm has sent “few or no ‘new' assignments or files to Pittman.” This affidavit does nothing to address plaintiffs malicious prosecution, defamation, or detrimental reliance claims. In fact, nowhere in the affidavit does Mr. Moore state that he did not promise plaintiff that more cases would be |, forthcoming upon resolution of the malpractice claim. Likewise, the Motion for Summary Judgment filed individually by Mr. Moore, wherein he argues that he was acting as a mandatary for State Farm and can have no personal liability, fails to address plaintiffs claims of malicious prosecution, defamation, and detrimental reliance. In the affidavit attached to this motion Mr. Moore again does not state that he did not promise that more cases would be forthcoming upon resolution of the malpractice claim.

In Sheppard v. City of Baton Rouge, 2002-2421 (La.App. 1 Cir. 9/17/04), 897 So.2d 25, writ denied, 2004-2566 (La.1/14/05), 889 So.2d 268, the court engaged in a discussion as to the meaning of the language in article 966 regarding the moving party “pointing out” that there is an absence of support for one of the non-movant’s allegations. The court concluded that the moving party cannot prevail on the motion by merely arguing there is a general lack of proof for the non-movant’s claims. Rather, the movant must point out with specificity which specific elements of proof are lacking. In the case at bar, defendants argue plaintiff cannot prevail because there was no settlement on the malpractice case and because a party can discharge its attorney at any time. However, defendants did not point out with specificity that plaintiff lacks proof on the malicious prosecution, defamation, and detrimental reliance claims. Defendants only argue that plaintiff cannot prevail on the merits because she does not have a valid contract to enforce. This is insufficient for defendants to prevail on their Motions for Summary Judgment. Since the defendants did not make a sufficient showing that plaintiff lacks specific proof regarding specific allegations, the burden did not shift to plaintiff to show that she can come forward with sufficient proof.

.CONCLUSION:

Plaintiff alleged that she was damaged when State Farm and Mr. Moore filed a fraudulent malpractice claim against her. The trial court erred in granting summary judgment when there was an outstanding Motion to Compel defendants’ responses to discovery requests. Further, defendants did not carry their burden of proving there is an absence of support for all of plaintiffs claims. Accordingly, the judgment of the trial court is reversed.

REVERSED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Steve JOHNSON.
    No. 06-KA-935.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Defendant, Steve Johnson, appeals his conviction and sentence on a charge of unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. For the reasons that follow, we affirm.

On February 18, 2005, the Jefferson Parish District Attorney charged the defendant by bill of information with unauthorized use of a motor vehicle. After a trial on August 11, 2005, a six-person jury found the defendant guilty as charged. The trial court sentenced him to 10 years at hard labor.

The State subsequently filed a habitual offender bill of information, alleging the defendant to be a third felony offender. The defendant stipulated to his status as a third felony offender. In accordance with a plea agreement, the trial court vacated the original sentence and imposed an enhanced sentence of 16 years at hard labor.

| sAt approximately 7:00 a.m. on February 2, 2005, Tahesha Parker left her home to find that a green 1992 Buick LaSabre automobile, loaned to her by Samuel Murray, was missing from the parking lot of her Marrero apartment complex.

Deputy Greg Joerger testified that later that day, he was on routine patrol in a marked police unit when he spotted the Buick stopped at a traffic light at the corner of Manhattan Boulevard and the Westbank Expressway. When Joerger pulled up next to the vehicle, he saw that the passenger side rear window was broken. He testified that type of damage is common in car theft cases. The officer ran the vehicle’s license plate number through the police computer and learned the car had been reported stolen that morning. He attempted to make a traffic stop by activating his lights and siren, but the driver, later identified as defendant, ran the red light and drove across the expressway. The defendant’s escape route was blocked by traffic, so he exited the vehicle and ran into a nearby house. Joer-ger testified he pursued defendant and apprehended him within two minutes. The officer observed that the vehicle’s steering column was broken and there was no key in the ignition, a further indication that the car was stolen.

Mr. Murray, the vehicle’s owner, was notified his car had been located. When he retrieved it, he found the back window was “busted out,” the steering column was “messed all up,” and the molding around the window was damaged. He testified the car was not damaged when he loaned it to Ms. Perkins. Ms. Perkins testified the damage was not present when she last parked the car.

Mr. Murray testified he gave only Ms. Perkins permission to use his car, and Ms. Perkins testified she did not give anyone permission to use the vehicle. Neither Mr. Murray nor Ms. Perkins knew defendant.

| ¿By his first assignment of error, the defendant complains the evidence was insufficient to support a conviction for unauthorized use of a motor vehicle, arguing the State failed to prove his identity as the perpetrator of the offense. He maintains that Deputy Joerger’s identification was unreliable under the criteria in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Defendant also challenges the reliability of Joerger’s in-court identification on grounds that he (defendant) was the only person sitting at the defense table.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The defendant was convicted of unauthorized use of a motor vehicle in violation of LSA-R.S. 14:68.4(A), which provides in pertinent part:

Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant’s identity as the perpetrator. State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926.

The defendant does not contend that the State failed to establish one of the essential statutory elements of unauthorized use. He argues only that the State failed to prove his identity as the offender. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. Positive identification by a single witness is sufficient to support a conviction. State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 591, writ denied, 06-0757 (La.12/15/06), 944 So.2d 1277.

In Manson v. Brathwaite, supra, the United States Supreme Court set forth five factors relevant to assessing the reliability of an identification and its admissibility: (1) the witness’ opportunity to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Id., 432 U.S. at 114, 97 S.Ct. at 2253. This case does not involve the reliability of an out-of-court identification. The only-identification of defendant as the perpetrator was the one Deputy Joerger made in court, to which defendant did not object.

The defendant argues Joerger’s identification was unreliable because of his limited view of the perpetrator and the fact that he did not describe the perpetrator’s clothing or physical characteristics. We disagree. Joerger testified he stopped next to the Buick at a red traffic light. He said he observed two men in the vehicle, and identified the defendant as the driver. The officer explained that as he attempted to stop the vehicle, the defendant drove through the red light, bailed out of the car, and fled into a house. He testified that he apprehended “them” two to three minutes later.

Joerger unequivocally identified the defendant in court as the person who was sitting behind the wheel of the stolen car. There were no internal contradictions or irreconcilable conflicts with the identification evidence. Contrary to defendant’s suggestion, there was no evidence that Joerger had a limited view of the car’s driver. The officer testified that he pulled alongside the vehicle the defendant was driving, gave chase to the defendant after he fled, and apprehended | (¡him almost immediately. The jury apparently found Joerger’s trial testimony to be credible.

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. State v. Searls, 04-790 (La.App. 5 Cir. 1/25/05), 895 So.2d 40, 44. It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the function of the appellate court to reweigh the evidence or reevaluate the credibility choices made by the trier of fact. Id., at 45.

We find no merit in the defendant’s argument that Deputy Joerger’s in-court identification was unreliable because the defendant was the only person sitting next to defense counsel at the defense table. In State v. Johnson, 343 So.2d 155 (La.1977), the Louisiana Supreme Court found a similar in-court identification was not unduly suggestive. The Johnson court reasoned that the mere fact that the defendant was conspicuously seated at the defense table at trial at the time the witness identified him did not suggest that he was guilty of the crime, only that he was charged with its commission. The court further found that counsel’s right to cross-examine the witness was sufficient to remedy any suggestiveness inherent in the in-court identification process.

See also, State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, — U.S. -, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006), in which this Court found a witness’ in-court identification of the defendant was not unduly suggestive despite the fact the victim was robbed by two black men, and the defendant was dressed in prison 17attire, seated next to the defense counsel, and was the only black man in the courtroom. This Court noted defense counsel questioned the witness extensively about his identification.

In the instant case, the defendant’s counsel did not cross-examine Deputy Joerger. But this fact does not render the in-court identification suggestive, and thus unreliable. Counsel was given the opportunity to cross-examine the officer regarding his identification, but simply chose not to.

We find that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found, beyond a reasonable doubt, that the evidence was sufficient to support the conviction and that the defendant was the perpetrator of the crime. The defendant’s first assignment of error has no merit.

In his second assignment or error, the defendant moves this Court to review the record for errors patent. We note that this Court routinely reviews the record for errors patent regardless of whether the defendant explicitly requests it. La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). In this case we find no errors that require corrective action.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Timothy Smith, who is not part of this appeal, was charged as a co-defendant.


author: DENNIS R. BAGNERIS, SR., Judge. ARMSTRONG, C.J., BELSOME, J.,

text:
    FRENCH JORDAN, INC., et al. v. TRAVELERS INSURANCE COMPANY, et al.
    No. 2007-C-0007.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2007.

      Stuart H. Smith, Michael G. Stag, Smith Stag, L.L.C., New Orleans, LA, and Jessica W. Hayes, Stephen B. Murray, Arthur M. Murray, Murray Law Firm, New Orleans, LA, for Plaintiffs/Relators.
    Ralph S. Hubbard, III, Celeste D. Elliott, Seth A. Schmeeckle, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for the Charter Oak Fire Insurance Company and the Travelers Indemnity Company.
    Steve M. Sikich, the Sikich Law Firm, Lake Charles, LA, and Thomas W. Murphy, Caron Constants <⅞ Wilson, Chicago, IL, for Fireman’s Fund Insurance Company.
    Erin Fury Parkinson, McGlilnchey Stafford, PLLC, New Orleans, LA, and Richard W. Bryan, Daniel J. Lynn, Jackson & Campbell, P.C., Washington DC, for National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, SR., Judge.

h Relators, French Jordan, Inc. and Shield Coat, Inc., seek supervisory review of the trial court judgment that maintained the defendants’, Travelers Insurance Company/Charter Oak Fire Insurance Company (Travelers), Scottsdale Insurance Company (Scottsdale), National Union Fire Insurance Company (National), Lloyd’s of London (Lloyd’s), Fireman’s Fund Insurance Companies (Fireman’s), Highlands Insurance Company (Highlands), and American Casualty Company (American) exception of improper venue. For the following reasons, we reverse the judgment of the trial court.

FACTS

Relators, French Jordan, Inc. and Shield Coat, Inc., were merged and incorporated in Orleans Parish where they maintained business offices until 1998. Since then, Relators have relocated and now maintain offices in St. Tammany and Terrebonne Parishes. The nature of Relators’ business involves cleaning and inspecting pipes from oilfields. This work is done in Terre-bonne Parish on property owned by the Houma-Terrebonne Airport Commission (H-TAC). In 1995, the Louisiana Department of Environmental Quality (LDEQ) found the property to be contaminated with radioactive material and ordered Re-lators to bring their operations into compliance with state regulations.

In September 1996, Relators filed suit against various oil companies whose products were depositing the radioactive material at Relators’ operations site. Relators allege they were forced to initiate this litigation (against the oil companies) in order to remediate and restore the property to comply with directives from LDEQ, avoid liability to the state for non-compliance with state administrative regulations, and also to avoid liability to third-parties claiming ^damages arising from the contamination. In November 1999, H-TAC intervened in the lawsuit and named Rela-tors as defendants given that Relators’ operations were conducted on property owned by H-TAC.

In accordance with the provisions of their insurance contracts, Relators notified Respondents of the demands made by LDEQ and the potential for liability to the state and third parties, but Respondents refused to defend them against the demands made by LDEQ and H-TAC. Rela-tors alleged that Respondents provided insurance policies that covered Relators for various time periods relevant to this action and required Respondents to defend and indemnify Relators for money they might be obligated to pay related to or arising from property damage or bodily injury. Accordingly, Relators filed suit for breach of contract because Respondents refused to provide legal representation and indemnification.

In response to Relators’ lawsuit, Travelers filed an exception of improper venue and pled ambiguity and vagueness as an alternative. Following a hearing, the trial court granted the exception of improper venue and dismissed Relators’ lawsuit. Relators assert that the trial court erred when it granted Respondents’ exception of improper venue, and they now seek supervisory review of this judgment.

STANDARD OF REVIEW

Venue is a question of law and where a legal error interdicts the fact finding process and the record is otherwise complete, an appellate court should then conduct a de novo review of the record. Bloomer v. Louisiana Workers’ Compensation Corp, 1999-0707, p. 4 (La.App. 1 Cir. 5/12/00), 767 So.2d 712, 715. Citing Bloomer, this court held that venue is a question of law and where the record is complete the court should conduct a de novo review. Crawford v. Blue Cross and Blue Shield of Louisiana, 2000-2026, p. 3 (La.App. 4 Cir. 12/5/01), 814 So.2d 574, 577. The appellate court should review the facts of cases involving an exception of improper venue under the de novo standard of review. Premier Dodge, L.L.C. v. Perrilloux, 2005-0554, p. 3 (La.App. 4 Cir. 1/25/06), 926 So.2d 576, 577.

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. LSA-C.C.P. art. 1841. An appeal may be taken from an interlocutory judgment that may cause irreparable harm. The trial court’s judgment sustaining the defendant’s exception of improper venue is an interlocutory judgment, the ruling on which is reviewable as it may cause irreparable harm that this Court cannot remedy after trial. LSA-C.C.P. art.2083; Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

DISCUSSION

The primary issue to be resolved herein is whether Orleans Parish is a proper and permissible venue for the instant case to be brought and tried. Especially notable is whether LSA-C.C.P. art. 76.1, relevant to actions on contracts, may be used to determine the venue for this matter.

Relators contend that Orleans Parish is a proper venue for this action under LSA-C.C.P. art. 76.1 because the insurance contracts with Respondents were executed in Orleans Parish. Relators further contend that Orleans Parish is the proper venue under LSA-C.C.P. art. 76 because this is where the loss occurred and where the Relators were domiciled at the time of the loss.

Respondents contend that under LSA-C.C.P. art. 42(7) venue is proper in East Baton Rouge Parish because defendants are foreign insurers. Respondents |4also contend that LSA-C.C.P. art. 76.1 does not apply to insurance contracts and that LSA-C.C.P. art. 76 should be applied instead, thus making Terrebonne Parish the proper venue because one of the Relators is domiciled there and the basis for the litigation occurred there.

The trial court ruled that Orleans Parish is not the proper venue and dismissed Relators’ case. Written reasons for judgment were not issued but the transcript of the hearing indicates the trial court made the following findings: (1) LSA-C.C.P. article 76.1 does not apply to insurance contracts and therefore is inapplicable to this case, (2) LSA-C.C.P. article 76 applies because the action was based on an insurance policy, and (3) the loss occurred in Terre-bonne Parish, therefore Orleans Parish is not the proper venue.

Venue is defined as the parish where an action or proceeding may properly be brought and tried. LSA-C.C.P. art. 41. The general rules of venue provide that an action against a foreign corporation licensed to do business in this state shall be brought in the parish where its designated primary business office is located, or if no such designation is made, then in the parish where its primary place of business is located, and an action against a foreign corporation not licensed to do business in this state, without an agent for service, shall be brought in the parish of plaintiffs domicile. The general rules of venue further provide that an action against a foreign or alien insurer shall be brought in the parish of East Baton Rouge. LSA-C.C.P. art. 42.

The general rules of venue enunciated in article 42 are subject to the exceptions provided in articles 71 through 85 and as otherwise provided by law. LSA-C.C.P. art. 43. These statutory exceptions to the general venue rules serve to extend its provisions and create permissible alternatives for venue. Two such | ^exceptions, 76 and 76.1, may apply to the instant case. LSA-C.C.P. art. 76 provides that an action on any type of insurance policy, other than life insurance or health and accident insurance, may be brought in the parish where the loss occurred or the insured is domiciled. LSA-C.C.P. art. 76.1 further expands the general rule by providing that an action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

The provisions under LSA-C.C.P. art. 45 will determine the proper venue where two or more venue articles conflict. LSA-C.C.P. art. 45(3) is applicable to the instant case, and provides that if Article 78, 79, 80, 81, 82, or 83 is not applicable, and there is a conflict between two or more of Articles 42 and 71 through 77, the plaintiff may bring the action in any venue provided by any applicable article. LSA-C.C.P. art. 76 and 76.1 are both permissive venue exceptions and either article 42, 76, or 76.1 may dictate the proper venue for this matter. Bloomer v. Louisiana Workers’ Compensation Corp., 1999-0707 (La.App. 1 Cir. 5/12/00), 767 So.2d 712. The Louisiana Code of Civil Procedure Articles are to be construed liberally and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. LSA-C.C.P. art. 5051. When the language of an article is clear and free from ambiguity, its letter is not to be disregarded under the pretext of pursuing its spirit. LSA-C.C.P. art. 5092.

When utilizing any of the exceptions to the general venue provisions the plaintiff must show that the facts clearly satisfy the exception before claiming the benefit of that exception. Crawford v. Blue Cross and Blue Shield of La., 2000-2026, p. 3 (La.App. 4 Cir. 12/5/01), 814 So.2d 574, 577. For purposes of the [(¡venue exception, the plaintiffs allegations are taken as true and must appear on the face of the plaintiffs petition. Cacamo v. Liberty Mutual Fire Ins. Co., 99-3479 (La.06/30/00), 764 So.2d 41. If the grounds for the objection of improper venue do not appear on the face of the plaintiffs petition, the burden is on the defendant to offer evidence in support of his position. Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301 (La.App. 2 Cir. 11/1/00), 779 So.2d 817.

A major point of contention in this case is whether article 76.1, which applies to actions on contracts, may be applied to the insurance contract herein. In recent years, this Court has found that article 76.1 only applies to construction contracts and not contracts in general. See Lewis v. Marshall Bros. Lincoln-Mercury, Inc., (2004-0507), 876 So.2d 142. This position represents a divergence from the standard established by the Louisiana Supreme Court and followed by all other Louisiana appellate courts.

The Louisiana Supreme Court has established that the alternative optional venue provisions contained in La. C.C.P. articles 71 through 85 are an extension, supplement and legal part of the provisions of article 42. As a result, these alternative venue provisions are no longer exceptions to Article 42⅛ “home base” venue that should be strictly construed as was formerly required under Hawthorne Oil & Gas v. Continental Oil, 377 So.2d 285 (La.1979), but rather, these alternative provisions are part and parcel of the general venue rule set forth in Article 42. Kellis v. Farber, 87-2170, (La.1988), 523 So.2d 843, 846, superseded by statute on other grounds, Boatwright v. Metropolitan Life Ins., 95-2473 (La.App. 4 Cir. 3/27/96), 671 So.2d 553. The Court went on to state:

The proliferation of exceptions mirrors the newly emerging bases of modern venue statutes. These provisions are not based on domicile but on factors such as the following: the convenience of both parties; |7the relationship between the forum and the cause of action; the reduction of litigation through certainty in the layering of venue; the places where the subject of action or part thereof is situated; the place where the cause of action arose; the place where the seat of government is located ... compare with La. C.C.P. art. 72 (place of property), article 73 (solidary obligation), article 74 (place of tort), article 74.1 (place of child’s birth), article 75 (court where the bond was filed), article 77 (place of business office), article 81 (court where succession is pending), article 82 (place where the community was dissolved or where immovable property is located).
523 So.2d at 847.

It is important to note that this aspect of the ruling in Kellis still stands today. The Court in Boatwright held that the exceptions to La. C.C.P. art. 42 established by La. C.C.P. arts. 71 through 85 do not apply to cases against direct action insurers. The 1989 amendment to LSA-R.S. 22:655(B) overruled Kellis, but only with respect to the direct action statute. Kellis and Jordan still stand for the proposition that articles 71 through 85 should be read in pari materia with article 42 and treated like general venue provisions, rather than exceptions. Boatwright, 95-2473, p. 7, 671 So.2d at 557.

Subsequently, during the 1991 Regular Session the Louisiana Legislature passed Act No. 217 H.B. No 662 to enact La. C.C.P. art. 76.1 and La. R.S. 9:2779, relative to contracts; to declare public policy regarding clauses in construction contracts, subcontracts, and purchase orders on public and private works relating to the choice of laws governing their interpretation or to venue for resolving disputes arising thereunder; to provide for the invalidity of certain contract provisions as contrary to public policy; to provide exceptions, to provide venue in actions on contracts, and to provide for related matters. Following this enactment, this Court concluded that article 76.1 was intended to apply to construction contracts and not|sto all contracts of every nature. Lewis v. Marshall Bros. Lincoln-Mercury, Inc., 2004-0507 (La.App. 4 Cir. 5/19/04), 876 So.2d 142.

In Jordan v. Central La. Elec. Co., Inc., 95-1270 (La.6/23/95), 656 So.2d 988, the Supreme Court applied 76.1 to an action on a contract for the sale of immovable property where the parties signed the authentic act of sale in different parishes, on different days. The plaintiff filed suit to recover his deposit in the parish where he signed the contract in accordance with ar-tide 76.1, and the defendant filed an exception to venue under article 42. The trial court overruled the defendant’s exception, which ruling was reversed by the appellate court. Reversing the appellate court, the Supreme Court said, “[w]e construe LSA-C.C.P. art. 76.1 as authorizing venue in any of the parishes where the contract was executed” and held that a contract, including one executed in authentic form, may be executed in more than one parish. Jordan, 95-1270, p. 2, 656 So.2d at 989.

Although this Court has restricted the use of La. C.C.P. art. 76.1 to actions on construction contracts, other Louisiana appellate courts have closely followed the precedent set by the Louisiana Supreme Court in Jordan. Specifically, in Elliott v. Amato and Creely, 2005-0376, p. 4 (La.App. 1 Cir. 3/29/06), 934 So.2d 779, 781-782, wherein an attorney brought action against defendant law firm and attorney seeking a declaratory judgment that he was entitled to his agreed-upon share of the attorney fees, the First Circuit held that article 76.1 was applicable and ruled that plaintiffs may choose any venue available under the Code of Civil Procedure or any other supplementary venue provided by law that fits the particular circumstances of their claims. The general rules of venue set out in Article 42 are subject to certain exceptions and these alternative statutory venue provisions are an extension, supplement, and legal part of the general venue | ¡provisions, rather than exceptions requiring strict construction. One of these additional venue provisions is Article 76.1. This supplementary venue provision reflects the policy decision of the legislature that it is fair to sue a corporate defendant who enters into contracts with an aggrieved plaintiff in a venue other than the defendant’s home base.

Additionally, the First Circuit has held that “[ajlternative statutory venue provisions are extension, supplement and legal part of general venue provisions, rather than exceptions requiring strict construction.” Operational Technologies Corp. v. Environmental Contractors, Inc., 1995—0413 (La.App. 1 Cir. 11/9/95), 665 So.2d 14. Likewise, in Smith v. Alford, 2004-0586 (La.App. 1 Cir. 3/24/05), 906 So.2d 674, the First Circuit affirmed the trial court’s ruling which applied article 76.1 in an action for breach of an employment contract, finding that venue was proper in the parish where the contract was executed, and all work was performed pursuant to the contract.

The Second Circuit held in Coleman v. Fisher Lumber Corp., 28,446, p. 11 (La.App. 2 Cir. 6/26/96), 677 So.2d 678, 684, that the statute governing permissive venue for contract actions is not facially ambiguous, and does not restrict or limit its applicability to actions on certain types of contracts or to situations where a substantial or some other measurable amount of contractual work or service was performed or was to be performed in parish where action is brought. The Second Circuit then cited the discussion of the application of article 76.1 by the court in Tucker v. Ochsner Health Plan, 28,318 (La.App. 2 Cir. 5/8/96), 674 So.2d 1052, when it stated:

As we appreciate Art. 76.1, an action on a contract of whatever type, may be brought in the parish where any work or service was performed or was to be performed under the terms of the contract. JjThe article is not facially ambiguous and does note restrict or limit its applicability to actions on certain types of contracts or to situations where a substantial or some other measurable amount of the contractual work or service was performed or was to be performed in the parish where the action is brought.
Coleman, p. 11, 677 So.2d at 684.

In Clarendon Nat'l Ins. Co. v. Belt, 33,997 (La.App. 2 Cir. 8/25/00), 766 So.2d 717, the Second Circuit held that declaratory judgment action filed by automobile liability insurer was action on a contract, and thus triggered venue rules under article 76.1, governing action on contract, to determine insurers’ rights and responsibilities under the contract of insurance. The court found that LSA-C.C.P. art. 76.1 does not expressly limit its application to any particular forms of contracts. 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 Louisiana Civil Code. LSA-C.C.P. art. 76.1 does not expressly limit its application to any particular forms of contracts. Clarendon National Insurance Company v. Belt, 33,997, p. 3 (La.App. 2 Cir. 8/25/00), 766 So.2d 717, 720.

In Louisiana Safety Association v. A-1 Pallet Com., 37,648, p. 3 (La.App. 2 Cir. 9/24/03), 855 So.2d 895, 897, where an insurer brought an action for non-payment of insurance premiums, the Second Circuit held that article 76.1 provided permissible venue options and applied in that case. The Second Circuit observed from Clarendon Nat’l Ins. Co. v. Belt, 33,997 (La.App 2 Cir. 8/25/00), 766 So.2d 717, that the provisions of LSA-C.C.P. art. 76.1 do not expressly limit the article’s application to any particular type of contract, and provides a permissive optional venue in keeping with the Louisiana Supreme Court’s interpretations of the venue statutes. (See Jordan v. Central Louisiana Elec. Co. Inc., 95-1270 (La.6/23/95), 656 So.2d 988.) The Second Circuit next stated:

InAs we appreciate Art. 76.1, “an action on a contract,” of whatever type, may be brought in “the parish where any work or service was performed or was to be performed under the terms of the contract. The article is not facially ambiguous and does not restrict or limit its applicability to actions on certain types of contracts or to situations where a substantial or some other measurable amount of the contractual work or service was performed or was to be performed in the parish where the action is brought.”
Id.

The Third Circuit in Guaranty Bank of Mamou v. State of Louisiana, 96-196 (La.App. 3 Cir. 7/17/96), 677 So.2d 1109, 1111-1112, the bank brought suit in the parish in which the bank was located the against State of Louisiana and student borrowers through the Office of Student Financial Assistance (OSFA), as guarantor, for its failure to honor its contract of guaranty on defaulted student loans made by the bank pursuant to the guaranty. The Third Circuit determined OSFA’s argument that venue would only be proper, under LSA-C.C.P. art. 42, in the parish of its domicile, East Baton Rouge Parish, is incorrect. Venue would also be proper under LSA-C.C.P. art. 76.1 in the parish where the contract of guaranty was executed or the parish where any work or service was performed or was to be performed under the terms of the contract under the provisions of article 76.1.

However, as previously mentioned, this court restricts LSA-C.C.P. art. 76.1 to actions on construction contracts. Specifically, in Lewis v. Marshall Bros. Lincoln-Mercury, Inc., 2004-0507 (La.App. 4 Cir. 5/19/04), 876 So.2d 142, a purchaser brought an action against a truck manufacturer wherein he alleged a redhibitory defect in a vehicle and argued that the action sounded in tort and contract. This Court held that the statute (LSA-C.C.P. art. 76.1) providing that an action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed |1?under the terms of the contract applies only to construction contracts and not to all contracts of every nature. “It is apparent, in view of the title to Act 217, that Article 76.1 was intended to apply to construction contracts and not all contracts of every nature.” Id. at p. 4, 876 So.2d at 145.

The decision to restrict the application of LSA-C.C.P. article 76.1 to construction cases only is contrary to the precedent established by the Louisiana Supreme Court, and which the other appellate courts of this state have followed. Accordingly, this panel has decided to address this issue en banc.

In light of the precedent firmly established by the Supreme Court and all Circuit Courts, we find article 76.1 is applicable to the insurance contract in this case. The policy declarations page indicates that the insurance contracts were executed in Orleans Parish, and Respondents have presented no evidence to refute this as fact. Accordingly, Orleans Parish is a proper venue for this action under LSA-C.C.P. art. 76.1. In coming to the conclusion that we have in this case, it becomes necessary to overrule Lewis v. Marshall Bros. Lincoln-Mercury, Inc., 2004-0507 (La.App. 4 Cir. 5/19/04), 876 So.2d 142. insofar as it is inconsistent with this decision.

In conclusion, we hereby grant the writ application and we reverse the judgment of the trial court.

WRIT GRANTED; JUDGMENT OF THE TRIAL COURT REVERSED.

ARMSTRONG, C.J., concurs.

BELSOME, J. concurs in the result with reasons.

ARMSTRONG, C.J.,

Concurs.

hi respectfully concur in the opinion of the majority. I note that the trial court’s judgment is consistent with what appeared to be the law of this circuit as expressed in this Court’s opinion in Lewis v. Marshall Bros. Lincoln-Mercury, 04-0507 (La.App. 4 Cir. 5/19/04), 876 So.2d 142. However, I now agree with the decision of the majority to overrule Lewis.

BELSOME, J.,

concurs in the result with reasons.

I respectfully concur in the result of the majority opinion. However, I find the emphasis placed on the pure dicta of the Lewis case erroneous. The instant case does not conflict with the case law of Lewis. In Lewis this Court affirmed the trial court’s ruling on an exception of venue because both defendants in the suit were non-Louisiana corporations with principal offices in Jefferson Parish. Thus, proper venue was Jefferson Parish not Orleans Parish. The entire analysis of La.C.C.P. art. 76.1 in Lewis is nothing more than dicta. Accordingly, I do not find that the majority opinion overrules the case law of Lewis.

      . We have submitted this issue to the Court en banc and a majority of the Judges have determined that Lewis v. Marshall Bros. Lincoln-Mercury Inc., 2004-0507 (La.App.4 Cir. 5/19/04), 876 So.2d 142 should be overruled. The following Judges voted to overrule: C.J. Armstrong, J. Jones, J. McKay, J. Bagneris, J. Kirby, J. Love, J. Gorbaty, J. Lombard and J. Cannizzaro. The following Judge voted not to overrule: J. Tobias. The following Judge recused: J. Murray. J. Belsome voted that it is unnecessary to overrule the Lewis case.