author: KNOLL, Justice.

text:
    EAGLE WATER, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 2006-CA-1899.
    Supreme Court of Louisiana.
    Jan. 17, 2007.

      Eve K. Gonzalez, Amanda H. Smith, for Appellant.

      The Boles Law Firm, Janet S. Boles, Baton Rouge, for Appellee.
   KNOLL, Justice.

hThe Louisiana Public Service Commission (Commission) appeals from a district court judgment which reversed the Commission’s denial of Eagle Water, Inc.’s (Eagle) request for a rate increase. Pursuant to La. Const. Ann. art. IV, § 21(E) this court has direct appellate jurisdiction to consider the judgment of the district court. After considering the record in this matter and the applicable law, we affirm the district court, in part, and reverse, in part.

FACTS AND PROCEDURAL HISTORY

Eagle is a company which provides water and wastewater services to customers in Caddo and Bossier Parishes. It had 839 water customers, only one of which is a commercial customer. Its had 1,246 wastewater customers, 10 of which are | ^commercial customers. On October 12, 2004, Theresa A. Knight (Knight), president of Eagle, applied with the Commission, seeking an increase in water and wastewater rates for residential and commercial customers. Eagle’s application was published in newspapers in the parishes where it provided services. No one intervened or opposed Eagle’s application.

After the Commission’s audit staff reviewed Eagle’s requests, it determined the requested increases would result in a 10.45% rate of return, a return it deemed fail' and reasonable based on Eagle’s rate base and operational needs. Accordingly, the audit staff recommended a majority of Eagle’s requested increases. The result equated to an increase in water revenues from $215,720.80 to $253,321.63 and sewer revenues from $304,326.00 to $375,600.00.

In due course, Eagle’s rate increase request was assigned to administrative law judge, Valerie Seal Meiners, and a hearing was convened on June 10, 2005. The audit staff recommended that Eagle be granted the increases it requested with regard to recurring water and sewer rates, but that Eagle be granted only some of the increases as to non-recurring fees. Eagle did not appear at the hearing, opting instead to submit Knight’s affidavit and stipulation that essentially listed the proposed increases and agreed to the audit staff recommendation. The administrative law judge produced a report of the proceedings, stating in part:

In light of the Applicant’s agreement to the Staffs recommendations, there are no disputed issues to be considered and addressed by the administrative law judge in the form of a recommendation. Instead, this Report of Proceedings provides a summary of the proceeding and of the proposed increases recommended by the Commission Staff and agreed to by the Applicant. Attached to the Report are a copy of the Commission Staffs Audit Memorandum, which contains the specifics of the Staffs analysis and recommendations, and a copy of the Affidavit and Stipulation, which confirms the company’s agreement with the Staffs recommendations.
All parties are advised that the Proposed Stipulation of the parties |swill be considered and voted on by the Commissioners at an upcoming monthly Commission meeting.

On September 14, 2005, the Commission considered the matter at its Business and Executive Session. On motion of Commissioner Foster Campbell, seconded by Commissioner C. Dale Sittig, and unanimously adopted, the Commission denied the proposed stipulation, thereby denying Eagle’s requested rate increase. On October 14, 2005, the Commission issued Order No. U-28293 which formally denied the stipulation entered into by the audit staff and Eagle, and further denied Eagle’s request for a rate increase.

Thereafter, Eagle’s president, Knight, submitted a letter, requesting a rehearing. The letter explained the increase was to obtain funds to cover $296,398 for repairs and improvements needed for the systems, including $68,473 for critical repairs. Knight’s letter further pointed out that most of these repairs were earmarked for newly acquired water and wastewater systems that previous owners had neglected. The letter stressed the necessity to make the repairs as soon as possible to prevent emergency breakdowns that could result in non-compliance with the Louisiana Department of Environmental Quality (DEQ) and the Louisiana Department of Health and Hospitals (DHH).

On November 9, 2005, the Commission considered Eagle’s request for rehearing. At the hearing, Knight outlined the following justifications for the rate increases sought: (1) extensive repair and renovation requirements needed to comply with DHH and DEQ; (2) the need to provide a $25,000.00 letter of credit for each sewer system to comply with DEQ mandates; (3) the increase in general operating expenses such as electrical, fuel and insurance. The Commission denied Eagle’s request for rehearing and issued Order No. U-28293A on December 12, 2005, formalizing that denial.

|4In accordance with La.Rev.Stat. Ann. §■45:1.192, Eagle filed a petition for appeal in the 19th Judicial District Court. Eagle’s petition alleged its requested rate increases were reasonable and just and that the Commission was arbitrary and capricious in denying its request. The Commission answered Eagle’s appeal, denying its order was arbitrary and capricious.

The district court conducted a hearing on Eagle’s appeal and reversed the Commission’s ruling. In its reasons for judgment, the court stated:

No doubt great weight is accorded any decisions and rules enunciated by the Public Service Commission in their area of expertise, which of course is regulation and rate making, but it is not law.
The Court is of the opinion that based upon the evidence in the record, the Public Service Commission acted arbitrarily, capriciously, and in clear abuse of its discretion and power. The Court is of the opinion that the record reflects by more than a preponderance of the evidence that the rate request was reasonable and necessary for compliance with other executive branch agencies, particularly the Department of Environmental Quality and EPA, in order to bring that utility up to standard. Therefore, the court hereby reverses the decision of the Public Service Commission and orders that rate increase be allowed in accordance with the evidence in the record.

The trial court judgment specified the Commission acted arbitrarily and capriciously | Bm denying Eagle’s requested rate increase. The judgment further provided as follows:

Louisiana Public Service Commission Orders U-28293 and U-28293A are hereby reversed and remanded to the Commission, and the Commission shall adopt the rate agreement stipulated to by the Commission Staff and Eagle Water, Inc.

The Commission then perfected a devolu-tive appeal to this Court.

DISCUSSION

The Commission contends the district court erred in finding its orders rejecting Eagle’s rate increase request were arbitrary and capricious. Relying on Gulf States Util., Inc. v. Louisiana Public Service Commission, 578 So.2d 71 (La.1991), it argues that although its audit staff recommended Eagle’s requested rate increase, it was not bound to accept that staff opinion.

Eagle concedes the Commission is the absolute decision maker in a rate case, but submits the Commission’s decision in the present case was not reasonably derived from the evidence. It further rejects the Commission’s contention that the district court exceeded its authority when it ordered implementation of the new rates.

Article IV, § 21(B) of the Louisiana Constitution establishes the Commission’s powers and duties, stating:

The Commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.

This provision gives the Commission constitutional jurisdiction over public utilities and has been interpreted as granting the Commission independent and | ^plenary power to regulate public utilities. Gulf States Utilities Co. v. Louisiana Public Service Com’n, 92-1185 (La.3/17/94), 633 So.2d 1258, 1263. Commenting on the plenary powers the Commission is given by this constitutional provision, we stated in Bowie v. Louisiana Public Service Com’n:

The Commission’s power in this regard is as complete in every respect as the regulatory power that would have been vested in the legislature in the absence of Article IV, Sec. 21(B). Therefore, the legislature’s acts or omissions can not subtract from the Commission’s exclusive, plenary power to regulate all common carriers and public utilities.

Bowie, 627 So.2d 164, 166 (La.1993) (citations omitted).

The Commission is created to exercise regulatory police power over public utilities, to compel the performance by utilities of their public duties, and to safeguard the interests of the utilities and the public. Morehouse Natural Gas Co. v. Louisiana Public Service Com’n, 242 La. 985, 140 So.2d 646, 651-52 (1962). Consequently, the Commission is vested explicitly and implicitly with the constitutional power necessary to perform its function of regulating public utilities through the adoption and enforcement of reasonable rules and orders fundamental to these purposes. Bowie, 627 So.2d at 166.

This Court has further held the Commission’s orders are presumed valid. Gulf States Utilities Co., 578 So.2d at 78. As a general rule, an order of the Commission should not be overturned on review unless it is shown to be arbitrary, capricious, abusive of its authority, or not reasonably based upon the evidence presented. Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1208, 1210 (La.1983); Radiofone, Inc. v. Louisiana Public Service Commission, 573 So.2d 460, 461 (La.1991). A Commission order is arbitrary and capricious only if based upon an error of law or not reasonably derived from the record evidence. Herman Brothers, Inc. v. Louisiana Public Service Commission, 564 So.2d 294, 297 (La.1990). While a ruling of the Commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence or to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666, 669 (1972). This standard of review, however, is restricted to the Commission’s assessment of the facts only in this case. Washington-St. Tammany Elec. Co-op., Inc. v. Louisiana Public Service Com’n, 95-1932 (La.4/8/96), 671 So.2d 908, 912.

Our review of the record shows there were no reasons explained at the Commission’s meeting on September 14, 2005, for the denial of Eagle’s rate increase request. It was not until this matter was considered on rehearing that Commissioner Foster Campbell, the Commissioner from the Caddo/Bossier area, noted three primary objections to Eagle’s request for a rate increase. First, Commissioner Campbell noted twenty percent of the requested annual increase was earmarked for a salary increase for Knight, the owner of Eagle. Second, he pointed out that if the water rate increase were approved, Eagle’s water rate would be the second-highest compared with the seven other Caddo/Bossier companies, and the proposed sewer rate would be the highest of the thirteen companies in the same area. Third, the Commissioner then stated he could not support giving Eagle an increase in rates, particularly because it had received an increase just two years prior. We now turn to the record |8to evaluate whether the Commission’s determination was supported by some factual evidence.

Paragraph 17 of one of Eagle’s attachments to its application for a rate increase shows that Knight is not only the owner of Eagle, but she also serves as its office manager. It further shows Eagle employs only one other clerical person other than Knight. The attachment states due to Eagle’s negative financial condition Knight draws a minimal salary and did not draw any salary from 1992-2000. Although we do not comment on the salary sought, the evidence does bear out a basis for including such an element in Eagle’s request. One of the principal purposes of rate-making is to establish rates at a level which gives the regulated industry adequate revenues to pay its legitimate expenses. South Central Bell Tel. Co. v. Louisiana Public Service Commission, 373 So.2d 478, 480 (La.1979). There is no evidence in the present case to show that the inclusion of Knight’s salary was not a legitimate expense.

Similar commentary is appropriate for the objection made to the resulting ranking of water and sewer rates in the region near Eagle’s geographic delivery area. The evidence shows all but two of the water companies in this area have not received a rate increase in eight to twelve years. Likewise, with regard to the $25.00 sewer rate Eagle sought, some rates of like companies in the area are already at that rate. The Commission begs the question when it rejected Eagle’s requested rate increase, stating Eagle would have the highest rate. Rather, regardless of the ultimate ranking of the area’s water and sewer providers, the focal point is whether the evidence justified Eagle’s rate increase, i.e., are there factors such as added public regulations,19needed repairs or renovations, or the acquisition of additional utility systems, to support a rate increase request. The evidence shows the existence of just such factors involved in Eagle’s rate increase request.

Finally, there is no basis for the objection that Eagle was not entitled to a rate increase because it had received one on April 19, 2002, more than three years from the date of the Commission’s rehearing on Eagle’s request for another rate increase. Nothing has been brought to our attention that restricts the frequency a utility company may seek a rate increase and we have found no such limitation.

A regulatory body such as the Commission is entitled to use its own judgment in evaluating evidence concerning a matter within its area of expertise, and is not bound even by uncontradicted opinion testimony of experts. Baton Rouge Water Works Co. v. Louisiana Public Service Commission, 342 So.2d 609, 611 (La.1977); South Central Bell Tel. Co. v. Louisiana Public Service Commission, 373 So.2d 478, 486 (La.1979). More particularly, as the Commission points out, it is not even bound to accept its own audit staffs expert opinion about a requested rate increase. Gulf States Util., Inc., 578 So.2d at 106. Notwithstanding those well established principles, if the Commission chooses to act in this manner, the record evidence must nonetheless exist to support its decision. A review of this record shows no such support exists. Accordingly, we find no error in the district court’s decision, finding the Commission’s denial of Eagle’s rate increase was arbitrary and capricious.

In the alternative, the Commission argues that if the district court judgment is affirmed as to its finding of arbitrariness and capriciousness on the part of the Commission, the district court nonetheless overstepped its authority when it remanded the case to “adopt the rate agreement stipulated to by the Commission Staff and Eagle Water, Inc.” We agree.

Under La. Const. Ann. art. IV, § 21, the Commission has exclusive jurisdiction in the first instance to fix or change any rate to be charged by a public utility and the courts are without power to fix or change rates until that commission has acted. Louisiana Power & Light Co. v. Louisiana Public Service Com’n, 523 So.2d 850, 856 (La.1988). Although courts are statutorily permitted to “change, modify, alter, or ... set ... aside [orders of the Commission], as justice may require,” La. Rev.Stat. Ann. § 45:1192, that statutory standard of review may not supercede or abrogate the constitutional scheme in which plenary ratemaking authority is delegated to the Public Service Commission. See La. Const. Ann. art. IV, § 21; Gulf States Utilities Co., 578 So.2d at 100; South Central Bell Telephone v. Louisiana Public Serv. Comm’n, 340 So.2d 1300, 1301 (La.1976) (holding that under the state constitution, the Commission has exclusive jurisdiction in the first instance to fix or change any rate to be charged by a public utility, and courts are without power to fix or change any rate until the Commission has acted). The Commission’s primary ratemaking authority was acknowledged in Louisiana Power & Light, 523 So.2d. at 856, in which this Court, although finding that the Commission’s failure to establish some kind of deferral plan was unreasonable, held the district court usurped the Commission’s constitutionally protected ratemaking authority when it chose one of the options open to the Commission. Here, the district court remanded the case to the Commission for adoption of the rate agreement to which the Commission audit staff and Eagle stipulated.

Eagle’s argument that the district court did not fix the rate is without merit. When the district court remanded the case to the Commission to adopt the rate agreement the Commission audit staff and Eagle stipulated to, it implicitly fixed the rate. Such authority does not lie with the district court. It bears remembering that Inalthough the Commission’s audit staff and Eagle entered into a stipulation and the administrative law judge initially accepted the stipulation for formal presentation to the Commission, a review of the initial hearing shows the Commission formally rejected that stipulation. Although this Court has sanctioned the Commission’s use of hearing examiners, we have carefully explained that such procedure does not constitute the Commission’s abdication of its decision-making duties specifically authorized in the Louisiana Constitution. See La. Const. Ann. art. IV, § 21; Gulf States Utilities Co., 578 So.2d at 81-82. To bind the Commission to a stipulation it never agreed to would be tantamount to the usurpation of the Commission’s sole constitutional authority to set rates. More particularly, as the administrative law judge’s reasons state, the stipulation encompassed the audit staffs recommended proposed rate increases; as such the stipulation between the audit staff and Eagle remained a recommendation until it would be considered and voted upon by the Commission. Accordingly, we find the district court should have simply remanded the case to the Commission for determination of Eagle’s rate increase application.

In making this determination, we further find no merit to Eagle’s contention that a remand would be contrary to the Commission’s constitutional mandate, requiring a rate to be put into place within one year of the filing for rate relief if the Commission has not acted. La. Const. Ann. art. IV, § 21(D)(2) requires the Commission to render a full decision on each application, petition, and proposed rate schedule within twelve months after the effective filing date. La. Const. Ann. art. IV, § 21(D)(3) further provides, “[i]f no decision is rendered on the application within twelve months after such filing date, the proposed increase may be put into effect[J” In the present case, the record shows Eagle submitted its application to the Commission on October 12, 2004. It further shows the Commission considered and | ^rendered an adverse decision on Eagle’s application on September 14, 2005. This chronology shows the Commission acted within the twelve month period provided in La. Const. Ann. art. IV, § 21.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed in part as to its finding the Commission was arbitrary and capricious when it denied Eagle’s application for rate increase; however, the district court judgment is reversed in part when it remanded the case to the Commission to “adopt the rate agreement stipulated to by the Commission Staff and Eagle Water, Inc.” Accordingly, this matter is remanded to the Commission to determine the appropriate rate increase sought in the application of Eagle Water, Inc.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED TO THE LOUISIANA PUBLIC SERVICE COMMISSION

      . La. Const. Ann. art. IV, § 21(E) provides:
      (E) Appeals. Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the sú-preme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.

      . La.Rev.Stat. Ann. § 45:1192 provides:
      If any of the persons, mentioned in R.S. 45:1191, or other party in interest, shall be dissatisfied with any order entered by the commission, adopting, fixing, changing, altering, or modifying, any rate, classification, rule, charge, or general regulation, and no application for rehearing is filed, the dissatisfied person may, within forty-five days after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of. When a timely application for a rehearing has been made at the commission, the time for appeal does not commence until the date of the commission order disposing of the rehearing application. All such cases shall be tried in the same manner as civil cases and shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible. The court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.

      . At oral argument, the Commission advised the Court that by letter dated June 6, 2006, it accepted the water and sewerage service rates Eagle filed on May 30, 2006. It further advised Eagle that the acceptance was made subject to refund, including interest if this Court ultimately affirmed the Commission’s original decision in Order U-28293.

      . The purpose underlying the requirement that an agency must provide a statement of findings as to disputed issues and reasons for its determination is “to enable a reviewing court to determine with some measure of confidence whether or not the ratemaking authority, which still remains in the Commission, has been exercised in a manner which is not arbitrary, capricious or unreasonable.” Gulf States Utilities Co. v. Louisiana Public Service Com’n, 578 So.2d 71, 83 (La.1991), quoting Central Louisiana Electric Co. v. Louisiana Public Service Comm’n, 437 So.2d 278, 279 (La.1983).

      . The attorney for the Commission commented at the November 9, 2005 rehearing that addressed the DEQ and DHH compliance problems. When Commissioner Campbell queried the Commission's attorney, asking whether the other twelve sewer and. water companies in the Shreveport/Bossier area needed rate increases, the Commission's attorney responded affirmatively.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Willard James BROWN, Sr.
    No. 2006-B-2994.
    Supreme Court of Louisiana.
    Jan. 26, 2007.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected a client’s post-conviction relief matter and failed to communicate with his client. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which respondent admits that his conduct violated Rules 1.3, 1.4, and 8.4(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Willard James Brown, Sr., Louisiana Bar Roll number 23405, be publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall enroll in and attend the Ethics School program offered by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: GREG G. GUIDRY, Judge.

text:
    BUREAUS INVESTMENT GROUP # 2, LLC v. Mark A. HOWARD.
    No. 06-CA-273.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 14, 2006.
    Edwin A. Smith, III, Attorney at Law, Baton Rouge, Louisiana, for Plaintiff/Ap-pellee.
    Richard M. Millet, Attorney at Law, Laplace, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

[2The Defendant, Mark Howard (Howard), appeals from the default judgment entered against him in favor of the Plaintiff, Bureaus Investment Group # 2, LLC (Bureaus Investment), on an overdue Chase Visa/Mastercard (Chase) charge account. He also filed an exception of prescription in this Court. For the reasons which follow, we vacate the default judgment, deny the exception and remand.

On August 4, 2005, Bureaus Investment filed a petition against Howard alleging that it is the assignee of a past due charge account Howard had with Chase. Bureaus Investment alleges that Howard was furnished certain goods and services on the account and he has failed and refused to pay the charges incurred. Bureaus Investment further contends that Howard owes the principal sum of $4,403.05, together with interest at the rate of 20% per annum from June 8, 2005 until paid and an additional sum of 25% of both principal and interest as attorney fees. No answer was timely filed by Howard. Thereafter, on November 14, 2005, | (¡Bureaus Investment had a preliminary default entered against Howard. On December 13, 2005 the preliminary default was confirmed and made final and judgment was entered against Howard, as requested, for $4,403.05, together with interest at the rate of 20% per annum from June 8, 2005 until paid, and an additional sum of 25% on both principal and interest as attorney fees, and costs. It is from this judgment that Howard appeals.

On appeal Howard assigns one error. He argues that the proof of the demand entered to confirm the default was not sufficient to support the judgment. More specifically, he points out that the record is lacking any proof that Bureaus Investment is the creditor/assignee of Howard’s alleged past due account.

Bureaus Investment argues that the necessary proof can be derived from its request for admissions that Howard failed to answer. It is argued that due to Howard’s failure to answer, the facts derived from the request for admissions should be deemed admitted. Bureaus Investment also argues that Howard’s failure to challenge the facts asserted by it is indicative of his lack of a defense.

It is well settled that a prima facie case sufficient to confirm a default judgment is established only when the party proves with competent evidence the essential allegations of his petition as fully as if each of the allegations were specifically denied. Beevers v. Burmaster, 00-1951 (La.App. 5th Cir.4/11/01), 787 So.2d 381; Bennett v. Bennett, 97-1150 (La.App. 5th Cir.7/28/98), 716 So.2d 454; Fridge v. Sampognaro, 97-240 (La.App. 5th Cir.9/30/97), 700 So.2d 1090. Hearsay evidence is not considered competent evidence in establishing a prima facia case sufficient to confirm a default judgment. Zahn v. Hibernia Nat. Bank, 94-204 (La.App. 5th Cir.11/16/94), 646 So.2d 1149; Cornish v. Doctors Care, LLC, 2002-0285 (La.App. 4th Cir.6/12/02), 819 So.2d 1158; Martin v. Sanders, 35,575 (La.App. 2nd Cir.1/23/02), 805 So.2d 1209.

|4In reviewing the evidence presented to confirm the default, we find that it was' insufficient to establish a prima facie case to support the confirmation of the default. Even assuming adequate evidence of a past due debt owed by Howard, we find the record is void of any proof supporting the petition allegations that Bureaus Investment is the creditor of the debt owed by Howard. The record does contain a “Bill of Sale” from Chase to Bureaus Investment, indicating that certain unspecified accounts were purchased by it from Chase. This “Bill of Sale” refers to an exhibit identifying the purchased accounts. However, the exhibit is not included in the record. Therefore, there is nothing in the record to indicate that Bureaus Investment was the creditor/assignee of Howard’s account with Chase. Absent proof that Bureaus Investment has the right to seek the requested relief, the judgment cannot stand.

On October 3, 2006, Howard filed an exception of prescription in this Court. It was referred to the merits. Considering the exception, we find it lacks merit.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Campo v. Correa, 2001-2707, p. 7 (La.6/21/02), 828 So.2d 502, 507; Waguespack v. Judge, 04-137, p. 4 (La.App. 5 th Cir. 6/29/04), 877 So.2d 1090, 1092; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993).

In this case, prescription was not evident on the face of the pleadings. In fact, the petition does not provide any dates concerning when the indebtedness was incurred. Howard did not present any proof that the indebtedness was incurred beyond the prescriptive period. The record simply provides no information to I.«¡support or oppose the exception. The absence of proof of the dates the debts were incurred does not prove prescription on the face of the pleading. Thus, we find that Howard did not meet his burden of proving the grounds supporting the exception.

Accordingly, we vacate the default judgment granted in favor of Bureaus 'Investment Group #2, LLC and against Mark Howard, deny the exception of prescription filed in this Court and remand to the trial court for further proceedings. Costs of appeal are assessed against Bureaus Investment.

JUDGMENT VACATED EXCEPTION DENIED CASE REMANDED.

      . Even Bureaus Investment’s request for admissions did not include a request for Howard to admit that Bureaus Investment had acquired this account from his former creditor, Chase.


author: SUSAN M. CHEHARDY, Judge.

text:
    CHAMPAGNE AND RODGERS REALTY COMPANY, INC. v. Judith Henning, Wife of/and Michael J. GUILLOT and Thelma Marie Legendre, Wife of/and Clem B. Guillot, Jr.
    No. 06-CA-237.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 14, 2006.

      Charles E. McHale, Jr., Leo D. Congeni, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant, Champagne and Rodgers Realty Company, Inc.
    Clement F. Perschall, Jr., Attorney at Law, Metairie, Louisiana, for Defendants/Appellees, Thelma Marie Legendre, Wife of/and Clem B. Guillot, Jr.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

12This appeal arises from an attempt to revive a money judgment obtained in 1988. The plaintiff, who is the judgment creditor, appeals a judgment denying its motion for new trial after a prior judgment annulled the judgment of revival and held that any subsequent proceedings were without effect because the time limit had expired. We affirm.

BACKGROUND

The history of this case is convoluted. The plaintiff and judgment creditor is Champagne and Rodgers Realty Company, Inc. (“C & R”). In 1987, C & R filed suit against Thelma Marie Legendre, wife of/and Clem B. Guillot, Jr., and others, seeking a deficiency judgment following C & R’s foreclosure on and sale of real property that secured a promissory note.

The original creditors, Mary Boudreaux, wife of/and James C. Smith, had assigned the note to C & R, a closely-held corporation in which James C. Smith and his wife were the only shareholders. James C. Smith was also president of C & R. Pursuant to C & R’s petition, the trial court rendered a deficiency judgment in C & R’s favor on August 26, 1988, awarding judgment in favor of C & R against Judith Henning, wife o^and Michael J. Guillot, and Thelma Marie Legendre, wife | sof/and Clem B. Guillot, Jr., in the amount of $480,172.57, together with interest and costs.

C & R fded a motion to have the judgment amended to exclude Judith Henning, wife of/and Michael J. Guillot because those defendants were never served with the original petition. The trial court granted the motion and rendered an amended judgment naming only Thelma Marie Legendre, wife of/and Clem B. Guil-lot, Jr. as defendants cast in judgment. The amended judgment was rendered on August 29, 1988, within the seven-day period allowed by La.C.C.P. art.1974 for the filing of new trial motions.

Thelma Marie Legendre and Clem B. Guillot, Jr. (“the Guillots”) filed a motion for new trial, which was denied. They appealed, but the judgment was upheld on appeal.

James C. Smith died in 1990. A succession proceeding was opened in Orleans Parish and on November 6, 1996 the Orleans Parish court appointed Robert E. Jones administrator of the succession. The court issued Letters of Administration to Jones on June 2,1997.

On December 17, 1997, the Civil District Court maintained an exception of lack of subject matter jurisdiction raised by one of the heirs (James C. Smith, Jr.), on the basis that the decedent was a resident of Mississippi. That judgment was amended on January 21, 1998 to correct a typographical error in the caption. On April 8, 1998 Stephen Selwyn Smith filed a Motion for Appeal of the judgment signed on December 17,1997.

On August 26,1998, a Petition for Revival of Judgment was filed in Jefferson Parish by Robert E. Jones, III, appearing in his capacity of administrator |4of the Succession of James C. Smith, Sr. Mr. Jones, who is also an attorney, represented himself. The petition sought to revive the deficiency judgment that C & R had obtained in 1988.

On October 30, 1998, the Guillots filed an exception of no right of action and no cause of action, asserting that C & R was not entitled to revival of the judgment because the petition for revival did not reflect that Robert E. Jones, III, was representing C & R, nor did the petition assert that Jones had acquired rights in the judgment sought to be revived.

In addition, the Guillots alleged that the succession proceeding of which Robert Jones was purportedly the administrator had been dismissed for lack of subject matter jurisdiction on December 17, 1997, so that when Jones filed the petition for revival of the judgment, he lacked legal capacity as a succession representative. The Guillots asserted that Jones is not the judgment creditor, and that he alleged no real interest in the matter in question.

In opposition, C & R argued that pursuant to La.C.C.P. art.2031, a money judgment may be revived at any time before it prescribes by an interested party and, therefore, a succession representative is a proper party to bring the action.

The district court overruled the exception of no cause of action and no right of action on February 19, 1999, without assigning written reasons for the ruling.

On March 17, 1999, Stephen Selwyn Smith’s appeal of the December 17, 1997 judgment was dismissed by the Fourth Circuit Court of Appeal due to the 11⅞appellant’s failure to respond to the court’s briefing notice and in compliance with Rule 2-8.6 of the Uniform Rules, Courts of Appeal.

In October 1999, Stephen Selwyn Smith filed a Petition for Ancillary Succession Proceedings in the 24th Judicial District Court for the Parish of Jefferson, under No. 545-289. He alleged that James C. Smith, Sr. was a resident of Pearl River County, Mississippi at the time of his death; that his succession proceeding had been opened in Mississippi; that the petitioner had been appointed and qualified as administrator of the Succession of James C. Smith, Sr.; and that the petitioner desired to be qualified in Louisiana as Administrator of the Succession of James C. Smith, Sr. to administer assets in Louisiana. The petitioner attached Letters of Administration issued by the Mississippi court on October 5,1999.

The 24th Judicial District Court issued ancillary letters of administration on October 14, 1999. On January 4, 2000 the court issued an order granting Stephen Selwyn Smith authority to continue the business of C & R.

On February 3, 2002, Stephen Selwyn Smith filed a motion to be substituted as plaintiff in this matter in lieu of Robert E. Jones, III. Stephen Selwyn Smith alleged he was the duly appointed administrator of the Succession of James C. Smith, Sr. in ancillary succession proceedings in Jefferson Parish, and that he also was the duly appointed President and Chairman of the Board of Champagne and Rodgers Realty Co., Inc. He attached the ancillary letters of administration the 24th Judicial District Court had issued, as well as the order granting him authority to ^continue C & R’s business, but he made no mention of the 1997 Civil District Court order that dismissed the Orleans Parish succession proceeding.

On February 3, 2002 the court granted Stephen Selwyn Smith’s motion to be substituted as plaintiff in this matter. On February 19, 2002, on motion of Stephen Selwyn Smith, the court confirmed a default judgment reviving the judgment of August 26, 1988 as amended on August 29, 1988.

On November 29, 2004, the defendants filed a Motion for a New Trial and Motion to Vacate Judgment. They alleged numerous defects in the proceedings by which the revival judgment was obtained, errors that included not only vices of substances but also vices of form. The defendants alleged, among other things, that Robert Jones had advised them that he would take no adverse action against the defendants without advising their counsel in advance, but that Stephen Selwyn Smith filed pleadings on behalf of the Succession of James C. Smith, Sr., although Robert E. Jones, III never withdrew as counsel of record. The defendants asserted further that neither they nor their counsel received copies of various pleadings the plaintiff purportedly sent them; that the motion for preliminary default filed by Stephen Selwyn Smith, and signed by the court, was against Thelma Marie Legendre only, yet the judgment granting the revival of the judgment was against “defendant”; that the record did not contain other documents required to support confirmation of a default judgment; that no notice of the signing of the default judgment was ever served on them; and other flaws in the procedure and/or documents.

In a supplemental and amending Motion for New Trial and Motion to Vacate Judgment, the defendants alleged the default judgment of February 19, 2002 was null and the entire proceeding to revive the 1988 judgment should be dismissed on the following grounds:

|7a. The appointment of Robert E. Jones, III as administrator for the Succession of James E. Smith, Sr. was a nullity because the Civil District Court lacked subject matter jurisdiction;
b. The nullity of the appointment of Robert Jones created a nonsuit in this action and more than 10 years had elapsed from the finality of the judgment sought to be revived;
c. The order authorizing Stephen Sel-wyn Smith to be substituted as a party plaintiff was null and/or resulted from fraud and/or ill practice associated with the appointment of Stephen Selwyn Smith through an ancillary succession proceeding opened in the 24th Judicial District Court in October 1999;
d. Any determination regarding stock of Champagne and Rogers Realty Co., Inc. vested in the Mississippi estate proceedings because both James C. Smith, Sr. and his wife, Mary Boudreaux Smith, died while domiciled in Mississippi;
e. No Louisiana ancillary succession proceeding was necessary as to any stock interest in Champagne and Rogers;
f. Stephen Selwyn Smith was not the authorized president and/or chairman of the board of Champagne and Rogers because he did not have legal authority to vote the entirety of the stock of Champagne and Rogers;
g. Alternatively, that at the time the ancillary succession proceedings were opened, the interest in the Champagne and Rogers stock was vested in the children and grandchildren of Mary Boudreaux Smith by the Mississippi judgments recognizing her heirs and closing her Mississippi estate proceeding;
|sh. Neither the president nor the chairman of the board of Champagne and Rogers is a proper party to this proceeding, since the judgment in question was in favor of Champagne and Rogers and not its alleged president and/or chairman of the board;
i. Stephen Selwyn Smith was not, and is not, a licensed Louisiana attorney and could not legally represent any of the alleged parties sought to be substituted in this proceeding.

ACTION OF THE TRIAL COURT

On June 7, 2005 the trial court rendered judgment granting the defendants’ motion for new trial and motion to vacate judgment. The court vacated the default judgment reviving the 1988 judgment, and dismissed the petition for revival of the judgment, on the ground that the time within which the judgment could be revived had expired.

In written reasons for judgment, the court found that the motion for new trial was timely because no notice of judgment, as required by La.C.C.P. art. 1702, was served on the defendants.

The court further found that the petition for revival of judgment was invalid because the order appointing Robert E. Jones, III, as administrator of the succession was void and without effect, having been issued by a court that lacked subject matter jurisdiction. The court further found that no other legally valid petition had been filed within the ten-year prescriptive period to revive the original judgment.

Subsequently, C & R’s motion for new trial was denied. This appeal is taken by C & R and by Stephen Selwyn Smith as president and chairman of the board of directors of C & R.

1 aThe appellants assert the district court erred in the following respects: in vacating the revival judgment because the defendant filed its Motion to Vacate after expiration of the one year prescriptive period and failed to establish a vice of form or substance; in holding that the court lacked subject matter jurisdiction over the revival proceedings; in holding that the service of the revival judgment was invalid; in failing to hold that the revival judgment cannot be vacated under La.C.C.P. art.2004 because the defendants failed to establish fraud or ill practices and because defendants’ Motion to Vacate was filed after one year of discovery of the purported fraud or ill practices; in failing to apply La.C.C.P. art.2006, which requires that an action to annul a judgment must be by direct and not summary action; in failing to apply the law of the case doctrine to the prior decision of the court overruling the exception of no right of action filed by defendants, which exception was denied by the district court on February 19, 1999; in allowing inadmissible evidence on the argument on a Motion for New Trial; in not allowing the plaintiff to amend its Petition for Revival.

LAW AND ANALYSIS

A final judgment may be annulled for vices of either form or substance. La. C.C.P. art. 2001.

The vices of form are listed in Article 2002:

A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

|,nLa.C.C.P. Art. 2002.

The jurisprudence refers to the nullities established by Art.2002 as “absolute nullities,” and permits these to be asserted at any time, in a collateral proceeding, and before any court. See, Webster v. Boh Bros. Const. Co., Inc., 603 So.2d 761 (La.App. 4 Cir.1992) (on rehearing).

Article 2004 lists the vices of substance, and the time limit within which to assert an action on such grounds:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

La.C.C.P. Art. 2004.

The jurisprudence refers to these as “relative nullities,” which may only be asserted in a direct action filed in the court that rendered the judgment, and the adverse party must be cited to appear as in ordinary suits. See Calcasieu Parish School Bd. v. Parker, 02-339 (La.App. 3 Cir. 10/2/02), 827 So.2d 543, 'writ denied, 02-2719 (La.1/10/03), 834 So.2d 440; Wood v. Wood, 440 So.2d 906 (La.App. 2 Cir.1983).

C & R argues that the district court erred in holding that the court lacked subject matter jurisdiction over the revival proceedings. Our review of the judgment and reasons for judgment reveals that C & R has misinterpreted the trial court’s comments about subject matter jurisdiction. The court was referring not to the Jefferson Parish proceedings, but rather to the Orleans Parish proceedings in l^which Robert Jones was appointed administrator of the succession of James C. Smith, Sr., and in which Stephen Selwyn Smith subsequently obtained an order appointing him as administrator.

The court pointed out, correctly, that at the time Robert Jones filed the Petition for Revival of Judgment, the Civil District Court had ruled that it had no subject matter jurisdiction over the succession. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. La.C.C.P. art. 3. “When a judgment is absolutely null based on a jurisdictional ground, it has no legal existence, and its nullity may be shown in collateral proceedings at any time and before any court.” Taylor v. Hixson Autoplex of Alexandria, Inc., 2000-1096, pp. 6-7 (La.App. 3 Cir. 3/28/01), 781 So.2d 1282, 1286, unit not considered, 2001-1539 (La.9/14/01), 796 So.2d 670.

Hence, the order issued in the Civil District Court succession proceeding appointing Jones as administrator was void and could confer no authority to administer the succession. Any acts performed by Jones pursuant to the null order are without effect. Accordingly, Jones had no authority to appear on behalf of the succession to pursue the revival action involving C &R.

Jones’ filing of the Petition for Revival of Judgment on August 26,1998, therefore, was without effect. The ten-year prescriptive period expired a few days later. Consequently, all subsequent acts relating back to the Petition for Revival of Judgment are void. The Motion and Order to Substitute Parties Plaintiff, filed by Stephen Selwyn Smith as purported administrator of the succession on February 3, 2002, cannot correct what was already declared null. Effectively, the Petition for Revival of Judgment was de facto quashed by the determination that Orleans Parish had no subject matter jurisdiction over the succession proceedings.

11g,Further, although Stephen Selwyn Smith filed ancillary succession proceedings in Jefferson Parish, the deadline to pursue revival of the 1988 judgment had long since passed, and it could not be revived by Smith’s attempts.

The Jefferson Parish district court has subject matter jurisdiction over a petition for revival of a judgment rendered by that court, but the petition in this case was void because it was filed by a person without authority to do so. The Orleans Parish court’s ruling on subject matter jurisdiction meant that actions taken by Jones on behalf of the succession were void ab ini-tio.

C & R argues that the only objection that could be raised to Jones’ filing of the petition for revival is no right of action. Because the trial court overruled the defendants’ exception of no right of action early in the revival proceedings, the plaintiff asserts that ruling is law of the case and cannot be changed.

Under La.C.C.P. art. 925(B), however, the failure to disclose a right or interest in the plaintiff to institute the suit may be noticed by either the trial or appellate court of its own motion. Hence, the trial court did not err in recognizing that Robert Jones had no authority to file the revival action.

C & R argues, alternatively, that the theory of law of the case should be applied to maintain the earlier ruling denying the exception of no right of action. However, that ruling was interlocutory and no party ever sought supervisory review of it. Under law of the case doctrine, courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case. Pumphrey v. City of New Orleans, 05-979 (La.4/4/06), 925 So.2d 1202, 1207. Where there is no ruling by an appellate court, there is no “law of the case,” and an interlocutory ruling is subject to change later in the proceedings:

h sUnlike the statutory doctrine of res judicata, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly. “Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.” In addition to the latter exception for palpable error, the jurisprudence has recognized two other contexts in which this discretionary doctrine will not be applied. First, it will not be applied to “supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions.” Second, it will not be applied when the underlying, operative facts upon which the court’s prior decision was based have changed. Under the “law of the case” doctrine, an appellate court ordinarily will not reconsider its own rulings of the law in the same case. [Citations omitted.]

Bank One, Nat. Ass’n v. Velten, 04-2001, p. 7 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 459, writ denied, 06-40 (La.4/28/06), 927 So.2d 283.

We conclude the trial court’s ruling was correct. In view of our determination, we need not address C & R’s remaining assignments of error.

We distinguish our just-rendered decision in Guillot v. Laprop, Inc., 06-225 (La.App. 5 Cir. 10/06/06), 943 So.2d 541, in which one of the defendants in this case, Clement B. Guillot, Jr., sought to set aside sheriffs sales of immovable property sold in 1992 in partial satisfaction of the judgment that C & R is attempting to revive in this case. In Guillot v. Laprop, Inc., we upheld the district court’s granting of an exception of prescription to the action to set aside the sheriffs sale. In that case Guillot argued on appeal that the sheriffs sales were invalid due to the nullity of the original judgment upon which the writ of fieri facias was issued. We declined to address that argument because it was not pleaded in the court below and the lower court had no opportunity to address it.

| i4For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellants, Champagne and Rodgers Realty Company, Inc., and Stephen Selwyn Smith.

AFFIRMED.

      . Champagne and Rodgers Realty Co., Inc. v. Henning, 548 So.2d 969 (La.App. 5 Cir.1989) (not designated for publication), writ denied, 552 So.2d 394 (La.1989).

      . Succession of James C. Smith, Sr., No. 91-11018, Civil District Court for the Parish of Orleans, State of Louisiana.

      . Champagne and Rogers Realty Company v. Henning, No. 355-268, 24th Judicial District Court, Parish of Jefferson, State of Louisiana (the case in which this appeal arises).

      .On September 8, 1998, the court ex parte signed an order that granted the petition for revival of the judgment. The defendants filed a rule to show cause why the order should not be vacated. They alleged that the court signed the order prior to their being served with the petition for revival of judgment. Although the designated record before us contains no court ruling indicating that the order was vacated, the appellant's brief states that the parties agreed to vacate the revival judgment dated September 8, 1998 because the defendants were not served with the petition until September 15, 1998.

      . Succession of Smith, 91-11018 (Civ. Distr. Ct., Orleans, 12/17/97, amended 1/21/98). The court found there was no subject matter jurisdiction because the decedent, John C. Smith, Sr., was a resident of Mississippi. Stephen Selwyn Smith appealed that ruling, but his appeal was dismissed for abandonment.

      . Succession of Smith, 98-2640 (La.App. 4 Cir. 3/17/99) (unpublished order). See n. 5, supra.

      . In the Matter of the Estate of James C. Smith, Sr., Deceased, No. 25,849-GN-W, Chancery Court of Pearl River County, State of Mississippi.

      . Stephen Selwyn Smith's appointment as administrator of the Mississippi estate proceeding was set aside as void on July 18, 2005, for the reasons that at the time of his appointment, Stephen Selwyn Smith had been convicted of a felony (in 1973) and his appointment was prohibited by Mississippi law and was void. Further, at the time of his appointment, Stephen Selwyn Smith, in support of his motion to have himself appointed as administrator, submitted to the court as exhibits two court orders from the Orleans Parish Civil District Court that were voided on appeal. The Chancellor in the Mississippi court stated, "This misrepresentation is an additional basis for setting aside this appointment.” The court set aside his appointment nunc pro tunc to June 6, 1991.

      . Although an action to annul for vices of form may be brought at any time, "[a] defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.” La.C.C.P. Art. 2003.

      . The judge who overruled the exception of no right of action, Judge Robert Murphy, re-cused himself later in the proceedings when he discovered that a former law partner of his had handled some matters in this case when Judge Murphy was still a member of the law firm, prior to being elected to the bench. Judge Joseph Tiemann was appointed ad hoc to hear the remainder of the proceedings, and he rendered the judgment now on appeal.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Shannon L. WILLIAMS.
    No. 06-KA-642.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 20, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    David H. Alfortish, Attorney at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   EDWARDS, Judge.

Defendant, Shannon L. Williams, appeals the revocation of his probation for fourth offense driving while intoxicated (DWI) in violation of LSA-R.S. 14:98(E).

The State filed a motion to dismiss Williams’ appeal, asserting that a probation revocation judgment is not an ap-pealable judgment. The motion correctly states the law that the revocation of a defendant’s probation is subject to review in the appellate court by an application for supervisory writs, not by appeal. LSA-C.Cr.P. art. 912; State v. McDougald, 02-279 (La.App. 5 Cir. 9/30/02), 829 So.2d 525, 526. The State cited in its Motion' To Dismiss a 1994 determination by this Court that it would no longer convert appeals of non-appealable matters to writ applications. However, in 2004 this Court decided that converting appeals to writs would be left to the discretion of the panel hearing the appeal.

In the present case, we grant the State’s Motion To Dismiss Appeal, reserving Williams’ right to file his application for writ of review within thirty days of the date of this opinion.

DISMISSED.


text:
    STATE of Louisiana v. Earl S. DAVIS.
    No. 06-KA-402.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Doug Freese, Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|aThe Defendant, Earl S. Davis, appeals his convictions of second degree murder in violation of La.R.S. 14:30, and conspiracy to commit armed robbery in violation of La.R.S. 14:26 and 14:64. We affirm.

The Defendant was charged by indictment on August 21, 2003 along with his co-defendants, Joseph Johnson and Shacira L. Marshall, with the second degree murder of Michael Pierre. He was subsequently found guilty by a jury on Mayl3, 2004. The Defendant’s motion for new trial was denied, and on June 28, 2004, he was sentenced to life imprisonment at hard labor to be served without benefit of parole, probation or suspension of sentence for the second degree murder. He was sentenced to 49½ years imprisonment at hard labor for the conspiracy to commit armed robbery conviction to run concurrently with the murder conviction.

| ..FACTS

On June 24, 2003, Michael Pierre (the victim) was found dead of gunshot wounds by his brother, Craig Pierre (Pierre) in his apartment on Holmes Boulevard in Gret-na, Louisiana. The victim was shot once in the left side of his neck, and three times in the right side of his head.

Pierre had been with his brother until approximately 11:30 a.m. that day. Sometime before noon, Pierre’s wife received a phone call from her brother, Hazel Harris, telling her to have Craig Pierre check on Michael Pierre, because someone told Harris’ ex-girlfriend that shots had been heard in the apartment. Harris was the victim’s roommate. Pierre resided in the same apartment complex. When Pierre went to the victim’s apartment, he received no answer when he knocked on the door. He did not pursue the matter and went home. Around 4:00 or 5:00 p.m., Pierre was told by the victim’s neighbor to go and check on his brother. When he peeked through the window of the apartment, he saw the victim sitting in a puddle of blood.

Donald Meunier of the Jefferson Parish Sheriffs Office investigated the crime. As part of the investigation, various people, including spectators at the scene of the police activity and in neighboring houses were questioned. As a result of the investigation, statements were taken from the next door neighbor, Shacira Marshall, Joseph Johnson, and the Defendant. Based on the statements taken from Johnson, Marshall and the Defendant, and two witnesses placing the Defendant at the complex on the morning of the shooting, the three were arrested and charged with the crime. According to Detective Meunier, no physical evidence was recovered linking the Defendant, Marshall or Johnson to the scene of the murder.

^Detective Meunier testified that co-defendant Marshall lived next door to the victim in Apartment H-3 and the apartments shared an adjoining wall. His attention was drawn to Marshall, because she stated she was in her apartment and heard what could have been gunshots or cabinets slamming, but failed to contact the police. Instead, she called Lakesha Dupre, a former resident, and Harris’ ex-girlfriend, although Dupre had moved out weeks earlier. In addition, she told the Detective that she came into contact with Johnson at 10:57 a.m., a very specific time, which was unusual. He found this particularly suspicious when Johnson gave the same exact time in his statement. The Detective said that most witnesses tend to round off times and do not pinpoint the times to the exact minute. The Defendant’s name was not mentioned in Marshall’s statement.

A few hours after the Detective interviewed Marshall, co-defendant Johnson arrived at the detective bureau. He gave four taped statements. The first two roughly paralleled Marshall’s. Marshall and Johnson provided alibis for each other. They claimed they were in Marshall’s apartment at the time of the gunshots and that they left there together. In Johnson’s two additional statements, he did not implicate himself as a participant in the murder, but gave significant details suggesting he was inside the apartment. Johnson accused Rodney Royal of being the killer. The Defendant’s name did not come up in any of Johnson’s statements. Detective Meunier found it troubling that Johnson also heard gunshots but did not call the police. Johnson had recently suffered gun shot wounds and should recognize the sound according to Detective Meunier.

| BThe Defendant was sought as a potential witness after the Detective received information from two people at the scene of the shooting suggesting the Defendant was at the apartment complex in the morning hours on the day of the murder. One witnesses referred to “Earl” and the other named the Defendant. Detective Meunier went to the Defendant’s last known address and left a business card with his mother. The Defendant contacted him shortly thereafter by telephone and met him at the detective bureau within minutes. When asked to account for his whereabouts on the day of the incident, he gave an account which did not include his presence at the complex when witnesses had suggested otherwise. This inconsistency raised “red flags” and the Defendant was advised of his rights. The Defendant gave four taped statements which were played at trial, and the transcriptions of the statements were published to the jury.

After Detective Meunier spoke with the Defendant, Johnson was interviewed again and admitted he falsely accused Rodney Royal.

Defendant’s Statements

In the Defendant’s first statement, he denied being at the complex on the morning of the murder. He stated he woke up at his girlfriend’s, Diamond Guidry’s, house around 10:30 a.m. and called his friend Bolo. The Defendant claimed he did not leave Guidry’s until 6:15 p.m. At that time, he went to Holmes Boulevard where the complex was located, and learned the victim had been shot and killed. While there, he talked to “Kyra” (Marshall) who lived in the apartment next to the victim’s. Marshall told him she heard “cabinets slamming.” He stated that Joe (Johnson), who had a bullet wound in his left leg, told Marshall “I wasn’t | Jiere.” The Defendant denied having contact with either Marshall or Johnson earlier in the morning.

Although in the Defendant’s first statement he stated that he called his friend Bolo at around 10:30, at trial the Defendant said the call was around 5:00 p.m. However, Jeffrey Fleming, a Cox Communications employee, testified that the first call made from telephone number 301-1439 on June 24, 2003 was at 11:55 a.m. The Defendant admitted that this was Diamond Guidry’s telephone number.

In his second taped statement, the Defendant implicated himself in the events leading to the murder. The Defendant said he arrived at Holmes Boulevard on the date of the accident in a Prism and saw someone named Gilbert. According to the Defendant, Johnson called to him to come up and “handle some business.” Johnson said he wanted to go to the victim’s apartment to borrow some money. While they were inside Marshall’s apartment, the Defendant said that he heard Johnson tell Marshall to telephone the victim’s apartment to make sure no one was there. Knowing the purpose of making the call, Marshall called “Keisha,” who “stayed” in that apartment. When Marshall found out that Keisha was not in the apartment, Johnson told Marshall to act as lookout to make sure nobody came and if someone did to “holler or something.” They then went to the victim’s apartment. The victim answered the door, let them in, and told them to close the door, because he did not want anybody over there. The Defendant locked the deadbolt. Johnson pulled out a gun and pointed it at the victim asking him 17“where it’s at.” Johnson also told the Defendant to go upstairs and “look.” The Defendant said that he searched for money, dope and- “whatever.” After looking through furniture drawers and underneath the mattress, the Defendant returned downstairs. The Defendant testified that before he reached the bottom, while standing on the steps, he heard three shots. The Defendant said that the victim was shot first in the head, spinning him to the left. The victim then fell to the ground in the kitchen. The Defendant stated that he saw the victim on his knees with his hands up in the air begging for his life, and that the victim slumped down after the other shots were fired. After the shooting, the Defendant unlocked the apartment door, opened it, and ran -into Marshall’s apartment. Johnson was behind him. The Defendant claimed that Johnson told Marshall he shot the victim, because the victim saw Johnson’s face. Approximately five minutes later, the three left the premises in the Prism. The Defendant drove Marshall .and Johnson to his “Auntee’s house,” dropped them off, and left. According to the Defendant, he returned to the scene of the crime at 6:30 p.m. The police were there at that time.

The Defendant denied getting anything from the apartment. He identified Johnson in a photographic lineup as the shooter. The Defendant claimed he did not know Johnson’s purpose in going to the victim’s apartment, and did not know Johnson was armed until after the door was locked. He also said he knew Johnson was going into the apartment to borrow some money, but instead, Johnson ended up robbing the victim.

By the time of the Defendant’s third taped statement, he had been arrested. Adthough he had indicated previously that he had no knowledge of why he was going into the apartment, he admitted in the third statement that he lied about the reason he went with Johnson. Defendant said he lied because he wanted to get some money, dope or “whatever.” He also said he saw the shooting when he was |sthree steps from the bottom of the stairs, and that he could see what was happening over the counter. When the Defendant was asked why he wanted to participate in this crime and what he hoped to get out of it, he said to “[g]et loaded, I was sick, hurtin (sic).”

In his fourth statement, the Defendant clarified his previous statement, and said that only he, the victim and Johnson were in the victim’s apartment when the victim was killed.

Trial Testimony

Starla Michelle Fontenot testified that she and Diamond Guidry are employed by Rap’s Luggage and Gifts. Fontenot does the payroll and Guidry worked from 9:03 a.m. to 4:53 p.m. on June 24, 2003. Both Fontenot and Guidry testified that Guidry drove her gold Prism to work that day, thus, the Defendant would not have had access to the car during the day.

Timothy Scanlan, an expert in firearms identification, tool marks, bloodstain evidence analysis and crime scene investigation, testified that it appeared the shooting occurred within the kitchen area. He said it was likely that the victim was shot from the left side and received the first wound to his neck, and then spun to the ground from either the force of the shot, or was manipulated to a height of 22 inches. He was most likely on his knees or against the wall when he was shot three times in the head. After an examination of the recovered projectiles, it was determined that the shots were fired from the same weapon, a .38 caliber class weapon. No weapon was found.

Scanlan reviewed the Defendant’s statement and said that the Defendant’s description of the infliction of wounds and the positions of the victim’s hands were consistent with the crime scene analysis and his findings. However, he testified that the Defendant could not have seen what he claimed to have seen from where Jjjdaimed he was located at the time of the shots. Scanlan said the Defendant would have had to be at, or near, the kitchen area.

Detective Meunier also expressed doubt that Defendant could have seen the shooting from the location on the stairway, because he would not have been able to see below the kitchen counter. He had to be in the hall or near the kitchen.

Emily Rackley, the Defendant’s ex-girlfriend, testified she was supposed to drive the Defendant somewhere that day. She went to the detective bureau to look for him after his mother told her he was giving a statement to the police. When she arrived, she met an officer who asked her about the incident. She told the police that the Defendant called her on the afternoon of the murder about 5:30 or 6:00 p.m. and asked if she had heard about it. He told her he was “out there” when it happened. He did not admit that he participated in the murder, but claimed that two people he knew living next door to the “guy” went over to this “guy’s” house to rob him but shot him instead. Rackley said the Defendant told her he heard the gunshots.

At trial, the Defendant testified he woke up at Guidry’s house about 11:30-11:40 a.m. on the day of the killing. He remembered using the telephone shortly after he awoke. The Defendant claimed he did not have access to a ear that day, that no one picked him up, and he did not leave the house until 6:00 or 6:15 p.m. When he did leave, he took Diamond’s car, a gold Prism. He drove to Holmes Boulevard where he observed police cars.

According to the Defendant, he spoke with Marshall and others at the scene. He said he called Rackley after 6:00 p.m. from a telephone on Holmes Boulevard and said “I’m here at the crime scene right now.” He stated he had gotten the information he shared with Rackley from Marshall and Johnson. He denied telling | inRackley that he heard gunshots and that he was on Holmes Boulevard when the murder happened.

The Defendant also denied killing the victim and stated he neither saw Johnson kill the victim, nor conspired with Johnson and Marshall to commit an armed robbery of the victim. He denied “hanging” out with Johnson and Marshall in the month leading up to the murder. When asked how a pawn ticket in his name dated June 20, 2003, four days before the murder, was found in Marshall’s apartment, the Defendant responded he brought Marshall to the pawn shop because she wanted something, but did not have identification.

The Defendant testified that only his first taped statement was true. He said the reason he gave the' second statement was because the detective wanted him to be a witness and pressured him. The Defendant contended he was able to give a description of what happened from the information he was given by detectives. The Defendant said it was the detective’s idea to say he participated in the crime, because he could not get enough dope. He also testified he was told to pick out Johnson’s picture and write “Shooter” so he could be a witness.

Detective Meunier denied pressuring the Defendant. He further denied giving the Defendant a script to follow. He explained if he would have orchestrated such a scheme, he would have wanted the person to identify himself as a witness who saw and heard what happened, but did not participate in the incident.

ASSIGNMENT OF ERROR

On appeal, the Defendant asserts that the trial judge committed reversible error when he denied the Motion for New Trial despite the improper admission of clearly inadmissible hearsay evidence.

InThe Defendant argues that the new trial motion should have been granted, because the State illegally used hearsay evidence to substantiate the fact that he and his co-defendants, Marshall and Johnson, killed Michael Pierre after conspiring to rob him, and to show that at least one of them was armed with a dangerous weapon. The Defendant asserts the co-defendants were not called to testify during trial, and that the statements were admitted over his objection. Furthermore, he contends that the admission of hearsay evidence was not harmless error, because there is no independent evidence to establish he was present when the victim was shot or that he concocted a story with Johnson and Marshall to rob the victim at gunpoint.

The State responds the statements challenged by the Defendant were not offered for the truth of the matter asserted, but were explanations to the jury of the course of the police investigation, and were arguably made while participating in the conspiracy.

La.C.Cr.P. art. 851(2) provides that, on motion of the defendant, the trial court shall grant a new trial whenever “[t]he court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.” La.C.Cr.P. art. 851 states that a new trial motion “is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” A trial judge’s ruling on a motion for new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Benoit, 04-436 (La.App. 5th Cir.9/28/04), 885 So.2d 625, 632. Furthermore, absence a finding of an abuse of the trial judge’s discretion, rulings on the admissibility of evidence will not be disturbed. State v. Mosby, 595 So.2d 1135, 1139 (La.1992); State v. Marshall, 02-747 (La.App. 5th Cir.2/11/03) 841 So.2d 866, 871. '

|12Although the Defendant has assigned as error the denial of his motion for new trial based on hearsay objections, the Defendant actually extends this argument to include alleged hearsay testimony admitted at trial which is being challenged on appeal, but was not argued in his motion for new trial. The admission of this additional testimony will also be considered.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. arts. 801 A(l) and 801 C. Hearsay evidence is not admissible except as otherwise provided by the Louisiana Code of Evidence or by other legislation. La.C.E. art. 802. Hearsay evidence is generally excluded, because the value of the statement rests on the credibility of the out-of-court as-serter, who is not subject to cross-examination and other safeguards of reliability. State v. Smith, 03-866 (La.App. 5th Cir.11/25/03), 862 So.2d 240, 244, writ denied, 04-0050 (La.5/7/04), 872 So.2d 1078.

A police officer’s testimony may include information provided by another person without constituting hearsay, if the testimony is offered to explain the course of the investigation and the steps which led to the defendant’s arrest. State v. Cho, 02-274 (La.App. 5th Cir.10/29/02), 831 So.2d 433, 447, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. The officer’s testimony is not considered hearsay when he does not testify to the substance of what was told to him by another person, but rather what he did in response to that information. State v. Moses, 05-787 (La. App. 5th Cir.5/9/06), 932 So.2d 701, 711. In State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 808, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000), the Louisiana Supreme Court stated:

| ^Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. Such information frequently has an impermissible hearsay aspect as well as a permissible nonhear-say aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. [Citations omitted.]
The Court further explained:
Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in “drawing the full picture” for the jury. However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule.

Id. at 809. [Citations omitted.]

Statements of Marshall and Johnson

Detective Meunier testified that the statements made by the co-defendants raised his suspicions and caused him to act in certain ways during his investigation. This testimony was pertinent to drawing a “full picture for the jury.” Because there was no physical evidence linking the Defendant and the co-defendants to the crime, it was necessary to explain what information led the detective to question them during the investigation. Detective Meunier further testified the interviews did not disclose any information about the Defendant. He only sought out the Defendant to question as a potential witness after being told by some people around the complex that he had been on the scene at the time of the shooting.

|uIn State v. Cowart, 01-1178 (La.App. 5th Cir.3/26/02), 815 So.2d 275, 289, writ denied, 02-1457 (La.5/9/03), 843 So.2d 387, this Court held that a deputy’s statements were admissible, because they were necessary to explain the sequence of investigative events leading to the defendant’s arrest. The deputy explained at trial that a witness had observed the defendant shoot the victim. When questioned by the deputy, the defendant provided an alibi. This Court explained that the deputy was merely telling the jury that the eyewitness testimony, coupled with the deputy’s inability to confirm the defendant’s alibi, led the deputy to arrest defendant for the victim’s homicide.

In the present case, the references to the co-defendants’ statements were not as closely related to the defendant’s guilt as in Cowart, where we found the evidence admissible. In light of the fact that the co-defendants did not implicate the defendant, we conclude the State brought out the content of the statements only to show the progression of the investigation. Therefore, the evidence was not hearsay.

Nevertheless, even if some of the testimony was inadmissible hearsay and went beyond what was necessary to explain the steps taken in the investigation, the admission was harmless.

The erroneous admission of hearsay testimony is subject to a harmless error analysis. State v. Wills, 559 So.2d 1321, 1332 (La.1990), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992); Smith, 03-866 at 5, 862 So.2d at 245; State v. Antoine, 02-1068 (La.App. 5th Cir.2/25/03), 841 So.2d 874, 881. The proper inquiry is whether the guilty verdict rendered was surely unattributable to the error. Factors to be considered in making this determination include: 1) the importance of the witness’ testimony; 2) the cumulative nature of the testimony; 3) the existence of corroborating or contradictory evidence regarding the major |1Bpoints of the testimony; 4) the extent of cross-examination permitted; and 5) the overall strength of the State’s case. Antoine, 841 So.2d at 881.

The portions of the co-defendants’ statements admitted at trial through Detective Meunier’s testimony did not implicate the Defendant in the incident. Even if Marshall indicated that she was with the Defendant that day, as suggested by the Defendant in his brief, the Defendant admitted his presence in his taped statement, and Rackley testified that the Defendant told her he was present at the time of the shooting. In addition, the Defendant’s statements tracked the statements made to Detective Meunier by Marshall and Johnson that Marshall lived next door to the victim and heard cabinets slamming or gunshots and did not call the police; that Marshall called Lakesha Dupre, to report what she heard; that Marshall and Johnson were together that day; and that Johnson had been shot previously and knew what a gunshot sounded like, but did nothing when he heard the sound. In Johnson’s last two statements, he admitted being inside of the victim’s apartment at the time of the shooting, but accused Rodney Royal of being the killer. The Defendant also said in his taped statements that Johnson was inside of the victim’s apartment. The statements corroborate the Defendant’s statements, and in his second statement, the Defendant implicated himself in the incident. Therefore, considering the Defendant’s own taped statements and Emily RacMey’s testimony, we find that the admission of the co-defendant’s testimony was harmless, as the verdict rendered was surely unattributable to the error, if any. Further, Detective Meunier’s testimony which referred to the co-defendants’ statements was cumulative. The admission of a hearsay statement is harmless error if the statement is merely cumulative or corroborative of other evidence. State v. Jones, 05-840 (La.App. 5 Cir. 3/28/06), 927 So.2d 514, 524.

[ 1Statements of “Gilbert” and unnamed individual

The Defendant argues that hearsay statements referred to by Detective Meunier from unnamed individuals who were not called to testify should not have been allowed at trial. However, although the record shows that the Defendant failed to object every time that Detective Meunier referred to the statements made to him during the investigation, the references corroborated the Defendant’s own statements and the testimony of Emily Rack-ley.

In addition, the Detective explained that the information received from “Gilbert” and another person indicated that the Defendant might be a potential witness, because he was allegedly at the complex that morning. Detective Meunier stated that the Defendant was immediately advised of his rights once he denied being on Holmes Boulevard as the Defendant’s statement conflicted with the witness accounts. The Defendant did not object to the testimony. Detective Meunier also clarified that the “Gilbert” referred to by the Defendant in his taped statement was one of the persons that informed him that “Earl” (the Defendant) was outside of the apartment that morning. Rather than objecting to the testimony at that point, defense counsel questioned the Detective about the witnesses he interviewed that placed the Defendant at the apartment complex that morning. When Detective Meunier told the court about Gilbert and his girlfriend, the State objected to the testimony as hearsay. The trial judge sustained the State’s objection, and the Defendant objected to the trial judge’s ruling that the testimony was inadmissible hearsay.

In the State’s cross-examination of the Defendant, the Defendant testified that Detective Meunier told him that witnesses placed him at the complex on the morning of the murder. On rebuttal, the Detective said that he confronted the Defendant with that information after the Defendant denied he had been there, h/Thereafter, in a bench conference, defense counsel moved for a mistrial based on the testimony from Detective Meunier that some unknown person saw the Defendant on the premises, and that if the question was not referring to Gilbert, then she should be able to ask Detective Meunier to name the non-testifying witness, and be able to cross-examine that person. The motion was denied, and the Defendant noted his objection.

The Defendant did not object to the Detective’s testimony in this regard until Detective Meunier was called on rebuttal by the State. Moreover, at trial, the defense attorney herself elicited the same testimony now complained of, and even objected when the judge refused to allow some of the testimony pursuant to the State’s objection. Under La.C.Cr.P. art. 841, an irregularity or error cannot be availed of after a verdict unless it was objected to at the time of the occurrence. When the objection is not made timely, there is no ruling for this Court to review. See, State v. Williams, 04-608 (La.App. 5th Cir.11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La.4/22/05), 899 So.2d 559.

In addition, we note that, even considering the validity of the objection, the statements of nontestifying witnesses are cumulative of Rackley’s testimony, and the Defendant’s own taped statements in which he admitted his presence at the scene of the murder at the time it was committed. Therefore, we find no merit to this argument.

Defendant’s Statements to Emily Rack-ley

The Defendant argues that Emily Raekley’s testimony placing him at the scene at the time of the shooting was also inadmissible hearsay. When Rackley testified at trial that the Defendant called her and asked if she had heard about the | ismurder, he objected, but was overruled. According to Rackley, the Defendant told her he was on Holmes when it happened, and that two people he knew, who she described as “Joe and — I think her name is Kiara, or something,” went over to this person’s house to rob him, but instead shot him. We find this testimony is admissible. The Defendant was available and did testify to the contrary, and his own statements introduced into evidence corroborate Rackley’s testimony. See, La.C.E. art. 801.

In conclusion, we find that the trial judge did not commit reversible error in allowing into evidence the testimony related to the statements made to Detective Meunier by Marshall, Johnson, the nontes-tifying witnesses, and Rackley. Therefore, the trial judge did not abuse his discretion in denying the Defendant’s motion for new trial.

Accordingly, the Defendants’ convictions and sentences are hereby affirmed.

AFFIRMED.

      . The Defendant's trial was severed from his co-defendants.

      . Hazel had received a phone call from Lake-sha Dupre, a former roommate and girlfriend, who stated that someone had called her and said shots were heard.

      . It is noted that the record is unclear as to whether Detective Meunier testified that Marshall indicated that she was in the Defendant's presence that day. The following testimony emerged when Detective Meunier was questioned regarding Johnson’s statements:
      Q: Did either he or Ms. Marshall indicate that they were in the presence of Earl Davis? I’m talking about in — I’m sorry. In the statement that you had taken from Shacira Marshall.
      A: Uh-huh (affirmative response).
      Q: And in any statement taken that day from Joseph Johnson; did Earl Davis' name come up?
      A: No.
      (R„ pp. 267-268).

      . The Defendant refers to ''Kyra” and "Cira.” From the context of these statements, it appears that he was referring to co-defendant Shacira Marshall.

      . The Defendant also refers to "Joe” in his statements. From the context of these statements, it appears that he refers to co-defendant Joseph Johnson.

      . The term "Prism” is sometimes spelled "Prizim” throughout the record.

      . According to Detective Meunier, the person he referred to as Gilbert is one of the persons who informed him that "Earl” was outside of the apartment.

      . It appears from the context of this statement and other testimony given that defendant is referring to Lakesha Dupre.

      . See, State v. Cho, 831 So.2d at 447-448 where we held that the defendant was not entitled to relief, because he did not make a timely hearsay objection to the testimony and elicited the same information during his cross-examination.

      . The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337, 338 (La.1975); and State v. Frazier, 03-1219, p. 8 (La.App. 5th Cir.3/30/04), 870 So.2d 1075, 1079; writ den. 04-1290 (La. 10/29/04), 885 So.2d 584. We find no error requiring corrective action.


author: WICKER, Judge.

text:
    JEFFERSON PARISH HOSPITAL SERVICES DISTRICT NO 2, Parish of Jefferson, State of Louisiana, d/b/a East Jefferson General Hospital v. Hon. Jon A. GEGENHEIMER, Clerk of Court 24th Judicial District Court.
    No. 06-CA-598.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Robert G. Stassi, Attorney at Law, Me-tairie, Louisiana, for PlaintiffAppellant.
    Don C. Gardner, Attorney at Law, Har-ahan, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   WICKER, Judge.

| ^Plaintiff, Jefferson Parish Hospital District No. 2, Parish of Jefferson, State of Louisiana, d/b/a East Jefferson General Hospital (East Jefferson), filed a Petition for a Writ of Mandamus to Jon A. Gegen-heimer, the Clerk of Court for the Twenty-Fourth Judicial District (Clerk), directing him to accept for filing, without the payment of court costs, various motions and orders of dismissals of cases filed against certain health care providers and ultimately settled by East Jefferson. The basis of the petition is East Jefferson’s assertion that, as a political subdivision of the State, it is exempt from the payment of court costs pursuant to La. R.S. 13:4521.

It appears from the record that East Jefferson filed several suits against patients and their insurers, including the State Employees Group Benefits Program. 1 sThese matters settled out of court and East Jefferson sought to dismiss the actions with prejudice. Accordingly, East Jefferson filed motions and orders to dismiss the actions with prejudice. The Clerk requested remission of court costs due before filing the motions. East Jefferson filed the petition for a writ of mandamus in the trial court seeking to have the Clerk accept the motions for dismissal without the payment of court costs. The petition was denied by the trial court and East Jefferson appeals. For reasons that follow, we affirm.

East Jefferson takes the position that it is immune from paying court costs in the settlement of cases in which it is the plaintiff. East Jefferson argues that “the only time a governmental entity has to pay court costs is when it is a defendant that has been cast in judgment and the judgment includes an award of court costs in a specific dollar amount against the governmental entity and in favor of the successful party,” as provided for by R.S. 13:5112.

East Jefferson further asserts that when, as in the matter before us, the governmental entity is a plaintiff which settles a case prior to any judgment being rendered, and the order dismissing the case with prejudice does not award costs, no costs are due. Finally, East Jefferson contends that the resolution of a case through settlement, as opposed to judgment, warrants a different result under La. R.S. 13:4521 B, which would normally require the exempted' entity to assist in the collection of court costs.

The Clerk counters with the argument that East Jefferson, as a plaintiff, has the obligation to assist in the collection of court costs due by the opposing litigants by requesting the court in question to tax costs in accordance with the provisions La. C.C.P. art.1920, as required by La. R.S. 13:4521 B. The Clerk argues that the 1 ¿issue is not the payment of court cost by a governmental entity cast in judgment, but rather it is the obligation of a governmental entity as a plaintiff to assist the Clerk in collecting court costs from a defendant upon settlement. The Clerk asserts that East Jefferson is making a deliberate attempt to avoid paying or collecting the court costs.

Simply put, the Clerk interprets the applicable law to provide that a governmental entity is allowed to defer court costs during the litigation. However, when the matter has ended, the entity must pay the court costs if it is cast in judgment, or assist in the collection of the costs if it is victorious. Whether the case has ended with a court judgment or by settlement is of no consequence.

East Jefferson’s narrow interpretation of the law is that a governmental entity is immune from paying court costs until and unless it is cast in judgment for a fixed dollar amount.

This appeal presents a matter of first impression for our consideration that involves the interpretation of La. R.S. 13:4521, which provides in pertinent part as follows:

A. (1) Except as provided in R.S. 13:5112, R.S. 19:15 and 116, and R.S. 48:451.3, and as hereinafter provided, neither the state, nor any parish, municipality, nor other political subdivision, public board, or commission, nor any officer or employee of any such governmental entity when acting within the scope and authority of such employment or when discharging his official duties shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state, or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state, including particularly but not exclusively those courts in the parish of Orleans and the city of .New Orleans. This Section shall also apply to the Louisiana Insurance Guaranty Association and the Louisiana Life and Health Insurance Guaranty Association in any judicial proceeding instituted by or against them. This Section shall also apply to the policyholder or other insured of an insolvent insurer in any judicial proceeding instituted by or against the Louisiana Insurance Guaranty Association and the Louisiana Life and Health Insurance Guaranty Association. This Section shall also apply to employees 1 fior agents of the state if they are named as defendants in a suit arising out of the course and scope of their employment or agency. Costs which are temporarily deferred pursuant to this Section cannot be shifted to opposing parties during the pendency of such deferment.
B. It shall be the duty of the exempted entities set forth above to assist in the collection of court costs due by the opposing litigants by requesting the court in question to tax costs in accordance with the provisions of Article 1920 of the Code of Civil Procedure. In this regard the entities are authorized to and shall withhold any court costs due by the opposing litigants, from any settlement payment to the said parties, and shall forward said costs to the clerk of court.

Our review of the applicable law persuades us that the trial court is correct in its ruling. East Jefferson, as a governmental entity, is allowed to file a lawsuit without the payment of costs pursuant to La. R.S. 13:4521 A. However, the last line of that section makes it clear that the exemption of the payment of costs is “temporarily deferred” and “cannot be shifted to opposing parties during the pendency of such deferment.” Thus, East Jefferson is exempt from paying court costs in advance or as they accrue.

The Louisiana Constitution of 1978 Art. XII, Section 10(A) provides that the State can be held liable in tort and in contract. In Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978), the Supreme Court held that costs are part of the liability to which a party cast in judgment is subject, and that the Louisiana Constitution of 1978 superseded the immunity afforded a governmental agency by statute. Thus, a plaintiff is entitled to recover court costs against a governmental agency.

Subsequently, the Louisiana Legislature amended R.S. 13:4521 A to provide that R.S. 13:5112, is an exception to the general rule. R.S. 13:5112 provides that the court:

.may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful |fiparty’s court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

East Jefferson urges this Court to apply that exception and rule that costs are payable only when a defendant has been cast in judgment, and the judgment includes an award of court costs in a specific dollar amount. Because we find that to be an incorrect interpretation of the statute, we decline to apply the exception to the matter before us.

Our interpretation of La. R.S. 13:5115 is that the exception is clearly intended to apply only when the State is a defendant, and is inapplicable in the instant case where the governmental agency is the plaintiff, and the case has been settled before going to a trial on the merits and subsequent judgment.

It is the responsibility of the Clerk to collect court costs to properly fund and support the court. Had East Jefferson prevailed in court after a trial on the merits, the defendants would have been liable for court costs. Further, La. C.C.P art. 5187 provides that:

No compromise shall be effected unless all costs due these officers have been paid. Should any compromise agreement be entered into in violation of this article, each party thereto is liable to these officers for all costs due them at the time.

In conclusion, we find that La. R.S. 13:4521 A provides a temporary deferment of court costs during the pendency of a lawsuit involving a State agency, and that the exception to that statute contained in La. R.S. 13:5112 is inapplicable to matters in which the State is the plaintiff and the matter is settled. We further find that La. R.S. 13:4521 B obligates the State to assist the Clerk in the collection of court costs. Finally, we hold when a State entity has filed suit against a defendant, and settles the matter out of court, the agency is obligated by La. R.S. 13:4521 B to assist the Clerk in collecting court costs from the defendant. Accordingly, we find the trial court’s judgment is correct in denying the petition for writ of mandamus.

i 7affirmed.

      . The request for court costs contains a handwritten note that indicates a "memo of understanding between the Parish and the Clerk” exists acknowledging that the costs are due. However, that memo is not included in the record before this Court.