author: SEXTON, J. SEXTON, J.

text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN SELF INSURERS FUND, Plaintiff-Appellee v. COURTNEY CONSTRUCTION COMPANY OF ALEXANDRIA, INC., Courtney Equipment Company, Inc. and Transwaste, Inc., Defendants-Appellants.
    No. 41,564-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Opinion Denying Rehearing Jan. 13, 2007.

      Stamey & Miller, LLC, Natchitoches, by J. Mark Miller, for Appellants.
    Provosty, Sadler, deLaunay, Fiorenza & Sobel by Joseph J. Bailey, Ricky L. Soot-er, Alexandria, for Appellee.
    Before BROWN, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| defendants Courtney Construction Company of Alexandria, Inc. (“Courtney Construction”), Courtney Equipment Company, Inc. (“Courtney Equipment”) and Transwaste, Inc. appeal the trial court’s judgment in favor of Plaintiff Louisiana Safety Association of Timbermen Self Insurers Fund (“LSAT”). Plaintiff sued Defendants alleging it was owed unpaid premiums for workers’ compensation insurance for 1992 through 1995. After a bench trial, the trial court awarded Plaintiff $120,615.12 for fund years 1994 and 1995 against all three Defendants, in soli-do, plus ten percent per annum interest and $25,000 in attorney fees. Defendants appeal. In addition to this appeal, Defendants filed a motion to remand based on newly discovered evidence. For the foregoing reasons, we deny the motion to remand and affirm the judgment of the trial court.

FACTS

In 1992, Plaintiff issued a single policy, number 50414, effective November 5,1992, for workers’ compensation insurance to cover the employees of all three Defendants. Plaintiff is a self-insurer fund offering workers’ compensation insurance. Defendants are three separate companies involved in industrial activities. Courtney Construction was owned by Jack Courtney, Jr. and its operations include highway paving, construction and concrete paving. Jack Courtney, Jr. also owned Courtney Equipment which sold and repaired construction equipment. Transwaste was owned by Jeff Courtney, son of Jack Courtney, Jr. It operated a facility for receiving collected waste materials, which were sorted and loaded onto trailers for | ¡.transportation to landfills. Courtney Construction and Courtney Equipment are located at the same site, while Tran-swaste’s facility is located two miles away from them. All three businesses are run out of the same office complex with Jack Courtney, Jr.’s office across the hall from Jeff Courtney’s office. They shared a single office manager.

Defendants obtained insurance coverage from Plaintiff through a membership application and agreement (the “Agreement”). This Agreement is the basis of Plaintiffs claim. All three Defendants are named as insureds in the Agreement. Under the ownership section of the Agreement, Jack Courtney is listed as president of Courtney Construction and Courtney Equipment and Jeff Courtney is listed as president of Transwaste. It is signed only by Jack Courtney as President of Courtney Construction and by the insurance agent, Bruce Yates.

The premiums for this policy were determined by an annual audit conducted by an independent auditor. The auditor conducts the audit by requesting payroll and other related documents from the insured, meeting with the insured to obtain any information he might need and calculating the total annual premium for the audited fund year. As part of the audit, the auditor assigns codes to the various employees of Defendants as governed by the SCOPES manual.

The SCOPES manual is a publication by the National Council on Compensation Insurance (NCCI) for the determination of workers’ compensation premiums. The codes correlate to a rate used to determine the premium for that category of employee. Auditor James Parker performed | athree audits for fund years 1993, 1994 and 1995. Auditor Nancy Fugler O’Neal performed a re-audit of the 1994 fund year.

Also in dispute is the code classification of some of the drivers at the Transwaste facility, and, thus, the appropriate premium to be charged for those employees. As described by Jeff Courtney, third party garbage collectors, such as municipal garbage collectors, would drop off their truck loads of garbage at Transwaste’s facility. The garbage was sorted for any recyclables or botanical green matter, then loaded into trailers and driven to a pick up site near the front of the property. Other drivers would then pick up the trailers and transport them to the landfill. Mr. Courtney described this operation as a “hook and pull” system where the driver simply backed up to the loaded trailer, hooked it up and pulled it away. The driver did not load the trash and the trash was unloaded at the landfill by the mechanisms built into the trailer. Mr. Parker assigned code 7219-Trucking NOC to these drivers as requested by Defendants. Defendants dispute the use of this code. At trial and on appeal, they argue that code 7380-Drivers, Chauffeurs & Their Helpers NOC-Commercial should apply. Use of code 7380 instead of code 7219 would result in lower premiums.

In October 1996, Plaintiff sued Defendants for $125,959.12, together with ten percent per annum interest and attorney fees. The petition alleged that Defendants failed to pay premiums on the policy for fund years 1992, 1993, 1994 and 1995. A judgment was finally signed in this case in February 2006. For the fund year 1994, the trial court awarded Plaintiff 14$73,120.10, together with interest in the amount of ten percent per annum from October 27, 1995, until paid. For the fund year 1995, the trial court awarded Plaintiff $47,495.02, together with interest in the amount of ten percent per annum from October 8,1999, until paid. The trial court awarded Plaintiff $25,000 in attorney fees. The entire judgment was against all three Defendants, in solido. Defendants appeal this judgment, asserting eleven assignments of error.

After the appeal was filed, Defendants filed a Motion to Remand for newly discovered evidence. They assert that, in cleaning a closet, they found some documents from Plaintiff regarding the policy that listed Transwaste separately on documents. This court referred the decision on this motion to the merits of this appeal.

DISCUSSION

Motion to Remand for Newly Discovered Evidence

We first consider the motion to remand submitted by Defendants. For the reasons set forth below, the motion is denied.

The power to remand a case without rendering a decision so the trial court can receive new evidence requires the appellate court to set aside the existing judgment; such a power should be exercised sparingly. Love v. AAA Temporaries, Inc., 03-1460 (La.10/17/03), 858 So.2d 410. A remand for new evidence is proper when the evidence was unobtainable with due diligence for the original trial and the new evidence is likely to affect the outcome of the case. Id.; Herbert v. Travelers Indemnity Co., 255 La. 645, 232 So.2d 463 (1970). Defendants fail to meet either requirement.

| ^According to Defendants, they discovered the new evidence after the trial judge signed the order of appeal. Defendants discovered a certifícate of membership issued by Plaintiff solely to Tran-swaste and a monthly premium report document listing only Transwaste as the member company. These documents were said to be found in a box with additional documents regarding insurance coverage from Plaintiff. The box was allegedly in a storage area on Transwaste’s facility labeled to be transferred to Transamerica Waste Industries, Inc. (Transamerica) to which Transwaste had been sold on June 9, 1995. The box was allegedly discovered while cleaning out the storage room after the trial. Defendants argue that the two newly discovered documents would be crucial to determining whether the obligation is in solido or divisible. By showing that Plaintiff initially issued Transwaste a separate policy, Defendants argue that the parties did not intend a solidary obligation.

According to Plaintiff in its opposition to the motion to remand, in its underwriting file, as provided to Defendants, were several copies of documents listing only Tran-swaste, Inc. as insured. These documents were titled “Certificate of Insurance.” A comparison of those certificates of insurance to other certificates of insurance in the underwriting file that include all three Defendants reflects that the Courtney Companies were typed under “Insured” in a different font and a darker ink. Such a difference gives Defendants the ability to argue and cross-examine witnesses on whether Transwaste was considered a separate insured or initially issued a | fiseparate policy. The newly discovered documents do not provide Defendants with a previously unavailable defense.

The weight of the newly discovered documents is minimal. The newly discovered certificate of insurance issued solely to Transwaste, Inc. is issued for policy number 50414. That policy .number has been the only policy number to appear on documents related to the joint policy of Defendants and appears on the certificate listing all three Defendants. Further, the newly discovered monthly premium report lists only Defendant Transwaste, Inc. as the member company name, but includes Defendants Courtney Construction and Courtney Equipment under the classification of operations. The monthly report is also incomplete. Only the rates, experience modifier and prompt payment discount are filled in. This report does not appear to be an actual bill for which payment is due. Against the history of combined billing and payment, this report does not carry significant evidentiary weight. We conclude that the documents would not affect the outcome of the case.

In addition, Defendants cannot demonstrate that these documents were unobtainable with due diligence. These documents were always in Defendants’ possession. At the time of trial in September 2005, this suit had been pending for nearly nine years. Defendants had the time, reason and ability to locate all relevant documents in their possession.

Moreover, this is the second time in this litigation that Defendants produced evidence that was conveniently discovered in their possession, but that they previously were unable to find. Concerning the sale of Transwaste 17to Transamerica, including transferring all accounts payable, Defendants at trial produced three documents, Exhibits D-9 through D-ll. The documents were verified through the testimony of Jeff Courtney, president of Transwaste, during the period at issue. These documents, however, were not provided at the deposition of either Mr. Courtney or his officer manager, Donna Spillers, despite the issuance of subpoenas decus tecum for both depositions to produce all relevant documents. Donna Spillers produced no documents at her deposition, although she was the corporate appointee to locate such documents. At his deposition, Mr. Courtney was unclear about the assignment of accounts payable in the sale to Trans-america. At trial, he testified that these documents, found after the deposition, “brought things back to light.” This clarity on the assignment of accounts payable works in Defendants’ favor and is the cornerstone of one of their assignments of error in this appeal on the merits. The trial court further questioned whether these documents were even timely provided to the other side as per its scheduling order. This prior instance of untimely document discovery does not support Defendants’ position that the documents at issue in this motion to remand were unobtainable with due diligence. Their prior document production history indicates a pointed lack of due diligence. For these reasons, the motion to remand is denied.

Appeal on the Merits

Defendants challenge the merits of the judgment asserting eleven assignments of error. These assignments can be condensed to three arguments. First, Defendants attack the validity of the Agreement. Second, |Rthey argue that the audits were faulty and, as such, were insufficient evidence of the amount due. Third, Defendants challenge the amount of the attorney fees and the awarding of interest on a per annum basis.

Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. An appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To set aside a factual determination by the trial court, this court must 1) find from the record that a reasonable factual basis does not exist for the finding to the trial court and 2) determine that the record establishes that the fact finder is clearly wrong (manifestly erroneous). Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305.

Validity of the Membership Agreement

Plaintiff issued Defendants insurance based on the Agreement listing all three Defendant companies as insureds. Defendants attack the validity of the Agreement as to Transwaste asserting that Jeff Courtney never signed the Agreement on behalf of Transwaste. Only Jack Courtney, Jr. signed the Agreement and then only as president of the Courtney companies. Further, neither Plaintiffs administrator nor its underwriter signed the Agreement. Defendants contend that both the lack of a signature on behalf of Transwaste and the absence of Plaintiffs signature make the contract void for lack of consent. The trial court found that the Agreement was consensual and binding to all parties. The trial court adopted Plaintiffs post trial memorandum as an accurate account of the facts of the case. In 19the memorandum, Plaintiff, and by adoption the trial court, established that Jack Courtney Jr. was authorized to obtain insurance for all three Defendants. We agree.

Defendant Transwaste consented to the insurance policy by both actual authority given to Jack Courtney, Jr. as its mandate and by ratification by accepting the benefits of the Agreement. At trial, Jeff Courtney testified that he knew his father was “lining up insurance to be covered by L.S.A.T.” Even at a later date, Jack Courtney corresponded with Plaintiff on an issue concerning Transwaste because, according to Jeff, “Daddy was handling the insurance matters.” The trial court was not manifestly erroneous in finding that Jack Courtney had actual authority to bind Transwaste in the Agreement.

In addition, Defendant Tran-swaste ratified the Agreement by accepting its benefits. Ratification occurs when “a person gives his consent to an obligation incurred on his behalf by another without authority.” La. C.C. art. 1843. The code recognizes a tacit ratification “when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.” Acceptance of the benefits of a contract implies acceptance of the entire contract, including all punitive terms. Central Surety & Ins. Corp. v. Canulette Shipbuilding Co., 195 So. 114 (La.App. 1st Cir.1940).

It is a well established principle that a party cannot voluntarily accept the benefits flowing from a contract and then when sued by the other party to enforce some provisions of the contract from which the benefits arose, set up the illegality of the contract on account of some informality in its confection.

|inId. A party cannot accept the benefits of a contract and then attempt to reject the correlative responsibilities. Id.

Plaintiff provided workers’ compensation insurance for Transwaste employees and paid out benefits to its injured workers during the time in question. Defendant Transwaste now argues that, even though it admits it owes Plaintiff for the benefit received, it is not liable for the additional provisions of the Agreement, namely legal fees and interest. We reject this argument. Transwaste accepted coverage under the Agreement. It paid the premium in conjunction with the other .Defendants and accepted the benefits Plaintiff paid to several of Transwaste’s employees. Tran-swaste ratified the Agreement, is liable for all premiums due and is subject to all terms of the Agreement.

Defendants further argue against the validity of the Agreement as to all Defendants because the Agreement document was not signed by either an administrator or underwriter for Plaintiff. The behavior of Plaintiff shows that it accepted and ratified the Agreement. It issued Policy number 50,414 in the name of all three Defendants, accepted payment for that policy and paid benefits as required by the Agreement. Plaintiffs chairman signed a certificate of membership in the name of all three Defendants. Such acts are sufficient evidence of acceptance by Plaintiff. The Agreement does not fail because of such an oversight on the Agreement document.

Finally, Defendants argue that the contract is null because the combination of all three Defendants under one policy violates the law. The rules and regulations of the NCCI require common ownership among the 11-,companies insured under a single policy. As stated above, Jeff Courtney owns Transwaste and Jack Courtney, Jr. owns the other two Defendant companies. No common ownership exists between all three.

A contract is null if it violates the law, including statutes and, by extension, regulations of those bodies empowered by statute to establish such regulations. La. C.C. art.2030; Lieber v. Caddo Levee Dist. Bd. of Comm’rs, 27,267 (La.App.2d Cir.8/23/95), 660 So.2d 188, writ denied, 95-2355 (La.12/8/95), 664 So.2d 427; Gainer v. Dep’t. of Health & Hospitals, 610 So.2d 936 (La.App. 1st Cir.1992). A violation of a non-governmental entity’s regulations does not render the contract null. Defendants do not cite, nor do we find, any action by the Louisiana Legislature or Department of Insurance that adopts all NCCI regulations. The combination of the separately owned Defendants does not violate the law or public policy such as to render the contract null.

Holding that the Agreement is valid, we do not have to address whether the attorney fees would have been proper under La. R.S. 9:2781 as a suit on an open account. Further, we only briefly discuss Defendants’ assignment of error that their assessment for safety fees lacks consideration. The safety fees are included in the Agreement at five percent of the total standard premium. Defendants agreed to the entire agreement and cannot complain about individual terms they now find unpalatable. In addition, the record shows that the safety fees purchased a conditional service. Plaintiff | iawould provide a safety assessment and program if one was needed by Defendants. This is sufficient consideration for the safety fees.

Validity of the Audits

Defendants submit that Plaintiff failed to carry its burden of proof on the amount of damages, challenging the validity of the audits. They focus on the class codes used to determine the premium and the exclusion of an overtime credit.

In attacking the audits as sufficient evidence of damages, Defendants fault Plaintiff for not allowing them an overtime credit. According to the testimony of the auditors for both parties, the NCCI establishes the rules and regulations for conducting a workers’ compensation audit. Under those regulations, an insured receives a credit for payroll that is a result of overtime. To be entitled to the credit, however, the insured must submit payroll with overtime in a recognizable amount and divided among the class codes.

Defendants consistently failed to provide the overtime in such a manner. For the first year of the policy, fund year 1993, Defendants failed to provide the payroll in the correct form and the auditor, Mr. Parker, excluded any overtime credit. Defendants’ office manager told Mr. Parker that they would appeal the denial of the overtime credit. The appeal was never taken and now Defendants complain about the failure of the auditor to pursue the issue in Defendants’ interest. For fund year 1994, Defendants again failed to properly submit the payroll for the overtime credit. That year was re-audited at the request of Defendants. Again, the payroll was | ^submitted to the second auditor without properly being divided. The second auditor, Ms. O’Neal, had to request that the payroll be corrected. Defendants did correctly submit the payroll and Ms. O’Neal gave them the overtime credit. For the final year, fund year 1995, Defendants appear to have correctly submitted the payroll and the overtime credit was given.

Defendants argue that Mr. Parker, out of fairness, should have worked with them to get them the overtime credit for fund year 1993. As he failed to do so, Defendants submit that the trial court erred in finding that they were not entitled to a credit. We agree with the trial court. Defendants failed to properly submit the payroll in the form required to get an overtime credit. Plaintiff is not responsible for this failure, nor is it required to remedy it by pursuing the credit with Defendant.

Defendants next attack the audits on the basis of the codes used to determine the premium. As described above, based on the description of the work done by a class of employees, the auditor assigned each class a code from the SCOPES manual. Each code has a certain rate that is used to calculate the premium. At issue in this case is the proper code for the drivers on the Transwaste property. These drivers were required to back up to a trailer loaded with solid waste, hook up to it and drive the trailer to a landfill.

The trial court awarded the exact amounts reflected in Plaintiff’s “Final Audit Billing” fund years 1994 and 1995. Both billings use code 7219-Trucking: NOC-A11 Employees & Drivers, at the request of Defendants. Defendants, however, now argue that the proper code is | ,47380-Drivers, Chauffeurs & Their Helpers NOC-Commercial. The rate for code 7380 is less than that for code 7219 and Defendants argue that, accordingly, they are entitled to a reduction.

The trial court found that the proper code was 9403-Garbage Collection. Code 9403 applies a higher premium than code 7219, which justifies the award. Plaintiff argues that that classification justifies the award and does not seek an increase to the 9403 classification premium. The trial court found that code 9403 applies because Transwaste is properly classified as a garbage works. Under SCOPES, if a employer is considered a 7590-Garbage works, then, under that code, the drivers are assigned code 9403 for Garbage Collection. The parties debate whether the Tran-swaste facility was a garbage works and whether, therefore, code 9403 applies.

We agree with the trial court that the proper code for the drivers is 9403 because Transwaste is properly considered a garbage works and, as such, its drivers are required to be coded under 9403. Tran-swaste receives, sorts and loads solid waste, and, therefore, is properly characterized under the SCOPES manual as 7590-Garbage Works. Defendants dispute this classification of Transwaste’s facility. They argue that the SCOPES manual requires chemical reduction or incineration at the facility in order for the facility to classified as a “garbage works”. We disagree. The SCOPES manual provides that a 7590-Garbage Works may include reduction or incineration, but it does not required that those functions be performed for the facility to be identified as a garbage works. The SCOPES manual, launder code 7590, mandates that “Drivers employed by these entities are assigned to Code 9403.” Thus, under this requirement, the trial court properly found code 9403 to apply to the drivers.

Defendants also contend that code 9403 does not apply because the drivers were not Transwaste employees, but were Courtney Construction employees. We find this argument unpersuasive. We. agree with the trial court that Defendants operated as one entity. Even if they could be distinguished, the record shows that Transwaste controlled the drivers, even if Courtney Construction paid them. For purposes of the SCOPES codes, the drivers were employees of the garbage works and code 9403 applies. The amount of the award for fund years 1994 and 1995 is supported by sufficient evidence.

In Solido Liability

Defendants challenge the trial court’s ruling finding them solidarily liable for all damages. A finding of a solidary obligation requires a clear expression of the parties’ intent and is not presumed. La. C.C. art. 1796. While the intent to be solidarily bound was not stated in the words of the contract, Defendants’ actions were a clear expression of an intent to be jointly responsible for the premiums. A review of the record shows that Defendants entered the Agreement together, paid the premiums jointly and corresponded with Plaintiff as a single entity. The valid Agreement lists Defendants jointly as insureds and a single policy was issued to all three. |16On these facts, finding that Defendants intended to be solidarily obligated was not manifestly erroneous.

Defendants further argue that Tran-swaste’s sale to Transamerica must be considered on the issue of solidary liability. We disagree. While an obligor may assign an obligation to a third party, the assignment does not release the obligor. La. C.C. art. 1821. Transwaste’s agreement with Transamerica does not affect the obligation between Transwaste and Plaintiff. The sale is inconsequential to the issue of solidary liability or damages.

Attorney Fees

The trial court awarded Plaintiff $25,000 in attorney fees. The Agreement provided for recovery by Plaintiff of costs of collection, including reasonable attorney fees. Defendants dispute the amount claiming that it is greater than any amount proven at trial, and any amount that was produced at trial is inflated duplication of work across multiple attorneys, billing for work of non-attorneys and other non-attorney costs, such as telephone charges.

In setting reasonable attorney fees, this court considers: the ultimate result obtained, the responsibility incurred, the importance of the litigation, the amount of money involved, the extent and character of the work performed, legal knowledge, attainment and skill of the attorneys, number of appearances, intricacies of the facts involved, diligence and skill of counsel and the court’s own knowledge. Minsky v. Shumate, 40,375 (La. App.2d Cir.3/10/06), 924 So.2d 488. The trial court is vested with Inconsiderable discretion in setting attorney fees and will not be disturbed absent an abuse of that discretion. Id.

We find no such abuse of discretion in this case. This case has been pending for ten years. Both parties failed to pursue the claim in the initial years. However, the legal bills submitted into evidence were for work done in the past two years. Non-attorney services and other additional costs, such as travel and court costs, are commonly understood to be part of attorney fees. Further, they constitute a cost of collection for which Defendants are expressly liable under the Agreement. Considering the above factors, particularly the protracted time that this litigation has been pending, we find that the award of attorney fees is reasonable.

Interest

The Agreement provides for Plaintiff to recover ten percent interest on all unpaid amounts. The trial court awarded Plaintiff ten percent interest per annum. Defendants dispute the awarding of interest on a per annum basis. An insurance policy, like any contract, is subject to the rules of interpretation set forth in the Civil Code. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. The Code provides that words of a contract must be given their generally prevailing meaning. La. C.C. art.2047. The term “interest” on a past due amount is generally considered to be on a per annum basis. See, e.g., La. C.C. art.2000 (setting default interest for breach of a conventional interest on a per annum basis), La. R.S. 9:3500 (setting legal interest and maximum conventional interest [ 1son a per annum basis). We hold that the trial court did not err in awarding interest at ten percent per an-num.

CONCLUSION

For the foregoing reasons, we hold that the parties entered into a valid contract as reflected by the Agreement. Under that agreement, we affirm that Defendants are solidarity liable for unpaid premiums for fund year 1994 of $73,120.10, together with interest in the amount of ten percent per annum from October 27, 1995, until paid, and for unpaid premiums for fund year 1995 of $47,495.02, together with interest in the amount of ten percent per annum from October 8, 1999, until paid. These amounts are supported by sufficient evidence, including the audits submitted by Plaintiff. We affirm the award of $25,000 in attorney fees. Costs are assessed to Defendants.

AFFIRMED.

Per Curiam on Rehearing

Before BROWN, STEWART, MOORE, LOLLEY & SEXTON (Pro Tempore), JJ.

SEXTON, J.

|TWe write to briefly address Appellant’s rehearing contention that our opinion herein essentially writes out the enforcement of NCCI regulations. We emphasize that our discussion of the applicability of the NCCI regulations is limited to the context of whether a contract is null for violation of public policy under La. C.C. art.2030. We express no opinion as to whether the NCCI regulations are enforceable by the Department of Insurance or Insurance Rating Commission.

Defendants now ask this court to take judicial notice of NCCI Rule 5, which requires common ownership of companies insured under a single policy, as an enforceable regulation within Louisiana, thereby nullifying the contract. They cite several regulations within the Louisiana Administrative Code. The record is devoid of appropriate notice regarding the taking of judicial notice of these suggested departmental regulations. La. C.E. art. 202; La. C.E. art. 202, Author’s Notes (4); Wood v. Louisiana Dept. Of Employment Security, 25,545 (La.App.2d Cir.2/23/94), 632 So.2d 899; see also Bower v. Schumpert Medical Center, 618 So.2d 600 (La. App. 2d Cir.1993). We decline, therefore, to take judicial notice of NCCI Rule 5.

The rehearing is denied.

      . During the course of litigation, Plaintiff applied a credit to satisfy the debt from fund years 1992 and 1993. Therefore, at trial, only fund years 1994 and 1995 were at issue.

      . The term "NOC” stands for "not otherwise covered.”

      . For examples of references to the NCCI, see La. R.S. 23:1196(a)(6)(a) referring to NCCI experience modifiers; La. Admin. Code Tit. 37, § 305, defining "manual rate” as the rate set by the NCCI; and La. Admin. Code. Tit. 37, § 309, requiring certain submissions to the Insurance Department to be in the form proscribed by the NCCI.

      . By way of contrast, the SCOPES manual references a special state code for Massachusetts for a “9410: Garbage Works — Incineration or Reduction," apparently applying exclusively to incineration or reduction.

      . Defendants cite in support of their rehearing application La. Admin. Code Title 37, §§ 305 & 309 (2007) and LA Bulletin LIRC 95-96.

      . The first mention we find of these regulations is an attachment of one page of Rule 5 to the DefendanVAppellant's reply brief (i.e. its second brief) to the trial court of January 4, 2006, 19 days before the filing of the trial court’s reasons for judgment.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rodney DOZIER.
    No. 2006-KA-0621.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Graham L. Bosworth, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY III, Judge.

I .STATEMENT OF CASE

On January 18, 2005, Rodney Dozier was charged with one count of simple possession of cocaine. At his arraignment on January 24, 2005, he pled not guilty. The court heard and denied his motion to suppress the evidence on February 18, 2005, and found probable cause to hold the defendant for trial. On March 29, 2005, the defendant went before a jury for trial. The defendant moved for a mistrial, which was granted. On April 11, 2005, the defendant went to trial before a jury and was found to be guilty as charged. The State subsequently filed a multiple bill. On May 24, 2005, the court found him to be a third offender and sentenced him as such to serve eight years at hard labor. On that same date the defense filed a motion for appeal and then filed a second motion on June 2, 2005. The court denied his pro se motion to reconsider sentence on July 14, 2005.

FACTS

N.O.P.D. Officer Gary Lacabe and his partner were on patrol in the First District on the evening of December 16, 2004. They were driving down St. Phillip Street, and as they approached the corner of St. Claude they saw the defendant Rodney Dozier standing with his back to the street, facing a brick wall surrounding | ¾Armstrong Park. The officers suspected Rodney Dozier was urinating on the wall, but as they flashed a spotlight on him, they saw him trying to light what appeared to be a glass crack pipe. The officers exited their car and asked Rodney Dozier to approach them. He did so, clutching objects in his hands. The officers ordered him to open his hands, but he refused to do so. Officer Lacabe then grabbed Rodney Dozier’s right hand and tried to handcuff him behind his back. Rodney Dozier pulled his hand back and tried to flee. Officer Lacabe grabbed Rodney Dozier around the waist, and Rodney Dozier began flailing his arms widely trying to escape. Officer Lacabe hit Rodney Dozier in the back of his head, and the two men fell to the ground where they continued to struggle. Officer Lacabe testified that during this struggle Rodney Dozier threw the glass pipe to the ground, and the glass broke. Eventually Dozier stopped struggling when Officer Lacabe’s partner hit him with a baton several times on the arms and legs. The officers handcuffed Rodney Dozier, placed him under arrest, and searched him incident to this arrest. They found a rock of what appeared to be crack cocaine hidden in a piece of brown paper inside his sock. They also retrieved the broken glass pipe and the lighter. The officers called for EMS personnel because Rodney Dozier was bleeding, and then took him to the hospital for treatment prior to being booked.

On cross-examination, Officer Lacabe testified that although it was after dark when they saw Rodney Dozier, there were streetlights in the area. He testified that he could see residue in the crack pipe, and at some point during the scuffle Rodney Dozier put his hand to his mouth as if to put something in his mouth.

The parties stipulated that the rock seized from Rodney Dozier’s sock and the residue in the pipe tested positive for cocaine.

IsThe defense introduced a photograph from Rodney Dozier’s booking showing injuries to the right side of his face, as well as a bandage on his head.

DISCUSSION

A. Errors Patent

A review of the record reveals no patent errors.

B. Assignment of Error

By his sole assignment of error, the appellant contends that the trial court erred by finding him to be a third offender and by not strictly complying with the requirements of La. R.S. 15:529.1. Although the State alleged in the multiple bill that the appellant was a fourth offender, the court found him to be a third offender.

The appellant raises several challenges to his multiple offender adjudication. First, he argues that he was entitled to a jury trial to consider whether he was a multiple offender. He next alleges the trial court and the State did not comply with the requirements of La. R.S. 15:529.1. He then maintains that the State failed to prove he voluntarily and knowingly pled guilty in his prior convictions and that the State failed to prove his release date for those offenses. Finally, he argues that these errors are of such constitutional magnitude that this court should recognize them as “plain error” requiring no contemporaneous objection.

I.

With respect to the first ground, the appellant contends that his multiple bill adjudication is invalid because it should have been considered by a jury. He cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), as support for this claim. However, in State v. Smith, 2005-0375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, this court stated:

|4The defendant also argues that he was entitled to a jury trial on the issue of his multiple offender status. He suggests that the multiple offender statute violates the Fourteenth and the Sixth Amendments to the U.S. Constitution because the statute allows a sentence to be increased beyond the statutory maximum without requiring the fact of the prior convictions to be submitted to the jury and proved beyond a reasonable doubt. The defendant relies upon the recent United States Supreme Court case of Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), in which the Court held that a sentencing court cannot look to police reports in making “generic burglary” decisions under the Armed Career Criminal Act. In its opinion, the Court noted that the issue raised
The concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of a state, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres[ v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ] clearly authorizes a to resolve the dispute. The rule of reading statutes to avoid serious risks of unconstitutionality, see Jones, supra, at 239, 119 S.Ct. 1215, therefore counsels us to limit the scope of judicial factfind-ing on the disputed generic character of a prior plea, just as Taylor[ v. U.S., 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ] constrained judicial findings about the generic implication of a jury’s verdict.
We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a non-generic statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between | ¿judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Shepard, 125 S.Ct. at 1262-1263.
The defendant contends that the Shepard, along with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 148 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that there be a jury trial on the issues of identity, ten year lapse, whether the predicate offenses occurred before the present offense, and whether the predicate offense fit the enumerated aggravating convictions. In Apprendi, the U.S. Supreme Court stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435. This rule was recently reiterated by the U.S. Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States Supreme Court clearly made an exception for pri- or convictions. Thus, under Apprendi the defendant’s prior convictions were not required to be submitted to a jury. In addition, all the issues raised by the defendant concerning the predicate offenses can be determined by reviewing the documents submitted in support of the multiple bill of information. Defendant’s argument is without merit.

State v. Smith, 2005-0375 at pp. 3-5, 913 So.2d 836, 839-840.

Here, the appellant makes the same argument rejected in Smith. For the reasons expressed in Smith, this claim has no merit.

II.

The appellant next argues that his multiple bill adjudication is deficient because of the State’s and the trial court’s failures to comply with the requirements of La. R.S. 15:529.1. He points out that he was arraigned on the same day as the hearing; thus, he was not given time to view the documents the State was going to IfiUse in support of the bill until the day of the actual hearing on the bill. However, as noted in State v. Williams, 2002-2189 (La.App. 4 Cir. 6/4/03), 849 So.2d 799, there is no requirement that the State submit its documentation to the defense prior to the multiple bill hearing. In addition, after pleading not guilty to the bill, the appellant did not object to the court immediately hearing the matter or ask for a continuance in order to allow him time to investigate the allegations.

The appellant next argues that because the documents were not produced until the day of the hearing, he did not have an opportunity to file written objections to the multiple bill as provided in La. R.S. 15:529.1. Nonetheless, the appellant could have orally objected to the sufficiency of the documents when counsel viewed them at the hearing and could have asked for a continuance of the hearing if counsel believed there were problems with this documentation. Counsel chose neither of these options. Indeed, as will be discussed in connection with the appellant’s claims as to the sufficiency of the documents to support the adjudication, there was no basis for any objections to the documents. In addition, the court allowed the appellant and counsel time to discuss the matter before finding him to be a third offender, and again the appellant did not object to the documents or ask for a continuance in the matter to allow him time to file written objections.

The appellant next points out that the court did not read the allegations in the bill to him in open court. He does not, however, cite any authority to show that this failure invalidated his adjudication.

The appellant also notes that his adjudication is invalid because the trial court failed to file written reasons supporting its decision to find the appellant to be a third offender. This claim also has no merit. Although La. R.S. 15:529.1 D(3) |7requires the court to issue written reasons, this court has found harmless error when the trial court fails to file written reasons if its oral reasons showed that it had concluded that the State’s documentation was sufficient to establish the prior convictions. See State v. Sykes, 2004-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156; State v. Prater, 99-0900 (La.App. 4 Cir. 4/26/00), 762 So.2d 82.

The appellant’s claims as to the failure to comply with La. R.S. 15:529.1 have no merit.

III.

The appellant next directly attacks the sufficiency of the evidence the State produced to support his adjudication as a third offender. The multiple bill alleged that the appellant was a fourth offender, and it listed three prior convictions: (1) a 2000 plea to crime against nature; (2) a 1999 plea to simple possession of cocaine; and (3) a 1986 plea to purse snatching. The appellant argues that the State failed to prove identity as to the 1986 plea. The transcript indicates that although fingerprints were taken of the appellant on the day of the multiple bill hearing, there were no fingerprints attached to the documents from the 1986 guilty plea. However, the court found the appellant to be only a third offender, not a fourth offender. The court did not indicate which prior conviction it did not use to find the appellant to be a third offender. However, if there was evidence to prove identity and the voluntariness of the 1999 and 2000 guilty pleas, the 1986 plea did not have to be used to support the adjudication.

The appellant makes no argument concerning identity as to the 2000 and the 1999 pleas. He also concedes that the documents the State introduced in connection with the 1999 plea were sufficient to show that that plea was voluntarily and knowingly given. He argues, however, that the 2000 plea could Rnot be used because the minute entry of the plea did not delineate the rights he was waiving by pleading guilty.

In State v. Shelton, 621 So.2d 769, 779-780 (La.1993), the Court set forth the burdens of proof in multiple bill proceedings:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, [footnote omitted] If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin [v Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ] rights.

The cases cited in the appellant’s brief all predate Shelton, where the Court lessened the State’s initial burden in multiple bill cases.

Here, with respect to the appellant’s 2000 guilty plea, the State introduced the bill of information, which contained fingerprints on the back, the minute entry of the date of the plea, the docket master, and the plea of guilty waiver of rights form. The minute entry and the plea form both indicate that the defendant was present and represented by counsel when he pled guilty. Thus, the State met its initial burden under Shelton. Moreover, although the minute entry does not list the lights to which the trial court advised the appellant prior to taking his plea, the plea form fully delineates the rights that he was waiving by pleading guilty, including his Boykin rights. Thus, the State more than adequately proved that the appellant’s 2000 guilty plea was voluntarily and knowingly given. This claim has no merit.

The appellant next argues that the State failed to present any evidence of the date of the prior offenses. However, included in the documents for all of the prior pleas were the bills of information for the prior convictions listing the dates of the offenses. The appellant then maintains that the State did not show the discharge dates for each of these prior convictions. However, the latest two prior convictions occurred less than ten years prior to the date of the offense in this case. Where less than the time limitation set forth in La. R.S. 15:529.1 elapsed between convictions, it is not necessary for the State to prove discharge dates. State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977); State v. Chisolm, 99-1055 (La.App. 4 Cir. 9/27/00), 771 So.2d 205. As such, the State was under no obligation to provide the discharge dates to show that they fit within the ten-year period for use envisioned by La. R.S. 15:529.1 C.

There is no merit to the appellant’s claim that the State failed to prove that he was a third felony offender.

IV.

By his final argument, the appellant appears to concede that no objections were made to any of these “errors.” Indeed, the transcript of the multiple bill adjudication and sentencing shows that the defense raised none of these objections; nor did the appellant file a motion to quash the multiple bill, even though the bill was not filed until six weeks after the appellant’s conviction. His motion for appeal does not allege any specific error as to the multiple bill or his adjudication. |1ftAlthough counsel notes that the appellant filed a pro se motion to reconsider sentence, his motion does not address the multiple bill adjudication. Ordinarily we would find that the above claims are not preserved. See State v. Wallace, 2003-0193 (La.App. 4 Cir. 11/26/03), 862 So.2d 286; State v. Washington, 98-0583 (La.App. 4 Cir. 11/17/99), 747 So.2d 1191. However, the appellant argues that these “errors” should nonetheless be recognized in the absence of any objection because they involve violations of his constitutional rights. As noted in the discussions above, none of the “errors” alleged by the appellant rise to a constitutional level. This claim also has no merit.

None of the claims raised by the appellant invalidate his multiple offender adjudication. Accordingly, we affirm the appellant’s conviction and sentence.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Alton J. RAMSDELL.
    No. 06-KA-644.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Blair Bright, Ken Dohre, Assistant District Attorneys, Gretna, Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|?On December 28, 2004, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Alton J. Ramsdell, and co-defendants, Willie Davis, Jr. and Joseph Perique, Jr., with “theft of a 1998 Chevy truck, valued at greater than $1000,” a violation of LSA-R.S. 14:67. At his arraignment, the defendant pled not guilty. On January 25, 2006, after a one-day trial, a six-person jury found the defendant “guilty of theft of property having a value of $500 or more.” On February 2, 2006, the trial court sentenced the defendant to six years at hard labor. After sentencing, the defense made an oral motion for new trial, which was denied by the trial court. On the same day, the State filed a multiple offender bill of information alleging the defendant to be a second felony offender, | ¡¡and the defendant stipulated to the allegations in the multiple bill. The defendant’s previous sentence was vacated, and he was sentenced as a second offender to six years at hard labor without benefit of probation or suspension of sentence.

FACTS

Sergeant Sandra Arsenaux of the Jefferson Parish Sheriffs Office testified that, on December 4, 2004, she was working a paid detail at the Target store located in Clear-view Mall at 4500 Veterans Blvd. On a surveillance camera, at approximately 9:30 p.m., she observed a green Suburban pull behind a white Tahoe, blocking it in, which she found suspicious. The white Tahoe contained three females, two of whom were just involved in a suspicious check transaction in Target. Two men exited the green Suburban, went over to the white Tahoe, and spoke to the females. Both the Suburban and the Tahoe moved to parking spaces in another lane, three spaces a part. A fourth bald-headed man exited the green Suburban, went to a blue Chevy truck parked next to the white Tahoe, unlocked the truck, and opened the door. Then, one of the men, who was described as having dreadlocks, got into the truck, “start[ed] fooling with the ignition,” manipulated the steering column, and drove the truck out of the parking lot.

The blue truck turned onto Veterans Blvd, eastbound, and was followed by the white Tahoe, which was being followed by the green Suburban. Sergeant Arsenaux testified that she pursued the green Suburban and never lost sight of it, except for a few seconds. She did not see anyone get in or out of the Suburban while she pursued it. Sergeant Arsenaux eventually pulled the Suburban over between an eighth and a quarter of a mile away, and the defendant and two other men were in the Suburban.

The jury was shown a videotape of the entire incident in the parking lot, preceding the vehicles’ travel onto Veterans Blvd. Sergeant Arsenaux admitted 14that the videotape does not show that the defendant was at the Target scene. However, Sergeant Arsenaux testified that the defendant was in the green Suburban when she pulled the vehicle over, and she did not see the Suburban pick up anyone after leaving the Target parking lot. Sergeant Arse-naux later learned that the green 1998 Suburban truck was registered to Veronica Ramsdell. Sergeant Arsenaux seized evidence at the scene, which included screwdrivers and “a couple of other tools.” She described them as “burglary-type” tools.

Officer Stephanie Duplantis of the Jefferson Parish Sheriffs Office testified that she was on patrol on December 4, 2004, when she heard a call on the radio from a sergeant working a detail at Target. The sergeant indicated that she had a stolen vehicle in progress and it was a blue Chevy truck. She also stated that a green Suburban and a white Tahoe were involved. Officer Duplantis waited on Veterans Blvd. and Houma until she saw a blue Chevy truck followed by a white Tahoe and a green Suburban, and then, finally, the sergeant’s car. She followed the green Suburban along with Sergeant Arsenaux after it left the Target parking lot, until other police units arrived. Officer Duplan-tis testified that she saw the green Suburban leave the Target parking lot and it did not stop, nor did she see anyone get in or out of it, from the time it left the Target parking lot until it was pulled over by police. After the other officers arrived, she chased the blue pickup truck until she found it abandoned. The truck was running with the door open. She examined the pickup truck, and found the steering column broken. A screwdriver and vice grips were on the front seat.

John Hayes testified that he is the owner of the 1995 half-ton blue Chevy pickup truck that was taken from Clearview Mall. He did not give anyone permission to use his truck, including the defendant. Hayes testified that his truck had some damage to the driver’s door and the steering column. He had the truck’s | ¡ignition and surrounding collar replaced for approximately $100 or more. Hayes replaced these items to enable him to start the truck. In order to cosmetically repair the truck, he received an estimate from Chevy of about $2000.

The defense called Willie Davis, a co-defendant, to the stand. Davis testified that on the night of the theft, he was the driver of the green Suburban. At the time of trial, he had already pled guilty and was serving time for the theft. He also had prior felony convictions. Davis testified that he and Joseph Perry were in the green Suburban while it was in the parking lot. A third man was in the Suburban with them, but he got away. Davis refused to reveal the identity of the third man in the vehicle in the parking lot. When he drove the green Suburban out of the parking lot, it was only he and Joe in the vehicle. He testified that the defendant was not in the green Suburban in the parking lot because, approximately three minutes before entering the Target parking lot, he dropped the defendant off at Ferrara’s Big and Tall Men’s Wear, which was one block away. He picked the defendant up on Veterans Blvd. after leaving the parking lot, as they had pre-arranged. Davis explained that screwdrivers were found in the car, because they were mechanics.

DISCUSSION

On appeal, the defendant argues that the evidence was insufficient to support his conviction, because the State provided no direct or reliable evidence of the value of the vehicle that was the subject of the theft. He claims that an estimate of repair costs for the vehicle is insufficient proof of the vehicle’s value.

The State admits that the owner of the vehicle did not testify regarding its value. However, it argues that the video of the truck allowed the jury to estimate its value at more than $500 based upon its characteristics, which included an engine that performed well enough to be driven off the lot at Target. The State | fiaIso claims that the truck performed well enough to be driven home by the owner. In the alternative, the State suggests that if it did not prove that the value of the vehicle exceeded $500, this Court could find that the evidence supports a conviction for the legislatively authorized lesser and included grade of the offense, theft of property valued between $300 and $500.

In reviewing the sufficiency of evidence, an appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Tilley, 99-0569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Captville, 448 So.2d 676, 678 (La. 1984). This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

In order to support a conviction for theft, the State is required to prove that the defendant misappropriated or took, a thing of value, that belonged to another, without the consent of the owner, and that he had the intent to deprive the owner permanently of that which was misappropriated or taken. LSA-R.S. 14:67. State v. Hebrard, 94-410 (La.App. 5 Cir. 1/31/95), 650 So.2d 352, 353. In addition, the 17State is required to prove the value of the stolen property, because the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen property. State v. Brooks, 00-106 (La.App. 5 Cir. 9/26/00), 769 So.2d 1242, 1245.

In the present case, the defendant only argues that the State failed to prove the value of the object taken. When the degree of the crime is based on the value of the stolen property possessed, the testimony of the owner is sufficient to establish the value of the stolen property if it is clear and uncontradicted. State v. Stack, 97-1176 (La.App. 5 Cir. 4/15/98), 710 So.2d 841, 844. The owner does not need to be qualified as an expert in order to testify as to the value of the thing owned by him. State v. Dilworth, 358 So.2d 1254, 1256-1257 (La.1978).

In State v. Bruff, 597 So.2d 122 (La.App. 5 Cir.1992), unit denied, 600 So.2d 676 (La.1992), the defendant was found guilty of unauthorized use of a vehicle valued in excess of $1000. The jury was shown photographs of the body of a two-year-old automobile apparently in very good, if not perfect condition. In addition, the jury was presented with evidence that the vehicle’s engine performed well enough for the car to be driven. The vehicle was also on the lot of a reputable dealer, and was being offered for sale. This Court noted that jurors do not live in a vacuum and, therefore, they are exposed daily to the car buying and selling process. This Court found that the jurors “likely decided that all two-year-old Ford Taurus cars in apparently good and drivable condition were worth more than $1,000.00.” Therefore, based on the evidence, the jury could reasonably have concluded that the particular Ford Taurus was worth more than $1,000.

In the present case, defendant was convicted of theft of property valued over $500. Although the truck’s owner testified that he paid $100 for repairs to the truck and received a $2,000 estimate for cosmetic repairs, he did not testify | regarding the value of the truck. However, the value of a vehicle is assessed using many factors and, just as in State v. Bruff, supra, the jury in this case was presented with sufficient evidence to reasonably conclude that the truck was worth at least $500.

The truck was a 1995 model, making it approximately nine years old at the time of the theft. The videotape shows that the truck was in good shape, had a toolbox on it, and the engine performed well enough for it to be driven from the parking lot. Mr. Hayes testified that he later drove the truck to his home. Considering the testimony and evidence before us, we find that a reasonable jury could have concluded that the value of the 1995 Chevy truck exceeded $500 based on the truck’s condition as depicted in the videotape. Accordingly, we conclude that the evidence was sufficient to support the defendant’s conviction of theft of property valued at $500 or more.

The defendant also requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1976); State v. Weiland, 556 So.2d 175 (LaApp. 5 Cir.1990), regardless of whether defendant makes such a request. The review reveals that there are two errors requiring corrective action.

First, the defendant was not given the correct time period for filing an application for post-conviction relief. The minute entries indicate that the defendant was informed that he had two years after his judgment of conviction and sentence become final to file for post-conviction relief. However, the sentencing transcript indicates that the trial court informed the defendant that he had two years after his judgment of conviction became final to seek post conviction relief.

LSA-C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction | flrelief. It is well settled that when the transcript and a minute entry conflict, it is the transcript that prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand the case to the trial court and order it to send the defendant written notice of the proper period for filing for post-conviction relief within ten days of the rendition of this opinion and to file proof in the record that the defendant received the notice. State v. Hutchinson, 02-60 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.

Second, the original and habitual offender commitments indicate that the trial judge sentenced the defendant for the wrong grade of the offense. Both commitments indicate that the defendant was found guilty of “theft $300 +,” rather than theft of property valued at $500 or more. LSA-R.S. 14:67(B) provides for three grades of theft. Those grades are when the misappropriation or taking amounts to (1) a value of $500 or more, (2) a value of $300 or more, but less than $500, and (3) a value of less than $300. There is no grade for theft “in excess of $300.” The verdict form and transcript clearly indicate that the defendant was convicted of theft of property valued at $500 or more. Accordingly, we remand the case to the trial court and order it to correct the minute entries/commitments to reflect the correct grade of the offense for which the defendant was convicted, i.e. theft of property valued at $500 or more. See State v. Terrase, 02-1009 (La.App. 5 Cir. 2/25/03), 841 So.2d 947, 951.

DECREE

For the reasons set forth above, we affirm defendant’s conviction and sentence. However, we remand the case and order the trial court to inform the defendant of the appropriate prescriptive period for filing for post-conviction relief by sending him written notice within ten days of the rendition of this opinion and to file proof in the record that the defendant received the notice. We further order |1flthe trial court to correct the minute entries/commitments to reflect the correct grade of the offense for which the defendant was convicted.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The co-defendants were not tried with the defendant, and this appeal pertains solely to Alton J. Ramsdell.

      . The bill of information charges the defendant with theft of property valued over $1000. LSA-R.S. 14:67(B)(1) provides the punishment for theft of property valued over $500. There is no separate category for theft of property valued over $1,000, so theft of property valued over $500 applies in this case.


text:
    Henry J. SAUVIAC III v. James Michael DOBBINS and XYZ Insurance Company.
    No. 06-CA-666.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      David L. Neeb, Metairie, Louisiana, Jacob Amato, Gretna, Louisiana, Glenn P. Orgeron, Lawrence J. Hand, Jr., New Orleans, Louisiana, for Plaintiff/Appellee.
    Patrick J. Briney, Brandon 0. Wallace, Lafayette, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|aHartford Casualty Insurance Company appeals from a judgment of the trial granting plaintiffs’ motion for partial summary judgment on the issue of coverage. For the reasons stated more fully herein, we affirm.

Facts and Procedural History

This litigation originally began on December 9,1997 with a petition for damages filed by Henry Sauviac against defendant James Michael Dobbins for defamation, malicious prosecution and negligence. Plaintiff alleged that in 1994 he sold his insurance business, Henlar, Inc., to Powell Insurance Company. At the same time, Sauviac entered into an employment agreement with Powell to service the insurance contracts.

Plaintiff alleged that Dobbins, a former employee of Henlar, began an effort to interfere with the business relationship between plaintiff and Powell |4with the hopes of replacing plaintiff as an employee of Powell. Plaintiff specifically alleged that defendant began a campaign of making false statements and spreading false rumors about plaintiff regarding allegations of criminal activity and the supposed revocation of plaintiffs insurance license. Plaintiff further alleged that Dobbins reported Sauviac to the Louisiana Commissioner of Insurance and also accused Sauviac of theft to the Jefferson Parish Sheriffs office, causing plaintiffs arrest and imprisonment. Plaintiff also alleges that as a result of these accusations, he was terminated from his position with Powell in April of 1994. He also alleges that Dobbins was subsequently hired by Powell to replace him.

On March 9, 1998, plaintiff amended his petition to include his wife Larnell Sauviac as plaintiff and to name as defendants another former Henlar employee, Rachel Vogel, and Powell Insurance Company, as well as their insurers, Hartford Insurance Company and CNA Insurance Company. At this time, plaintiffs also amended their petition to include additional claims of false arrest and malicious prosecution against all defendants.

On October 5, 1999, Hartford filed an answer to plaintiffs’ petition and amended petition for damages, generally denying the allegations and further providing that policies issued by Hartford did not provide coverage for plaintiffs’ claims. In May of 2001, Hartford filed a motion for partial summary judgment on the issue of coverage which was denied by the trial court.

In October of 2001, plaintiffs filed a motion for partial summary judgment on the issue of coverage afforded by the Hartford and CNA policies. The CNA policy, issued in the name of its company “Valley Forge Insurance Company,” provided both employee dishonesty coverage and | pliability coverage for the coverage year of 1994. During discovery in this matter, Hartford produced two primary business liability policies issued to Powell covering policy years 1995 and 1996 with policy limits of $1,000,000 for each occurrence.

On November 29, 2001, the trial court granted plaintiffs’ motion for partial summary judgment, finding that CNA provided coverage for the damages and injuries sustained by plaintiffs in this action. The judgment was silent as to plaintiffs’ claims against Hartford.

In November of 2002, plaintiffs settled their claims with Hartford for the amount of $40,000. Hartford was dismissed from this litigation by judgment of the trial court on December 2, 2002. Following Hartford’s dismissal from the case, it was discovered that Hartford issued a total of 18 policies of insurance to Powell providing coverage for periods from 1995 — 2003 which Hartford failed to produce during discovery. The policies beginning in coverage year 1997 contained umbrella or excess liability provisions.

In January of 2003, plaintiffs settled their claims with CNA for the sum of $750,000. CNA now alleges that the settlement was induced by Hartford’s failure to produce documentation prior to its dismissal from the case.

On February 13, 2003, plaintiffs filed into these proceedings a petition to annul the judgment of dismissal which was entered in favor of Hartford on December 2, 2002. Plaintiffs allege that Hartford committed fraud by intentionally failing to produce in discovery documentation which would have supported plaintiffs’ claims against defendants. Plaintiffs contend that the documentation, which Hartford claimed did not exist, was discovered by | ^counsel for CNA following Hartford’s dismissal from the case. Plaintiffs contend that by concealing this documentation, Hartford fraudulently induced plaintiffs to settle their claims for $40,000 although the available policies provided $1,000,000 in primary insurance coverage.

Plaintiffs further contend that following the settlement with CNA, they discovered that Hartford also hid the fact that defendants held excess coverage in the event that the primary liability exceeded $1,000,000. Plaintiffs allege that based on the specific acts of fraud perpetrated by Hartford, that the judgment of dismissal as to Hartford should be annulled, vacated and set aside.

Hartford answered this petition, denying its allegations, and arguing that the 2002 settlement is valid, was not induced by fraud and was part of plaintiffs settlement strategy.

Following the discovery of the additional policies and documentation, CNA filed a third party demand against Hartford to recover Hartford’s pro rata share of the settlement paid by CNA. CNA subsequently filed a motion for summary judgment on the issue of whether Hartford issued 18 policies of insurance to Powell which potentially provides coverage for plaintiffs’ claims for the alleged acts of defendants in this litigation. By judgment rendered on November 22, 2004, the trial court denied the motion, finding that there were issues of fact as to whether the Hartford policies were applicable to the underlying case or whether they should have been produced by counsel for Hartford prior to settlement with plaintiffs.

On November 3, 2005, plaintiffs brought a motion for partial summary judgment on the issue of coverage for the policies issued by Hartford. Hartford filed an opposition to this motion as well as a cross |7motion for partial summary judgment on the issue of coverage. By judgment rendered on February 15, 2006, the trial court granted plaintiffs’ partial motion for summary judgment and denied Hartford’s motion, thereby determining that the Hartford policies provided coverage for plaintiffs’ claims. This judgment was revised by the trial court on March 15, 2006 to provide that the judgment is expressly determined to be final and appealable.

Hartford now appeals from this judgment.

Law and Discussion

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Araujo v. Eitmann, 99-1377 (La.App. 5th Cir.5/17/00), 762 So.2d 223, 225. Following the 1996 amendment of the summary judgment law, summary judgment is now favored. It shall be used to “secure the just, speedy, and inexpensive determination” of all actions, except those excluded by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2).

The party bringing the summary judgment motion bears the burden of proof. La.C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, the mover’s burden on the motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2); Cage v. Road Dist. No. One of Jefferson Parish, 04-1470 (La. App. 5 Cir. 5/31/05), 904 So.2d 863, 865. Then, the burden shifts to the adverse party to produce factual support sufficient to Lshow that she will be able to meet her evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

Finally, it is well settled that the appellate review of summary judgment is de novo, applying the same standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Schroeder v. Board of Sup’rs. of Louisiana State Univ., 591 So.2d 342, 345 (La.1991).

As this Court stated in Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 25:

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation set forth in the Louisiana Civil Code. Reynolds v. Select Props., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. In Louisiana, insurance policies are interpreted under the rules governing contract interpretation. La. C.C. arts. 2045-2057. Language in an insurance policy which is clear, expresses the intent of the parties and does not violate a statute or public policy, must be enforced as written. If the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Reynolds, supra; Newby v. Jefferson Parish Sch. Bd., 99-0098 (La.App. 5th Cir.6/1/99), 738 So.2d 93; Araujo v. Eitmann, supra, 762 So.2d at 225.
The purpose of liability insurance is to afford the insured protection from damage claims. Reynolds, supra. Insurance policies should be interpreted to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). Any ambiguity in an insurance policy’s exclusion should be narrowly construed to afford coverage. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029. However it is also well-settled that unless a statute or public policy dictates otherwise, insurers have the right to limit liability and enforce conditions or limitations upon their insureds. Reynolds, supra, 634 So.2d at 1183. In addition, the insurer bears the burden of proving that a loss falls within a policy | ^exclusion. Blackburn v. National Union Fire Ins. Co., 00-2668 (La.4/3/01), 784 So.2d 637, 641.

In granting summary judgment in this case, the trial court found that plaintiffs’ claims of malicious prosecution did not accrue until plaintiffs obtained a favorable dismissal of the action in 1998 and the essential elements for malicious prosecution had materialized. Thus, the trial court concluded that the Hartford policies provided coverage for plaintiffs’ claims of malicious prosecution asserted in this case.

By this appeal, Hartford contends that the trial court erred in granting the partial summary judgment on the issue of coverage because the court previously determined in a motion for summary judgment filed by CNA in 2004 that there were issues of fact which precluded summary judgment against Hartford. However, we fail to find that the trial court’s ruling on the CNA’s motion operates as law of the case here. The first motion was filed by CNA, and not by plaintiffs, was filed over one year before the present motion, and advanced a different argument in support of the motion with different submissions of proof. Moreover, we find no authority supporting Hartford’s argument that a trial judge cannot entertain a motion for summary judgment a second time on the same issue. See, Melton v. Miley, 98-1437 (La.App. 1st Cir.9/24/99), 754 So.2d 1088, writ denied, 99-3089 (La.1/7/00), 752 So.2d 867; Rogers v. Horseshoe Entertainment, 32,800 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, 601.

Hartford next contends that pursuant to the clear terms of the subject policies, plaintiffs had the burden to prove that they first suffered “personal injury” within the policy period of the Hartford policies. As plaintiffs alleged in their petition that all of the alleged wrongful acts of defendants |inoccurred in 1994, prior to the effective date of the Hartford policies, plaintiffs have failed to meet this burden. Thus, Hartford contends that the trial court erred in granting plaintiffs’ motion for partial summary judgment and denying Hartford’s motion as the clear terms of the Hartford policies show that there is no coverage for plaintiffs’ claims in this case.

There is no dispute in this case that Hartford issued approximately 18 primary and umbrella policies of insurance to Powell Insurance Agency, Inc. covering policy years 1995 through 2003. The only two policies which Hartford produced in discovery prior to the 2002 settlement with plaintiffs were the policies issued in 1995 and 1996, neither of which includes umbrella or excess liability provisions. Beginning in 1997, Hartford issued policies to Powell which contained umbrella coverage.

Hartford argues that none of the policies issued to Powell provide coverage for plaintiffs’ claims in this case. Hartford contends that the claims are excluded from personal injury coverage because they arise out of publication of material that plaintiffs misappropriated monies belonging to Powell and those publications first occurred in 1994 prior to the effective date of any Hartford policy.

The Hartford policies are essentially the same except as to the policy limits, the effective date of the coverage periods, and whether they are primary or excess. The Coverages in the Business Liability section of the policies issued by Hartford to Powell contains the following pertinent language:

A.l.b. This insurance applies:
(2) To:
lufa) “Personal injury” caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you; ... but only if the offense was committed in the “coverage territory” during the policy period.

Further, malicious prosecution is specifically included in the definition of personal injury in the policy. However, Hartford contends that the following exclusion contained in the policy applies to the instant case:

This insurance does not apply to:
p. “Personal injury” or “advertising injury”:
(2) Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period.

Hartford contends that as the publication of the defamatory material by defendants first occurred in 1994, prior to the policy periods in any of the Hartford policies, coverage is therefore excluded. While we agree with this argument as it applies to plaintiffs’ claims of defamation which requires an element of publication, we fail to find that this exclusion applies to a cause of action for malicious prosecution.

In addition to plaintiffs’ claims of defamation, plaintiffs assert claims for malicious prosecution and false arrest. Plaintiffs assert in their original petition that defendants filed a complaint with the Louisiana Department of Insurance, and that this claim was finally resolved in plaintiffs’ favor in 1997. In their amended petition filed on March 9, 1998, plaintiffs allege that defendants made false allegations of theft to the Jefferson Parish Sheriffs office on March 21, 1996, and that on March 3, 1998, the Jefferson Parish District Attorney entered a nolle prosequi dismissing the charge of theft. | ^Plaintiffs further alleged that “the arrest and aborted prosecution of the plaintiffs was completely without probable cause based on the false allegations of the defendants ...”

Plaintiffs allege that their cause of action for malicious prosecution did not arise until the administrative and criminal proceedings were dismissed, and that there was therefore an occurrence in 1998 under the personal injury liability provisions of the policy for which the Hartford policies provide coverage. We agree.

Unlike a claim for defamation, a claim for malicious prosecution does not fit within the definition of an oral or written publication of material as referred to in the exclusion in the Hartford policies. See, Scandaliato and Associates, Inc. v. First Eastern Bank & Trust Co., 629 So.2d 1347, 1349 (La.App. 4 Cir.1993). In fact, publication is not listed as an element of a claim for malicious prosecution. Malicious prosecution is a separate and independent cause of action, the elements of which include: the commencement or continuance of an original criminal or civil judicial proceeding, its legal causation by the present defendant in the original proceeding, its bona fide termination in favor of the present plaintiff, the absence of probable cause for such a proceeding, the presence of malice therein, and damage conforming to legal standards resulting to the plaintiff. Id., citing, Brimmer v. A. Copeland Enterprises, 609 So.2d 847 (La.App. 5th Cir. 1992), writ denied, 616 So.2d 682 (La. 1993).

Thus, the elements of a cause of action for malicious prosecution include a commencement or continuance of a criminal proceeding and a bona fide termination of the proceeding in favor of the plaintiff. The plaintiffs allege in their original and amending petitions that defendants |13began a course of conduct beginning in 1994 when they were subject to license revocation proceedings and criminal proceedings. These actions were dismissed in plaintiffs’ favor in 1997 and 1998. During this period, plaintiffs alleged that defendants engaged in a continuous course of conduct including the filing of criminal charges, presenting false testimony to the Insurance Commissioner, and making false and misleading statements to the Jefferson Parish Sheriff’s Office and the Jefferson Parish District Attorney, all of which allegedly form the factual basis for their claim of malicious prosecution.

We conclude that the trial court was correct in its determination that plaintiffs’ cause of action for malicious prosecution did not accrue or become ripe until the administrative and judicial proceedings were dismissed in 1997 and 1998. These dismissals necessarily form part of the elementary basis for a cause of action for malicious prosecution, and are therefore deemed to be occurrences under the Hartford policies with 1997 and 1998 coverage periods. Further, the clear terms of the Hartford policies support a finding that malicious prosecution is considered as a “personal injury,” and Hartford failed to meet its burden to show that the cited exclusion relating to “first publication” applies to this claim.

For the reasons assigned herein, we conclude that coverage under the Hartford policies is provided for the plaintiffs’ claim of malicious prosecution as a matter of law, and we find no error of the trial court in granting partial summary judgment in favor of plaintiffs as to the issue of coverage. Accordingly, the judgment of the trial court is affirmed at Hartford’s costs.

AFFIRMED.