source: Caselaw Access Project

author: PAUL A. BONIN, Judge. KIRBY, J., GORBATY, J.,

license: Public Domain

text:
    ULLAH, INC. v. LAFAYETTE INSURANCE COMPANY.
    No. 2009-CA-1566.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2010.

      Edward Robert McGowan, Edward Robert McGowan, L.L.C., New Orleans, LA, for Plaintiff/Appellee, Ullah, Inc.
    Raymond A. Pelleteri Jr., Alexander R. Saunders, Pelleteri & Wiedorn, L.L.C., New Orleans, LA, for Defendant/Appellant, Lafayette Insurance Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| Lafayette Insurance Company unconditionally tendered $40,000 to its insured, Ullah, Inc., for its looting loss following Hurricane Katrina. The jury ultimately decided that Ullah’s looting loss was $450,000 and judgment was rendered on the jury’s verdict. On appeal, Lafayette, conceding that there is no legal error which interdicts the jury’s factual finding, argues for a number of reasons that the jury’s assessment of the loss is clearly wrong and unreasonable. After full review of the record, we disagree with Lafayette and conclude that the jury’s finding of the amount of the looting loss is not clearly wrong and is reasonable.

Ullah, for its part, answered the appeal and seeks statutory penalties and attorney’s fees, which the trial judge refused to award. Ullah contends that the jury specially found in response to an interrogatory that the amount of the unconditional Render was not reasonable. But because on this issue we find that the jury interrogatories and the jury’s answers are ambiguous and confusing, we conclude that its finding regarding the reasonableness of the amount of the unconditional tender is interdicted by legal error and, as a consequence, we review the issue of statutory penalties and attorney’s fees in this case de novo. After our de novo review, we conclude that Lafayette did not act arbitrarily or capriciously in not unconditionally tendering any amount in excess of $40,000.

We affirm the judgment and more thoroughly explain the basis for our decision below.

I

In this Part, we describe the value of Ullah’s property at issue, and we also consider Ullah’s flood and looting losses, for which it was insured by separate insurance providers.

A

At the time of the storm, Ullah was operating a retail store under the name “A.K. Food Store” on Judge Perez Drive in Chalmette. The total value of the store’s inventory was approximately $1,261,550. In addition to gas and regular convenience store items, the A.K. Food Store sold silver jewelry, fishing equipment, and cigarettes and cigars both foreign and domestic. A diagram of the store shows the actual building measured eighty-four feet across and 53 feet in depth and was divided into the following areas: the main store, counter, office, electrical and supplies, bath, mechanical and storage, cooler, and cigarette storage. The store was equipped with a security system, phone system, display cases, shelving, several cash registers, two computers, a fax machine, copier, printer, office supplies, an ATM machine, ice cream machine, two ice machines, several coolers, a freezer, coffee and drink machines, jewelry cases, and a humidor.

| sUllah’s financial statements and tax records for the years 2003, 2004, and 2005 indicate that Ullah maintained and inventory valued between $900,000 and $1.2 million at the store during those years. Also in evidence is a copy of correspondence from Frank L. Silva, Jr., president of Frank Silva & Sons, Inc., one of Ullah’s three wholesale cigarette suppliers, who attested that Ullah purchased five to six thousand cartons of cigarettes per week.

Due to the extra space, Ullah used the Chalmette A.K. Food Store location to warehouse the tobacco products that it sold in stores at other locations. According to Wajid Khan, cigarettes were stored in the cigarette storage area, as well as in the mechanical & storage, electrical & supplies, and office areas of the store. He testified that Ahmedullah Khan had extra, eight-foot tall shelves built in the office area to store the premium cigarettes. Karen Carreras, Ullah’s bookkeeper, corroborated Wajid Khan’s testimony that this store warehoused the tobacco products that Ullah sold at its other locations. According to Ms. Carreras, Ullah’s Chal-mette store averaged approximately $500,000 in sales each month and tobacco products were its biggest seller.

B

The store was flooded and a considerable portion of its inventory was destroyed by the floodwaters, which reached about four feet. Ullah was insured by Fidelity National Property and Casualty Insurance Company through the National Flood Insurance Program with limits of $500,000. Ullah filed its flood claim with Fidelity in late September of 2005. In connection with the flood claim, Ullah submitted to Fidelity a list of A.K. Food Store’s contents and inventory and their |4estimated value as of the date of the storm. Ahme-dullah Khan and his brother Wajid put this list together from memory over the course of several days,' but they did not keep a copy of the list. The total value of the listed items was $1,261,550. Ahmedullah Khan testified at trial that the $1,261,550 total was a good faith estimate of the value of the store’s inventory at the time of the storm. After an independent adjuster inspected the premises in October of 2005 and determined that the store sustained flood losses far exceeding the policy limits, Fidelity paid Ullah the $500,000 policy limits to settle the flood claim.

Ullah was separately insured by Lafayette for wind damage and for looting losses. Though Lafayette sent a wind damage adjuster to the store, it was determined that the damage did not exceed the deductible. After Ullah received payment of the limits of its flood policy proceeds, it contacted Lafayette to adjust its claim for looting. Lafayette’s policy limit of coverage for looting losses on the contents of the building is $540,000.

Lafayette had assigned the wind damage claim to Property Loss Consulting, Inc. (PLC) for adjustment. Six people worked on the claim, including Jerrell Fleming and Chuck Street. Mr. Fleming, the initial adjuster, inspected the A.K. Food Store for wind damage on October 15, 2005, and informed Lafayette that the store sustained losses both from flood and looting. Mr. Fleming had noted in his initial report that the front windows and a glass door were broken and that the flood water rose to 3.9 feet inside the store. He also submitted to Lafayette an itemized list of the estimated looted contents, which totaled $395,000. Mr. Fleming’s report recommended that Lafayette reserve $400,000 to cover the looting loss. This information was available to Lafayette before Ullah submitted its looting loss claim to Lafayette.

|fiIn January of 2006, Ullah notified Lafayette that it wanted to initiate a claim for the property looted from A.K. Food Store. Lafayette informed Ullah that it first must submit a copy of a police report from the St. Bernard Sheriffs Office documenting the dates of theft, the property taken, and a detailed list of the stolen items, their replacement value, and proof of ownership.

On January 9, 2006, Ahmedullah Khan, in order to comply with Lafayette’s requirement, filed a looting complaint with the St. Bernard Sheriffs Office. The resulting sheriffs report’s narrative states, in pertinent part:

Mr. Khan stated that he left his store secured on August 28, 2005, the day before Hurricane Katrina and when he returned he found that the doors and windows to his store were smashed and a lot of his merchandise was looted. Mr. Khan stated some of his merchandise was damage (sic) by water, but the majority is unaccounted for. Mr. Khan stated he had merchandise stock well above the water line which is gone. Mr. Khan stated that the non perishable items are gone, fishing equipment, knives, Zippo lighters, gift items, jewl-ery (sic), watches and phone cards are unaccounted for.

The report specifically listed as stolen the following items and their value:

Tobacco products $250,000.00
Jewlery (sic)/watches $ 40,000.00
Imported Cigars $ 5,000.00
Phone cards $ 25,000.00
Gift items $ 13,000.00
Zippo lighters $ 4,700.00
Groceries $ 8,000.00
Fishing Equipment $ 5,000.00
Knives $ 5,000.00

Ullah submitted a copy of this police report to Lafayette in February of 2006.

The Khans tried to reconstruct a list of their inventory from memory to submit to Lafayette in connection with the looting claim. The Khans estimated that they lost approximately $375,000 in inventory, mostly tobacco products, as a result | fiof looting. Ahmedullah Khan did admit that the store’s “salon” or cigarette storage area was still securely locked when he returned after the hurricane, and none of the cigarettes kept there were missing.

Several months later, Ullah submitted an itemized list — again, put together from memory by Ahmedullah and Wajid Khan— that included a description and estimated value of the contents of the A.K. Food Store as of the date of the storm. The estimated value of the listed items totaled $1,208,660. Ullah also provided Lafayette with copies of its 2003 and 2004 federal and state tax returns as well as its income and balance sheet statements for the two year along with invoices from wholesale suppliers documenting the goods purchased for the store that preceding year.

Lafayette’s claim notes, such as e-mail and other correspondence between PLC adjusters and Lafayette’s claims representatives, disclose a note dated June 22, 2006, in which another PLC adjuster, Mr. Street, opined that flooding caused the loss to the inventory below three feet and that looting was responsible for the loss of the items above that level.

Two months later Roberta Sniffen, the Lafayette employee responsible for managing the looting loss claim, then transferred adjustment of the claim from PLC to the local office of Cunningham Lindsey U.S., Inc., a public insurance adjusting firm. Ms. Sniffen acknowledged that Darryl Davis, the new adjuster, agreed with the assessment made by PLC’s adjusters about the causes and extent of the separate flooding and looting losses.

17Lafayette learned that Fidelity paid the limits of its flood policy in the amount of $500,000 to Ullah based upon Fidelity’s adjustment of the flood claim which assessed the flood loss at $1,161,550. Lafayette based its unconditional tender on the difference between that figure and Ullah’s valuation of its total inventory. On September 22, 2006, Lafayette unconditionally tendered $40,000 to Ullah. Ullah cashed the check on October 13, 2006.

C

On June 27, 2007, Ullah filed a petition in the district court alleging that Lafayette had failed to pay the full amount due for damages caused by looting, and that Lafayette had arbitrarily and capriciously failed to properly adjust its claim. Ullah also alleged that Lafayette had acted in bad faith by failing to settle the claim timely in violation of La. R.S. 22:658 and La. R.S. 22:1220.

Following the liability and damages stage of a bifurcated trial, the jury returned a verdict finding that Ullah sustained a loss of $450,000 solely due to looting. Following the trial on penalties, the jury found that Ullah had provided Lafayette with satisfactory proof of its looting loss no later than September 2, 2006, and that Lafayette had tendered a payment for the loss within 30 and 60 days of the proof of loss. But the jury also found that the amount tendered was not reasonable.

Lafayette moved for a judgment notwithstanding the verdict, arguing that Ul-lah failed to offer sufficient evidence of a looting loss exceeding $40,000, | ¡¡separate and apart from the evidence submitted in conjunction with the flood claim. The trial court denied Lafayette’s motion.

After the penalty phase of the trial, the trial court found that Lafayette had timely tendered the undisputed amount of $40,000, in accordance with La. R.S. 22:658. The trial court further concluded that, considering that in its opinion the amount of looting loss proven at trial was closer to $400,000, the jury award of $450,000 was intended to include a penalty; therefore, the trial court denied Ullah’s request for statutory penalties. Accordingly, the trial court rendered judgment ordering Lafayette to pay Ullah $410,000 (the amount of the jury award less the prior tender by Lafayette of $40,000), with costs and interest from the date of judicial demand. In a separate judgment, the trial court also denied Ullah its attorney’s fees.

II

In this Part we address Lafayette’s appeal. Lafayette argues that Ullah failed to offer sufficient evidence of looting damages to support the jury’s verdict. Lafayette contends that, in connection with the looting claim, Ullah submitted to Lafayette a detailed inventory list nearly identical to the list it submitted to Fidelity to support its flood claim. Lafayette argues that Ul-lah’s award for looting damages amounts to a double recovery — that because Fidelity attributed to an almost total loss of the store’s inventory to flooding and paid the $500,000 policy limit, Ullah is recovering twice by re-characterizing its flood loss as looting loss. Lafayette also argues that Ullah failed to segregate its flood and looting losses. We disagree with |9these contentions because the evidence in the record does not support a finding that the jury award for Ullah’s looting losses is manifestly erroneous.

Judgment in this case was rendered on the merits after a full trial by jury. After applying the appropriate standard of review to the record, there is no reasonable basis for finding manifest error in the jury’s verdict. Lafayette does not allege legal error to render de novo review of the jury’s award by this court, and accordingly we review the jury’s determination for manifest error. See Adams v. Rhodia, 07-2110, p. 10 (La.5/21/08), 983 So.2d 798, 806. The Louisiana Supreme Court fully described the limits of this review in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989), stating that a court of appeal may not set aside a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and moreover, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The factfin-der's choice between two permissible yet conflicting views of the evidence will rarely ever be “clearly wrong.” As the court in Rosell explained:

Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or dearly wrong.
(citations omitted; emphasis added)

|inIn this case, there was ample evidence — including extensive testimony, photographs, and documentation — before the jury of inventory loss due to looting. The jury had a reasonable basis for finding that Ullah simply submitted in good faith two lists of the inventory in the store at the time of Hurricane Katrina. There are no documents or objective evidence to contradict Ahmedullah and Walib Khan’s assertion that these lists were representative of total inventory, and their credibility on this point was squarely put to the jury. Additionally, there is no evidence to support Lafayette’s intimation that Ullah in bad faith declined to segregate what was looted and what was damaged by flood in order to obtain “double recovery” for its losses.

Ullah was asked twice — by Fidelity and by Lafayette — to submit a list of the A.K. Food Store’s inventory at the time of Hurricane Katrina. Ahmedullah Khan and his brother Walib each gave testimony that they were asked to submit a list of total inventory list on their flood claim, and not a list for items of inventory lost to the flood waters. The first list was put together from memory and sent to Fidelity. The Khans did not keep a copy of this list, and when asked to furnish a list of total inventory to Lafayette for the looting claim, they again tried to compile an inventory list from memory, as they had done for Fidelity. They did not claim that this list was indicative of inventory lost to looting. Instead, the Khans listed the inventory they believed had been looted in the police report that Lafayette required before adjusting the looting claim. This list included approximately $375,000 worth of inventory lost to looting. Mr. Fleming, who initially adjusted for | n Lafayette, estimated that Ullah had lost approximately $395,000 of inventory to looting. The jury’s ultimate assessment of Ullah’s looting losses at $450,000 losses is not an unreasonable sum.

Lafayette argues that Ullah, by submitting nearly identical inventory lists to its insurers, was re-characterizing its flood damage as a looting loss in order to double-recover. First, it should be noted that “[n]o question of double recovery can arise unless the insured would receive more than the property was worth.” 12 Couch on Insurance 3d, § 175:6. As Ullah recovered $500,000 for its flood losses and $410,000 from the trial judgment, Ullah’s total recovery does not exceed the value of its inventory totaling approximately $1.2 million. There is, accordingly, no double recovery in this case.

Lafayette also suggests that Ullah, by accepting the $500,000 policy limit, tacitly accepted Fidelity’s assessment of flood-damaged inventory at $1,161,550. This $1.16 million reflects the total value of Ullah’s inventory after subtracting the non-recoverable depreciation amount of $46,695.10. If Ullah’s acceptance of $500,000 from Fidelity was a confirmation that it lost nearly all its inventory due to flooding, there would have been nothing left to litigate on the looting claim.

The more reasonable explanation is that the jury believed that the flood adjustment was an over-estimation. At trial, two of Lafayette’s witnesses were out-of-town adjusters who handled Ullah’s flood claim: Lawrence Williams and Thomas Hubbard. Mr. Hubbard is a retired insurance adjuster hired by Mr. Williams to do the legwork on the flood claim. Mr. Hubbard spent two-and-a-half [ 12hours at the property on October 18, 2005, to take photos and adjust the claim. Mr. Williams spent twenty minutes there nearly two months later. Mr. Williams admitted that he believed the flood claim to be above the policy limits, so it did not merit much investigation. Fidelity’s over-estimation of the value of the claim does not translate to a double-recovery for Ullah because Ullah did not recover on the estimation. It is not Ullah’s duty to object to Fidelity’s inelegant valuation of the flood loss.

Lafayette directs us to a federal district court case, Lambert v. State Farm Fire and Casualty Co., to assert that Ullah’s failure to segregate its flood from its looting damages is a sufficient basis for reversing the jury’s verdict. The plaintiff in Lambert was attempting to reclassify flood damage, which had already been paid in full, as wind damage. The court noted that Lambert’s acceptance of the flood proceeds (in the full amount of $190, 185.76) was a tacit confirmation that the damages identified and paid were caused by flood. Lambert, 568 F.Supp.2d at 704. Lambert, however, was not a case where the actual damage to the property exceeded the policy limits. Accordingly, Ullah’s acceptance of the $500,000 policy limit on the flood insurance is not a tacit confirmation that the food store suffered a loss of approximately $1.2 million of its inventory due to flood damage; it is simply a confirmation that the food store suffered at least $500,000 worth of flood damage.

| triBecause Ullah recovered $500,000 for its flood loss and will recover $450,000 for looting, it cannot be true that Ullah has “double-recovered” when its total inventory at the time of the storm approximated $1.2 million. Ullah’s recovery for its losses under Lafayette’s commercial business policy is not a windfall but rather an evidence-based determination of loss by the jury after trial on the merits. There was sufficient evidence of looting at the A.K. Food Store to support the jury’s award, and a fair review of the record mandates that we affirm the judgment below.

Ill

In this Part we address Ullah’s appeal. Ullah’s answer to Lafayette’s appeal argues that Ullah is entitled to the statutory penalties and attorney’s fees of La. R.S. 22:658 as well as the statutory penalties of La. R.S. 22:1220. Ullah argues that because the jury did not find that the amount tendered by Lafayette was reasonable, statutory penalties are due. Because we determine that the process preceding the jury’s finding on this material point was so confusing as to be unreliable, we review Ullah’s claim for penalties and attorney’s fees de novo.

At the second stage of the bifurcated trial, the jury was to determine whether the statutory penalties of either La. R.S. 22:658 or La. R.S. 22:1220 would be applied to the damages awarded in the first stage of the trial. The jury answered six interrogatories (see La. C.C.P. art. 1812) on the issue of penalties:

1 i4(l) Did Ullah, Inc., provide satisfactory proof of loss to Lafayette Insurance Company regarding their looting claim?
YES
If your answer is YES, please proceed to No, 2. If your answer is NO, then please sign the Interrogatories and return to the courtroom.
(2) On what date did Lafayette Insurance Company receive satisfactory proof of loss?
Sept. 2, 06
(3) Did Lafayette Insurance Company fail to pay Ullah, Inc., any amounts owed for theft or looting within 30 days of receipt of satisfactory proof of loss?
NO
(4) If your answer to Question No. 3 is YES, was the failure to pay the amount arbitrary, capricious or without probable cause?
(blank)
(5) Did Lafayette Insurance Company fail to pay Ullah, Inc., any amounts owed for theft or looting within 60 days of receipt of satisfactory proof of loss?
NO
(6) Was the amount tendered by Lafayette Insurance Company reasonable based upon the information available at that time?
NO

The trial judge later rendered judgment, stating in pertinent part:

After reviewing the post-trial memos, relevant case law and statutes, the Court finds that Lafayette Insurance Company timely tendered the undisputed amount of $40,000 in accordance with La. R.S. 22:658. Furthermore, considering the amount proven at trial was closer to $400,000, the Court concludes that the jury award of $450,000 was intended to include a penalty. Accordingly, the Court denies Plaintiffs request for penalties pursuant to La. R.S. 22:658.

The conduct prohibited by La. R.S. 22:658 A(l) is “virtually identical to the conduct prohibited in La. R.S. 22:1220 B(5): the failure to pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause.” Reed v. State Farm Mut. Auto Ins. Co., 03-0107, p. 12 (La.10/21/03), 857 So.2d 1012, 1020. These statutes are penal in nature and must be strictly construed. Reed, supra, 857 So.2d at 1020. “One who claims entitlement to penalties and attorney fees has the burden of proving the insurer received satisfactory proof of loss as a predicate to a showing that the insurer was arbitrary, capricious, or without probable cause.” Reed, supra, 857 So.2d at 1020. In this case, there is no argument by either party that the jury was clearly wrong in finding that Lafayette received satisfactory proof of loss on September 22, 2006 and we accept that finding of fact by the jury.

“The phrase ‘arbitrary, capricious, or without probable cause’ is synonymous with ‘vexatious,’ and a ‘vexatious refusal to pay’ means ‘unjustified, without reasonable or probable cause or excuse.” Louisiana Bag Co., Inc. v. Audubon Indem. Co., 08-0453, p. 14 (La.12/2/08), 999 So.2d 1104, 1114. Additionally, the plaintiff must show a lack of compliance with the respective time periods. Long v. American Security Ins. Co., 10-0026, p. 4 (La.App. 4 Cir. 11/17/10), 52 So.3d 260 (citing La. R.S. 22:658 and La. R.S. 22:1220). The jury specially found that Lafayette did not fail to pay any amounts within 30 and 60 days of the date of its receipt of satisfactory proof of loss, which are the respective time periods. Here again neither party argues that this finding is clearly wrong and, of course, the evidence is uncontroverted that the tender of $40,000 was made on September 22, 2006, within thirty days of Lafayette’s receipt of the satisfactory proof of loss. According to the jury interrogatories, to which Ullah did not object, this factual finding precluded a consideration by the jury whether Lafayette’s conduct was “arbitrary, capricious, or without probable cause.” Whether an insurer’s conduct is “arbitrary, capricious, or without probable cause” is essentially a question of fact | ififor the factfinder. See Guillory v. Lee, 09-0075, p. 32 (La.6/26/09), 16 So.3d 1104, 1127 (citations omitted). Consequently, there is no explicit finding of fact that Lafayette’s conduct violated the penalty statutes.

But Ullah argues that the jury’s finding that the amount tendered by Lafayette was not “reasonable” is an implicit finding of fact that its conduct violated the penalty statutes. We disagree.

We first observe that the jury finding sought by the interrogatory is unclear. If the sixth special interrogatory was indeed intended (as Ullah argues) to require the jury to determine whether Lafayette had been arbitrary in its tender, then we do not comprehend why the third and fifth special interrogatories specifically precluded such a finding. Moreover, the selection of the term “reasonable” in the sixth interrogatory is confusing. The words “reasonable” and its opposite “unreasonable” have broader application than the terms “arbitrary, capricious, or without probable cause.” An “arbitrary” action is always an “unreasonable” action, but an “unreasonable” action is not necessarily “arbitrary.” For example, “arbitrary and capricious” action for an award of penalties under the workers’ compensation statute (La. R.S. 23:1201) has been interpreted to consist of “willful and unreasoning action, without regard for facts and circumstances presented, or of seemingly unfounded motivation.” Williams v. Rush Masonry, Inc., 98-2271, (La.6/29/99), 737 So.2d 41, 46 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890.). Additionally by way of further illustration, the concept of “reasonableness” is a factor in a variety of legal standards that would not necessarily rise to a level of arbitrariness if reasonableness were absent. See, e.g., Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993) (in which |17the reasonableness of a jury’s award of damages is considered only after the appellate court finds that the trial court abused its discretion); and see, e.g., Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 239 (applying the “reasonable man” standard in negligence action). The jury in this case may have simply concluded that a reasonable special damage award was the $450,000 assessed earlier and that Lafayette was wrong, but not necessarily arbitrary in its assessment. The point, however, is that we are simply unable to discern what the jury found, meant, or intended by its response to the sixth interrogatory.

Generally, a jury’s factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Where, however, legal error interdicts the fact finding process, the manifest error standard no longer applies and, if the record is complete, an appellate court should make its own de novo review of the record. Lam v. State Farm Mut. Auto. Ins. Co., 05-1139, p. 3 (La.11/29/06), 946 So.2d 133, 135. “Where the trial court submits a verdict sheet which either confuses or misleads the jury, such interrogatories may constitute reversible error, and thus the ‘manifest error’ standard of appellate review is ignored.” Niklaus v. Bellina, 96-2411 (La.App. 4th Cir.5/21/97), 696 So.2d 120, 124 (citation omitted).

Because the error here does not affect all of the jury’s findings, we apply de novo review to only that finding which is interdicted by error and we accept those that are not. See, e.g., Picou v. Ferrara, 483 So.2d 915, 918 (La.1986).

These two jury interrogatories were confusing, and due to this confusion, the jury never determined whether Lafayette’s payment of the initial $40,000 was arbitrary and capricious, a finding that is required by both statutes. The wording of | mthe jury interrogatories could have suggested to the jury that the timely payment of any amount pretermits a finding that Lafayette acted in an arbitrary and capricious manner. Indeed, the jury did not agree that this tender was “reasonable,” but again, the wording and chronology of the interrogatories fails to clarify the consequences of such a finding. We find that this confusion in the jury interrogatories amounts to legal error, and accordingly, we review the basis for awarding penalties de novo.

Ullah suggests that the jury’s finding that the amount tendered by Lafayette was not reasonable is sufficient for an award of penalties. Ullah alleges that Lafayette failed to pay the “undisputed” amount within the statutory time periods, causing the jury to find that Lafayette’s tender was not “reasonable.” Despite the fact that the jury did not find that Lafayette failed to pay within 30 or 60 days and thus did not make any determination as to whether Lafayette acted in an arbitrary and capricious manner, Ullah asserts that the jury’s failure to find that the tender was “reasonable” nonetheless violates the terms of La. R.S. 22:658 and 22:1220. We disagree.

The Louisiana Supreme Court has noted that, “when there are substantial, reasonable, and legitimate questions as to the extent of an insurer’s liability or an insured’s loss, failure to pay within the statutory period is not arbitrary, capricious or without probable cause.” Louisiana Bag, supra, 999 So.2d at 1114. While an insurer need not tender payment for amounts that are reasonably in dispute, “there can be no good reason — or no probable cause — for withholding an undisputed amount.” Louisiana Bag, supra, 999 So.2d at 1114 (citing Hammett v. Fire Ass’n of Philadelphia, 181 La. 694, 160 So. 302, 304-305) (emphasis in original). Where the exact extent of the damages is unclear, an insurer must tender the reasonable amount which is due. Louisiana Bag, supra, 999 So.2d at 1115. Bad faith will not be |T ¡inferred from an insurer’s failure to make a timely tender when there is a reasonable and legitimate question as to the extent and cause of a claim. Guillory, supra, 16 So.3d at 1127.

After reviewing the record, we find no basis for assessing penalties against Lafayette under either La. R.S. 22:658 or La. R.S. 22:1220 for its initial payment of $40,000 for Ullah’s looting losses. Lafayette did not withhold an undisputed amount without reason. Lafayette calculated Ullah’s looting loss as follows: $1,208,660 (Ullah’s estimated value of the inventory on August 28, 2005) less $1,161,550 (Fidelity’s estimation of the total inventory loss due to flooding) less $8,500 (the value of an AMOCO sign that was included on the inventory list but not covered under the policy, because it was not attached to the building), leaving a total of $38,610 in inventory lost to looting. The basis for Fidelity’s adjustment and settlement of Ullah’s flood claim raised a legitimate question about the extent of Lafayette’s liability to Ullah. We cannot penalize Lafayette for acting on its “substantial, reasonable, and legitimate questions” in determining the amount which was undisputed and which must be tendered. Although Lafayette’s initial calculation of the amount it owed Ullah for its looting losses was wrong or incorrect in light of the jury’s ultimate reasonable factual determination, we do not find Lafayette’s actions to be arbitrary, capricious, or without probable cause.

As there is no basis for finding that Lafayette’s tender amounts to an arbitrary and capricious failure to pay, we deny Ul-lah’s request for penalties and attorney’s fees under La. R.S. 22:658 and penalties under La. R.S. 22:1220.

|2nDECREE

The judgments in favor of Ullah, Inc. and against Lafayette Insurance Company in the full amount of $410,000, with interest thereon from date of judicial demand until paid, and for costs in the amount of $1,628.20 are affirmed. Costs of appeal are taxed to Lafayette Insurance Company. See La. C.C.P. art. 2164.

AFFIRMED

KIRBY, J., Dissents with Reasons.

GORBATY, J., Dissents.

KIRBY, J.,

Dissents with Reasons.

|,I respectfully dissent from the majority opinion and would reverse the judgment of the trial court. After a thorough review of the record, I find the plaintiff, Ullah, Inc., failed to prove a looting loss, separate and apart from its compensated flood loss.

At the time of Hurricane Katrina, Ullah had in effect two insurance policies. The first, a commercial business policy issued by defendant, Lafayette Insurance Company, insured Ullah’s A.K. Food Store building and the contents therein against wind, hail, looting and other perils, but not floods. The Lafayette policy provided coverage limits of $262,000.00 on the building and $540,000.00 on the contents.

The second, a flood insurance policy issued by Fidelity National Property and Casualty Insurance Company (“Fidelity”) pursuant to the National Flood Insurance Program (“N.F.I.P.”), covered the contents of the A.K. Food Store building to the limit of $500,000.00.

When the Khans returned to St. Bernard and discovered the damage in late September 2005, Ullah filed a wind claim with Lafayette. Lafayette assigned the 12claim to Property Loss Consulting, Inc. (“PLC”), and Jerrell Fleming, an adjuster, inspected the premises on October 15, 2005. Shortly thereafter, it was determined that the wind damage did not exceed the deductible.

Meanwhile, unbeknownst to Lafayette, Ullah also filed a flood claim with Fidelity. In connection with the flood claim, Ullah submitted to Fidelity a list that included a description and estimated value of the contents and inventory of A.K. Food Store on the date of Hurricane Katrina. The total value of the listed items was $1,261,550.00. After an independent adjuster inspected the premises in October 2005, Fidelity determined that A.K. Food Store sustained a total loss of its inventory and contents, amounting to $1,161,550.00, as a result of the flood. In December 2005, Fidelity paid Ullah the $500,000.00 policy limits to settle the flood claim.

In January 2006, after Ullah had settled the flood claim for the policy limits and the wind claim adjustment yielded minimal damage, and three months after the store premises had been gutted and its contents completely discarded, Ullah notified Lafayette that it wanted to file a looting claim for inventory allegedly looted during the hurricane. Lafayette informed Ullah that to initiate the claim it first had to submit a copy of a police report from the St. Bernard Parish Sheriffs Office, documenting the dates of the theft and the property taken, as well as a detailed list of the stolen items, their replacement value, and proof of ownership.

As required, Ahmedullah Khan filed a complaint with the St. Bernard Sheriffs Office on January 9, 2006, and reported the following items as stolen:

Tobacco products $250,000.00
Jewlery (sic)/watehes $ 40,000.00
Imported Cigars $ 25,000.00
Phone cards $ 25,000.00
Gift items $ 13,000.00
Zippo lighters $ 4,700.00
^Groceries $ 8,000.00
Fishing Equipment $ 5,000.00
Knives $ 5,000.00
Total Value Lost to Looting $375,700.00

Ullah then filed the looting claim and submitted a copy of the police report to Lafayette in February 2006.

Several months later, Ullah submitted to Lafayette an itemized list that included the description and estimated value of the contents of the A.K. Food Store on the date of Hurricane Katrina. The estimated value of the listed items totaled $1,208,660.00.

In September 2006, after Lafayette discovered that Ullah had, in fact, settled a flood claim on the contents of the A.K. Food Store with Fidelity for the $500,000.00 policy limits, it adjusted the looting claim accordingly and issued a check to Ullah in the amount of $40,000.00 to satisfy the claim. Ullah cashed the check on October 13, 2006.

In June 2007, Ullah filed a suit against Lafayette, alleging that it arbitrarily and capriciously failed to properly adjust the looting claim and pay the full amount of damages under the policy for the looting loss. Lafayette does not dispute that Ul-lah had approximately $1.1 to $1.2 million in inventory on hand at the A.K. Food Store in Chalmette at the time of Hurricane Katrina. Rather, it contends that Fidelity, in adjusting the flood claim, had assessed the total value of the food store’s damaged inventory at $1,161,550.00, attributed the total loss to the flood, and paid Ullah the $500,000.00 flood policy limit. Lafayette further argues that by haccepting the flood policy limit from Fidelity, Ullah tacitly confirmed that the damages identified were caused by the flood and, although Ullah’s receipt of damages under the flood policy did not preclude Ullah from making a looting claim under the commercial business policy, it did preclude Ullah from recovering for the same loss by re-characterizing the same damages as a looting loss.

After reviewing the testimony and evidence in the record, I believe the jury clearly erred in finding Ullah had sustained a loss of $450,000.00 in inventory as a result of looting during and after Hurricane Katrina. At trial, Ullah had the burden to prove, as it alleged, that $375,700.00 in inventory was stolen. The evidence Ul-lah offered at trial, including the tax records, financial statements, wholesale invoices, inventory descriptive lists, as well as the testimony from the Khans and their employees, merely established that the food store had approximately $1.1 to $1.2 million in inventory at the time of Hurricane Katrina, a fact Lafayette does not dispute. The detailed inventory descriptive list that Ullah submitted to support the looting claim is nearly identical to the inventory list that it submitted to Fidelity on the flood claim. Regarding the St. Bernard Parish Sheriffs Office report in evidence, which the majority finds constitutes Ullah’s proof of segregating its looting loss, Mr. Khan’s narrative therein is clearly self-serving and not supported by any independent evidence, such as an affidavit from an eye witness to the looting or a similarly filed looting complaint from another business or homeowner in the area.

In affirming the jury’s findings, the majority references the report from Mr. Fleming, the PLC adjuster who initially adjusted the wind claim for Lafayette and estimated that Ullah had lost approximately $395,000.00 of inventory to looting. Because Mr. Fleming never testified at the trial, we do not know how or why he arrived at that figure. Nonetheless, the claim notes from the Lafayette file, which are in evidence, indicate that Mr. Fleming initially reported to Lafayette that the | ¡-.looting took place before the flooding oe-curred in St. Bernard Parish several days after the hurricane. Clearly, that was not the case. Even the Khans readily admitted that St. Bernard Parish was completely inundated with water within hours of the hurricane hitting land. Again, because Mr. Fleming was not available to testify, we cannot ascertain why he reported such inaccurate information.

The majority opinion also points out that the photographs in evidence support the jury’s finding that $450,000.00 in inventory was looted. The photographs, taken by the insurance adjusters in early October 2005, before the store was gutted and cleaned, depict the shelves, display cases and merchandise in total disarray. Interestingly, the ATM cash machine was not broken into and remained in the store. Several of the jewelry display cases were still upright and locked. Although Ullah claimed tobacco products constituted the bulk of the looted inventory, the photographs show cases filled with cartons of cigarettes turned over and strewn about the store. Also, Ahmedullah Khan admitted on cross-examination that, when he returned in late September after the hurricane, the store’s “salon” or cigarette storage area was still securely locked and the stored cigarettes were still there. Fidelity’s flood adjuster also testified that that was the case.

The majority states that affirming the jury’s finding does not amount to a “double recovery” for Ullah because Ullah never recovered the full extent of its property loss. But, the reason it did not is because the Fidelity flood policy limit was insufficient to cover the full value of the contents.

Furthermore, nothing in the record indicates that Ullah ever segregated the damages between inventory lost due to the flood and that lost to looting. In fact, Ahmedullah Khan admitted at trial that no attempt was made to segregate the damages between flood and looting. The N.F.I.P. Final Report, which Ullah did not dispute, clearly indicates that Fidelity considered that complete inventory list in | (¡adjusting the flood claim and attributing the total loss to the flood. Ullah’s receipt of damages under the flood policy did not preclude Ullah from making a looting claim under the commercial business policy, but it did preclude Ullah from recovering for the same damages by re-characterizing them as a looting loss.

Because I do not find Ullah offered sufficient proof of a looting loss separate and apart from its flood loss, I believe the jury clearly erred in finding Ullah was entitled to additional damages under the Lafayette policy and would reverse the trial court judgment.

GORBATY, J.,

Dissents.

Ill respectfully dissent for the reasons assigned by J. Kirby.

      . The $450,000 gross award is subject to a stipulated credit of $40,000 for the unconditional tender.

      . Because both Ullah’s and Frank Silva & Sons’ business records were destroyed in the hurricane, Ullah offered the statement into evidence to establish the amount of cigarettes it purchased weekly from wholesale suppliers.

      . At trial, Ullah’s bookkeeper, Ms. Carreras, agreed that this number accurately reflected the total value of the A.K. Food Store's inventory on the day of the hurricane.

      . These statutes were renumbered in 2008. La. R.S. 22:658 has been amended and redes-ignated under La. R.S. 22:1892 and La. R.S. 22:1220 was redesignated as La. R.S. 22:1973. See Acts 2008 No. 415. Also, the substance of La. R.S. 22:658 was amended effective August 15, 2006, for claims arising on or after that date. See Sher v. Lafayette Ins. Co., 07-2441, p. 14 (La.7/7/08), 988 So.2d 186, 199. The amendment increased the penalty and provided for attorney’s fees. See Neal Auction Co., Inc. v. Lafayette Ins. Co., 08-0574, p. 14 (La.App. 4 Cir. 4/29/09), 13 So.3d 1135, 1144.

      . Judgment rendered on September 21, 2009, which was also appealed by Ullah. See discussion in Part III, post.

        . As Lafayette has not argued that the quantum of the jury’s award was excessive, we do not address that issue here.

      . We note that in this case there is no issue of concurrent damage or loss.

      . See La. C.C.P. art. 1793 C.

      .The Lafayette commercial business policy listed the named insured as “Ullah, Inc. d/b/a A.K. AMOCO New Orleans East Chevron.” In addition to insuring the A.K. Food Store in Chalmette, the policy covered Ullah’s A.K. Amoco New Orleans East Chevron Store located at 10422 Chef Menteur Highway.

      . The Khans had purchased that maximum amount of flood coverage allowed under the N.F.I.P. for building contents — $500,000.00.

      . Less non-recoverable depreciation of $46,695.10 and the $500.00 deductible, Ul-lah’s covered loss amounted to $1,114,855.90, which exceeded the policy limits by $614,355.90.

      . Save for an Icee machine and hot coffee machine, the listed items were identical to those on the list given to Fidelity for the flood claim. However, the designated dollar value amounts of nine of the listed items differ between the two lists. For example, the sterling silver jewelry is valued at $45,000.00 on the Lafayette list and at $57,000.00 on the Fidelity list; cigars are valued at $300.00 on the Lafayette list and at $78,000.00 on the Fidelity list; the ATM machine is valued at $7,200.00 on the Lafayette list and at $3,500.00 on the Fidelity list.

      . Lafayette calculated the looting loss as follows: $1,208,660.00 (Ullah’s estimated value of the inventory on August 28, 2009) less $1,161,550.00 (Fidelity's assessed value of the total inventory loss due to flood) less $8,500.00 (the value of an AMOCO sign that was included on the inventory list but was not covered because it was not attached to the A.K. Food Store building), thus leaving $38,610.00 in inventory lost from looting. The record indicates that in addition to tendering $40,000.00 to satisfy the looting claim on the A.K. Food Store, Lafayette had tendered the policy limits of $108,200.00 (less the $1,000.00 deductible) to satisfy Ullah's looting claim on the A.K. Amoco New Orleans East Chevron Store, which did not flood.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Joseph ROBINSON.
    No. 2010-KA-0885.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana, Appellee.
    Christopher A. Aberle Louisiana Appellate Project Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|]The defendant-appellant, Joseph Robinson, appeals his conviction for second degree battery, a violation of La. R.S. 14:34.1, and his sentence to four years at hard labor with credit for time served.

STATEMENT OF THE CASE

Joseph Robinson was originally charged with aggravated battery and unauthorized entry of an inhabited dwelling, violations of La. R.S. 14:34 and La. R.S. 14:62.3, respectively. After an October 23, 2009 hearing, the trial court found probable cause to prosecute the aggravated battery charge, but found no probable cause existed to proceed with the unauthorized entry of an inhabited dwelling charge.

Robinson elected a judge trial and was tried on February 9, 2009. At the beginning of trial, the State moved to sever the charges. The trial court denied this motion. The trial court found him guilty of the aggravated battery charge and not guilty of the unauthorized entry of an inhabited dwelling charge. Robinson filed a Motion for Post-Verdict Judgment of Acquittal. Therein, Robinson asserted, among other things, that the record contained insufficient evidence to support his aggravated battery conviction, and that “La.C.Cr.P. Article 814 provides that the 12lesser and included verdicts for Aggravated Battery (R.S. 14:34) include the charge of Simple Battery (R.S. 14:35).” Robinson did not request the exclusion of any legally recognized responsive verdicts therein.

On February 26, 2010, the trial court granted the Motion for Post-Verdict Judgment of Acquittal and modified its verdict to finding Robinson guilty of second degree battery, a violation of La. R.S. 14:34.1. Immediately thereafter, Robinson was sentenced to four years at hard labor with credit for time served. The record reflects no waiver of sentencing delays.

STATEMENT OF FACTS

Officer Rayell Johnson responded to an aggravated battery call at approximately 6:20 p.m., on June 28, 2009. He went to the 1200 block of Marigny Street. Upon arriving, Mr. Andy Rowel informed Officer Rayell of an incident. Mr. Rowel was upset to the point of crying. Officer Ra-yell observed cuts on his neck and face. Mr. Rowel’s mother, Lynn Ann Louise Rowel, was also present. Robinson had fled the scene. A five inch knife was recovered from the scene, and photographs of Mr. Rowel were taken. The photographs show a clean but shallow cut behind and below Mr. Rowel’s left ear. This cut appears to be consistent with a straight sharp object.

Mr. Rowel testified that he lived in the Marigny Street house with his mother and Robinson. Ms. Rowel and Robinson were dating. Ms. Rowel testified that she had thrown Robinson out of the house two weeks earlier; that the lease was in her name; and that no one but her son, Mr. Rowel, and she lived in the house on June 28, 2009.

At approximately six or seven in the evening, Mr. Rowel was home alone, watching the television and talking to a friend on the phone, when Robinson | .¡entered the house in a drunken state. Robinson was carrying his work bag. He asked where Ms. Rowel was and went into the kitchen. She had gone to a second line parade for the late Michael Jackson with her sister in-law. When she returned and entered the house she went toward the kitchen where she encountered Robinson as he was coming out of the kitchen.

Ms. Rowel demanded to know what Robinson was doing at the house and demanded that he leave. Robinson refused. According to Mr. Rowel, when he saw Robinson holding a box cutter, he stepped in. According to Ms. Rowel, she noticed a drawer she kept tapes in was open, and she asked her son to check Robinson’s pouch for tapes. A “scuffle” ensued between Mr. Rowel and Robinson. During the scuffle, an air conditioner fell out of a window. Ms. Rowel testified that she saw Robinson retrieve a box cutter from his pocket and “scratch” her son just behind his ear. She observed one or two drops of blood. Mr. Rowel did not know he had been cut until his mother informed him of such.

Around the time the air conditioner fell, Ms. Rowel exclaimed, “you want to cut somebody, ‘B,’ stay right here!” She then retrieved a knife from the kitchen and stabbed Robinson in the shoulder. He subsequently fled the house.

Robinson testified that he had lived at the Marigny Street house for a year and a half prior to June 28, 2009. He was not on the lease, but he contributed to the rent. He awoke at approximately 10:00 a.m. and went out and bought two packs of cigarettes. Upon returning to the house, he gave one of the packs of cigarettes to Ms. Rowel. He then went to the bedroom and made a phone call.

“All of a sudden” Ms. Rowel entered the bedroom and “snapp[ed],” swearing at Robinson and demanding that he leave. Robinson went to the kitchen to get his wallet and leave. At that point, Mr. Rowel confronted Robinson, and the |4fight described by the Rowels ensued. Robinson denied stabbing Andy or possessing a box cutter at the time of the incident. He was previously convicted of unauthorized entry of an inhabited dwelling in an unrelated case.

ERRORS PATENT

The trial court sentenced Robinson immediately after modifying the verdict from aggravated battery to second degree battery. La. C.Cr.P. art. 821 C allows the trial court to modify a verdict in lieu of granting motion for post verdict judgment of acquittal.

La.C.Cr.P. art. 873 requires the trial court wait three days after a conviction and twenty four hours after overruling a motion for a new trial or in arrest of judgment to sentence a defendant. This waiting period may be waived. La.C.Cr.P. art. 873. Comment C to La.C.Cr.P. art. 873 states:

In the absence of a waiver by the defendant, a sentence imposed within the three-day period will be void under the settled jurisprudence of the state. In State v. George, 218 La. 18, 34, 48 So.2d 265, 270 (1950), the court declared: “This provision [Art. 521 of the 1928 Code] is for the purpose of affording an opportunity to an accused who has been convicted to file, prior to sentence, further pleadings, such as a motion for a new trial, a motion in arrest of judgment, etc., and, if he is denied the right to this delay, any sentence so imposed is void.”

See also State v. Johnson, 275 So.2d 405 (La.1973).

Comment A to La.C.Cr.P. art. 873 states that:

The three-day mandatory delay between conviction and the imposition of sentence is to allow the defendant sufficient time to file his motion for a new trial, which must be filed between verdict and sentence. This article follows A.L.I.Code, § 378 requiring a three-day delay, rather than the twenty-four hour period that | fiwas prescribed by Art. 521 of the 1928 Code of Criminal Procedure.

La.C.Cr.P. art. 873 also provides for a twenty-four hour delay between a motion for new trial, or in arrest of judgment and sentencing. In the instant case there was no delay between the denial of the defendant’s Motion for Post Verdict Judgment of Acquittal. Failure to observe the twenty-four hour period in La.C.Cr.P. art. 873 is harmless error where the defendant does not challenge his sentence on appeal. State v. Boyd, 2008-0659 (La.App. 4 Cir. 11/12/08), 999 So.2d 40. The defendant in the instant case did not challenge his sentence on appeal. Moreover, the twenty-four hour delay does not apply following a denial of a post-verdict judgment of acquittal. State v. Scott, 98-2642 (La.App. 4 Cir. 2/16/00), 754 So.2d 1108.

La.C.Cr.P. art. 821(C) provides that a trial court “in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.” [Emphasis added.] The trial court in this case modified the verdict as allowed by this clause. We find that in doing so, the trial court did render a new conviction, but merely modified the original verdict, resulting in a modified but not new conviction. Therefore, the three-day waiting period prescribed by La.C.Cr.P. art. 873 runs from the date of the original conviction. As more than three days had passed from the date of the original conviction on February 9, 2009, and the date the sentence was modified on February 26, 2009, there is no sentencing error and no error patent. We note that this reasoning is consistent with Comment “C” to La. C.Cr.P. art. 873, quoted earlier in this opinion, in that the defendant had the opportunity to “file, prior to | (¡sentence, further pleadings,” when he filed his Motion for Post Verdict Judgment of Acquittal on February 26, 2009, more than two weeks after the original verdict.

We find that there is no error patent in this regard for the additional reason that Robinson’s counsel waived sentencing delays. At the February 26, 2010 sentencing hearing, the trial court asked Robinson’s counsel if she was ready for sentencing. Instead of answering, counsel asked if the trial court would consider amending the verdict to simple battery. The trial court maintained the second degree battery conviction. Shortly thereafter, defense counsel stated, “at this time, we would ask the Court to sentence Mr. Robinson to eight months, credit for time served.” We interpret this request to be a sentencing delay waiver.

DEFENDANT’S ASSIGNMENT OF ERROR

Robinson essentially argues that the record is insufficient to support his conviction for second degree battery because it does not show that he inflicted serious injury. He acknowledges that second degree battery is a responsive verdict for aggravated battery, the crime he was originally charged and convicted of committing. However, he argues that the trial court erred in convicting him of the responsive verdict that is not supported by the record because he timely objected to the inclusion of second degree battery as a responsive verdict. Robinson points to no specific objection in the record. Instead, he notes the State’s admission at trial that the injury was minor. He also asserts that “the record is clear that Mr. Robinson amply objected to the imposition of a verdict of second degree battery.” He also states that he did not acquiesce to a verdict of second degree battery and asserts that “from the beginning of the trial, the court was advised that a verdict of second degree battery was not an appropriate verdict.” However, he fails to specify where the record supports either of the foregoing assertions.

|7The State counters that an implicit objection is insufficient to prohibit consideration of a statutorily recognized responsive verdict, and that Robinson failed to specifically object to the consideration or second degree battery. The State argues that the record supports a conviction of aggravated battery and, as such, the conviction should stand.

Generally, when assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 44B U.S. 307, 309, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). If rational finders of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Id. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Johnson, 619 So.2d 1102 (La.App. 4 Cir.1993), citing State v. Rosiere, 488 So.2d 965, 968 (La.1986). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404, p. 5-6 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Like all factual matters, credibility determinations are entitled to great weight and will not be disturbed unless contrary to the evidence. Id., citing State v. Vessell, 450 So.2d 938 (La.1984). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to |8support a factual conclusion. State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369. In this case, Robinson was originally charged and convicted of aggravated battery, a violation of La. R.S. 14:34. After Robinson filed a Motion for Post-Verdict Judgment of Acquittal, the trial court modified his conviction to second degree battery, a violation of La. R.S. 14:34.1. Second degree battery is a statutory responsive verdict to aggravated battery. La.C.Cr.P. art. 814(A)(14). Robinson protests that the record does not contain facts supporting a conviction of second degree battery, which prohibits committing battery “when the offender intentionally inflicts serious bodily injury.” La. R.S. 14:34.1.

In State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), the Louisiana Supreme Court held that a defendant must “make a contemporaneous objection to the instruction on responsive verdicts in order to complain on appeal of the insufficiency of evidence supporting the responsive verdict.” Id., 424 So.2d at 251, citing La. C.Cr.P. art. 814. See also State v. Williams, 99-1581, p. 10 (La.App. 4 Cir. 6/14/00), 766 So.2d 579, 684. It is sufficient that this objection be made after the jury is charged, but before the jury begins to deliberate. State v. Rideau, 05-0462, p. 18 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 138.

The Louisiana Supreme court explained the rationale behind this rule:

[I]t would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object.

Blackburn, supra, 424 So.2d at 251-252. Absent an objection entered at a time when the trial judge may take action, a reviewing court may affirm if the evidence supports a conviction of the greater offense, aggravated battery in this ease. Blackburn, supra, 424 So.2d at 251.

In this case, the record contains no contemporaneous objection to a responsive verdict of second degree battery. Robinson’s counsel asserts that “the record is clear that Mr. Robinson amply objected to the imposition of a verdict of second degree battery” and that “from the beginning of the trial, the court was advised that a verdict of second degree battery was not an appropriate verdict.” However, counsel fails to specify where the contemporaneous objection was made. The record contradicts counsel’s assertion. The State notes that Robinson argued that he was not guilty. This assertion fails to specify an objection. Accordingly, if the record supports a conviction of aggravated battery, the conviction must be affirmed.

Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. Battery is “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. A dangerous weapon is “any gas, liquid, or other substance or instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(3). In State v. Moss, 2008-1079, p. 31 (La.App. 4 Cir. 7/22/09), 17 So.3d 441, 459, this Court upheld an aggravated battery conviction where a pair of pliers was the dangerous weapon.

Both Ms. Rowel and Andy testified that they saw Robinson holding a box cutter at or around the time of the fight or “scuffle” between Robinson and Andy. Ms. Rowel saw Robinson “scratch” Andy behind the ear after removing the box cutter. Andy did not realize he had been cut until his mother told him he had been | incut behind his ear. Officer Johnson testified that a five inch blade was recovered from the scene. Photographs in the record depict a clean but shallow cut behind and below Andy’s left ear. This cut appears to be consistent with a straight sharp object. This evidence would support a conviction of aggravated battery. Accordingly, we find no error in the defendant’s conviction of second degree battery conviction.

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

CONVICTION AND SENTENCE AFFIRMED.

      . La. C.Cr.P. art. 820 provides that: "All provisions of this Chapter regulating the responsiveness and effect of verdicts shall apply to cases tried without a jury.”


author: MICHAEL E. KIRBY, Judge. BELSOME, J.

text:
    John ASARO v. The CITY OF NEW ORLEANS and Ahepa 133/Penelope 55, Inc.
    No. 2010-CA-0572.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 2010.
    Rehearing Denied Jan. 21, 2011.

      Edward R. Washington III, The Washington Law Group, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Dawn E. Segura, Chief Deputy City Attorney, Nanette V. Jolivette Brown, City Attorney, Thomas A. Robichaux, Deputy City Attorney, New Orleans, LA, Amicus Curiae, City of New Orleans.
    W. Paul Andersson, Catherine L. Davidson, Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellant (Ahepa 133/Penelope 55, Inc.).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

| defendant, AHEPA 133/Penelope 55, Inc. (“AHEPA”), appeals the trial court judgment granting a preliminary injunction in favor of plaintiff, Robert Asaro. For reasons that follow, we reverse the trial court judgment and vacate the preliminary injunction.

On September 9, 2008, AHEPA applied for a building permit with the Department of Safety and Permits for the City of New Orleans for the construction of a facility described in the permit application as “Senior Independent Living Apartments (Multi-Family).” The address of the proposed project was listed as 7820 Hayne Boulevard. The permit was issued on March 13, 2009. On May 19, 2009, AHE-PA’s project manager submitted revised plans to the Department of Safety and Permits for the project previously reviewed and approved. In the letter submitted with the proposed plan revisions, the project manager stated, in pertinent part:

| .¿Attached are two sets of drawings for the project previously reviewed under permit number 08COM-01447. We are in need of making a minor modification which affected the building footprint. This in effect changed almost every drawing that included a floor plan. Most of the modifications take place in the central core area of the building. Although the modification was minor in nature, most of the set of documents were effected [sic] therefore we are submitting a full new set of documents for your review.

The revised plans were approved by the Department of Safety and Permits on July 20, 2009. However, written notice of the approval was not sent to AHEPA’s architect until August 21, 2009. AHEPA commenced work on the project in the first week of February 2010. On February 8, 2010, the Department of Safety and Permits issued a “stop work” order on the project, and then rescinded that order on February 17, 2010.

On February 19, 2010, plaintiff filed a petition for preliminary and permanent injunction. The plaintiff alleged that AHE-PA’s permit had expired, and that AHEPA must now obtain approval of the New Orleans City Council on a new permit application due to imposition of a moratorium passed by the City Council on July 23, 2009 that affects permit applications for certain types of construction in a section of Eastern New Orleans. In support of the petition, plaintiff submitted his affidavit, which stated that he is the owner of Southern Oaks Plantation that is located on the property adjacent to the AHEPA property. He stated that his business of providing wedding receptions will be adversely affected by the construction of the facility being built by AHEPA.

|sOn the same date that plaintiffs petition was filed, the trial court granted plaintiff a temporary restraining order, without bond, which prohibited any further activity relating to the construction project at issue. On February 25, 2010, AHEPA filed a motion for dissolution of the temporary restraining order. Following a hearing on March 8, 2010, the trial court rendered judgment granting AHEPA’s motion for dissolution of the temporary restraining order. In the same judgment, the trial court granted plaintiffs petition for preliminary injunction and ordered plaintiff to post a $5,000.00 security bond. AHEPA now appeals the trial court’s granting of the preliminary injunction.

To obtain a preliminary injunction, a petitioner must (1) demonstrate that he would suffer irreparable injury, loss, or damage without the injunction; (2) show entitlement to the relief sought; and (3) make a prima facie showing that he is likely to prevail on the merits. Yokum v. Court of Two Sisters, Inc., 06-0732, p. 3 (La.App. 4 Cir. 11/21/06), 946 So.2d 671, 673, citing Saunders v. Stafford, 05-0205, p. 5 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754. A showing of irreparable harm is not required in eases where the conduct sought to be restrained is unlawful, such as when the conduct constitutes a direct violation of a prohibitory law. State Machinery & Equipment Sales, Inc. v. Iberville Parish Council, 05-2240, p. 4 (La.App. 1 Cir. 12/28/06), 952 So.2d 77, 81. An appellate court reviews a trial court’s granting of a preliminary injunction to determine if the trial court committed an error of law or if the granting was manifestly erroneous or clearly wrong. Yokum v. Court of Two Sisters, Inc., supra.

|4On appeal, AHEPA first argues that the trial court erroneously concluded that building permit #08COM-01447 had expired. At the conclusion of the March 8, 2010 hearing, the trial court issued oral reasons for granting plaintiff’s petition for preliminary injunction. The trial court found that AHEPA’s permit had expired, and there was no “good cause” shown for an extension of the permit.

AHEPA argues that its original permit has never expired and therefore, no extension was needed or sought. Two months after the original permit was issued, AHE-PA submitted revised plans to the Department of Safety and Permits as required by the Building Code of. the City of New Orleans. Although the modification to the plans was described by AHEPA’s project manager as “minor,” she explained in a letter to the Department of Safety and Permits that the modification affected the entire building footprint. AHEPA argues that because the requested revisions to the plans affected the entire project, it was required to wait until the revisions were approved before proceeding with construction.

The following sections of the Comprehensive Zoning Law of the City of New Orleans and the Building Code of the City of New Orleans are relevant to the instant case. Section 17.2.7(1) of the Zoning Code, entitled “Expiration,” states as follows:

Except for prior permits provided for in Section 17.2.5, a building permit issued pursuant to this section shall expire within six (6) months after its issuance if construction has not commenced and if no request for extension has been filed prior to such date.

Section 17.2.7(2) of the Zoning Code, entitled “Extension of Permits,” states as follows:

|RThe Director of Safety and Permits, upon written application filed prior to expiration of the building permit, may authorize for good cause an extension not to exceed six (6) months of such permit.

Section 106.3.4 of the Building Code of the City of New Orleans, entitled “Revision of Approved Construction Documents,” states as follows:

It shall be unlawful to erase, materially alter or modify any lines, figures, letters, words or coloring contained in the construction documents stamped by the Director. If during the progress of the execution of such work it is desired to deviate in any manner affecting the construction or other essentials of the building from the terms of the applications, plans, or specifications or statement of cost of work, notice of such intention to alter or deviate shall be given in writing to the Director, and his written assent shall be obtained before such alterations or deviations may be niade. If such change or deviation affects structural design, exit arrangement, occupancy changes, etc., then new construction documents thereof shall be submitted to the Director for approval, and, if necessary, an additional permit shall be secured.

The only witness who testified at the hearing on the preliminary injunction request was Mr. Paul May, Director of the Department of Safety and Permits for the City of New Orleans. He testified that AHEPA’s permit did not expire, and therefore, an extension was not necessary. When AHEPA realized that the plans for the construction project required substantial revisions, it was required to submit the revised plans for another review, and was not allowed to proceed with construction until the revised plans were approved. Mr. May stated that this additional review did not require a new permit application. The policy of his office |Bis that the six-month period during which construction must commence started over when the plan examiner released the letter informing AHEPA that the plan revisions had been approved. The letter authorizing the revised plans was released on August 21, 2009. Because work commenced on the construction project in the first week of February 2010, six months had not elapsed between the issuance of the approval letter and the commencement of construction.

Several days before the hearing, Mr. May executed an affidavit, which is consistent with his testimony at the hearing. Mr. May was asked at the hearing to explain the inconsistencies between his affidavit and a letter he sent on February 11, 2010 to the project developer in which Mr. May referred to the pennit as having been extended, and informed the developer that construction could proceed. Mr. May explained that at the time he wrote the letter, he was under the impression that the permit had been extended by the chief building inspector. He wrote the letter without examining the file in this case. Once this lawsuit was filed, Mr. May fully reviewed the file, determined that the permit had not been extended and included the correct dates in his affidavit.

Plaintiff submitted a computer printout from the website of the Department of Safety and Permits. The printout included the line, “Condition Status: Permit has expired — over 6 months old no work.” Mr. May testified that the software in his department’s computer program is only set up to take the initial dates of permits, and does not include additional dates unless someone makes the effort to go into the program and enter additional dates.

|7We find that the trial court erred in its findings that the permit expired and that AHEPA was required to demonstrate that it had “good cause” for a permit extension. The record as a whole, including the uncontroverted testimony of the Director of Safety and Permits, shows that no extension was needed or requested. Once AHEPA received its permit, it was required to follow the rules of the New Orleans Building Code. Pursuant to Section 106.3.4 of the Building Code, AHEPA had no choice but to submit its plan revisions to the Department of Safety and Permits for further review. Because the plan revisions affected the whole footprint of the project, AHEPA was required to wait for the approval of the Department of Safety and Permits before proceeding with the construction project at issue.

The Director’s testimony was that the six-month period during which construction must commence started over when the plan examiner released the letter informing AHEPA that the plan revisions had been approved. AHEPA commenced construction on the project within six months of the notice of approval of the plan revisions. Therefore, the permit was still valid when construction commenced. As for comments listed on a computer printout from the Department of Safety and Permits’ website, we find that this was not reliable evidence and should not have been considered by the trial court.

AHEPA next argues that the trial court eri’ed in finding that the approval of the plan revisions was invalid because the Director of Safety and Permits did not personally sign the approval. The trial court essentially found that the Building 18Code’s requirement of the Director’s written assent of the approval of plan revisions cannot be delegated to other employees within his department.

Section 4-702 of the City’s Home Rule Charter, dealing with the functions of the Department of Safety and Permits, includes the following:

The Department of Safety and Permits, headed by a Director of Safety and Permits, shall:
******
(2) Issue permits and to that end:
(a) Receive all applications for permits and determine whether the applicant is entitled thereto according to laws, ordinances and regulations under which the permit is required. No permit shall be issued until after certification by the appropriate office, department or board interested or affected, if any.
(b) Issue the permit if the application is approved and the fee paid, or notify the applicant in writing of any refusal and the reasons therefor.

This provision establishes that the permitting process is a function of the Department of Safety and Permits, and not that of the Director alone. The requirement that plan revisions be submitted for further review is part of the permitting process. We find it unreasonable to interpret the phrase “written assent of the Director” to preclude the Director from delegating this duty to an employee. The Department’s Chief Plan Examiner issued the notice to AHEPA that the plan revisions had been approved. His authority to do so was delegated to him by the Director, Mr. May. We conclude that the trial court’s finding that he could not do so was erroneous.

IflAHEPA also argues that its building permit is not subject to the moratorium passed in New Orleans City Council Motion M-09-372. On July 23, 2009, the City Council passed the following motion, in pertinent part:

BE IT FURTHER MOVED, that in accordance with Article 16, Section 4.4(3) of the Comprehensive Zoning Ordinance, all appropriate agencies of City Government shall not accept any applications for permits or licenses that are in conflict with the intent and provisions of the proposed Eastern New Orleans Renaissance Corridor Interim Zoning District for properties contained within the aforesaid area during the consideration of this matter. The Interim Zoning District is to be in effect for a period of 180 days and is subject to extension as provided by Section 3-126 of the City Code. Any appeals shall be to the City Council in accordance with Article 16, Section 16.4.5(3) of the Comprehensive Zoning Ordinance.

AHEPA argues that because its permit application was made prior to the date that this motion was passed, the moratorium does not apply in this case. We agree.

AHEPA applied for building permit 08COM-01447 on September 9, 2008. The uncontroverted testimony of the Director of Safety and Permits established that the submission of plan revisions on May 19, 2009 did not constitute a new permit application. The same permit number was used for the plan modification review. Because the submission of plan revisions for review was not an application for a permit, the moratorium put in place by the passage of City Council Motion M-09-372 does not apply to the permit issued to AHEPA.

A review of the record shows that the plaintiff did not establish his entitlement to the issuance of a preliminary injunction against AHEPA for the | ^construction project at issue. We find that the trial court erred in granting the injunction.

Accordingly, for the reasons stated above, we reverse the trial court judgment and vacate the preliminary injunction.

JUDGMENT REVERSED; PRELIMINARY INJUNCTION VACATED.

BELSOME, J., dissents with reasons.

BELSOME, J.

dissents with reasons.

1,1 respectfully dissent from the majority’s determination to vacate the preliminary injunction under these facts and circumstances. As the majority acknowledges, Section 17.2.7(1) of the Comprehensive Zoning Code of the City of New Orleans provides that “a building permit issued pursuant to this section shall expire within six (6) months after its issuance if construction has not commenced and if no request for extension has been filed prior to such date.” (emphasis added). According to the plain language of Section 17.2.7(2), such a request must be made in writing:

The Director of Safety and Permits, upon written application filed prior to expiration of the building permit, may authorize for good cause an extension not to exceed six (6) months of such permit.

In this case, it is undisputed that the only permit in the record was the permit issued on March 13, 2009; that no construction had commenced within six months of that date; and that no written request or application for an extension of the March 13, 2009 building permit was made.

Notwithstanding the statements made in the Director’s affidavit and in his testimony regarding office custom and policy, it appears to this writer that the permit expired by operation of law six months after it issued on March 13, 2009, as |2the record evidences that no written application for an extension was ever filed with the Director of Safety and Permits. City departments must follow written rules even if internal policies to the contrary exist. See Lafleur v. City of New Orleans, 2001-3224 (La.12/4/02), 831 So.2d 941. I respectfully dissent.

      . The original petition in this case referred to the plaintiff as "John Asaro." An amended petition stated that the plaintiff's name should have been listed in the original petition as "Robert Asaro.”

      . The record does not include the plans for the project at issue, the “stop work” order or the order rescinding the "stop work” order.

      . Throughout the record, the trial court and parties refer to "Section 103.3.2” of the Building Code entitled "Revision of Approved Plans.” The current edition of the Intema-tional Building Code, which has been adopted by the City of New Orleans, with the addition of amendments, contains no such section number or title. However, Section 106.3.4 of the Building Code, entitled "Revision of Approved Construction Documents,” contains almost the same wording as the section referred to by the trial court and parties.

      . (acknowledging that a departmental custom and practice existed whereby police officers used accumulated sick leave all at once before retiring, but finding that because the policy violated city service rules, the Court ‘‘[could] not fashion a remedy for the officers who had an expectation that they would receive this benefit at retirement, based on the fact that some officers were able to ... tak[e] advantage of this legally unauthorized policy”).


author: MAX N. TOBIAS, Jr., Judge.

text:
    MENTZ CONSTRUCTION SERVICES, INC. v. Julie D. POCHE.
    No. 2010-CA-0904.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 2010.

      Wayne J. Jablonowski, Law Office of Wayne J. Jablonowski, APLC, Slidell, LA, Glenn B. Adams, Denia S. Aiyegbusi, Por-teous Hainkel & Johnson, L.L.P., New Orleans, LA, for Appellee, Charles Mentz, III.
    Jay Russell Sever, Pablo Gonzalez, Phelps Dunbar LLP, New Orleans, LA, fOr Appellee, Scottsdale Insurance Company.
    Joseph C. Bartels, Victoria Lennox Bar-tels, Law Offices of Joseph C. Bartels, New Orleans, LA, for Appellant, Julie D. Poche.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, Jr., Judge.

| Julie D. Poche, defendant/plaintiff-in-reconvention/third-party plaintiff/appellant, appeals from a judgment granting an exception of no cause of action in favor of third-party defendant/appellee, Charles Mentz, III, and an exception of no right of action in favor of third-party defendant/ap-pellee, Scottsdale Insurance Company (“Scottsdale”). After reviewing the record and applicable law, we affirm in part, reverse in part, and remand the matter for farther proceedings.

Ms. Poche hired Mentz Construction Services, Inc. (“MCS”) as general contractor for renovation of her residence in New Orleans. Bidding on the contract and subsequent negotiations on behalf of the company were handled by Mr. Mentz, Vice President/Treasurer and employee of MCS, and John Segura, also an employee of the company. After arms-length negotiations of the contract between Ms. Poche and MCS, work on the home began under the day-to-day supervision of project superintendent, John Segura. Various subcontractors were hired to perform specific portions of the work.

12After the contract terminated, MCS filed suit against Ms. Poche for non-payment of funds under the contract. In response, Ms. Poche filed a reconventional demand against MCS and third-party demands against its insurer, Scottsdale, and Mr. Mentz, alleging negligence and breach of contract.

Mr. Mentz filed a peremptory exception of no cause of action, which was granted by the trial court on 2 December 2009. Scottsdale filed a peremptory exception of no right of action, which was granted by the trial court at the same time. This timely appeal followed.

When used in the context of the peremptory exception, a cause of action “is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The exception of no cause of action raises the issue of whether the law affords the plaintiff a remedy on the facts as alleged within the four corners of the plaintiffs petition as supplemented and amended. La. C.C.P. art. 931; Everything on Wheels Subaru, Inc., 616 So.2d at 1235; Systems Engineering and Security, Inc. v. Science & Engineering Associations, Inc., 06-0974, p. 2 (La.App. 4 Cir. 6/20/07), 962 So.2d 1089, 1091. The well-pleaded facts of the petition must be accepted as true. Veroline v. Priority One EMS, 09-1040, p. 4 (La.10/9/09), 18 So.3d 1273, 1275; City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 9 (La.3/2/99), 739 So.2d 748, 755.

In reviewing a trial court’s sustaining an exception of no cause of action, an appellate court conducts a de novo review because the exception raises a question of law, and the trial court’s decision is based solely on the sufficiency of the |spetition. Industrial Companies, Inc. v. Durbin, 02-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213; Cleco Corp. v. Johnson, 01-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304.

In her third-party demand against Mr. Mentz, Ms. Poche alleges that he was negligent by failing to (1) properly supervise the work of the subcontractors, (2) have the foreman on the job site at all times, (3) inspect the work performed by the subcontractors to see if it was done properly, (4) inspect the work for compliance with applicable building and safety codes, and (5) insure that all the subcontractors were timely paid. Mr. Mentz filed his exception of no cause of action, arguing that Ms. Poche cannot hold him personally liable for the alleged misdeeds of MCS, the party with whom Ms. Poche contracted.

In her appeal, the plaintiff contends that Mr. Mentz can be held liable for negligence under the theory that he personally discharged some, if not all, of the obligations owed by the company. We disagree.

The Louisiana Supreme Court addressed the issue in Riggins v. Dixie Shor ing Co., Inc., 590 So.2d 1164, 1167-1169 (La.1991):

The general rule that corporations are distinct legal entities, separate from the individuals who comprise them, and that the shareholders are not liable for the debts of the corporation, is statutory in origin and well supported by the jurisprudence. The economic purpose underlying this framework of limited liability was expressed by the First Circuit over a quarter century ago: “[Pjrotection from individual liability encourages and promotes business and industry”. Additionally, this shareholder liability shield encourages business investments in high-risk areas by enabling investors who utilize the corporate form to make capital contributions to corporations while insulating their personal wealth from the risks inherent in business. No matter the size of the business, incorporation is an optional form for conducting business in Louisiana. In fact, the 1968 prevision to the corporation laws now allow a single individual to incorporate. LSA-R.S. 12:21.
Because of the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. Moreover, if the plaintiffs do not allege shareholder fraud, they bear a heavy burden of proving that the shareholders disregarded the corporate entity to such an extent that it ceased to become distinguishable from themselves.
There are limited exceptions to the rule of non-liability of shareholders for the debts of a corporation, where the court may ignore the corporate fiction and hold the individual shareholders liable. Generally, that is done where the corporation is found to be simply the “alter ego” of the shareholder. It usually involves situations where fraud or deceit. has been practiced by the shareholder acting through the corporation. LSA-R.S. 12:95. Another basis for piercing the corporate veil is when the shareholders disregard the requisite corporate formalities to the extent that the corporation ceases to be distinguishable from its shareholders.
Some of the factors courts consider when determining whether to apply the alter ego doctrine include, but are not limited to: 1) commingling of corporate and shareholder funds; 2) failure to follow statutory formalities for incorporating and transacting corporate affairs; 3) undercapitalization; 4) failure to provide separate bank accounts and bookkeeping records; and 5) failure to hold regular shareholder and director meetings.
The fact that one individual owns a majority of stock in the corporation does not in itself make that individual liable for corporate debts. This is particularly true in the case of a closely held corporation where often corporate business is conducted by the majority, or sole, stockholder.
Louisiana courts are reluctant to hold a shareholder, officer, or director liable for corporate obligations, in the absence of fraud, malfeasance, or criminal wrongdoing. LSA-R.S. 12:93(B); 12:95. Furthermore, corporate agents are generally not liable for corporate debts and the burden of establishing the contrary is on the corporate creditor. [Citations omitted]

IfiMs. Poche has not alleged any facts sufficient to state a cause of action against Mr. Mentz. Nothing exists to support the theory that Mr. Mentz acted in any capacity other than as an officer and employee of MCS. Therefore, the exception of no cause of action was properly sustained.

Ms. Poche also asserts that the trial court should have allowed her to amend her reconventional and third-party demands to allege facts to support her allegations.

The decision to allow a plaintiff to amend under La. C.C.P. art. 934 is within the discretion of the trial court, and will not be disturbed absent manifest error. Massiha v. Beahm, 07-0137, p. 4 (La.App. 4 Cir. 8/15/07), 966 So.2d 87, 89. La. C.C.P. art. 934 neither permits amendments to a petition that change the substance of the original claims nor when it would constitute a vain and useless act. Kosak v. Trestman, 03-1056, p. 6 (La.App. 4 Cir. 12/3/03), 864 So.2d 214, 218-19. We do not find that the trial court committed manifest error in this regard. However, we recognize that, as Ms. Poche proceeds with her lawsuit against MCS, discovery may uncover evidence supporting her claims of negligence against Mr. Mentz. Therefore, we affirm the trial court, but dismiss the cause of action without prejudice.

Ms. Poche also contends that the trial court erred by granting Scottsdale’s exception of no right of action. In her petition, Ms. Poche sued Scottsdale under Louisiana’s Direct Action Statute, which responded with the exception arguing that the lawsuit did not satisfy the requirement of the Direct Action Statute as the claims arose out of contract, not tort. The trial court agreed.

|fiLa. C.C.P. art. 931 states in pertinent part:

On the trial of the peremptory exception [of no right of action] pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

As we set out in Touzet v. V.S.M. Seafood Services, Inc. 96-0225, pp. 2-3 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012-13:

The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor. When considering the exception, the court must ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted. The exception does not raise the question of the plaintiffs ability to prevail on the merits nor [sic] the question of whether the defendant may have a valid defense. [Citations omitted.]

See also St. Bernard Optical Corp. v. Schoenberger, 05-0548, p. 6 (La.App. 4 Cir. 1/25/06), 925 So.2d 604, 608.

The exceptor, in this case Scottsdale, bears the burden of proof to show that Ms. Poche has no right of action. Carter v. Haygood, 04-0646, p. 8 (La.1/19/05), 892 So.2d 1261, 1267. However, Scottsdale did not introduce a copy of the insurance policy issued by it to MCS in support of its exception. Therefore, the court cannot determine whether a right of action exists in Ms. Poche’s favor or not. For all we know, the policy may list Ms. Poche as an additional insured or provide coverage for her claim. Consequently, we find that the trial court erred by granting the exception of no right of action.

|7We reverse the judgment in part, affirm the judgment in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . Since the exception of no right of action can be noticed by the trial court or appellate court on its own motion, our decision on this issue is not res judicata and may be asserted again by Scottsdale.