author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Oscar J. PETERS.
    No. 2010-KA-0939.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.
    Rehearing Denied Dec. 15, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, and Judge TERRI F. LOVE).
   CHARLES R. JONES, Judge.

|, The State of Louisiana appeals the order of the district court granting the defendant’s motion to quash the indictment filed against him. Our review of the record and law indicates the district court erred, thus we vacate the order granting the motion to quash and remand.

Oscar J. Peters II, was arrested on August 2, 2005, for possession of a controlled substance. Peters was released on five thousand dollars ($5,000.00) bond. Hurricane Katrina struck the City of New Orleans on August 29, 2005, and on November 16, 2005, Peters was charged by bill of information with one count of possession of hydrocodone (codeine).

A notice of arraignment for March 30, 2006, was served at the last known address of Peters. He did not appear for the arraignment, and on April 24, 2006, his surety was served with notice of arraignment for May 23, 2006. Peters again failed to appear, and on June 7, 2006, the matter was set for a bond forfeiture hearing. Notice thereof was sent to the address listed on the bond filed of record. On June 23, 2006, after failing to appear before the court, bond for Peters was forfeited and an alias capias was issued for his arrest.

On January 12, 2010, Peters appeared for arraignment, posting a |2$10,000 recognizance bond. On February 9, 2010, he filed a motion to quash the bill of information. The state filed its written response to the quashal motion on February 18, 2010. The district court granted the motion to quash on February 24, 2010, giving the following oral reasons:

However, due to circumstances beyond your control, and this is an unusual legal situation, you did everything you were supposed to do, you were not in a house that wasn’t habitable any longer. The fact that service was never properly obtained at that location and the alias capi-as was issued and the bond was forfeited after there was no address at a location that was not habitable any longer, it was an improper alias capias and a forfeiture of the bond.
On January 12, 2010, you appeared in court and you were arraigned at that time. But on February 18, 2010, the defense filed a motion to quash because the time to prosecute the defendant had prescribed. This Court finds that it had indeed prescribed because he was not arraigned within the legal guidelines set forth for arraignments. I grant your motion to quash. And because there was no service on the defendant.

This appeal was timely filed.

In its brief, the state argues that prescription was interrupted when Peters failed to appear for his first arraignment date of March 30, 2006. Thereafter, despite several attempts to serve both Peters and his bail company, Peters did not appear until January 12, 2010.

La.C.Cr.P. art. 578(A)(2) provides:
A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(2) In other felony cases after two years from the date of institution of the prosecution;

[aLa.C.Cr.P. art. 579, recently amended by the state legislature, governs which actions by the defendant interrupt the running of prescription. It provides in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if any of the following occur:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record. (Emphasis added)

The state argues that Peters had a duty to make certain that his new address was made a part of the record. By failing to update his address on the record post-Katrina, the running of the La.C.Cr.P. art. 578(A)(2) limitation on prosecution was interrupted. The state avers that throughout the period encompassing March 30, 2006, the first unsuccessful post hurricane attempt to subpoena Peters, until January 12, 2010, when Peters appeared for arraignment, Peters was in bad faith. That bad faith, the state argues, interrupts the running of any time limitations and precludes the granting of a motion to quash.

|4The state argues that because Peters received “actual notice”, any delays in the proceedings were solely the fault of Peters and that prescription was interrupted when Peters failed to appear for his scheduled court dates. The state goes on to argue that these limitations began to run anew upon his reappearance in January 2010.

The state presented to the district court that Peters illustrated his intent to absent himself from the address provided on his bond by not complying with the mandates of La.C.Cr.P. art. 322(A), which requires a defendant to keep the trial court updated with his current address by filing an affidavit with the Clerk of Court. The state argued that the address provided on the bond presumptively “continue[s] for all proceedings on the bond, until [the defendant] files in the proceeding in which the bond was given a written declaration changing the address.” La.C.Cr.P. art. 322(A).

The state also argues herein that La. C.Cr.P. art. 579 does not impose on the state the affirmative duty to search for a defendant who has failed to appear before the court after receiving actual notice. “[A] defendant who has chosen to ignore actual notice should not receive any benefit from his action; by the same token, the Appellant should not bear the burden of finding and reserving (or arresting) such defendants.” State v. Romar, 2007-2140, p. 5 (La.7/1/08), 985 So.2d 722, 726 (quoting State v. Buckley, 2002-1288, p. 8 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193, 1199) (Emphasis added).

La.C.Cr.P. art. 322, entitled Declaration of residence and last four \ ¿digits of the social security number by defendant and surety; waiver of notice now provides in pertinent part:

The defendant when signing a bail bond shall write under his signature the address at which he resides and the last four digits of his social security number. The address shall be conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address. The defendant may, by affidavit filed of record in the proceeding in which the bond was given, appoint his counsel as his agent for service of notice to appear. The appointment shall be conclusively presumed to continue until the defendant files of record an affidavit revoking or changing the appointment. A bail bond shall not be set aside because of the invalidity of the information required by this Article or for the failure to include the information required by the provisions of this Article.

Generally, once the two year prescriptive period has lapsed, the state must demonstrate either an interruption or a suspension of the time limit to prove that prescription has not tolled. State v. Odom, 2006-0975, pp. 3-4 (La.11/3/06), 941 So.2d 24, 26. “An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute.” State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1287.

By the failure of Peters to update the record with his current address, the state argues, his conduct constituted an interruption under Article 579(A)(2), and the state cites State v. Romar, 2007-2140 (La.7/1/08), 985 So.2d 722, and State v. Smith, 07-959 (La.App. 5 Cir. 3/11/08, 982 So.2d 831).

In Romar, the defendant was charged with a third offense DWI in 1997 and appeared for arraignment in January 1998. Id., p. 1, 985 So.2d at 724. He appeared again for a pretrial motion hearing, which was then reset for April. Id. failed to appear in April and again in June, 1998, at which time the court forfeited |fihis bond and issued an attachment for his arrest. Id. The defendant was arrested in 2006, eight years later. Id., p. 2, 985 So.2d at 724. He subsequently sought to quash the prosecution on the grounds that the appellant had failed to exercise due diligence to execute the outstanding warrant in the years following his non-appearance in court. Id. He presented evidence to show that he had renewed his driver’s license in 2003, and also presented utility bills to show that he had lived at the same address for many years. Id. However, he admitted that he never notified the court or his bondsman of his change of address, testifying that his attorney (said) that he would take care of it. Id. The trial court quashed the charge, and the appellate court affirmed. The Supreme Court reversed, stating:

In the present case, the period of limitation did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the open attachment and appeared in court to dispose of the criminal contempt proceeding. The burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence, since 1984, is the interruption of the time limits placed on trial.

Romar, 2007-2140, pp. 7-8, 985 So.2d at 727.

State v. Smith, 07-959, (La.App. 5 Cir. 3/11/08) 982 So.2d 831, another Katrina related case, presents a somewhat similar set of facts to those in the instant case. The defendant was charged with theft by shoplifting merchandise valued between one hundred and five hundred dollars, punishable at the time as a felony. Id., p. 3, 982 So.2d at 833. At trial the defendant pled to the offense, but reserved her right to appellate review of the trial judge’s denial of her motion to quash the bill of information. Id. Her motion was based on the state’s failure to 17commence trial within the statutory prescriptive period. Id., p. 5, 982 So.2d at 834. The court found that the state had exercised due diligence sufficient to satisfy its burden. Id., p. 8, 982 So.2d at 836.

In State v. Sorden, 2009-1416 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, on June 13, 2005, defendant Ericka D. Sorden was charged by bill of information with one count of aggravated battery under case number 460-306. Id., 45 So.3d 181, 183. At arraignment on July 18, 2005, the defendant entered a plea of not guilty. Id. The defendant was present for scheduled motion hearing on August 16, 2005. Hurricane Katrina struck the City of New Orleans on August 29, 2005. Id.

A status hearing was set for October 18, 2006. Id. The court discovered that no service had been made on defendant, and the matter was reset to December 19, 2006. Id. On that date, with the defendant present, the charge was nolle prosequied by the State of Louisiana. Id. The capias was recalled, the bond obligation removed and the ease was closed. Id.

The state then reinstituted the charge on February 7, 2007, under case number 468^188. Id. The defendant did not appear for a February 9, 2007 arraignment date. Id. An alias capias with no bond was issued for her, and February 26, 2007, the matter was set as the new hearing date. Id., 45 So.3d 181, 183. The defendant did not appear on February 26, 2007. Id. There was a motion for bond forfeiture which was granted by the court, and an alias capias issued for defendant in the amount of $25,000. Id. The matter was continued without date. Id.

On June 12, 2009, the defendant appeared without counsel for status hearing. Id., 45 So.3d 181, 183. The capias was recalled. Id. The |sdefendant was rear-raigned on July 8, 2009 and entered a plea of not guilty to the aggravated battery charge. Id. On August 21, 2009, the defendant appeared in court with her attorney to file a Motion to Quash. Id. The motion was granted by the trial court, and the state appealed the ruling. Id. In its opinion, this Court said:

Maintaining a current address is accordingly a defendant’s obligation under an existing bond. La.C.Cr.P. art. 322 E, providing that “[b]y signing the bail bond, the defendant and his surety waive any right to notice, except the notice provided for in Article 344 and R.S. 15:85,” qualifies that obligation. Not to be overlooked is the requirement of Article 344 B(2) which provides that the mailing of notice to appear in court must be “at least three days prior to the day set for the appearance.” When the court set the initial arraignment date two days after the reinstitution of the prosecution, even if the ROR bond was still in effect, there would have been insufficient notice provided to Ms. Sor-den under any bond obligation.
Likewise, because Ms. Sorden was not properly served after her charge was dismissed, she never received “actual notice” under La.C.Cr.P. art. 579 A(3), which interrupts the period of limitation if “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.” Had Ms. Sorden been adequately notified, the prosecution’s reinstitution of the charge would have been timely, as the prosecution would not bear the burden of showing that it attempted to locate her, and the time limits would then have been interrupted until her reappearance.
We emphasize that the prosecution has an affirmative duty to provide proof that satisfies the requirements of the provisions of article 579 A(l) and (2). The prosecution has not done so. Further, the record does not show that Ms. Sor-den received the “actual notice” that would relieve the prosecution of this affirmative duty and interrupt the time limitation pursuant to La.C.Cr.P.- art. 579 A(3). The prosecution has been unable to identify anything between the time the charge was reinstituted on February 7, 2007, and the expiration of time for [ ¡prosecution two years later, on February 7, 2009, that would trigger a suspension or interruption of the time limitation pursuant to La.C.Cr.P. arts. 579 or 580. Accordingly, the trial court did not err in granting Ms. Sorderis motion to quash.

Sorden, 45 So.3d 181, pp. 5, 8, 9.

An essential constant in caselaw is the importance placed upon the requirement that the defendant receive actual notice, and that it is clear that the state must make a specific showing of service upon the defendant before a quashal motion may be defeated. Additionally, the case-law suggests a requirement that a defendant give notice to the court when his address changes.

Peters argues that he was never given “actual notice”, as anticipated by La.C.C.P. art. 579(A)(3), to appear in court. He further argues that there is no evidence that he deliberately “absented himself from his usual place of abode in order to avoid detection, apprehension, or prosecution”. He argues that he had no way of knowing that the August 2, 2005 arrest had resulted in the initiation of a felony charge. He further argues that his home was destroyed in the hurricane and that the offices of his bonding company were inundated with eight feet of water before the state filed the bill of information against him on November 16, 2005.

Peters argues and distinguishes Romar, suggesting that therein, the defendant received actual notice to appear in April 1998 while in open court. Romar knew of the scheduled appearance and consciously chose not to appear. Id., p. 1, 985 So.2d at 724. In contrast, Peters in the instant case did not receive actual notice to appear for arraignment, as the bill of information was not filed until after Hurricane Katrina struck the city, and he had been forced to leave his residence. Under State v. Francis, 2007-0480, p. 7 (La.App. 4 Cir. 1/30/08), 977 So.2d 187, 192 and later, State v. Hamilton, 2007-0581, p. 7 (La.App. 4 Cir. 3/5/08), 980 So.2d 147, 151, interruption of the time limit to commence a new trial caused by Hurricane Katrina ceased to exist on June 5, 2006, the day on which the first criminal jury trial actually occurred in Orleans Parish after Hurricane Katrina. Thus, Peters argues the state had two years (until June 5, 2008) to commence trial, and that prescriptive period had long since expired when he filed his motion to quash on February 9, 2010, thereby violating his right to a speedy trial.

In State v. Carcamo, 03-589, (La.App. 5 Cir. 10/28/03), 860 So.2d 220, the defendant failed to appear for arraignment on May 7, 1999, having never been served. Id., p. 5, 860 So.2d at 221. Two unsuccessful attempts at service had been made to his last known address prior to the arraignment, and on subsequent dates, “numerous” attempts at service resulted in no response. Id. The sheriff learned on March 22, 1999 that the defendant had moved to an address in Virginia. Id. The state made an attempt to serve the defendant by certified mail, but the letter was returned for “a better address.” Id.

The Louisiana Fifth Circuit Court of Appeal upheld a motion to quash a bill of information. Id., p. 7, 860 So.2d at 225. The state argued that it had been unable to serve the defendant, and that therefore, prescription had been interrupted under La.C.Cr.P. art. 579. Id., p. 5, 860 So.2d at 222. The Court found the prosecution “untimely” and that no diligent effort had been made to subpoena the defendant. Id., p. 7, 860 So.2d at 225. The Court stated:

Although the prescriptive period of La.C.Cr.P. art. 578 may be interrupted by defendant’s presence outside of the state under C.Cr.P. art. 579(A)(1), the state bears the heavy burden of establishing that the purpose of the defendant’s absence from the state was to avoid detection, apprehension, or prosecution. State v. Amarena, 426 So.2d 613 (La.1983); State v. Kraft, 501 So.2d 313, 316 (La.App. 5 Cir.1987), writ denied, 505 So.2d 1140 (La.1987).

-LlT ⅜

The inability to serve a defendant under certain circumstances has been held to constitute interruption. See, State v. Gauthe, 525 So.2d 1193 (La.App. 5 Cir.1988), writ denied, 532 So.2d 131 (La. 1988). However to satisfy its heavy burden in establishing interruption on these grounds, the state is required to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. State v. Chadbourne, 98-1998 (La.1/8/99), 728 So.2d 832; State v. Estill, 614 So.2d 709, 710 (La.1993).

Carcamo, 03-589, p. 7, 860 So.2d at 223-224.

We determine whether in the matter sub judice, the sufficiency of notice upon Peters, the requirement that Peters should have provided a change of address of record, and whether the state satisfied its burden of notice. While it is true that Peters was arrested and released on bond prior to Hurricane Katrina, and would therefore have had no way of knowing that a bill of information had actually been filed against him, it is also true that the destruction and dislocation left in the wake of the hurricane made reliable service of process difficult if not impossible to accomplish at the address of Peters on record. While there was no actual notice to Peters of the bill of information filed, he was aware of the pending charges and failed to provide his change of address to the court as mandated by La.C.Cr.P. art. 322. Because of his failure to provide this information to the Court, the state was unable to serve him at the only address he had provided. Sorden is distinguishable from the matter herein. In Sorden, the defendant had been relieved of her bond obligation. 45 So.3d 181, 183. Peters remained under his bond obligation, and had he complied with art. 322, the state would have been able to provide actual notice to him in a timely manner.

| i2La.C.Cr.P. art. 322(A) places the responsibility of providing the clerk of court with a valid, updated address on the shoulders of the defendant, and Peters failed to do so. Thus, the district court erred in granting the motion to quash of the defendant.

DECREE

The judgment of the district court granting the motion to quash filed by Oscar J. Peters is reversed, and the matter is remanded for further proceedings not inconsistent with our decree.

REVERSED.

      . As amended by 2010 Louisiana House Bill No. 1237, Louisiana Thirty-Sixth Regular Session March 29, 2010.

      . The state now argues that this failure relieves the state of responsibility for any speedy trial violations, citing Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972).

      . La.C.Cr.P. art. 322 was amended by 2010 Act. No. 710. Particularly, in the article heading, the Louisiana Legislature inserted "and last four digits of the social security number;” and in paragraphs A and B, in the first sentences, added "and the last four digits of his social security number,” and added the last sentence.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge. BELSOME, J.,

license: Public Domain

text:
    Jeanette Garnett PICHON, Roland L. Pichon, Mark P. Pichon, Patrice Pichon Robinson, Tracy Pichon Baham, Veronica Pichon Joseph, and Cade Pichon Hagger v. ASBESTOS DEFENDANTS, et al.; Bayer Cropscience, Inc. (as Successor of Liaibility to Rhone-Poulenc AG Company f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company), Seville, Inc. formerly, Branton Insulations, Inc.; Continental Insurance Company; et al.
    No. 2010-CA-0570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Roussel & Clement LaPlace, LA, for Plaintiffs/Appellants.
    Lee B. Ziffer, Deborah Kuehler, Monique Weiner, Janika Polk, Jonique Martin Hall, Kuehler Polk Schell Weiner & Riche-son, LLC, New Orleans, LA, for Defendant/Appellee Detroit Diesel Corporation.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

| ,The plaintiffs appeal the trial court’s granting of summary judgment in favor of defendant Detroit Diesel Corporation [“DDC”] and the dismissal with prejudice of all claims against said defendant. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On November 21, 2007, the plaintiffs, the surviving spouse and children of Leon Roland Pichón, filed a petition against numerous defendants, including DDC, as the alleged manufacturers, distributors and/or sellers of various asbestos-containing products to which Mr. Pichón had been exposed during his employment by Halter Marine from approximately 1955 through 2004. The plaintiffs alleged that as a result of his exposure, Mr. Pichón contracted lung cancer and mesothelioma, which was first diagnosed in September, 2006, and which caused Mr. Pichon’s death on November 25, 2006.

On November 2, 2009, DDC filed a motion for summary judgment seeking the dismissal of plaintiffs’ claims against it on the grounds that it could not have any liability for damages caused by Mr. Pi-chon’s exposure to asbestos prior to 1 ¡>1988, the year DDC first came into existence, nor could it have any liability for his exposure after that time because DDC has never manufactured any products containing asbestos. On December 4, 2009, the trial court denied DDC’s motion for summary judgment because DDC had not yet responded to the plaintiffs’ requests for discovery; the court also ordered DDC to so respond. Five days after the denial of its motion, DDC submitted its responses to the plaintiffs’ discovery requests and filed a motion for new trial from the trial court’s denial of summary judgment. The trial court granted the motion for new trial. On January 4, 2010, the trial court again heard DDC’s motion for summary judgment. At the conclusion of that hearing, the trial court granted the motion for summary judgment. A written judgment granting the motion was signed January 19, 2010. From this judgment, the plaintiffs appeal.

ISSUES

There are two issues on appeal:

(1) Did the trial court err by determining that DDC legally cannot be held responsible under the theory of successor liability for any damages resulting from Mr. Pichon’s pre-1988 exposure to asbestos-containing products manufactured and/or sold by General Motors [“GM”]?
(2) Did the trial court err by determining there is no genuine issue of fact that, from the time DDC was incorporated on January 1, 1988, Mr. Pichón was not exposed to any asbestos-containing products manufactured or sold by DDC?

|,.STANDARD OF REVIEW

We note that, although the first issue presents primarily a legal question and the second issue is factual, the appellate standard of review is the same when this court considers the trial court’s granting of summary judgment.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, the appellate court must determine whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Id. According to La.Code Civ. Pro. art. 966 A(2), the summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of an action. The article further states:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ. Pro. Art. 966 C(2)

14DISCUSSION

I. Successor Liability (Pre-1988 Exposure)

Because DDC did not come into existence until 1988, it cannot be held liable for any damages resulting from Mr. Pichon’s pre-1988 exposure except by application of the legal theory of successor liability. The plaintiffs argue that, pursuant to this theory, liability can be imposed upon DDC as the successor to a former division of GM.

The following facts are pertinent to the issue of successor liability. In 1938, GM created its Detroit Diesel Division, an unincorporated manufacturing arm of GM. This division manufactured Detroit Diesel branded engines. In 1970, GM merged this division with another division of the company, the Allison Division, to form the Detroit Diesel-Allison Division. This division continued to manufacture Detroit Diesel branded marine engines. Plaintiffs allege these marine engines, used at Halter Marine, were a source of Mr. Pichon’s exposure to asbestos. On January 1, 1988, DDC was formed as a joint venture between GM and the Penske Corporation. DDC purchased the assets of a portion of GM’s Detroit Diesel-Allison Division (the portion that had manufactured marine engines). The written Sales Agreement between the parties stipulated:

[DDC] shall not assume or become liable for and GM shall indemnify and hold [DDC] harmless against any liabilities, obligations or commitments of GM or of any of its Affiliates, whether contingent or otherwise, fixed or absolute, known or unknown, present or future or otherwise, relating, directly or indirectly, to (i) the conduct of GM Operations or the ownership of the Assets prior to the Closing, including, without limitation ... product | (¡liability claims, litigation ..., (ii) claims relating, directly or indirectly, to products manufactured, distributed or sold by GM prior to the Closing.

Louisiana Civil Code article 1821 provides that one person’s assumption of the obligation of another must be in writing to be enforceable against third parties. The Code further provides that a person who assumes, by agreement, the obligation of another “is bound only to the extent of his assumption” La. C.C. art. 1822. Applying this law to the above-quoted language of the Sales Agreement, it is undisputable that DDC did not assume any of the liabilities or obligations of GM when DDC purchased certain assets of the Detroit Diesel Allison Division in 1988.

Nevertheless, the plaintiffs contend that DDC legally may be found liable for Mr. Pichon’s pre-1988 exposure to Detroit Diesel engines by application of the theory of successor liability. We disagree.

The basic principle of corporate successor liability was set forth by the U.S. Supreme Court in Golden State Bottling Co. v. National Labor Relations Board:

[T]he general rule of corporate liability is that, when a corporation sells all of its assets to another, the latter is not responsible for the seller’s debts or liabilities, except where (1) the purchaser expressly or impliedly agrees to assume the obligations; (2) the purchaser is merely a continuation of the selling corporation; or (3) the transaction is entered into to escape liability. See 15 W. Fletcher, Cyclopedia Corporations ss 7122-7123 (1961 rev. ed.); Kloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (D.Colo.1968).
414 U.S. 168, 182 n. 5; 94 S.Ct. 414, 424, 38 L.Ed.2d 388 (1973).

As stated above, the first exception does not apply in this instance because DDC clearly did not assume any obligations or liabilities of GM, as is reflected by the Sales Agreement. Nevertheless, the plaintiffs argue on appeal, as they did in | ^response to DDC’s motion for summary judgment in the trial court, that exception # 2 applies here because DDC is “merely a continuation” of GM’s former Detroit Diesel-Allison Division. We find, however, that the plaintiffs failed to submit factual support sufficient to establish that they would be able to satisfy their eviden-tiary burden at trial on the issue of successor liability. See La. C.C.P. art. 966 C(2).

First, the written agreement whereby DDC expressly declines to assume any obligations or liabilities of GM presents a hurdle that must be overcome if successor liability is to be imposed In the absence of a transaction entered into for the sole purpose of escaping liability, which is covered by exception #3 above, we believe the facts showing one corporation to be merely a continuation of the other would have to be especially compelling to impose liability upon a corporation that has expressly contracted out of such liability. In the instant case, however, we do not reach that issue because the plaintiffs have not established sufficient factual support to show that DDC is “merely a continuation” of either GM or of GM’s former Detroit Diesel-Allison Division.

A threshold requirement to trigger a determination of whether successor liability is applicable under the “continuation” exception is that one corporation must have purchased “all” the assets of another. Golden State Bottling Co., supra. See also, e.g.: Wolff v. Shreveport Gas, Electric Light & Power Co., 138 La. 743, 70 So. 789 (1916); National Sur. Corp. v. Pope Park, Inc., 240 La. 63, 121 So.2d 240 (1960). Obviously, in the instant case DDC did not purchase all the assets of GM. Nevertheless, plaintiffs contend DDC is the successor of GM’s former Detroit 17Diesel-AUison Division. Although plaintiffs have not cited a single Louisiana case in which one corporation has been found to be the successor of a former division or part of another corporation, they rely upon the following language in dicta from Bourque v. Lemann Lathe, Inc., for the proposition that the two parties involved need not be corporations, but only “business entities”:

[T]his rationale for liability [the “continuation” exception noted in Golden State Bottling Co.] would include some non-merger sales in which one corporation or other business entity sells all its assets to another legal entity.

476 So.2d 1125, 1127 (La.App. 3 Cir.1985) (emphasis added).

Nevertheless, the plaintiffs’ argument ignores the holding in Bourque, which was that the Third Circuit refused to impose successor liability upon a corporation that had only purchased some of the assets of the predecessor corporation at a bankruptcy sale but had continued to manufacture essentially the same product as the bankrupt corporation. Id. at 1129.

Pretermitting the issue of whether successor liability can be applied when the predecessor is not a corporation but only a division of one, we conclude that the plaintiffs’ argument fails because they have not shown that DDC purchased all the assets of the Detroit Diesel-Allison Division. DDC submitted the affidavit of David Mer-rion as proof of that some of the assets of that division were excluded from the sale. In response, the plaintiffs have cited only the language of the Sales Agreement, which states that “GM shall ... sell, transfer, assign convey and deliver to [DDC] ... all the assets and properties ... relating to the Redford Operations.... ” This language clearly does not refute DDC’s claim that less than all the assets of | sthe division were sold, but rather confirms that only those assets related to the Redford Operations (the location where the marine engines were manufactured) were transferred to DDC.

The court in Bourque, supra, recognized that jurisdictions other than Louisiana have taken a more liberal approach to imposing successor liability in products liability cases such as the instant one. However, the rationale for a more liberal imposition of successor liability is not present in the instant case. In Bourque, supra, the court explained that when a person is injured by a defective product years after that product has been manufactured and placed into commerce by the selling corporation, the rationale for imposing successor liability is that the disappearance of the selling corporation before the injury occurs leaves the injured party with no one to sue and therefore with no remedy. Id., 476 So.2d at 1128. In the instant case, however, GM was clearly a viable defendant at the time the instant suit was filed and is, in fact, a named defendant herein.

As we therefore find no basis in Louisiana law for extending the theory of successor liability to impose liability upon DDC under these particular facts, we conclude that the trial court properly granted summary judgment with respect to this issue.

II. Direct Liability (Exposure from 1988 forward)

The law requires us to consider the evidence put forth by both parties to determine whether there is a genuine issue of fact as to Mr. Pichon’s exposure to | Basbestos-containing products manufactured or sold by DDC from its inception in 1988 through the end of Mr. Pichon’s employment at Halter Marine.

DDC asserted in its motion for summary judgment that it has never manufactured or sold any asbestos-containing products. In support of this assertion, DDC submitted the deposition testimony of David Mer-rion, a former employee of GM and the corporate representative of DDC, who stated that GM began to phase out the use of asbestos in its Detroit Diesel engines in 1980 and had completely phased it out by 1987. In an attempt to refute this testimony, the plaintiffs have submitted a copy of a 1986 GM gasket specification sheet that calls for the use of asbestos on the gaskets of Detroit Diesel engines. In the trial court, plaintiffs argued that the failure of DDC to provide documentary evidence showing that the 1986 specifications had been subsequently modified indicated that asbestos had not been completely phased out and therefore was still being used in 1988. DDC countered that it had properly responded to the plaintiffs’ discovery, which had not resulted in the production of any evidence indicating the use of asbestos in DDC’s products.

We cannot accept the plaintiffs’ argument that a 1986 gasket specification sheet is sufficient factual support to rebut DDC’s assertion that it never used asbestos supported by Mr. Merrion’s unrefuted testimony that asbestos use in the gaskets of Detroit Diesel engines had been discontinued by 1987. Nor can we accept that DDC’s failure to produce a subsequently-dated gasket specification sheet, in the absence of a specific request to do so, is sufficient to raise a genuine issue of fact in this respect.

I inIn its motion, DDC also asserted that the plaintiffs could not prove that Mr. Pichón was ever exposed to any asbestos-containing product manufactured by DDC. In an attempt to refute this assertion, the plaintiffs submitted the deposition testimony of four individuals: Donald Varnado, David Merrion, Louis Frierson, and Jessie Robertson.

Donald Varnado, a co-worker of Mr. Pi-chon at Halter Marine, stated that asbestos blankets were used on the engines at Halter Marine, and that Mr. Pichón handled asbestos half-round insulation during his career at Halter Marine. However, Mr. Varnado was not able to connect these asbestos products to DDC. In fact, he stated that the asbestos blankets were made and delivered to Halter Marine by Reilly-Benton, a co-defendant in the instant case. Nor did Mr. Varnado ever suggest that the half-round insulation was manufactured by or in any way connected to DDC. Finally, Mr. Varnado testified that he probably left Halter Marine “around '87”, which indicates that his testimony cannot have any relevance to Mr. Pichon’s exposure to products made by DDC in 1988 and thereafter.

The plaintiffs also cite Mr. Merrioris testimony concerning the specially-made asbestos blankets used with Detroit Diesel branded engines. However, this testimony was in response to a question concerning the time period from 1945 to 1978, and is therefore not probative on the issue of Mr. Pichon’s exposure from 1988 forward.

Similarly, the part of Mr. Frierson’s testimony cited by the plaintiffs involves asbestos blankets made by George Engine Company, not DDC. GeorgeEngine Company, which was a distributor of GM’s Detroit Diesel engines, went out of business in 1987 prior to the creation of DDC.

Finally, plaintiffs cite certain testimony of Mr. Robertson, a co-worker of Mr. Pi-chon at Halter Marine from 1968 to 1982 and from 1987 forward. Again, our review of Mr. Robertson’s testimony reveals no reference to any postAL987 exposure of Mr. Pichón to asbestos-containing products made by DDC.

In summary, we conclude, as did the trial court, that the plaintiffs failed to meet their burden of providing factual support sufficient to rebut DDC’s evidence that it never manufactured or sold any asbestos-containing product to which Mr. Pichón could have been exposed. We therefore conclude no genuine issue of fact exists regarding Mr. Pichon’s non-exposure to any asbestos-containing products attributable to DDC. The trial court properly granted summary judgment on this issue. CONCLUSION

Accordingly, for the reasons stated, we find that the trial court properly granted summary judgment dismissing the plaintiffs’ claims against DDC. We therefore affirm that judgment.

AFFIRMED.

BELSOME, J.,

dissents with reasons.

1,1 dissent.

In our de novo review of the trail court’s grant of summary judgment in favor of DDC, we are limited to determining whether the plaintiffs have established a genuine issue of material fact, regarding DDC’s successor liability as to pre-1988 asbestos exposure and direct liability as to post-1988 asbestos exposure, sufficient to overcome summary judgment. A review of the record indicates that the plaintiffs have met this burden.

The issue of successor liability directs us to the applicability of the “mere continuation rule.” The “mere continuation rule” is a rule of successor corporation liability whereby liability is generally imposed when an acquiring corporation is a mere continuation of the selling corporation. Bourque v. Lehmann Lathe, Inc., 476 So.2d 1125, 1127 (La.App. 3 Cir.1985), citing Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). Here the plaintiffs have asserted that DDC is clearly a continuation of GM’s Detroit Diesel-Allison Division.

The Hollowell court offered three instances in which a new corporation can be a successor corporation for liability purposes:

(1)The new company expressly assumed the liabilities of the old company; or (2) The formation of the new company was entered into to defraud the creditors of the old company; or (3) The circumstances attending the creation of the new company and its succession to the business and property of the old company are such that the new company was merely a continuation of the old company.

Hollowell v. Orleans Regional Hospital LLC, et al, 217 F.3d 379 (5th Cir.2000). The mere continuation doctrine premises liability on whether and to what extent there is a “continued de facto existence of the seller.” Bourque v. Lehmann Lathe, Inc., 476 So.2d 1125, 1128 (La.App. 3 Cir.1985). The determination of whether a new corporation is simply a continuation of the old corporation is fact intensive.

In Hollowell. the court provided eight factors to apply in making the mere continuation determination:

(1) retention of the same employees;
(2) retention of the same supervisory personnel;
(3) retention of the same production facility in the same physical location;
(4) production of the same product;
(5) retention of the same name;
(6) continuity of assets;
(7) continuity of general business operations; and
(8) whether the successor holds itself out as the continuation of the previous enterprise.

Hollowell, 217 F.3d 379.

The majority of the elements mentioned above are addressed within the sales agreement between GM and DDC, and the affidavit of DDC’s corporate representative, Dave Merrion. Those documents indicate that Detroit Diesel-Allison Division manufactured Detroit Diesel branded engines. On January 1, 1988, Detroit Diesel Corporation (DDC) was formed as a partnership between GM |3and Penske Corporation. DDC proceeded to purchase the assets of GM’s Detroit Diesel-Allison Division.

The sales agreement specifically required DDC to offer employment to approximately 2700 salaried and hourly employees and provide them with benefit programs comparable to those previously offered by GM. When addressing the facility location and assets to be transferred, the agreement reads:

The purpose of this Agreement is to set forth the conditions of transfer of the business and assets currently carried on by General Motors Corporation ... through its Detroit Diesel Allison Division ... at its manufacturing facilities at Redford Township and adjoining Detroit, Michigan ... to Detroit Diesel Corporation or its successors or assigns, including, but not limited to, the business of development, manufacture, assembly and sale of diesel engines.
GM shall ... sell, transfer, assign, convey and deliver to DD and DD shall purchase, accept and acquire from GM or any Affiliate as hereinafter provided all the assets and properties ... relating to the Redford Operations ...

Essentially, the product, the Detroit Diesel name, the production location, the employees and the overall general business operations remained the same. Clearly the inquiries into the relevant factors support plaintiffs’ assertion that DDC is a mere continuation of GM’s Detroit Diesel-Allison Division. The plaintiffs have more than met their burden to overcome summary judgment and allow the question of successor liability to be submitted to the jury.

However, the majority opinion, citing to Golden State Bottling Co., contends that the one fatal issue that prevents the plaintiffs from being able to assert successor liability under the continuation exception, is that the continuation exception mandates that one corporation purchase all the assets of another. The majority’s opinion claims that based on David Marrion’s affidavit, GM retained certain assets pertaining to specific engines and therefore, the plaintiffs cannot overcome that hurdle. Significantly, the sales agreement does not reference the [Retention of those assets in its “Excluded Assets” provision. That alone, creates a genuine issue of material fact as to whether all GM owned assets relating to the Detroit Diesel-Allison Division were purchased by DDC. Thus, DDC is not entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, p. 5 (La.7/6/04), 880 So.2d 1, 5. Considering the record, we are required to allow the issue of successor liability to be presented to the fact finder.

Additionally, based solely on David Mar-rion’s affidavit statement, the lower court and majority’s opinion found that DDC, from its inception in 1988, never sold or manufactured asbestos-containing products. Although I do not find that the plaintiffs have proven otherwise, as late as 1986, the specification sheet for DDC’s diesel engines still identified asbestos containing materials. The record is void of any later specification evidencing all asbestos containing materials had been phased out of the diesel engines. At a minimum, this raises a question of fact sufficient to warrant additional discovery. Accordingly, I would reverse the trial court’s grant of summary judgment in favor of Detroit Diesel Corporation and remand.

      . The affidavit of David Merrion, former employee of GM who became a senior vice-president of DDC in 1988, states that upon the creation of DDC, Penske, which at that time owned 60% of DDC, purchased from GM all the assets of the Detroit Diesel-Allison Division “except for the assets related to Allison transmissions and the 6.2 liter and 8.2 liter engines used in General Motors’ truck products.”

      . No such allegation has been made in the instant case.

      . See footnote 1, supra.

      . Louisiana has not adopted the more liberal "continued product line” theory of successor liability that has been used in products liability cases in California. See Bourque v. Lehmann Lathe, Inc., supra, 476 So.2d at 1127-1129.

      . The fact that GM subsequently filed for bankruptcy (but has not been dissolved) is irrelevant to the determination of the legal question presented here.


author: TERRI F. LOVE, Judge.

text:
    Rene BOURQUARD, Sr. v. L.O. AUSAUMA ENTERPRISES, INCORPORATED and Gills Crane and Dozer Service, Inc.
    No. 2010-CA-0323.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.

      Michael J. Bourquard, New Orleans, LA, for Rene Bourquard, Sr.
    R.Todd Musgrave, Amanda H. Aucoin, Musgrave McLachlan & Penn, L.L.C., New Orleans, LA, for Gill’s Crane & Doz-er, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

hMr. Rene Bourquard, Sr. appeals the trial court judgment granting summary judgment in favor of Gill’s Crane and Doz-er Service, Incorporated. We find that Mr. Bourquard set forth no evidence that would support his contentions that Gill’s Crane committed a civil trespass, that the trial court improperly applied the Louisiana Environmental Quality Act, or that Gill’s Crane’s was responsible for Ausau-ma’s actions as an independent contractor. Thus, he would not be able to maintain his burden of proof at trial. Accordingly, we find that the trial court was correct in granting the motion for summary judgment and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Rene Bourquard, Sr. is the owner of property located at 11419 Almonaster Boulevard, New Orleans. In April 2007, Mr. Bourquard complained to the Louisiana Department of Environmental Quality (“LDEQ”) of unauthorized dumping on his Almonaster Boulevard property. The LDEQ conducted an inspection and ultimately issued a consolidated compliance order and notice of potential penalty finding that L.O. Ausauma Enterprises Incorporated (“Ausauma”) was contracted by Gill’s Crane and Dozer Service, Incorporated (“Gill’s Crane”) to clean up solid waste material located at another site, which was then transported by 12Ausauma to Mr. Bourquard’s Almonaster Boulevard property. The LDEQ simultaneously issued an administrative order directing Mr. Bourquard to remove the waste dumped by Ausauma on his Almonaster property.

On May 29, 2008, Mr. Bourquard filed a petition for damages against Ausauma and Gill’s Crane. A motion for default was filed by Mr. Bourquard on June 30, 2008, to which Gill’s Crane responded with its motion for extension of time within which to plead, which was granted by the trial court. Gill’s Crane’s answer was subsequently filed on October 1, 2008. Prior to trial, Gill’s Crane filed a motion for summary judgment, alleging that Mr. Bour-quard had no evidence to support the alleged trespass by Gill’s Crane’s or that Gill’s Crane should be liable for the actions of Ausauma. The trial court granted Gill’s Crane’s motion for summary judgment, and this appeal followed.

STANDARD OF REVIEW

Summary judgments are reviewed using the de novo standard of review. Henry v. S. La. Sugars Co-op., Inc., 06-2764, p. 4, (La.5/22/07), 957 So.2d 1275, 1277, quoting Bonin v. Westport Ins. Corp., 05-886, p. 4 (La.5/1/06), 930 So.2d 906, 910. “Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate.” Id. The “mover is entitled to judgment as a matter of law,” “if the pleadings, depositions, answers to interrogatories, and admissions on file, together "with affidavits, if any, show that there is not a genuine issue as to material fact.” La. C.C.P. art. 966(B). The mover carries the burden of proof. La. C.C.P. art. 966(C)(2). “[I]f the movant will not bear the burden of proof at trial ... the movant’s burden” is “to point out ... an |aabsence of factual support” for an element essential to the adverse party. La. C.C.P. art. 966(C)(2). Further, “an adverse party may not rest on the mere allegations or denials of his pleading.” La. C.C.P. art. 967(B). Summary judgment will be rendered against the adverse party if he does not “set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967(B).

SUMMARY JUDGMENT

Mr. Bourquard’s theory of liability rests on Gill’s Crane’s trespass onto the Almo-naster Boulevard property, its violation of the Louisiana Environmental Quality Act (“LEQA”), La. R.S. 30:2001 et seq., and the nature of the contractual relationship between Gill’s Crane and Ausauma.

Ti-espass

Mr. Bourquard alleges that Gill’s Crane committed a civil trespass by tearing down the gate to his Almonaster Boulevard property and dumping waste material there. “A trespass occurs when there is an unlawful physical invasion of the property or possession of another.” Richard v. Richard, 09-539, p. 5, (La.App. 3 Cir. 11/04/09), 24 So.3d 292, 296. A trespasser is “ ‘one who goes upon the property of another without the other’s consent.’ ” Pepper v. Triplet, 03-619, p. 23, (La.1/21/04), 864 So.2d 181, 197, quoting Williams v. J.B. Levert Land Co., 162 So.2d 53, 58 (La.App. 1st Cir.1964). “Even though the work may have been done by another, the party supervising and/or directing the work and ordering the trespass is liable.” Richard, 09-539, p. 5, 24 So.3d at 296.

The record is devoid of any evidentiary showing by Mr. Bourquard that Gill’s Crane trespassed onto his property. The unauthorized dumping itself proves that Mr. Bourquard did suffer a trespass, but nothing supports Mr. Bourquard’s contention that it was Gill’s Crane who committed the trespass.

^Moreover, Mr. Bourquard’s allegation that Gill’s Crane should be liable in trespass because it “set in motion” the disposal of the waste by Ausauma onto his property is not supported by the evidence. The nature of the relationship between Gill’s Crane and Ausauma was that of a principal and an independent contractor, such that the contractor’s methods were not subject to the control and direction of the principal. Gill’s Crane hired Ausauma to haul debris, and lacked authority over Ausauma to direct a location for the disposal of the waste. Accordingly, Gill’s Crane is not liable to Mr. Bourquard for any alleged trespass committed by Ausauma.

We conclude that the trial judge was correct to grant summary judgment for Gill’s Crane, in that Mr. Bourquard did not set forth specific facts showing a genuine issue for trial on his trespass theory.

Nature of the Waste

Mr. Bourquard argues that the trial court granted Gill’s Crane’s motion for summary judgment based on an improper application of LEQA. Specifically, Mr. Bourquard urges that the materials dumped without authorization at his Almonaster Boulevard property were “hazardous wastes,” which burdened Gill’s Crane with additional liability under LEQA’s hazardous waste provisions.

LEQA sets out separate and distinct regulations defining and differentiating between “solid waste” and “hazardous waste.” La. R.S. 80:2153(l)(a) defines “solid waste” as:

[A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include or mean solid or dissolved material | sin domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under R.S. 30:2074, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. Section 2011 et seq.), or hazardous waste subject to permits under R.S. 30:2171 et seq.

La. R.S. 30:2173(2) defines “hazardous waste” as:

[A]ny waste, or combination of wastes, which because of its quantity, concentration, physical, or chemical characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed. Such definition shall be applied only to those wastes identified and designated as such by the department, consistent with applicable federal laws and regulations.

The LDEQ’s factual findings consistently identify the materials dumped at Mr. Bourquard’s Almonaster Boulevard property as “solid waste” material, from its initial field interview form in April 2007, through its final compliance order and administrative order issued in November 2007. As per La. R.S. 30:2173(2), only if the LDEQ itself defined the materials as “hazardous waste” would the heightened duties and expanded liability urged by Mr. Bourquard be imposed on Gill’s Crane.

Mr. Bourquard urges this Court to define the materials as “hazardous waste” for the purposes of imposing civil liability on Gill’s Crane without making any showing to controvert the LDEQ’s findings that the materials were “solid waste” rather than “hazardous waste.” Mr. Bourquard himself relied upon the LDEQ’s findings and submitted documentary evidence generated by the LDEQ in support of his opposition to Gill’s Crane’s motion for summary judgment. The record does not support Mr. Bourquard’s contention that a genuine issue of material fact existed as to the liability of Gill’s Crane under the hazardous waste provisions of|fiLEQA.

In the absence of an evidentiary showing by Mr. Bourquard refuting the LDEQ’s classification of the materials as “solid waste,” Gill’s Crane carried its La. C.C.P. art. 966 burden to demonstrate an absence of factual support for an essential element of Mr. Bourquard’s claim. Accordingly, we conclude that summary judgment in favor of Gill’s Crane was proper as a matter of law.

Contractual Relationship Between Gill’s Crane and Ausauma

Mr. Bourquard alleges that Gill’s Crane is liable for the damages he suffered from the unauthorized dumping by Ausauma of waste onto his Almonaster Boulevard property by virtue of the contractual relationship between Gill’s Crane and Ausauma. Ausauma was acting as an independent contractor, engaged by Gill’s Crane for “trash hauling,” at the time that Ausauma allegedly dumped solid waste onto Bourquard’s property without a permit or other authority from LDEQ.

Generally, principals are not liable for the negligence of independent contractors who are performing contractual work for the principal. See Williams v. Gervais F. Favrot Co., 499 So.2d 623, 625 (La.App. 4th Cir.1986). An independent contractor relationship exists when:

1) there is a valid contract between the parties;
2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
4) there is a specific price for the overall undertaking; and
5) specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.

Morales v. Davis Bros. Const. Co., Inc., 94-0902 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302, 1305. The general rule of non-liability for the actions of independent contractors has two exceptions: (1) the owner “may not avoid liability if the work undertaken by the independent contractor is inherently or intrinsically dangerous;” (2) the owner “may be held liable if he exercises control over the contractor’s methods of operation or gives express or implied authorization to an unsafe practice.” Williams, 499 So.2d at 625.

Mr. Bourquard concedes that Ausauma was acting as an independent contractor for Gill’s Crane, but argues that, because the materials Ausauma was engaged to haul were of a hazardous nature, the ordinary rule of non-liability for the actions of independent contractors does not apply. Mr. Bourquard asks this court to second-guess LDEQ’s classification of the materials as “solid waste” rather than “hazardous waste.”

Because of LDEQ’s uncontroverted classification of the dumped materials as “solid waste,” Gill’s Crane again carried its La. C.C.P. art. 966 burden to demonstrate an absence of factual support for an essential element of Mr. Bourquard’s claim. Accordingly, we conclude that summary judgment in favor of Gill’s Crane was proper as a matter of law.

DECREE

From our de novo review of the record, we find that Gill’s Crane is entitled to summary judgment as a matter of law. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

      . The disposition of Mr. Bourquard's claim against Ausauma is not contained in the record. However, that claim is not the subject matter of this appeal.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. James E. GREEN.
    No. 2010-KA-0008.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, Counsel for Appel-lee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

JiSTATEMENT OF THE CASE

The State filed a bill of information against defendant charging him with forcible rape. He pled not guilty at arraignment. Following a preliminary hearing the trial court found probable cause and after a subsequent hearing on defendant’s motion to suppress the identification, the trial court denied that motion, too.

After jury selection began defendant filed a motion to declare non-unanimous jury verdicts unconstitutional. The trial court denied the motion, and the trial commenced. The State called five witnesses and defendant testified in his own defense. The jury returned the responsive verdict of attempted forcible rape.

Prior to sentencing, the defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial which the trial court denied. After defendant waived all delays, the trial court sentenced him to twenty years at hard labor.

Thereafter the state filed a multiple bill of information alleging the defendant to be a third felony offender. The bill alleged two previous convictions for simple burglary. Because simple burglary is punishable by imprisonment for up to twelve Lyears, the multiple bill subjected defendant to a mandatory life sentence under the terms of La. R.S. 15:529.1(A)(1)(a)(iii) :

The defendant also moved the court to consider imposing less than the mandatory life sentence under State v. Dorthey, 623 So.2d 1276 (La.1993). Testimony and evidence was taken on the multiple bill. The court took the matter under advisement but, the following day, found him to be a third felony offender, denied the motion to consider a sentence other than life imprisonment, and sentenced the defendant to life imprisonment. Defendant objected.

On appeal defendant asserts three assignments of error: 1) that the trial court erred in not declaring non-unanimous verdicts in non-capital felony cases unconstitutional; 2) that the trial court erred in not considering whether his mandatory life sentence was unconstitutionally excessive and, 3) that the evidence was insufficient to establish that he was a third felony offender. Because we find from the record that the trial court did not understand he had discretion to impose a sentence less than the statutorily mandated life sentence, we vacate relator’s sentence and remand for a new sentencing hearing at which defendant may attempt to bring himself within the provision of State v. Dorthey, 623 So.2d 1276 (La.1993). Otherwise, the defendant’s conviction is affirmed.

JoFACTS:

Officer Michael Milan of the New Orleans Police Department testified that on February 2, 2007 at approximately 1:00 a.m., he was dispatched to the 100 block of S. Rampart Street regarding a man being held at gunpoint by a citizen in connection with a rape. When Officer Milan arrived he observed that it was a mostly empty parking lot, save for two large Conex tractor trailers. He saw a male subject holding a gun on another male subject who was lying face down on the blacktop. Officer Milan instructed the subject to put away his gun and then handcuffed the suspect on the ground. Officer Milan secured the scene and advised the dispatcher to notify the rape squad.

Officer Gary Kessler, of the Special Operations Division, Sexual Assault Unit, testified that he arrived on the scene approximately twenty minutes after receiving a call from the command desk.

Initially, he observed the defendant in the back of Officer Milan’s police unit. The victim, J.D., was leaning on the front of the patrol car. Kessler interviewed the victim whom he described as clearly distraught. He observed that she had lacerations and bruises to her face, head, and back. There was a laceration over her right eye that was swollen and beginning to close. Officer Milan identified several photographs taken by the crime lab depicting the victim’s condition. In addition, he identified several photographs of the area behind one of the Conex boxes where the rape took place.

Ecoee Rooney, a sexual assault nurse examiner, testified that she completed a sexual examination of the victim. Rooney reported that the victim was in a great 14deal of pain as a result of her injuries. Nurse Rooney noted the victim’s clothing was soaking wet from her having fallen in a puddle of water during the assault. Nurse Rooney completed a rape kit, collecting swabs from each area of injury or where there may have been contact with the suspect. Nurse Rooney labeled all the swabs carefully and then placed them in boxes and packaged the entire kit and sealed it. Some toilet tissue, used by the victim after being admitted, was also collected as evidence. Nurse Rooney noted micro tears or abrasions at the vaginal opening as well as a contusion to J.D.’s anus. Nurse Rooney also noted contusions on the victim’s buttocks, which would have been consistent with falling. The victim’s toxicology exam was positive for cocaine and marijuana and she admitted to having consumed a small amount of crack cocaine and some marijuana that night.

Mollie Bride, a DNA forensic Scientist at the Louisiana State Police Crime Lab, was qualified as an expert in the field of Forensic DNA analysis. Ms. Bride testified that she conducted DNA testing on the evidence in the rape kit collected from J.D. She concluded that the defendant could not be excluded as a contributor to the DNA that was in a piece of toilet tissue. Testing of another piece of toilet tissue, reflected that there were two contributors to DNA thereon and that neither the victim nor Mr. Green could be excluded as contributors. This was significant as ninety-nine percent of the population could be excluded as potential contributors, leaving Mr. Green in the one percent of the population that could have contributed the DNA. Furthermore, Ms. Bride stated that statistically, it was 1.03 billion times more likely that the DNA profile generated from the mixture of DNA identified in the sample was derived from J.D. and the defendant rather than J.D. and an unknown individual.

la J.D. testified that at the time of the incident she was homeless and living on the streets of New Orleans. She related that a little after midnight she was looking for a place to sleep. When she was on Canal Street in front of a jewelry shop near the corner, a man came up to her from behind, pushed her behind a dumpster in a parking lot behind the jewelry shop near a large white trailer. The man told her to pull her pants down and to get on her hands and knees.

He attempted to have intercourse with her but was not able to. Angry, he struck her several times in the head with his fists and continued to do so until, eventually, he grew tired from hitting her. Ultimately, he was able to have intercourse.

The victim explained that she was on her hands and knees the entire time, was crying and screaming throughout the attack until she could no longer do so because her throat and mouth were so dry.

Finally, the defendant let her up. Her pants, which were down about her knees, were soaking wet. She looked up and saw two men, and she yelled for help, letting them know she had been raped. She saw that they had a dog and were armed. The men had her assailant get down on the ground. Shortly thereafter the police arrived.

J.D. stated that she did not know the defendant but recalled seeing him on the street on a previous occasion. She admitted previous convictions for possession of crack, distribution of crack, and possession of drug paraphernalia.

Under cross examination, J.D. recalled her previous testimony that the defendant took her across the street to the parking lot were the rape occurred. J.D. did not try to break away from him because she feared he was armed. Mr. Green told her his name when they were behind the dumpster.

| (;Gregory Black testified that at the time of this incident he was living in the building adjacent to the parking lot. That evening, his associate went out to the parking lot area to walk his dog but, he returned frightened, stating that something wrong was going on in the parking lot. Mr. Black went outside to investigate. He heard a faint cry and then almost a whine, as the victim stated that she was being raped. He was some sixty feet from the trailer. Initially he did not see any movement and then he spotted the silhouette of a man. Gun in hand, Mr. Black moved in closer to see what was happening. The man walked towards Mr. Black with his hands in the air. His pants were down to his knees. Mr. Black ordered the man to the ground repeatedly until he finally complied. Mr. Black held the gun on the defendant and frisked him.

Mr. Black’s associate retrieved the woman from behind the trailer. Mr. Black could see that she was badly beaten and that her pants were down to her knees. She appeared to be in shock. Mr. Black called 911.

James Green testified in his own defense. He testified that he was well acquainted with the victim from when he worked as a security guard at the Ozanam Inn, a homeless shelter. Green stated that on the night in question the victim approached him as he exited a convenience store. After sharing a beer and a cigarette with J.D., she inquired whether he had any crack and offered to trade sex for some. Mr. Green told J.D. that he knew where he could get some and related that he visited a friend at a nearby tattoo shop and acquired some crack. He and J.D. went to the parking lot at the victim’s suggestion where she smoked the crack in a glass pipe. Green testified that he was unable to have sex with J.D. He stated that after smoking the crack, J.D. started acting crazy. She wanted him to give her his remaining money, six dollars, but he refused. J.D. started hitting him, 17and he pushed her down in defense. At about that time he observed the man with the dog, and then he saw Mr. Black appear.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In the first of his three assignments of error, defendant argues through counsel that the trial court erred in denying his motion to declare La.C.Cr.P. art. 782(A) unconstitutional, to the extent that it allows for a non-unanimous verdict in non-capital felony cases.

However, because defendant did not request that the jury be polled, the record does not reflect whether the jury actually rendered a non-unanimous verdict in this case. Accordingly, defendant lacks standing to raise the issue. However, we note that this issue has been addressed by this court and found to be without merit. See State v. Barbour, 2009-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, following State v. Bertrand, 2008-2214, 2008-2311 (La.3/17/09), 6 So.3d 738.

ASSIGNMENT OF ERROR NUMBER 2

His next alleged error is that the trial court failed in its duty to consider whether his life sentence, although mandatory was nevertheless unconstitutionally excessive. Defendant, both through counsel and pro se, asks us to remand his case to the trial court to consider whether his life sentence is excessive.

|RAs noted previously, at the multiple bill hearing, defendant motioned the trial court to consider that a life sentence in his case would be unconstitutionally excessive under State v. Dorthey. The trial court took the issue under advisement and made the following ruling prior to entering sentence.

Given the previous criminal history and this particular conviction, this Court is left with no discretion, Mr. Green, except to sentence you to serve a term of life imprisonment without benefit of probation, parole, of suspension of sentence.

In State v. Rice, 2001-0215 (La.App. 4 Cir. 1/16/02), 807 So.2d 350, this court discussed the mandatory nature of the habitual felony offender sentencing scheme and the discretion that remains with the district court in such matters:

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. “Departures downward from the ^minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id.

Rice, 2001-0215, p. 5-6, 807 So.2d 350, 354.

It is apparent from the trial court’s comments that it believed that it had no discretion and that it could not impose any sentence other than that mandated by La. R.S. 15:529.1. Citing Rice and State v. Wilson, 2002-0776 (La.App. 4 Cir. 1/22/03), 839 So.2d 206, defendant argues that the case should be remanded for the trial court to consider whether the life sentence is unconstitutionally excessive. In both Rice and Wilson this court did remand for re-sentencing after finding that the trial court erroneously believed that “it could not, under any circumstances, impose any sentence other than life,” and this Court concluded that it was error for the district court not to have at least considered an alternative sentence under Dorthey “which makes it clear that a court can find a mandatory minimum sentence under the Habitual Offender Law to be constitutionally excessive and impose a lesser sentence upon the defendant’s request.” Wilson, p. 12, 839 So.2d at 214.

This assignment of error has merit and we will remand the case for a new sentencing hearing at which the defendant may present evidence, and the Court will have an opportunity to decide, whether the defendant has shown by clear and convincing evidence that he is an exceptional case as noted in Rice, supra.

ASSIGNMENT OF ERROR NUMBER 3

Through counsel and pro se, defendant contends that the State submitted insufficient evidence at the multiple bill hearing to establish that he was a triple offender on the basis of his conviction for simple burglary in case no. 394-017. Specifically, defendant contends that because the guilty plea form was not signed 11ftby the presiding judge, the evidence was insufficient to establish the constitutionality of his previous conviction.

The Louisiana Supreme Court explained the State’s burden in a multiple bill hearing in State v. Shelton, 621 So.2d 769, 779-780 (La.1993), as follows:

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

Shelton was incorporated into La. R.S. 15:529.1(D)(l)(b) which states:

The district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information.The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response.

In State v. Jason, 1999-2551 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, the defendant likewise argued that proof of evidence of his previous guilty plea was Ininsufficient because the plea form did not contain the judge’s signature. This court found that under State v. Shelton use of the docket master and the minute entry, which established that the plea was taken in open court, and the plea form which itself acknowledged that the judge had addressed the defendant personally, sufficiently proved that the plea was valid.

The record reflects that the aforementioned guilty plea form was signed by both the defendant and his counsel. The State also introduced the minute entry from the sentencing which reflected that the defendant was represented by counsel. The minute entry also reflected that the court interrogated the defendant as to his constitutional rights, which are specifically identified in the minute entry as well. Here, as in State v. Jason, the evidence was sufficient to establish the existence of the prior guilty plea and that the defendant was represented by counsel. The defendant’s evidence failed to show an infringement of defendant’s rights or a procedural irregularity in the taking of the plea. In sum, the State complied with the requirements of La. R.S. 15:529.1, and the trial court properly determined from the evidence presented that the defendant was a third felony offender. The assignment of error lacks merit.

CONCLUSION

For the reasons stated above we affirm the defendant’s conviction and vacate his sentence under the Habitual Offender Law and remand for a new sentencing hearing in accordance with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

      . In accordance with La. R.S. 46:1844(W)(l)(a), initials of the victim are used in order to protect her identity.

      . La.C.Cr.P. art. 782(A) states in pertinent part that "[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” The instant case was one in which punishment was necessarily confinement at hard labor.


text:
    Gary LONG v. AMERICAN SECURITY INSURANCE COMPANY.
    No. 2010-CA-0026.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 2010.
    Rehearing Denied Dec. 8, 2010.

      Albert J. Nicaud, Nicaud & Sunseri, LLC, Metairie, LA, for Gary Long.
    Gordon P. Serou, Jr., Julia P. McLellan, Law Offices of Gordon P. Serou, Jr., L.L.C., New Orleans, LA, for American Security Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

|! This appeal arises from the plaintiffs failure to successfully adjudicate his claim of bad faith against the defendant insurer. The trial court granted the defendant’s motion for summary judgment dismissing the plaintiffs claims. After reviewing the record and finding that no genuine issues of material fact exist as to bad faith, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Gary Long owned property damaged by Hurricane Katrina and insured by American Security Insurance Company (“ASIC”). It is undisputed that ASIC insured Mr. Long’s dwelling and “other structure” with policy limits of $173,000, $17,300, respectively. Mr. Long reported his claim to ASIC in October 2005, and ASIC tendered $31,433.24 for dwelling damages and $17,300 for damage to the “other structure” within the same month. However, Mr. Long did not agree with the dwelling estimate and contested said estimate on January 9, 2006. ASIC instructed Mr. Long to obtain two contractor estimates to dispute the dwelling estimate.

Mr. Long did not submit the estimates. Instead, on May 30, 2007, ASIC received a letter whereby Mr. Long invoked the appraisal process contained in the | ginsurance policy. The letter also named Mr. Long’s chosen appraiser. On June 7, 2007, ASIC retained an appraiser and notified Mr. Long. ASIC’s appraiser’s estimate totaled $116,932.10. Substantially higher, Mr. Long’s appraiser’s estimate totaled $513,335.07. On July 6, 2007, in compliance with the appraisal process, the two appraisers opted for the usage of an umpire because they were unable to reach an agreement. By August 7, 2007, the umpire notified ASIC that Mr. Long’s appraiser had not forwarded his estimate. However, on October 8, 2007, the umpire forwarded his ruling finding a dwelling wind damage claim of $387,864.07. ASIC tendered the policy limits of $141,566.76 on November 1, 2007.

Mr. Long filed a petition for damages against ASIC, prior to the resolution of the self-invoked appraisal process, alleging that it failed to initiate loss adjustment and failed to comply with La. R.S. 22:658 and La. R.S. 22:1220. ASIC filed a notice of removal to the United States District Court, Eastern District of Louisiana (“EDLA”) based on the alleged diversity of parties. However, the EDLA remanded the case for lack of subject matter jurisdiction.

ASIC then filed a motion for summary judgment contending that it paid the policy limits, which thereby limited Mr. Long’s claims to those of bad faith. The trial court granted ASIC’s motion for summary judgment, dismissed Mr. Long’s claims, and his appeal followed.

STANDARD OF REVIEW

Appellate courts review motions for summary judgment utilizing the de novo standard of i’eview and analyze the case with criteria governing the trial court. Nettle v. Frischhertz Elec. Co. Inc., 09-1404, p. 2 (La.App. 4 Cir. 5/26/10), 40 So.3d 1144, 1146.

laA motion for summary judgment shall be granted when “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2).

However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.

La. C.C.P. art. 966(C)(2). Afterwards, “if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

BAD FAITH

Mr. Long asserts that the trial court erred by granting ASIC’s motion for summary judgment based on ASIC’s alleged failure to tender the “undisputed portion” of the appraisers estimates within thirty days and claims that the appraisal process does not interrupt the thirty-day time period. Mr. Long asserts that he is entitled to penalties and attorney’s fees pursuant to La. R.S. 22:658 and La. R.S. 22:1220. La. R.S. 22:658(A)(l)’s prohibited conduct “is virtually identical to the conduct prohibited in LSA-R.S. 22:1220(B)(5): the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, 14capricious, 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. “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, 03-0107, p. 13, 857 So.2d at 1020. The plaintiff also has to show a lack of compliance with the time periods. See La. R.S. 22:658 and La. R.S. 22:1220. “The phrase ‘arbitrary, capricious, or without probable cause’ is synonymous with ‘vexatious,’ and a ‘vexatious refusal to pajf 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, quoting Reed, 03-0107, pp. 13-14, 857 So.2d at 1021.

Mr. Long avers that Willwoods Cmty. v. Essex Ins. Co., 09-651 (La.App. 5 Cir. 4/13/10), 33 So.3d 1102, is dispositive. Wilhvoods involved a motion for summary judgment based on a claim of penalties and attorney’s fees against a second excess insurer. 09-651, p. 3, 33 So.3d at 1105. After the Willwoods plaintiffs invoked the appraisal process, the excess insurer tendered two unconditional payments prior to the umpire rendering a decision. Id., 09-651, pp. 3-4, 33 So.3d at 1105-06. The Fifth Circuit upheld the granting of the motion for summary judgment stating that the insurer’s last unconditional tender pri- or to the umpire’s ruling “was based at least partly on Mr. Reilly’s ‘suggested appraisal award.’ ” Willwoods, 09-651, p. 12, 33 So.3d at 1111. The court held that this confirmed that the insurer possessed “undisputed written proof’ of additional damages beyond its original tender. Id. The unconditional tenders made prior to the umpire’s ruling, caused the trial court and the Fifth Circuit to question the insurer’s belief as to a contested amount of monies due. Willwoods, 09-651, p. 13, 33 So.3d at 1112.

We find Willwoods distinguishable from the facts and circumstances of the present case. The appraisal clause that Mr. Long invoked provided as follows:

13. Appraisal. If the Named Insured and we fail to agree on the actual cash value or amount of loss, either party may make written demand for an appraisal. Each party will select an appraiser and notify the other of the appraiser’s identity within 20 days after the demand is received. The appraisers will select a competent and impartial umpire. If the appraisers are unable to agree upon an umpire within 15 days, the Named Insured or we can ask a judge of a court of record in the state of the described location to select an umpire.
The appraisers will appraise the loss, based on the method of payments specified in the policy for each item. If the appraisers submit a written report to us, that amount will be the actual cash value of the loss. If they cannot agree, they will submit their differences to an umpire. A written award by any two will determine the amount of the loss.
Each party will pay the appraiser it chooses and his expenses, and equally pay expenses for the umpire and all other expenses of the appraisal.

Unlike in Wülwoods, ASIC fully complied with the appraisal clause of the insurance policy. ASIC did not tender payments to Mr. Long during the completion of the appraisal process, which unlike Wülwoods, provides credence that the amount owed to Mr. Long was disputed. Additionally, the record reveals that ASIC tendered Mr. Long’s dwelling policy limits within thirty days of the umpire’s ruling.

The trial judge granted ASIC’s motion for summary judgment because Mr. Long failed to present evidence that ASIC acted in an arbitrary or capricious manner without probable cause. The trial judge stated that “there is not any evidence here that they did anything wrong, I hate to say it like that but you have |fito show me something, and it’s nothing that’s been shown.”

Mr. Long argues that ASIC should have tendered a payment to him during the appraisal process. However, complying with a contracted and self-invoked appraisal process fails to provide evidence or factual proof of vexatious, arbitrary, capricious, or conduct without probable cause. Therefore, ASIC proved that Mr. Long would not be able to satisfy his burden of proof at trial by producing factual support sufficient to establish that ASIC’s behavior was arbitrary and capricious. Accordingly, we do not find that the trial court erred and affirm.

DECREE

Based on the above mentioned reasons, we find that no genuine issues of material fact exist as to ASIC’s alleged bad faith and affirm.

AFFIRMED.

      . We find that this case can be resolved regarding the lack of evidence of arbitrary and capricious conduct. Therefore, we do not address whether an appraisal process interrupts the time periods contained in La. R.S. 22:658 and La. R.S. 22:1220.

      . The statutes are now numbered La. R.S. 22:1892 and La. R.S. 22:1973, respectively.