author: WHIPPLE, J.

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. Devin LANDRY, Atlay Stelly, Rodger D. Shelton and Louisiana Farm Bureau Mutual Insurance Company.
    No. 2011 CA 1973.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Musa Rahman, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana Workers’ Compensation Corporation.
    Matthew Mann, James S. Thompson, New Orleans, LA, for Defendant/Appellee, Devin Landry, Atlay Stelly, Rodger D. Shelton and Louisiana Farm Bureau Mutual Insurance Company.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   WHIPPLE, J.

12This matter is before us on appeal by the Louisiana Workers’ Compensation Corporation (“LWCC”) from a judgment of the trial court granting summary judgment in favor of Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 28, 2009, Russell F. Huertas, an employee of Support Systems, Inc. (“Support Systems”), who was driving a 1994 GMC Sierra, was stopped at the intersection of Aviation Road and Louisiana Highway 24, traveling north on Louisiana Highway 24 in Terrebonne Parish, Louisiana, preparing to make a left turn. At the same time and place, Devin Landry, who was driving a GMC Sierra truck, owned by Atlay Stelly, struck a Toyota Tundra truck operated by Rodger Shelton that was immediately behind the Huertas vehicle, causing a double rear-end collision and injuries to Huertas. As a result of Huer-tas’ injuries, which were sustained in the course and scope of his employment, LWCC, the workers’ compensation insurer for Huertas’ employer, Support Systems, commenced payment of workers’ compensation benefits after the accident to or on behalf of Huertas pursuant to the terms and provisions of its policy coverage.

On July 15, 2010, LWCC filed a petition for damages naming Devin Landry, Atlay Stelly, Rodger D. Shelton, and Farm Bureau, the liability insurer of Landry, as defendants. LWCC contended that the accident and injuries sustained by Fluertas were caused by the negligence, fault, misconduct and want of care of defendants, Devin Landry, Atlay Stelly, Rodger D. Shelton. Accordingly, LWCC contended that defendants were liable jointly, severally, and in solido for all workers’ compensation benefits paid and/or to be paid to Huertas under his |semployer’s workers’ compensation policy plus any applicable attorney’s fees and costs pursuant to LSA-R.S. 23:11o!.

Farm Bureau answered the suit, averring that the vehicle driven by Huertas was uninsured at the time of the accident and that based on the omnibus premium reduction act, LSA-R.S. 32:866, also known as the “no pay-no play” statute, Farm Bureau was entitled to a credit of $10,000.00 against any claim made by LWCC herein.

On April 5, 2011, Farm Bureau filed a motion for summary judgment, seeking a judgment declaring that LWCC was bound by LSA-R.S. 32:866, and was thereby precluded from recovery, of the first $10,000.00 of bodily injury damages of any potential judgment rendered against Farm Bureau as Huertas had failed to maintain compulsory motor vehicle liability security at the time of the accident. Specifically, Farm Bureau contended that LWCC could only acquire those rights afforded Huer-tas, therefore precluding LWCC from recovery of the first $10,000.00, just as Huer-tas would be bound from recovering the first $10,000.00.

The matter was heard before the trial court on June 10, 2011. At the conclusion of the hearing, the trial court granted Farm Bureau’s motion for summary judgment finding that the “no pay-no play” $10,000.00 statutory exclusion set forth in LSA-R.S. 32:866 was applicable in Farm Bureau’s favor to any judgment ultimately rendered in this case. A written judgment was signed by the trial court on June 21, 2011.

4LWCC appeals from the judgment of the trial court granting summary judgment in favor of Farm Bureau, assigning the following as error:

1. The trial court failed to recognize the purpose and intent of the Omnibus Premium Reduction Act and workers compensation laws. [Louisiana Revised Statute] 32:866 (“no pay-no play”) defense cannot be asserted against anyone other than the owner or the operator of an uninsured vehicle. The court erred in allowing Farm Bureau to use the “no pay-no play” affirmative defense against LWCC.
2. The trial court erred in holding that LWCC was standing in the shoes of the injured employee, Mr. Russell Huertas. As a consequence, the court erroneously applied the “no pay-no play” penalty against LWCC who was exercising its independent right of action against a negligent tortfeasor.
3. The trial court erred in its analysis of the “no pay-no play” statute with “comparative negligence”. As a consequence, the court failed to recognize a genuine issue of material fact in dispute.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966(A)(2).

The burden of proof on a motion for summary judgment remains with the mov-ant. 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 15movant’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. LSA-C.C.P. art. 966(C)(2).

The initial burden of proof remains with the mover and it is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party submit evidence showing the existence of specific facts establishing a genuine issue of material fact. See Scott v. McDaniel, 96-1509 (La.App. 1st Cir.5/9/97), 694 So.2d 1189,1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 696 So.2d at 1035. Furthermore, an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Guardia v. Lakeview Regional Medical Center, 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 627. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107 (La.App. 1st Cir.2/8/08), 984 So.2d 72, 80.

The interpretation of a statute is a question of law that may be decided by summary judgment. Gardner v. State, Department of Education, 2002-0643 (La.App. 1st Cir.3/28/03), 844 So.2d 311, 313, writ denied, 2003-1183 (La.6/27/03), 847 So.2d 1280. When addressing legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law de novo, after which it renders judgment on the record. Campbell v. Markel American Insurance Company, 2000-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 620, writ denied, 2001-2813 (La.1/4/02), 805 So.2d 204.

DISCUSSION

At the time of the underlying accident, and prior to amendment by Acts 2008, No. 921, § 1, eff. Jan. 1, 2010, Louisiana’s compulsory motor vehicle insurance law, codified as LSA-R.S. 32:866 and otherwise commonly known as the “no pay-no play” statute, provided in pertinent part, as follows:

A. (1) There should be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
(2) For purposes of this Section, the meaning of “bodily injury” and “property damage” is governed by the applicable motor vehicle liability insurance policy or, in the event of security other than an insurance policy, the meaning of such terms is that which is commonly ascribed thereto.
B. Each person who is involved in an accident in which the other motor vehicle was not covered by compulsory motor vehicle liability security and who is found to be liable for damages to the owner or operator of the other motor vehicle may assert as an |7affirmative defense the limitation of recovery provisions of Subsection A of this Section.
C. If the owner of a motor vehicle, who fails to own or maintain compulsory motor vehicle liability security, institutes an action to recover damages in any amount, regardless of whether such owner or operator is at fault, and is awarded an amount equal to or less than the minimum amount of compulsory motor vehicle liability security, then such owner or operator shall be assessed and held liable for all court costs incurred by all parties to the action.
F. (1) Notwithstanding any provision of law to the contrary, no insurer shall lose any rights of subrogation for claims paid under the applicable insurance policy for the recovery of any sum in excess of the first ten thousand dollars of bodily injury and the first ten thousand dollars of property damages.
(2) In claims where no suit is filed, the claimant’s insurer shall have all rights to recover any amount paid by the claimant’s insurer on behalf of the insured for the recovery of any sum in excess of the first ten thousand dollars of bodily injury and the first ten thousand dollars of property damages.

The Louisiana Supreme Court succinctly interpreted the general purpose of the statute in Progressive Security Insurance Company v. Foster, 97-2985 (La.4/23/98), 711 So.2d 675, 679, stating, “if a motorist fails to pay for liability coverage to protect others, he cannot ‘play’ in the legal system, at least to the collection of his first $10,000 [in] damages.”

In deciding the issue before us, we begin with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of a law involves, primarily, the search for the legislative intent. See LSA-C.C. arts. 1, 2. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of legislative intent. LSA-C.C. art. 9; LSA-R.S. 1:4, Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 2004-1227 (La.App. 1st Cir.6/10/05), 916 So.2d 252, 258. The words of a law must be given their generally prevailing meaning. LSA-C.C. art. 11. When |sthe words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. Importantly herein, it is a well-recognized and long-established rule of statutory construction that statutory provisions should be construed along with the remainder of the statute. Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181, 193. Further, courts are required to give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Pepper v. Triplet, 864 So.2d at 194. Rendering the whole, or a part, of a law meaningless is the last option available to a court when it interprets a law. Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 916 So.2d at 258.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In its first assignment of error on appeal, LWCC contends that the affirmative defense set forth in LSA-R.S. 32:866, ie., “no pay-no play,” cannot be asserted against anyone other than the owner or the operator of an uninsured vehicle, and that the trial court thus erred in allowing Farm Bureau to assert the “no pay-no play” affirmative defense against LWCC. In its second assignment of error, LWCC contends that the trial court erred in holding that LWCC was standing in the shoes of the injured employee, Huertas, and erroneously applied the “no pay-no play” penalty against LWCC, when LWCC contends that it was exercising its independent right of action against a negligent tortfeasor. For ease of discussion, we address these assignments together.

LWCC’s petition for damages seeking reimbursement from the defendants for workers’ compensation benefits paid to Huertas as a result of the accident was filed pursuant to LSA-R.S. 23:1101, which provides in pertinent part:

B. Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount 19which he has paid or becomes obligated to pay as compensation to such employee or his dependents. The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person, and where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage. The amount of any credit due the employer may be set in the judgment of the district court if agreed to by the parties; otherwise, it will be determined pursuant to the provisions of R.S. 23:1102(A). [Emphasis added.]

In Marquette Casualty Company v. Brown, 103 So.2d 269, 271, 235 La. 245, 249-250 (La.1958), the Supreme Court interpreted the workers’ compensation insurer’s right of action against a third party tortfeasor under LSA-R.S. 23:1101, 23:1102, and 23:1103, as follows:

Considering the provisions of R.S. 23:1101, 1102 and 1103 together, it seems plain that there is but one cause of action recognized for the recovery of damages resulting from a single tort. However, the right of redress against the tortfeasor has been extended by the provisions to the injured workman’s employer, who is accorded a preferential right to recover, out of the judgment for damages which may be assessed against the tortfeasor, the amount of compensation he has paid or become obligated to pay to the injured employee. This right [of reimbursement] is, of course, conditioned upon the basic right of the employee to recover damages and, according to R.S. 23:1103, if the damages awarded are for an amount less than the total compensation paid, the employer’s recovery is accordingly limited to that amount. Thus, though the compensation paying employer is given the preferential right to reimbursement out of the judgment, recovery is necessarily restricted to the amount for which the tortfeasor is liable to the injured employee for the consequences of his wrongful act. [Footnote omitted, emphasis added.]

With reference to LWCC’s argument that the affirmative defense set forth in LSA-R.S. 32:866 can only be asserted as a defense against a claim by the owner or operator of the uninsured vehicle, we note that pursuant to LSA-R.S. 32:866(F), an insurer, here LWCC, seeking recovery of claims paid, is subjected to the provisions of LSA-R.S. 32:866. Indeed, the statute specifically provides that “no insurer shall lose any rights of subrogation for claims paid under the applicable insurance policy for the recovery of any sum in excess of 1 inthe first ten thousand dollars of bodily injury and the first ten thousand dollars of property damages.” LSA-R.S. 32:866(F)(1). Thus, reading the provisions of the statute as a whole, we reject the argument by LWCC that the affirmative defense set forth in LSA-R.S. 32:866 can only be asserted against claims by the owner or operator of the uninsured vehicle.

We also note that in Progressive Security Insurance Company v. Foster, 711 So.2d at 685, the Louisiana Supreme Court held that to the extent that LSA-R.S. 32:866 bars an uninsured’s right of recovery of the first $10,000.00, there is no right of subrogation for the first $10,000.00 since no obligation to pay exists. While recognizing that the Supreme Court has applied the statute to limit the amount of recovery for subrogation rights, LWCC argues that a worker’s compensation insurer’s claim for reimbursement is not subject to such limitations under LSA-R.S. 32:866 in that LWCC is not an “insured,” and is not asserting a claim based on subrogation. In response, Farm Bureau candidly admits that it is not an “insured” and that it is not asserting a conventional subrogation claim. Farm Bureau notes however, relying on Marquette Casualty Company v. Brown, 103 So.2d at 271, 235 La. at 250, that a workers’ compensation insurer’s rights are nonetheless “conditioned upon the basic right of the employee to recover damages.” We agree.

Thus, considering the plain wording of LSA-R.S. 23:1101 and LSA-R.S. 32:866 and the above jurisprudence, we agree that LWCC’s recovery is limited to the amount for which the alleged tortfeasor, Landry, and his insurer, Farm Bureau, are liable to the injured employee, Huertas.

On de novo review, we find that LWCC is entitled to receive reimbursement from a third party for benefits paid to the injured employee, in an amount equal to the amount recoverable by the employee or his dependents against the third party. As such, since Huertas cannot recover the first $10,000.00_J_n against Farm Bureau, due to his failure to procure liability insurance on his vehicle, LWCC is likewise unable to recover the first $10,000.00 from Farm Bureau.

In support of its arguments on appeal, LWCC contends in brief that “[a] ruling in favor of LWCC will reconcile the discrepancy between [LSA-R.S. 32:866] and workers’ compensation laws and advance both of their goals simultaneously.” Considering the principles of statutory construction set forth above, we find that to be the job of the legislature and not of this court.

Moreover, as pointed out by Farm Bureau in brief, workers’ compensation insurers, such as LWCC, contract with the employers and have the right and opportunity to make sure that their beneficiaries, like Huertas, comply with the law and maintain compulsory liability security. Accordingly, Farm Bureau contends that this situation could have been avoided if LWCC simply required that its insureds, in this case Support Systems, either provide compulsory liability security in favor of its employees during the course and scope of their employment, or verify that its employees maintain personal automobile liability insurance on their personal vehicles while operating them in the course and scope of employment.

We find no merit to these assignments of error.

ASSIGNMENT OF ERROR NUMBER THREE

In its final assignment of error, LWCC contends that the trial court “manifestly erred” when it made an analogy of the “no pay-no play” statute with 1 ^“comparative negligence” at the hearing of this matter. As a consequence, LWCC contends that the court failed to recognize a genuine issue of material fact in dispute.

Summary judgments are reviewed de novo by the appellate court. When interpreting a statute and reviewing questions of law, the appellate court gives no special weight to the findings of the trial court. See Gardner v. State, Department of Education, 844 So.2d at 313. Thus, to the extent that LWCC contends that the trial court “manifestly erred” in its analogy, we note that this court conducts a de novo review of the record to determine whether summary judgment was appropriately granted and render judgment accordingly. In doing so, we are not charged with the task of conducting a manifest error review of the oral findings or observations of the trial court.

As such, we likewise find no merit to this assignment of error.

CONCLUSION

For the above and foregoing reasons, the June 21, 2011 judgment of the trial court, granting summary judgment in favor of Farm Bureau and ordering that LWCC is precluded from recovering the first $10,000.00 of any judgment rendered against Farm Bureau pursuant to LSA-R.S. 32:866, is hereby affirmed. Costs of this appeal are assessed against the plaintiff/appellant, LWCC.

AFFIRMED.

GUIDRY, J., concurs.

      . On motion of LWCC, the trial court ordered that LWCC’s claims against Atlay Stelly be dismissed without prejudice on September 3, 2010.

      . Although the judgment appealed from herein is a partial summary judgment, the trial court designated the judgment as final for purposes of an immediate appeal pursuant to LSA-C.C.P. art. 1915(B).

      . Other circuits have determined that a third-party creditor of an uninsured is also barred from recovery of the first $10,000.00 pursuant to LSA-R.S. 32:866 and does not have a cause of action to assert the rights of an uninsured because the uninsured has no cause of action of his own as a result of his failure to maintain the required minimum insurance coverage. See Twin City Acceptance Corporation v. Allstate insurance Company, 43,459 (La.App. 2nd Cir.8/13/08), 989 So.2d 852; MeritPlan Insurance Company v. DeSalvo, 2003-1493 (La.App. 4th Cir.3/24/04), 871 So.2d 461, writ denied, 2004-1009 (La.6/25/04), 876 So.2d 834; North American Fire & Casualty Company v. State Farm Mutual Automobile Insurance Company, 2003-300 (La.App. 3rd Cir. 10/1/03), 856 So.2d 1233, writ denied, 2003-3334 (La.2/13/04), 867 So.2d 694.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    David P. STRAHAN v. EAMS ELECTRIC, L.L.C., and the State of Louisiana Board of Review for the Office of Regulatory Services.
    No. 2011 CA 2016.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      James E. Shields, Sr., Gretna, LA, for Plaintiff/Appellant David P. Strahan.
    J. Jerome Burden, Baton Rouge, LA, for Defendant/Appellee Louisiana Workforce Commission Office of Unemployment Compensation Administration.
    Timothy R. Richardson, Freeman R. Matthews, New Orleans, LA, for Defendant/Appellee Earns Electric, L.L.C.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   McDonald, j.

| zThis is an appeal from a judgment denying unemployment compensation benefits. The plaintiff, David P. Strahan, worked for Earns Electric, LLC for five years. In January of 2010, a property owner sought bids from four companies, including Earns Electric, for work to be done on his property. After receiving four bids, the property owner rejected them all as too high. The lowest was $950. A week later, Mr. Strahan contacted the property owner, found out he had not had the work done, and asked him how much he could afford to pay for it. The property owner responded that his budget was $400. Mr. Strahan then told the property owner he would do the work for that price on the weekends when he was not working for Earns Electric. Mr. Strahan did the work, and after Earns Electric found out about it, he was fired.

Mr. Strahan applied for unemployment compensation benefits with the Louisiana Workforce Commission, which were denied. Mr. Strahan appealed the denial of unemployment compensation benefits to the Administrative Law Judge (ALJ), who ruled that Mr. Strahan was not entitled to benefits and denied his claim. Mr. Stra-han appealed the decision of the ALJ to the Board of Review for the Office of Regulatory Services, which found that the case had been properly decided by the ALJ, adopted the facts and conclusions of law of the ALJ in full, and affirmed the ALJ’s decision. Mr. Strahan then filed a petition for judicial review of the Board of Review’s findings with the district court, which found that the Board of Review’s decision was supported by its findings of fact, and that its findings were based upon sufficient competent evidence, and dismissed Mr. Strahan’s petition with prejudice.

Mr. Strahan then filed this appeal, asserting that the matter should have been remanded for testimony and documents, and that the evidence did not support the findings.

| ^Appellate review does not entail the weighing of evidence, drawing of inferences, reevaluation of evidence, or substituting the views of this court for those of the referee or Board as to the correctness of facts. The scope of appellate review in this matter is limited to determining whether the facts are supported by sufficient and competent evidence and whether the facts, as a matter of law, justify the action taken. Fontenet v. Cypress Bayou Casino, 2006-0300, p. 4 (La.App. 1 Cir. 6/8/07), 964 So.2d 1035, 1038; La. R.S. 23:1634(B). As in Fontenet v. Cypress Bayou Casino the facts in this case are not in dispute, therefore, we need only determine whether the claimant’s actions constituted “misconduct” as defined by La.R.S. 23:1601(2)(a). Id., 2006-0300 at p. 9, 964 So.2d at 1042.

Based on our review of the law we determine that the facts support a finding of misconduct, as defined by La. R.S. 23:1601(2)(a), as Mr. Strahan was at a competitive advantage by having prepared Earns Electrics’ bid for the job, and he was able to use that information to submit his own bid. Further, while Mr. Strahan asserted that he was allowed to “moonlight” and do jobs on the side on his own time, there was no evidence that Earns Electric had allowed Mr. Strahan to perform jobs that Earns Electric had lost in the bid process.

Therefore, the district court judgment, dismissing the petition for judicial review filed by Mr. Strahan, is affirmed. We make no assessment of costs in this case as Mr. Strahan is exempt. See La. R.S. 23:1692.

AFFIRMED.


author: WELCH, J.

text:
    STATE of Louisiana v. John H. MARTIN.
    No. 2011 KA 1843.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Ricky L. Babin, District Attorney, Don-aldsonville, LA, Donald Candell, Asst. District Attorney, Gonzales, LA, for State, Appellee.

      Mary E. Roper, Baton Rouge LA, for Defendant-Appellant, John H. Martin.
    Before PETTIGREW, McCLENDON and WELCH, JJ.
   WELCH, J.

|2The defendant, John H. Martin, was charged by bill of information with armed robbery (count one), a violation of La. R.S. 14:64; armed robbery, use of firearm, additional penalty (count two), a violation of La. R.S. 14:64.3; aggravated burglary (count three), a violation of La. R.S. 14:60; and attempted first degree murder (count four), a -violation of La. R.S. 14:30 and La. R.S. 14:27. The defendant pled not guilty on all four counts. The trial court granted the defendant’s oral motion to quash count three (aggravated burglary) on the grounds of double jeopardy.

After a trial by jury, the defendant was found guilty as charged on counts one and two, and found guilty of the responsive offense of attempted second degree murder on count four, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. On count one, the trial court sentenced the defendant to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, the trial court imposed the additional penalty of five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence (to be served consecutively to the sentence imposed on count one). On count four, the trial court sentenced the defendant to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence (to run concurrently with the sentences imposed on counts one and two). The ^defendant now appeals, arguing that the prosecution for both attempted first degree murder and armed robbery, the underlying felony, violates the double jeopardy prohibition under federal and state constitutions. For the following reasons, we affirm the convictions on all counts. On counts one and two, we affirm the sentences, and on count four, we vacate the sentence and remand for resen-tencing.

STATEMENT OF FACTS

During the early morning hours of June 6, 2006, armed with guns, the defendant and at least one other perpetrator forcibly entered a trailer home in Gonzales, Louisiana, threatened to kill the occupants if they made any sudden moves, and demanded money and drugs at gunpoint. One of the occupants, Samuel Charles, was told to get out of bed and lie face down on the floor and was asked where money was located in the home. Charles complied with the perpetrators’ demands and gave them his wallet, while his girlfriend, Lane-tra Alexander, and two of her children remained in the bed. One of the perpetrators instructed the other to kill Charles, but when the other perpetrator pulled the trigger in compliance, the gun jammed. The perpetrators then fled from the scene.

ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant submits that he was charged with both attempted first degree murder, under the theory that he attempted to kill someone while committing armed robbery, and with armed robbery. Thus, he posits that the armed robbery of the attempted murder victim in this case was the underlying felony, which formed the basis for attempted first degree murder. The defendant argues that this subjects him to double jeopardy in violation of state and |4federal double jeopardy prohibitions as the acts constituting armed robbery were required to convict him of each crime, thereby exposing him to punishment twice for the same acts. Noting that the attempted second degree murder conviction is the less severely punishable offense, the defendant concludes that it should be reversed and that the sentence imposed thereon should be vacated. As noted in its response brief, the State agrees with the defendant’s assertions. We note that the State’s brief incorrectly indicates that the defendant was found guilty as charged on count four (attempted first degree murder) when, as previously noted, the record indicates that the defendant was actually found guilty of the responsive offense of attempted second degree murder.

The Double Jeopardy Clauses of the United States and Louisiana constitutions not only prohibit successive trials for the same offense but also protect against multiple punishments for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15; La.C.Cr.P. art. 591; State v. Murray, 2000-1258 (La.9/18/01), 799 So.2d 453, 454-55 (per curiam). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Green, 96-0256 (La.App. 1st Cir.12/10/96), 687 So.2d 109, 112. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. The broader “same evidence” test dictates that if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. This test depends on the proof necessary for a conviction, not all the evidence that is actually presented at trial. State v. Steele, 387 So.2d 1175, 1177 (La.1980).

|fiAs previously noted, in this case before the trial began, the defendant made an oral motion to quash count three, aggravated burglary, on the grounds of double jeopardy. The defendant specifically argued that aggravated burglary and armed robbery have the same elements and that therefore, the lesser of the two offenses, aggravated burglary, should be quashed under the double jeopardy prohibition. The trial court granted the motion to quash the aggravated burglary charge. That ruling is not contested on appeal. Nonetheless, the defendant now argues that the attempted second degree murder and armed robbery convictions present another double jeopardy claim.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64(A). The gravamen of attempted second degree murder is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. La. R.S. 14:27 and 14:30.1; See State v. Jarman, 445 So.2d 1184, 1189 (La.1984); State v. Barnett, 96-2050 (La.App. 1st Cir.9/23/97), 700 So.2d 1005, 1009. Although the statute for the completed crime of second degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Bishop, 2001-2548 (La.1/14/03), 835 So.2d 434, 437.

As noted by the defendant and the State on appeal, the State in its opening and closing arguments indicated that the attempted first degree murder charge was based on the underlying felony of armed robbery. A conviction for both attempted felony murder and the underlying felony is improper. State ex rel. Adams v. Butler, 558 So.2d 552, 553 (La.1990); State v. Stewart, 400 So.2d 633, 635 n. 4 (La.1981). However, in this case the defendant was found guilty of the responsive offense of attempted second degree murder. Therefore the defendant was convicted | Bon an attempted second degree murder offense (as opposed to the original charge of attempted first degree murder), and there is no such crime as attempted second degree felony murder. See State v. Jones, 94-0187 (La.App. 4th Cir.8/17/94), 642 So.2d 252, 254-55 (wherein the court’s double jeopardy analysis, using the “same evidence” test, was based on the convictions as opposed to the originally charged offenses); see also State v. Allen, 571 So.2d 758, 761 (La.App. 2nd Cir.1990) (per curiam) (wherein the defendant was charged in pertinent part with attempted first degree murder and armed robbery, but pled guilty to attempted second degree murder and armed robbery, and the court found no double jeopardy violation based on the convictions as opposed to the charges). Inconsistent with the felony murder theory of La. R.S. 14:30.1(A)(2), the crime of attempted second degree murder requires the specific intent to kill. Bishop, 835 So.2d at 437; State v. Butler, 322 So.2d 189, 192 (La.1975). Thus, the crime of attempted second degree murder is not based on an underlying felony.

The record supports a conviction for attempted second degree murder as a specific intent crime under La. R.S. 14:30.1(A)(1), considering there was evi-dentiary testimony that there was an attempt to fire one of the weapons, but it jammed, in an attempt to shoot Charles. While this evidence supports the attempted second degree murder conviction, it would not have supported a conviction of armed robbery. In support of the armed robbery conviction, the evidence established that the victim was told to surrender money at gunpoint and relinquished his wallet. Conversely, this evidence alone would not have supported a conviction of attempted second degree murder. Clearly, the elements of each crime were proven with different evidence. Thus, the defendant is not being punished twice for the same offense.

Because the evidence showed that two separate crimes occurred, each of which could have been proven without any evidence as to the other, no double 1 jeopardy violation occurred. The attempted second degree murder and armed robbery convictions do not constitute two punishments for the same offense, and the defendant’s double jeopardy argument raised in the sole assignment of error lacks merit.

SENTENCING ERROR

Pursuant to La.C.Cr.P. art. 920(2), this court routinely reviews the record for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, as previously referenced, we note the following sentencing error. While Judge Pe-gram J. Mire, Jr. presided up to and during the trial, Judge Jane Triche-Milazzo was presiding at the time of the sentencing. As noted, the minute entries state that the defendant was found guilty as charged on the attempted first degree murder charge, when he was in fact found guilty of the responsive offense of attempted second degree murder. While the imposed sentence is within the statutory range for an attempted second degree murder or an attempted first degree murder conviction, in accordance with the sentencing transcript, Judge Triche-Milazzo erroneously referred to the conviction as attempted first degree murder in imposing sentence.

In State v. Session, 2004-1825 (La.App. 5th Cir.4/26/05), 902 So.2d 506, 507-08, the defendant contended on appeal that in sentencing him, the trial court referred to a conviction of attempted armed robbery when he had been convicted of only attempted simple robbery. The fifth circuit found nothing in the sentencing transcript that indicated whether the reference to the wrong conviction was an inadvertent error or a mistaken belief by the court. Because it was impossible to determine that the sentence was not imposed in error for the wrong offense, the fifth circuit vacated the sentence, and remanded the case for re-sentencing.

| sIn the present case, the verdict was misstated in the minutes, and the sentencing judge did not preside over the trial. Thus, it appears that the sentence was imposed in error for the wrong offense and is invalid. La.C.Cr.P. art. 872. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La.C.Cr.P. art. 882(A). We hereby vacate the sentence imposed on the attempted second degree murder conviction and remand for resentencing in accordance with the verdict, and for all necessary corrections of the minute entries and commitment order, if any. There are no discrepancies regarding the other convictions, and we find no further reversible errors.

CONCLUSION

For the foregoing reasons, the defendant’s convictions are affirmed; the sentences on counts one and two are affirmed; and the sentence on count four is vacated and remanded for resentencing and for any necessary corrections of the minute entries and commitment order.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS ONE AND TWO AFFIRMED; SENTENCE ON COUNT FOUR VACATED; REMANDED FOR RESENTENCING ON COUNT FOUR AND FOR CORRECTION OF CLERICAL ERRORS.

      . The attempted first degree murder offense, referenced herein as count four as charged in the bill of information, was referred to as count three for puiposes of trial since the original count three was quashed.

      . The defendant was charged and tried along with codefendants Joseph Johnson and Mar-quel D. Jones. The minutes reflect that the defendant was found guilty as charged on all three counts. However, according to the trial transcript and the verdict form signed by the foreman, the juiy found the defendant guilty as charged on counts one and two, but found the defendant guilty of the responsive offense of attempted second degree murder on the attempted first degree murder charge (originally count four). Thus, the record contains a discrepancy as to the verdict on that count. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, herein the verdict on original count four is attempted second degree murder. Nonetheless, based on the sentencing transcript, it appears that the trial court was under the impression that the defendant had been convicted as charged on count four when the sentences were imposed. This sentencing error will be addressed in the sentencing error section herein.

      .The victims presented inconsistent testimony as to whether there were two or three perpetrators, although the testimony was consistent that only two individuals entered the bedroom occupied by Samuel Charles, Lane-tra Alexander, and two of Alexander’s children. Based on the evidence presented during the trial, guilty verdicts were returned for the defendant and Marquel D. Jones. The jury found Joseph Johnson not guilty on all three counts.


author: McCLENDON, J.

text:
    Antonio D. TYSON v. James LeBLANC-Secretary, Robert C. Tanner-Warden & the State of Louisiana.
    No. 2011 CA 1021.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.
    Antonio D. Tyson, Angie, LA, Plaintiff/Appellant In proper person.
    William Kline, Baton Rouge, LA, for Defendant/Appellee Louisiana Department of Corrections.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

| {Antonio D. Tyson, an inmate in the custody of the Department of Public Safety and Corrections (the Department), appeals a district court’s judgment that dismissed his “Application for Writ of Habeas Corpus” on the district court’s own exception raising the objection of no cause of action. For the reasons that follow, we dismiss the appeal as premature.

FACTS AND PROCEDURAL HISTORY

Tyson filed an “Application for Writ of Habeas Corpus,” challenging several disciplinary penalties for which he lost good time. Although he alleged that he exhausted his administrative remedies, he did not seek judicial review of the denial of his disciplinary appeals. Rather, he sought declaratory, injunctive, and habeas relief seeking restoration of lost good time.

In screening the petition in accordance with LSA-R.S. 15:1178 and 15:1184-88, the Commissioner recommended the court, on its own motion, grant an exception raising the objection of no cause of action and dismiss Tyson’s “Application for Writ of Habeas Corpus” without prejudice. In accordance with the Commissioner’s recommendation, the district court raised and granted an exception raising the objection of no cause of action and dismissed the matter without prejudice. Notice of the judgment was mailed on February 10, 2011. Tyson filed a motion for new trial and also filed a motion for a devolutive appeal. Both motions were received by the district court on February 24, 2011 and “posted” by the district court on March 1, 2011.

DISCUSSION

This court, ex proprio motu, issued a rule to show cause why Tyson’s appeal should not be dismissed as premature, noting that the appellate record did not include a ruling on the March 1, 2011 motion for new trial. On January 17, 2012, a panel of this court referred the rule to show cause to this panel.

|sMr. Tyson, in an apparent response to this court’s show cause order, asserts that he filed an “Ex Parte Motion to Dismiss” his motion for new trial with the district court. However, there is no indication that the district court has acted on the referenced motion.

Also, nothing in the record and nothing produced in response to this court’s show cause order indicate that the district court has acted on Mr. Tyson’s motion for new trial. Louisiana Code of Civil Procedure art. 2123 C provides that an order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgments notwithstanding the verdict; the order of appeal becomes effective upon the denial of such motions. See also LSA-C.C.P. art. 2087 D.

Because nothing indicates that any action has been taken on Mr. Tyson’s motion for new trial or his purported motion to dismiss his motion for new trial, we dismiss Mr. Tyson’s appeal as premature. We remand this matter to the district court for further proceedings with instruction that it should consider and rule on appellant’s Motion for New Trial and/or Motion to Dismiss Motion for New Trial. Costs of this appeal are assessed to appellant, Antonio D. Tyson.

APPEAL DISMISSED. MATTER REMANDED TO DISTRICT COURT TO CONSIDER MOTION FOR NEW TRIAL AND/OR MOTION TO DISMISS MOTION FOR NEW TRIAL.

      . The office of the Commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner’s written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. LSA-R.S. 13:713 C(5).

      . We find St. Tammany Homesites v. Parish of St. Tammany, 477 So.2d 123 (La.App. 1 Cir. 1985) to be distinguishable.


author: GUIDRY, J.

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. QUALITY EXTERIOR SERVICES, L.L.C.
    No. 2011 CW 1197.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Chad S. Berry, Paul-Michael Fryday, Baton Rouge, LA, for Plaintiff/Respondent Louisiana Workers’ Compensation Corporation.
    Scott G. Wolfe, Jr., Seth J. Smiley, Bradley Aldrich, New Orleans, LA, for Defendant/Relator Quality Exterior Services, LLC.
    G. Gregory Green, Monroe, LA, for Third-Party Defendant/Respondent Roofing Contractors, Inc. of Louisiana.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

li>We granted certiorari in this matter to consider a party’s right to electronic discovery under the 2007 amendments to La. C.C.P. arts. 1461 and 1462.

FACTS AND PROCEDURAL HISTORY

Louisiana Workers’ Compensation Corporation (“LWCC”) provided workers’ compensation insurance coverage to Quality Exterior Services, LLC (“QES”) from January 2005 to October 2010. In 2009, LWCC performed an audit of the payroll records of QES for the 2008-2009 policy period, which allegedly revealed that one of QES’s subcontractors, Roofing Contractors, Inc. (RCI), failed to maintain its own workers’ compensation insurance. The contract between LWCC and QES provided that LWCC could retroactively increase QES’s premium calculation if QES’s subcontractors did not maintain their own workers’ compensation coverage. Thus, based on RCI’s alleged failure to maintain its own workers’ compensation insurance during the policy year January 6, 2008 to January 6, 2009, LWCC increased QES’s premium for that policy year. QES refused to pay the premium increase, and LWCC filed suit against QES to recover the unpaid portion of the 2008-2009 premium in the amount of $58,850.64, plus stipulated damages provided for in the insurance contract.

In response to the petition filed by LWCC, QES filed a peremptory exception raising the objections of no cause of action and lack of service of process and answered the petition to deny liability and assert several affirmative defenses; thus, issue was joined and the parties commenced discovery. Included in the discovery propounded by QES was a “Request for Production of Documents,” pursuant to which the following instruction was given:

IsPlease be advised that any and all electronic documents, fíles or data which is requested herein must be provided to Coulon in the native format. This requires that you provide the oriyinally created data in the format utilized by the software originally used to create the data. For example, if the data was oriyinally recorded or drafted using Microsoft Word, please provide us with the Word formatted document, otherwise indicated as a “ *.doc” file. If a document is requested that was originally drafted, sent and/or otherwise existing in an electronic format, we request that the document be provided to us in the native electronic format. [Emphasis provided in original text.]

In response to the request for production of documents, LWCC provided a “complete copy” of its policy file for QES. QES objected to the manner in which LWCC produced the documents, and by subsequent communication with counsel for LWCC, QES insisted that the documents produced by the LWCC be provided in their original, electronically-stored format. When LWCC refused to comply with this request, QES filed a motion to compel with the trial court. Following a hearing on the motion, the trial court denied the motion, and QES filed the instant writ application seeking supervisory review of the trial court’s ruling.

DISCUSSION

The primary issue raised in this writ application is whether the trial court abused its discretion in denying the motion to compel discovery. It is well settled under Louisiana law that the discovery statutes are to be liberally and broadly ^construed to achieve their intended objectives. Bridges v. Hertz Equipment Rental Corp., 08-0400, p. 3 (La.6/20/08), 983 So.2d 1256, 1258. A party generally may obtain discovery of any information which is relevant to the subject matter involved in the pending action. See La. C.C.P. art. 1422. Based on our review of the discovery requests and the evidence presented by the LWCC in opposing the motion, we find that the trial court abused its discretion in failing to grant the motion.

Louisiana Code of Civil Procedure article 1461 states, in pertinent part:

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, and sample any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, phono-rec-ords, sound recordings, images, and other data or data compilations in any medium from which information can be obtained, translated, if necessary, by the respondent through detection and other devices into reasonably usable form....

In conjunction with Article 1461, La. C.C.P. art. 1462 further provides, in pertinent part:

A. ... The request may specify the form or forms in which information, including electronically stored information, is to be produced.
B. (1) ... The written answer or reasons for objection to each request for production of documents shall immediately follow a restatement of the request for production of documents to which the answer or objection is responding. The party submitting the request may move for an order under Article 1469 with respect to any objection to or other failure to respond to the request, or any part thereof, or any failure to permit inspection as requested. If objection is made to the requested form or forms for producing information, including electronically stored information, or if no form was specified in the request, the responding party shall state in its response the form or forms it intends to use.
(2) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought shall show that the information is not reasonably accessible because of undue burden or cost. If' that I,.¡showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause. The court may specify conditions for the discovery considering the criteria and limitations of Article 1426.
C. ... When electronically stored information is produced, the responding party shall identify the specific means for electronically accessing the information.
E. If the requesting party considers that the production of designated electronically stored information is not in compliance with the request, the requesting party may move under Article 1469 for an order compelling discovery, and in addition to the other relief afforded by Article 1469, upon a showing of good cause by the requesting party, the court may order the responding party to afford access under specified conditions and scope to the requesting party, the representative of the requesting party, or the designee of the court to the computers or other types of devices used for the electronic storage of information to inspect, copy, test, and sample the designated electronically stored information within the scope of Articles 1422 and 1425. [Emphasis added.]

In the matter before us, QES expressly requested that any electronically-stored documents related to the 2008-2009 policy-year audit be produced in their native format. In response, LWCC objected to producing the requested documents in their native format, alleging that such production would be unduly burdensome. In raising the objection, LWCC contends that “the steps necessary to provide the information in the form requested by [QES] would begin with a review of the earliest back up data for policy # 109868, originally effective 1/6/2005, which is on the 2005 year-end backup [tape] dated 1/1/2006.” Further, LWCC contends that it no longer possesses the necessary software and hardware to access the information contained on the 2005 year-end backup tape. In support of this contention, LWCC offered the affidavit of its assistant vice president of information technology services, Glenn M. Audiffred, and also had Mr. Audiffred testify at the hearing on the motion to compel.

In resisting a motion to compel, it has been held:

[Louisiana Code of Civil Procedure article] 1469 requires that good cause be shown for a protective order, placing the burden on the party | (¡seeking relief to show some plainly adequate reason therefore. There must be a particular and specific demonstration of fact, as distinguished from stereotyped and con-clusory statements, in order to establish good cause. The existence of good cause for a protective order is a factual matter to be determined from the nature and character of the information sought weighed in the balance of the factual issues involved and a comparison of the consequential hardships caused by granting or denying the order.

MTU of North America, Inc. v. Raven Marine, Inc., 475 So.2d 1063, 1069 (La.1985). We observe that LWCC asserts, without explanation or support, that in order to fulfill QES’s request for information related to the 2008-2009 policy-year audit, it must provide information from 2005 year-end backup tape. From our review, LWCC solely contends that due to the undue burden of accessing the 2005 year-end backup tape, it cannot produce any electronically-stored documents relative to the 2008-2009 policy-year audit.

We cannot agree with the LWCC’s circular reasoning that the allegedly undue burden of producing the 2005 year-end backup tape precludes it from producing any electronically-stored information relative to the 2008-2009 policy-year audit. While we question why LWCC would still have possession of the 2005 year-end backup tape, when it claims that it no longer has the means of accessing or utilizing the information contained on the tape, we, nonetheless, do not see how that restricts LWCC from producing more recent information, and in particular, information from the 2008-2009 policy-year audit, which is the specific time period covered by QES’s request for production.

Mr. Audiffred stated that he was not asked about any data that may have been produced in 2009 or 2010, which is when the audit of the 2008-2009 policy period occurred. He said he was asked to determine what it would take to provide data that was entered when the policy was originally written in 2005. When counsel for QES attempted to question Mr. Audiffred regarding whether the computer systems used to access information from 2005 were the same as were [7needed or used to access information from 2009 to 2010, which again are the years in which the audit of the 2008-2009 policy period occurred, counsel for LWCC objected, contending that the system used by the third-party vendor who performed the audit “may be relevant to getting the native data in native format, but [Mr. Audiffred has] already testified that we didn’t produce the original data for the 2009-2010 audit period.”

Mr. Audiffred testified that to his “knowledge,” Overland Solutions Incorporated (OSI), the third-party vendor that performed the audit at issue, did not use computers or software provided by LWCC to perform the audit in question, but used its own. He explained LWCC received information from OSI in the form of a “data dump and an XML file that we then take and process into our policy system.” When questioned about the statement in his affidavit that “native format is so vague as to be virtually impossible to comply with,” Mr. Audiffred explained “[w]e can certainly provide the data in ... or it can be provided in native format. What you’re referencing [regarding the statement in the affidavit] is understanding the data in that native format would be vague.” When later asked what made an XML file unreadable, Mr. Audiffred indicated that the file was not unreadable, but he explained his belief that information on the file would be useless without “understanding how to parse — or after you parse information, how to basically use the information that’s in the file ... how it relates.” Mr. Audiffred admitted that he did not know if the paper documents that LWCC wished to submit in response to the request for documents were also kept electronically.

While it is commendable that LWCC is concerned about QES being able to understand the information it has requested, that concern is not a sufficient basis for denying QES’s request for electronic discovery relative to the 2008-2009 policy-year audit. Should QES encounter problems understanding the data ]sproduced, then its option would be to conduct further discovery and research to obtain an understanding of what the data means. As Mr. Audiffred’s testimony relates mainly to the burden of producing information from the 2005 year-end backup tape, and not the XML file and data delivered to LWCC in conjunction with the 2008-2009 policy-year audit, we find that the LWCC failed to show the discovery sought is not reasonably accessible because of undue burden or cost. Accordingly, we hold that the motion to compel should be granted with respect to the information specifically requested by QES.

CONCLUSION

Pursuant to granting the writ of certio-rari to consider this matter, we render judgment herein to reverse the ruling of the trial court and hereby grant QES’s motion to compel. In granting the motion to compel, we order the LWCC to produce the requested information in native format within 30 days of the handing down of this writ action.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT ON MOTION TO COMPEL REVERSED; AND JUDGMENT RENDERED GRANTING THE MOTION TO COMPEL.

      . The request for production of documents included the following three requests:

        Request for Production No. 1

      Please produce any and all documents supporting your answer to Interrogatory No. 1 [requesting an explanation why LWCC adjusted QES’s premium amount by including in the premium calculation $92,214.00 paid to RCI during the January 6, 2008 to January 6, 2009 policy period].

        Request for Production No. 2

      Please produce all internal LWCC documents relating to any audit(s) of QES covering the [2008-2009] Policy Period. Your response should include, but not be limited to, memoranda, emails, letters, reports, charts, tables, and summaries in any way related to QES audits.

        Request for Production No. 3

      Please produce all internal LWCC documents relating to LWCC’s decision to adjust QES’s premium for the [2008-2009] Policy Period. Your response should include, but not be limited to, memoranda, emails, letters, reports, charts, tables, and summaries in any way related to the premium adjustment.


author: HIGGINBOTHAM, J.

text:
    Jason NIEMANN husband of/and Renee Niemann v. CROSBY DEVELOPMENT COMPANY, L.L.C.; Lakeside Village Development, L.L.C.; John Doe Supplier; ABC Insurance Company; 123 Insurance Company; XYZ Insurance Company.
    No. 2011 CA 1337.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2012.

      Hugh P. Lambert, Cayce C. Peterson, Gregory P. DiLeo, Jennifer B. Eagan, Julie M. Jochum, Allan Kanner, Cynthia St. Amant, Melissa M. Fuselier, New Orleans, LA, for Plaintiffs-Appellants, Jason Niem-ann and Renee Niemann.
    George B. Hall, Jr., Katie B. Whitman, New Orleans, LA, for Defendant-Appellee, American Empire Surplus Lines Ins. Co.
    George P. Hebbler, Jr., Kelly F. Walsh, Metairie, LA, for Defendant-Appellee, Catlin Specialty Insurance Company.
    Sidney W. Degan, III, Foster P. Nash, III, Stephanie L. Cheralla, New Orleans, LA, for Defendants-Appellees, Crosby Development Co., L.L.C. and Lakeside Village Development, L.L.C.
    Keely Y. Scott, Catherine S. St. Pierre, Leigh Groves, Baton Rouge, LA for Defendant-Appellee, Calmar Construction Co., Inc.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| sThe plaintiff homeowners appeal a summary judgment dismissing their claims against a subcontractor’s commercial general liability insurer for property damage alleged to have resulted from defective Chinese-manufactured drywall that the subcontractor installed in their home before they purchased it. For the following reasons, we vacate the judgment, sustain the peremptory exception of no right of action noticed by this court on our own motion, and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In February 2006, Crosby Development Company, L.L.C. (Crosby) designed and began construction of a house located at 201 Rue Esplanade in Lakeside Village Subdivision in Mandeville, Louisiana. On April 26, 2006, a subcontractor, Calmar Construction Company, L.L.C. (Calmar), installed Chinese-manufactured drywall (Chinese drywall) in the house. On November 1, 2007, the plaintiffs, Jason and Renee Niemann (the Niemanns), purchased the home from the subdivision developer, Lakeside Village Development, L.L.C. (Lakeside).

Approximately two-and-a-half years after they purchased the home, the Niem-anns instituted this action on May 24, 2010. They sought damages due to alleged breach of warranties and negligence regarding the installation of defective Chinese drywall in their home. The Niem-anns sued Crosby, Calmar, and Lakeside, as well as each defendant’s commercial general liability (CGL) insurer. The Niemanns alleged that their house had redhibitory defects as a result of the installation of the defective Chinese drywall. They also alleged that the builder, developer, and subcontractor all knew or should have known of the defects, but | ¿failed to disclose them to the Niemanns. The Niemanns claimed they were not aware that their new home contained defective Chinese drywall at the time of the sale, and had they known, they would not have made the purchase. They also claimed that the Chinese drywall caused them damages, economic loss, and rendered their home defective, unfit, and useless for its intended purpose.

From July 16, 2004, through July 16, 2007, Calmar was continuously insured by defendant, American Empire Surplus Lines Insurance Company (American Empire), through three consecutive CGL policies of excess liability insurance that were issued and renewed annually. American Empire filed a motion for summary judgment in response to the Niemanns’ lawsuit, maintaining that the last CGL policy issued by American Empire to Calmar expired before the Niemanns purchased the house and before the Niemanns became aware of the defective Chinese drywall that had been installed in the house. Accordingly, because the Niemanns’ property damage did not manifest itself during any of the relevant CGL policy periods, American Empire asserted that insurance coverage for Calmar’s alleged liability was never triggered, and therefore, it did not provide coverage for the Niemanns’ claims against Calmar. The trial court agreed with American Empire’s assertion that coverage was never triggered, and after a hearing on January 26, 2011, the trial court granted summary judgment in favor of American Empire. A judgment dismissing, with prejudice, the Niemanns’ claims against American Empire was signed on February 8, 2011. The Niemanns appealed.

On appeal, the Niemanns maintain that the trial court incorrectly applied the manifestation trigger theory to this third-party insurance claim for construction |,^defects. They also argue that American Empire’s CGL policy contains ambiguous provisions that should be construed against American Empire. Alternatively, the Niemanns contend that the trial court erred in dismissing their claims before adequate discovery was conducted. However, for the following reasons, we do not reach the merits of any of the Niemanns’ arguments regarding the trial court’s grant of summary judgment in favor of American Empire. Instead, we sustain the peremptory exception of no right of action noticed by this court on our own motion.

RECENT JURISPRUDENCE

In a recent decision, Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 2010-2267 (La.10/25/11), 79 So.3d 246, the Louisiana Supreme Court held that a subsequent purchaser of land, which had allegedly been contaminated with radioactive material more than two decades prior to the sale, had no right of action against a third party for non-apparent property damages inflicted on the property before the sale, in the absence of an assignment of or subrogation to that right. In Eagle Pipe, the supreme court specifically noted that the various theories of [¿insurance contract interpretation regarding coverage triggers were not applicable to the right of action analysis, and our focus should be premised on the basic understanding that damage to property in Louisiana is considered as damage to the owner’s rights in the property. See Eagle Pipe, 79 So.3d at 277-78 n. 75. Thus, the supreme court articulated an issue in Eagle Pipe that is pertinent to this appeal: whether a subsequent purchaser of property has the right to bring suit against a third party and seek damages for injury to its property that was inflicted before the purchaser became owner of the property.

Because the objection of no right of action was not raised by the parties to this appeal and that issue had the potential of mooting our consideration of third-party insurance coverage in this case, this court issued an interim order, while the appeal was pending, requesting that the parties file supplemental briefs in light of Eagle Pipe. We asked the parties to specifically address whether the Niemanns, as subsequent purchasers, have a right of action against the third-party subcontractor, Cal-mar, and Calmar’s CGL insurer, American Empire, for non-apparent damages that were inflicted on the property prior to the purchase of their home. The parties timely filed supplemental briefs as ordered. Additionally, the Niemanns filed an unopposed motion to supplement the record on appeal with documents, including the act of sale between the Niemanns and the previous owner, Lakeside. The Niemanns contend that the documents were produced by Lakeside in response to the Niemanns’ discovery requests for production. The Niemanns insist that the documents contain evidence of the Niemanns’ subrogation to the right of action for damages against a third party. The Niemanns’ motion to supplement was referred to the merits of this appeal.

MOTION TO SUPPLEMENT APPELLATE RECORD

At the outset, we note that the Niemanns, as appellants, are charged with the responsibility of completeness of the record for appellate review, and the | ./inadequacy of the record is imputable to them. See Luper v. Wal-Mart Stores, 2002-0806 (La.App. 1st Cir.3/28/03), 844 So.2d 329, 333 n. 3. When the Niemanns appealed the trial court’s grant of summary judgment in favor of American Empire, they designated the portions of the record that they considered necessary for their appeal, in accordance with La. C.C.P. art. 2128. As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. City of Hammond v. Parish of Tangipahoa, 2007-0574 (La.App. 1st Cir.3/26/08), 985 So.2d 171, 176; Pinegar v. Harris, 2006-2489 (La.App. 1st Cir.5/4/07), 961 So.2d 1246, 1249. An appellate court must render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. See La. C.C.P. art. 2127 and 2128; Official Revision Comment (d) for La. C.C.P. art. 2127; Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1st Cir.), writ denied, 584 So.2d 1169 (La.1991).

We further note that appellate briefs are not part of the record, and an appellate court has no authority to consider on appeal facts referred to in argument of counsel, in such briefs, or in exhibits containing matters that are not in the pleadings or evidence, and as such, are outside the record. Tranum, 581 So.2d at 1026-27; Franklin v. City of Baton Rouge, 525 So.2d 674, 675 (La.App. 1st Cir.1988). Notably, the documents on which the Niemanns rely in their motion to supplement were allegedly filed as discovery responses but never actually filed in the trial court record or admitted into evidence at the hearing on American Empire’s motion for summary judgment. Discovery responses are not evidence. See Realty Mart, Inc. v. Louisiana Bd. of Tax Appeals, 336 So.2d 52, 54 (La.App. 1st Cir. 1976). “Evidence” is testimony and matter that has actually been ^presented at trial. Id. Therefore, facts obtained through the use of discovery devices, such as written interrogatories and the instant responses to requests for production of documents, are not of themselves evidence, but they may become evidence by introduction as such at the trial of the matter. See Welch v. Robert Campbell, Inc., 316 So.2d 822, 825-26 (La.App. 1st Cir.), writ denied, 321 So.2d 523 (La.1975).

Discovery devices prior to introduction into evidence are merely tools whereby each litigant is given the opportunity to search for and obtain information. Welch, 316 So.2d at 826. Until such information is introduced at trial, a party has no knowledge that the information may be used against it, nor does it know the context in which it will be used. Id. Consequently, opposing counsel has no opportunity to object to, rebut, explain, or engage in a legal confrontation regarding possibly determinative evidence. See Greenfield v. Lykes Bros. S.S. Co., 2002-1377 (La.App. 1st Cir.5/9/03), 848 So.2d 30, 33; Welch, 316 So.2d at 826. The Louisiana Supreme Court has held that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Management Services, Inc., 2007-2143 (La.5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id.

Having reviewed the record, we conclude that the documents referred to in and attached as exhibits to the Niemanns’ supplemental brief and in their motion to supplement filed with this court were never actually filed in any of the trial court proceedings, and therefore, were not part of the trial court record or the record on appeal. It is inappropriate to order the record supplemented with documents that have never been offered, introduced, or admitted into evidence. See Estate of Nicks v. Patient’s Compensation Fund Oversight Bd., 2005-1624 (La.App. 1st Cir.6/21/06), 939 So.2d 391, 400 n. 8; Williams Law Firm v. Bd. of Sup’rs of Louisiana State University, 2003-0079 (La.App. 1st Cir.4/2/04), 878 So.2d 557, 562. Furthermore, requests for supplementation of the record are more properly directed to the trial court. Dillon v. Freeman, 2009-0606 (La.App. 1st Cir.1/5/10), 30 So.3d 989, 990, writ denied, 2010-0264 (La.4/9/10), 31 So.3d 389. Accordingly, the Niemanns’ motion to supplement the appellate record with documents that were not introduced into evidence and made a part of the trial court record is denied. Those matters outside the appellate record will not be considered by this court.

NO RIGHT OF ACTION

We turn now sua sponte to a determination of the Niemanns’ right of action. The objection of no right of action may be raised by the defendant or noticed by the court on its own motion in either the trial or appellate court. La. C.C.P. arts. 927(B) and 2163; Eagle Pipe, 79 So.3d at 255 n. 16; Howard, v. Administrators of Tulane Educational Fund, 2007-2224 (La.7/1/08), 986 So.2d 47, 59; Howell v. Horrell, 99-1093 (La.App. 1st Cir.10/6/00), 808 So.2d 363, 368, writ denied, 2001-2546 (La.12/7/01), 803 So.2d 971. The objection of no right of action tests whether the plaintiff who seeks relief is the person in whose favor the law extends a remedy. Howard, 986 So.2d at 59. Generally, an action can only be brought by a person having a real and actual interest that he asserts. La. C.C.P. art. 681. Thus, the question is simply whether' the plaintiff has a right to sue the defendant. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La.3/17/06), 929 So.2d 1211, 1217; OXY USA, Inc. v. Quintana Production Co. 2011-0047 (La.App. 1st Cir.10/19/11), 79 So.3d 366, 376, writ denied, 2012-0024 (La.3/2/12), 84 So.3d 536.

An appellate court should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid | incause of action for some person. Eagle Pipe, 79 So.3d at 256. Ultimately, the determination of whether a plaintiff has a right to bring an action raises a question of law, which is reviewed de novo considering the record and the substantive law regarding the right of action. Id.; Horrell, 808 So.2d at 368. Evidence supporting or controverting an objection of no right of action is admissible. Jackson v. Slidell Nissan, 96-1017 (La.App. 1st Cir.5/9/97), 693 So.2d 1257, 1261. We have the designated record connected with the summary judgment before us, including all of the pleadings and affidavits, which we can and will review to determine whether the Niem-anns have a right of action against American Empire and its insured, Calmar. See Horrell, 808 So.2d at 368; Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1st Cir.5/19/99), 740 So.2d 173, 177. As is customary on consideration of an objection of no right of action, the aver-ments of fact in the pleadings will be taken as true in the absence of evidence to the contrary. Horrell, 808 So.2d at 368. Our examination begins with the pleadings. See Gisclair v. Louisiana Tax Com’n, 2010-0563 (La.9/24/10), 44 So.3d 272, 274 (per curiam), quoting Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La.7/1/08), 986 So.2d 47, 60.

The Niemanns allege, in their original and supplemental and amending petitions, that they have been damaged due to the installation of defective Chinese drywall that immediately began to cause damage from the moment it was installed, which was before they bought their home, and continued to damage their home after the purchase. They specifically allege that their claims against Calmar, the _|_ualleged installer of the Chinese drywall, are for breach of warranties and for negligence. The Niemanns sued American Empire under the Direct Action Statute, La. R.S. 22:1269, as the liability insurer for Calmar. Louisiana jurisprudence has consistently held that the Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive right of action against the insured. See OXY USA, 79 So.3d at 377. Thus, if there is no substantive right of action against American Empire’s insured, Calmar, then there is no procedural right of direct action against American Empire.

Our review of the record reveals that the Niemanns do not allege any facts in their pleadings, and there is no evidence in the record, regarding an assignment of, or subrogation to, the personal rights of the seller of the house, Lakeside. According to the supreme court, after conducting an exhaustive analysis of the subsequent purchaser rule in Eagle Pipe, an assignment or subrogation of personal rights belonging to the owner of the property when the damage was inflicted is required in order for a subsequent purchaser to have the right to recover from a third party for damage that was inflicted on the property before the sale. Eagle Pipe, 79 So.3d at 275. Whether the damage to the property is apparent or not, the personal nature of the right of the landowner at the time that the damage is inflicted does not change. Thus, the personal rights of the former owner do not pass with the property in an act of sale unless specifically assigned or subrogated to the new owner. Id., 79 So.3d at 276. In the absence of an assignment or subrogation of this personal right, the subsequent purchaser of the property cannot recover from a third party for property damage inflicted prior to the sale. Id., 79 So.3d at 279. The record on appeal does not reflect such an express assignment or subrogation.

[ ^Additionally, the supreme court rejected the claim in Eagle Pipe that the subsequent purchaser was entitled to assert a right of action for continuing damage to the property after the sale, noting that such a right would only exist in the case of a continuing tort, which the court concluded was not alleged. Eagle Pipe, 79 So.3d at 279. Emphasizing that where the wrongful conduct was completed but the plaintiff continued to experience injury, the supreme court found no continuing tort in the absence of any further tortious activity. See Id., 79 So.3d at 279. The Niemanns’ petition does not allege continuing, persistent, or ongoing unlawful or tor-tious acts by Calmar. Instead, the Niem-anns’ allegations assert that the wrongful conduct occurred immediately upon the installation of the alleged defective Chinese drywall, which undisputedly occurred before they purchased the house. The injury, which the Niemanns claim, results from the continued presence of the Chinese drywall in their home, which is simply the continuing ill effect from the installation. The fact that the Niemanns discovered the continuing ill effects of the alleged tortious installation of the Chinese drywall does not give rise to a new right of action in tort against the installer (Calmar) after the sale of the house. See Id.

Our de novo review of the allegations in the Niemanns’ petition and the evidence in the record on appeal reveals that the Niemanns do not have a right of action to seek damages against the third-party subcontractor, Calmar, and its insurer, American Empire, for non-apparent property damage that was inflicted before they purchased their home unless the Niemanns were assigned or subrogated to that right by the previous property owner, Lakeside. The record does not reflect such an assignment or subrogation. For this reason, we render judgment sustaining the peremptory exception of no right of action properly noticed on our own motion. La. C.C.P. art. 927; Gisclair, 44 So.3d at 280. Our holding relies heavily on the supreme court’s analysis and reasoning found in Eagle Pipe, which ]13we find to be indistinguishable and which we are compelled to follow. Thus, the Niem-anns’ claims against American Empire must be dismissed, and while our holding has the same result as the trial court’s grant of summary judgment in favor of American Empire, we hereby vacate the trial court’s summary judgment.

Additionally, although the Niemanns failed to allege sufficient facts in their pleadings to give them a right of action, we find that they must be afforded the opportunity to amend their petition to do so. Louisiana Code of Civil Procedure article 984 provides that:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

The Niemanns allege in their supplemental appellate brief that they are fully subro-gated to the rights of Lakeside against Calmar and its insured, American Empire, by means of a subrogation clause in the act of sale that conveyed the property from Lakeside to them. If the Niemanns had pleaded this alleged fact in their petition, they would have potentially stated a right of action against Calmar and American Empire. Therefore, we remand this case to allow the Niemanns the opportunity, within thirty days from the finality of this judgment, to sufficiently amend their petition in the trial court, if possible, to state a right of action pursuant to La. C.C.P. art. 984. Our decision on the peremptory exception of no right of action pretermits our consideration of the third-party insurance coverage trigger theory issues raised in this appeal.

^CONCLUSION

For the outlined reasons, we deny Jason and Renee Niemann’s motion to supplement the appellate record, and we vacate the trial court’s summary judgment in favor of American Empire Surplus Lines Insurance Company. Additionally, we find that, as subsequent purchasers with no evidence of record regarding an assignment or subrogation of personal rights from the previous owners, Jason and Renee Niemanns’ petition fails to disclose a right of action against third parties for damage to their property that was not apparent at the time of sale and was inflicted on the property before they purchased it. Therefore, we sustain the peremptory exception of no right of action, properly noticed on our own motion, and dismiss, without prejudice, Jason and Renee Niemann’s claims against American Empire Surplus Lines Insurance Company. We remand this matter to the trial court to allow Jason and Renee Niemann no more than thirty days from the finality of this judgment to amend their pleadings, if possible, to state a right of action against American Empire Surplus Lines Insurance Company and Calmar Construction Company, L.L.C., and for further proceedings consistent with this decision. All costs of this appeal are to be split equally between American Empire Surplus Lines Insurance Company and Jason and Renee Niemann.

MOTION TO SUPPLEMENT APPELLATE RECORD DENIED; SUMMARY JUDGMENT VACATED; EXCEPTION OF NO RIGHT OF ACTION SUSTAINED; CLAIM DISMISSED WITHOUT PREJUDICE; AND CASE REMANDED WITH INSTRUCTIONS.

      . Chinese drywall has been found to emit sulfur compounds that, immediately upon contact with metal surfaces, initiate and continue rapid sulfur corrosion that causes instant and continuous damage from the moment it is installed. Chinese drywall renders the home useless and/or uninhabitable due to sulfur gases and damage to the electrical wiring, appliances, and other devices. See In re Chinese Manufactured Drywall Products Liability Litigation, 759 F.Supp.2d 822, 832 (E.D.La.2010).

      . Not all of the named defendants have interests before us on this appeal. The only relevant defendants for this appeal are Calmar and its excess insurer, American Empire Surplus Lines Insurance Company.

      . "First-party” insurance covers a loss sustained by the insured, the first party to the insurance contract, as opposed to liability or "third-party” insurance, which covers the insured’s liability to a third party (a non-party to the insurance contract) for that party's loss. Mangerchine v. Reaves, 2010-1052 (La.App. 1st Cir.3/25/11), 63 So.3d 1049, 1055, n.4, citing Black's Law Dictionary, 817, 1518 (8th ed.2004).

      . The objection of no right of action is urged through a peremptory exception raised by the defendant or noticed by the court on its own motion, in either the trial or appellate court. La. C.C.P. arts. 927 and 2163; Gisclair v. Louisiana Tax Com’n, 2010-0563 (La.9/24/10), 44 So.3d 272, 273 (per curiam), quoting Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La.7/1/08), 986 So.2d 47, 59.

      . The plaintiff in Eagle Pipe filed suit against the former landowners and the oil and trucking companies who were allegedly responsible for the soil contamination. The trial court granted exceptions of no right of action that were raised by the oil and trucking companies. The court of appeal initially affirmed the trial court, but then reversed on rehearing. The supreme court granted writs and reversed, concluding that a subsequent purchaser of property has no right of action against a third party for non-apparent property damages inflicted before the sale, without an assignment of the right or subrogation to that right. The supreme court also specifically found that the continued presence of the alleged contamination on the land was the continuing ill effect from the original tortious act that had occurred prior to the sale, and thus, the subsequent purchaser had no right of action against the third party for damages discovered after the sale. See Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 2009-0298 (La.App. 4th Cir.2/10/10), 47 So.3d 428, writs granted, 2010-2267, 2272, 2275, 2279, and 2289 (La.2/4/11), 56 So.3d 979-82, reversed, 2010-2267 (La. 10/25/11), 79 So.3d 246 (rehearing denied 1/13/12).

      . The Niemanns rely on an expert’s opinion in the affidavit of Lori A. Streit, Ph.D., whose affidavit was attached to and filed in support of the Niemanns' opposition to American Empire’s motion for summary judgment. Dr. Streit opines that the mere presence of the defective Chinese drywall, upon the moment of installation and continuing forward in time, emits sulfur compounds that initiate and continue rapid sulfur corrosion upon contact with metal surfaces. As previously noted, the Chinese drywall eventually renders the home uninhabitable due to damage to the electrical wiring, appliances, and other devices, as well as the ever-present sulfur gases. See In re Chinese Manufactured Drywall Products Liability Litigation, 759 F.Supp.2d 822, 832 (E.D.La.2010).

      . The supreme court examined the act of sale that was attached to the petition and offered as an exhibit at the hearing on the exception of no right of action in Eagle Pipe, finding that the phrase "[the sellers] do by these presents sell, transfer and deliver, ... and with full subrogation to all their rights and action of warranty against previous owners ...” was directed to the rights and actions of warranty against previous owners, and was not an express assignment or subrogation of personal rights to the new owner. Eagle Pipe, 79 So.3d at 281, 79 So.3d 246.

      . As an intermediate appellate court, we are bound to follow the decisions of the supreme court when a question is not specifically regulated by statute and the supreme court has made the only available definitive ruling and the last expression of law as to the issue. Cavalier v. State, ex rel. Dept. of Transp. and Development, 2008-0561 (La.App. 1st Cir.9/12/08), 994 So.2d 635, 641.

      . Pursuant to La. C.C.P. art. 931, an eviden-tiary hearing on the right of action may be necessary, so that American Empire and/or Calmar may introduce evidence to controvert the Niemanns’ amended pleadings on the trial of the exception and the Niemanns may introduce evidence to controvert any objections. See Howard, 986 So.2d at 59.