text:
    Brian HESSER v. NABORS DRILLING USA, LP.
    No. 10-741.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Kevin Andrew Marks, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee, Nabors Drilling USA, LP.
    Mark Kenneth Manno, Fischer & Associates, Shreveport, LA, for Plaintiff/Appellant, Brian Hesser.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|,Brian Hesser appeals the judgment of the Office of Workers’ Compensation (“OWC”) finding that there was no Louisiana jurisdiction for Mr. Hesser’s worker’s compensation claim against defendant Na-bors Drilling USA, LP (“Nabors”). The question at trial was whether Mr. Hesser’s contract of hire was executed in Texas or Louisiana. The OWC concluded that the contract of hire was executed in Texas. Thus, Louisiana lacked subject matter jurisdiction. For the following reasons, we affirm the OWC’s judgment.

I.

ISSUE

We must decide whether the trial court erred in holding that the contract of hire was executed Texas, thereby finding that Louisiana lacked subject matter jurisdiction for Mr. Hesser’s worker’s compensation claim.

II.

FACTS AND PROCEDURAL HISTORY

In August 2008, Mr. Hesser was unemployed and looking for work. He drove to Nabors’ Rig 764 in Westdale, Louisiana to inquire about available positions. Upon arriving at the rig, Mr. Hesser met with Trey Brown, a Nabors employee. Mr. Brown and Mr. Hesser worked together previously for another company, so Mr. Brown offered to introduce Mr. Hesser to Donny Oliveaux, the rig manager. Mr. Brown recommended Mr. Hesser for employment. Mr. Oliveaux told Mr. Hesser to make an appointment at Nabors’ Human Resources office in Kilgore, Texas for the completion of paperwork, a drug and alcohol test, and a pre-employment physical. At that time, Mr. Oliveaux did not discuss a particular position with Mr. Hes-ser, nor did he make Mr. Hesser an offer of employment.

|2Shortly after his conversation with Mr. Oliveaux, Mr. Hesser traveled to Kilgore, Texas and reported to Nabors’ Human Resources office. There, Mr. Hesser completed a job application, obtained a pre-employment physical, and completed a drug and alcohol screening. Mr. Hesser also signed Nabors’ Conditional Offer Acknowledgment form, wherein he acknowledged that his employment with Nabors was conditional on passing a drug screen, alcohol test, physical exam, background check, and completion of all paperwork.

After successfully completing all of Na-bors’ pre-employment conditions, and while still in Kilgore, Mr. Hesser spoke with Justin Culpepper, a Nabors rig superintendent. Mr. Culpepper informed Mr. Hesser that he was hired and that he should report to Rig F-38 near Garrison, Texas for employment.

In November 2008, Mr. Hesser injured his lower back while working on a drilling rig in Texas. Following the accident, Na-bors instituted payment of indemnity and medical benefits under Texas workers’ compensation law.

In April 2009, Mr. Hesser filed a disputed claim for compensation (“Form 1008”) with the Louisiana Office of Workers’ Compensation. The only issue presented on the Form 1008 was whether Louisiana jurisdiction existed pursuant to the extraterritorial provisions of La.R.S. 28:1035.1. In response, Nabors filed an exception for lack of subject matter jurisdiction. The OWC determined that Mr. Hesser’s contract of hire was executed in Texas. Thus, Louisiana lacked jurisdiction. Mr. Hesser appeals.

Jain.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139].

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Moreover, the conclusion as to whether a claimant was working under a contract of hire made in Louisiana is a factual determination which may not be disturbed on appeal in the absence of showing manifest error. Hanks v. Kinetics Group, Inc., 03-1354 (La.App. 3 Cir. 6/2/04), 878 So.2d 782, writs denied, 04-1517 (La.10/1/04), 883 So.2d 990; 04-1693 (La.10/1/04), 883 So.2d 994.

Jurisdictional Analysis

Louisiana Revised Statutes 23:1035.1 provides extraterritorial coverage of the Louisiana Workers’ Compensation Act. It provides, in part:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account |4of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee ... shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury:
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.

It is clear that Mr. Hesser’s employment was not principally located in Louisiana. Thus, the issue is whether Mr. Hesser was working under a contract of hire made in Louisiana. The intent of the parties is “[o]f paramount importance in determining the location of an employee’s contract.” LeJeune v. Bell Tower Corp., 09-1222, pp. 3-4 (La.App. 3 Cir; 4/7/10), 34 So.3d 464, 467. Moreover, the OWC’s finding on this issue is factual. Id.

Mr. Hesser contends that his contract with Nabors was executed in Louisiana. In support of his argument, Mr. Hesser relies on the following cases: Granger v. F.F.E. Transp. Serv., 98-127 (La.App. 3 Cir. 5/13/98), 713 So.2d 667; Harvey v. BE & K Constr., 30,825 (La.App. 2 Cir. 8/19/98), 716 So.2d 514; Dodd v. Merit Elec., Inc., 44,035 (La.App. 2 Cir. 4/15/09), 8 So.3d 849; Offord v. Border to Border Trucking, 00-1201(La.App. 3 Cir. 2/7/01), 779 So.2d 1090; Baldwin v. N. Am. Energy Servs., 07-667 (La.App. 3 Cir. 10/31/07), 970 So.2d 101; and LeJeune, 34 So.3d 464.

The cases cited by Mr. Hesser are distinguishable from his case. Namely, all of the cases cited above involved a clear offer of employment in Louisiana. Though some offers were made over the phone and others were made in person, at the end of the day, no question existed as to whether the employee received an offer of employment. That is not the case here.

|fiMr. Hesser claims he left Louisiana and traveled to Kilgore, Texas with the thought that he was already a Nabors employee. Messrs. Oliveaux and Brown, however, unequivocally deny that a job offer was made to Mr. Hesser in Louisiana. They admit meeting with Mr. Hesser and encouraging him to proceed through the hiring process in Kilgore, but they contend that no specific offer of employment was made. The hearing officer, faced with conflicting testimony, chose to believe Messrs. Oliveaux and Brown, concluding that Mr. Hesser was not offered a job with Nabors until he completed the pre-employment requirements in Kilgore, Texas.

“The issue is not whether the hearing officer was right or wrong, but whether the factual conclusion was reasonable.” Haney, 716 So.2d at 517. We find that it was. Accordingly, Louisiana does not have subject matter jurisdiction over Mr. Hesser’s claim.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC. Costs of this appeal are assessed against Mr. Hesser.

AFFIRMED.

      . Indeed, neither Mr. Oliveaux nor Mr. Brown had the authority to hire for Nabors. Mr. Hesser admitted in deposition that he knew neither gentleman had the authority to hire.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    John TAYLOR, et ux. v. LEGER CONSTRUCTION, LLC, et al.
    No. 10-749.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Eddie J. Lambert, Gonzales, LA, for Defendant/Appellee, Post-Tension Slab-General.
    J. Daniel Rayburn, Jr. Rachel Welch Daigle, Crawford & Jamison, Lafayette, LA, for Defendant/Appellee, Post-Tension Slabs, Inc.
    Michael W. Adley, Judice and Adley, Lafayette, LA, for Plaintiffs/Appellants, John Taylor Christine Taylor.
    Paul J. McMahon, III, Lafayette, LA, for Plaintiffs/Appellants, Christine Taylor John Taylor.
    Wayne M. Babovich, Babovich & Spe-dale, New Orleans, LA, for Defendant/Ap-pellee, Roy Carubba.
    Donald L. Mayeux, Eunice, LA, for Defendant/Appellee, Leger Construction, LLC.
    Gretchen Heider Mayard, Katherine P. Martin A.P.L.C., Lafayette, LA, for Defendant/Appellee, Leger Construction, LLC.
    Timothy A. Maragos, John E. Ortego & Associates, Lafayette, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.

      Kyle P. Polozola, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee, Randy Rivera.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

I,The plaintiffs filed suit against home construction providers, including the ap-pellee, seeking damages for alleged defects found in the construction of their home. The plaintiffs alleged that the appellee was responsible for the design and construction of the home’s foundation. The appellee filed exceptions of no cause of action and no right of action, asserting that the plaintiffs’ claims for structural defects existed solely against the “builder” pursuant to the Louisiana New Home Warranty Act. The trial court granted the exception of no cause of action. The plaintiffs appeal. We reverse and remand.

Factual and Procedural Background

John and Christine Taylor filed this matter seeking recovery for the allegedly faulty construction of their residence in Crowley, Louisiana. The cited deficiencies included movement in the foundation, cracking of the exterior brick veneer, and cracking of interior drywall. The plaintiffs named a number of defendants, including Post-Tension Slabs, Inc. (Post-Tension). The plaintiffs contended that Post-Tension “furnished the labor, material and design for the construction of the foundation and foundation system of their residence.” The plaintiffs asserted that Post-Tension failed to “properly design and/or build the foundation and foundation system for the residence.” The plaintiffs sought damages for the repairs necessitated by the allegedly faulty construction, “attorney’s fees per the Louisiana New Home Warranty LAct,” the cost of structural engineering and surveying, loss of resale value due to foundation remediation, and damages for mental anguish and emotional distress.

Thereafter, Post-Tension filed an exception of no right of action / no cause of action, alleging that, since the plaintiffs’ petition focuses on deficiencies in the construction of their residence, all of the petition’s claims fall within the purview of the New Home Warranty Act (NHWA), La. R.S. 9:3141-9:3150. As Post-Tension was not alleged to have served as the residence’s builder, Post-Tension claimed that the plaintiffs had neither a right of action nor cause of action against it.

Following a hearing, the trial court granted the exception of no cause of action in favor of Post-Tension and, after the plaintiffs failed to amend their petition to include additional claims, dismissed the plaintiffs’ claims against Post-Tension. The plaintiffs appeal. For the following reasons, we reverse and remand.

Discussion

The plaintiffs acknowledge that the NHWA provides the exclusive remedy between an owner and a builder. However, they frame the question presented in this case as whether the NHWA precludes a party from asserting a claim for structural defects against a non-builder pursuant to other avenues of recovery. Since the plaintiffs argue that their claims arise under La.Civ.Code art. 2315, they contend that they have asserted a cause of action.

The peremptory exception of no cause of action is provided for by La.Code Civ.P. art. 927. When used in this context, a cause of action “is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant.” Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118 (citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993)). Pursuant to La.Code Civ.P. art. 931, the parties may not introduce evidence to support or controvert an exception of no cause of action. Instead, the trial court reviews the petition and accepts well-pleaded allegations of fact as true and determines whether, on the face of the petition, the plaintiff is legally entitled to the relief he or she seeks. Ramey, 869 So.2d 114. The moving party must bear the burden of proving that the petition states no cause of action. Id. On appeal, the reviewing court considers the exception pursuant to a de novo review and inquires “whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief.” Id. at 119.

Louisiana Revised Statutes 9:3141 sets forth the purpose of the NHWA as follows:

The legislature finds a need to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners’ insurance as additional protection for the public against defects in the construction of new homes. This need can be met by providing a warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty periods provided herein. The warranty, which is mandatory in most cases, shall apply whether or not building code regulations are in effect in the location of the structure, thereby promoting uniformity of defined building standards. Additionally, all provisions of this Chapter shall apply to any defect although there is no building standard directly regulating the defective workmanship or materials.

Contested in this case is the breadth of La.R.S. 9:3150, which provides that:

This Chapter provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply. Nothing herein shall be construed as affecting or limiting any warranty of title to land or improvements.

|4(Emphasis added.) Post-Tension views La.R.S. 9:3150 as indicating that the only available avenue for the plaintiffs’ redress is against the builder and through the exclusive remedy of the NHWA. Since the petition does not allege that Post-Tension is the builder, Post-Tension argues that the petition does not otherwise state a cause of action.

However, the plain text of La.R.S. 9:3150 states only that the NHWA provides the exclusive remedies and warranties between a “builder” and an “owner” relative to “home” construction. See La. R.S. 1:3; La.R.S. 1:4. The NHWA defines these terms as follows:

(1) “Builder” means any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence. A person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or any addition thereto, is a “builder”, whether or not the consumer purchased the underlying real estate with the home.
(3) “Home” means any new structure designed and used only for residential use, together with all attached and unattached structures, constructed by the builder whether or not the land was purchased from the builder. Such term includes structures containing multiple family dwellings or residences.
(6) “Owner” means the initial purchaser of a home and any of his successors in title, heirs, invitees, or assigns to a home during the time the warranties provided under this Chapter are in effect.

La.R.S. 9:3143.

IsThere is no allegation that Post-Tension was a builder within the definition of La.R.S. 9:3143(1). Instead, and as repoi't-ed above, the petition alleged that PosL-Tension “furnished the labor, material and design for the construction of the foundation and foundation system of their residence.” There is no allegation that it constructed the “home” within the terms of La.R.S. 9:3143(3).

Further, in Squyres v. Nationwide Housing Systems, Inc., 98-8 (La.App. 3 Cir. 6/3/98), 715 So.2d 538, a panel of this court rejected a manufactured home vendor’s assertion that a plaintiffs exclusive remedy against it was through the NHWA rather than through redhibition. The panel reversed an exception of no cause of action entered in favor of the vendor, stating that the NHWA “is only exclusive between the owner and the builder.” Id. at 540.

Similarly, and factually analogous to this matter, the first circuit in Cosman v. Cabrera, 09-0265 (La.App. 1 Cir. 10/23/09), 28 So.3d 1075, rejected a subcontractor’s assertion that a homeowner’s exclusive remedy for defective work was against the general contractor pursuant to the NHWA. The first circuit explained that: “While it is true that the NHWA provides protection to new homeowners against builders, we do not interpret the NHWA so broadly that a subcontractor would be considered a builder, because subcontractors do not construct the entire structure and deliver it to the owner as a new home.” Id. at 1079. In reaching this conclusion the first circuit cited to La.R.S. 9:3143’s definitions of “builder” and “home.” See also Allstate Enter., Inc. v. Brown, 39,467, p. 9 (La.App. 2 Cir. 6/29/05), 907 So.2d 904, 912 (wherein the second circuit rejected the homeowners’ contention that they could recover the attorney fees available under the NHWA from a contractor who they engaged to perform only a portion of the construction of their | fihome and therefore did not serve as a builder of the “home” as defined in La.R.S. 9:3143(3). The court explained that it “[did] not find that the NHWA was intended to have a scope applicable to a contractor that did not construct the entire structure and deliver it to the [homeowners] as their new home.”).

For these reasons, we conclude that Post-Tension failed to sustain its burden of demonstrating that the petition set forth no cause of action against it due to the exclusivity of the NHWA. Accordingly, the trial court erred in granting the exception of no cause of action and dismissing the petition’s allegations in tort against Post-Tension.

DECREE

For the foregoing reasons, the judgment granting the exception of no cause of action in favor of Post-Tension Slabs, Inc. and dismissing the plaintiffs’ claims against it is reversed and set aside. This matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this proceeding are assigned to the appellee, Post-Tension Slabs, Inc.

REVERSED AND REMANDED.

      . The plaintiffs also named as defendants: 1) Leger Construction, LLC, who the plaintiffs alleged they hired "to furnish the labor and materials to build the residence”; 2) Roy Ca-rubba, an engineer, who they alleged "issued the design to Post-Tension for the foundation and foundation system and also inspected and approved the work performed by Post-Tension pursuant to the same”; and 3) Randy Rivera, an architect they allegedly hired to devise the plans and specifications for the home. See Taylor v. Leger Constr., LLC, 09-1263 (La.App. 3 Cir. 4/7/10), 34 So.3d 1033, for further procedural history regarding Mr. Carubba and Leger Construction.

      . Article 2315(A) provides that "[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . Louisiana Revised Statutes 1:3 instructs, in part, that: “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” Further, Louisiana Revised Statutes 1:4 provides that ”[w]hen the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.”

      . Post-Tension contends that any causes of action arising in tort have prescribed. Yet, Post-Tension’s argument relies on dates and evidence outside of the petition. As explained in La.Code Civ.P. art. 931, no evidence can be submitted in consideration of an exception of no cause of action. Accordingly, we do not consider this argument.


author: GAIDRY, J.

text:
    TCC CONTRACTORS, INC. and Thompson Construction Company, Inc. v. HOSPITAL SERVICE DISTRICT NO. 3 OF THE PARISH OF LAFOURCHE d/b/a Thibodaux Regional Medical Center; Greg Stock; Jacob Giardina; A.F. Blair, Jr.; Hammes Company, LLC; HKS Architects, A Professional Architectural Corporation; Jeff Brown; Ronald L. Skaggs; Western Waterproofing Company of America; Iberville Glass, Inc.; Miller Masonry, Inc.; Continental Casualty Company; America First Insurance Company; Lafayette Insurance Company; and Travelers Property Casualty Company of America. Iberville Glass, Inc. v. Thompson Construction Co., Inc. and St. Paul Fire and Marine Insurance Company.
    Nos. 2010 CA 0685, 2010 CA 0686.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 8, 2010.

      Murphy J. Foster, III, Steven B. Loeb, John T. Andrishok, Baton Rouge, Louisiana, for Plaintiffs/Appellants, TCC Contractors, Inc. and Thompson Construction Company, Inc.
    Ben L. Mayeaux, Will Montz, Lafayette, Louisiana, for Defendant/Appellee, Continental Casualty Company.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|sThe general contractor and primary subcontractor for a hospital expansion project appeal a judgment on a peremptory exception of prescription, dismissing their claims for damages against the hospital’s property insurer. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 8, 2004, TCC Contractors, Inc. (TCC) contracted with Hospital Service District No. 3 of the Parish of La-fourche, State of Louisiana, doing business as Thibodaux Regional Medical Center (the Hospital) for the construction of a multi-level medical office building and attached parking garage. TCC subcontracted a substantial portion of its general contract work to its affiliated company, Thompson Construction Company, Inc. (Thompson). Thompson in turn subcontracted certain components of its work to subcontractors. The construction contract originally contemplated a completion date of January 1, 2005, but various circumstances contributed to delays in construction beyond the projected completion date.

The construction contract required the Hospital as owner to “procure and maintain builder’s risk property insurance to cover the completed construction for the [pjroject, the material and other property delivered to the [pjroject site which are to become part of the permanent construction for the [pjroject or are to be consumed on the [pjroject site in the process of constructing the [pjroject.” The contract further required that insurance coverage to “include as loss payees the [cjontractor [TCC], [sjubcontractors at any tier, and suppliers in an amount equal to the actual cash value for all risks of direct physical loss.”

| Continental Casualty Company (Continental) issued a policy of commercial property insurance to the Hospital, providing builder’s risk coverage for its project pending its completion and property damage coverage for the completed structures. The relevant policy period at issue here was from February 1, 2005 to November 1, 2006. The named insureds were the Hospital and its affiliated or subsidiary organizations. Neither TCC nor Thompson was ever added as an additional insured or a loss payee under the policy.

On August 24, 2005, the project architect issued an “Architect’s Certificate of Substantial Completion,” together with a “punch list” of items remaining to be completed by TCC. TCC’s president executed the certifícate on August 25, 2005.

During the course of construction, the exterior window system of the medical office building was subjected to water intrusion testing to insure that the windows would not leak. On August 29, 2005, southeastern Louisiana was struck by Hurricane Katrina. Hurricane Katrina was followed by Hurricane Rita, which made landfall on September 24, 2005. Representatives of the Hospital advised TCC that as the result of the hurricanes, numerous leaks occurred in the exterior window system, and that it considered TCC’s construction deficient in that regard.

By endorsement dated September 14, 2005, the builder’s risk coverage of Continental’s policy was deleted effective August 24, 2005, on the grounds that the medical office building and parking garage were considered completed as of the latter date.

On July 12, 2006, TCC’s attorneys wrote to Continental, advising that TCC, “as contractually assumed loss payee, and alternatively, on behalf of the owner, [the Hospital],” was submitting a claim under Continental’s Impolicy for the reimbursement of all damages resulting from the hurricanes, including its “substantial remediation costs and delay damages in addition to liquidated damages assessed pursuant to the terms of the [construction contract].” Having received no response, TCC’s attorneys wrote again to Continental on August 2, 2006.

On August 18, 2006, TCC and Thompson (the plaintiffs) jointly filed suit against the Hospital, its chief executive officer, the chairman of its board of directors, the project architects, and various subcontractors, project consultants and subconsul-tants, and insurers, including Continental. The plaintiffs sought recovery for their additional costs incurred in repairing the damages to the building, for the balance of the payments due them under the terms of the construction contract, and for other alleged damages. The plaintiffs alleged that the Hospital breached the construction contract by failing to obtain suitable builder’s risk insurance coverage for TCC’s benefit, that TCC was a third-party beneficiary under Continental’s policy, and that Continental was “responsible for any and all damages suffered to the [p]roject as a result of Hurricanes Katrina and Rita, plus all amounts recoverable under law for failure to properly or timely process this claim.”

On August 22, 2006, Continental responded by letter to TCC’s letter of July 12, 2006, expressing its position that TCC was neither an insured nor a loss payee under its policy, and that, even if it was a loss payee, it would | ^not have the right to seek recovery under the policy directly from Continental.

The Hospital and the other named defendants initially responded to the plaintiffs’ petition with various exceptions and motions asserting procedural objections and defenses. On March 7, 2007, Continental filed a peremptory exception of no right of action, contending that since its policy was a commercial property insurance policy and neither TCC nor Thompson was an insured, the plaintiffs had no right of action against it.

On April 9, 2007, the plaintiffs filed a “First Amended Petition for Damages,” amending certain allegations to clarify civil rights claims under 42 U.S.C. § 1983 made against the Hospital’s chief executive officer and the chairman of its board of directors.

On February 6, 2008, the Hospital executed a written assignment of its rights against the project architect and other parties relating to the design and installation of the window system to TCC, including an assignment of its rights against Continental under the builder’s risk and property coverages of its policy.

Continental’s peremptory exception of no right of action was finally heard on March 16, 2009, over two years after it was filed. The trial court sustained the exception, and by judgment signed,on March 80, 2009, granted the plaintiffs leave to amend or supplement their petition by April 15, 2009, in default of which their claims against Continental would be dismissed with prejudice.

|7On April 15, 2009, the plaintiffs filed a “First [sic] Supplemental and Amending Petition” (the Amending Petition), adding allegations that the Hospital assigned its rights under the Continental policy to TCC and that “as assignee of [the Hospital]” TCC was asserting “claims for all damages suffered to [sic ] [the Hospital] as a result of Hurricanes Katrina and Rita, including damage to the window system which was under construction, as alleged in ... the original [p]etition for [d]amages.”

On May 15, 2009, Continental filed a peremptory exception of prescription, asserting that the plaintiffs’ claims against it as assignees of the Hospital were prescribed.

Continental’s exception was initially heard by the trial court on July 20, 2009. After receiving evidence and hearing argument, the trial court overruled the exception, and on July 27, 2009, Continental filed a notice of intent to seek supervisory writs and requested the trial court to fix a return date. On August 11, 2009, the trial court signed its judgment overruling the exception; however, on the same date, it issued an order fixing a contradictory hearing for a new trial on the exception on its own motion, on the grounds that the judgment might have been in error.

The contradictory hearing on the trial court’s motion for a new trial on the exception was held on October 16, 2009. At the conclusion of the hearing, during which no new evidence was presented, the trial court took the matter under advisement.

On November 20, 2009, the trial court signed its judgment granting the new trial and sustaining Continental’s peremptory exception of prescription, dismissing the plaintiffs’ causes of action against Continental | swith prejudice. On the same date, it issued detailed written reasons for judgment.

The plaintiffs now appeal.

ASSIGNMENTS OF ERROR

The plaintiffs contend that the trial court erred in the following respects:

I. The [trial] court generally erred in granting a new trial on its own motion for the purpose of reversing its earlier ruling denying [Continental’s] [peremptory [exception of [prescription.
II. The [trial] court erred in concluding that the applicable prescriptive period for claims against [Continental] was not interrupted by the original timely filed suit by [the plaintiffs],
III. The [trial] court erred in concluding that the amended claims of [the plaintiffs] against [Continental] did not relate back to the original timely filed [p]etition.

STANDARD OF REVIEW

If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard of review. Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. However, the questions presented here for our determination are purely legal ones, rather than factual ones, as the pertinent facts are undisputed. In a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La.1/30/04), 865 So.2d 34, 43.

1 .DISCUSSION

The Applicable Prescriptive Period

Liberative prescription is interrupted when the obligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. A civil action is a demand for the enforcement of a legal right, commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. La. C.C.P. art. 421. Prescription is also interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. Acknowledgment of the other person’s “right” in that sense, however, is to be distinguished from mere acknowledgment of another’s claim to possess such a right or the mere existence of a disputed claim, and even more so from such mere acknowledgment combined with a denial or rejection of the claim’s validity. To effect an interruption of prescription, the acknowledgment of the right must rise to an admission of liability or at least unconditional recognition of the undisputed validity of a part of the claim. See Demma v. Auto. Club Inter-Insurance Exch., 08-2810 (La.6/26/09), pp. 9-10, 15 So.3d 95, 102.

At the time of the losses at issue here, former La. R.S. 22:691 (redesignated as La. R.S. 22:1311 by Acts 2008, No. 415, § 1, effective January 1, 2009), provided a one-year prescriptive period for claims under property insurance policies. However, following Hurricanes Katrina and Rita, the legislature enacted legislation ratifying gubernatorial executive orders that suspended the running of liberative prescription, peremption, and other legal deadlines for certain fixed periods of time. Additionally, and most significantly for our purposes, the legislature enacted former La. R.S. 11022:658.3, effective June 29, 2006 (reenacted and redesignated as current La. R.S. 22:1894 by Acts 2008, No. 415, § 1, effective January 1, 2009), providing in pertinent part:

A. ... [A]ny person or entity having a claim for damages pursuant to a ... commercial property insurance policy, and resulting from Hurricane Katrina shall have through September 1, 2007, within which to file a claim with their insurer for damages, unless a greater time period to file such claim is otherwise provided by law or by contract.
B. ... [A]ny person or entity having a claim for damages pursuant to a ... commercial property insurance policy, and resulting from Hurricane Rita shall have through October 1, 2007, within which to file a claim with their insurer for damages, unless a greater time period to file such claim is otherwise provided by law or by contract.

The Hospital never instituted legal action against Continental; thus, no action by the Hospital ever served to interrupt prescription against Continental pursuant to La. C.C. art. 3462. Similarly, there is no evidence that the Hospital ever made a claim against Continental for any covered losses under the policy, that the Hospital ever put Continental on notice of such a claim, or that Continental ever acknowledged the Hospital’s rights regarding such a claim. Thus, no interruption of prescription by acknowledgment to the Hospital by Continental occurred. If any interruption of prescription in favor of the plaintiffs occurred, it must be based upon their independent institution of legal action against Continental prior to October 1, 2007 at the latest.

The Nature of the Plaintiffs’ Right of Action Against Continental

Although it is the trial court’s judgment sustaining Continental’s peremptory exception of prescription that is the subject of this appeal, the legal basis of its prior judgment sustaining Continental’s peremptory |„ exception of no right of action has bearing upon our determination of the issues raised and warrants the following observations.

Generally, a civil action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. An action brought by a person lacking such an interest is subject to a peremptory exception raising the objection of no right of action. La. C.C.P. art. 681, Official Revision Comments— 1960, (b). See also La. C.C.P. art. 927(a)(6). The function of an exception of no right of action is a determination of whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, p. 6 (La.3/17/06), 929 So.2d 1211, 1216-17. In other words, the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit. Id., 05-0612 at p. 6, 929 So.2d at 1216.

In their original petition, the plaintiffs attempted to assert a cause of action against Continental based upon TCC’s alleged status as a loss payee or third party beneficiary under the policy of commercial property insurance issued to the Hospital. Continental initially responded with a peremptory exception of no right of action, challenging the plaintiffs’ standing to seek recovery under the policy.

The policy at issue is a policy of commercial property insurance, not a policy of liability insurance, because it covers damage to the insured’s property for the insured’s benefit, not the liability of the insured for damages to others. See Donald M. Clement, Contractor, Inc. v. Se. Indus. Contracting, Inc., 425 So.2d 1005, 1006-07 (La.App. 5th Cir.1983). Property insurance, as first-party coverage, generally does not respond to third-party claims. 4 Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner | 12and O’Connor on Construction Law § 11:218 (2010). A builder’s risk policy, or builder’s risk coverage in a multi-risk policy, is a species of property insurance. See 9A Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 132:20 (3rd ed.2010). The purpose of builder’s risk coverage is to provide protection for the building under construction, while it is in the process of being built. Id. at n. 6, citing Ajax Bldg. Corp. v. Hartford Fire Ins. Co., 358 F.3d 795, (11th Cir.2004). See also Rivnor Properties v. Herbert O’Donnell, Inc., 92-1103, p. 29 (La.App. 5th Cir.1/12/94), 633 So.2d 735, 753, writs denied, 94-1293, 94-1305 (La.9/2/94), 643 So.2d 147.

In their original petition, the plaintiffs alleged that TCC was “a [t]hird [p]arty [b]eneficiary of [the] builder’s risk policy in effect during the construction of the policy” by virtue of its status as “a loss payee under the terms of the policy.” It is undisputed, however, that the plaintiffs were not in fact named or otherwise designated as loss payees in the policy or any endorsement to the policy, as required by the construction contract. The Hospital’s contractual failure to request that the plaintiffs be designated as loss payees cannot be imputed to Continental, and cannot serve to vest the plaintiffs with a cause or right of action against Continental under the policy.

| i3The trial court sustained Continental’s peremptory exception of no right of action, finding that the plaintiffs had no right of action against Continental under the facts alleged in their original petition and shown at the hearing on the exception. The trial court’s judgment granted the plaintiffs leave to amend their petition to allege facts supporting a right of action on their behalf against Continental. The plaintiffs did not seek supervisory appellate review of the judgment sustaining that exception, nor have they sought review of that ruling in the context of the present appeal.

Assignment of the Hospital’s Rights

By written agreement dated February 6, 2008, the Hospital assigned to TCC its rights against various parties, including Continental, relating to the window system of the medical office building. The assignment of its rights against Continental provided:

[The Hospital] ... assigns [to TCC] any and all rights against [Continental], as the Hospital’s “builder’s risk” or property damage carrier, as said claim may relate to the window system in the [project and any damages thereto, to the extent same was placed at issue in the [l]awsuit. This assignment is without warranty or recourse and in agreeing to this assignment [the Hospital] makes no representations regarding the existence, validity, legitimacy, or value of any such claim.

[ ^Generally, rights arising from a contract are assignable unless the law, the terms of the contract, or the nature of the contract preclude such assignment. La. C.C. art. 1984. Louisiana Civil Code article 2642 further provides:

All rights may be assigned, with the exception of those pertaining to obligations that are strictly personal. The assignee is subrogated to the rights of the assignor against the debtor.

Significantly, Louisiana Civil Code article 2653 provides the following:

A right cannot be assigned when the contract from which it arises prohibits the assignment of that right. Such a prohibition has no effect against an as-signee who has no knowledge of its existence.

As a general rule, a policy of first-party property insurance is deemed to be personal and non-transferable, and this principle is embodied in the statutory standard fire insurance policy, which includes a provision that the policy is not assignable without the insurer’s consent. McKenzie & Johnson, supra, at § 317. See also La. R.S. 22:1311(F). Continental’s policy expressly provided that “[t]his policy may be assigned or transferred only with the prior written consent of [Continental].” The evidence and the pleadings demonstrate that TCC was in possession of a complete copy of Continental’s policy long before the effective date of the assignment, as its attorneys attached a copy of the policy to their demand letter of July 12, 2006 to Continental, and therefore should be charged with knowledge of the policy’s anti-assignment clause. There is no evidence that Continental ever consented to the assignment by the Hospital of its rights under the policy to TCC.

Despite the foregoing, the issue of the legal validity of the assignment at issue was never raised by Continental and never determined by the trial court. Although we are authorized to notice the peremptory exception of no | ,5cause of action on our own, pursuant to La. C.C.P. arts. 927(B) and 2163, we decline to do so for the foregoing reason and other important reasons. Accordingly, for our present purposes we will assume that the Hospital’s assignment of February 6, 2008 was legally valid despite the policy’s anti-assignment clause, and that only the procedural effect of the Amending Petition, for purposes of prescription, is ultimately before us.

The assignment of a right is effective against the debtor only from the time the debtor has actual knowledge, or has been given notice of the assignment. La. C.C. art. 2643. When the plaintiffs initially filed suit against Continental, Continental had no notice or reason to believe that a valid cause of action under its policy, by a person having the legal right to assert one, had been filed against it. Further, the plaintiffs’ original petition asserted claims only for their own losses and damages, some of which were attributable to delays unrelated to the hurricanes. The plaintiffs did allege in their original petition that TCC “individually and on behalf of [the Hospital] placed [Continental] on notice of damages sustained to the project as a result of Hurricanes Katrina and Rita and specifically owner alleged water intrusion.” But it was not until the filing of the Amending Petition on 11 April 15, 2009, that TCC, “as assignee of [the Hospital],” actually asserted new “claims for damages suffered to [sic ] [the Hospital] as a result of Hurricanes Katrina and Rita, including damage to the window system which was under eonstruction[.]”

An assignee acquires no greater rights than his assignor. DaimlerChrysler Services of N. Am., L.L.C. v. Sec’y, Dep’t of Revenue, 07-0010, p. 8 (La.App. 1st Cir.9/14/07), 970 So.2d 616, 621, writ denied, 07-2374 (La.2/1/08), 976 So.2d 725. An assignee is also governed by the same prescriptive rules applicable to his assign- or. Westenberger v. State ex rel. Dep’t of Educ., 333 So.2d 264, 270 (La.App. 1st Cir.1976). Until the Hospital’s assignment was effective, the plaintiffs had no right or cause of action against Continental, and upon acquiring the assignment TCC succeeded only to those existing rights and causes of action that the Hospital had as of that time. Any individual cause of action that the Hospital had against Continental under either the builder’s risk or property coverages was by then prescribed under former La. R.S. 22:658.3. The after-acquired assignment of February 6, 2008 could not operate retroactively to cure the plaintiffs’ deficient original petition and to bootstrap a timely right of action against Continental in their favor, unless the Amending Petition procedurally related back to the time of filing of the original petition.

Relation Back of the Amending Petition

The plaintiffs characterize their Amending Petition as an amended petition; Continental characterizes it as a supplemental petition. As the trial court held, the distinction is important, primarily with regard to the issue of prescription. See 1 Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure § 6.10 (2nd ed.2008). Thus, its proper characterization is ultimately determinative of the central issue of this appeal.

|17An amended petition either restates the allegations of a claim that were imperfectly stated in the original petition, or adds a new claim that existed, but was not pleaded, at the time when the original petition was filed. See Maraist, supra. Louisiana Code of Civil Procedure article 1153 sets forth the conditions under which the allegations of an amended petition are given retroactive effect to the date of filing of the original petition:

When the action ... asserted in the amended petition ... arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In contrast to an amended petition, a supplemental petition is filed for the purpose of “setting forth items of damage [or] causes of action ... which have become exigible since the date of filing the original petition ..., and which are related to or connected with the causes of action ... asserted therein.” La. C.C.P. art. 1155. A supplemental petition may therefore be used to add a new cause of action related factually to a previously existing cause of action, even though the new claim does not, properly speaking, arise out of the original cause of action. The new or supplemental cause of action, however, does not relate back in time to the date of the original petition; prescription of the new cause of action would generally be held to be interrupted as of the date of filing of the supplemental petition.

The supreme court in King v. Ill. Nat’l Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780, held that an inchoate right to file suit is strictly personal and not subject to involuntary seizure by a writ of fieri facias. In doing so, the supreme court discussed, but did not specifically decide, whether an unexercised or inchoate right to institute a lawsuit may be conventionally assigned. Id., 08-1491 at p. 9, 9 So.3d at 786. However, it did make the following observations that are relevant for our purposes:

| |SA decision to file a lawsuit is premised on an individual’s subjective judgment. Fundamentally, such a conscious determination is dictated by one’s mind and will, exhibited exclusively through the exercise of his or her own volition by actively filing or refraining from filing suit. As such, it is a strictly personal right not subject to involuntary relinquishment

Id., 08-1491 at p. 12, 9 So.3d at 788. (Emphasis added.)

Here, the Hospital never exercised its “strictly personal” right to file suit against Continental. Thus, its rights under the policy were not litigious rights asserted in a pending and timely legal action against Continental, but unexercised or inchoate rights. Because the Hospital never assigned to TCC its “strictly personal right” to exercise its discretion to file suit against Continental prior to the date of the plaintiffs’ original petition, the filing of the plaintiffs’ original petition did not interrupt prescription on the Hospital’s cause of action against Continental under the policy. Even assuming as we do that the Hospital eventually assigned its inchoate rights under the policy to the plaintiffs, including the “strictly personal” accessory right to file suit against Continental, there was no evidence introduced at the hearing on the exception that it did so prior to the date of the written assignment of February 6, 2008.

In arguing that the allegations and claims of their Amending Petition relate back to the time of filing of their original petition, the plaintiffs rely upon our decision in Kinchen v. Metro. Prop. & Cas, Ins. Co., 04-1894 (La.App. 1st Cir.9/23/05), 923 So.2d 678, writ denied, 05-2368 (La.3/31/06), 925 So.2d 1256, and argue that it controls the proper disposition of this matter. That case arose from the accidental shooting death of the plaintiffs son by another young man in a house owned by the mother of a third young man. The plaintiff originally filed suit against the shooter, the owner of the premises, and the owner’s liability insurer. The plaintiff settled with the shooter, but the owner and her insurer moved for summary judgment on the issue of liability. While the motion was pending, the plaintiff filed an amended petition adding the owner’s son as a defendant and alleging his solidary liability with the defendant insurer, in its capacity as his insurer. We held that the different capacity in which the insurer was originally named did not affect the interruption of prescription as to the claim against it in the capacity of the son’s insurer, and that the interruption of prescription against the insurer also interrupted prescription as to its insured as solidary obligor. Id., 04-1894 at pp. 6-7, 923 So.2d at 681.

We find the circumstances of the Kin-chen case clearly distinguishable from those of the present case, and its actual legal rationale inapplicable to this case. In the first place, the plaintiffs cause of action in Kinchen was delictual in nature and the defendant insurer’s policy was a liability policy, subject to the Louisiana Direct Action Statute, La. R.S. 22:1269 (formerly La. R.S. 22:655), thereby according legal rights to the third-party claimant to proceed directly against the insurer. Secondly, the plaintiff asserted factual allegations supporting a finding of solidary liability, based upon the factual relationship between the insureds and the shooter as alleged joint tortfeasors. The shooter, the owner, and the insurer, in its capacity as the owner’s insurer, had not yet been dismissed when the amended petition joining the owner’s son as defendant and alleged joint tortfeasor was filed. Most importantly, the plaintiff had a viable, existing cause of action in tort against |2gthe owner’s son when the original petition naming the insurer as defendant was filed. Finally, because we found that suit was timely filed against the owner’s son and the defendant insurer in its capacity as his insurer by reason of their solidary liability, we expressly pretermitted discussion of whether the allegations of the amending petition related back to the original petition under La. C.C.P. art. 1153. Kinchen, 04-1894 at p. 7, 923 So.2d at 681.

As emphasized by Continental, its policy provided only first-party property coverage for the Hospital and any other insureds; it was not a liability or indemnity policy under which the plaintiffs were authorized to bring a direct action against Continental pursuant to the Louisiana Direct Action Statute, La. R.S. 22:1269. Continental correctly observes that its policy did not insure the construction project, for the benefit of all parties involved; it insured only the Hospital, its insured, against losses and damage to its property and related interests covered under the policy. Because the allegations of the plaintiffs’ original petition did not effectively assert any right of action on their part under the policy nor any other legal obligation on the part of Continental toward the plaintiffs for any cause of action alleged, Continental could not have been solidarily liable with any other defendant to the plaintiffs, such that the filing of suit against such a defendant would serve to interrupt prescription under La. C.C. art. 1799.

_[2¡The more recent case of Taylor v. Babin, 08-2063 (La.App. 1st Cir.5/8/09), 13 So.3d 633, writ denied, 09-1285 (La.9/25/09), 18 So.3d 76, while involving different facts, nevertheless provides guidance on the dispositive issues, including the issue of relation back of an amended or supplemental petition. The original plaintiffs, Taylor and Ledet, were injured in 2003 in a boating accident caused by the negligence of Foret, who was intoxicated and uninsured. The plaintiffs sued Foret, and obtained judgments against him in 2006. Foret later contended that his attorneys committed legal malpractice in 2004 by failing to secure his discharge in bankruptcy from the tort claim, and assigned his malpractice claim to the plaintiffs in an attempt to satisfy the judgments against him. The plaintiffs then sued For-et’s former attorneys based upon the assignment, alleging that Foret discovered the malpractice in 2006. The defendant attorneys excepted on the grounds that the plaintiffs had no right of action, because legal malpractice claims were not assignable under Louisiana law. The plaintiffs then amended their petition to add Foret and his wife as plaintiffs and to bring a claim on their behalf for mental anguish. The defendant attorneys excepted to the amended petition on the basis of prescription and other grounds. The trial court sustained the exceptions, holding that the original plaintiffs had no right of action against the defendant attorneys, and that the Forets’ claims were prescribed.

On appeal, as a matter of first impression, we held that legal malpractice claims are not assignable “based on positive law, jurisprudence, and public policy.” Taylor, 08-2063 at pp. 12-13, 13 So.3d at 641. Because the original plaintiffs therefore had no legally cognizable right of action against the defendant attorneys for malpractice, the defendant attorneys argued that the amended petition was “essentially a new cause of action.” Id., 08-2063 at p. 15, 13 So.3d at 643. We agreed, and further held that the amended petition adding the Forets as plaintiffs did not relate back to the date of filing of the original petition under La. C.C.P. art. 1153. Id., 08-2063 at pp. 14-16, 13 So.3d at 643-44. Because the original petition did not interrupt prescription on the later-added malpractice claims of the Forets, those claims asserted in the amended petition (properly speaking, the supplemental petition) were prescribed. Id., 08-2063 at p. 16, 13 So.3d at 644.

The plaintiffs argue on appeal that “[t]he mere fact that a different cause of action was asserted in the Amending Petition is insufficient to properly establish the exception of prescription.” (Emphasis added.) This proposition, standing alone, is generally correct. However, our law, as interpreted in the jurisprudence, holds that in order for the doctrine of relation back to apply and to circumvent the effect of prescription, a new cause of action asserted in an amended petition (1) must have been in existence at the time the original petition was filed; (2) must have been vested in the plaintiffs at that time; and (3) must arise out of “the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” See La. C.C.P. art. 1153.

The plaintiffs’ Amending Petition for the first time made claims for the Hospital’s property losses or damages actually covered by the policy, a cause of action for items of damages never claimed before by the plaintiffs or, for that matter, by the Hospital. The Hospital’s claims assigned to TCC derive from the insurance contract, the transaction upon which the Hospital’s contractual cause of action against Continental was based, and not the separate construction contract between the Hospital and TCC, the transaction upon which the plaintiffs’ original petition was primarily based. L/The Amending Petition therefore “has the characteristics of a new lawsuit rather than an amended [petition].” See Taylor, 08-2063 at p. 16, 13 So.3d at 644, citing Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278, 1284 (5th Cir.1981). It is thus “tantamount to assertion of a new cause of action which would have otherwise prescribed.” See Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La.1983). This circumstance militates against relation back of the Amending Petition under the criteria enunciated in Ray and the analogous case of Giroir v. S. La. Med. Ctr., 475 So.2d 1040 (La.1985).

Because a civil action by definition can be brought only by a person having a right of action, it stands to reason that an action instituted by a person determined to have no right of action cannot serve as an “action” sufficient to interrupt prescription. See La. C.C.P. art. 681 and La. C.C. art. 3462. Here, the plaintiffs had no valid right of action against Continental at the time they filed their original petition. The relation back theory embodied in La. C.C.P. art. 1153 assumes that there is a legally viable claim to which the pleading can relate back. Naghi v. Brener, 08-2527, p. 10 (La.6/26/09), 17 So.3d 919, 925. Prior to the effective date of the assignment, the Hospital was the only person who had the right to make the decision to file suit against Continental, but instead exercised its exclusive volition to refrain from doing so. Because of the “strictly personal” character of the right to file suit, the plaintiffs’ right to do so can be given legal effect only from the effective date of the assignment, and the assignment could not retroactively cure the initial absence of a right of action by the plaintiffs.

The separate contractual relationship between the Hospital as assignor and TCC as assignee, as distinguished from their original contractual relationship, did not exist prior to the date of the assignment, and 124thus TCC as assignee had no right to judicially enforce the rights it acquired by assignment until that time. See La. C.C.P. art. 698. TCC’s newly-acquired right of action asserted in the Amending Petition likewise did not arise and become exigible until the date of the assignment by the Hospital to TCC, but the Hospital’s cause of action and rights under Continental’s policy had by then prescribed. Because the Amending Petition was therefore, properly speaking, a supplemental petition that did not relate back to the date of the original petition, any purely derivative cause of action acquired by TCC by assignment from the Hospital was first asserted well over a year from the extended prescriptive date, and is therefore prescribed under former La. R.S. 22:658.3. The Amending Petition, regardless of how it was styled or captioned, cannot relate back under La. C.C.P. art. 1153, as that article applies only to amended petitions, not supplemental petitions. See Smith v. Cutter Biological, 99-2068, pp. 33-7 (La.App. 4th Cir.9/6/00), 770 So.2d 392, 410-13.

For all of the foregoing reasons, and for the sound reasons expressed by the trial court, we conclude on our de novo review of this matter that the derivative causes of action asserted by the plaintiffs against Continental under its policy issued to the Hospital were prescribed, and that the trial court’s judgment sustaining Continental’s peremptory exception of prescription was correct as a matter of law. Dismissal of Thompson’s causes of action against Continental is also warranted based upon its failure to assert a right of action on its behalf against Continental in the Amending Petition. See n.7, supra. The trial court’s judgment dismissing the causes of action of the plaintiff-appellants, TCC Contractors, Inc. and Thompson Construction Company, Inc. against the defendant-ap-pellee, Continental [ ^Casualty Company, is accordingly affirmed. All costs of this appeal are assessed to the plaintiff-appellants.

AFFIRMED.

CARTER, C.J., concurs in the result only.

      . The damages claimed by the plaintiffs from the various defendants included "additional material and equipment costs, additional on-site labor and supervision, and additional [on-site] and home office overhead”; "amounts withheld from [the plaintiffs] by [the Hospital]”; "liquidated damages assessed for exceeding the contract time”; "delay, interference and acceleration damages”; "extended field overhead, excess equipment standby costs, accelerated labor productivity loss, equipment productivity loss, labor inefficiencies, escalation costs, lost profits, damage to reputation, loss of use of funds, loss of business opportunity and loss of bonding capacity”; "punitive damages pursuant to 42 U.S.C. § 1983”; and "all attorneys[’] and paralegal fees, expert fees, litigation costs, and interest[.]”

      . The assignment was in favor of TCC alone, with no mention of Thompson. There is no evidence in the record showing any subsequent assignment of rights by TCC in favor of Thompson. Given the present posture of the parties and the pleadings, it would therefore appear that Thompson has no right of action against Continental even under the allegations of the Amending Petition. See n.7, infra.

      . The trial court's action is expressly authorized by La. C.C.P. art. 1971. On the same date that it issued its order, and for the same reason, the trial court also denied Continental’s request to fix a return date for the filing of its writ application.

      . See, e.g., La. R.S. 9:5821, et seq., enacted by Acts 2005, 1st Ex.Sess., No. 6, § 1, effective November 23, 2005.

      . Although the plaintiffs emphasize that Continental was put on notice of their claims by demand letter even before their original petition was filed, they do not argue that Continental made an acknowledgment of their claims sufficient to interrupt prescription.

      . Property insurance is considered "first-party” insurance, in the sense that it 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. See Black’s Law Dictionary 817, 1518 (8th ed.2004).

      . Even if they had been named as loss payees, such status would not have bestowed any contractual rights in the plaintiffs’ favor against Continental, for the following reasons. The "Loss Payable Clause” of Continental's policy is contained in the policy's general conditions. It provides that ”[l]oss, if any, shall be adjusted with and payable to the Named Insured or their order, whose receipt shall constitute a release in full of all liability under the policy with respect to such loss.” (Emphasis added.) This is a "simple or "open” loss payable clause, as opposed to "standard” or "union” loss payable clause, which operates as a separate and distinct contract between the insurer and the loss payee. See Rushing v. Dahyland Ins. Co., 456 So.2d 599, 601-02 (La.1984). A "simple” or "open” loss payable clause is no more than a provisional appointment by the insured of a third person to whom the policy loss proceeds shall be paid, to the extent of that person’s interest. Its purpose is to protect the third person's interest, such as the mortgage balance of a mortgagee. When an insured loss occurs, the insurer is liable for the value of the loss to the extent of the policy limits and must direct payment to the loss payee up to the value of the loss payee's interest. The interest that is actually insured, however, is the insured's interest in the insured property; the loss payee does not have a separate and independent contractual right under the policy and is not considered an insured. Id. See also 15 William Shelby McKenzie & H. Alston Johnson HI, Louisiana Civil Law Treatise: Insurance Law and Practice § 332 (3rd ed.2006). Accordingly, a loss payee under a "simple” or "open” loss payable clause has no right of action against the insurer.

      . Arguably, under these circumstances, the trial court's determination that the plaintiffs had no right of action against Continental under its policy for the cause of action asserted in their original petition should be considered the law of the case, as its judgment sustained rather than overruled Continental’s exception. See Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1092-94, 262 So.2d 328, 332-333 (La.1972). Additionally, as we have previously noted, the plaintiffs’ Amending Petition did not add any allegations relevant to Thompson's status, as opposed to TCC’s status of assignee of the Hospital’s rights. See n.2, supra. Such being the case, dismissal of Thompson’s claims against Continental, with prejudice, on the objection of no right of action would be justified.

      . The prevailing rule nationwide is that an insurance policy provision that prohibits the policy's assignment or the assignment of any rights under the policy after loss, except with the insurer’s consent, is against public policy. See 2 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 34:2 (3rd ed.2010). Louisiana jurisprudence is divided on this question, with at least one older case subscribing to the foregoing rule. See Geddes & Moss Undertaking & Embalming Co. v. Metro. Life Ins. Co., 167 So. 209, 210 (La.App. Orl.Cir.1936). However, a more recent case, involving the assignment of claims under a property insurance policy following Hurricane Katrina, enforced an antiassignment clause in accord with the plain language of La. C.C. arts. 1984 and 2653. See R.L. Luden Tile Co. v. Am. Sec. Ins. Co., 08-1190, pp. 6-7 (La.App. 4th Cir.3/11/09), 8 So.3d 753, 756-57. The U.S. Fifth Circuit Court of Appeals has now certified the question to our supreme court. In re Katrina Canal Breaches Litigation, 613 F.3d 504, 512 (5th Cir.2010). Certification was granted on October 29, 2010. In re Katrina Canal Breaches Litigation, 2010-CQ-1823 (La. 10/29/10).

      . Parenthetically, it would also appear that practically all of the elements of contractual damages claimed in the original petition were clearly excluded under the builder’s risk and property coverages of the policy and could not have been made by even the Hospital itself as insured.

      . Likewise, there was no evidence that TCC had any express or implied authority or mandate to act for the Hospital in presenting a claim against Continental under its policy by means of the letter of July 12, 2006. Thus, the mere notice of TCC's claim by letter, even if purportedly made on behalf of the Hospital as insured, would not have served as notice for purposes of preserving TCC’s later-acquired rights from the running of prescription. Only notice in the form of "formal legal demands” is sufficient to interrupt prescription under La. C.C. art. 3462. See Smith v. Cutter Biological, 99-2068, pp. 34-5 (La.App. 4th Cir.9/6/00), 770 So.2d 392, 411. As the court in the cited case observed, "[i]f mere knowledge of an occurrence that could result in a timely action were sufficient to interrupt prescription, most causes of action would be imprescriptible.” Id. at p. 35, 770 So.2d at 411.

      . "[U]pon strict analysis, ... it is not the property which is insured, but the rights of the insured party; the intention is to avert any loss or damage that the insured might sustain because of a covered risk to the property." 1 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 1:11 (3rd ed.2010).

      . Because Continental’s alleged liability to the plaintiffs is not based in tort, La. C.C. art. 2324(C), under which suit against a joint tort-feasor interrupts prescription against other joint tortfeasors, has no application. It is also questionable whether any potential liability of Continental to the plaintiffs under its policy would have been solidary with that of any other defendant for the particular damages claimed, given the differing nature of the plaintiffs’ separate causes of action against the various defendants. Because of our disposition of this matter, we need not reach that issue.


author: PER CURIAM.

text:
    STATE of Louisiana v. Pete DOMINGUEZ.
    No. 2010 KW 1868.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 8, 2010.

      Mark D. Plaisance, Attorney at Law, Baker, Louisiana, for Relator, Pete Dominguez.
    Camille Morvant II, District Attorney, Steve Miller, Assistant District Attorney, Thibodaux, Louisiana, for Respondent, State of Louisiana.
    Before KUHN, PETTIGREW and KLINE
       JJ.

      . Judge William F. Kline, Jr., is serving as a Judge Pro Tempore by special appointment of the Louisiana Supreme Court.

   PER CURIAM.

1 pThe issue before the Court is whether information regarding the waiver of a right to a jury trial discussed between a defendant and his counsel is barred from disclosure under the attorney-client privilege. We find the trial court did not err in concluding the discussions between relator and his counsel were not protected by the attorney-client privilege because relator committed himself to a course of action that will require disclosure of otherwise privileged communication.

The State of Louisiana billed relator with DWI fourth offense. During pre-trial proceedings, counsel advised the court that relator was waiving his right to a trial by jury, and relator subsequently was found guilty after a bench trial. Thereafter, he filed a motion to arrest judgment claiming the waiver of his right to a jury trial was not knowingly and intelligently made. See La.Code Crim. P. arts. 780 & 859(4).

At the hearing on the motion to arrest judgment, relator objected when the state called his attorney to testify about the decision that was made to waive the jury trial, claiming the communications were covered by the attorney-client privilege. The trial court ruled that the privilege would not apply to counsel’s testimony because there is an exception to the privilege if the testimony was offered to show that the defendant was in fact knowledgeable of his right to a trial by jury and knew the consequences of waiving that right. The court recessed the proceeding to allow the defendant the opportunity to seek review of that ruling.

The right to trial by jury in felony and certain misdemeanor cases is protected by both the federal and state constitutions. U.S. Const, amend. VI; La. Const, art. I, §§ 16, 17; State v. Muller, 351 So.2d 143 (La.1977). Article I, § 17 requires that any waiver be “knowingly and intelligently” made. Courts must indulge every reasonable presumption against waiver of this fundamental right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); La.Code Crim. P. art. 780.

Louisiana Code of Criminal Procedure article 780(A) provides that at arraignment, a defendant shall be informed of his right to waive a trial by jury. While some Louisiana courts have noted the preferable practice to evidence a waiver is for the trial judge to require defendant to personally waive the right, either in writing or orally, the Louisiana Supreme Court has specifically refused to adopt an absolute rule that a jury waiver cannot be made by defendant’s attorney when defendant is considered to have understood his right and consented to such a |swaiver. State v. Phillips, 365 So.2d 1304, 1308-09 (La.1978), cert denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979).

When the record does not clearly indicate a valid waiver of the right to a jury trial, the recent trend has not been to reverse but to remand the case to the trial court for an evidentiary hearing on the issue of whether a valid jury waiver was obtained. See State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963. In State v. Cappel, 525 So.2d 335, 337 n. 3 (La.App. 1st Cir.), writ denied, 531 So.2d 468 (La.1988), this Court noted that when the record is insufficient to determine whether the defendant knowingly and intelligently waived his right to a jury trial, the testimony by defendant and defense counsel at an evidentiary hearing would certainly be relevant, if not dispositive of the issue. We conclude that defense counsel’s testimony regarding the decision to waive the right to a jury trial is not barred by the attorney-client privilege because relator anticipatorily waived the privilege by alleging in his motion in arrest of judgment that his election of a bench trial was not knowingly and intelligently made.

The Louisiana Supreme Court adopted the “anticipatory waiver theory” in Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138 (La.1987). Under the anticipatory waiver theory of the attorney-client privilege, the court must concern itself solely with whether the privilege holder has committed himself to a course of action that will require the disclosure of a privileged communication.

In Smith, the plaintiff filed a legal malpractice action, and the Supreme Court was faced with the issue of whether the plaintiff had waived her attorney-client privilege regarding communications with her present attorney by pleading contra non-valentum or by testifying in her deposition about those communications. The Supreme Court determined that a waiver of the attorney-client privilege could occur under certain circumstances when certain pleadings are filed:

Furthermore, by electing or committing himself to introduce his attorney-client communications at trial and thereby waiving his privilege to such communications, a party creates a special unfairness to his adversary which qualifies as an extraordinary circumstance warranting a court order that his attorney submit to a deposition by his adversary as to these communications.

513 So.2d at 1141. Because the plaintiff in Smith testified in her deposition that her current attorney had told her for the first time that the defendants had maladminis-tered her husband’s succession, the Court concluded the plaintiff had indicated an intention to use the disclosed communication with her attorney at the |4 trial of the exception of prescription to explain her failure to file suit within the prescriptive period. Under these circumstances, “her deposition testimony may constitute a pretrial partial disclosure of a privileged communication amounting to a waiver of her privilege as to relevant communications with her attorney on the same subject.” 513 So.2d at 1146.

In the instant case, relator and his counsel presumably discussed the consequences of waiving a trial by jury, since counsel notified the court well before trial that the defendant intended to waive his right to a jury trial. That conversation contains evidence that the court can use to evaluate whether relator knowingly and intelligently waived his right to a jury trial. By claiming his waiver was invalid, relator has committed himself to a course of action that requires disclosure of conversations he had with counsel about the waiver issue; such disclosure is not barred by the attorney-client privilege.

Accordingly, this writ application is denied, and the matter is remanded for completion of the hearing on the motion to arrest judgment.

      . To the extent the court in State v. James, 99-1047 (La.App. 5th Cir. 1/25/00), 751 So.2d 419, implied that testimony by an attorney about the substance of a specific conversation he had with the defendant regarding the waiver of trial by jury would violate the attorney-client privilege, this Court declines to follow that approach.


author: McDonald, j.

text:
    STATE of Louisiana v. William D. HINES.
    No. 2010 KA 1118.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Rehearing Denied Feb. 8, 2011.

      Joseph L. Waitz, Jr., District Attorney and Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, for Ap-pellee State of Louisiana.
    Bertha M. Hillman, Thibodaux, Louisiana, for Defendant/Appellant William D. Hines.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

|2The defendant, William D. Hines, was charged by amended bill of information with one count of aggravated burglary, a violation of La. R.S. 14:60, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He was sentenced to twenty-two years at hard labor, “enhanced by three years for the fact that the victim was over 65.” See La. R.S. 14:50.2. The court ordered that the sentences be served consecutively to each other. The defendant moved for reconsideration of sentence, but the motion was denied. He now appeals, contending the trial court erred in denying the motion for mistrial or request for admonishment of the jury. For the following reasons, we affirm the conviction and affirm the sentence imposed under La. R.S. 14:60, but vacate the sentence imposed under La. R.S. 14:50.2.

FACTS

During the morning of October 15, 2007, the victim, Virginia Watson, answered a knock on the front door of her home in Bayou Black. Watson’s daughter and son-in-law also lived at the residence, but were not present during the incident. Watson asked who was there and opened the door to see if it was her daughter or granddaughter. She was confronted by a man with a gun and another man who was wearing a scai'f over his face. The victim tried to close the door, but the men forced their way into the home stating, “where the money.” The man with the gun tied the victim’s hands together with plastic straps and told her to sit down and be quiet. Thé other man kicked doors open and ransacked the house. After |sthe man searching the house did not find what he was looking for, he asked the victim, “where’s the money that Mike had here?” The victim replied she was not aware that any money was in the house, and the men left without taking anything.

After the men left, the victim used the automatic dialing feature on her cellular telephone to call for help. Approximately fifteen minutes later, the defendant, Dennis Livings, and a woman were apprehended and brought to Bayou Black Recreation Center for possible identification by the victim. The victim identified Livings as the man with the gun.

The defendant did not testify at trial, but the State played an audiotape of a statement he gave on October 15, 2007. At the beginning of his statement, the defendant indicated he had been advised of his Miranda rights and had waived those rights. He denied he was being forced to make a statement. He claimed he, his wife, Donna Hines, and Livings had traveled from Texas to the victim’s home to recover between $500,000.00 and $1,000,000.00, supposedly in the victim’s home. He claimed he and Livings were surprised when the victim answered the knock on her door, and their original plan had been to “go in the house, look for the money, find it, and burn off.” The defendant claimed he was the man who ransacked the house. He claimed he did not know that Livings had a gun or that he tied up the victim. At the end of his statement, the defendant again denied he was being forced to make a statement and indicated his statement was the truth. He then stated, “[t]he only thing I have to add is that my wife don’t have anything to do with this.”

\ MOTION FOR MISTRIAL

In his sole assignment of error, the defendant argues the trial court erred in denying the motion for mistrial or request for admonishment of the jury because during rebuttal closing argument, on three occasions, the State improperly commented on the defendant’s failure to present evidence.

Louisiana Code of Criminal Procedure article 770, in pertinent part, provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the ... district attorney, ... during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Louisiana Code of Criminal Procedure article 770(3) prohibits both direct and indirect references to the defendant’s failure to testify. Even without these statutory prohibitions, the United States Supreme Court has held that a prosecutor is not free to comment upon a defendant’s failure to take the stand since such a comment violates the self-incrimination clause of the Fifth Amendment made applicable to the states through the Fourteenth Amendment. State v. Moser, 588 So.2d 1243, 1247 (La.App. 1st Cir.1991), writ denied, 594 So.2d 1314 (La.1992) (citing Griffin v. California, 380 U.S. 609, 612-13, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106 (1965)).

When the prosecutor makes a direct reference to the defendant’s failure to take the stand, a mistrial should be declared. In the case of such a direct reference, a | ¿reviewing court will not attempt to determine the effect that the remark had on the jury. Moser, 588 So.2d at 1247.

Where the reference to the defendant’s failure to testify is not direct, the reviewing court will inquire into the remark’s intended effect upon the jury in order to distinguish indirect references to the defendant’s failure to testify (which are impermissible) from general statements that the prosecution’s case is unrebutted (which are permissible). Moser, 588 So.2d at 1247.

According to the Louisiana Supreme Court, when the jurisprudence speaks of the need to ascertain the “intention” of a prosecutor’s reference to the unrebutted nature of the state’s case, the jurisprudence does not envision the impossible task of reading what was actually in the prosecutor’s mind at the time the reference was made. Instead, the test to be employed for determining the “intent” of such a reference, set forth in Moser, 588 So.2d at 1247, is as follows.

In cases where the prosecutor simply emphasized that the state’s evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, the Louisiana Supreme Court has concluded that the prosecutor’s argument does not constitute an indirect reference to the defendant’s failure to testify. On the other hand, where the defendant is the only witness who could have rebutted the state’s evidence, a reference to the testimony as uncontroverted or unrebutted focuses the jury’s attention on the defendant’s failure to testify and mandates a mistrial. Moser, 588 So.2d at 1247 (referencing State v. Johnson, 541 So.2d 818, 822 (La.1989)). In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying. State v. Mitchell, 2000-1399, p. 5 (La.2/21/01), 779 So.2d 698, 701.

|fiThe defendant in Johnson was convicted of two counts of first degree murder. Johnson, 541 So.2d at 820-21. He did not testify at trial. Johnson, 541 So.2d at 822. During guilt-phase rebuttal closing argument, the State referenced the fact that the defendant had made statements to several people implicating himself in the deaths of the victims and argued:

I will submit to you that there can be no better evidence in a criminal proceeding but that evidence from the defendant’s own mouth, not contradicted by anybody. Nobody came here and contradicted anything that was attributed to him, not one single person. Nobody took the stand.

Johnson, 541 So.2d at 822 (emphasis in original).

The court in Johnson found the State had indirectly referred to the defendant’s failure to take the stand in violation of La.C.Cr.P. art. 770(8) because, “the only person who could have contradicted the testimony of [the witnesses who said the defendant told them he committed the crimes] about what the defendant told them was the defendant himself.” Johnson, 541 So.2d at 823.

In the instant case, the State played a portion of the defendant’s audio-taped statement during closing argument and argued the defendant had admitted he went into the victim’s house and “doors were kicked open.” The State also argued there was “not one bit of evidence that was introduced that said that this was not an unauthorized entry of an inhabited dwelling[,]” and “[t]here was no evidence introduced that there was no battery that occurred — that there was no intentional use of force or violence upon [the victim].”

During its closing argument, the defense argued the defendant’s audiotaped statement should be disregarded because it “was not freely and voluntarily made.” The defense argued that during the interrogation of the defendant, Detective Brunet told the defendant that his wife, Donna Hines (Donna), had already given a statement and brought her into the interrogation room to show the defendant that 17Ponna was in custody. The defense claimed Donna was released because, “[the defendant] made a deal with Brunet. Okay, I will talk to you if you let my wife go.”

On rebuttal closing argument, the State argued:

But, what is real important, and I have told you earlier, what I say is not evidence; what [defense counsel argues] is not evidence; it is what comes from the witness stand. And I just want to touch bases on several things that were mentioned by [defense counsel]. One is about the [a]dvice of [r]ights. They are trying to make it a big deal that the statement was not voluntary; and that he made a deal with the police officers that if he gave a statement, that they were going to let the wife go. Where is that evidence coming from? There was no evidence about that whatsoever. That is something that was said in [closing [arguments, but there is no evidence to prove it.
But there is no evidence, whatsoever, that his statement was under coercion, force, or any promises or threats were being made. He had ample opportunity to 1) not to speak to the police. He signed a form agreeing he would speak. And then you heard in his own words, at the beginning of the statement and at the end of the recorded statement that he was not promised anything; nothing was threatened and that he gave a statement freely and voluntarily.
Also, mentioned that they went there, and you should not find [the defendant] guilty because they went in there to get that [sic] belonged to them. I didn’t hear any evidence presented from the witness stand that anything in that house belonged to [the defendant]; nothing in that house belonged to Dennis Livings; nothing — as a matter of fact, in the [closing, they were talking about the cocaine that somebody had, that Michael Crawford had; and they were trying to get cocaine back. That was in [c]losing. That is not the evidence.

After the completion of the rebuttal closing argument, the defense moved for a mistrial, or in the alternative, for an admonishment. The defense argued the State had referred to the defendant not taking the witness stand by arguing there was not one piece of evidence introduced that this was not an unauthorized entry of an inhabited dwelling. The defense added, “[further, [the State] also said that there was no evidence introduced that was not a simple battery.” The Court denied the | ^motion for mistrial and also refused to admonish the jury. The defense objected to the court’s ruling.

Initially, we note the defense failed to object to the particular portions of rebuttal closing argument (quoted above) he challenges on appeal. Accordingly, he failed to preserve review of the closing argument for error, if any. See La.C.Cr.P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”).

Moreover, the trial court correctly denied the motion for mistrial and request for admonishment. The State did not directly or indirectly refer to the defendant’s failure to testify. Rather, the State pointed out to the jury that the defense closing argument was merely that — argument and not evidence. The State had the right to answer the argument of the defendant. See La.C.Cr.P. art. 774 (“The argument shall be confined ... to the lack of evidence^] ... The state’s rebuttal shall be confined to answering the argument of the defendant.”). Further, the defendant was not the only witness that could have rebutted the State’s evidence concerning the voluntariness of his audiotaped statement. Detective Brunet and Captain Wolfe were present during the entire interview with the defendant. Indeed, the defense thoroughly cross-examined Detective Brunet concerning whether or not the defendant’s statement was given in exchange for the release of his wife. In regard to the argument that the defendant or his accomplice had some legitimate claim to items in the victim’s house, the defense cross-examined the victim concerning whether or not her grandson had drugs or money in her house. See State v. Steele, 2001-1414, pp. 11-14 (La.App. 5th Cir.9/30/02), 829 So.2d 541, 549-50, writ denied, 2002-2992 (La.9/19/03), 853 So.2d 632 (“The remarks by the prosecutor in closing were not made to suggest that the defendant failed to testify at trial but to counter the defense suggestion that the shooting was in self-defense .... Moreover, a |9review of the full text of the argument indicates that the intent of the prosecutor was to inform the jury of ‘the lack of evidence’ to support defendant’s position.... Stated another way, the prosecutor’s argument illustrated for the jury that its case was unrebutted. Such an argument is permissible within the parameters of [La.C.Cr.P.] art. 774.”).

This assignment of error is without merit.

REVIEW FOR ERROR

Initially, we note that our review for error is pursuant to La. C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.C.Cr.P. art. 920(2).

The sentencing minutes in this case indicate the trial court sentenced the defendant to twenty-two years at hard labor “enhanced by 3 years for the fact that the victim was over 65.” At sentencing, the State advised the trial court, “[the defendant] went to trial on a charge of aggravated burglary against a person over the age of sixty-five and he was found guilty of that matter.” At the hearing on the motion to reconsider sentence, defense counsel set forth the defendant had been sentenced under La. R.S. 14:60 and La. R.S. 14:50.2.

The court in its discretion may sentence, in addition to any other penalty provided by law, any person who is convicted of a crime of violence or an attempt to commit any of the crimes as defined in R.S. 14:2(B) with the exception of first degree murder (R.S. 14:30), second degree murder (R.S. 14:30.1), aggravated assault (R.S. 14:37), aggravated rape (R.S. 14:42) and aggravated kidnapping (R.S. 14:44), to an additional three years’ imprisonment when the victim of such crime is sixty-five years of age or older at the time the crime is committed. La. | iqR.S. 14:50.2. Aggravated burglary is a crime of violence as defined in La. R.S. 14:2(B). See La. R.S. 14:2(B)(20).

Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999). Additional elements of an offense must be charged in the indictment, submitted to a jury, and proven by the government beyond a reasonable doubt. Jones, 526 U.S. at 232, 119 S.Ct. at 1219. The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004); State v. Hardeman, 2004-0760, p. 10 (La.App. 1st Cir.2/18/05), 906 So.2d 616, 626.

The sentence imposed under La. R.S. 14:50.2 in this matter was unsupported by facts reflected in the jury verdict or admitted by the defendant. The bill of information originally charged the defendant with burglary of the victim’s residence and set forth the victim was over the age of sixty-five. The original bill also included citation to both La. R.S. 14:60 and La. R.S. 14:50.2. The State, however, amended the bill prior to trial to delete reference to the victim’s age and to La. R.S. 14:50.2. Further, the court did not charge the jury on La. R.S. 14:50.2 and the responsive verdicts submitted to the jury for consideration did not reference the age of the victim. Additionally, contrary to the position of the State at sentencing, the jury returned a verdict of “Guilty of aggravated [b]urglary[,]” and made no finding on whether or not the victim was sixty-five years of age or older at the time the crime was committed.

|„We are aware of State v. Armour, 2003-1882 (La.App. 4th Cir.4/28/04), 874 So.2d 304, wherein the court affirmed a sentence of eighteen years at hard labor under La. R.S. 14:65.1(B) (purse snatching) enhanced under La. R.S. 15:529.1(A)(l)(a) (second-felony habitual offender), which “expressly included” an additional sentence of three years under La. R.S. 14:50.2. Armour, however, was rendered prior to Blakely, which we find controlling in this case. Accordingly, the enhanced sentence of three years imposed under La. R.S. 14:50.2 is hereby vacated.

CONVICTION AFFIRMED; SENTENCE IMPOSED UNDER LA. R.S. 14:60 AFFIRMED; SENTENCE IMPOSED UNDER LA. R.S. 14:50.2 VACATED.

      . The amended bill charged "burglary,” in violation of La. R.S. 14:60 (aggravated burglary). The defendant was arraigned on aggravated burglary.

      . Dennis Len Livings was also charged by the same bill of information with the same offense. He was not tried with the defendant.

      . The victim testified her grandson’s name is Michael Crawford.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).