author: /s/ Justice, Supreme Court of Louisiana

text:
    In re Cory Scott MORTON.
    No. 2014-B-1349.
    Supreme Court of Louisiana.
    June 23, 2014.
   ORDER

Considering the Petition for Interim Suspension filed by the Office Of Disciplinary Counsel, and the representation by the Chief Disciplinary Counsel that respondent has agreed to the entry of an order of interim suspension,

IT IS ORDERED that Cory Scott Morton, Louisiana Bar Roll number 28474, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ Justice, Supreme Court of Louisiana


source: Caselaw Access Project

license: Public Domain

text:
    In re CONFIDENTIAL PARTY.
    No. 2013-B-2273.
    Supreme Court of Louisiana.
    June 30, 2014.
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

FOR THE COURT:

/s/ Justice, Supreme Court of Louisiana


text:
    In re Frank V. ZACCARIA, Jr.
    No. 2014-OB-1237.
    Supreme Court of Louisiana.
    June 30, 2014.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Frank V. Zacea-ría, Jr., Louisiana Bar Roll number 13772, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Justice, Supreme Court of Louisiana


text:
    In re Ronald Augustin ROSSITTO.
    No. 2014-B-1273.
    Supreme Court of Louisiana.
    July 1, 2014.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Ronald Augustin Rossitto, and the Office of Disciplinary Counsel,

IT IS ORDERED that Ronald Augustin Rossitto, Louisiana Bar Roll number 11479, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Justice, Supreme Court of Louisiana


text:
    Heirs of Lydia BERGERON, Wife of/ and Sidney J. Simoneaux Family Land Partnership, a Limited Partnership v. B-P AMOCO, et al.
    No. 2014-C-0600.
    Supreme Court of Louisiana.
    May 16, 2014.
   In re Chevron U.S.A. Holdings Inc.; Ram Energy L.L.C.; Texaco Exploration and Production Inc.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, Nos. 99-19530, 99-19530; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0760.

Denied.

VICTORY, J., would grant.


text:
    Ex rel. James CAMPER v. STATE of Louisiana.
    No. 2013-KH-2477.
    Supreme Court of Louisiana.
    May 30, 2014.
   In re Camper, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 464-432; to the Court of Appeal, Fourth Circuit, No. 2013-K-1227.

Denied.


text:
    WAL-MART ASSOCIATES, INC. v. Glenda WOODEN. Marion H. Sims v. Key Energy Services, Inc. Brian Gagnon v. Jay Mallard Ford.
    No. 2014-CC-0371.
    Supreme Court of Louisiana.
    June 13, 2014.
   In re Key Energy Services Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs Office of Worker’s Compensation District IE, Nos. 11-08462 C/W 12-02019, 12-02028; to the Court of Appeal, Second Circuit, Nos. 47,998-WCW, 48,051-WCW, 48,437-WCA.

Granted. The judgment of the Office of Workers’ Compensation is vacated. The case is remanded to the Office of Workers’ Compensation for reconsideration in light of Church Mutual Co. v. Dardar, 13-2351 (La.5/7/14), 145 So.3d 271, 2014 WL 1800067, and Cook v. Family Care Ser vices, Inc., 18-2326 (La.5/7/14), 144 So.3d 969, 2014 WL 1800038.


author: ROLAND L. BELSOME, Judge. LOVE, J.,

text:
    STATE of Louisiana v. Eric ROSS.
    No. 2011-KA-1668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Kevin V. Boshea, Kevin V. Boshea, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

1 ]By a grand jury indictment, the appellant, Eric Ross, was charged with second degree murder. He entered a not guilty plea and filed a motion to suppress identification. The district court denied the motion to suppress the identification. Following a trial, the appellant was found guilty as.charged by a unanimous jury. Subsequently, the district.court denied the motions for new trial and for post-verdict judgment of acquittal. After waiving delays, the district court sentenced appellant to serve life imprisonment at hard labor without benefits, to run concurrently. His motion for appeal was granted. A motion to reconsider sentence was denied.

On appeal the appellant raises several assignments of error.. In the first and most compelling of those assignments the appellant argues that the trial court erred in permitting the state to introduce Conrad Jackson’s grand jury testimony for purposes of impeaching him.

The appellant was found guilty of a homicide that occurred on October 6, 2008 near the intersection of L.B. Landry and Erie Streets in Algiers. The intersection is near the Fisher Housing Development. On that day, two victims were shot; one survived. The surviving victim would not cooperate with police. [¡/Tips received through Crimestoppers indicated that the SuWu gang was responsible for the shootings, and the appellant is a known member of the SuWu gang.

Conrad Jackson was the only eyewitness that came forward and identified appellant as one of the perpetrators. Mr. Jackson gave a recorded statement to Detective Anthony Pardo, and he also testifíéd before the grand jury detailing the incident and identifying the appellant. At the time that Mr. Jackson appeared in court for the appellant’s trial, he was incarcerated. He admitted to having charges pending against him and to having numerous prior drug convictions. Mr. Jackson then testified that on October 6, 2008, he was on his way to visit his niece in the Ficher Housing Development. From that point forward, Mr. Jackson became unresponsive except to deny seeing appellant shoot the deceased. When pressed by the prosecution, he admitted giving a statement to Detective Pardo; however, he stated that he was just saying whatever the detective wanted to hear. Further, Mr. Jackson also recalled viewing a six-person lineup shown to him by Detective Pardo, but he claimed that he chose appellant’s picture from the lineup simply because he knew appellant and not because he was one of the perpetrators of the homicide.

A portion of his recorded statement was then played for the jury; Mr. Jackson identified his voice on the recording. At that point, the proceedings were stopped, and the district court obtained counsel for Mr. Jackson. Although he attempted to invoke his Fifth Amendment right not to testify, the court ruled that he could not invoke the Fifth Amendment in advance of any potentially perjured testimony. The remainder of his recorded statement was then played for the jury.

13After the statement was played, Mr. Jackson pled the Fifth Amendment when he was asked whether he remembered giving the statement. ■ When asked whether he remembered speaking to Assistant District Attorney Margaret Parker, he was nonresponsive. Mr. Jackson was then declared a hostile witness at the request of the state. Thereafter, he refused to respond to any of the questions that were asked regarding his previous statements about witnessing the murder.

Mr. Jackson also claimed that he did not remember testifying before the grand jury. The prosecution urged the trial court'to allow a transcript of Mr. Jackson’s grand jury testimony to be produced to the jury. Over the objection of defense counsel, the trial court allowed the transcript of the grand jury testimony to be published for the jury. After the jury reviewed a transcript of his testimony, Mr. Jackson once again claimed not to remember telling the grand jury that the appellant shot the deceased or anything else regarding his grand jury testimony.

The transcript stated that on October 6, 2008, Jackson was headed to the Fisher Housing Development to visit his niece. He was driving his car on a street that runs along the side of the Development; the car in front of him pulled over to the right in front of a corner store. Two people jumped out of the car that pulled over and shot the deceased in front of the store. He personally knew one of the shooters, the appellant.

The issue before this Court is whether the trial court erred in allowing Conrad Jackson’s grand jury testimony to be admitted at trial. La. Const. Art. 5, § 34(A) mandates that the secrecy of grand jury proceedings be provided by law. La.C.Cr.P. art. 433 specifies who may be present during grand jury sessions, while La. C.Cr.P. art. 434 mandates that members of the grand jury, all other persons | ¿present at grand jury sessions, and all persons having confidential access to information concerning grand jury proceedings shall keep secret the testimony of grand jury witnesses, under penalty of contempt.

The four instances in which grand jury testimony may be disclosed under Article 434 are: (1) after the indictment, members of the grand jury and other persons present, may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court; (2) a court may direct disclosure of testimony given before the grand jury to show that a witness committed perjury in his testimony before the grand jury; (3) a witness may discuss his testimony with attorneys for the state and for the person under investigation or indicted, without court permission; and (4) the foreman of a grand jury that discovers a crime may have been committed in another parish after notification to his district attorney, shall make that discovery known to the attorney general, and the district attorney or attorney general may direct any relevant evidence and testimony to the district attorney of another parish. State v. Gutweiler, 2006-2596, p. 14 (La.4/8/08), 979 So.2d 469, 479. In addition to the mandates of La.C.Cr.P. art. 434, a trial court may act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein is favorable to the accused and material to guilt or punishment. State v. Trosclair, 443 So.2d 1098 (La.1983). Any party seeking the disclosure of grand jury testimony in any situation other than those allowed by |,⅞La.C.Cr.P. art. 434, is required to show a compelling necessity for the use of the materials. In re Grand Jury, 98-2277 (La.4/13/99), 737 So.2d 1,12.

In the instant case we are not presented with any of the four exceptions that permit the release of the grand jury testimony. The State informed the trial court that they sought to use the testimony to impeach the witness, but there was no specific request stated with particularity, nor was the transcript reviewed in camera by the trial court prior to its publication to the jury. The Supreme Court has said that the secrecy of the grand jury testimony is indispensible and the party seeking disclosure bears the burden of showing his case would be greatly prejudiced or an injustice done without the disclosure. State v. Higgins, 03-1980, p. 35 (La.4/1/05), 898 So.2d 1219, 1241 (citing State v. Tros-clair, supra). After such a showing is made, the decision to disclose the material is within the sound discretion of the trial court. Id. No such showing was made in this case, therefore the admission of Conrad Jackson’s grand jury testimony was an abuse of the trial court’s discretion.

Given that the grand jury testimony admitted by the trial court was from the only person to identify the appellant as the shooter, the gravity of the trial court’s error warrants a new trial. Accordingly, we vacate the appellant’s conviction and sentence and remand the matter for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons

|,1 respectfully dissent from the majority as it relates to the introduction of Conrad Jackson’s grand jury testimony.

“[T]he secrecy of grand jury proceedings is not absolute.” State v. Troselair, 443 So.2d 1098, 1102 (La.1983). “The Supreme Court has stated that ‘in some situations, justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings.’ ” Troselair, 443 So.2d at 1102, quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 at 219-20, 99 S.Ct. 1667 at 1673, 60 L.Ed.2d 156 (1979). A showing of “compelling necessity” is required to disclose grand jury testimony during a trial. Trosclair, 443 So.2d at 1103. “That is, the party seeking disclosure must prove that without access to the grand jury materials the party’s case would be greatly prejudiced’ or that an injustice would be done.’ ” Troselair, 443 So.2d at 1103, quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). “In any event, disclosure is left to the sound discretion of the trial court and will not be reversed in the absence of an abuse of that discretion.” Troselair, 443 So.2d at 1103.

When Mr. Jackson, the State’s eyewitness to the murder, took the stand, he informed the prosecutor that his questions were “irrelevant.” After being | instructed by the trial court judge that he had to answer the questions for the record, Mr. Jackson testified that he “didn’t observe nothing” and told Detective Pardo “whatever he wanted to hear.” However, Mr. Jackson could not recall what he told Detective Pardo during his interview. After repeatedly stating that he “didn’t see that guy shoot nobody,” a portion of Mr. Jackson’s recorded audio statement was played for the jury and Mr. Jackson identified his voice on the audio recording.

The trial court judge then dismissed the jury and obtained private counsel for Mr. Jackson. Mr. Jackson’s counsel stated that Mr. Jackson did not wish to testify any further. The trial court judge stated:

The Court finds there is no Fifth Amendment privilege at this point, that the State has argued, and the Court agrees, that you cannot prospectively or in advance of any potentially perjurious testimony invoke the Fifth Amendment right.
So the Fifth Amendment does not apply to this situation, and the State is allowed to both play the audio tape and/or present other evidence to Mr. Jackson concerning his alleged statements to N.O.P.D. after this alleged homicide.
And I need to put on the record, too, I know Mr. Jackson testified before the grand jury. That is proper impeachment should he fail to acknowledge that he testified before the grand jury.
I mean, the issue at that point is Mr. Jackson, from what he’s testified to here now, has said that he never spoke to Detective Pardo and Detective Pardo must have misheard him. And the fact is that if he testified essentially the same in the grand jury without that influence, I think it is a proper admissible document.

Following these statements, the jury reentered and the remainder of Mr. Jackson’s recorded audio statement to Detective Pardo was played for impeachment purposes. Upon examination by the State regarding the contents of the audio tape, Mr. Jackson stated, “I plead the Fifth. I ain’t testifying.” Mr. Jackson then ^testified, “[y]ou can do perjury or whatever. I didn’t see that man shoot nobody.” After several inaudible responses, Mr. Jackson informed the trial court that he was not going to answer any more questions.

The State then asked Mr. Jackson about his statements to an assistant district attorney; however, he gave inaudible responses and attempted to improperly “plead the Fifth.” After numerous responses including: “I plead the Fifth,” “I’m not going to answer no more of his questions,” “I didn’t see that dude shoot nobody,” and “give me perjury,” the trial court judge informed Mr. Jackson that he was “going to have to answer the questions.” Mr. Jackson then refused to answer questions regarding a beating, which required hospital attention, within the two months prior to testifying at trial.

Finally, the State asked Mr. Jackson: “Do you remember testifying before the Orleans Parish grand jury in this matter?” Mr. Jackson replied, after several nonverbal responses: “I don’t know what he talking about.” At this point, the trial court judge permitted Mr. Jackson’s statement to the grand jury to be read by the trial jury. When questioned about his statements to the grand jury, Mr: Jackson repeatedly testified that he did not “recall” anything.

Mr. Jackson’s brief testimony before the grand jury was introduced only as a last resort by a trial court judge dealing with an extremely hostile witness who attempted to plead the Fifth, refused to answer any questions, and demanded a perjury charge. Mr. Jackson’s repeated refusal to cooperate with the trial court judge’s instructions presented a compelling necessity for the release of the grand jury testimony. As the State’s eyewitness, the case would have been greatly prejudiced. Accordingly, I do not find that the trial court abused its discretion when it permitted Mr. Jackson’s sacrosanct grand jury testimony to be utilized as an impeachment tool when he refused to admit that he testified before the grand jury.

1¿Furthermore, the introduction of Mr. Jackson’s grand jury testimony also constitutes a harmless error due to the impeachment testimony provided by Detective Prado, the assistant district attorney, and Mr. Jackson’s previously recorded statement. Therefore, I would affirm the conviction and sentence of the trial court.

      . In State v. Terrebonne, 256 La. 385, 236 So.2d 773 (La. 1970), the court held that the exception in La.C.Cr.P. art. 434 allowing the use of grand jury testimony to show that a witness committed peijury applies to situations where the witness is actually being prosecuted for the crime of peijury.

      . Detective Pardo spoke with Mr. Jackson after being contacted by the Sheriffs Office and informed that Mr. Jackson might be a possible witness to the murder. Detective Pardo and Mr. Jackson's conversation was recorded on audio tape.


author: PETTIGREW, J. McCLENDON, J.,

text:
    Robert PECK, Jr. and Misty B. Peck v. RICHMAR CONSTRUCTION, INC.
    No. 2013 CA 1170.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 26, 2014.
    Rehearing Denied March 20, 2014.
    Eddie Lambert, Gonzales, LA, for Plaintiffs-Appellees, Robert Peck, Jr. and Misty Peck.
    Nancy A. Richeaux, Steven K. Schilling, Sharon B. Kyle, Baton Rouge, LA, for Defendant-Third Party Plaintiff-Appellant, Richmar Construction Inc.
    Jeffrey J. Siemann, Elton F. Duncan, III, New Orleans, LA, for Third Party Defendants-Appellees, Glynn Construction Group, LLC and Navigators Specialty Insurance Group.
    Jeffrey G. LaGarde, Kenneth J. De-roche, Jr., Stephen N. Elliott, Metairie, LA, for Third Party Defendants-Appellees Boudreaux Contractors, LLC and Catlin Specialty Insurance Company.

      George B. Hall, Jr., Katie Whitman Myers, New Orleans, LA, for Third Party Defendant-Appellee, American Empire Surplus Lines Insurance Company.
    Before: PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

|sThis suit was filed by homeowners Robert Peck, Jr. and Misty B. Peck against general contractor Richmar Construction, Inc. (Richmar) for alleged defects in the slab and foundation of their home under the New Home Warranty Act, La. R.S. 9:8141 et seq. Richmar filed a third party demand against two of its subcontractors, together with their respective insurers. The trial court granted a peremptory exception raising the objection of peremption, finding that the claims against the third party defendants are perempted pursuant to La. R.S. 9:2772. Richmar has appealed the grant of the peremptory exception and the trial court’s dismissal of the third party claims. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In July 2006, Robert Peek, Jr. and Misty B. Peck (hereinafter collectively referred to as the Pecks) contracted with Richmar for the construction of their new home in Ascension Parish. Richmar completed the home on or about April 4, 2007, on which date a certificate of occupancy was issued for the Pecks’ new home. Sometime thereafter, the Pecks noticed that the home’s slab was allegedly uneven, causing damage to the foundation systems and footing, wall and partitions, flooring systems, columns, lintels, girders, beams, and roof. On April 3, 2012, the Pecks filed suit against Richmar under the New Home Warranty Act, alleging defects in the home’s construction. On May 4, 2012, LRichmar was served with the Pecks’ petition. On July 12, 2012, within ninety days of service, Richmar answered the Pecks’ lawsuit and filed a third party demand against two subcontractors that performed work relative to the foundation and framing of the home, namely, Glynn Construction Group, LLC (Glynn Construction) and Boudreaux Contractors, LLC (Boudreaux Contractors). Navigators Specialty Insurance Group (Navigators) and American Empire Surplus Lines Insurance Company (American Empire), the liability insurers of Glynn Construction, as well as Catlin Specialty Insurance Company (Catlin), the liability insurer of Boudreaux Contractors, were also named by Richmar as third party defendants.

Glynn Construction and Navigators responded to the third party demand by filing a peremptory exception raising the objection of peremption, which was subsequently joined and adopted by Boudreaux Contractors, Catlin, and American Empire. Specifically, the third party defendants alleged that Richmar’s claims against the subcontractors were perempted by La. R.S. 9:2772, which deals with actions to recover damages arising out of the survey, design, supervision, or construction of im-movables. Under the statute, there is a five-year peremptive period for claims for contribution or indemnity. La. R.S. 9:2772(A). The peremptive period begins to run on the date of recorded acceptance of work by the owner or, if no such acceptance is recorded, from the date of occupancy by the owner. La. R.S. 9:2772(A)(l)(a) and (b). The statute states that this peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person. La. R.S. 9:2772(B)(3). In support of the exception of peremption, the third party defendants argued that peremption began to run on April 4, 2007, the date the certificate of occupancy was issued. Pursuant to subparagraph (B)(3), the third party defendants further argued that the five-year peremptive period applies to all claims, including Richmar’s third party demand, and lapsed on April 4, 2012. Since Richmar’s third party demand was not filed until July 12, 2012, the third party defendants averred that the indemnity claims asserted by Riehmar were perempt-ed. Richmar opposed the exceptions, arguing that the general provision of La. C.C.P. art. 1067 affords a grace ] ¿period for incidental demands filed within ninety days of service of the main demand and applies to claims filed under La. R.S. 9:2772.

The trial court considered the matter at a hearing on February 22, 2013. After hearing arguments, the trial court opined that La R.S. 9:2772 establishes a clear five-year peremptive period, which tolled on April 4, 2012. Pursuant to La, C.C. art. 3461, the trial court noted that a peremp-tive period cannot be interrupted or suspended. Thus, the trial court reasoned that the Pecks’ original suit against Rich-mar had no bearing on the third party claims against Glynn Construction, Bou-dreaux Contractors, and their insurers. As such, the trial court ruled that the claims against the subcontractors were perempted at the time the third party demand was filed on July 12, 2012. In granting the exception of peremption, the trial court specifically declined to apply La. C.C.P. art. 1067 to this suit under La. R.S. 9:2772. The trial court signed an original judgment on April 3, 2013, and an amended judgment on August 11, 2013, granting the third party defendants’ exception of peremption and dismissing with prejudice the claims against those parties. Richmar has taken a devolutive appeal from that judgment.

STANDARD OF REVIEW

The timeline of relevant events as outlined herein is not in dispute. The doctrine of manifest error, therefore, does not apply to this court’s review of the trial court’s decision. Ristroph v. La. Pub. Facilities Autk, 2006-1669, p. 5 (La.App. 1 Cir. 9/14/06), 943 So.2d 492, 494. Rather, this case involves the legal question of whether the trial court erred in finding that La. C.C.P. art. 1067 does not apply to claims arising under La. R.S. | fi9:2772. Legal questions are reviewed utilizing the de novo standard of review. Cleco Evangeline, LLC v. La. Tax Comm’n, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353; Cange-losi v. Allstate Ins. Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375. Accordingly, we will conduct a de novo review of the record to determine if the trial court was legally correct in granting the third party defendants’ exception raising the objection of peremption.

CONTROLLING LAW

This suit involves application of La. R.S. 9:2772 to claims arising under the New Home Warranty Act, La. R.S. 9:3141 et seq. At the time the underlying lawsuit and the third party demand were filed, La. R.S. 9:2772 provided, in pertinent part:

A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9):
(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner, (b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.
B. (1) The causes which are perempted within the time described above include any action:
(a) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in R.S. 37:682, including but not limited to those preparatory to construction or in the design, planning, inspection, or observation of construction, or in the construction of any improvement to immovable property, including but not limited to any services provided by a residential building contractor as defined in R.S. 37:2150.1(9).
Ji- • • •
(3) This peremptive period shall extend to every demand, whether brought by direct action or for contri-button or indemnity or by third-party practice, and whether brought by the owner or by any other person.

(Emphasis added.) Pursuant to Acts 2012, No. 762, § 1, effective August 1, 2012, the legislature has subsequently amended the statute. Act No. 762 added subparagraph (A)(1)(c), which now provides:

If, within ninety days of the expiration of the five-year peremptive period described in Subparagraph (a) of this Paragraph, a claim is brought against any person or entity included within the provisions of this Subsection, then such person or entity shall have ninety days from the date of service of the main demand or, in the case of a third-party defendant, within ninety days from service of process of the third party demand, to file a claim for contribution, indemnity or a third-party claim against any other party.

The amendment mirrors the language of La. C.C.P. art. 1067 and provides a ninety-day grace period for the filing of claims for indemnity or contribution.

Given the recent statutory amendment, the question that arises herein is whether the version of La. R.S. 9:2772 in effect prior to August 2012, should be read in conjunction with La. C.C.P. art. 1067. If not, the question then becomes whether a claim for contribution or indemnity can be perempted before the cause of action arises.

DISCUSSION AND ANALYSIS

On appeal, Richmar argues that the trial court erred in refusing to apply La. C.C.P. art. 1067 to claims arising under La. R.S. 9:2772. Citing La. C.C. art. 13, Richmar asserts that both La. C.C.P. art. 1067 and La. R.S. 9:2772 deal with peremption and should be read in conjunction with each other. In effect, Richmar avers that La. C.C.P. art. 1067 was intended as an exemption to other statutory provisions, such as the five-year peremptive period of La. R.S. 9:2772. Where two statutes deal with the same subject matter, Richmar submits that they should be harmonized whenever possible and not be read in mutual exclusivity.

lain support of this argument, Richmar points out that La, R.S. 9:2772 was amended by Acts 2012, No. 762, § 1, effective August 1, 2012. Insofar as La. R.S. 9:2772(A)(l)(c) now incorporates the same grace period for the filing of incidental demands as contained in La. C.C.P. art. 1067, Richmar argues that it was always the intent: of the legislature for the two statutes to be read in conjunction with one another. The most recent amendment to La. R.S. 9:2772, Richmar submits, was merely a statement of clarification by the legislature.

Considering Richmar’s arguments, we turn to the rules on statutory construction. The general rule is that a specific statute controls over a broader, more general statute. Burge v. State, 2010-2229, p, 5 (La.2/11/11), 54 So.3d 1110, 1113. It is a fundamental rule that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. State v. Campbell, 2003-3035, p. 8 (La.7/6/04), 877 So.2d 112, 118. Also, there is a presumption that those who enact statutory provisions act deliberately and with full knowledge of existing laws on the same subject, with knowledge of the effect of their act and a purpose in view. Toomy v. La. State Employees’ Retirement Sys., 2010-1072, p. 5 (La.App. 1 Cir. 3/25/11), 68 So.Sd 198, 202.

Louisiana R.S. 9:2772 specifically provides a peremptive period for actions involving deficiencies in the survey, design, supervision, or construction of immovables or improvements thereon. Subparagraph (B)(3) expressly provides that the five-year peremptive period shall extend to “every demand, whether brought by direct action or for contribution or indemnity or by third-party practice.” Louisiana C.C.P. art. 1067, by contrast, is a generalized statute intended to apply to incidental demands not otherwise specifically addressed under the Code of Civil Procedure or Louisiana Revised Statutes. There is no statement in La. R.S. 9:2772, as effective prior to August 1, 2012, that the legislature intended to incorporate the provisions of La. C.C.P. art. 1067.

Indeed, if La. C.C.P. art. 1067 already applied to claims brought under La. R.S. 9:2772, there would have been no need for the amendment of the statute to add l9subparagraph (A)(1)(c). A review of the legislative history of Act 2012, No. 762, negates Richmar’s contention that the 2012 statutory enactment of La. R.S. 9:2772(A)(l)(c) was a mere remedial measure intended to clarify or interpret the existing law. The Resume Digest for Senate Bill 258, which was subsequently signed by the Governor and became Act 2012, No. 762, states, in relevant part, as fallows:

Prior law provided that a five-year per-emptive period extends to every demand arising under the prior law, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.
New law adds an exception that if, within 90 days of the five-year peremp-tive period, a claim is brought against any person or entity included in the prior law, then that person or entity has 90 days from date of service of the main demand, or in the case of a third-party defendant, 90 days from service of the third-party demand, to file a claim for contribution, indemnity or a third-party claim against any other party.

(Emphasis added.) Resume Digest, S.B. 258, 2012 Reg. Sess. (La. 2012). The stated intent of the amendment was to add an exception so as to allow a person sued within the peremptive period an extra ninety days to assert a third party demand against any other party. In that context, it is clear that the legislature set out to change the law so as to create a new exception to the five-year peremptive period under La. R.S, 9:2772.

Applying the well-established rules of statutory construction in this case involving claims for the defective construction of a home, we find that La. R.S. 9:2772 controls over the more generalized rule provided in La. C.C.P, art. 1067. We find no error in the trial court’s determination that C.C.P. art. 1067 does not apply to the third party indemnity claims asserted by Rich-mar. Turning then to the statutory mandates of La. R.S. 9:277.2, It is clear that the five-year peremptive period began to run on April 4, 2007, upon issuance of a certificate of occupancy to the Pecks. The Pecks filed suit against Richmar on April 3, 2012, one day before the peremptive period expired. Richmar did not, however, file its third party demand against Glynn Construction, Boudreaux Contractors, and their respective liability insurers until July 12, 2012, well after the lapse of the peremptive period. The question then becomes whether the timely filing of suit against Richmar had any effect on the toll of peremption as to the third party defendants or whether the third party demand is time barred under La. R.S. 9:2772,

| inThe Louisiana Supreme Court recently considered exactly this issue in the case of Ebinger v. Venus Constr. Corp., 2010-2516 (La.7/1/11), 65 So.3d 1279. In Ebinger, the homeowners contracted with Venus Construction Corporation in 1995, to build their new home. Construction was completed, and the plaintiffs moved into their residence in 1997, obtaining a certificate of occupancy on April 22, 1997. On October 9, 2003, the homeowners brought an action against Venus under the New Home Warranty Act, alleging that defects in the home’s foundation had caused cracks in the drywall, tile, brick walls, and floor. On September 22, 2006, Venus filed a third party demand seeking indemnification from Post-Tension Slabs, the subcontractor that supplied the foundation. Post-Tension filed an exception of prescription based on La. R.S. 9:2772, which was granted by the trial court. On appeal/the Third Circuit reversed, reasoning that La. R.S. 9:2772(B)(3) states that the peremp-tive period shall apply to every demand, whether brought by direct action or for contribution or indemnity. The court of appeal found that the peremptive period began to toll upon issuance of the certifí-cate of occupancy and that the claim for indemnity against Post-Tension became a vested right at that time. Therefore, the court of appeal concluded that the ten-year peremptive period contained in the 1997 version of La, R.S. 9:2772 applied, and because Venus’s claim against Post-Tension was filed nine years after the peremp-tive period began, it was not perempted.

The Louisiana Supreme Court granted certiorari in Ebinger to review the correctness of the appellate court’s decision. Upon review, the Court determined that the peremptive period commenced upon the issuance of a certificate of occupancy on April 22, 1997. Ebinger, 2010-2516 at 5, 65 So.3d at 1284. Applying the 2003 version of La. |nR.S. 9:2772, which adopted a five-year peremptive period, the Court then turned to the issue of whether Venus’s right to indemnity vested before that amendment became effective. Venus argued that the right to indemnity against Post-Tension vested as soon as the alleged damage manifested itself and, therefore, that the 2003 amendment disturbed its vested indemnification right. The Court, however, rejected this argument. The Court distinguished between prescription and peremption, explaining that peremption is unique in two respects: (1) the expiration of the peremptive time period destroys the cause of action itself; and (2) nothing may interfere with the running of a peremptive time period. Ebinger, 2010-2516 at 9, 65 So.3d at 1286, citing Naghi v. Brener, 2008-2527 (La.6/26/09), 17 So.3d 919, 926. In addition, the Court noted the difference between the commencement of peremption and the accrual of a cause of action. Id. The Court explained that liability on a third party demand is contingent upon the result of the main demand and, therefore, Venus’s indemnification right was conditional and incomplete when the homeowners filed the main demand. Ebinger, 2010-2516 at 10-12, 65 So.3d at 1287-1288. For those reasons, the Court concluded that Venus’s right to indemnification was not vested when the 2003 amendment to La. R.S. 9:2772 became effective. Therefore, the Court held that the five-year peremptive period applied in that matter and that Venus’s third party demand against Post-Tension was per-empted before its cause of action arose. Ebinger, 2010-2516 at 13, 65 So.3d at 1288.

Following the Louisiana Supreme Court’s decision in Ebinger, we are left with a unique situation where a claim for indemnity may be perempted before the cause of action arises. This is the scenario we have in the case at hand. The parties ail agree that the five-year peremptive period began to run on April 4, 2007, upon the issuance of a certificate of occupancy. The Pecks filed suit against Richmar on April 3, 2012, one day |12before the per-emptive period expired. Richmar did not file the third party demand against Glynn Construction, Boudreaux Contractors, and their various insurers until July 12, 2012, some three months after the peremptive period expired, We are mindful that Rich-mar could not have sought indemnity until it was served with suit on May 4, 2012, which occurred after the peremptive period had already lapsed. However, La. C.C. art. 3461 is clear that peremption may not be interrupted or suspended, and the net effect under Ebinger is that peremption tolls regardless of when a cause of action for indemnity arises. In light of Ebinger, we are constrained to hold that Richmar’s third party demand was perempted.

In reaching this conclusion, we caution that our holding is limited to the narrow facts of this case and the timeline of relevant events herein, all of which transpired prior to the amendment of La. R.S. 9:2772, effective August 1, 2012. It appears that the legislature’s addition of La. R.S. 9:2772(A)(l)(c) was intended to avoid the result reached in Ebinger in cases which arise in the future. Louisiana Revised Statute 9:2772(A)(l)(c) now affords a defendant a period of ninety days from service of process to file a claim for contribution or indemnity. However, the amended version of the statute does not apply herein, and it is incumbent upon us to follow the Louisiana Supreme Court’s decision in Ebinger v. Venus Constr. Corp., 65 So.3d 1279.

| ^CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court, which granted the third party defendants exception of peremption and dismissed Richmar Construction, Inc.’s third party demand against Glynn Construction, LLC, Navigators Specialty Insurance Company, American Empire Surplus Lines Insurance Company, Boudreaux Contractors, LLC, and Catlin Specialty Insurance Company with prejudice. Costs of this appeal are assessed against the appellant, Richmar Construction, Inc.

AFFIRMED.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissents with reasons.

|,I disagree with the majority’s analysis regarding statutory construction and, specifically, the majority’s failure to harmonize LSA-C.C.P. art. 1067 and LSA-R.S. 9:2772. See LSA-C.C. art. IB.

In applying the general rules of statutory construction, the meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the law and will carry out the intention of the lawmaker. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (LaApp. 1 Cir.1984).

In this matter, LSA-R.S. 9:2772 provides a five-year peremptive period for claims arising out of the construction, design, or building of immovable property, |2and LSA-R.S. 9:2772B(3) provided that “[t]his peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice.” This statute, however, must be read in conjunction with LSA-C.C.P. art. 1067, which provides:

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

Our supreme court has recognizéd Article 1067 as an exemption statute. Reggio v. E.T.I, 07-1433 (La.12/12/08), 15 So.3d 951, 956. Although Reggio involved the issue of prescription, Article 1067 specifically lists both prescription and peremption. Therefore, Article 1067, as an exemption, permits additional opportunities for filing incidental demands on which prescription or peremption would normally have run, if filed within 90 days of the filing of the main demand and assuming that the main demand was timely filed.

The fourth circuit has recognized the exemption of Article 1067 to claims arising under LSA-R.S. 9:2772 in Metairie III v. Roche’ Const, Inc., 10-0353 (LaApp. 4 Cir. 9/29/10), 49 So.3d 446, writ denied, 10-2436 (La.9/16/11), 69 So.3d 1138, and Klein v. Allen, 470 So.2d 224 (LaApp. 4 Cir. 1985). In the Klein case, the court stated:

FNBC’s third party demand against Jones was filed on April 8, 1982, the last possible day on which a claim could be asserted under R.S. 9:2772(C). Jones’ third party demand against Nolan was filed on June 30, 1982, within ninety days of FNBC’s demand. C.C.P. Art. 1067 provides:
Is An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.
Under this article Jones’ claim against Nolan was timely; it was not barred at the time FNBC’s demand on Jones was made because of R.S. 9:2772(C), and it was filed within ninety days of service of FNBC’s demand. The trial judge erred when he dismissed this claim.

Klein, 470 So.2d at 226.

Similarly, in Metairie III, after finding the current five-year peremptive period in LSA-R.S. 9:2772 applicable, the court stated:

Under La.Code Civ. Proc. art. 1067, “[a]n incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of the main demand or in the case of a third party defendant ninety days from service of the third party demand.” Metairie Ill’s main demand was filed on March 21, 2006, and the peremptive period in this matter for all claims related to the construction project were perempted under the five-year periods on April 2, 2006. Poche Construction was served with Metairie Ill’s main demand on April 11, 2006. Under La.Code Civ. Proc. art. 1067, Poche Construction had ninety days from April 11, 2006 to file their claim against Labiche Plumbing, but failed to do so within this time period. Poche Construction’s third party demand, filed on September 28, 2007, is therefore clearly perempted on its face, and appellant has not met its burden of showing that their action has not been perempted.

Metairie III, 49 So.3d at 454.

In the case sub judice, the certificate of occupancy was issued on April 4, 2007. The Pecks filed their lawsuit against Rich-mar Construction, Inc. on April 3, 2012, and Richmar was served with the petition on May 4, 2012. Therefore, Richmar’s third-party demands, filed on July 9, 2012, within the 90-day period of Article 1067, were timely.

Accordingly, I disagree with the majority’s conclusion that Article 1067 does not apply to the facts of this case. Because Article 1067 provides an exemption to per-emption and because Richmar timely filed its third-party Rdemands within 90 days of service of the main demand, the trial court erred in failing to apply Article 1067 and incorrectly granted the third-party defendants’ exceptions of peremption.

Therefore, I respectfully dissent.

      . The New Home Warranty Act, La. R.S. 9:3141 et seq., provides warranties for the occupants and purchasers of new homes in Louisiana. Louisiana Revised Statute 9:3144 sets forth specific warranty periods, as follows:
      A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
      (1)One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards,
      (2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
      (3) Five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

      .Louisiana Code of Civil Procedure Article 1067 states:
      An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

      . Louisiana Civil Code Article 3461 provides that "[p]eremption may not be renounced, interrupted, or suspended.”

      . The original judgment lacked appropriate decretal language disposing of and/or dismissing the third party incidental demands. Following a rule to show cause by this court, an amended judgment which complies with La. C.C.P. arts.1911 and 1918 was issued by the trial court.

      . Louisiana Civil Code Article 13 provides that "[flaws on the same subject matter must be interpreted in reference to each other.”

      . Although the opinion in Ebinger states that Post-Tension filed an exception of prescription, we note that La. R.S. 9:2772 is a per-emptive statute. As more fully discussed herein, the Court in Ebinger recognized, and we agree, that there is a fundamental distinction between prescription and peremption.

      . In Ebinger, the Louisiana Supreme Court was faced with two statutory amendments which shortened the peremptive period prescribed by La. R.S. 9:2772. Prior to 1999, the statute provided a ten-year prescriptive period. Acts 1999, No. 1024, § 1 substituted "seven” for "ten” years in subsection (A)(1)(a). Subsequently, Acts 2003, No. 919, § 1 substituted "five” for "seven” years in subsection (A)(1)(a). Since the 1999 and 2003 statutory amendments became effective prior to the filing of suit in Ebinger, the Court had to consider which peremptive period applied. The applicable peremptive period is not an issue in this case, as it is clear under the law in effect subsequent to 2003 and undisputed amongst the parties herein that the applicable peremptive period is five years.

      . Richmar has attempted to distinguish. Ebinger on the grounds that Venus did not bring the incidental demand against Post-Tension within ninety days service of the main demand. Further, the main demand in that case was filed outside the five-year per-emptive period provided by La. R.S. 9:2772. Thus, Richmar argues that La. C.C.P. art. 1067 was inapplicable and was not considered by the Court in that instance. It is our belief, however, that Ebinger is on point as a direct statement of the law on peremption under La. R.S. 9:2772 prior to the enactment of subparagraph (A)(1)(c). Moreover, for the reasons set forth herein, even if the facts of Ebinger had been different and the incidental demand had been filed within ninety days of a timely main demand, we do not believe that La. C.C.P. art. 1067 would have been applicable.

      . We are mindful that there are two reported cases wherein the Louisiana Fourth Circuit Court of Appeal has applied La, C.C.P. art. 1067 to claims arising under La. R.S. 9:2772. See Klein v. Allen, 470 So.2d 224 (La.App. 4 Cir.1985); see also Metairie III v. Poche’ Cortstr., Inc., 2010-0353 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, writ denied, 2010-2436 (La.9/16/11), 69 So.3d 1138. We have thoroughly reviewed those cases. We, however, find that there is no authority given by the Fourth Circuit for application of La. C.C.P. art. 1067. Thus, we feel compelled to follow the decision of the Louisiana Supreme Court in Ebinger, 65 So.3d 1279.

      . The trial court ruled that the amendment to La. R.S. 9:2772, effective August 1, 2012, is inapplicable to Richmar’s claims, and Rich-mar has not raised that portion of the ruling as an issue or assignment of error in its original appellate brief. However, in a reply brief filed in response to the appellees’ briefs, Richmar argued for the first time that the 2012 amendment should be applied retroactively, as the change was merely interpretive and curative of existing law. As to this argument, we note that it is well recognized that procedural laws which also have the effect of making a change in the substantive law must be construed to operate prospectively only, unless there is a clear and unequivocal expression of intent by the legislature for such an extreme exercise of power. See La. C.C. art. 6; see also Chance v. Am. Honda Motor Co., Inc., 635 So.2d 177 (La. 1994) (held that amendment to La. C.C. art. 3492 which suspended running of prescription against permanently disabled minors in products liability actions applies to causes of action that arose prior to date of amendment for which the one-year prescriptive period had not yet accrued; however, retroactive application did not extend to revive previously time-barred causes of action, as change in right to plead exception of prescription constitutes a substantive change in the law); see also Succession of James, 2007-2509 (La.App. 1 Cir. 8/21/08), 994 So.2d 120, vmt denied, 2008-2302 (La. 12/12/08), 996 So.2d 1119 (held that former limitations statute providing that petition to establish filiation must be filed within 19 years of child's birth or one year of alleged father's death, whichever first occurred, rather than current limitations statutes providing that petition to establish filiation must be filed within one year of alleged father’s death for succession purposes, applied to filiation petition of 41-year old daughter whose alleged father died after current limitations statute became effective; legislature did not dearly and unequivocally express intent to have current limitations statute apply retroactively to revive filiation actions that had already been perempted before the effective date of the limitations change). In the instant case, the legislature made no indication that the 2012 amendment to La. R.S. 9:2772 would operate retroactively to resurrect claims already time barred by peremption. Given the legislature’s presumed knowledge of the Louisiana Supreme Court’s holding in Ebinger, 65 So.3d 1279, and in the absence of any statement of intent to apply the amendment retroactively, it is clear that the legislature intended La. R.S. 9:2772(A)(l)(c) to apply prospectively only.

      . Louisiana Civil Code Article 13 provides that ”[l]aws on the same subject matter must be interpreted in reference to each other.”

      . The legislature clearly could have provided an exemption only as to prescription, but chose to include both peremption and prescription.

      . As explained by Professor Frank Maraist in Chapter 7 of the Louisiana Civil Law Treatise, entitled "Incidental Actions,” 1 La. Civ. L. Treatise, Civil Procedure § 7.2 (2008):
      Article 1067 is useful for avoiding unnecessary lawsuits. When two claims arise out of the same occurrence, one person may decide not to pursue his or her claim as long as the other person also forgoes his or her claim. However, a claimant who would otherwise forgo his or her claim may not learn until after the claim has prescribed that the other party filed an "eleventh hour” suit asserting his or her claim. Faced with this prospect, such a claimant would be likely to file a protective suit. Article 1067 eliminates the dilemma that would prompt a protective, and sometimes unnecessary, suit by allowing the forebear-ing claimant a ninety-day grace period. The period has been described as an exemption period, and not an extension of prescription. [Footnotes omitted.]

      . I also do not find Ebinger v. Venus Constr. Corp., 10-2516 (La.7/1/11), 65 So.3d 1279, applicable to the matter before us. In Ebinger, unlike the present case, the main demand was filed outside the five-year preemptive period and the general contractor’s third-party demand was untimely under Article 1067. Because Article 1067 could not apply, the article was never mentioned or discussed in the analysis.


author: CRAIN, J.

text:
    STATE of Louisiana v. Ted Michael TOUPS.
    No. 2013 KA 1371.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 2014.

      Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District

      Attorney, J. Christopher Erny, Assistant District Attorney, Houma, Louisiana, Attorneys for Plaintiff/Appellee, State of Louisiana.
    Mary E. Roper, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Ted Michael Toups.
    Before: McCLENDON, WELCH, and CRAIN, JJ.
   CRAIN, J.

|2Ted Michael Toups was charged by an amended bill of information with simple burglary, a violation of Louisiana Revised Statute 14:62. He pled not guilty and, following a jury trial, was found guilty as charged. After denying motions for new trial and postverdict judgment of acquittal, the trial court sentenced the defendant to imprisonment for eleven years at hard labor. Toups filed a motion for reconsideration of sentence, which the trial court denied. The defendant now appeals based upon four assignments of error. We affirm the conviction and sentence.

FACTS

On August 21, 2010, Sergeants Jacob Fonseca and Mark Richards with the Ter-rebonne Parish Sheriffs Office were dispatched to Tidewater Marine near the In-tracoastal Canal in response to a call from Captain Gilbert Brasher with Tidewater Marine. While making rounds that morning, Captain Brasher noticed a shrimp boat tied to the stern of one of Tidewater Marine’s boats, the Jan Tide. Captain Brasher boarded the Jan Tide and found a pump on the deck that was connected to a hose leading to the Jan Tide’s fuel tank and another hose leading to the shrimp boat.

After arriving on the scene, Sergeants Fonseca and Richards boarded the shrimp boat and found the defendant asleep inside the boat’s cabin. After reading him his Miranda rights, the officers questioned Toups about the hoses and pump on the deck of the Jan Tide, and he admitted that he had pumped about 1,200 gallons of fuel from the Jan Tide into his shrimp boat. The defendant advised that he knew it was wrong to steal the fuel, but he believed the “oil company” would reimburse Tidewater for any missing fuel. Although the pump was not running when the officers arrived, they observed that the hoses that were connected to the |spump terminated in the rear fuel tank of the defendant’s boat and in the Jan Tide’s fuel tank. Based on their observations and the statements by Toups, the officers arrested him.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant argues that the evidence presented at his trial was insufficient to support the jury’s verdict finding him guilty of simple burglary. Specifically, while he admitted taking fuel from the Jan Tide, the defendant argues that the evidence was insufficient to prove that he committed a simple burglary because the State did not prove that he entered an enclosed area of the boat. In his related second assignment of error, the defendant argues that the trial court erred in denying his motions for new trial and postverdict judgment of acquittal because the evidence presented at trial did not support his conviction.

In reviewing claims challenging the sufficiency of the evidence, this court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Petitto, 12-1670 (La.App. 1 Cir. 4/26/13), 116 So.3d 761, 766, unit denied, 13-1183 (La.11/22/13), 126 So.3d 477; State v. Patomo, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144. When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, unit denied, 99-p8024 (La.10/29/99), 748 So.2d 1157, and writ denied sub nom, State ex rel. Wright v. State, 00-0895 (La.11/17/00), 773 So.2d 732. When analyzing circumstantial evidence, Louisiana Revised Statute 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. Petitto, 116 So.3d at 766; Patomo, 822 So.2d at 144. The facts then established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. WHght, 730 So.2d at 487.

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein. La. R.S. 14:62A. The defendant does not dispute that the evidence is sufficient to support a conviction for criminal trespass and felony theft if he had been charged with those crimes; however, he contends that the evidence is not sufficient to support a conviction for simple burglary because the State did not prove that he entered an enclosed space of the Jan Tide. Thus, Toups’ argument turns on whether one can “enter” a watercraft for purposes of the simple burglary statute without breaching an enclosed area designed for occupants, such as an engine room or wheelhouse.

Criminal statutes must be given “a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3. Moreover, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. State v. Odom, 07-0516 (La.App. 1 Cir. 7/31/08), 993 So.2d 663, 671 (per cu-riani). Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the | Sstatute. Odom, 993 So.2d at 671. In construing the applicable criminal statute, we consider two established rules of statutory construction: (1) all criminal statutes are construed strictly; and (2) the words of a statute must be given their everyday meaning. State v. Hinton, 08-1849 (La.App. 1 Cir. 2/13/09), 6 So.3d 242, 244, writ denied, 09-0821 (La.3/4/11), 58 So.3d 466.

The defendant asks this court to incorporate into the simple burglary statute a requirement that the unauthorized entry of a watercraft be made in an “enclosed space” in the watercraft. No such requirement appears in the statute, and this court will not craft one where the legislature has chosen not to do so. Contrary to defendant’s assertions about “common parlance,” nothing about the word “enter” necessarily connotes movement into an enclosed space. One can just as simply “enter” an open park or field as one can “enter” a house or building.

Alternatively, even if this court were to adopt the defendant’s proposed interpretation of Section 14:62A, which we do not, the evidence was sufficient to demonstrate that the defendant entered an “enclosed space” on the watercraft with an intent to commit a theft. The Jan Tide’s deck is completely encircled by a bulwark between four and five feet in height that encloses the deck where the pump and hoses were discovered. The Jan Tide had no gangplanks, ladders, or other apparatuses to invite passersby to come aboard. To reach the deck of the Jan Tide from the defendant’s boat, Sergeant Fonseca had to stand on the roof of the shrimp boat’s cabin and pull himself up and over the Jan Tide’s bulwark. Under these circumstances, the jury could have reasonably concluded that the evidence established that the defendant entered an “enclosed space” on the watercraft.

lfiWe also note that the jury’s verdict could be supported solely by a finding that defendant entered the fuel tank of the Jan Tide. In State v. Pierre, 320 So.2d 185,188 (La.1975), the Supreme Court held that Louisiana Revised Statute 14:62 does not require entry into part of a vehicle capable of or designed to accommodate a person. In that case, the Supreme Court upheld the defendant’s conviction for simple burglary where he raised the hood of a car and removed the battery "without ever entering the passenger compartment of the car. Pierre, 320 So.2d at 186. Although a car and a watercraft are different means of transportation, their differences are not so great that the logic of Pierre cannot be extended by analogy in this case. Therefore, the jury could have concluded that the defendant committed a simple burglary when he boarded the Jan Tide and breached its fuel tank by sticking a hose into the tank and pumping fuel from the tank into his boat’s tank.

Viewed in the light most favorable to the prosecution, the evidence presented at trial was sufficient to support the jury’s verdict that the defendant was guilty of simple burglary. The facts established that defendant entered upon the Jan Tide without permission, breached its fuel tank, and committed the theft of fuel. After a thorough review of the record, we cannot say that the jury’s determination of the defendant’s guilt was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207 (La.11/29/06) 946 So.2d 654, 662. Therefore, the trial court did not err in denying the defendant’s motions for new trial and postverdict judgment of acquittal. These assignments of error are without merit.

SPECIAL JURY INSTRUCTION

In his third assignment of error, the defendant asserts that the trial court erred in granting the State’s request for a special jury charge regarding the “entry” l7of the watercraft. The State requested the following jury instruction, which was analogized from the fact pattern in Pierre:

To constitute “entering of a watercraft” it is sufficient if entry into the watercraft is accomplished by accessing any part of the vessel or watercraft, and it is not necessary that there be entry into part of the vessel or watercraft that is capable of or designed to accommodate a person.-

Over the defendant’s objection, the trial court granted the State’s request for this instruction and read the instruction to the

jury-

Pursuant to Louisiana Code of Criminal Procedure article 807, the State and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. See La.Code Crim. Pro. art. 807.

In the instant case, the trial court did not abuse its discretion in allowing the State’s request for the special jury charge. The charge does not require any qualification, limitation, or explanation. Its language is clear and succinctly conveys that “entry” can be made into the watercraft in an area not capable of, or designed for, accommodating a person, which is consistent with the supreme court’s holding in Pierre, See Pierre, 320 So.2d at 188. The facts and circumstances of the present case are sufficiently similar to Pierre to permit the requested instruction. Thus, the charge was correct and pertinent. This assignment of error is without merit.

SENTENCE

In his final assignment of error, the defendant argues that his sentence of eleven years at hard labor is excessive. Specifically, he argues that the trial court failed to order a presentence investigation report (“PSI”) or to consider the 1 ¡^seriousness of the defendant’s crime, his past criminal history, his personal history, or his potential for rehabilitation.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sep-ulvado, 367 So.2d 762, 767 (La.1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (LaApp. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La.10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the- sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La.1992).

Louisiana Code of Criminal Procedure article 894.1 sets forth items that must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (LaApp. 1 Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness must consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (LaApp. 1 Cir.1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Landos, 419 So.2d 475, 478 (La.1982).

|9Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both. La. R.S. 14:62B. The defendant was sentenced to serve eleven years at hard labor, At the sentencing hearing, the trial court expressed its understanding that the prosecutor and defense attorney had agreed that if the defendant was sentenced to ten years at hard labor and agreed to give up his right to appeal his conviction and sentence, then the State would not file a bill of information charging the defendant as a second-felony habitual offender. Counsel confirmed this agreement on the record. However, the defendant waivered when the trial court asked him if he wanted to accept the proposal, so the State rescinded the offer. The trial court then imposed the eleven-year sentence.

The defendant filed a motion to reconsider sentence but did not assert in the motion that the trial court failed to follow the sentencing guidelines of Article 894.1 or that the trial court erred in failing to order a PSI. A party is precluded from urging on appeal any ground that was not raised in a motion to reconsider. See La. Code Crim. Pro. art 881.1E. Therefore, the defendant is only entitled to an excessiveness review in this appeal. On the record before us, we cannot say that the sentence is excessive. Although toward the upper end, it is within the sentencing range for the offense. Further, the defendant was offered a lesser sentence and the opportunity to avoid being multiple billed, but he refused that offer. Finally, although not explicitly detailed in the record, the defendant appears to have at least one prior felony conviction. The trial court was aware of this information as well as the facts of the instant case when it imposed the sentence-of eleven years at hard labor. Nothing in the record leads us to conclude that the trial | incourt abused its sentencing discretion. This final assignment of error is without merit.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

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

      . The absence of a requirement in Section 14:62A that the entry of the watercraft be in an enclosed area of the watercraft can be contrasted with the language of Louisiana Revised Statute 14:61 A, which prohibits the unauthorized entry of a critical infrastructure that is "completely enclosed by any type of physical barrier.” SeeLa.R.S. 14:61A.

      . We note with respect to the latter argument that there is no requirement that a PSI be conducted, and such an investigation is more in the nature of an aid to the court, and not a right of the accused. See La.Code Crim. Pro. art 875(A)(1); State v. Howard, 262 La. 270, 279, 263 So.2d 32, 35 (1972).


author: THERIOT, J. KUHN, J.,

text:
    Betty POPE, Individually and on Behalf of Ernest Pope, Sr., Donnie Byrd, James Larry Pope, Judy Williams, Nancy Buhler, and Glenda Lawrence v. Jonathan ROBERTS, MD, Kenneth Blue, MD, Harold Wexler, MD, and Our Lady of The Lake Regional Medical Center.
    No. 2013 CA 1407.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 2014.
    Rehearing Denied May 20, 2014.

      Lynn E. Williams, Jeffrey G. Rice, Baton Rouge, Louisiana, for Plaintiffs/Appellants Betty Pope, et al.
    Vance A. Gibbs, Daniel A. Reed, Baton Rouge, Louisiana, for Defendants/Appel-lees Kenneth M. Blue, Jr., M.D. and Harold D. Wexler, M.D.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

^Plaintiffs, the widow and surviving children of a deceased patient, appeal a judgment sustaining a declinatory exception raising the objection of insufficiency of service of process and dismissing their malpractice claims without prejudice pursuant to La. C.C.P. art. 1672(C). We vacate and set aside the preliminary default and confirmation of default judgments and affirm the judgment sustaining the declinatory exception and dismissing plaintiffs’ claims against the defendants, Drs. Kenneth Blue and Harold Wexler.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Betty Pope, Donnie Byrd, James Larry Pope, Judy Williams, Nancy Buhler, and Glenda Lawrence, the surviving spouse and children of Ernest Pope, Sr., filed a suit alleging medical malpractice against Our Lady of the Lake Regional Medical Center (“OLOL”) and Drs. Jonathan Roberts , Kenneth Blue, and Harold Wexler. Plaintiffs fax filed their petition on February 21, 2008, and requested that service on defendants be withheld. On June 6, 2008, OLOL filed a declinatory exception raising the objection of insufficiency of service of process due to the plaintiffs’ failure to request service on OLOL within ninety days of commencement of the action in accordance with La. C.C.P. art. 1201(C). OLOL obtained a dismissal of plaintiffs’ claims against OLOL without prejudice on August 16,-2008.

Plaintiffs did not request service on Drs. Blue and Wexler until February 22, 2011. The Sheriffs return shows personal service was made on both Dr. Blue and Dr. Wex-ler on March 1, 2011 at 8080 Bluebonnet Boulevard, Suite 3000, Baton Rouge, Louisiana. Plaintiffs took a |.^preliminary default against Drs. Blue and Wexler on June 15, 2011. Plaintiffs confirmed the preliminary default on the issue of liability on August 23, 2011, and the duty judge referred the matter to the originally-allotted judge for confirmation of the default judgment on damages. On February 17, 2012, the plaintiffs confirmed the default judgment and were awarded $350,000.00 in damages against Dr. Blue and $350,000.00 in damages against Dr. Wexler.

On March 6, 2012, Drs. Blue and Wexler filed a motion for new trial, a declinatory exception raising the objection of insufficiency of service of process, and a motion to dismiss the plaintiffs’ petition. The doctors allege that the Sheriff’s return was incorrect and that there was no personal service. Drs. Blue and Wexler offered their affidavits attesting that they retired from the practice of medicine on April 30, 2008 and December 31, 2009, respectively, and the address listed for service on March 1, 2011 on the Sheriffs return was Louisiana Urology, their former place of business. Both doctors attest that they were not present at Louisiana Urology on March 1, 2011 and were not personally served with the suit. After a hearing, the trial court sustained the declinatory exception and, finding that the default judgment was rendered in error, granted the motion to dismiss pursuant to La. C.C.P. art. 1672(C).

The plaintiffs filed a motion for new trial, alleging that since the dismissal of their claims, they have discovered that Drs..Blue and|4Wexler sued their attorney for legal malpractice for his failure to timely file responsive pleadings upon receiving notice of the medical malpractice suit. Plaintiffs allege that this suit for legal malpractice proves that Drs. Blue and Wexler had notice of the malpractice suit against them. The trial court denied the motion for new trial, and this appeal followed.

ASSIGNMENTS OF ERROR

On appeal, the plaintiffs allege that the trial court erred: (1) in sustaining the declinatory exception since it was not filed until after the confirmation of the default judgment, (2) in finding that there was no personal service on Drs. Blue and Wexler, and (3) in failing to grant their request for a new trial.

DISCUSSION

Citation and service thereof are essential in civil actions, and without them all proceedings are absolutely null. La. C.C.P. art. 1201(A). Service shall be requested on all named defendants within ninety days of commencement of an action. La. C.C.P. art. 1201(C). This requirement is waived unless the defendant files a decli-natory exception specifically alleging the failure to request service in accordance with La. C.C.P. art. 928. Id. Article 928 requires that the declinatory exception be filed in any event prior to the confirmation of a default judgment.

It is undisputed that plaintiffs did not request service on Drs. Blue and Wexler within ninety days of commencement of the action. When plaintiffs did request service on Drs. Blue and Wexler, over three years after filing suit, the address at which they requested service was the former place of business of the then-retired doctors.

Personal service is made when a proper officer tenders the citation or other process to the person to be served. La. C.C.P. art. 1232. Personal service may be made anywhere the officer making the service may lawfully go to reach the person to' be served. La. C.C.P. art. 1233. While a party may be served at his place of business, such service'is only effected by serving Lthe party personally. Roper v. Dai-ley, 393 So.2d 85, 87 (La.1980). Service on a physician may only be effected by serving the physician’s clerical employee when the physician js not a party to the action. La. C.C.P. art. 1236.

Service shall be made by the sheriff, of the parish where service is to be made or of the parish where the action is pending. La. C.C.P. art. 1291. Louisiana Code of Civil Procedure article 1292 provides:

The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the-record, and shall be considered- prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Although the recitation on the return of the citation is presumed to be correct, the presumption is rebuttable. The party attacking it bears the burden of proving its incorrectness by a preponderance of the evidence. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90, 97; Roper, 393 So.2d 88. In general, the uncorroborated testimony of the party attacking service, standing alone, is insufficient to rebut the presumption of prima facie correctness accorded the return. State ex rel. Dept of Social Services, Office of Family Support, Support Enforcement Services v. Langlois, 03-0849, p. 3 (La. App. 1 Cir. 3/3/04), 874 So.2d 216, 217-18.

The appellate court’s review of factual findings is governed by the manifest error-clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 16505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dept, of Tramp, and Dev., 617 So.2d 880, 882 (La.1993).

Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Secret Cove, LLC v. Thomas, 02-2498, p. 7 (La.App. 1 Cir, 11/7/03), 862 So.2d 1010, 1017, writ denied, 04-0447 (La.4/2/04), 869 So.2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Barham & Arceneaux v. Ko-zak, 02-2325, pp. 14-15 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, 240, writ denied, 04-0930 (La.6/4/04), 876 So.2d 87. Tun-nard v. Simply Southern Homes, L.L.C., 07-0945, p. 4 (La.App. 1 Cir. 3/26/08), 985 So.2d 166,169

Given that the address at which personal service was allegedly made was the doctors’ former place of business arid the doctors had retired from the practice of medicine quite some time before service was allegedly made, we find no manifest error in the trial court’s finding that the doctors proved by a preponderance of the evidence that the Sheriffs return of service was incorrect and there had been no personal service on the doctors.

|7In granting the declinatory exception, the trial court acknowledged the requirement that the declinatory exception be raised prior to the confirmation of a default judgment, but found that “the default judgment was granted in error” since there was no service on the defendants. Thus, the trial court implicitly recognized the nullity of the underlying judgment, although the judgment rendered by the trial court did not explicitly declare the default judgment to be null. Louisiana Code of Civil Procedure article 2164 gives an appellate court the power to render any judgment that is just, legal, and proper upon the record on appeal. Valid service never having been made, the default judgment against the defendant doctors is an absolute nullity. Under the circumstances presented in this case, we conclude that the application of La. C.C.P. art. 2164 militates in favor of this court granting relief to the defendants. See Dicta Realty Associates v. Conrad, 230 So.2d 595 (1970); Cycle Sport, LLC v. Jones, 06-2402 (La. App. 1 Cir. 9/14/07), 2007 WL 2685160 (unpublished). Therefore, we vacate and set aside the June 15, 2011 judgment of preliminary default, the August 23, 2011 judgment confirming the default on the issue of liability and the February 17, 2012 judgment confirming the preliminary default against Drs. Blue and Wexler. We affirm the February 20, 2013 judgment sustaining the declinatory exception and dismissing plaintiffs’ claims without prejudice.

Plaintiffs also allege on appeal that the trial court erred in denying its motion for new trial based on the discovery of new evidence. In their motion for new trial, plaintiffs allege that the defendant doctors had filed a Ijegal malpractice suit against their attorney in which they alleged that their attorney had received a copy of the petition in the medical malpractice suit, but had failed to file responsive pleadings, resulting in a default judgment against the doctors. Plaintiffs argue that the legal malpractice suit proves that Drs. Blue and Wexler had knowledge of the medical malpractice suit prior to the default judgment.

A new trial shall be granted upon contradictory motion of any party when the judgment appears clearly contrary to the law and the evidence or when the party has discovered new evidence which he could not have obtained before or during trial. La. C.C.P. art. 1972. A new trial may be granted if there is good ground therefor. La. C.C.P. art. 1973. Louisiana jurisprudence is clear that a new trial should be ordered when the trial court, exercising its discretion, is convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Bush v. Cannata’s Supermarket Inc., 612 So.2d 794, 797 (LaApp. 1 Cir.1992). However, on appeal, the denial of a motion for new trial should not be reversed unless there has been an abuse of the trial court’s discretion. McCray v. J/H/J, Inc., 99-2283, (LaApp. 1 Cir. 11/3/00), 769 So.2d 1273,1277.

The fact that the doctors’ attorney may have received a copy of the medical malpractice suit does not change the fact that the doctors were not properly served with the suit and any judgment against them without service is null. Thus, we find no abuse of discretion in the trial court judgment denying plaintiffs’ motion for new trial.

DECREE

The June 15, 2011 judgment of preliminary default, the August 23, 2011 judgment confirming liability and the February 17, 2012 judgment confirming the default judgment taken against Drs. Blue and Wexler are |9vacated and set aside. The February 20, 2013 judgment sustaining the declinatory exception and dismissing plaintiffs’ claims without prejudice is affirmed. Costs of this appeal are to be borne by the plaintiffs.

JUDGMENT OF DISMISSAL AFFIRMED; JUNE 15, 2011 JUDGMENT OF PRELIMINARY DEFAULT, AUGUST 23, 2011 JUDGMENT CONFIRMING DEFAULT ON THE ISSUE OF LIABILITY, AND FEBRUARY 17, 2012 JUDGMENT CONFIRMING DEFAULT JUDGMENT ARE ALL VACATED.

KUHN, J.,

dissenting.

| Nlie proper method for contesting the sufficiency of service of process is by filing a declinatory exception, which is a special pleading that must be filed within a prescribed period. See La. C.C.P. art. 921 et seq. Article 928 mandates that a declina-tory exception must in all events be filed prior to the confirmation of a default judgment. Once a default judgment has been rendered, the defendant’s sole remedy for raising this issue is to file a suit to annul the judgment. See Rivera v. Blossom, OB-1629 (La.App. 4th Cir.4/7/04), 872 So.2d 541, 543; Guidry’s Seafood Distributors, Inc. v. Farmers Seafood Company, Inc., 99-1005 (La.App. 3d Cir.12/15/99), 759 So.2d 806, 807, writ denied, 00-0837 (La.5/12/00), 762 So.2d 15.

In the instant case, the issue of whether the default judgment against defendants is an absolute nullity due to improper service upon defendants may be a viable issue. Even so, that issue must be raised in a procedural proper manner. The declinato-ry. exception filed by defendants in this case was not filed until after plaintiffs had already confirmed a default judgment against them. Accordingly, it was improper for either the district court or this Court to consider the untimely exception. See Chatoney v. Safeway Insurance Company, 00-1189 (La.App. 3d Cir.6/13/01), 801 So.2d 448, 452, unit denied, 01-2057 (La.11/2/01), 800 So.2d 875.

Following the confirmation of the default judgment against them, defendants’ sole recourse was to file suit to annul that judgment, which they failed to do. Absent the filing of a suit in nullity, the issue of service upon defendants |2cannot properly be addressed. Mlowing defendants to circumvent the requirement that a suit to annul be filed has the effect of totally eviscerating that requirement and seriously impairing the functioning of the procedural framework established under our law.

Moreover, I also disagree with the majority’s conclusion that annulment of the default judgment is appropriate pursuant to Article 2164 since, in doing so, the majority is rendering a judgment that is itself procedural defective, the proper procedure for raising this issue not having met. Additionally, neither the majority opinion nor the record discloses any specific circumstances mitigating in favor of annulling the default judgment pursuant to Article 2164.

For these reasons, I respectfully dissent.

      . There is no mention in the record of Dr. Roberts ever being served with the suit or of any judgment against him.

      . Louisiana Code of Civil Procedure article 1672(C) provides for an involuntary dismissal without prejudice where a plaintiff has not requested service in accordance with the requirements of La. C.C.P. art. 1201(C).

      . When the appellate court notices an absolute nullity, the court is likewise empowered to vacate or correct the judgment on its own motion. See Mack v. Wiley, 2007-2344 (La. App. 1 Cir. 5/2/08), 991 So.2d 479, 486, writ denied, 2008-1181 (La.9/19/08), 992 So.2d 932; see also Winder v. George, 2007-0314, p. 5 & n. 6 (La.App. 1 Cir. 12/21/07), 2007 WL 4532139 (unpublished) (Pursuant to the appellate court's authority under La. C.C.P. art. 2164 to render a judgment "which is just, legal, and proper upon the record on appeal,” the court amended a judgment to vacate the absolutely null portion.)