author: ROSEMARY LEDET, Judge.

text:
    MANDINA, INC., d/b/a Mandina’s Restaurant v. John O’BRIEN and Powell Insurance Agency.
    No. 2013-CA-0085.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 2013.

      Leonard L. Levenson, Donna R. Barrios, Christian W. Helmke, Weigand & Le-venson, New Orleans, LA, for Plaintiff/Ap-pellee.
    Jack M. Alltmont, April L. Watson, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

| iThis is a Hurricane Katrina-related suit by an insured against its insurance agent and his agency for negligence. The insured contends that the agent mislead it to believe that the business interruption/extra expense (“BI/EE”) coverage it purchased covered flood-related business interruption losses. Initially, the trial court granted the motion for summary judgment filed by the defendants — the agent, John O’Brien, and his agency, Powell Insurance Agency (“Powell”). Subsequently, the trial court granted the motion for new trial filed by the plaintiff — Mandi-na’s Inc., doing business as Mandina’s Restaurant (“Mandina’s”). The trial court vacated its prior judgment (in which it had granted the defendants’ motion for summary judgment) and denied the defendants’ motion for summary judgment. At the parties’ request, the trial court certified its interlocutory judgments granting the motion for new trial and denying Powell’s motion for summary judgment as final judgments for purposes of immediate appeal under La. C.C.P. art. 1915.

|2For the reasons that follow, we convert the defendants’ appeal to an application for supervisory writ, grant their writ, and reverse the trial court’s judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Mandina’s owns and operates a popular restaurant on Canal Street in New Orleans. For over a decade before Hurricane Katrina made landfall in the New Orleans area (August 29, 2005), Mandina’s obtained insurance for its restaurant and related commercial properties (its warehouse and office) from Powell. Powell provided Mandina’s with both a fire/windstorm policy and a flood policy. The flood policy was provided through the National Flood Insurance Program (“NFIP”) and never included BI/EE coverage. Mandi-na’s added BI/EE coverage to its fire/windstorm policy several years before the hurricane; however, this policy always excluded coverage for flood-related losses.

On an annual basis, Mr. O’Brien met with Mandina’s owner, Tommy Mandina, to discuss and renew the policies. At these annual meetings, Mr. O’Brien presented Mandina’s with a written proposal. Five days before the hurricane (August 24, 2005), Mr. O’Brien conducted the annual meeting with Mr. Mandina. At that meeting, Mr. O’Brien recommended that Man-dina’s increase its existing BI/EE coverage under its fire/windstorm policy from $400,000 to $500,000. Mr. Mandina accepted the recommendation. Besides increasing the limits of the existing BI/EE coverage, only minor coverage changes were made. Mandina’s did not receive a copy of the 2005-06 renewal policies until after the hurricane.

|sAs a result of the hurricane, Mandina’s sustained significant flood and windstorm damages, which resulted in a substantial business interruption loss. According to Mandina’s, it first learned that it lacked BI/EE coverage for its flood-related business interruption loss when it reported its loss to its insurer. This suit followed.

In its petition, Mandina’s alleged that Powell and Mr. O’Brien held themselves out as experts in the insurance field and that it employed them in reliance on their expertise to recommend and secure proper and appropriate insurance coverage, including business interruption insurance in the maximum amount legally permitted. Mandina’s further alleged that it was advised by Powell, through Mr. O’Brien, that it was purchasing the maximum amounts and coverage of insurance available on its properties, including business interruption insurance, and that it was not advised that the policies would not provide any coverage for flood-related business interruption. Nor was it advised that an additional policy of insurance could have been purchased that would have provided coverage for flood-related business interruption. Man-dina’s still further alleged that it reasonably believed that in the event of any significant loss to its properties resulting in a business interruption loss, the insurance policies it purchased from Powell would provide coverage for its business interruption claim. Based on these allegations, Mandina’s averred that the defendants breached their legal and fiduciary duty to accurately and completely explain and disclose the insurance coverage available to Mandina’s, including business interruption coverage, and to insure that the coverage purchased by Mandina’s provided the types and amounts of coverage sought by Mandina’s, including for flood-related business interruption loss.

I/The defendants moved for summary judgment on the basis that Mandina’s could not satisfy its evidentiary burden to establish that they breached any duty. In support, they offered Mr. O’Brien’s affidavit and Mr. Mandina’s deposition, which they contended established the following undisputed facts:

• John O’Brien (Powell) sold Mandina’s Restaurant commercial insurance for at least a decade before Hurricane Katrina struck the New Orleans area.
• For at least several years prior to Hurricane Katrina, Mandina’s windstorm/fire policies included business interruption and extra expense coverage (“BI/EE”).
• A reading of Mandina’s past policies explains that BI/EE applies only if the BI/EE loss is a result of a covered loss. Flood has always been specifically excluded as not being a covered loss.
• Tommy Mandina testified as the corporate representative for Mandina’s Restaurant that he knew that he had no BI/EE coverage under Mandina’s flood policy.
• Tommy Mandina testified that he knew that Mandina’s fire/windstorm policy excluded flood coverage.
• Mandina’s contention is that it was buying BI/EE coverage for a “catastrophic loss,” and Tommy Mandina thought that would include BI/EE coverage for flood.
• Tommy Mandina testified that he did not review Mandina’s insurance policies upon receipt to verify whether the BI/EE coverage included flood as a covered cause of loss.
• Tommy Mandina admits that John O’Brien never told him that Mandina’s had BI/EE coverage in the event of a flood.
• Tommy Mandina never asked John O’Brien whether Mandina’s BI/EE coverage included flood as a covered cause of loss.
• Tommy Mandina never asked John O’Brien prior to Hurricane Katrina to obtain BI/EE coverage for Mandina’s which would include flood as a covered cause of loss.

Finding the Louisiana Supreme Court’s decision in Isidore Newman School v. J. Everett Eaves, Inc., 09-2161 (La.7/6/10), 42 So.3d 352, “on. point,” the trial |scourt granted the defendants’ motion for summary judgment. In its written reasons for judgment, the trial court stated:

Defendant argues that in cases against agents for failure to give accurate advice as to the extent of coverage, liability only attaches when there is some specific question from the insured. Absent a specific question from the insured, the agent may presume that the insured understands that policy’s terms. Isidore Newman School v. J. Everett Eaves, Inc., 42 So.3d 352, 357 (La.2010). In the Newman case, the Supreme Court also said that that client is charged with the duty of reviewing an insurance policy to make sure his needs are met. Id.
It is telling that on page 359 of Newman, the Supreme Court specifically quotes from the annual Insurance Proposal rendered to Newman in 2003 for the policy that pre-dated Katrina by two full years. The point made by the Supreme Court is that Newman (like Man-dina here) had years to read the relevant coverage.
It is also telling that a careful review of Mr. Mandina’s deposition (pages 16 to 18) shows that Mr. Mandina:
• admits that he never asked John O’Brien whether he had business interruption for flood and O’Brien never told him that he had business interruption for flood;
• concedes that he knew the flood policy did not provide business interruption coverage;
• states he knew that his other policy was for “fire and windstorm” and specifically excluded flood.
It is simply not reasonable to assume that the business interruption portion of the fire/windstorm policy would cover business interruption caused by flood. This is on point with Newman. (Emphasis in original).

In response, Mandina’s filed a motion for new trial. In support, Mandina’s presented the trial court with the following enumeration of facts that it contends it established in opposing the motion for summary judgment:

• Each year POWELL would make specific recommendations as to what insurance coverage should be obtained and what amounts should be obtained because each year the coverages and amounts of coverage being offered by the insurers changed and as a result the coverages and amounts being recommended by POWELL would change.
h* MANDINA relied upon POWELL as the expert and would purchase the maximum insurance coverage recommended by POWELL.
• Five days before the occurrence of Hurricane Katrina, POWELL met with MANDINA and was quite emphatic in recommending that MANDI-NA raise its business interruption coverage limits due to the close proximity of Hurricane Katrina to Louisiana.
• As a result of its meeting with POWELL five days before the occurrence of Hurricane Katrina, and the increase in coverage for business interruption recommended by POWELL, MANDI-NA was led to believe that it had coverage for business interruption losses caused by wind, flood, and fire.
• MANDINA never received its policies prior to the occurrence of Hurricane Katrina, it did not have its policies to review prior to the occurrence of the hurricane.
• After the occurrence of Hurricane Katrina, upon re-opening its business, MANDINA purchased business interruption coverage for flood losses.

Based on the above facts, Mandina’s contended that it established the existence of genuine issues of material facts precluding summary judgment.

On September 13, 2012, the trial court granted Mandina’s motion for new trial, vacated its previous judgment, and denied the defendants’ motion for summary judgment. In so doing, the trial court provided the following oral reasons:

I do believe ... that there is a genuine issue. It has to be what did Mr. Mandina believe; what did Mr. Powell believe. And that’s not clear here. So, the Court is going to deny the motion [for summary judgment]. I am going to grant you a new trial.... I’m denying the summary judgment.

As noted at the outset, the trial court certified its interlocutory judgments granting the motion for new trial and denying Powell's motion for summary judgment as final judgments for purposes of immediate appeal under La. C.C.P. art. 1915. In so doing, the trial court noted:

[A]n immediate appeal on the issue presented on the Motion for Summary Judgment is in the interest of both justice and judicial economy. If the Court of Appeal finds that summary judgment should |7be entered as prayed for by defendants that would terminate the entirety of this litigation in the trial court. If summary judgment is not granted, then it is estimated that trial of this case on the merits will take between three to five days given the complexity of the quantum issues. Hence, an immediate appeal on this issue is clearly warranted and advisable.

This appeal followed. Before addressing the merits, this court must address the preliminary issue of whether it has appellate jurisdiction.

APPELLATE JURISDICTION

Although the trial court (at the parties’ request) certified the February 14, 2012 judgments granting the motion for new trial and denying the motion for summary judgment as final under La. C.C.P. art. 1915, the trial court’s certification is not determinative of this court’s appellate jurisdiction. See Roundtree v. New Orleans Aviation Bd., 04-0702, p. 6 (La.App. 4 Cir. 2/4/05), 896 So.2d 1078, 1083. This appeal seeks review of two interlocutory judgments — the granting of a motion for new trial and the denying of a motion for summary judgment. Neither a judgment granting a motion for new trial nor a judgment denying a motion for summary judgment is an interlocutory judgment subject to being designated as final pursuant to La. C.C.P. art. 1915.

The proper procedural device to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ. Delahoussaye v. Tulane University Hosp. and Clinic, 12-0906, 12-0907, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 560, 562, 2013 WL 633121 (citing La. C.C.P. art. 2201). In certain circumstances, this court has exercised its discretion to convert an appeal of an interlocutory judgment that is not immediately appealable into a supervisory writ application. M.This court has exercised its discretion to do so when the following two circumstances both are present:

|8(i) The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal,
(ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court’s decision would terminate the litigation.

Delahoussaye, 12-0906 at pp. 4-5, 155 So.3d at 563. Both circumstances are present here. The motion for appeal was filed within the thirty day period applicable to supervisory writs contained in Uniform Rule 4-3; thus, an application for supervisory writs would have been timely. As the trial court pointed out, a finding that the defendants are entitled to summary judgment — granting the writ — will terminate this litigation. We thus exercise our discretion and convert the instant appeal to an application for supervisory writ.

STANDARD OF REVIEW

The standard of review of a trial court’s ruling granting a motion for new trial is an abuse of discretion standard. Midland Funding LLC v. Kelly, 11-0659, p. 2 (La.App. 4 Cir. 12/7/11), 81 So.3d 84, 86 (citing Brooks v. Wiley, 07-1035, p. 3 (La.App. 4 Cir. 6/4/08), 985 So.2d 1269, 1271 (citing Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84)). The standard of review of a trial court’s ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967, and the jurisprudence, is well-settled and can be summarized as follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled |9to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.
The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish these ends. The code provides that where [as in the instant case] the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. The adverse party cannot rest on the mere allegations or denials of his pleadings when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

Orleans Parish School Bd. v. Lexington Ins. Co., 12-1686, p. 5 (La.App. 4 Cir. 6/5/13), 118 So.3d 1203, 1212 (quoting Teter v. Apollo Marine Specialities, Inc., 12-1525, pp. 6-7 (La.App. 4 Cir. 4/10/13), 115 So.3d 590, 597 (quoting Johnson v. Loyola University of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24); see also McGowan v. Housing Authority of New Orleans, 12-1418, p. 12 (La.App. 4 Cir. 3/27/13), 113 So.3d 1143, 1148 (quoting Johnson, 11-1785 at pp. 7-8, 98 So.3d at 923-24)).

ImDISCUSSION

Insurance agents, brokers, and their agencies are not liable to their customers simply because there is an unexpected, uncovered loss. Frederic Theodore Le Clercq, SHOW ME THE MONEY! What Exactly Are the Duties of Insurance Agents and Brokers?, 54 La. B.J. 94 (Aug./Sept.2006). Rather, “Louisiana insurance agents, brokers and their agencies can be held liable for such claims only if they are found to have breached a legal duty owed to their customers.” Id. (citing Taylor v. Sider, 99-2521 (La.App. 4 Cir. 5/31/00), 765 So.2d 416, 418).

The controlling authority on the duty of Louisiana insurance agents, brokers, and their agencies to their customers is the Louisiana Supreme Court’s decision in Newman, supra. In the Neuman case, the customer was a private school located in New Orleans, Louisiana. Newman sustained substantial physical damage to its school as a result of Hurricane Katrina. Following the hurricane, Newman was closed for multiple months and sustained over three million dollars in lost tuition revenues. Following the hurricane, Newman first learned that under its insurance policy lost tuition revenue was covered under its BI/EE coverage; however, its BI/EE coverage was limited to $300,000. Newman sued its insurance agent alleging that the agent failed to advise that lost tuition revenue was included in the BI/EE coverage and led it to believe that the BI/EE coverage was only for physical damage to buildings. Newman maintained that had it been informed that the BI/EE coverage included lost tuition revenue, it would have increased its BI/EE coverage.

| nThe trial court in Newman denied the agent’s motion for summary judgment finding “there was an issue of material fact as to whether Eaves [the agent] failed to properly advise Newman regarding the coverage options and the amount of coverage needed.” Newman, 09-2161 at p. 4, 42 So.3d at 355. Following a trial on the merits, the trial court found Eaves breached its duty of care by failing to explain the components of BI/EE coverage so that Newman could make an informed choice regarding that coverage and failing to include in its annual recommendations of suggested coverage a sufficient sum to cover lost tuition revenue. The trial court, however, imposed the lion’s share of fault (70%) on Newman for failing to review its own policy and for unjustifiably relying solely on Eaves’ advice.

On appeal, this court in Newman affirmed. Isidore Newman School v. J. Everett Eaves, Inc., 08-1368 (La.App. 4 Cir. 8/5/09), 17 So.3d 465. In so doing, this court found that the agent assumed a duty and breached that duty. As the Supreme Court noted, a plurality of this court held that “Eaves [the agent] assumed a duty to provide recommendations on the scope and amount of insurance coverage that Newman should purchase. By failing to adequately inform their client regarding options, Eaves breached its duty to the client.” Isidore, 09-2161 at p. 5, 42 So.3d at 355.

The Supreme Court granted Eaves’ writ and framed the issue presented as whether the insurance broker or agent owed a duty to a customer, Newman, to provide recommendations on the scope and amount of property and casualty insurance coverage that the school should procure, and whether the insurance | ^broker or agent owed a duty to explain the components of the existing policy, which clearly informed Newman that the BI/EE coverage was designed to encompass lost tuition revenue. Answering that question in the negative, the Supreme Court first reviewed its own jurisprudence on the issue, noting:

This Court in Karam v. St. Paul Fire & Marine Insurance Co., 281 So.2d 728, 730-31 (La.1973), stated:
An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.
In the wake of Karam, this Court maintained that an insurance agent owes a duty of “reasonable diligence” to his customer. Roger v. Dufrene, 613 So.2d 947, 949 (La.1993). This duty of “reasonable diligence” is fulfilled when the agent procures the insurance requested. Karam, supra. Jurisprudence has suggested that an insured has a valid claim against the agent when the insured demonstrates that: “1) the insurance agent agreed to procure the insurance; 2) the agent failed to use ‘reasonable diligence’ in attempting to procure the insurance and failed to notify the client promptly that the agent did not obtain insurance and 3) the agent acted in such a way that the client could assume he was insured.” Id.

Newman, 09-2161 at pp. 6-7, 42 So.3d at 356-57.

The Supreme Court next reviewed the jurisprudence of the Louisiana appellate courts addressing the duty owed to the insured by an insurance agent; it noted:

In Smith v. Millers Mutual Ins. Co., 419 So.2d 59 (La.App. 2 Cir.1982), the Second Circuit Court of Appeal found no authority for the proposition that an insurance agent has a duty to recommend to an insured that he increase his personal liability limits. In Graves v. State Farm Mutual Auto Ins. Co., 01-1243 (La.App. 3 Cir. 6/26/02), 821 So.2d 769, the Third Circuit Court of Appeal held that the insurance agent had no affirmative duty to inquire into the clients financial condition and make recommendations about higher auto liability coverage, or that the client purchase an umbrella policy; the only duty imposed on the agent is to obtain the coverage requested by the customer. In Zinsel Co. v. J. Everett Eaves, Inc., 99-691 (La.App. 5 Cir. 11/30/99), 749 So.2d 798, the Fifth Circuit Court of Appeal determined that any duty the agent had to notify his client of the availability of increased limits was satisfied by the agent’s letter to the insured.
In City Blueprint & Supply Co., Inc. v. Bob Boggio, et al., 08-1093 (La.App. 4 Cir. 12/17/08), 3 So.3d 62, the insured’s building sustained damage from the flooding associated with Hurricane Katrina. The insured sued its insurance agent, alleging that the agent had always assured them that they were “fully covered” and the hazard/fire policy in force, covered the property against flood damage. The insured filed suit against the insurance agent arguing “claims of negligence, ... breach of fiduciary duty, failure to obtain flood coverage, failure to advise regarding flood insurance options and availability, ... and failure to institute a policy whereby all agents would advise client regarding flood coverage.” Id. at 64. The insurance agent filed a Motion for Summary Judgment arguing that no duty was owed to advise the clients regarding flood coverage. The trial court granted the motion and dismissed the insured’s claims. The court of appeal affirmed the trial court’s ruling, holding that the agency and agent did not breach a duty owed to the client by failing to advise the client about flood insurance options. Particularly, the Fourth Circuit Court of Appeal held that absent a specific question from the insured, an agent has no duty to advise a client that it is underinsured, and furthermore, that “[a]n insured is responsible for reading his policy and is presumed to know its terms.” Id. at 66-67.
Similarly, in Heidingsfelder v. Hibernia Insurance, L.L.C., 09-0753 (La.App. 4 Cir. 11/18/09), 25 So.3d 976, the Fourth Circuit declined to impose a duty on an agent to identify a client’s coverage needs or to advise the client that he was underinsured. The Fourth Circuit recognized that an insurance agent does not have an “independent duty” to spontaneously advise insureds regarding various insurance options. As in City Blueprint, the Fourth Circuit held that no agreement existed between the plaintiff and Hibernia Agency to procure flood insurance coverage for contents. Hence, the agency did not breach a duty to the plaintiffs by failing to procure flood insurance coverage for contents.

Newman, 09-2161 at pp. 7-10, 42 So.3d at 356-57. Finally, the Supreme Court reviewed the jurisprudence of the federal district courts addressing an agent’s duty to his client; it noted:

The federal district courts have ... determined that an agent has no duty to independently assess the needs of the insured and recommend coverage; instead, the insured is responsible for communicating his insurance needs, and reading the policy of insurance, upon receipt. See, Cameron Parish School Bd. v. State Farm Fire and Cas. Co., 560 F.Supp.2d 485 (W.D.La.5/19/08).
In Dobson v. Allstate, 06-0252, 06-1097, 06-1064, 06-1255, 06-1734, 06-1585, 2006 WL 2078423 (E.D.La.7/21/06), the plaintiffs alleged that their agent failed to advise them that they were underinsured. There was nothing in the record to indicate that the Plaintiffs specifically inquired about a particular type, or amount of coverage. The court found that the agent had no duty to “spontaneously identify a client’s needs and advise him as to whether he is underinsured or carries the correct type of coverage.” Id. The court noted that Louisiana does not impose a duty on an agent to identify a client’s needs and assess what type and amount of coverage would sufficiently meet the client’s needs. See, Whitehead v. State Farm Ins. Co., 06-8115, 2006 WL 3747520 (E.D.La.12/15/06). The courts have held that it is the client’s responsibility or duty, not the agent, to determine the amount of coverage needed and advise the agent of those needs, and upon receiving the policy of insurance, the client has a duty to review the policy to make certain his needs are met. See, Frischhertz v. Lexington Ins. Co., 06-5676, 2006 WL 3228385 (E.D.La.11/3/06). The courts have noted that “the ‘advice’ that an agent had an affirmative duty to give the insured” involved “aspects of the policies ... that were not within the knowledge generally held by a lay person,” i.e., “the agent’s specific knowledge of the insured’s individual situation triggered that duty to disclose.” See, Parker v. Lexington, 064156, 2006 WL 3328041 (E.D.La.2006).

Newman, 09-2161 at pp. 9-10, 42 So.3d at 357-58.

Based on the above jurisprudence, the Supreme Court concluded:

[TJhe lower courts erred in holding that the insurance broker or agent owed a duty to advise the client as to the amount of insurance coverage to obtain. An agent has a duty of “reasonable diligence” to advise the client, but this duty has not been expanded to include the obligation to advise whether the client has procured the correct amount or type of insurance coverage. It is the insured’s responsibility to request the type of insurance coverage, and the amount of coverage fyneeded. It is not the agent’s obligation to spontaneously or affirmatively identify the scope or the amount of insurance coverage the client needs. It is also well settled that it is insured’s obligation to read the policy when received, since the insured is deemed to know the policy contents.

Newman, 09-2161 at p. 12, 42 So.3d at 359.

On appeal, Powell and Mr. O’Brien contend that the jurisprudence, summarized in Newman, supports a finding that they are entitled to summary judgment as a matter of law. They contend that the trial court’s initial decision granting summary judgment was correct. They further contend that the trial court’s reasons for judgment it issued in granting their motion were correct.

According to the defendants, Mandina’s claim is based solely on the contention that Mr. O’Brien never told Mr. Mandina that the fire/windstorm policy did not cover flood-related BI/EE loss and that Mr. Mandina assumed such coverage was being purchased. In support, they cite Mr. Mandina’s deposition testimony, which was as follows:

Q: Can you tell me, in your own words, specifically what you’re claiming that Mr. O’Brien did wrong?
A. I was under the impression — I was led to believe that I was covered for business interruption for flood, fire, windstorm; and nowhere in our conversations on that Wednesday before ... and we were talking about the hurricane coming because of it, you know, was supposed to hit Florida then they kept moving it on and on — was there ever a point where he said flood insurance was not covered with business interruption.
He was quite emphatic in saying we should raise the coverage. You know, this would be a great time to raise the coverage.
Q. When you say that coverage, which coverage in particular?
A. I’m talking about business interruption, and he explained that I could only draw a third of that a month. So if you had a catastrophe, you could only draw a third of whatever figure you chose ...
|1fiAt no point did he tell me flood wasn’t covered.

Mr. Mandina further testified that he was aware that the fire/windstorm policy excluded damages caused by flood. Nonetheless, he testified that his belief that the BI/EE coverage included flood losses was based on his understanding that it was a separate policy; more particularly, he testified:

It was my understanding that business interruption is a separate policy. That’s my understanding. Now, whether it falls under the windstorm, whether it’s issued as an addendum to the windstorm, I don’t — it was my understanding, and he explained it to me as, we’re giving you a policy of business interruption.

Mr. Mandina still further testified that he believed the BI/EE policy was for catastrophic events and that was why it was increased to $500,000 five days before Hurricane Katrina; specifically, he stated:

Obviously there was a catastrophe and I thought I was covered for business interruption due to flood, which I found out later that I was not. He [Mr. O’Brien] did not present any forms to me, asking me to sign anything saying you’re not covered for that as he did with other parts of the policy and it wasn’t in his proposal. So I was under the impression that I was covered for flood, since we did not receive the [2005— 06] policies because we signed up on a Wednesday and of course the storm hit on Monday. I was under the impression I was covered for this.

Mr. Mandina, however, acknowledged that he never asked Mr. O’Brien if the BI/EE coverage included flood-related losses and that Mr. O’Brien never told him that it did. Mr. Mandina also acknowledged that he did not review the prior policies that he received.

In granting Mandina’s motion for new trial and denying the defendants’ motion for summary judgment, the trial court found there was a genuine issue of material fact regarding “what did Mr. Mandina believe.” The trial court’s concern, as it expressed at the hearing on the motion for summary judgment, was whether Mr. Mandina reasonably relied on Mr. O’Brien’s representation regarding the 11 contents of the 2005-06 policies. The trial court noted that Mr. Mandina’s testimony was that he relied solely on Mr. O’Brien’s representations, which caused him to believe that he had obtained the maximum possible coverage for business interruption no matter what the cause.

The defendants contend that the trial court’s reliance on Mr. Mandina’s subjective belief that he obtained flood-related BI/EE coverage is misplaced. They contend that Mandina’s was required to show that Mr. Mandina’s belief was warranted by Powell’s actions and representations and that he justifiably relied thereon. They note that Newman, supra, holds that an insured has a duty to read its policy and is presumed to know the contents of the policy. They further note that an insured’s reliance on an agent cannot be reasonable if the policy language is straightforward. They contend that such is the case here.

Mandina’s counters that it did not have the 2005-06 policies to review. Mandina’s contends that, contrary to the defendants’ contentions, Mr. Mandina justifiably relied on Powell’s actions and representations in stating on the eve of the storm that Mandi-na’s had to change its coverage to make sure it was covered for hurricane damages. Mandina’s thus maintains that the trial court correctly found that there are genuine issues of material fact as to what Mr. Mandina reasonably believed.

According to Mandina’s, the legal duty that Powell and Mr. O’Brien assumed and breached is the same duty that this court in its plurality decision in Newman found the agent breached — to provide recommendations on the scope and amount of insurance coverage that Mandina’s should purchase and to adequately inform their client regarding options. Mandina’s points out that the Supreme Court, in reversing this court, found no additional duty was assumed by Eaves (the |1Ragent) based on the following four facts: (1) the agent had proposed for Newman to increase its BI/EE coverage, but Newman had declined the request; (2) no evidence suggested that Newman intended to increase its coverage; (3) Newman received its policy before Hurricane Katrina struck, but failed to review its terms; and (4) no evidence suggested that the agent assumed a duty besides acting with reasonable diligence.

Mandina’s contends that none of those four factors is present in this case; rather, it contends the opposite is true in this case. First, Mandina’s accepted Powell’s recommendations to increase its BI/EE coverage before the hurricane. Second, after the hurricane, Mandina’s procured from Powell a separate policy providing BI/EE coverage for flood-related business interruption losses. Third, Mandina’s could not read its 2005-06 policies because it never received a copy of its policies until after the hurricane. Finally, Mandina’s contends that all these circumstances establish that the defendants assumed a duty beyond acting with reasonable diligence. Mandina’s thus maintains that the trial court correctly concluded that, at a minimum, a genuine issue of material fact exists regarding whether the defendants assumed a duty to provide recommendations on the scope and amount of insurance coverage that Mandina’s should purchase and to adequately inform Mandina’s regarding its options.

In further support of its position, Mandina’s cites this court’s holding in Seruntine v. State Farm Fire and Cas. Co., 09-0230 (La.App. 4 Cir. 4/15/10), 38 So.3d 438, writ granted and judgment rev’d, 10-1108 (La.9/3/10), 42 So.3d 968 (mem.). Mandina’s points out that in Seruntine the plaintiffs alleged that they |1flrequested the agent procure full insurance coverage for their property. The plaintiffs further alleged that the agent led them to believe that whatever their flood insurance policy did not cover, their non-flood policies would cover. The plaintiffs’ deposition testimony was that they relied on the agent’s assurances and did not verify those assurances by examining the policies when they were delivered or renewed. In addition to finding that the plaintiffs’ claim was not preempted, this court found that there were genuine issues of material fact regarding the plaintiffs’ detrimental reliance claim as to two of the three properties involved and thus partially (as to those two of the three properties) reversed the trial court’s decision granting the agent’s motion for summary judgment. Mandina’s contends that the Supreme Court’s reversal of this court’s decision was limited to the preemption issue and that this court’s analysis of the factual issues precluding summary judgment on the justifiable reb-anee claim remains valid.

Mandina’s reliance on this court’s decision in Seruntine and Newman, which the Supreme Court reversed, is misplaced. In both Seruntine and Newman the Supreme Court stressed the insured’s obligation to review its policies and that the insured is presumed to know the contents of its policies. In Seruntine, the Supreme Court issued the following per curium:

It is well settled that it is the insured’s obligation to read the policy when received, since the insured is deemed to know the policy contents. Isidore Newman School v. J. Everett Eaves, Inc., 09-2161 at p. 12 (La.7/6/10), 42 So.3d 352, 359; see also City Blueprint & Supply Co., Inc. v. Boggio, 08-1093 (La.App. 4th Cir.12/17/08), 3 So.3d 62. In the instant case, plaintiffs’ policies clearly revealed their flood limits were lower than their commercial policy limits and their properties’ value. Moreover, it is undisputed that a review of plaintiffs’ commercial policies would have revealed these policies excluded flood-damage.

Seruntine, 10-1108 at p. 1, 42 So.3d at 968.

| go Attempting to distinguish this case, Mandina’s contends that it did not have a duty to review its policies because it did not receive its 2005-06 policies until after the hurricane. This argument is unpersuasive. Nothing in its 2005-06 policies would have provided any additional information that Mandina’s could not have obtained by reviewing its prior policies. Indeed, as the trial court noted in its reasons for initially granting the summary judgment: “[i]t is telling that on page 359 of Neuman, the Supreme Court specifically quotes from the annual Insurance Proposal rendered to Newman in 2003 for the policy that pre-dated Katrina by two full years. The point made by the Supreme Court is that Newman (like Mandina here) had years to read the relevant coverage.” Mandina’s is presumed to know the content of its existing coverage. Thus, Mandina’s reliance on the fact it did not have a copy of its 2005-06 policies to review is misplaced.

We likewise find, as the defendants contend, that the trial court’s reliance on Mr. Mandina’s subjective belief in granting the motion for new trial and denying summary judgment was misplaced. Rejecting a similar argument, this court in City Blueprint & Supply Co. v. Boggio, 08-1093 (La.App. 4 Cir. 12/17/08), 3 So.3d 62, affirmed-the granting of summary judgment in the agent’s favor.

In City Blueprint, the plaintiffs, City Blueprint’s owners, argued that the agent negligently misrepresented the extent of City Blueprint’s coverage by assuring its owners that City Blueprint was “fully covered.” This court reasoned 12¶ that to recover on a claim of negligent misrepresentation, a plaintiff must show, among other things, justifiable reliance. The plaintiffs argued that the agent’s assurance that City Blueprint was “fully covered” — a statement that the defendants denied ever making — was a misrepresentation of the extent of the coverage. The agent argued that “fully covered” meant fully covered for hazards such as fire and theft, but not for flood. Finding the plaintiffs’ reliance on the “fully covered” statement was not justified, this court reasoned:

Regardless of whether the defendants made such a statement, City Blueprint’s reliance on the statement to mean that it had flood insurance was unreasonable in light of the fact that the policy specifically contained a straightforward, uncomplicated, exclusion against damage caused by flood. The [owners of City Blueprint] testified that although the defendants never told them that flood insurance was included in the commercial insurance package, they assumed that flood insurance was included. This blind assumption is not justifiable. An insured is responsible for reading his policy and is presumed to know its terms. Stephens v. Audubon Ins. Co., 27,658 (La.App. 2 Cir. 12/6/95), 665 So.2d 683. Here, the [owners of City Blueprint] admitted that they failed to read the policy and were unaware that it contained a flood exclusion. A simple review of the policy would have put them on notice that their company was not covered for damages arising from a flood. Thus, City Blueprint’s claim for negligent misrepresentation must also fail.

City Blueprint, 08-1093 at p. 8, 3 So.3d at 67. This court thus found the agent was entitled to summary judgment.

Mandina’s counters that City Blueprint, supra, is distinguishable in that Mandina’s agreed to procure the additional coverage that Powell recommended; and Powell specifically advised Mandina’s that in order to make certain it was covered for all damages that could be caused by Hurricane Katrina Mandina’s had |22to accept suggested changes to its coverages (which it accepted). Mandina’s argument is belied by the fact that the change in coverage that was recommended and made on the eve of the hurricane was only to increase the policy limits for BI/EE coverage, not to procure a new policy or a new type of BI/EE coverage. Mandina’s had the same type of BI/EE coverage for years before the hurricane. The BI/EE coverage was part of its windstorm/fire policy, which clearly excluded flood-related damages. Had Mr. Mandina examined the prior policies, he would have discovered that the BI/EE coverage was subject to a clear exclusion for water damage, including flooding.

In sum, we conclude, as the defendants contend, that the jurisprudence supports a finding that “[a]n insured [like Mandina’s] who does not inquire about a particular coverage, who does not ask for the coverage, who does not ask for clarification about the coverage, and who never examines years of policies, has no right to assume that he has coverage and then sue his agent because his (the insured’s) assumption was incorrect.” Accordingly, we find the defendants are entitled to summary judgment as a matter of law.

CONCLUSION

For the foregoing reasons, we convert the defendants’ appeal to a writ, grant their writ, reverse the trial court’s judgment, and grant the defendants’ motion for summary judgment.

APPEAL CONVERTED TO A WRIT; WRIT GRANTED; AND JUDGMENT REVERSED

      . When an agreement to procure insurance is present, “the duty of the broker is analogous to the duty of the agent.” Isidore Newman School v. J. Everett Eaves, Inc., 09-2161, p. 6 (La.7/6/10), 42 So.3d 352, 356 (citing Crayton v. Sentry Ins. Co., 612 So.2d 767, 771 (La.App. 1st Cir. 1993).)

      . As discussed elsewhere in this opinion, Mandina’s contends, that this is the legal duty that Powell and Mr. O'Brien owed to it and breached. It further contends that this case is factually distinguishable from Newman, supra.

      . The record reflects that, after the hurricane, Mandina's procured an excess flood policy that included BI/EE coverage.

      . The plaintiffs in City Blueprint additionally argued that the agent was liable for negligent failure to advise whether City Blueprint needed to have flood insurance and the various flood insurance options. Citing Dobson v. Allstate Ins. Co., 2006 WL 2078423 (E.D.La.7/21/06) (unpub.), this court reasoned that the plaintiffs could not support this claim because no such duty exists. In so finding, this court noted:
      In the aftermath of Hurricanes Katrina and Rita, Louisiana federal district courts considered whether insurance agents have an affirmative duty to inform an insured about the availability of flood coverage in excess of the NFIP limits, and whether insurance agents have an independent duty to spontaneously identify their clients’ needs and advise them as to whether they are underinsured. The resounding conclusion is that such duties do not exist under Louisiana law.

        City Blueprint, 08-1093 at p. 6, 3 So.3d at 66, n. 1 (citing Cameron Parish School Bd. v. State Farm Fire and Cas. Co., 560 F.Supp.2d 485, 489 (W.D.La.2008)).

      . This court noted that the elements the plaintiff must prove are as follows: “(1) a legal duty to supply correct information; (2) breach; and (3) damages resulting from justifiable reliance on the misrepresentation.” City Blueprint, 08-1093 at pp. 7-8, 3 So.3d at 66 (citing Abbott v. Equity Group, Inc., 2 F.3d 613 (5th Cir.1993)).


source: Caselaw Access Project

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

license: Public Domain

text:
    Larry Van JACKSON, Jr. v. John C. PFEIFER. Larry Van Jackson, Jr. v. John C. Pfeifer.
    Nos. 2013-CA-0440, 2013-C-0450.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 2013.
    Rachel Wendt Wisdom, John Mark Fez-io, Stone Pigman Walther Wittman L.L.P., New Orleans, LA, for Appellee.

      John A.E. Davidson, Christopher J. Davidson, Davidson & Davidson, APLC, Metairie, LA, for Plaintiff/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

|, Larry Van Jackson, Jr., seeks review of the judgment of the trial court granting a preliminary writ of injunction prohibiting him and his company, Citywide Development Services, L.L.C. (“Citywide”), from trespassing upon the property bearing the municipal address of 7049 Magazine Street/ 203 Audubon Street in New Orleans, Louisiana (hereafter, “the property”). For the reasons that follow, we vacate the judgment granting the preliminary writ of injunction and remand the matter to the trial court.

On 21 November 2012, Mr. Jackson filed a petition for possession in the trial court, noting that he took physical possession of the property for his own account to the exclusion of all others on 18 August 2010. The clerk of court randomly allotted the petition to Division “C” of the trial court presided over by Judge Sidney Cates, IV. Mr. Jackson named John C. Pfeifer, the then record title owner of the property, as the sole party-defendant. The petition prayed for judgment recognizing Mr. Jackson’s possession and requiring Mr. Pfeifer to file a petitory action, or be forever prohibited from asserting title to the property.

On 22 January 2013, Marquee Investment Properties, L.L.C. (“Marquee”) filed a motion to be substituted as defendant. Marquee asserted that it had |2purchased the property from Mr. Pfeifer on 10 January 2013. The trial court granted the motion to substitute.

Also on 22 January 2013, Marquee filed a verified answer, reconventional demand, petition for mandamus, and petition for a temporary restraining order, preliminary writ of injunction, and permanent writ of injunction. Marquee alleged that Mr. Jackson failed to comply with the requirements of La. R.S. 9:5633, relative to blighted property, and thus failed to acquire any rights in the property. On 22 January 2013, Judge Kern Reese, who presides over Division “L” of the trial court, signed an order as duty judge for the trial court granting a temporary restraining order without bond, prohibiting Mr. Jackson and/or Citywide and/or their agents from trespassing upon the property. The order also set 29 January 2013 as the hearing date for the “permanent” injunction. While the order stated that the hearing was for the “permanent” injunction, counsel for Marquee clarified at the hearing ultimately held that Marquee was seeking only a preliminary writ of injunction.

On 28 January 2013, due to a lack of service of the answer, et cetera, Marquee filed a motion to appoint a special process server, reset the hearing, extend the temporary restraining order, and for an expedited hearing. Marquee noted that the Orleans Parish Sheriff was unable to serve Mr. Jackson. Marquee asserted that Mr. Jackson, without any legal rights, continued to identify himself as owner of the property (a) to the City of New Orleans to obtain a permit and (b) to obtain utility services. Further, Marquee averred that Mr. Jackson threatened [¡¡Marquee and Marquee’s agent with legal and police action. On 28 January 2013, Judge Reese signed another order granting a temporary restraining order without bond, appointing a special process server, and setting 22 February 2018 as the hearing date on the “permanent” injunction.

Mr. Jackson filed exceptions of no cause of action and improper use of summary proceedings on 20 February 2013. He contended that because Marquee filed a petitory action in response to his possesso-ry action, Marquee admitted that Mr. Jackson was in possession of the property. He concluded that Marquee admitted that he had a right to possess the property and thus Marquee could not enjoin him from possessing the property. (See La. C.C.P. art. 3657.) Mr. Jackson also alleged that Marquee could not cumulate a possessory action and a petitory action and averred that Marquee could not subvert his posses-sory rights by asserting a petitory action in the guise of seeking a temporary restraining order and preliminary writ of injunction.

On 22 February 2013, the parties appeared for the hearing. Judge Reese presided over the hearing, overruling the objection of Mr. Jackson to Judge Reese hearing the matter. Judge Reese noted:

Counsel, let me make you aware, apprise you of the facts that lead up to where we are now, I guess. When this matter came before me was during duty week. Additionally, Judge Cates in Division “C” had sustained a family emergency that warranted this Court to take the matter up as the duty Judge. Given that Judge Cates was out when a hearing needed to be scheduled, the preliminary injunction, dealing with his family emergency, this Court with the acquiescence of Judge Cates, agreed to set up the preliminary injunction hearing so that the matter might go forward.

|4Counsel for Mr. Jackson questioned whether Judge Cates was available at that moment. Judge Reese responded that he did not know. Noting counsel’s objection for the record, Judge Reese presided over the hearing. At the conclusion of the testimony and evidence, Judge Reese noted that Marquee is the owner of the property, but that Mr. Jackson had made a substantial investment in the property by paying almost $14,000.00 towards back taxes. Judge Reese stated that Mr. Jackson’s investment in the property should not be disturbed, but that the property should be secured by Marquee to prevent further deleterious conditions from occurring. Judge Reese explained that his concern was to insure that the property was maintained until such time as Division “C” could determine possession and/or ownership.

Thereafter, Judge Reese signed a judgment on 12 March 2013, granting a preliminary writ of injunction without bond prohibiting Mr. Jackson, his company, or agents from trespassing upon the property; designating Marquee as the sole party permitted to possess the property to maintain the status quo pending further orders of the court; and denying Mr. Jackson’s exceptions.

Mr. Jackson filed both an application for a supervisory writ in this court docketed under case number 2013-C-0450 and a motion for appeal that was docketed in this court under case number 2013-CA-0440. On 16 April 2013, this court consolidated the writ application and the appeal for decision.

Whether Judge Reese had the authority to issue a preliminary writ of injunction presents a question of law.. Questions of law are decided de novo. See Hospitality Consultants, LLC v. Angeron, 09-1738, p. 5 (La.App. 4 Cir. 6/9/10), 41 So. 3d 1236, 1240.

In his first assignment of error, Mr. Jackson avers that the duty judge, Judge Reese, lacked the authority to hear and decide the motion for the preliminary writ of injunction. Mr. Jackson noted that a duty judge has the authority to hear and sign orders relative to temporary restraining orders pursuant to La. C.C.P. art. 253.3. He argues, however, that a duty judge is not allowed to preside over the preliminary writ of injunction not specifically allotted to that duty judge’s division of court except in certain limited circumstances not present here. We agree.

La. C.C.P. art 253.1 provides for the random allotment of cases. Once allotted, a case assigned to one judge may not be “transferred from one section or division within the same court, unless agreed to by all parties or to effect a consolidation for purposes of trial pursuant to article 1561.” La. C.C.P. art. 253.2. This article further provides that the Supreme Court “by rule, may establish uniform procedures for reassigning cases .under circumstances where an expeditious disposition of cases may be effectuated.” La. C.C.P. art. 253.2

La. C.C.P. art. 253.3 D states:

When a duty judge hears any matter or signs any order or judgment pursuant to this Article, he shall not acquire jurisdiction over additional matters in the case. Following the ruling of the duty judge, the judge assigned pursuant to Article 253.1 shall hear other matters in the case, including but not limited to discovery matters, preliminary injunctions, and injunctions. [Emphasis supplied.]

|,Rule 9.2 of the Uniform Rules of the District Courts, promulgated by the Supreme Court, provides two exceptions to the requirement that the judge to whom the case is allotted must hear the preliminary injunction:

Except as allowed by La.Code Civ. Proc. art. 253.3, all contested matters shall be heard by the judge to whom the matter was allotted. The judge to whom the action has been allotted may designate the order-signing judge or any other judge to sign such orders and set such hearings, and in his or her absence, to hear such matters where necessary to comply with law, or when deemed to be an emergency, in accordance with La.Code Civ. Proc. arts. 253.2 and 253.3.

Collectively, the codal articles and rule direct that Judge Cates, to whom the case was randomly allotted, was required to hear the preliminary writ of injunction. Judge Reese, the duty judge, was without authority to hear the preliminary writ of injunction unless (a) the parties agreed, or (b) if Judge Cates designated Judge Reese to hear the matter and this designation was “necessary to comply with law” or “deemed to be an emergency.”

In this instance, there was no consent. Counsel for Mr. Jackson objected to proceeding before Judge Reese. Thus, in order for Judge Reese to have had authority, Judge Reese had to be designated by Judge Cates and the matter had to be heard for the purposes of complying with law or the matter had to be deemed an emergency.

IgNothing appears in the record on appeal to support a finding that Judge Cates was not available to hear the matter in the time provided by law. The law does not specifically mandate that the hearing on an application for a preliminary writ of injunction be heard within a specific time frame; rather, the law requires the matter “shall be assigned for hearing” not less than two or more than ten days from service. La. C.C.P. arts. 3602 and 3606. Once set, nothing in the statutes prohibit a continuance for a reasonable period of time, either on the court’s own motion or on the motion of any party. The hearing shall take precedence on the court’s docket on the day it is actually heard. La. C.C.P. art. 3606.

The record on appeal does not reflect that Judge Cates was unavailable on 22 February 2013 to hear and rule upon the motion for a preliminary writ of injunction. Judge Reese was without authority to hear or rule upon the matter on 22 February 2013 even if Judge Cates was unavailable due to an urgent family matter and Judge Reese was willing to assist; nothing in the record suggests the existence of an emergency that would have prevented Judge Cates from conducting this hearing in a timely manner. Though handled with good intentions, Judge Reese erred in hearing the matter and issuing the preliminary writ of [sinjunction in a case allotted to another division of court over the objections of counsel.

Considering our finding, we pretermit discussion of Mr. Jackson’s second assignment of error.

Accordingly, we vacate the judgment granting the preliminary writ of injunction and remand this matter to the trial court for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      . We note that a temporary restraining order cannot be issued without security (bond), unless such security is dispensed with by law. La. C.C.P. art. 3610. Security is not dispensed with by law in this case. See also La. C.C.P. art. 863.

      . Like the temporary restraining order, a preliminary writ of injunction cannot be issued without security unless the law dispenses with the requirement of security. La. C.C.P. art. 3610. The law does not dispense with bond in this case.

      . Comment (a) to the Uniform Rules states:
      The Louisiana Supreme Court has constitutional authority to promulgate these Rules under La. Const. art. V, § 5. These Rules are intended to supplement the Code of Civil Procedure. Therefore, a conflict between a Rule and legislation should be resolved by following the legislation.

        See also Rodrigue v. Rodrigue, 591 So.2d 1171 (La.1992); Rocque v. Dept. of Health and Human Resources, Office of Secretary, 505 So.2d 726, 728 (La.1987); cf., Byrd v. Dept. of Police, 12-1040, p. 12 (La.App. 4 Cir. 2/6/13), 109 So.3d 973, 981 (which is limited to civil service appeals).

      . Here, because the law only requires that the hearing on the preliminary writ of injunction be assigned not less than two nor more than ten days from the date of the order setting the hearing, and in the absence of actual evidence of an emergency preventing Judge Cates from hearing the application for preliminary in-junctive relief, Judge Reese could have extended the temporary restraining order pursuant to La. C.C.P. art. 3604 A until such time as Judge Cates was available to hear the matter.

      . We understand an “emergency” in this context to be when the court is closed because of a public emergency (like a hurricane) or when the life or safety of a living being is at risk. Since a temporary restraining order and/or preliminary writ of injunction should issue only when irreparable injury may occur, an emergency would not in ordinary circumstances include a matter where damages for the wrong issuance of the order or writ may be compensable in money. A personal emergency of a judge (e.g., a health matter of the judge or a judge's family member; attendance at a conference; a vacation) would not qualify as an "emergency” under the rule.


author: CARAWAY, J.

text:
    Claudia GRINNELL, et al, Plaintiffs-Appellants v. ST. FRANCIS MEDICAL CENTER, INC., Defendant-Appellee.
    No. 48,249-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 21, 2013.

      Anthony J. Bruseato, Monroe, LA, for Appellants.
    Hayes, Harkey, Smith & Cascio, L.L.P., Monroe, by John C. Roa, for Appellee.
    Before BROWN, CARAWAY and PITMAN, JJ.
   CARAWAY, J.

l,In this slip and fall case, the plaintiff slipped on a mat as she entered the hospital-defendant’s clinic. Plaintiff further injured. her preexisting knee condition as a result of this fall. Following a bench trial, the trial court determined that the plaintiff was free from fault and slipped on a wet floor mat. Nevertheless, the trial court failed to find any lapse in the hospital’s inspection procedure for the condition of its floor so as to hold the hospital liable for the wet mat. The plaintiff appeals this adverse ruling. Finding manifest error in the trial court’s ruling, we reverse and render.

Facts

On July 8, 2009, Claudia Grinnell (“Grinnell”) fell while entering the Community Health Center (“CHC”), an affiliated facility with St. Francis Medical Center, Inc. (“St. Francis”). As she entered the- automatic glass door, Grinnell observed a “wet floor” sign and two large blue floor mats on the tile floors at the entrance of the CHC. As Grinnell stepped on the left mat, she alleges that she fell as the mat slid from underneath her. It is undisputed that the mat was wet with water at the time of the fall. The evidence revealed that the accident occurred around 9:00 a.m. and that the building had been open to the public since 8:00 a.m.

Grinnell was helped up by Bill Wilson (“Wilson”), a former employee of the CHC, who was picking up a prescription at the CHC pharmacy. Wilson confirmed the condition of the mat as he aided Grinnell: “It was a wet rug that was crimpled and wrinkled up like an accordion and she was on |gthe rug.” The plaintiff was subsequently treated for wrist and knee pain sustained in the fall and released a few hours after the fall.

John Cameron (“Cameron”), filling in as security guard for an employee on vacation, filled out the handwritten incident report and took the plaintiffs statement, which noted the presence of Wilson and the fact that the fall was caused by a wet floor.

Grinnell subsequently filed this action for damages against St. Francis. The city court trial took place in 2012. Several people testified at the trial regarding the accident and potential causes of the wet mat. Grinnell testified that upon seeing the wet floor sign, she stepped on the left mat to avoid the tile floor and immediately slipped. Grinnell stated that when she stepped on the mat it felt like she was stepping ón ice. She testified that she landed on her wrists and knees. She moved over and sat on the wet rug until Wilson helped her up. She had previously undergone an unsuccessful surgery on her left knee which was further injured in her fall.

Grinnell’s husband, Richard Wilson (“Richard”), also testified at the trial. After receiving a call about the accident from his wife, Richard proceeded to CHC. After checking on his wife, he traveled a block away to enlist the aid of an attorney and friend to investigate what happened to his wife. They returned to the hospital and claim to have spoken with Cameron.

| (¡According to a memo which Richard prepared upon return to the attorney’s office, Cameron stated that:

They had pressure washed last night and apparently the next morning, the chemicals that were used in the pressure washing machine, got under the glass plate causing wet areas. There was an attempt to clean the chemicals off the floor on the morning of the incident, but there were still stains that could be seen on the floor. While we were there, there were towels on the inside against the base of the glass, all the way from the wall to the door opening.

According to Richard, Cameron informed them that the hospital windows are not properly sealed, resulting in water flowing in when the windows are power washed.

Cameron initially gave a deposition, introduced at trial, in which he did not remember anything regarding the fall, the plaintiff, or filling out an incident report. Cameron did, however, describe the approximate size of the mats, their placement at the entrance, and their function. In particular, Cameron was questioned about the mats, as follows:

Q. Have you ever seen those slide from the time that you worked out there?
A. No. No, sir. In fact, you’ve got to pull it. You can’t step on it and push it with your foot. You’ve got to pull the mat with your hands to move it.

It was not until the trial when the incident report was produced that Cameron “remembered” anything. Yet, he “remembered” only the details found in the incident report. He failed to recall any statement made to Richard or the attorney regarding the exterior windows having been power washed the night before the accident.

14Wilson testified that he arrived at the CHC about 15 minutes before Grinnell fell. Since he used the same entrance as Grin-nell, Wilson stated he walked over a mat to enter, but could not say whether he stepped on the left or right mat. Wilson testified, “I didn’t see her fall but I saw her on the floor on this crumpled up rug.” He observed a wet mat when he helped Grinnell to a chair. Wilson denied that he slipped or almost slipped on a mat when he arrived. He was not asked whether the wet floor sign was present when he arrived or about any towels on the floor or against the windows.

Foy Gadberry (“Gadberry”) qualified as an expert in the field of civil engineering. He is also a building inspector for seven parishes. Gadberry testified that the walkway of the CHC slopes toward the entrance doors, rather than away from them. As a result, he stated that water drains toward the automatic door. Given the flat surface of the door’s threshold, Gadberry testified that water would likely come into the lobby of the CHC. He also stated that the glass windows had not been properly sealed, allowing water to seep into the CHC lobby.

Gadberry also testified about the floor mats, which have rubber on the bottom to keep them from sliding. Therefore, Gad-berry determined that the only way the floor mats would have slipped out from underneath the plaintiff is if “there was moisture under that mat.” Gadberry testified that the wet mat could have simply been caused by someone having mopped the floor that morning.

1 sChris Hilburn (“Hilburn”) is the landscaping, irrigation, and exterior cleaning contractor for St. Francis and the CHC. Hilburn testified that he subcontracts out the power washing on the outside windows at the CHC. As a result, he was not able to testify as to when the exterior windows were last power washed. Hilburn later identified the person who actually power washes the exterior windows as Chad Puckett. Hilburn testified that because of the problem of the water inside the building, he disconnected the sprinklers in front of the entrance of the CHC several years before the accident. The leakage occurred along the glass window/walls adjacent to the entrance doors.

The CHC director, Gail Blackman (“Blackman”), also testified. She revealed for the first time at trial the fact that the CHC hires an independent company, Holiday Properties, to clean the building and the name and existence of the CHC’s cleaning lady, Molly, who would have been present on the date of the accident. Blackman stated that the wet floor signs are put up only as needed, although once in awhile, the signs are left out after cleaning the night before. Otherwise, she testified that it was the CHC’s policy to put these signs up only when an employee observed a spill or any liquid on the floor.

The trial court filed written reasons for judgment. First, the court stated that it was “convinced that this matter falls under the “reasonable care” standard for hospitals as set forth in Holden v. Louisiana State Univ. Med. Center-Shreveport, 29,268 (La.App.2d Cir.2/28/97), 690 So.2d 958, writ denied, 97-0797 (La.5/1/97), 693 So.2d 730. The court also ruled that the plaintiff was free from fault and fell on a wet floor mat. Relying on Wilson’s testimony regarding his crossing the mat 15 minutes earlier, the trial court ruled that it was “not convinced that St. Francis’s duty encompasses an inspection of more often than 15 minutes.” Following Holden, the court held that the CHC did not act unreasonably in not discovering the wet floor mat before plaintiffs fall. The ruling appears based upon the assumption that the water was spilled by another party in the building immediately before the accident. Grinnell’s claim was dismissed, and she now appeals.

Discussion

A trial court’s findings of fact will not be disturbed on appeal unless the appellate court finds they are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1998). The appellate court may not reverse the trial court even if the appellate court determines it would have weighed the evidence differently if sitting as the trier of fact, as long as the trial court’s findings are reasonable in light of the entire record. Id. at 882. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous. Id. at 883.

This court has previously held that a hospital is not a “merchant” under La. R.S. 9:2800.6. As a result, hospital liability in a slip and fall case has been held to fall under the general negligence standards. See, Holden, supra; Reynolds v. St. Francis Med. Center, 597 So.2d 1121 (La.App. 2d Cir.1992). Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2315. Under the negligence standard, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involved; but the duty owed is less than that owed by a merchant. Holden, supra; Reynolds, supra. The trial court must consider the relationship between the risk of a fall and the reasonableness of the measures taken by the defendant to eliminate the risk. Adams v. Louisiana State Univ. Health Sciences Center Shreveport, 44,627 (La.App.2d Cir.8/19/09), 19 So.3d 512, writ denied, 09-2056 (La.11/20/09), 25 So.3d 798; Holden, supra.

In Holden, this court observed that “[t]he presence of other members of the public passing through the [hospital] building raises a significant possibility that a spill was caused by the negligence of a third person;” Holden, supra at 961. Thus, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises safe. This involves the reasonableness of the measures taken by the hospital to monitor its premises for such occasional third party spills.

The trial court’s ruling repeatedly referred to the 15-minute interval between the time that Wilson entered the sliding glass doors and the time of Grinnell’s entry and fall. Therefore, since Wilson did not remember the presence of any water 15 minutes earlier or have any difficulty ■with the mats, the court’s ruling appears to rest upon the conclusion that a third party spilled the water during that time and “that 15 minutes is reasonable to | sallow a wet mat to exist.” The trial court further concluded: “It would be unreasonable to expect St. Francis to have all the floor space of the complex covered more than every 15 minutes.”

St. Francis’s third party spill scenario, upon which the trial court rested its ruling, is nonetheless a circumstantial evidence defense regarding the cause of the spill. In contrast, however, Grinnell’s case rested upon circumstantial and direct evidence of the hospital’s own negligent maintenance of its building in causing the water problem and failing to properly clean it up.

Grinnell’s claim that the negligence of St. Francis caused the water hazard rests upon the following assertions:

(1) Water was present, dampening Grin-nell’s clothing;
(2) St. Francis’s wet floor sign had been placed at the entrance;
(3) There was a water leakage problem around the base of the glass window/walls adjacent to the entrance door;
(4) Power washing of the glass windows regularly occurred;
(5) Towels were on the floor next to the glass window/walls;
(6) The mats had a rubber underside with carpet on top;
(7) The mat was difficult to wrinkle and shift when positioned on a dry floor;
(8) Grinnell’s fall caused the mat to crumple up, in an accordion-like manner;
(9) The expert testimony was that the mat could slip with water under the mat;
(10) While Grinnell fell on the mat on the left side of the entrance, Wilson was not questioned regarding his entry across the mats.

While we find that most of these assertions represent facts, undisputed at trial, we find it necessary to scrutinize further the towels, the power washing and the expert’s conclusion along with Richard’s testimony concerning the damaging admissions of Cameron.

|9In Richard’s testimony, he made reference to a memo which he and his attorney prepared on the day of the accident immediately after their inspection of the CHC entrance. He specifically identified on the date of the accident two practices regarding building maintenance which were later confirmed by other witnesses familiar with the building. One was the use of towels for a water leak around the base of the glass windows/wall adjacent to the sliding glass doors. The other was the use of a power washer around the outside of the building. The defense witnesses did not dispute that those practices had previously occurred causing water around the entrance, thus partially corroborating Richard’s report. The pharmacist at the CHC did not remember towels in use on that date, but she did not leave the pharmacy to attend Grinnell after the accident. Thus, her testimony did not directly dispute Richard’s reported observation of the towels after the accident.

Richard testified to Cameron’s damaging admissions made on the morning of the accident. In Cameron’s deposition and live testimony, he never disputed admitting the efforts on the morning of the accident to clean the residue on the floor caused by the power washing the night before because of his lack of memory. He did not remember any power washing incident, and indeed, he did not even remember aiding Grinnell after the accident.

Also, concerning this information gathered by Richard after the accident, St. Francis’s witnesses identified two persons who worked around the building on its behalf, the cleaning lady and the power washer | ^maintenance person. Nevertheless, despite its control of those persons who performed work for the hospital, St. Francis did not call them to testify.

The design of the mat and its condition after the accident further support the plaintiffs case. A photo of the mat overturned shows its design for rubber traction. Its top side with carpet is obviously designed to allow for traction even during a rain event when water is dripped by persons entering the building. Yet, it is undisputed that Grinnell’s fall caused the mat to slip and be wrinkled together like an accordion. The idea that a third party spill on top of the mat allowed the mat to slide and wrinkle together is a weak explanation of this water-related event. Instead, the plaintiffs expert opined that a mat placed on a recently mopped floor would allow for the slippage of the mat. Finally, there were two mats in question at the door. Therefore, Wilson’s earlier entrance across the area without identifying the mat upon which he walked does not eliminate the possibility of a problem with moisture under a mat.

Therefore, we find that the above list of facts for St. Francis’s negligent cleanup of the water is sufficient to show, more probably than not, that water had been on the floor prior to Grinnell’s entry and that dampness left under a floor mat caused the accident. Cameron’s admission was never denied, and the expert testimony was not seriously challenged by the defense. The ever-present third party spill possibility which the trial court used for its ruling must be deemed as speculation in this instance as it is l^discredited by the direct evidence supporting plaintiffs case. Accordingly, we find that the trial court was clearly wrong in not finding that the wet mat slipped as a result of the hospital’s earlier attempted clean up of the water on its floor.

Having determined the issue of liability, we found that the medical testimony reveals that the slip and fall exacerbated the plaintiffs preexisting left knee injury and caused back pain for about a week. Her preexisting left knee condition resulted from a 2005 car accident and an unsuccessful surgery. Her preexisting condition was severe chondromalacia patella which was described by her physician, Dr. Owen Meyers, as follows:

[Chondromalacia] is a term that can be utilized for any cartilage surface in the body ... In her case, the undersurface of her kneecap is very irregular and damaged and, um, that’s referring to that chronic irregularity that’s chronically rubbing the inside of the knee.

As a result of the prior injury, the plaintiff was in constant pain and already limited in her movements. In fact, the plaintiff entered the CHC in order to pick up a pain patch for her left knee.

Nevertheless, the plaintiff was immediately admitted to the hospital after the fall and her knees and wrists were x-rayed. None of the x-rays revealed any fractures or dislocations. The plaintiffs left knee x-ray merely revealed a “degenerative left knee joint without fracture or dislocation.” The plaintiff was prescribed an anti-inflammatory and was subsequently discharged.

Dr. Meyers testified that the plaintiffs pain level in her left knee increased for several weeks as a result of the fall. Due to the increased pain 112and swelling resulting from the fall, Dr. Meyers referred the plaintiff to a specialist.

The plaintiff was referred to Dr. Jeffrey Counts, an orthopaedic specialist at the North Louisiana Orthopaedic and Sports Medicine Clinic. Dr. Counts reviewed the recent x-rays and MRI, noted the plaintiffs preexisting degenerative joint disease, and determined that the plaintiff suffered an MCL sprain. According to the specialist, an MCL sprain would take several months to fully heal. Over the course of three to four months, Dr. Counts tried several types of injections that were either unsuccessful or only temporarily successful in reducing the plaintiffs pain. Next, Dr. Counts recommended pain management treatment, but the plaintiff chose to return to Dr. Meyers to merely adjust her pain medications.

Dr. Meyers testified that the plaintiffs pain and swelling in her left knee lasted for awhile. He could not specify exactly how long it took the plaintiffs knee to stabilize to its pre-accident, preexisting condition status, but he stated that her knee did return to its previous condition. At trial, the plaintiff submitted medical bills from all the doctor visits and tests which amount to a total of $2,527.80. These medical bills are reasonably documented and thus the plaintiff is entitled to the cost of these medical expenses.

General damages are those which cannot be fixed with pecuniary exactitude. Lewis v. State Farm Ins. Co., 41,527 (La.App.2d Cir.12/27/06), 946 So.2d 708; Maranto v. Goodyear Tire & Rubber Co., 25,114 (La.App.2d Cir.5/10/95), 661 So.2d 503. There is no mechanical rule for | ^determining general damages; rather, the facts and circumstances of each case must be considered. Maranto, supra. The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration. Jenkins v. State ex rel. Dept. of Transp. & Dev., 06-1804 (La.App.1st Cir.8/19/08), 993 So.2d 749, 767, writ denied, 08-2471 (La.12/19/08), 996 So.2d 1133; Lewis, supra.

A defendant takes his victim as he finds him and he is responsible for all the natural and probable consequences of his tortious conduct. Smith v. Escalon, 48,129 (La.App.2d Cir.6/26/13), 117 So.3d 576; Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. Where the defendant’s negligent action aggravates a preexisting injury, he must compensate the victim for the full extent of this aggravation. Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, 1124; Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980). Although the damages are greater because of a prior condition of the victim which is aggravated by the tort, the tort-feasor is, nevertheless, responsible for the consequences of his tort. Caskey v. Merrick Const. Co., Inc., 46,886 (La.App.2d Cir.3/14/12), 86 So.3d 186, writ denied, 12-0847 (La.6/1/12), 90 So.3d 442; Britt v. City of Shreveport, 45,513 (La.App.2d Cir.11/3/10), 55 So.3d 76.

In this case, the plaintiff requests $25,000 for pain and suffering and disability. As a result of the fall, the plaintiff, who teaches at a university, had to teach more online classes due to her inability to stand or walk very far after the fall. She also testified that she was in significant pain for months after the fall and her knee would often swell. Regardless, the 114plaintiff was able to travel to Germany for a month in October, and was already using daily pain medications for her left knee. After considering the plaintiffs preexisting condition, daily pain, and the testimony of Dr. Meyers regarding her recovery, we award general damages in the amount of $16,000.

Finally, Richard presented a claim for loss of consortium. From our review of the evidence presented concerning the aid and assistance he provided his wife for her knee condition, we find little change in the situation before and after the accident, enough to warrant an award for loss of consortium.

Conclusion

For the above reasons, the judgment of the trial court is reversed. Judgment is hereby rendered in favor of Grinnell in the amount of $18,527.80 plus legal interest. Costs of appeal are assessed to appellee.

REVERSED AND RENDERED.

      . From the evidence and photos, two mats were placed side by side, lengthwise, at the opening of the double sliding glass doors. The mats appear to be approximately 3 feet wide and 5-8 feet long.

      . The trial court overruled an objection to the introduction of this memo even though it clearly reflected not only Richard's investigation on the date of the accident, but also the observations of his trial attorney. Nevertheless, Richard confirmed in his separate testimony the substance reflected in this July 8, 2009 memo.

      . The CHC pharmacist testified that the wet floor signs are left on the dry floor on many occasions,

      . The "uncalled witness” rule gives rise to an adverse presumption when a party has the power to produce witnesses who would elud-date the occurrence and fails to call those witnesses. Bartley v. Fondren, 43,779 (La.App.2d Cir. 12/3/08), 999 So.2d 146.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Shawn JONES.
    No. 2013-KA-1118.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Donna An-drieu, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   EDWIN A. LOMBARD, Judge.

|tThe defendant, Shawn Jones, appeals his conviction for possession with intent to distribute marijuana, arguing insufficiency of evidence and ineffective assistance of counsel. After review of the record in light of the applicable law, although the defendant’s assignments of error are mer-itless, we vacate and remand the defendant’s conviction and sentence based upon an error patent.

Relevant Facts and Procedural History

On March 15, 2012, in response to reports of drug trafficking in the vicinity of Dale Street and Warfield Street in New Orleans, Louisiana, Detectives Imani Ruf-fin and Joseph Jefferson of the New Orleans Police Department (NOPD), operating in an undercover capacity, approached Lewis Monroe to buy marijuana. In the officers’ presence, Mr. Monroe made a phone call. Shortly thereafter, a person arrived with the marijuana that Mr. Monroe handed the undercover officers in exchange for two $20 bills that had been previously photocopied by the NOPD, memorializing the serial numbers. Leaving the scene, the undercover officers transmitted descriptions of Mr. Monroe and the marijuana courier to the “arresting” or “take-down unit,” which included Detectives Wesley Humbles and Travis Joseph. Arriving quickly, Detective Humbles moved to apprehend the ^defendant, whose clothes matched the description of the marijuana courier. As he did so, Detective Humbles observed the defendant discard a clear plastic bag of marijuana. Accordingly, the defendant was arrested for possession of marijuana and, in the search incident to the arrest, Detective Joseph found the two $20 bills from the controlled buy in the defendant’s pocket.

On May 30, 2012, Mr. Monroe and the defendant were jointly charged by bill of information with distribution of marijuana. The defendant pleaded not guilty and his defense counsel filed various motions on his behalf, including discovery motions, a motion to suppress, and for a preliminary examination. After a hearing on August 24, 2012, wherein the State offered the testimony of Detective Jefferson and introduced the crime laboratory report, the trial judge found probable cause to bind the defendant over for trial on the charge of simple possession of marijuana and denied the defendant’s motion to suppress.

On September 18, 2012, the defendant filed notice of his election to be tried by the judge in a bench trial. Meanwhile, Mr. Monroe withdrew his plea of not guilty, pleaded guilty, and was sentenced to a term of five years imprisonment at hard labor, suspended, and five years of active probation. At the defendant’s trial on March 1, 2013, the State offered the testimony of Detectives Ruffins, Joseph, and Humbles, as well as the crime laboratory report, two bags of marijuana, and a verification of the “buy money.” The State and defense then rested and, after listening to final arguments, the trial judge found the defendant guilty of possession with intent to distribute marijuana. After waiver of sentencing delays, the trial judge sentenced the defendant to five years of hard labor with credit for time served but without benefit of probation, parole, or suspension of sentence.

|sOn March 5, 2013, new counsel enrolled on behalf of the defendant and filed a motion to reconsider sentence. After a hearing on April 1, 2013, in which the defense offered the testimony of Antoine-sha Bernard (the mother of the defendant’s infant child) and offered a letter from the defendant’s former employer stating that the defendant would be employed if released, the trial judge granted the motion to reconsider sentence and amended the defendant’s sentence to five years at hard labor, suspended, and five years of active probation.

This appeal was timely filed.

Discussion

On appeal, the defendant argues that his trial counsel was ineffective and that the evidence is insufficient to support his conviction.

Sufficiency of the Evidence

When issues are raised on appeal both as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). When assessing the sufficiency of evidence to support a conviction, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

Notably, the defendant concedes that the State proved that he possessed marijuana, arguing only that there is insufficient evidence that his possession was with intent to distribute. “Intent is a condition of the mind which is usually proved by evidence of circumstances from which the intent may be inferred.” Hearold, 603 So.2d at 735 (citations omitted).

|4The following evidence was adduced at trial:

Detective Ruffins testified that when she asked Mr. Monroe where she could find marijuana, Mr. Monroe told her that “he had to call his sister because she sells marijuana.” She then watched Mr. Monroe as he made the phone call and, within ten to fifteen minutes, received the marijuana that Mr. Monroe obtained from someone else in exchange for the “NOPD buy money.” Notably, although Detective Ruffins identified the bag of marijuana she purchased from Mr. Monroe, she was not asked to identify the defendant as the person who brought the marijuana to Mr. Monroe. Further, on cross-examination Detective Ruffins conceded she did not see the defendant handle or drop any marijuana on the ground and that the purchased bag of marijuana was not tested for the defendant’s fingerprints.

Detective Humbles testified that, as a member of the support “take-down unit,” he did not observe the transaction. The “target subject” that made the “hand-to-hand transaction” with Mr. Monroe was described by radio transmission to the waiting police officers only “as wearing a gray t-shirt and blue jeans.” When he arrived at the scene of the undercover purchase, Detective Humbles observed the defendant, who was wearing a grey t-shirt and blue jeans, drop a clear plastic bag that subsequently tested positive as marijuana. He identified the bag of marijuana that the defendant dropped and, when asked if there was anything else he wished to tell the court, stated without objection, “Somebody positively identified him as the person that was meeting with the go-between and he was taken into custody.”

Detective Joseph testified, identifying the defendant as the person he arrested. He related that in the search incident to the arrest, he recovered from the defendant the two $20 bills that were used in the undercover purchase of the | ^marijuana. He verified that the serial numbers of the recovered bills matched the serial numbers of the “pre-recorded NOPD bills, two 20 dollar bills.”

Finally, the State submitted into evidence the crime laboratory report, the bag of marijuana identified by Detective Ruf-fins, the bag of marijuana identified by Detective Humbles, and the verification of the “buy money.”

Viewed in the light most favorable to the prosecution, any rational trier of fact could have inferred that the defendant possessed the marijuana with the intent to distribute. Clearly, under these circumstances, where the “buy money” was recovered from the defendant almost immediately after the transaction took place, it is reasonable to infer that the defendant was the person who brought the marijuana to Mr. Monroe to be sold and, in return, received the purchase money from Mr. Monroe, thus showing the requisite intent to distribute. However, as discussed infra, possession with intent to distribute is not a statutorily designated responsive verdict to the charged offense in this case.

Errors Patent

Our review of the record reveals an error patent requiring that the defendant’s conviction and sentence be vacated. Specifically, possession with the intent to distribute marijuana is not a responsive verdict to the charged offense in this case. The defendant was charged with distribution of marijuana, a violation of La.Rev. Stat. 40:966(A), and, therefore, only the following verdicts were available to the trial judge:

Guilty.
Guilty of attempted production, manufacture, distribution or dispensation of controlled dangerous substances.
Guilty of possession of controlled dangerous substances.
Guilty of attempted possession of controlled dangerous | nsubstances.
Not guilty.

La.Code Crim. Proc. art. 814(A)(48).

A trial court lacks the authority to vary or add to the prescribed verdicts mandated by La.Code Crim. Proc. art. 814. State v. Simmons, 357 So.2d 517, 518 (La.1978). A non-responsive verdict is an error which constitutes grounds for reversal. State v. Thibodeaux, 380 So.2d 59, 61 (La.1980). Moreover, a non-responsive verdict is a patent error which does not require a contemporaneous objection. La.Code Crim. Proc. art. 920(2) (an appellate court shall consider on appeal “an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence”); see also State v. Vincent, 387 So.2d 1097, 1099 (La.1980) (the verdict is part of the pleadings and proceedings; therefore, any error therein is renewable under La. Code Crim. Proc. art. 920). Accordingly, because the trial judge found the defendant guilty of possession with the intent to distribute marijuana, an offense that is not statutorily designated as responsive to the charged offense of distribution of marijuana, the defendant’s conviction must be vacated and the matter is remanded to the trial court.

Conclusion

As noted, the defendant concedes he was in possession of marijuana, a responsive verdict to the offense charged. Because the defendant’s conviction and sentence are vacated and this matter is remanded to the trial court, we pretermit a 17discussion of the defendant’s ineffective assistance of counsel claim.

VACATED AND REMANDED.

      . The sentence imposed for possession with intent to distribute marijuana was also illegally lenient because the fine required by La.Rev. Stat. 40:966(B)(3) was not imposed but, as the verdict itself is defective, this issue is moot.