author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Johnny WILLIAMS.
    No. 2013-KA-1300.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Donna An-drieu, Assistant District Attorneys, New Orleans, LA, for Appellee/State of Louisiana.
    Sherry Watters, New Orleans, LA, for Defendant/Appellant.

      (Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

_LjThis is a criminal appeal. The defendant, Johnny Williams, entered a Crosby conditional guilty plea, reserving his right to appeal the district court’s ruling denying the motion to suppress his two statements. For the reasons that follow, we reverse the district court’s ruling denying the motion to suppress as to one of the statements, but affirm the district court’s ruling denying the motion to suppress as to the other statement. We remand to the district court for further proceedings consistent with the instructions provided in this opinion.

STATEMENT OF THE CASE

On January 5, 2012, the State of Louisiana charged Mr. Williams, by bill of information, with one count of simple robbery, in violation of La. R.S. 14:65, and one count of resisting an officer, in violation of La. R.S. 14:108. On September 26, 2012, Mr. Williams entered a plea of not guilty to both counts.

On November 27, 2011, Shantell Coleman, the victim, alerted New Orleans Police Department (“NOPD”) Officer Christopher Durning and other officers in the 300 block of Bourbon Street that a man allegedly stole her iPhone. Ms. Coleman then pointed out' Mr. Williams to the officers as the man who stole her |2iPhone. The officers approached Mr. Williams and informed him of Ms. Coleman’s accusations. Mr. Williams then attempted to run away. Officer Durning apprehended Mr. Williams, placed him under arrest, and administered Miranda warnings from memory. Mr. Williams stated that he understood his rights. A search incident to an arrest was conducted, and Officer Durning found an iPhone in Mr. Williams’ front right pocket, which Ms. Coleman later identified as her iPhone. The officers escorted Mr. Williams to the Eighth District police station. During the short walk to the station, Officer Durning asked Mr. Williams general questions about the incident. Mr. Williams responded that he should not have been on Bourbon Street and that he was sorry (the “First Statement”).

Upon arrival at the police station, NOPD Detective Steve Nolan asked Mr. Williams whether he wanted to offer a statement. Mr. Williams stated that he did, and Detective Nolan took him to an interview room. Detective Nolan presented Mr. Williams with a voluntary statement form (the “Voluntary Statement Form”). He explained to Mr. Williams that by signing the Voluntary Statement Form, “it’s not admitting to any guilt; it’s just saying that I basically read my — we read you your rights, that you understand them, and if you wish to speak to me, you can.” After Mr. Williams signed the Voluntary Statement Form, he stated that he took the iPhone to replace parts on his own phone (the “Second Statement”).

On April 18, 2013, Mr. Williams filed a motion to suppress both statements. At the motion hearing, the State called Officer Durning and Detective Nolan as witnesses. On July 9, 2013, the district court denied Mr. Williams’ motion to | ¡¡suppress the statements. Mr. Williams noted his objection on that date. Subsequently, he entered a plea of guilty, reserving his right to appeal the district court’s judgment pursuant to Crosby. This appeal followed. ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

In his sole assignment of error, Mr. Williams contends that the district court erred in denying the motion to suppress his two statements. In support, he contends that he was not fully advised of his Miranda rights before he made the two statements at issue and that the statements therefore should have been suppressed.

It is well-settled that a trial court is vested with vast discretion in ruling on a motion to suppress. State v. Ulmer, 12-0949, p. 4 (La.App. 4 Cir. 5/29/13), 116 So.3d 1004, 1007 (collecting cases). Stated another way, “a trial court’s ruling on a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion.” Id., 12-0949 at p. 4,116 So.3d at 1007 (citing State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581).

At the outset, we note that both statements were made by Mr. Williams during a custodial interrogation — he was placed under arrest, asked questions by Officer Durning, escorted to the police station, and later interrogated by Detective Nolan. “In Miranda v. Arizona, the United States Supreme Court held that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins.” State v. Payne, 01-3196, p. 7 (La.12/4/02), 833 So.2d 927, 934 (citing Miranda, 384 U.S. at 469-473, 86 S.Ct. at 1625-1627). The pivotal issue in this case is whether Miranda warnings were |4properly given before both statements at issue. We separately address each statement because each was given to a separate NOPD officer, and each officer provided a separate Miranda warning to Mr. Williams.

The First Statement

As noted, the First Statement was made by Mr. Williams in response to Officer Durning’s general inquiries about the incident. The First Statement was that he should not have been on Bourbon Street and that he was sorry. Mr. Williams contends that before he made the First Statement, Officer Durning administered Miranda warnings by memory and that the officer failed to inform him of his right to have counsel present during questioning. As a result, Mr. Williams contends that he was not given a complete recitation of his Miranda rights and that the First Statement should have been suppressed.

The State counters that the jurisprudence does not require a verbatim recitation of the Miranda warnings and that to require law enforcement officers to specifically advise a defendant that he has a right to an attorney present during questioning “cruelly tortures the English language.” The State emphasizes that Officer Durning advised Mr. Williams that he had the right to an attorney and that if he could not afford one, an attorney would be appointed to represent him. The State contends that this warning was legally sufficient.

In Miranda, the United States Supreme Court outlined the procedural safeguards that must be satisfied before a custodial interrogation takes place as follows:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either re-tamed or appointed. The defendant may waive 15effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Louisiana Supreme Court has further noted that “it is well-settled that a ‘heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’ ” State v. Vigne, 01-2940, p. 6 (La.6/21/02), 820 So.2d 533, 537 (quoting Tagne v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980)).

The sufficiency of the part of the Miranda warning regarding the right to have counsel present during interrogation was addressed by this court in State v. Harris, 11-0941 (La.App. 4 Cir. 8/2/12), 98 So.3d 903. In that case, the defendant was arrested after a detective observed cocaine in his mouth. Harris, 11-0941 at p. 7, 98 So.3d at 911. The detective advised defendant of some of his rights, which the detective recited by memory; and the defendant subsequently made self-incriminating statements. Harris, 11-0941 at p. 12, 98 So.3d at 913. Although the district court denied the defendant’s motion to suppress his statements, this court reversed. In so doing, this court reasoned that the detective’s warning to the defendant that “he had a right to an attorney” was insufficient under Miranda. This court explained that the warning failed to clearly inform the defendant that his right to counsel included the right to speak to an attorney before police interrogation and to have an attorney present during such interrogation. Continuing, this court noted:

A verbatim recitation of the warnings as set out in Miranda is not required, and the Supreme Court has “never insisted that Miranda warnings be given in the exact form described in that decision.” Duckworth v. Eagan, 492 U.S. 195, 202,109 S.Ct. 2875,106 L.Ed.2d 166 (1989). “The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.” Id. at 203, 109 S.Ct. 2875. While no exact language is required, informing an individual of his right to consult with a lawyer before interrogation | fiand to have a lawyer present with him during interrogation “is an absolute prerequisite to interrogation.” Miranda, 384 U.S. at 471, 86 S.Ct. 1602.
This temporal requirement that the right to the lawyer attaches before and during any interrogation is key.

Harris, 11-0941 at p. 14, 98 So.3d at 914.

By analogy, in this case Officer Durning advised Mr. Williams that he had a right to an attorney; he failed to advise him that the right to an attorney included the right to speak to an attorney before police interrogation and to have an attorney present during such interrogation. At the motion hearing, Officer Durning testified that the rights he recited from his memory to Mr. Williams were as follows: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney; if you can’t afford one, one will be appointed to you.” As in Harris, we find Officer Dunning’s warning to Mr. Williams that he had a right to attorney was insufficient under Miranda. The district court thus erred in denying Mr. Williams’ motion to suppress the First Statement.

The Second Statement

The Second Statement was made by Mr. Williams after he signed the Voluntary Statement Form. In the Second Statement, Mr. Williams stated that he took the iPhone to replace parts on his own phone. Mr. Williams contends that the Second Statement should have been suppressed because he made it after Detective |7Nolan coerced him to sign the Voluntary Statement Form. Mr. Williams further contends that Detective Nolan deceptively informed him that by signing the Voluntary Statement Form, “it’s not admitting to any guilt; it’s just saying that I basically read my — we read you your rights, that you understand them, and if you wish to speak to me, you can.” Mr. Williams submits that he did not knowingly and intelligently waive his rights by signing the Voluntary Statement Form.

The United States Supreme Court in Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), addressed the issue of coercive police activity and the voluntariness of a waiver. The Supreme Court noted that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. The Supreme Court further noted:

The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. See Moran v. Burbine, 475 U.S. [412], at 421,106 S.Ct. [1135], at 1141, 89 L.Ed.2d 410 [ (1986) ] (“[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception .... [T]he record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements”); Fare v. Michael C, 442 U.S. 707, 726-727, 99 S.Ct. 2560, 2572-2573, 61 L.Ed.2d 197 (1979) (The defendant was “not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit.... The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda ”).

Connelly, 479 U.S. at 170, 107 S.Ct. at 523.

Detective Nolan testified that he did not force, coerce, or threaten Mr. Williams to sign the Voluntary Statement Form. He further testified that when Mr. Williams arrived at the station, Mr. Williams told Detective Nolan that he wanted to give a statement. Once in the interview room, Mr. Williams signed the | a Voluntary Statement Form and told Detective Nolan that he took the iPhone to replace parts on his own phone. Mr. Williams failed to offer any evidence at the motion hearing to rebut Detective Nolan’s testimony or to prove any signs of coercion or force. Given these circumstances, we conclude that Mr. Williams voluntarily signed the Voluntary Statement Form.

Mr. Williams also contends that he did not knowingly sign the Voluntary Statement Form because Detective Nolan failed to give him “correct or complete [Miranda] rights.” The State counters that because there was no significant break in the interrogation process, Detective Nolan was not required to “re-Miran-dize ” Mr. Williams before questioning him at the station. In support, the State cites State v. Harvill, 403 So.2d 706, 709 (La. 1981) (holding that “[a]bsent some significant break in the interrogation process, such as a specific request for assistance of counsel, repetition of these warnings prior to the taping of defendant’s statement is not required.”). The State also emphasizes that the Voluntary Statement Form contained a full recitation of the required Miranda warnings and that Mr. Williams’ signature on the Voluntary Statement Form serves as “strong evidence” that he voluntarily and knowingly waived his right to remain silent.

The State’s contention that there was no requirement that Mr. Williams be “re-Mir-andized ” because he was Mirandized by Officer Durning is belied by our finding that Officer Durning failed to provide satisfactory Miranda warnings. Hence, in order for Mr. Williams’ Second Statement to be admissible, Detective Nolan was required to provide Mr. Williams with satisfactory Miranda rights. For the reasons set forth below, we find that he did so.

Although Detective Nolan failed to state whether he read Mr. Williams his rights or whether Mr. Williams read these rights himself, the jurisprudence has |3recognized that it is not necessary for an officer to read a defendant his rights if the record otherwise indicates that the defendant was informed of his rights. See State v. Wright, 441 So.2d 1301, 1304 (La.App. 1st Cir.1983) (the defendant testified that he read the voluntary statement form, and the deputy testified that the defendant read the form and indicated that he understood his rights); see also State v. Yates, 357 So.2d 541, 544 (La.1978). Such is the case here.

The Voluntary Statement Form that Detective Nolan provided to Mr. Williams contained a full recitation of the Miranda warnings. Mr. Williams signed the Voluntary Statement Form, a certified copy of which is in the record. Further, Detective Nolan testified that he told Mr. Williams that by signing the Voluntary Statement Form he was not admitting guilt, but simply saying that he understood his rights. Thus, the enumeration of the Miranda rights in the Voluntary Statement Form coupled with Detective Nolan’s testimony establish that when Mr. Williams signed the Voluntary Statement Form he indicated that he understood his rights and that he was knowingly waiving these rights. Accordingly, the district court did not abuse its discretion in denying the motion to suppress as to the Second Statement.

Harmless Error

Mr. Williams contends that if this court finds the district court erred in failing to suppress either or both of his statements, it was not “harmless error.” Conversely, the State contends that any such error was harmless. We find it unnecessary to resolve this issue. Harmless error is determined at trial, not in a pretrial setting. Thus, the harmless error standard does not apply when, as in this | ] pease, a defendant has entered a conditional Crosby plea. Harris, 11-0941 at pp. 20-21, 98 So.3d at 917-18.

In Harris, this court explained why the harmless error standard does not apply in this context as follows:

Unlike the defendant in [Arizona vj Fulminante, [499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ], Mr. Harris entered a conditional guilty plea, reserving his right to appeal the trial court’s pre-trial rulings. Mr. Fulmi-nante’s complaint arose out of the in-trial introduction of an involuntary statement. Fulminante, 499 U.S. at 283-284, 111 S.Ct. 1246. And Mr. Harris entered a qualified plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976).
The purpose of allowing a qualified plea under Crosby “is to permit a fair and efficient method to review a central issue of a trial and a prosecution, in instances where the pre-plea ruling, if erroneous, mandates a reversal of any conviction which may result.” Id. at 591. A conditioned plea avoids the delay and expense of an unnecessary trial when the trial would serve as only a formality before the defendant could appeal his adverse pre-trial ruling: Id.

Because the trial judge found this pretrial ruling to be a sufficient basis to accept a conditional plea, see State v. Gillis, 07-1909 (La.App. 1 Cir. 3/26/08), 985 So.2d 745, Mr. Harris benefits from the presumption that his assignments of error would be grounds for the reversal of his conviction, should we find them to be correct. Thus, we reject the prosecution’s suggestion that we review the ruling for harmless error.

Harris, 11-0941 at pp. 20-21, 98 So.3d at 917-18. Likewise, given that Mr. Williams entered a Crosby plea and did not go to trial, the harmless error analysis is inapplicable in this case.

Summary

Summarizing, we find that Mr. Williams did not knowingly make the First Statement to Officer Durning. Officer Durning failed to fully advise him of his right to have counsel present during interrogation as required by Miranda. Conversely, we find that Mr. Williams did voluntarily and knowingly make the |n Second Statement to Detective Nolan. The Voluntary Statement Form included a full recitation of the Miranda warnings and Detective Nolan testified that Mr. Williams indicated that he understood those rights by signing the Voluntary Statement Form.

Although the reversal of the district court’s ruling and the setting aside the guilty plea is the relief that Mr. Williams seeks, it is not evident that the suppression of the First Statement without the suppression of the Second Statement would necessarily impel Mr. Williams to withdraw his guilty plea. For this reason, we reverse the district court’s ruling on the motion to suppress the First Statement, but remand to the district court for further proceedings. On remand, the district court is instructed to allow Mr. Williams to file a motion to withdraw his guilty plea within thirty days of the finality of this Court’s judgment. If Mr. Williams timely files such motion, the district court is further instructed to allow Mr. Williams a new trial. See Harris, 11-0941 at p. 21-22, 98 So.3d at 918.

DECREE

For the foregoing reasons, the district court’s ruling denying the motion to suppress the Second Statement is affirmed, its ruling denying the motion to suppress the First Statement is reversed, and this case is remanded for further proceedings consistent with the instructions provided in this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584, 588 (La. 1976).

      . Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      .Detective Nolan testified that everything that took place in the interview room was recorded; however, the State did not introduce the recording into the record.

      . Thereafter, Mr. Williams was arrested, escorted to the police station, and asked by Officer Durning why he stole the iPhone. Mr. Williams then made the First Statement — that he should not have been on Bourbon Street and that he was sorry.

      . Mr. Williams also argues that the Miranda warnings Officer Durning recited to him were incomplete because he was not advised that his silence could not be used against him. Given our holding that the First Statement should be suppressed on another basis, we pretermit addressing this alternative argument.

      . Although a certified copy of the Voluntary request to supplement the record on appeal Statement Form was not in the record on with a certified copy of the Voluntary State-appeal, the district court granted the State's ment Form.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Tess G. LASSAI v. Curt EYSINK, Executive Director, Louisiana Workforce Commission, and Patriot Protection Agency.
    No. 2013-CA-1607.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.
    Rowena T. Jones, Southeast Louisiana Legal Services, New Orleans, LA, for Plaintiff/Appellant.
    Danelle L. Gilkes, Louisiana Workforce Commission, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

11 This appeal arises from the trial court’s granting of the Louisiana Workforce Commission’s (“administrative agency”) exception of peremption. Tess Lassai (“Ms. Lassai”) sought judicial review of the appeal referee’s decision to affirm the administrative agency’s denial of her unemployment compensation which held she was disqualified for benefits because she left employment without good cause pursuant to La. R.S. 23:1601. The administrative agency filed an exception of peremption with the trial court alleging that, pursuant to La. R.S. 23:1629, Ms. Lassai’s appeal was untimely. The administrative agency did not raise the issue of timeliness at the hearing level; and therefore, Ms. Lassai was not given an opportunity to submit evidence of her own or rebut the evidence submitted by the administrative agency. Consequently, when the trial court granted the administrative agency’s exception of peremption, the record on the issue was not complete. We find that due process requires the matter be reversed and remanded to the Board of Review for notice and an evidentiary hearing on the new timeliness issue.

bPROCEDURAL AND FACTUAL BACKGROUND

Ms. Lassai filed her application for unemployment compensation with the administrative agency on September 20, 2012. The following day, the administrative agency sent notice of the claim to Ms. Lassai’s former employer, Patriot Protection Agency, Inc. (“Patriot Protection”). On October 25, 2012, the administrative agency denied Ms. Lassai unemployment compensation finding she was disqualified under La. R.S. 23:1601(1) because she voluntarily left employment.

Disagreeing with the administrative agency’s findings, Ms. Lassai sought review with an appeal referee pursuant to La. R.S. 23:1629 and 42 U.S.C. § 503(a)(3) . Ms. Lassai alleges that her original request for a hearing was “apparently lost by the agency.” Ms. Lassai avers she then requested a hearing, for a second time, and on the January 10, 2013 fax cover sheet she noted that she was “sending [her] Appeal for the 2nd time.” The administrative agency docketed her appeal and a notice of the hearing was sent with the issues to be adjudicated at the hearing. The notice made no mention of the timeliness issue. The appeal referee | ¡¡conducted a full evidentiary hearing by telephone with Ms. Lassai. Her former employer, Patriot Protection, did not participate at the hearing.

On February 7, 2013, the appeal referee affirmed the administrative agency’s decision to disqualify Ms. Lassai from receiving unemployment compensation benefits. Ms. Lassai appealed to the Board of Review which affirmed the disqualification made by the appeal referee. She then sought judicial review of the Board’s decision in Orleans Parish Civil District Court pursuant to La. R.S. 23:1634. In response, the administrative agency filed an exception of peremption with the trial court, raising the timeliness issue for the first time. The administrative agency stated in its exception that it “failed to notice” the issue earlier. Even so, the administrative agency alleged that Ms. Lassai filed her request for a hearing with an appeal referee past the fifteen (15) day peremptory period. The trial court granted the exception, and the appeal was dismissed. Ms. Lassai’s timely appeal to this Court follows.

STANDARD OF REVIEW

In Robert v. Robert Mgmt. Co., LLC, we discussed the standard of review applied in cases based on peremption:

Peremption is an objection that “may be raised through a peremptory exception.” La. C.C.P. art. 927. This exception involves the interpretation of a statute, which is a legal question. Legal questions are reviewed utilizing the de novo standard of review. Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353. However, we review any factual conclusions made by the trial court with the manifestly erroneous or clearly wrong standard of review. Dalian Novelties & Co., LLC v. Ohio Cas. Ins. Co., 10-0626, p. 2 (La.App. 4 Cir. 10/20/10), 51 So.3d 129,132.

1411 — 0406, p. 3 (La.App. 4 Cir. 12/7/11), 82 So.3d 396, 398.

LA. R.S. 23:1629

The administrative agency maintains that the trial court correctly granted the exception in that it is well-established law that the failure to file an appeal within the peremptory period provided by statute will result in the forfeiture of any right of action. Bailey v. Cajun Insulation, 453 So.2d 237 (La.1984); Ward v. Blache, 466 So.2d 723 (La.App. 4th Cir.1985). The administrative agency avers that the face of the documents submitted to the trial court demonstrates her hearing request with an appeal referee was untimely. To support its contention, the administrative agency points to the appeal self-dated and faxed on January 10, 2013.

Conversely, Ms. Lassai asserts the trial court wrongly dismissed her petition for judicial review because the dismissal was based on a new issue, that her appeal request was untimely, that there was no prior notice of the new issue, nor was the issue adjudicated before the appeal referee.

La. R.S. 23:1629(A)(1) provides:

Within fifteen days after notification was given or was mailed to his last known address, the claimant or any other party entitled to notice of a determination may file an appeal from such determination with an appeal referee either by mailing such appeal, as evidenced by the postmarked date, or by delivering such appeal. The appeal referee shall mail a “notice to appear for a hearing” to all parties to the appeal at least seven days prior to the date of hearing, and copies of the statements by the claimant and employer, which were used in the appealed determination, shall be sent with such notice if requested.

Ms. Lassai’s unemployment compensation claim was denied on October 25, 2012. The administrative agency claims that despite the attached cover sheet indicating that it was her second attempt to file an appeal and absent proof of an earlier timely appeal, the request sent on January 10, 2013, was untimely under La. |sR.S. 23:1629(A)(1). The administrative agency, however, did not raise the issue of untimeliness until after the matter went through the administrative review process and Ms. Lassai sought judicial review with the trial court.

The Louisiana Supreme Court in Schex-nider v. Blache, 504 So.2d 864 (La.1987) enumerated the rights required by due process in unemployment compensation agency hearings including:

(1) the right to notice, including an adequate formulation of the subjects and issues involved in the case;
(2) the right to present evidence (both testimonial and documentary) and argument;
(3) the right to rebut adverse evidence, through cross-examination and other appropriate means;
(4) the right to appear with counsel;
(5) the right to have the decision based only upon evidence introduced into the record of the hearing; and
(6) the right to have a complete record, which consists of a transcript of the testimony and arguments, together with the documentary evidence and all other papers filed in the proceedings.

Id. at 865-66. (emphasis added).

The timeliness of Ms. Lassai’s hearing request was not noticed as an issue for adjudication at the hearing. Consequently, Ms. Lassai did not submit or know to submit evidence on the timeliness issue. Not until the issue was raised before the trial court, did Ms. Lassai become aware that there was a question as to the timeliness of her request for administrative review. Thus, she was unable to rebut adverse evidence or develop a complete record for judicial review.

Additionally, La. R.S. 23:1634(B) provides in pertinent part:

[i]n any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified Ififíndings and conclusions, together with a transcript of the additional record,

(emphasis added).

To comport with Ms. Lassai’s due process rights under Schexnider, the trial court should have ordered additional evidence to be taken before the Board of Review. After proper notice of the issue and evidentiary hearing, the Board could modify its findings of fact or conclusions, if necessary, and then file it with the trial court. We find the trial court erred in that it did not remand the matter to the Board of Review for proper notice and evidentiary hearing on the timeliness of her request for administrative review.

DECREE

We find the trial court’s dismissing of Ms. Lassai’s petition was in error as she was denied a fair hearing and review rights pursuant La. R.S. 23:1629 and 42 U.S.C. § 503(a)(3). Therefore, we remand the matter to the Board of Review for proper notice and an evidentiary hearing on the timeliness issue.

REVERSED AND REMANDED.

      . 42 U.S.C. § 503(a)(3)(a) Provisions required The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act [26 U.S.C.A. § 3301 et seq.], includes provision for— (3) Opportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment compensation are denied;


author: PAUL A. BONIN, Judge. MCKAY, C.J.,

text:
    STATE of Louisiana v. Randolph ARMSTEAD.
    No. 2014-KA-0036.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Roshell Jones, Roshell Jones, APLC, Lafayette, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

| Randolph Armstead appeals his conviction for carnal knowledge of a juvenile and the sentence of ten years imposed upon him. He assigns six errors. See La. C.Cr.P. art. 920(1). Because we find an error patent which requires us to vacate his conviction and sentence, we pretermit consideration of his assignments of error. See La.C.Cr.P. art. 920(2) (patent error is “[a]n error that is discoverable by the mere inspection of the pleadings and proceedings and without an inspection of the evidence.”).

After the trial judge sustained a motion to quash, which had only been verbally urged, the prosecution filed a motion for appeal. The trial judge then entered a written order of appeal. Upon the happening of that event, the trial court was divested of its jurisdiction over this matter. See La.C.Cr.P. art. 916; State v. Spell, 388 So.2d 754 (La.1980). Despite the divestment of jurisdiction, the trial judge reconsidered his ruling, reversed himself, and conducted a trial on the merits, at the conclusion of which the defendant was found guilty by a jury of felony carnal knowledge of a juvenile. Because none of these actions are authorized by Article 916, the trial court had no jurisdiction to accept the verdict. Because the verdict is invalid, the sentence is also invalid. See La. C.Cr.P. art. 872(3).

li>We, therefore, vacate Mr. Armstead’s conviction and sentence. We explain our decision in detail in the following Parts.

I

Initially, in 2010, the prosecution improperly instituted proceedings against Mr. Armstead for aggravated rape and second degree kidnapping by bill of information. See La.C.Cr.P. art. 382 A; La. R.S. 14:42 D. The alleged underlying offense, in which the victim was sixteen years old, occurred in 2001. The victim reported that she was dragged into an alleyway and raped by two schoolmates. Vaginal swabs were obtained from her person and the DNA material that was collected was preserved.

Just before instituting prosecution, the district attorney learned that a match had been made with Mr. Armstead. As the prosecution progressed, and the victim showed a marked degree of lack of cooperation, the district attorney amended the bill of information to amend the aggravated rape charge to felony carnal knowledge of a juvenile, a violation of La. R.S. 14:80. The district attorney also dropped the kidnapping charge.

Following the prosecutor’s amendment of the bill of information, Mr. Armstead orally moved to quash the amended bill on the ground that the time limitation to institute prosecution had expired. See La. C.Cr.P. art. 532(7). On September 25, 2012, the trial judge sustained the motion. The district attorney moved for an appeal on September 26, 2012, which was granted in writing on the same day. See La. C.Cr.P. art. 912 B(l).

On instructions of the trial judge, counsel for Mr. Armstead faxed a copy of his written motion to quash to both the Clerk of Court and the prosecution on September 28, 2012. The prosecution did not file an opposition memorandum. |sThe trial judge set the motion for a hearing date. At the close of the November 9, 2012, the prosecution asked for reconsideration, which the trial judge granted. The trial judge then reversed his own ruling. But the district attorney had never withdrawn his motion for appeal.

Eventually, Mr. Armstead was convicted by a jury and sentenced by the judge. He then appealed to us.

II

In every criminal case, we review the record for patent errors. Jurisdictional defects underlying a defendant’s conviction or sentence can constitute errors patent. See, e.g., State v. Brooks, 633 So.2d 816, 817-818 (La.App. 4 Cir.1994); State v. Martin, 483 So.2d 1223, 1224-1225 (La. App. 4 Cir.1986). The Supreme Court, likewise, acknowledges that a jurisdictional defect can constitute an error patent. See State v. Jackson, 04-2863, p. 8 (La.l1/29/05), 916 So.2d 1015, 1019. In Jackson, the court observed that it “has long been established that lack of jurisdiction is a defect fatal to a criminal prosecution.” Id. The court further noted that a nullity resulting from an absence of jurisdiction “may be invoked by any one at any time and anywhere.” Id., citing Decuir v. Decuir, 105 La. 481, 485, 29 So. 932, 934 (1901), and State v. Nicolosi, 128 La. 836, 55 So. 475, 478 (La.1910). Jurisdictional defects, therefore, “discoverable as errors patent on the face of the record, are those defects which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged.” State v. Kendrick, 34,097, p. 1 (La.App. 2 Cir. 12/20/00), 779 So.2d 884, 885.

Criminal prosecutions “must be conducted within the strict confínes of the criminal justice system.” Amacker v. Washington Correctional Institute, 10-2316, p. 10 (La.App. 1 Cir. 7/14/11), 70 So.3d 1027,1033. This is so because of the | .fundamental difference between criminal and civil matters. See Bd. of Commissioners of Orleans Levee v. Connick, 94-3161 (La.3/9/95), 654 So.2d 1073, 1080. “Criminal prosecutions put the defendant at risk of losing basic personal freedoms which are protected by both the United States and the Louisiana Constitutions.” Amacker, 10-2316, p. 10, 70 So.3d at 1033.

“Courts have the jurisdiction and powers over criminal proceedings that are conferred upon them by the constitution and statutes of this state, except as their statutory jurisdiction and powers are restricted, enlarged, or modified by the provisions of this Code.” La.C.Cr.P. art. 16 (emphasis added). District courts, including the Criminal District Court for the Parish of Orleans, are vested with original jurisdiction over criminal proceedings. See La. Const, art. 5, § 16; La. R.S. 13:1335 (relative to Criminal District Court). In the exercise of. its criminal jurisdiction, a trial court is bound by the provisions of the Louisiana Code of Criminal Procedure. See La.C.Cr.P. art. 15 A (“The provisions of this Code, except as otherwise specially provided by other statutes, shall govern and regulate the procedure in criminal prosecutions and proceedings in district courts.”).

Article 916 of the Code of Criminal Procedure restricts a trial court’s jurisdiction after the signing of an order of appeal:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
| s(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.
(All emphasis added.)

Because conducting a trial, receiving a jury’s verdict, and imposing sentence are not the exceptional actions over which it retained jurisdiction under Article 916, the trial court was divested of its jurisdiction.

Ill

There are dispositive consequences when a court is divested of its jurisdiction, that is when it is without jurisdiction.

Jurisdiction is defined as “the authority by which courts and judicial officers take cognizance of and decide cases.” State v. Neisler, 93-1942 (La.2/28/94), 638 So.2d 1224, 1230 n. 14, citing Black’s Law Dictionary 766 (5th Ed.1979). See also La. C.C.P. art. 1 (“Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.”) Subject matter jurisdiction is a “threshold” issue. Spinosa v. Spinosa, 05-1935, p. 7 (La.7/6/06), 934 So.2d 35,|„41. A court’s power to act on any matter is contingent upon the court’s subject matter jurisdiction over the case or controversy before it, and any judgment or order from a court lacking subject matter jurisdiction is void. See, e.g., IberiaBanlc, v. Live Oak Circle Development, 12-1636, p. 4 (La.App. 1 Cir. 5/13/13), 118 So.3d 27, 30.

When jurisdiction over the subject matter is lacking, the court is bound ex officio to notice it, and the judgment of a court wanting such jurisdiction will be null. See State v. Daniels, 13-176, p. 5 (La.App. 5 Cir. 10/9/13), 128 So.3d 349, 351; BHnkhaus v. Senate of State of La., 95-0647, p. 4 (La.App. 1 Cir. 4/18/95), 655 So.2d 394, 396. And jurisdiction cannot be conferred by waiver or consent. See State v. LeBlanc, 517 So.2d 219, 220 (La. App. 1 Cir.1987); Kendrick, 34,097, p. 1, 779 So.2d at 885. Also see generally, 1 Wharton’s Criminal Procedure § 11 at p. 95 (1989) (“[The] lack of jurisdiction of the subject matter cannot be waived, nor can it be conferred even by the consent of the parties; and an objection that the court lacks jurisdiction of the subject matter can be raised at any time.”).

Thus, even though considerations of so-called judicial efficiency might urge us to overlook the trial court’s lack of jurisdiction and thereby proceed to decide without further delay the errors assigned by the defendant, we are bound to notice the lack of jurisdiction along with the consequential nullity of the court’s action |7subsequent to its divestiture. We are powerless to consider either the failure of the defendant to object to the trial court’s lack of jurisdiction, or even his positive consent to such apparent exercise as re-conferring jurisdiction in the trial court over these proceedings.

IV

We turn now to take up the prosecution’s most pointed argument in support of its contention that the trial court was not divested of its jurisdiction. This argument is based upon the proposition, found in one of our decisions, that “the oral motion [to quash] is equivalent to no motion at all and is treated as if never made.” State v. Major, 13-1139, p. 2 (La.App. 4 Cir. 4/9/14), 140 So.3d 174, 177, 2014 WL 1395089. This proposition is further supported, the prosecution argues, by our holding in State v. Carter, wherein we stated that “[bjecause an oral motion to quash does not comply with La.C.Cr.P. art. 586, it cannot be considered by the trial court.” 11-0859, p. 2 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182. From these propositions the prosecution argues that its own written motion for appeal (which resulted in a written order of appeal) was premature because the action appealed from was a nullity, and thus the order of appeal was ineffective in divesting the trial court of its jurisdiction. The prosecution misunderstands our decisions upon which it relies.

Major did not address any jurisdictional issue relative to an oral motion to quash. There the prosecution argued, among other things, that because it 18successfully reversed the defendant’s quashal of his charges on a supervisory writ the defendant was precluded from subsequently filing a mitten motion to quash. Major, 13-1139, p. 2, 140 So.3d at 176. In rejecting that contention, Major simply stands, correctly, for the proposition that a motion to quash “shall be in writing” and “[i]t shall specify distinctly the grounds on which it is based.” La.C.Cr.P. art. 536. Thus, the defendant was not precluded from filing his written motion by the statutory proscription that the issue may be “raised at any time, but only once”. La.C.Cr.P. art. 577; Major, 13-1139, p. 2, 140 So.3d at 177.

Carter, however, did address the jurisdictional issue. In Carter the defendant was attempting to salvage the trial court’s quashal of the bill of information even though his motion to quash, contrary to the requirement of Article 536, was initially orally urged. 11-0859, p. 2, 88 So.3d at 1182. There, like here, the defendant filed a written motion, but it was filed after the prosecution’s motion for appeal. Id. We decided that the written motion to quash filed after the prosecution’s motion for appeal did not save the motion or cure the deficiency because “the written motion has no legal effect, as it was filed after the trial court was divested of jurisdiction.” Id. We then cited to and quoted from Article 916. Id. Thus, not only does Carter not support the prosecution’s argument, but it is also positive authority for the proposition that the prosecution’s motion to appeal (when granted) made following an unauthorized oral motion to quash divests the trial court of its jurisdiction.

1 flCarter is no outlier in intermediate appellate courts exercising our appellate jurisdiction when reviewing trial court rulings which sustained oral motions to quash.

We thus reject the prosecution’s argument that its appeal from an unauthorized quashal by the trial court does not divest the trial court of its jurisdiction. Upon the entry of an order of appeal on motion made by the prosecution from a ruling sustaining an oral motion to quash, as well as a written motion to quash, the trial court’s jurisdiction is divested, subject to certain specified exceptions (none of which are applicable here), and the jurisdiction of the appellate court attaches. See La. C.Cr.P. arts. 916, 912 B(l) (prosecution may appeal judgment or ruling on motion to quash).

V

In this Part we address two additional arguments which the prosecution urges. The first argument, as we understand it, is that because the ruling on the oral motion to quash was itself not in writing, the prosecutor’s motion for appeal was premature and a premature motion for appeal does not divest the trial court of its jurisdiction; this argument is not unrelated to the argument treated in Part III, ante. The second argument, as we understand it, points out that in other circumstances we have disregarded the trial court’s divestiture of jurisdiction and |inconsidered its actions as if it had jurisdiction and that we should treat this circumstance similarly.

A

The prosecution calls our attention to some cases which hold that an appeal taken from an oral judgment or ruling is premature and without effect. The prosecution acknowledges, however, that these cases arise only in the context of bond forfeiture proceedings. See, e.g., State v. Ramee, 05-748, p. 3 (La.App. 5 Cir. 2/3/06), 922 So.2d 1247,1248; State v. Dou-cet, unpub., 13-0772, p. 2 (La.App. 1 Cir. 12/27/13), 2013 WL 6858271. That is the critical distinction.

Bond forfeiture proceedings, such as those reflected in Ramee and Doucet, are inapposite because they are “intrinsically civil matters,” and their outcomes based upon provisions found within the Code of Civil Procedure and related jurisprudence. See State v. Allen, 11-2843, p. 2 (La.4/13/12), 84 So.3d 1288. A judgment in a civil matter cannot be final and ap-pealable unless and until it is reduced to writing and signed by the judge. See La. C.C.P. art. 1911. In contrast, the Code of Criminal Procedure does not require that judgments granting motions to quash be in writing.

Thus, because the ruling on the motion to quash does not fall within the limited subset of judgments of bond-forfeiture, which are required to be in writing, we reject the argument that the prosecution’s motion to appeal the quashal ruling was premature.

I nB

The prosecution next calls our attention to another limited subset of cases wherein courts of appeal have ruled harmless the imposition of sentence by a trial court after it had been divested of jurisdiction to do so by a defendant’s motion for appeal. Again, we consider these cases to be inapposite and distinguishable. In these cases the error — filing a motion for appeal prior to sentencing — was attributable in part to the defendant. A defendant can appeal from a final conviction only after sentence has been imposed. See La. C.Cr.P. art. 912 C(l); State v. Chapman, 471 So.2d 716 (La.1985). There is jurisprudence which holds that an untimely filed motion for appeal is cured when the motion is subsequently granted after sentencing. See State v. Enclard, 03-283, p. 3 (La.App. 5 Cir. 6/19/03), 850 So.2d 845, 848 n. 3; State v. Hayes, 01-736, p. 2 (La.App. 5 Cir. 12/26/01), 806 So.2d 816, 818 n. 2, (finding the defendant’s prematurely filed motion for an appeal was cured when his appeal was granted after he was sentenced). A trial court, in these cases, still retains jurisdiction and can cure this defect by granting the motion only after sentencing the defendant.

On the other hand, where an appeal is prematurely filed and granted — as in Lampkin, Washington, Brooks, Conrad, and Martin — the error is attributable to both the defendant and the trial court. However, in granting the motion for appeal 112the trial court is divested of jurisdiction and, thus, cannot cure the error as in Enclard and Hayes. See State v. Johnson, 13-75, p. 6 (La.App. 5 Cir. 10/9/13), 128 So.3d 325, 328. Our review of the jurisprudence indicates that in such cases appellate courts are then forced to determine whether such errors are either harmless or merit vacatur.

Appellate courts have relied upon equitable considerations of judicial economy when making these determinations. For example, in Martin we concluded that “[dismissing the appeal would simply result in a delay of the appellate process, and hinder defendant’s right to appeal.” 483 So.2d at 1225. Similarly, in State v. Robinson, 08-0005 (La.App. 4 Cir. 9/29/99), 743 So.2d 814, we concluded that a trial court’s denial of a defendant’s motion for new trial after it was divested of jurisdiction was harmless because the defendant did not raise the denial of his motion for new trial as an assignment of error on appeal.

In contrast, the error here is attributable to the trial judge who, after divesting himself of jurisdiction, erred in reeonsider-ing his ruling on the motion to quash, presiding over a trial, receiving the jury’s verdict, and imposing sentence. Moreover, Mr. Armstead urges as error in this appeal his conviction and sentence, as well as the trial court’s reconsideration of its order granting his oral motion to quash. Under the circumstances of this case, we conclude that we must vacate Mr. Arm-stead’s conviction and sentence.

| lsMr. Armstead is entitled to have the merits of the prosecution’s charges presented to a court that is properly vested with jurisdiction. Likewise, before we can properly address rulings and judgments made by the trial court, due process concerns mandate that the prosecutor’s appeal of the order granting the oral motion to quash be disposed of. While we are mindful of equitable considerations of judicial economy, this case presents a stark issue of due process concern. That a person cannot be deprived of liberty unless tried before a court possessing the requisite jurisdiction is a principle fundamental to our legal system. See, e.g., U.S. Const, amend. XIV, § 1; Johnson, 13-75, p. 7, 128 So.3d at 329; State v. Beebe, 127 La. 493, 497, 53 So. 730, 731 (La.1910) (“[0]ne cannot be said to have had the benefit of due process of law if tried before a tribunal upon which the law has conferred no jurisdiction to try him, but has, discriminatingly, conferred such jurisdiction elsewhere.”). Under such circumstances, we conclude, as did the court in Johnson, that the “defendant’s due process rights should not yield to equitable considerations of judicial economy.” 13-75, p. 7,128 So.3d at 329.

CONCLUSION

We find that, upon entry of the order of appeal, the trial court was divested of its jurisdiction to conduct a trial, receive a jury’s verdict, or impose a sentence upon Mr. Armstead. Without jurisdiction, the proceedings which the trial court here conducted are null and void. Because the verdict is invalid, the sentence is also invalid. See La.C.Cr.P. art. 872(3). The error by the trial court in conducting such proceedings is patent, and we are obliged to notice it.

luDECREE

Accordingly, we hereby vacate Randolph Armstead’s conviction for felony carnal knowledge of a juvenile and the sentence subsequently imposed upon him.

CONVICTION AND SENTENCE VACATED.

MCKAY, C.J.,

Dissents.

hi respectfully dissent for the majority opinion in this matter and would affirm the defendant’s conviction and sentence.

Essentially, the issue is the divestiture of the trial court’s jurisdiction once an appeal has been requested. The majority has mistakenly addressed this issue under an errors patent analysis.

La.C.Cr.P. art. 920 provides: “the following matters and no others shall be considered on appeal: (1) An error designated in the assignments of error; and (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

For the purpose of an error patent review the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict, and the judgment or sentence. State v. Oliveaux, 312 So.2d 337, 339 (La.1975); State v. Bou-dreaux, 95-153 (La.App. 5 Cir. 9/20/95), 662 So.2d 22, 28; State v. Pendelton, 96-367 (La.App. 5 Cir. 5/28/97), 696 So.2d 144; State v. Mason, 00-1223 (La.App. 5 Cir. 1/30/01), 7821 i>So.2d 1093. The mere presence of a document in the appellate record transmitted to the appellate court is not sufficient to allow review of the document for discoverable error under Article 920(2). State v. Craddock, 307 So.2d 342 (La.1975); State v. Oliveaux. Under State v. Oli-veaux and its progeny, the minute entry reflecting the granting of the defendant’s motion to quash and the State’s motion for appeal would not be reviewable as an errors patent.

Here, the trial court initially granted the defendant’s oral motion to quash the indictment on September 25, 2012, despite the requirement of La.C.Cr.P. art. 536 that “[a] motion to quash shall be in writing.” On November 9, 2012, the trial court reconsidered the issue and denied the defendant’s motion to quash. It is obvious that the trial court reconsidered his original ruling based upon La.C.Cr.P. art. 536 and applicable jurisprudence.

This Court has consistently held that “[bjecause an oral motion to quash does not comply with La.C.Cr.P. art. 536, it cannot be considered by the trial court.” State v. Dixon, 2010-1279, p. 3 (La.App. 4 Cir. 5/2/11), 64 So.3d 852, 854 (citing State v. Joseph, 2009-1169, pp. 3^ (La.App. 4 Cir. 3/24/10), 35 So.3d 422, 424); State v. Carter, 2011-0859, p. 2 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182. Most recently, this Court noted that an oral motion is equivalent to no motion at all and is treated as if never made. State v. Major, 2013-1139 (La.App. 4 Cir. 4/9/14), 140 So.3d 174, citing State v. Carter. Thus, the defendant’s urging of an oral motion to quash is treated as having never been made and should not have been considered by the trial court.

At that time, the State orally moved for an appeal, which the trial court granted. However, because the oral motion to quash is equivalent to no motion at all, there was nothing for the State to appeal, and the trial court erred in granting the State’s oral motion for appeal.

|sThe hearing transcript indicates that the trial court went on to acknowledge that the defense counsel’s motion to quash was orally made. The State objected, stating that it had not been served with a written motion to quash. The trial court then ordered defense counsel to file a written motion to quash and serve the State with a copy. The trial court also indicated that it would give the State an opportunity to respond to the motion. These comments suggest that the trial court was still taking the matter under advisement. Yet, at the hearing held on November 9, 2012, the trial court stated that it had reconsidered its ruling on the defendant’s motion to quash and reversed its ruling, thus denying the defendant’s motion to quash.

Essentially, there was nothing for the State to appeal when the prosecutor orally made the motion for appeal. Thus, no appeal was actually taken, and the trial court was not divested of its jurisdiction to deny the defendant’s written motion to quash and to proceed with the trial on the merits.

The jurisdictional issue has not been preserved for review on appeal. La. C.Cr.P. art. 841. The defendant assigned as error the denial of his motion to quash only on the basis of the merits of the motion. As the jurisdictional issue is not reviewable under an errors patent review, the defendant failed to preserve, for the purposes of appeal, the denial of his motion to quash on this basis. Based on the analysis set forth above, I would find that the trial court was not divested of its jurisdiction to try the case. I would affirm the defendant’s conviction and sentence.

      .Although Spinosa and Live Oak arise out of civil proceedings, these jurisdictional pronouncements are fundamental and basic to the entirety of our legal system. See La. C.Cr.P. art. 16; La C.C.P. art. 3. Also, see n. 2, post.

      . See Neisler, 93-1942, 633 So.2d at 1234 (Dennis, J., concurring and dissenting), from which we have borrowed.

      . See n. 1, ante.

      . See State v. Major, 12-0407 (La.App. 4 Cir. 1/16/13), 108 So.3d 288.

      . See, e.g., State v. Lodge, 12-0733 (La.App. 4 Cir. 5/8/13), 116 So.3d 851; State v. Major, 12-0407 (La.App. 4 Cir. 1/16/13), 108 So.3d 288; State v. Dixon, 10-1279 (La.App. 4 Cir. 5/2/11), 64 So.3d 852; State v. Joseph, 09-1169 (La.App. 4 Cir. 3/24/10), 35 So.3d 422; State v. Sensat, 04-425 (La.App. 3 Cir. 11/7/07), 969 So.2d 1274; State v. Scott, 06-1610 (La.App. 4 Cir. 4/25/07), 958 So.2d 725; State v. Branch, 00-1668 (La.App. 5 Cir. 3/28/01), 784 So.3d 43; State v. Bentel, 00-0057 (La.App. 5 Cir. 9/26/00), 769 So.2d 1247; State v. DeGeorge, 572 So.2d 696 (La. App. 4 Cir. 1990); State v. Howell, 525 So.2d 283 (La.App. 5 Cir. 1988).

      . See, e.g., State v. Lampkin, 12-391, pp. 3-4 (La.App. 5 Cir. 5/16/13), 119 So.3d 158, 162; State v. Washington, 98-69, p. 4 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, 675; State v. Brooks, 93-1767 (La.App. 4 Cir. 2/25/94), 633 So.2d 816, 818; State v. Conrad, 620 So.2d 366, 368 n. 1 (La.App. 5 Cir.1993), writ 328 granted, case remanded, 625 So.2d 158 (La. 1993); State v. Martin, 483 So.2d 1223 (La. App. 4 Cir. 1986), (choosing not to dismiss the appeal since it would result in a delay of the appellate process, and hinder the defendant's right to appeal.).

      . If we were to accept the prosecution's arguments, the error would be attributable to it as well because it claims to have filed its motion for appeal prematurely.


text:
    Emmett B. CHAPITAL, Jr., M.D. and Jovita Marie Chapital v. HARRY KELLEHER & CO., INC., Louisiana Citizens Property Insurance Corporation, and XYZ Insurance Company.
    No. 2013-CA-1606.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      James E. Shields, Shields & Shields, APLC, Gretna, LA, for Plaintiff/Appellant.
    Max J. Cohen, Melanie C. Lockett, Lowe Stein Hoffman All Weiss & Hauver, L.L.P., Skye S. Fantaci, Wayne J. Fonta-na, Roedel Parsons Koch Blache Balhoff & McCollister, New Orleans, LA, Dax C. Foster, David S. Daly, Allen & Gooch, ALC, Metairie, LA, for Defendants/Appel-lees.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

|, This is an insurance agent malpractice case coupled with an insurance coverage dispute. The insured, Emmett B. Chapi-tal, Jr., M.D., and his wife, Jovita Marie Chapital, brought this suit against the insured’s agent, Harry Kelleher & Co., Inc. (“Kelleher”); the insurer of the insured’s agent, Westport Insurance Corporation (‘Westport”); and the insured’s own insurer, Louisiana Citizens Property Insurance Corporation (“Citizens”). From the trial court’s judgment granting all three defendants’ peremptory exceptions of peremption and motions for summary judgment and dismissing all the plaintiffs’ claims, the plaintiffs, Dr. Chapital and Mrs. Chapital, appeal. For the reasons that follow, we affirm in part, reverse in part, and remand to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989 or 1990, Dr. Chapital purchased rental property located at 3106 Republic Street, New Orleans, Louisiana 70119 (the “Property”). The Property was one of several rental properties that Dr. Chapital owned in New Orleans. In 1997, Dr. Cha-pital obtained, through Kelleher, dwelling coverage for the Property |2with the Louisiana Joint Reinsurance Plan. In August 2004, Dr. Chapital’s dwelling policy with the Louisiana Joint Reinsurance Plan was not renewed. Thereafter, Dr. Chapital obtained, through Kelleher, dwelling coverage for the Property through Citizens.

On August 29, 2005, Hurricane Katrina struck the New Orleans area and caused extensive damage to the Property. Citizens paid Dr. Chapital’s Hurricane Katrina damage claim, and Dr. Chapital began repairs on the Property. During the repairs, the Property was vacant. From 2006 through 2011, Dr. Chapital paid the premiums to insure the Property; and Citizens annually renewed the Policy.

On May 18, 2011, Dr. Chapital reported to Kelleher both a theft and a fire claim. The theft claim was that, in March 2011, a theft of copper occurred at the Property. The fire claim was that, in May 2011, a neighbor’s residence caught fire and caused damage to the Property. On the dates of the reported theft and fire, Dr. Chapital had not yet completed the repair of the Hurricane Katrina damage; thus, the Property was still vacant.

On July 25, 2011, Citizens sent Dr. Cha-pital a letter denying coverage for the theft claim on the basis that theft was not a covered loss under the Policy. On lathe same date, Citizens sent Dr. Chapital a letter denying coverage for the fire claim on the basis that the Property had been vacant for more than 60 days. Citizens explained in the letter that because the Property had been vacant for more than 60 days before the fire, the Policy was suspended by its own terms at the time of the loss. Citizens also included in the letter a reservation of rights; it stated: “[w]e expressly reserve our rights to assert all other rights or defenses that we may have to this claim even though not enumerated above. We do not waive or relinquish any of our rights under the policy of insurance.”

On January 16, 2012, Dr. Chapital filed a petition for damages against Kelleher and Citizens. In his petition, Dr. Chapital asserted multiple causes of action against both Kelleher and Citizens, including negligence by agent (agent malpractice), breach of contract, breach of fiduciary duty, fraud, bad faith, and unjust enrichment.

|4In June 2013, Kelleher filed a motion for summary judgment and a peremptory exception of peremption. As to the former motion, Kelleher argued that it had no duty to identify Dr. Chapital’s insurance needs. As to the latter exception, Kelle-her argued that any claim against it for lack of coverage due to the application of the 60-day vacancy clause in the Policy was perempted by the one-year and three-year periods set forth in La. R.S. 9:5606.

Citizens filed a separate motion for summary judgment. In its motion, Citizens argued that it was not liable for the fire loss given the undisputed fact that the Property had been vacant since Hurricane Katrina (August 2005) — in excess of 60 days. Citizens contended that the 60-day vacancy clause precluded coverage. In the alternative, Citizens joined in Kelleher’s motion for summary judgment and exception of peremption. In so doing, Citizens contended that if it is found liable for any of Kelleher’s actions, it too should receive the benefit of peremption under La. R.S. 9:5606.

In opposing the motions for summary judgment, Dr. Chapital provided his own affidavit in which he attested to the following:

• That I was told by my agent, Kelleher, that the 60 day vacancy clause on my policy, was suspended on all properties that had suffered damages in Hurricane Katrina.
[• That this information seemed logical to me, as no one in New Orleans could have possibly repaired their property in 60 days. It took years for most of us.
• That I paid Kelleher directly, annual premiums ongoing for 2006, 2007, 2008, 2009, 2010 and 2011. At no time, was I ever advised by Defendants, Kelleher and Citizens, that the 60 day vacancy clause had been reinstated.

In opposing the exception of peremption, Dr. Chapital contended that the peremp-tive period did not commence to run until July 2011 when Citizens, by letter, informed him that it was denying the fire claim because it was enforcing the 60-day vacancy clause.

On August 6, 2013, the trial court rendered judgment in the defendants’ favor, granting the motions for summary judgment and exception and dismissing all of the plaintiffs’ claims with prejudice. This appeal followed.

STANDARD OF REVIEW

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. As this court has noted, it 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 to 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 | fiConclude 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.

Mcmdina, Inc. v. O’Brien, 13-0085, p. 5 (La.App. 4 Cir. 7/31/13), — So.3d -, -, 2013 WL 3945030 (collecting cases).

“Whether an insurance policy provides for, or precludes, coverage as a matter of law is an issue that can be resolved within the framework of a motion for summary judgment.” Orleans Parish Sch. Bd. v. Lexington Ins. Go., 12-1686, p. 9 (La.App. 4 Cir. 6/5/13), 118 So.3d 1203, 1212 (citing Sumner v. Mathes, 10-0438, p. 6 (La.App. 4 Cir. 11/24/10), 52 So.3d 931, 935). As a general rule, “the interpretation of an insurance policy is a question of law.” Lexington, 12-1686 at p. 9, 118 So.3d at 1212 (citing Armenia Coffee Corp. v. American Nat’l Fire Ins. Co., 06-0409, p. 6 (La.App. 4 Cir. 11/21/06), 946 So.2d 249, 253).

Likewise, the peremptory exception of peremption “involves the interpretation of a statute, which is a legal question.” Robert v. Robert Mgmt. Co., LLC, 11-0406, p. 3 (La.App. 4 Cir. 12/7/11), 82 So.3d 396, 398. “Legal questions are reviewed utilizing the de novo standard of review.” Id. (citing Cleco \nEvangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353). Finally, we review a trial court’s factual findings under the manifestly erroneous or clearly wrong standard of review. Robert, 11-0406 at p. 3, 82 So.3d at 398 (citing Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co., 10-0626, p. 2 (La.App. 4 Cir. 10/20/10), 51 So.3d 129,132).

DISCUSSION

For purposes of analysis, we divide Dr. Chapital’s arguments on appeal into the following four categories: (i) peremption, (ii) the 60-day vacancy clause, (iii) judicial confession and fraud, and (iv) unjust enrichment. We separately address each issue.

(i) Peremption

Peremption is defined as “a period of time fixed by law for the existence of a right.” La. C.C. art. 3458. “Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” Id. In this case, the governing periods of time are set forth in La. R.S. 9:5606, which provides both one-year and three-year per-emptive periods for bringing any action, in tort or contract, against an insurance agent arising out of an engagement to provide insurance services. La. R.S. 9:5606(D) (providing that “[t]he one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.”). As to the one-year period, the statute states that any such action shall be brought “within one year from the date of the alleged act, omission, or neglect, or within one year from the |8date that the alleged act, omission, or neglect is discovered or should have been discovered.” La. R.S. 9:5606(A). As to the three-year period, the statute provides that “even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.” Id.

The only exception to the per-emptive period provided in La. R.S. 9:5606 is fraud. La. R.S. 9:5606(C) (providing that “[t]he peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.”). The continuing tort doctrine, which is a suspensive principle, is inapplicable to claims governed by La. R.S. 9:5606. Sitaram, Inc. v. Bryan Ins. Agency, Inc., 47,337, p. 6 (La.App. 2 Cir. 9/19/12), 104 So.3d 524, 530. “Generally, subsequent renewals of insurance policies do not operate to restart peremption.” Si-taram, 47,337 at p. 7, 104 So.3d at 530 “However, renewals can be the basis of separate torts, if the complained of conduct constitutes separate and distinct acts, which give rise to immediately apparent damages.” Id. The test is “whether the actions of the insurance agent at the time of renewal can be construed to constitute an act separate from the initial policy procurement.” Id. The one-year peremptive period commences to run when the insured receives a copy of the policy. See Serun-tine v. State Farm Fire and Cas. Co., 10-1108 (La.9/3/10), 42 So.3d 968. This is because it is an “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, p. 12 (La.7/6/10), 42 So.3d 352, 359.

In this case, Dr. Chapital contends that the peremptive period in La. R.S. 9:5606 did not begin to run until July 2011 when Citizens, by letter, denied ^coverage on the fire claim and informed him that it was enforcing the 60-day vacancy provision. According to Dr. Chapital, his suit, filed less than a year later (on January 16, 2012), was timely.

Kelleher counters that all of Dr. Chapi-tal’s claims are perempted by the one-year and three-year periods set forth in La. R.S. 9:5606. Kelleher notes that after Hurricane Katrina, there was no action on its part separate and apart from the initial procurement of the Policy. It further notes that each year Citizens renewed the Policy; and each year Dr. Chapital received a copy of the Policy, which included the 60-day vacancy clause. Kelleher points out that a review of the Policy would have revealed that Dr. Chapital needed a vacancy or builder’s risk policy; however, he never requested such a policy. Kelleher contends that it had no duty to recommend or to provide such a policy. Regardless, Kelleher contends that “any claim against Kelleher for failure to recommend and/or procure such a policy (even though Kelleher did not have such a duty), was perempted three years after Hurricane Katrina or one year after Dr. Chapital received his Citizens policy (after Hurricane Katrina).” Likewise, Kelleher contends that even assuming, arguendo, its adjustor told Dr. Chapital that the 60-day vacancy provision was waived, the statement was made in the aftermath of Hurricane Katrina — in late 2005 or early 2006 — yet suit was not filed until January 2012 — over three years after the alleged | ^misrepresentation. The same is true, Kelleher contends, as to the suggested duty — allegedly assumed by its same adjustor — to inspect the Property on a yearly basis. Kelleher argues that any claim based on either of its alleged negligent acts — its adjuster’s misrepresentation regarding the 60-day vacancy period or its adjuster’s assumed duty to inspect the Property — is barred by peremption.

Agreeing with Kelleher’s contentions, we find that all of Dr. Chapital’s negligence claims — agent malpractice claims — against Kelleher are barred by peremption. Both of Kelleher’s alleged negligent acts occurred in the aftermath of Hurricane Katrina — no later than 2006. Dr. Chapital annually received a copy of the Policy, which contained the 60-day vacancy provision. Dr. Chapital should have discovered the alleged negligent acts when he received a copy of the Policy the first year after Hurricane Katrina. Dr. Chapi-tal’s negligence claims against Kelleher prescribed either one year after he received the Policy the first year after Hurricane Katrina — sometime in 2006 or 2007 — or three years after the alleged negligent acts — sometime in 2008 or 2009. Dr. Chapital did not file suit until January 16, 2012. Thus, Dr. Chapital’s negligence claims against Kelleher are barred by per-emption.

As noted, Citizens contends that to the extent Dr. Chapital’s claims against it are based on the imputation of Kelle-her’s actions, such claims are likewise per-empted. In support, Citizens cites Hal-mekangas v. ANPAC Louisiana Ins. Co., 11-1293, pp. 6-7 (La.App. 4 Cir. 6/8/12), 95 So.3d 1192, 1196-97, unit denied, 12-1542 (La.10/12/12), 98 So.3d 873, which held that when an insurer’s errors are derivative of claims against its insurance agent, the insurer receives the benefit of peremption under La. R.S. 9:5606. Citizens’ reliance on Halmekangas, supra, is misplaced.

| „Both Citizens and Kelleher state in their appellate briefs that there is no evidence of an agency relationship between them. As Kelleher puts it, “[a]ll of Dr. Chapital’s arguments seem to be directed at both Citizens and Kelleher, even though Dr. Chapital has not provided any evidence of a relationship between the two.” As Citizens puts it, “neither [Kelleher nor Citizens] should be held liable for the actions of the other.” Given the lack of any evidence of an agency relationship between Citizens and Kelleher, there is no basis for imputing Kelleher’s liability to Citizens. Thus, there is no basis for allowing Citizens the benefit of peremption under La. R.S. 9:5606.

In sum, we find that Dr. Chapital’s negligence claims against Kelleher are barred by peremption and that Citizens is not entitled to the benefit of peremption.

(ii) The 60-day vacancy clause

The Policy at issue contains a statutorily mandated 60-day vacancy clause. See La. R.S. 22:1311(F)(2). As Citizens points out, the statutory requirement that this clause be included in the Policy belies Dr. Chapi-tal’s argument that the clause violates public policy. Citizens also points out that the clause is not ambiguous. The clause plainly states that the “Company shall not be liable for a loss occurring ... [w]hile a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days.” As both Citizens and Kelleher point out, an insured, such as Dr. Chapital, is presumed to know the contents of his policy. Isidore Newman School, 09-2161 at p. 12, 42 So.3d at 359. Thus, knowledge of the 60-day vacancy clause in the Policy is [^imputed to Dr. Chapital. The narrow issue is whether there was a valid waiver of the 60-day vacancy clause.

Simply stated, Dr. Chapital’s position is that the 60-day vacancy clause was waived because one of Kelleher’s adjustors advised him that there were no time constraints for repairs of property damaged by Hurricane Katrina and that the 60-day vacancy clause was waived for such properties. According to Dr. Chapital, he was never informed that the 60-day vacancy clause had been reinstated until Citizens denied his fire claim. Dr. Chapital’s sole support for his position is his own affidavit, quoted earlier in this opinion, in which he attests to these facts.

Kelleher, joined by Citizens, contends that Dr. Chapital’s affidavit should be disregarded because it is inconsistent with his earlier deposition testimony. See Row v. Pierremont Plaza, LLC, 35,796, p. 15 (La. App. 2 Cir. 4/3/02), 814 So.2d 124, 131 (citation omitted) (holding that “a deposition is the time for the plaintiff to make a record capable of surviving summary judgment — not a later filed affidavit.”). In his deposition, Dr. Chapital testified that he did not know about the 60-day vacancy clause. Particularly, when asked whether he knew that the Policy stated that if nobody lives there within sixty days, the policy had to be changed, he answered no. Given the contradiction between Dr. Cha-pital’s affidavit and his deposition testimony, Kelleher contends that the affidavit should be disregarded. Kelleher further contends that even if the affidavit is considered and its averments assumed to be true for purposes of summary judgment, the trial court did not err in granting summary judgment. In support, Kelleher cites the express requirement in the Policy that any waiver be in writing.

According to the terms of the Policy, any change or waiver of a policy provision must be in writing. As Citizens points out, the Policy contains the 1 iafollowing standard provision, required by La. R.S. 22:1311(F)(2), providing that a change or a waiver of a policy provision must be in writing:

Added provisions. The extent of the application of insurance under this policy and of the contribution to be made by this Company in case of loss, and any other provision or agreement not inconsistent with the provisions of this policy, may be provided for in writing added hereto, but no provisions may be waived except such as by the terms of this policy is subject to change.
Waiver provisions. No permission affecting this insurance shall exist, or waiver of any provision be valid unless granted herein or expressed in writing added hereto. No provision, stipulation,- or forfeiture shall be held to be waived by any requirement or proceeding on the part of this Company relating to appraisal or to any examination provided for herein.

Based on the above provision, a waiver of the 60-day vacancy clause was required to be in writing to be effective. Given the only alleged waiver was oral, it was not effective. Thus, Citizens was entitled to rely on the 60-day vacancy clause to deny Dr. Chapital’s fire claim. For this reason, the trial court correctly granted Citizens’ motion for summary judgment as to Dr. Chapital’s contractual coverage claim against it. As discussed below, we reach a different result as to Dr. Chapital’s unjust enrichment claim against Citizens.

(Hi) Judicial confession and fraud

A judicial confession is defined as “a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact.” La. C.C. art. 1853.

To state a cause of action for fraud, the following three elements must be alleged: “(1) a misrepresentation of material fact, (2) made with the intent to deceive, (3) causing justifiable reliance with resultant injury.” Becnel v. Grodner, 07-1041, p. 3 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894. Moreover, fraud must lube alleged with particularity. La. C.C.P. art. 856 (providing that “[i]n pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity;”).

Dr. Chapital’s judicial confession and fraud claims against Citizens and Kelleher are identical. He contends that their actions in renewing the Policy for the 2011-12 term, with knowledge that the Property had been vacant since Hurricane Katrina, were both a judicial confession and fraud. In support, Dr. Chapital relies on the following chronology of events:

• After he received the July 25, 2011 notice that his fire claim was denied based on the 60-day vacancy clause, he requested a refund of the premiums that he had paid from 2006 through 2011 for no coverage.
• Appearing to have changed their mind on the coverage issue, Citizens and Kelleher requested that Dr. Chapital pay the annual premium of $1,718 to renew the Policy for the 2011-12 term.

Simply stated, Dr. Chapital characterizes Citizens’ and Kelleher’s actions of requesting and accepting the premium payment as a judicial confession of the waiver of the 60-day vacancy clause and fraud.

Neither Kelleher nor Citizens made any statements in a judicial proceeding that could be classified as a judicial confession of the waiver of the 60-day vacancy clause. Thus, by definition, neither Kelleher nor Citizens made a judicial confession of that fact.

Nor is there any evidence of fraud on the part of Citizens or Kelleher. Kelle-her points out that the Policy was issued and annually renewed by Citizens. Citizens points out that on June 27, 2011 its underwriting department sent out an automatic notice of renewal. At that juncture, Citizens was still investigating the fire claim; and Dr. Chapital had not yet filed this suit. Thereafter, Citizens | ^discovered that the Property had been vacant since Hurricane Katrina. Once Citizens’ underwriting department was advised that there was no coverage due to the vacancy, it refunded the premium that Dr. Chapital paid for the 2011-12 Policy term. Given this chronology of events, the record does not support Dr. Chapital’s fraud claim against Citizens and Kelle-her.

(iv) Unjust enrichment

The jurisprudence has enumerated the following five factors that are required to establish an unjust enrichment claim: “(1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and resulting impoverishment, (4) an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) no other remedy at law available to plaintiff.” Dugas v. Thompson, 11-0178, p. 13 (La.App. 4 Cir. 6/29/11), 71 So.3d 1059, 1067-68 (citing JCD Marketing Co. v. Bass Hotels and Resorts, Inc., 01-1096, p. 13 (La.App. 4 Cir. 3/6/02), 812 So.2d 834, 842 (citing Baker v. Maclay Properties Co., 94-1529, p. 18 (La.1/17/95), 648 So.2d 888, 897)). The Louisiana Legislature has codified the principle of unjust enrichment in La. C.C. art. 2298, which provides: “[a] person who has been enriched without cause at the expense of another person is bound to compensate that person.” La. C.C. art. 2298. Article 2298 also states |1fithat “[t]he remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment.” Id.

Dr. Chapital contends that Citizens and Kelleher have been unjustly enriched by his payments of premiums from 2006 through 2011 because he had no coverage under the Policy during that period. In support, he cites the following deposition testimony of Citizens’ corporate representative:

Q: All right. Why didn’t you refund Dr. Chapital’s premiums for those years then if he wasn’t covered?
A: I don’t know.

Dr. Chapital also contends that the trial judge did not dismiss his unjust enrichment claims. The basis for this contention is the trial court judge’s statement that was made at the close of the motion hearing. In response to the request for a specific ruling as to the unjust enrichment claim, the trial court judge stated: “It’s on the record, but I don’t know how I can rule on it. There’s not anything in front of me.” Based on this statement, Dr. Chapi-tal contends that the unjust enrichment claims were not addressed. He therefore seeks a remand for the trial court to address his unjust enrichment claims.

Dr. Chapital’s contention that the trial court did not address his unjust enrichment claims is belied by the trial court’s issuance of a written, final judgment. The final judgment, which granted the defendants’ motions for summary judgment and peremptory exceptions of per-emption, dismissed all of Dr. Chapital’s claims — including his unjust enrichment claims — against all of the defendants with prejudice. The trial court’s issuance of a final judgment dismissing all of the claims is inconsistent with its statement that the unjust enrichment claim was not part of the motions for summary judgment that it granted. Regardless, “the 117district court’s oral or written reasons for judgment form no part of the judgment[;] ... appellate courts review judgments, not reasons for judgment.” Wooley v. Luck-singer, 09-0571, p. 77 (La.4/1/11), 61 So.3d 507, 572 (collecting cases).

Nonetheless, Dr. Chapital’s unjust enrichment claim against Kelleher is barred by peremption. See Vagelos v. Abramson, 12-1235, p. 22 (La.App. 4 Cir. 10/2/13), 126 So.3d 639, 652 (agreeing with trial court’s finding that “ ‘[o]ne cannot use the theory of unjust enrichment to revive a claim that has already been prescribed or been [perempted]’ ”); see also Dugas, 11-0178 at p. 14, 71 So.3d at 1068 (noting that “[t]o find that [the plaintiff] ... now has no other remedy and to provide it one under unjust enrichment would be tantamount to allowing any plaintiff who let his cause of action prescribe ... to recover under an enrichment theory.”). As discussed above, Citizens is not entitled to the benefit of peremption. However, as discussed below, we find merit to Dr. Chapi-tal’s contention that the trial court erred in dismissing his unjust enrichment claim against Citizens.

Once the 60-day vacancy period elapsed in 2005 (60 days after Hurricane Katrina), Citizens had no obligation under the Policy to provide coverage to Dr. Chapital for the Property. Despite the total cessation of coverage before the end of 2005, Citizens continued to collect premiums from Dr. Chapital annually from 2006 through 2011. Based on these circumstances, a dispute exists as to whether Dr. Chapital can satisfy two of the five elements required for his unjust enrichment claim — (4) an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) no other remedy at law available to plaintiff. For this |iSreason, we find the trial court erred in granting Citizens’ motion for summary judgment as to Dr. Chapital’s unjust enrichment claim. On this basis, we find that Dr. Chapital is entitled to a remand for the trial court to address his unjust enrichment claim against Citizens.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed insofar as it grants Citizens’ motion for summary judgment as to Dr. Chapital’s unjust enrichment claim. In all other respects, the trial court’s judgment is affirmed. This case is remanded to the trial court for consideration of Dr. Chapital’s unjust enrichment claim against Citizens.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . It is undisputed that Mrs. Chapital lacked an ownership interest in the Property. It is also undisputed that she had no involvement with procuring insurance for the Property. Thus, she is not a proper party plaintiff. The trial court correctly dismissed all of her claims. For this reason, we refer to Dr. Cha-pital as the sole plaintiff.

      . On January 1, 2004, Louisiana Citizens Property Insurance Corporation ("Citizens”) was formed.

      . The Policy contains the following provision:
      PERILS INSURED AGAINST
      We insure for direct physical loss to the property covered caused by a peril listed below unless the loss is excluded in the General Exclusions.
      ⅝ ⅜ ⅜
      8. Vandalism or malicious mischief.
      This peril does not include loss:
      a. by pilferage, theft, burglary or larceny
      9. Damage by Burglars, meaning damage to covered property caused by Burglars.
      This peril does not include:
      a. theft of property ...

      . The policy contains the standard fire policy clauses as required by Louisiana law pursuant to La. R.S. 22:1311(F)(2), which provides:
      Condition suspending or restricting insurance — Unless otherwise provided in writing added hereto, this Company shall not be liable for loss occurring:
      (a) While the hazard is increased by any means within the control or knowledge of the insured; or
      (b) While a described building, whether intended for occupancy by owner or tenant, is vacant, or unoccupied beyond a period of sixty consecutive days....

      . As noted at the outset, Kelleher’s insurer, Westport, was also named as a defendant. Westport joined in Kelleher's exception of peremption and its motion for summary judgment, which were granted as to Westport. On appeal, Westport filed an appellate brief, adopting Kelleher’s appellate brief. For ease of discussion, we refer collectively to Kelleher and its insurer, Westport, as "Kelleher.”

      . Citizens pointed out that it never admitted there was an agency relationship between it and Kelleher. Citizens further pointed out, as discussed elsewhere in this opinion, that there was no evidence suggesting any such agency relationship. Nonetheless, it contended that should the coverage issue be decided against it based upon Kelleher’s imputed actions, Citizens should also receive the benefit of the peremption defense under this court’s current jurisprudence. Halmekangas v. ANPAC Louisiana Ins. Co., 11-1293, pp. 6-7 (La.App. 4 Cir. 6/8/12), 95 So.3d 1192, 1196-97, writ denied, 12-1542 (La. 10/12/12), 98 So.3d 873.

      . On appeal, Dr. Chapital concedes that the Policy did not provide coverage for the theft claim; thus, only the fire claim is before us.

      . In Isidore Newman School v. J. Everett Eaves, Inc., 09-2161, p. 12 (La.7/6/10), 42 So.3d 352, 359, the Louisiana Supreme Court summarized the scope of an agent’s duty as follows:
      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 needed. 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.

      . Indeed, the only agency relationship established by the evidence in the record is between Dr. Chapital and Kelleher.

      . Both Citizens and Kelleher represented that until the fire and theft claims were reported, they were unaware that the Property had been vacant since Hurricane Katrina. Kelleher presented the deposition testimony of its customer service representative, Kathleen Zammit; Ms. Zammit testified that until the theft and fire claims were reported, Kelle-her was unaware that the Property was vacant.

      . Moreover, as noted earlier, Citizens, in its July 25, 2011 letter rejecting the fire claim, expressly reserved its rights under the Policy. Citizens thus did not waive the coverage defense of the 60-day vacancy period. See Step-tore v. Masco Const. Co., Inc., 93-2064, p. 4 (La.8/18/94), 643 So.2d 1213, 1216 (holding that "[wjaiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.”).

      . In Vagelos v. Abramson, 12-1235, pp. 21-22 (La.App. 4 Cir. 10/2/13), 126 So.3d 639, 651, the plaintiffs amended their petition to assert claims of unjust enrichment, attempting to avoid the ramifications of peremption of their legal malpractice claims under La. R.S. 9:5605. The plaintiffs argued that the unjust enrichment claim had not prescribed because it was subject to a ten-year prescriptive period.