author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Evangelist W. KING and Jason King v. PONTCHARTRAIN MORTGAGE COMPANY, INC.; Pontchartrain Mortgage Corporation; Mortgage Equity, Inc.; Commercial Lenders and Equity, Inc.; individually, or d/b/a; Terry P. LaFargue; Bruce A. Miller and A.B.C. Insurance Company.
    No. 13-CA-633.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 31, 2014.
    Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Attorneys at Law, Gen-nusa, Piacun & Ruli, Metairie, Louisiana, for Plaintiffs/Appellants, Evangelist W. King and Jason King.
    Gustave A. Fritchie, III, Attorney at Law, Irwin Fritchie Urquhart & Moore LLC, New Orleans, Louisiana, for Defendant/Appellee, Bruce A. Miller.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

| {¡On appeal before us is a summary judgment that was granted, dismissing the plaintiffs’ legal malpractice suit against one defendant. We affirm.

STATEMENT OF THE CASE In August 2001, Evangelist W. King and Jason King (collectively hereinafter “King”), sued Pontchartrain Mortgage Company, Inc. and Pontchartrain Mortgage Corporation (collectively hereafter “Pontchartrain”), Mortgage Equity, Inc. and Commercial Lenders and Equity, Inc. (collectively hereafter “Equity”), Terry P. Lafargue (“Lafargue”), and Bruce A. Miller (“Miller”). In the petition (as amended and supplemented in November 2001 and September 2004), King alleged breach of contract against Pontchartrain and La-fargue arising from a Settlement Agreement and Release executed on October 21, 1998 (“the Agreement”), under which Pontchartrain, Equity and Lafargue agreed to pay $70,000 in return for Evangelist King’s relinquishing his claims to a 50% ownership interest in Pontchartrain and Equity. King alleged that Lafargue and Pontchartrain breached the Agreement by failing to make payments as set out in the Agreement. King further alleged that Lafargue knew at the time of the Agreement that the value of |sthe stock/corporations exceeded that communicated to King, and that King would not have entered into the agreement if they had been informed of the true state and/or value of the corporations.

King alleged Miller committed legal malpractice because he simultaneously represented both King and La-fargue/Pontchartrain in preparing the Agreement, yet Miller failed to disclose the dual representation. King further alleged that Miller erroneously counseled Evangelist King that it was in his best interest to enter the Agreement, when Miller knew that the value of the stock/corporations exceeded that communicated to King by the defendants.

On October 4, 2012, defendant Miller filed a motion for summary judgment. Miller asserted that King would be unable to prove his claim of legal malpractice against Miller because King could not prove any damages caused by Miller’s alleged conduct. Specifically, Miller asserted that King had no evidence that the amount paid to King under the Agreement was not a fair valuation of King’s claimed interest in Pontchartrain at the time the Agreement was signed.

In support of the motion for summary judgment, Miller attached an affidavit by Timothy Murphy, the former certified public accountant for Pontchartrain. In this affidavit, Murphy avers that he is a certified public accountant and has been so licensed since 1982, and that he was the certified public accountant for Pontchartrain when it was in business. Murphy avers that he was aware in 1998 that King desired to leave his employment with Pontchartrain and demanded that he be paid what he believed was his one-half interest in the capital stock of Pontehar-train or one-half of the value of the company. Murphy further avers that although he did not do a formal valuation of Pontchartrain, he was familiar with its |4fínancial status in 1998, and that he believes that the agreed payment of $70,000 to King as set forth in the Settlement Agreement and Release represented a fair, if not even generous, estimate of one-half of the value of Pontchartrain in October, 1998.

Miller also attached the affidavit of Terry P. Lafargue, in which Lafargue testified that he and King, alone, negotiated the settlement agreement at issue. Lafargue further testified that he and King agreed on the $70,000 settlement figure paid to King based upon the calculation of Pontchartrain’s assets as of September 30, 1997, less its liabilities. Lafargue further testified that he and King agreed that this amount would result in a one-half value of $60,949, but that King was not satisfied with being paid $61,000. Therefore, La-fargue said, he agreed to increase the payout to King to the sum of $70,000 in order to resolve this disagreement.

In opposition to the motion for summary judgment, King asserted that he was damaged because Miller failed to disclose his conflict of interest, in that he has not received all payments due him because of a clause in the Agreement that provided that Pontchartrain Mortgage Company, Inc. would not make payments to King if the corporation’s net income was less than $8,000.00 for a month; that he was “duped” by Mr. Miller and the corporation was under-valued; and that King cannot determine the full extent of his damages until he can take the deposition of Terry LaFargue, the preparer of the financial statements for Pontchartrain Mortgage Company, Inc. Thus, King contends the motion for summary judgment is premature because there remains outstanding discovery.

On January 22, 2013, three days before the date set for hearing of the motion for summary judgment, King filed a Supplemental Memorandum in Opposition to Motion for Summary Judgment. Attached to it was a report by Bert F. Verdigets, CPA, CFE, CFF, in the form of a letter to plaintiffs’ counsel stating that, based on his analysis, the range of the price for the company on October 21, 1998, would be | ¡^between $142,225 and $489,625 or at 50% $71,113 and $244,812 respectively, not including interest on those amounts, “which would significantly increase those numbers.” The letter was neither sworn nor accompanied by an affidavit verifying it.

At the hearing on the motion for summary judgment, counsel for Miller objected to admitting the Verdigets letter as an exhibit in support of King’s opposition. Defense counsel pointed out that the letter was inadmissible because it was unsworn and also because it was filed only three days before the hearing, in violation of La. C.C.P. art. 966 and La. Distr. Ct. Rule 9.9.

In ruling on the motion for summary judgment the judge stated, “I am going to grant the motion. Given the age of the case and the fact that the affidavit, I mean, the letter is not sworn, ... I’m going to find it’s not admissible.... There was certainly enough time for sworn evidence to be presented.”

The plaintiffs have appealed. On appeal they make the following assignments of error:

1. The totality of the record evidence established that Mr. King proved that he sustained damages as a result of Mr. Miller’s conflict of interest, and at a minimum, raised multiple issues of material fact that precluded the granting of summary judgment. The district court erred in granting Mr. Miller’s Motion for Summary Judgment.
2. Mr. Bert Verdigets’s expert report was timely filed and appropriate evidence to oppose a Motion for Summary Judgment pursuant to the Louisiana Supreme Court’s decision in Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 755 So.2d 226. The district court erred in excluding Mr. Verdigets’s expert report from evidence.

We find no merit in these assignments, for the following reasons.

[,LAW AND ANALYSIS

Appellate courts review summary judgments de novo, under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Premier Restaurants, Inc. v. Kenner Plaza Shopping Ctr., L.L.C., 99-1310, p. 8 (La.App. 5 Cir. 8/29/00), 767 So.2d 927, 931-32, citing Schroeder v. Board of Supervisors, 591 So.2d 342, 345 (La.1991).

A summary judgment should be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached .thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

La. C.C.P. art. 967(A).

In Input/Output, Inc. v. Wilson Greatbatch, Inc., 07-570, pp. 9-10 (La.App. 5 Cir. 1/22/08), 977 So.2d 109, 114-115, writ denied, 2008-0397 (La.4/18/08), 978 So.2d 350, this Court held:

Articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. In meeting the burden of proof, unverified documents, such as letters or reports annexed to motions for summary judgment are not self-proving and, therefore, will not be considered as competent summary judgment evidence.
A document that is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be |7given weight in determining whether there are remaining genuine issues of material fact. [Citations omitted.]

La. C.C.P. art. 966 provides that the summary judgment procedure is favored and shall be construed to accomplish the just, speedy, and inexpensive determination of every action, except those disallowed. La. C.C.P. art. 966(A)(2). Unlike an exception of no cause of action, on a motion for summary judgment the allegations of the petition are not automatically considered as true; rather, La. C.C.P. arts. 966-67 set forth the applicable tests. Owens v. Martin, 449 So.2d 448, 452 n. 1 (La.1984).

Summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized.... The initial burden remains with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted.
Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. [Footnote and citations omitted.]

Premier Restaurants, Inc., 99-1310 at p. 9, 767 So.2d at 932.

Applying these principles in this case, we find no error in the trial court’s grant of the motion for summary judgment.

Further, as did'the trial judge, we note there was more than enough time for the plaintiffs to obtain proper documentation. The lawsuit itself has been pending for 12 years, while the motion for summary judgment was filed three months before the date on which it was argued, and the trial court granted one continuance of the hearing date in part to allow the plaintiffs time for additional discovery. IsBecause the Verdigets letter was un-sworn, it could not be considered by the trial court as competent summary judgment evidence. See Input/Output, Inc., supra.

Finally, there is no merit to King’s argument that summary judgment is improper because Miller did not request service of the motion for summary judgment on Terry Lafargue. In the cases cited by King, the party complaining of the failure to serve was the party who had not been served. In this case, it is not the place of King, the plaintiff, to complain that La-fargue, a defendant, was not served by a co-defendant. King’s position vis-a-vis Miller is not affected by such a failure of service and it is ironic that King steps from the position of plaintiff to complain that the failure of service of the motion for summary judgment “will undoubtedly prejudice Mr. LaFargue” at trial.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiffs-appellants, Evangelist W. King and Jason King. .

AFFIRMED.

      . Evangelist King is sometimes referred to by his nickname, "Bunkey,” in correspondence included as exhibits.

      . Jason King, the son of Evangelist King, was named in the Agreement as ''third party beneficiary.” The Agreement provided that the payments due to Evangelist King were to be made to Jason King.

      .In the Petition, King also sought dissolution of the agreement and return of the interest/stock which was the subject of the agreement. In the Second Supplemental and Amending Petition, however, King withdrew the request to dissolve the agreement.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel KLIEBERT and Leeanne Kliebert v. David BREAUD, Doerle Food Services, LLC, State National Insurance Company, Inc., and Louisiana Farm Bureau and Casualty Insurance Company.
    No. 13-CA-655.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 31, 2014.

      Kris A. Perret, Attorney at Law, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Daniel Kliebert and Leeanne Kliebert.
    J. Konrad Jackson, Daniel W. Dilzell, Attorneys at Law, Jackson & Jackson, PLLC, New Orleans, Louisiana, for Defendants/Appellees, Doerle Food Services, LLC and State National Insurance Company, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

| gThis is an action for personal injuries allegedly sustained in a vehicular collision. The plaintiffs appeal the district court’s decision that granted summary judgment dismissing the defendants. We reverse and remand.

FACTS

On December 29, 2011, Daniel Kliebert and LeeAnne Kliebert filed suit against David Breaud; Mr. Breaud’s employer, Doerle Food Services, Inc.; and their insurer, State National Insurance Company, Inc. The plaintiffs asserted that Daniel Kliebert sustained severe and disabling injuries in an accident on January 12, 2011 on La. Hwy. 3125 in St. James Parish. They alleged he was operating his pickup truck on La. 3125 at its intersection with a private drive when a tractor-trailer, leased to Doerle Food Services, Inc. and operated by David Breaud, pulled out onto La. 3125 directly into the path of Mr. Kliebert’s vehicle, striking the passenger side of the Kliebert vehicle. They alleged further that Mr. Breaud failed to stop for a stop sign and failed to yield the right of way. The petition also included a loss-of-consortium claim by LeeAnne Kliebert, Daniel Kliebert’s wife.

During discovery, Mr. Kliebert admitted that prior to this accident, he had been treated by many doctors and had undergone surgery on his shoulder and neck for pre-existing injuries. Mr. Kliebert testified at his deposition that at the time of lathis accident, his pain from a 2009 accident had not been completely resolved. He claimed that as a result of the January 12, 2011 accident, all of his prior injuries were aggravated for a couple of months. He testified that he was sore and hurt a little worse than he did before this accident, but that he returned to his pre-accident baseline after a couple months. His wife, LeeAnne Kliebert, corroborated his testimony that all of his prior injuries, which had been resolving, were aggravated by the accident of January 12, 2011. Mrs. Kliebert also testified that their marital relationship was negatively affected by the injuries her husband sustained in the January 12, 2011 accident.

During discovery, the plaintiffs provided a list of physicians and/or healthcare providers from whom Daniel Kliebert allegedly sought treatment for injuries he alleged were caused by the accident of January 12, 2011. The plaintiffs supplemented their discovery responses to identify Dr. Cullen Ocmond as the doctor that Mr. Kliebert saw for treatment of injuries he alleged were caused by the January 12, 2011 accident.

The defendants filed a motion for summary judgment, asserting the claims against them should be dismissed because the plaintiffs could not prove that Daniel Kliebert’s injuries resulted from the accident. Specifically, the defendants pointed out that Mr. Kliebert testified he did not see any of the doctors he had listed for treatment of injuries he alleged were caused by the accident of January 12, 2011. In addition, Mr. Kliebert admitted he did not have evidence to refute the fact that the medical records produced by every doctor identified did not reflect that he told any of the doctors about the January 12, 2011 accident. Further, although Mr. Kliebert claimed he was treated by Dr. Ocmond for injuries resulting from this accident, the affidavit of Dr. Ocmond as well as records produced by Lutcher |4Family Clinic reflect that Mr. Kliebert never told Dr. Ocmond about the accident of January 12, 2011.

After a hearing, the trial court granted summary judgment in favor of the defendants and dismissed the matter, stating, “I do find there is an absence of factual support under Louisiana Code of Civil Procedure Article 966(C)(2).”

The plaintiffs filed a Motion for New Trial and/or Reconsideration, which the trial court denied after a hearing. In denying the motion for new trial, the court stated from the bench:

Here, the Court cannot find good grounds for granting a new trial. The Supreme Court stated in Maranto versus Goodyear Tire & Rubber that “the plaintiff must prove through medical testimony that it was more probable than not that the injury resulted from the accident.” The evidence offered at the hearing on Motion for Summary Judgment did not lead this Court to believe that the plaintiffs could meet the burden of proof set forth in Maranto. Thus, the Motion for Summary Judgment was granted. The Court denies the Motion for New Trial and/or Reconsideration.

ARGUMENTS

On appeal, the plaintiffs argue they should not be barred from asserting a claim against the defendants for general damages simply because Mr. Kliebert did not seek medical treatment for his injuries. They assert that the medical issues involved in this case are not complicated and do not require expert testimony. They state:

The plaintiff has provided sufficient proof that he suffered an aggravation of his pre-existing injuries as a result of the motor vehicle accident which forms the basis of this lawsuit. That a person would be sore and stiff for some period of time after a significant trauma, and that he received abrasion and bruising to his neck and chest from the seat belt from the accident is sufficiently within the common knowledge that no medical expert should be required to support plaintiffs claim.

| fjThe plaintiffs contend that Mr. Klie-bert’s credibility is an issue for trial and is not a matter to be decided by the court on a motion for summary judgment.

In opposition to the appeal, the defendants argue that the plaintiffs have come forth with no evidence to raise any issue of material fact regarding medical causation. They point out that Mr. Kliebert’s testimony and discovery responses identify Dr. Ocmond as the only doctor he saw for injuries he alleges were caused by the January 12, 2011 accident, but the Lutcher Family Clinic medical records and Dr. Oc-mond’s sworn affidavit establish that Mr. Kliebert not only did not see Dr. Ocmond for injuries allegedly caused by this accident, but also he never even told Dr. Oc-mond about the accident. The defendants assert that the plaintiffs cannot rest on mere allegations that Mr. Kliebert saw Dr. Ocmond for injuries he allegedly suffered as a result of the accident; they must have factual support for this allegation. The defendants contend that given the absence of factual support, the plaintiffs cannot prove through medical testimony that Mr. Kliebert’s injuries were caused by the accident.

LAW AND ANALYSIS

The Louisiana Supreme Court has summarized the rules regarding summary judgment as follows:

[A] motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. An issue is genuine “if reasonable persons could disagree.” A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Any doubt as to a dispute regarding a genuine issue of material fact must be resolved against granting the motion and in favor of a trial on the merits.
Nevertheless, summary judgments are favored under the law as they are designed to secure the just, speedy, and inexpensive determination of every action. Accordingly, rules are liberally construed to accomplish these ends, and a motion for summary judgment will be | ^granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”
Initially, the burden of producing evidence at the hearing on the motion for summary judgment is placed on the mover who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s ease. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.” Thus, “[o]nce the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion.” [Citations omitted.]

Oubre v. Louisiana Citizens Fair Plan, 2011-0097, pp. 20-21 (La.12/16/11), 79 So.3d 987, 1002-03.

In determining whether summary judgment is appropriate, the appellate court reviews evidence de novo. Bell v. Parry, 10-369, p. 6 (La.App. 5 Cir. 11/23/10), 61 So.3d 1, 3. Under this standard, the appellate court looks at the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, in making an independent determination that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id.

“[A] defendant takes his victim as he finds him; when the defendant’s tor-tious conduct aggravates a pre-existing injury or condition, he must compensate the victim for the full extent of this aggravation.” Lasha v. Olin Corp., 625 So.2d 1002, 1003 (La.1993). The question is whether Mr. Kliebert’s claims of aggravation of his pre-existing injuries can be proven without medical testimony.

|7The defendants’ assertion that the plaintiffs claims must fall without medical evidence is based on the principles set out in Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. [Emphasis added; citations omitted.]

94-2603 at p. 3, 650 So.2d at 759.

The plaintiffs deny that they must provide medical testimony to prove causation of Mr. Kliebert’s injuries. They argue there is no requirement that an injured party go to a doctor in order to maintain a claim for pain and suffering against a tort-feasor. They contend the plaintiffs’ testimony is a matter of credibility that must be determined by the trier of fact, stating, “Mr. Kliebert testified about what happened to him in the accident and how his life has been affected by it. Mrs. Kliebert has testified about how the accident negatively affected her husband and them relationship.”

The plaintiffs cite a post-Maranto decision of this Court in support of their argument that medical testimony is not necessary in this case:

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between an accident and subsequent injury by a preponderance of the evidence. Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error. A plaintiffs injuries are presumed to have resulted from an accident if the injured person was in good health prior to the accident but, commencing with the accident, the symptoms of the disabling condition manifest themselves, providing that the medical evidence shows a reasonable possibility of causal connection between the accident and the disabling | ^condition. In order to defeat the presumption of causation, the defendant must show that some other particular incident could have caused the injury in question. [Citations omitted.]

Cannet v. Franklynn Pest Control Co., Inc., 08-56, pp. 8-9 (La.App. 5 Cir. 4/29/08), 985 So.2d 270, 276.

The Cannet decision cites Maranto, but does not analyze Maranto’s language regarding proof through medical testimony.

The test for determining the causal relationship between an accident and subsequent injury is whether the plaintiff proved through medical or lay testimony that it is more probable than not that the subsequent injuries were caused by the accident. Cannet, 08-56 at p. 10, 985 So.2d at 276. Expert medical testimony is required when the conclusion regarding medical causation is one that is not within common knowledge. Id.

Here, it was established that Mr. Kliebert had sustained injuries in at least one prior accident from which he had not fully recovered. Although the plaintiffs provided no medical testimony to establish a causal relationship between Mr. Klie-bert’s claimed injuries and this accident, we believe the testimony of Mr. Kliebert and his wife regarding this accident’s negative effects require a credibility determination.

The trial judge cannot make credibility determinations on a motion for summary judgment. Indep. Fire Ins. Co. v. Sunbeam Corp., 1999-2181, p. 16 (La.2/29/00), 755 So.2d 226, 236. The credibility of a witness is a question of fact. Hutchinson v. Knights of Columbus, Council No. 5717, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. “Although the standard for granting a motion for summary judgment no longer encompasses a presumption in favor of trial on the merits, a trial is designed to evaluate the facts when credibility is at issue.” Id.

19Hence, we find the trial court erred in granting summary judgment.

DECREE

Accordingly, the judgment is reversed and the matter is remanded. Assessment of the costs of this appeal shall be made by the trial court following the final outcome of the merits.

REVERSED AND REMANDED.


author: STEPHEN J. WINDHORST, Judge.

text:
    Matthew MASON & Paula Mason v. BANKERS INSURANCE GROUP.
    No. 13-CA-704.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 31, 2014.

      William D. Treeby, John Mark Fezio, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Emile A. Bagneris, III, David I. Borde-lon, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|2The parties appeal a judgment in favor of insureds, Matthew and Paula Mason, and against insurer, Bankers Specialty Insurance Company (“Bankers”), in the amount of $11,320.00. The district court found that the plumbing system was covered under insureds’ homeowners’ insurance policy, that the insurer failed to prove an exclusion, and that the insurer was not arbitrary or capricious in denial of the claim. For the reasons that follow, we affirm in part, amend in part, and affirm as amended.

Facts and Procedural History

In late November and early December 2009, the Masons’ toilet in the hallway bathroom overflowed several times causing intrusion of sewerage, along with bacterial contamination, into their home. The Masons hired Steve Roberts Plumbing and Heating, Inc. to examine the plumbing system and to perform the required repairs. A video inspection of the plumbing system showed a break and some sags or “bellies” in the line. The repairs required tunneling under the slab, |sreplacing and rehanging the plumbing system and refilling the tunnels. The Masons were charged $14,560.00 for the work performed.

The Masons submitted a claim to their homeowners’ insurer, Bankers, but the claim was denied on the grounds that the damage was not caused by a covered peril, or was otherwise excluded. This lawsuit was subsequently filed and cross motions for summary judgment were filed by the parties. The district court judge granted Bankers’ summary judgment and denied the Masons’ summary judgment, finding that the Masons’ homeowners’ insurance policy did not provide coverage for the damages sustained and dismissed the Masons’ lawsuit. Both parties appealed and this Court vacated the district court’s judgment in favor of Bankers and remanded the matter for further proceedings. Mason v. Bankers Ins. Group, 11-704 (La.App. 5 Cir. 3/13/12), 90 So.3d 1088. This Court found that the plumbing system was a “structure” attached to the Masons’ dwelling and was therefore a covered property under Coverage A of the homeowners’ insurance policy. However, genuine issues of material fact existed as to whether the damage to the plumbing system itself was excluded from coverage under the exclusions of the policy, and the matter was remanded to the district court for further proceedings.

Following a bench trial, the district court found that the plumbing system was covered under the homeowners’ insurance policy, and that Bankers failed to show that an exclusion from coverage applied. The district court rendered judgment in favor of the Masons and against Bankers in the amount of $11,320.00. The court further found that pursuant to La. R.S. 22:1973, Bankers had 60 days in which to properly adjust the claim and Bankers properly adjusted the claim within the requisite time period. The district court further found that Bankers was not arbitrary or capricious in denying the Masons’ claim. This appeal followed.

hCoverage

The Masons appeal contending that while the district court correctly found that the plumbing system was covered under the homeowners’ insurance policy and no exclusions precluded coverage, the court erred in excluding from coverage items that were necessary for the covered repair.

In its Answer to this appeal, Bankers contends that the trial court erred in finding coverage under the homeowners’ insurance policy in that damage to the plumbing system itself was not covered by the policy pursuant to two exclusions. Alternatively, Bankers claims that the district court did not err in excluding certain items from coverage.

Since Bankers is seeking to avoid coverage under the policy, it bears the burden of showing that an exclusion to coverage applies. Mason, supra. Bankers relies on the following two provisions in claiming that coverage is excluded under the policy:

A. Coverage A — Dwelling And Coverage B — Other Structures
1. We insure against risk of direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss:
⅜ ⅜ ⅜
c. Caused by:
(6) Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself;
Exception To c(6)
Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a:
(ii) Plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the “residence |r,premises.” This includes the cost to tear out and replace any part of a building, or other structure, on the “residence premises,” but only when necessary to repair the system or appliance. However, such tear out and replacement coverage only applies to other structures if the water or steam causes actual damage to a building on the “residence premises.”
We do not cover loss to the system or appliance from which this water or steam escaped.

Mr. Mason testified that the toilet repeatedly threatened to overflow or overflowed in late November 2009 and early December 2009. He testified that it had never overflowed previously. Mr. Mason testified that when it overflowed, sewerage, including solid waste, spilled onto the bathroom floor. He further testified that when the toilet overflowed, items that were on the floor were soiled. He testified that the overflow required immediate clean-up. Mr. Mason testified that the cleanup process included use of towels, cups, baggies, Clorox, mops, and any disinfectants that were available. He stated that the disinfectants were used because it was a “noxious area” and the disinfectants were needed to thoroughly clean the baseboards, floor and grout in the bathroom and the carpet in the hallway outside of the bathroom. Mr. Mason testified that he and his wife were concerned about sanitation. Additionally, the disinfectants were used to help with the smell which was “[h]orrendous.” Mr. Mason further testified that he did not have to replace any of the baseboards, cabinetry, or carpet due to the overflows. Mr. Mason testified that he could not recall a specific number of times that the toilet overflowed, but stated that it was a “recurring issue.”

Mr. Mason testified that they stopped using the bathroom and hired Steve Roberts Plumbing & Heating, Inc. to inspect the toilet and plumbing system. He testified that Mr. Roberts came out and unclogged the drain line, but it did not stay unclogged and Mr. Roberts was called back out several more times to unclog the line. After the third or fourth time, Mr. Roberts recommended a video inspection listo determine the cause of the numerous overflows. The video revealed a break and sag or “belly,” which caused a blockage in the line and the resulting overflow of the toilet. Mr. Mason testified that after Mr. Roberts replaced the plumbing system in March 2010, they did not experience any further problems with the toilet overflowing.

Mr. Mason further testified that they made a claim to Bankers to fix the plumbing in early December 2009. Mr. Mason testified that he informed Bankers that he was having problems with his toilet overflowing. Eddie Horrell, an independent adjuster for Moulton Adjusting Company, inspected the Masons’ home on December 17, 2009. Mr. Horrell was presented with Mr. Roberts’ report. After inspecting the bathroom for water damage and walking the perimeter of the house, Mr. Horrell submitted a loss report to Bankers. In the loss report, Mr. Horrell found no water damage to the floor, baseboards or cabinetry. Based on a finding of no interior damage, Mr. Horrell recommended payment to the Masons in the “amount of $0.00.” Mr. Mason testified that he did not hear from Bankers until “January/mid-January” when their claim was, denied. Mr. Mason further testified that his attorney sent a letter on January 27, 2010, to Bankers stating that the damage was covered and Bankers responded with a letter February 11, 2010, again denying coverage. Mr. Mason then filed this suit alleging overflow of his toilet and resulting bacterial contamination.

Stephen Roberts was qualified as an expert in the field of “Diagnosis and Cause of Damaged Plumbing Systems.” Mr. Roberts testified that he was called out to the Masons to inspect their toilet. The first time he came out, Mr. Roberts testified that he removed the toilet and unclogged the sewer line. Mr. Roberts Ivtestified that this temporarily fixed the problem, but he was called back out for the same problem. After the third or fourth time of being called back, Mr. Roberts testified that he advised the Masons that a video inspection should be performed. The video inspection was performed and it showed a break in the line and some sags or “bellies.” Mr. Roberts testified that he recommended “tunneling” and replacing the old pipe because this was the only way to fix the repeated overflows of the toilet.

Mr. Roberts further testified that once he completed. the tunneling he found at least two breaks and some sags or “bellies” in the line, which resulted in “stoppage” which was causing the toilet to back up and - overflow of the toilet. He explained that there was “stoppage” because there was a break in the plumbing system that allowed debris to go in and collect, and that the resulting “stoppage” inhibited the gravitational flow of the water out of the system. He further testified that the sags or “bellies” also collect matter which cause the back up or overflow in the line. Mr. Roberts further testified that the cause of the breaks and sags was due to soil subsidence and gravity.

Mr. Roberts additionally testified that when he took the old pipes out they were “in decent condition.” He testified that he did not find any evidence of wear and tear or deterioration of the pipes, nor did he find evidence of a mechanical breakdown.

In order to prove that the damage to the plumbing system is excluded from coverage pursuant to subsection A2c(6)(a) or (b), Bankers must prove the cause of the damage. Mason, supra. Bankers contends that the testimony of Mr. Roberts shows that the failure of the plumbing system was due to settling and age is not a | ^covered loss, and is specifically excluded from coverage due to wear and tear, and deterioration. Contrary to Bankers’ assertion, Mr. Roberts’ testimony supports a finding of coverage under the policy. The uncontradicted testimony of Mr. Roberts established that the plumbing system (which is a covered property) was “in decent condition.” He specifically testified that no evidence of wear, tear, deterioration, or mechanical breakdown was found when the old pipes were examined. Bankers failed to introduce any testimony or evidence to show that the pipes sustained wear, tear, deterioration, or mechanical breakdown. Accordingly, we find that the district court did not err in finding that Bankers failed to prove the damage to the plumbing system was excluded under the policy.

Additionally, we find that “Exception To c(6)” is not applicable. This subsection is only relevant if Bankers proves that the cause of the damages to the plumbing system itself is one of the listed causes in subsection A2c(6). Mason, supra. We find the record supports the finding that Bankers failed to prove the plumbing system was damaged due to wear, tear, deterioration or mechanical breakdown as provided for in subsection A2c(6).

After finding coverage, the district court found the Masons were entitled to some, but not all of the costs for repairing the plumbing system on Mr. Roberts’ invoice. After applying the $2,500.00 deductible, the district court awarded the Masons $11,320.00. The Masons contend that the reasonable costs of necessary repairs to their plumbing system are covered under policy, including the items the district court failed to include in the costs.

| ¡Coverage E — Additional Coverages, subsection 2 which provides in pertinent part:
a. We will pay the reasonable cost incurred by you for the necessary measures taken solely to protect covered property that is damaged by a Peril Insured Against from further damage. b. If the measures taken involve repair to other damaged property, we will only pay if that property is covered under this policy and the damage is caused by a Peril Insured Against.

Because Bankers has failed to show that the damages to the plumbing system are excluded under subsection A 2 c(6), we find that the Masons are entitled to the reasonable costs of the necessary repairs to their plumbing system. We further find that the district court erred in failing to include the three charges from the invoice. Under the language of the policy, the charges for unclogging the plumbing system, performing the video inspection, and foaming the tub boxes were necessary measures to protect the covered property (■ie. the plumbing system) from further damage. Accordingly, we hereby amend the award of damages to include all charges included on the invoice, minus the deductible, and render judgment in the amount of $12,060.00.

Penalties and Attorney Fees

Finally, the Masons contend that the district court erred in denying their arbitrary and capricious claim pursuant to La. R.S. 22:1973, and further erred in failing to rule on their claim under La. R.S. 22:1892. The Masons contend that they submitted satisfactory proof of loss to Bankers on December 19, 2009 when they received Steve Roberts’ report reflecting a break and sag in the plumbing system, and that Bankers never contended that the report was not satisfactory proof of the Masons’ loss. Additionally, Bankers did not pay the claim within 30 or 60 days as required by La. R.S. 22:1892 and La. R.S. 22:1973, and did not formally deny the Masons’ claim until 54 days after Bankers received Mr. Roberts’ report 110on February 1, 2010. Finally, the Masons claim that Bankers’ misrepresentation of no damage and misinterpretation of the policy was arbitrary and capricious.

The record reveals that the Masons reported their claim to Bankers in early December 2009. On December 17, 2009, Mr. Horrell inspected the Masons’ home. At that time, Mr. Horrell was provided a copy of Mr. Roberts’ report showing a break and sag in the plumbing system. Mr. Horrell submitted his report, along with Mr. Roberts’ report, to Bankers on December 19, 2009. Mr. Horrell’s report recommended payment in the amount of “$0.00” based on a finding of no interior damage. Mr. Mason testified he was notified in “January/mid-January” that his claim was denied. Mr. Mason testified that this denial was not in writing. However, Mr. Mason further testified that he then contacted his attorney who sent a letter to Bankers claiming coverage under the policy on January 27, 2010. When asked if he received a response from Bankers to this letter from his attorney, Mr. Mason testified that “I believe I received another letter from Bankers denying coverage” and the letter was dated February 11, 2010.

Bankers has consistently claimed throughout this proceeding that the plumbing system is not covered property, or is otherwise excluded under the policy. When Bankers received Mr. Roberts’ report, attached to Mr. Horrell’s report, neither report specified what caused the break and sags in the plumbing system. The cause of the break and sags was not determined until a later subsequent date. Determination of the cause of the damage was necessary to establish whether the damage was excluded. Mason, supra.

Both La. R.S. 22:1892 and La. R.S. 22:1978 provide for penalties and attorney fees for the insurer’s failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Jouve v. State Farm Fire and Cas. Co., 10-1522 (La.App. 4 Cir. 8/17/11), 74 So.3d 220, 226, writ denied, 11-2250 (La.11/23/11), 76 So.3d 1157. The primary difference is the time periods allowed for payment. La. R.S. 22:1892B(1) requires payment to be made within 30 days after satisfactory proof of loss while La. R.S. 22:1973B(5) requires payment to be made within 60 days after satisfactory proof of loss.

When there are substantial, reasonable, and legitimate disputes as to the extent of an insurer’s liability or an insured’s loss, the insurer’s failure to pay with the statutory time period is not arbitrary, capricious, or without probable cause. Louisiana Bag Co., Inc. v. Audubon Indent,. Co., 08-0453 (La.12/2/08), 999 So.2d 1104, 1114; Maloney Cinque, L.L.C. v. Pacific Ins. Co., Ltd., 11-0787 (La.App. 4 Cir. 1/25/12), 89 So.3d 12, 25, writ denied, 12-0950 (La.7/2/12), 92 So.3d 345. This is especially true where a reasonable and legitimate question exists as to the extent and causation of a claim. Louisiana Bag Co., Inc., 999 So.2d at 1114. Whether an insurer’s action was arbitrary, capricious, or without probable cause is a question of fact to be determined by the district court and will not be disturbed on appeal absent manifest error. La Louisiane Bakery Co., Ltd. v. Lafayette Ins. Co., 09-825 (La.App. 5 Cir. 2/8/11), 61 So.3d 17, 35, writ denied, 11-0493 (La.4/25/11), 62 So.3d 95.

The question then is what constitutes a “satisfactory proof of loss.” Satisfactory proof of loss is only that which is sufficient to fully apprise the insurer of the insured’s claims. Louisiana Bag Co. Inc., 999 So.2d at 1119; La Louisiane Bakery Co., Ltd., 61 So.3d at 35.

We find that substantial, reasonable, and legitimate questions existed as to the extent and causation of the damage to the plumbing system when Bankers received the reports from Mr. Horrell and Mr. Roberts. Therefore, the district court did not err in finding that Bankers was not arbitrary or capricious in denying |iathe claim. Furthermore, the district court did not err in finding that the claim was timely denied pursuant La. R.S. 22:1973.

The Masons further contend that the district court erred in failing to rule on the Masons’ claim that Bankers misrepresented and misinterpreted its own policy, failed to timely pay after satisfactory proof of loss, and was arbitrary and capricious pursuant to La. R.S. 22:1892.

When a judgment is silent as to a claim or demand that was litigated, it is presumed to be deemed denied by the district court. Cambre v. St. John the Baptist Parish, 12-590 (La.App. 5 Cir. 5/16/13), 119 So.3d 73, 81, writ denied, 13-1415 (La.10/11/13), 123 So.3d 1227. We find that the district court denied the Masons’ claim for attorney fees and penalties pursuant to La. R.S. 22:1892. The judgment does not specifically address this claim and the issue was fully litigated. Considering the evidence, we find that the district court did not err in denying the Masons’ claim pursuant to La. R.S. 22:1892.

Conclusion

For the above stated reasons, we affirm the judgment finding coverage, finding that Bankers failed to prove an exclusion, and further finding that Bankers was not arbitrary or capricious in the denial of the Masons’ claim. We further amend, and affirm as amended, the principal amount of the judgment in favor of the Masons and against Bankers in the amount of Twelve Thousand, Sixty Dollars ($12,060.00).

AFFIRMED IN PART; AMENDED IN PART; AND AFFIRMED AS AMENDED

      . The petition, several subsequent pleadings, and a prior appeal, refer to the homeowners' insurer as Bankers Insurance Group or Bankers Specialty Insurance Group. However, based on the appeal before us and review of the record, the homeowners’ insurer's correct name is Bankers Specialty Insurance Company.

      . Mr. Roberts specifically stated that the cause of the breaks and sags was due to "the mud, the ground, that was sitting on top the pipe, and ... the mud that was underneath the pipe, sank. So the weight of that.” He stated that the pipes had hangers on them about every five feet, but "when the mud gives way, just from gravity just ... from the settling, and then, that mud is sitting on top of that pipe, it probably doesn’t have anyplace else to go now, so ... .it snapped.” He further testified that "if you have stoppage in— somewhere, there’s weight to water ... it builds up with water, that will also incur weight to ... the plumbing system.” He testified that although the soil subsidence happened over a period of time, the break in the pipes was "sudden.”

      . Bankers failed to show that soil subsidence is a "covered property” or that deterioration contemplates soil subsidence under the policy.


text:
    STATE of Louisiana v. Trent LYONS.
    No. 13-KA-564.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 31, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Jody Fortunato, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Frank Sloan, Attorney at Law, Mande-ville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

UThe defendant, Trent Lyons, was convicted of second degree murder of Wilbert Decou in violation of La. R.S. 14:30.1. After the denial of his motion for new trial, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant’s timely appeal followed.

FACTS

On October 18, 2011, Wilbert Decou and defendant engaged in an altercation stemming from an incident between defendant and Desmond Parker, the son of Decou’s girlfriend, which had occurred on the previous evening.

On the date of the incident, defendant approached Decou and asked him if he wanted to fight. Defendant then went back in the direction from which he came. Decou went inside his house, and then returned wearing gloves and appeared prepared for a fight. Decou had cut the fingers off of his gloves. Decou was also wearing a shirt.

Defendant returned, told Decou to come on and fight and stated that he fights for a living. Decou put his arms up in a defensive position, and then, Decou and defendant began throwing fists at each other. The fight was witnessed by two men, Warren Mosley and Otis Gary, and also by Desmond Parker. According to Gary, not less than four or five punches passed between defendant and Decou.

During the three minute fight, Decou caused defendant to move backwards. Once defendant realized that Decou was really fighting back and was unafraid, ^defendant pulled out a military knife with a seven to eight inch blade. When defendant pulled the knife, Decou ran towards the street. After it appeared that defendant was gaining ground, Decou turned around. Decou raised his hands in an unsuccessful attempt to block the knife or in an attempt to swing at defendant. As soon as defendant caught up with Decou, he jammed Decou under his arm with a knife, and Decou dropped down to his knees in the street. According to Gary, defendant said, “I told you I was an ‘f-ing’ killer, now look you see,” while standing over Decou. According to Mosley, after the defendant stabbed Decou, he stated that this is what he did for a living.

Parker testified that he thought Decou was knocked out and had only lost the fight. After he walked towards Decou to help him up, he saw a pool of blood coming from Decou’s side. Parker removed his own shirt and used it to put pressure on Decou’s wound to stop the bleeding. As Parker and a nurse from across the street performed CPR and attempted to revive Decou, Parker saw defendant running away. Defendant later returned to the scene, but then again left.

Thomas Evans, a forensic death investigator for the JPSO and a paramedic, was one of the responders to the scene. At trial, he testified that his responsibilities were to identify the body, notify the family, and locate and document any wounds, property, clothing, and evidence to relay to the pathologist. He noticed a penetrating wound to the deceased’s right chest. After searching the deceased’s clothing and body, he found a pocket knife and metal wrapped in electrical tape in the deceased’s right front pocket. The pocket knife was folded, closed, void of blood and was returned to the deceased’s family. Also, Evans removed cloth gloves, which were not weighted, from the deceased’s hands. In addition, the deceased was shirtless, and a shirt was found underneath the body.

|4The defense disputed Mr. Mosley and Mr. Gary’s version of events. Randon Brown testified at trial on behalf of the defense that Decou had been like a second father to him for 10 years, and he would see him every day. According to Brown, after the dispute between defendant, and Parker and his mother had been resolved, Decou said that he and defendant were going to fight every day and that he would “f* * * that n* * * * * up.” Then, Decou prepared to fight by putting on gloves, removing his shirt and switching his slippers for tennis shoes.

After defendant pulled up in his driveway and exited his car, defendant and Decou began fighting in the middle of the street. Brown testified that he witnessed Decou pull the knife out of his back pocket, and that he, Brown, knew it was a knife because he saw the glare. When Decou pulled out the knife, defendant grabbed his arm and wrestled with him. Then, Decou was on the ground, and defendant walked away moving toward him. Brown testified that as defendant walked towards him, he saw that defendant did not have anything in his hand. He also saw that defendant had cuts on his arm and his eye was bleeding. Brown testified that he was telling the truth and was not testifying because he did not like Decou. Brown stated that he did not want to come forward at first because he was stuck in the middle and Decou was his family and a friend. He explained that he was testifying under subpoena and if he had a choice he would not have come.

The day after the incident, defendant accompanied by his sisters and girlfriend, met with an attorney located at Tulane Avenue and Broad Street. Defendant’s girlfriend, Cindy Armstead, testified that defendant’s arms were cut and swollen, and his face was swollen. She stated that the defendant did not have those marks before the fight. In her opinion, the wounds appeared to be stab wounds and appeared to be fresh, although she also admitted that there was scabbing. She further stated that defendant kept repeating that Decou had wanted | sto fight. After pictures of defendant were taken at the law office, he voluntarily turned himself into at the Jefferson Parish jailhouse and was booked with second, degree murder.

Autopsy results revealed that Decou died as a result of a single stab wound to the chest which resulted in lethal injury to his heart and pulmonary artery. The wound was consistent with a single-edged blade like a kitchen knife, and it was unable to be determined whether or not the blade was serrated. The stab wound was more than two inches in length and six inches in depth.

DISCUSSION

In his sole assignment of error, defendant argues that the trial court erred by denying defendant’s oral motion in limine to prevent the State from referring to the deceased as the “victim” throughout trial including the questioning of witnesses. Defendant argues that the use of “victim” in this case was prejudicial because he raised self-defense.

The State first responds that defendant’s claim is not properly before this Court because defendant failed to make a contemporaneous objection to the State’s use of the term “victim.” The State asserts that a contemporaneous objection was required in order to preserve the issue for appeal because defendant’s motion in limine was verbal and not a written motion. Second, the State argues that all matters pertaining to the conduct of the trial are within the sound discretion of the trial judge, and the trial court did not abuse its discretion by denying the motion in limine.

On the first day of trial, defense counsel made an oral motion in limine that both sides refer to Mr. Decou as “the deceased” and that the State not be permitted to refer to the Mr. Decou as “the victim.” The defense argued that referring to the deceased as a “victim” is a jury question as to whether or not defendant took the lfideceased’s life in self-defense. The defense asserted that whether or not the deceased was a victim is an opinion, and the attorneys are not permitted to give an opinion as to what occurred. After the State objected to the defense’s request, the defense further argued that referring to the deceased as “the victim” is the same as calling defendant guilty and it is for the jury to come to a conclusion. In denying the defendant’s motion, the trial court gave the following reasons:

The Court is aware that in most criminal cases it’s generally accepted that a person who is injured or becomes deceased as a result of the alleged action of someone else is referred to as “a victim.” It’s no different than the State telling this jury that your client is a murderer or murdered someone, so the motion is denied, and your objection is noted for the record.

The defense requested in the alternative that the State refer to the deceased as “the alleged victim” instead of “the victim.” Defense counsel argued that in self-defense cases it is not a question of who committed the action but whether the action was in self-defense, which is a jury question. The court again denied defendant’s motion and gave the following reasons:

The Court instructs juries in every case that it is the burden of the State to prove all the elements of the crime charged beyond a reasonable doubt. The Court also instructs jurors that whatever the lawyers say to each other, to the Court, to the witnesses and to the jury, is not evidence.

After the court’s ruling, defense counsel noted his objection, and the court also noted defendant’s objection for the record. In addition, defense counsel stated his intention to move for a mistrial whenever the State first referred to the deceased as “a victim.” Although the court stated that defendant had a right to make any motions he chose, the record reflects that defendant did not move for a mistrial or further object to any particular reference to the deceased as “a victim” by the State.

First, the State raises a preliminary issue of whether defendant made a contemporaneous objection to the State’s reference to the deceased as “the victim.”

|7To preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841; State v. Browning, 06-929 (La.App. 5 Cir. 4/11/07), 956 So.2d 65, 72. The purpose behind this rule is to put the trial judge on notice of an alleged irregularity, thereby allowing the trial judge the opportunity to make the proper ruling and correct any claimed prejudice to the party alleging the error. Browning, supra.

The record reflects that defense counsel objected to the trial court’s denial of his oral motion in limine requesting that the State not be permitted to refer to the deceased as “the victim.” However, defense counsel did not object to any of the State’s references to the deceased as “the victim” at trial. Nevertheless, we find that the defense’s objection to the trial court’s denial of his oral motion in limine put the trial judge on notice of the alleged irregularity, which allowed the trial judge the opportunity to make a proper ruling and correct any claimed prejudice. Thus, this issue was properly preserved for appellate review.

La.C.Cr.P. art. 771 condemns the use of remarks that are “irrelevant or immaterial and of such a nature that it might create prejudice against the defendant or the state, in the mind of the jury.” State v. Lewis, 367 So.2d 1155, 1158 (La.1979), overruled in part on other grounds, State v. Holden, 375 So.2d 1372 (La.1979) (citing La.C.Cr.P. art. 771). In Lewis, the defendant complained that the prosecutor’s reference to the complainant of a burglary as “the victim” was improper because it had the effect of arousing the jury’s sympathies for the complainant. The Court found that using the terminology “the victim” did not fall into the categories of irrelevant and immaterial remarks which could prejudice the [¿jury against the defense as stated in La.C.Cr.P. art. 771. Id. See also State v. Williams, 615 So.2d 1009, 1015 (La.App. 1 Cir.1993), writ denied, 93-767 (La.1993), 619 So.2d 543 (the court found that the trial court did not err by denying the defendant’s pre-trial motion in limine in regard to any references to “murder” and “victim” during the trial and any error was harmless).

We find that using the terminology “the victim” to refer to the deceased does not fall into the category of irrelevant and immaterial remarks which could prejudice the jury. As explained by Dr. Garcia at trial, the manner of death was categorized as a homicide simply because it was a death of one human being at the hands of another. Accordingly, it appears that the use of the terminology “the victim” has no bearing on the validity of defendant’s justification of self-defense. See Lewis, supra.

Further, even if the trial court had erred by allowing the deceased to be referred to as “the victim,” we find that the error was harmless. The indictment charged defendant with the second degree murder of Mr. Decou, and the jury was fully aware of the charged offense and that Mr. Decou was the alleged victim. See Williams, supra. Also, the trial as a whole was conducted fairly and there was considerable evidence of defendant’s guilt. Several witnesses testified at trial that they observed the altercation between the deceased and defendant. Two witnesses, Mr. Mosely and Mr. Gary, testified to witnessing defendant chase the deceased down the street and stab him with a knife. Dr. Garcia testified that the deceased died as a result of a stab wound to the chest that perforated his lung, heart, and pulmonary artery. Therefore, even if the trial court erred in allowing the deceased to be referred to as “the victim” any error would be harmless. See State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 214-15.

Defendant’s assignment of error has no merit.

lflWe have reviewed the record for errors patent, according to the mandates of La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following which merits our attention.

The record reveals a conflict between the transcript and the “State of Louisiana Uniform Commitment Order,” which reflects the incorrect date of offense. The uniform commitment order reflects the date of the offense as “10/19/2011.” However, the record reflects that the correct date of offense was October 18, 2011. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this case for correction of the Uniform Commitment Order error regarding the date of offense. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. In addition, we further direct the Clerk of Court to transmit the corrected commitment to the officer in charge of the institution to which defendant has been sentenced, as well as, to the legal department of the Louisiana Department of Public Safety and Corrections. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

CONCLUSION

For the reasons stated above, we affirm the defendant’s conviction and sentence and remand this ease for corrections in compliance with this opinion. We further order that, in addition to the record copy, a separate copy of this opinion be delivered to the Clerk of Court for the Twenty-Fourth Judicial District Court for the Parish of Jefferson and to the legal department of the Louisiana Department of Public Safety and Corrections.

CONVICTION AND SENTENCE AFFIRMED AND REMANDED WITH INSTRUCTIONS.