text:
    Patricia Ewing HENDRICK, et al., Plaintiffs-Appellants v. Benton PATTERSON, Jr., et al., Defendants-Appellees.
    No. 47,668-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    Rehearing Denied Feb. 21, 2013.

      The Pesnell Law Firm, APLC by William Alan Pesnell, Lydia M. Rhodes, Shreveport, LA, for Plaintiffs-Appellants Nicholas deBerardinis and David deBerar-dinis.
    Barham, Warner, Stroud & McKay, Shreveport, LA, by Richard G. Barham, Boggs, Loehn & Rodrigue, Metairie, LA, by Thomas Edward Loehn, Edward Andrew Rodrigue, Jr., for Defendants-Appel-lees Neff Construction, Inc.
    Before WILLIAMS, MOORE and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tern.

The plaintiffs, Nicholas and David de-Berardinis, appeal from a trial court judgment denying their claim for costs, legal interest, and attorney fees arising from a dispute over the construction of a house for the original plaintiff, Patricia Ewing Hendrick. The defendant is the builder of the house, Neff Construction, Inc. (“Neff’). For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

In April 1998, Mrs. Hendrick contracted with Benton Patterson, Jr., an architect, to design and construct a house in Shreveport. Testing at the house site showed that the soil was susceptible to wet and dry cycles. Extensive instructions were given for laying the type of foundation required to avoid cracking of the slab and walls. Mr. Patterson recommended Neff to Mrs. Hendrick to be the contractor and she accepted the recommendation. The house was substantially completed in May 1995.

Mrs. Hendrick alleged that cracks in the walls, buckling of the floors, and difficulty in opening and closing doors began almost immediately. Investigations were made in 1998 and 2004 to determine the cause of the continued development of separations in the drywall and exterior masonry.

The defendants alleged that the problems with the foundation of the house were caused by Mrs. Hendrick overwatering the flowerbeds. In 1998, at the recommendation of Mr. Patterson, Mrs. Hendrick installed additional surface drainage. However, problems with the house continued. Mrs. Hendrick claimed that the floors began to dome and mold developed in the house. She asserted that inspections in 2004 and 2005 showed that the foundation and roofing systems were improperly designed and constructed.

Mrs. Hendrick filed suit in May 2005, under the New Home Warranty Act contained in La. R.S. 9:3141 et seq., naming Neff and Mr. Patterson as defendants. She sought to recover $843,386.97 paid to Neff for construction, $81,654.25 paid to Neff for repair of deficiencies in the house, and $65,870 paid to Mr. Patterson. Mrs. Hendrick also sought to recover legal interest from the date of first demand or from the date of judicial demand until paid, together with all costs of these proceedings, including but not limited to expert fees and expenses and reasonable attorney fees.

The plaintiffs filed a motion for partial dismissal as to Mr. Patterson, which was granted by the trial court in June 2010. The plaintiffs’ rights against Neff were preserved.

In September 2010, Neff made an offer of judgment to the plaintiffs under La. C.C.P. art. 970. The relevant portion of the offer stated, “In accordance with Louisiana Code of Civil Procedure Article 970, my client, Neff Construction, Inc., is making an offer of judgment to your clients in the total amount of $125,000.00, exclusive of costs, interest and attorney fees.” The plaintiffs accepted the offer of judgment and filed a motion to have the trial court enter a judgment in their favor against Neff.

Because Neff had consented to the entry of judgment against it, and its offer of judgment was exclusive of attorney fees, costs, and interest, the plaintiffs also filed a rule to show cause why these items should not be assessed against Neff. The plaintiffs alleged that, under the New Home Warranty Act, they were entitled to these items. In their pleading, the plaintiffs claimed attorney fees, litigation costs and expenses, and expert fees necessitated by facts of the case, “together with legal interest from the date of judgment until paid.”

Neff contended that it intended its offer to be in settlement of all claims between the parties and that it did not intend for the plaintiffs to be able to recover any additional amounts. After a hearing, the trial court denied the plaintiffs’ motion for judgment on the offer of judgment. The trial court reasoned that an offer of judgment, if properly accepted, constitutes a compromise under La. C.C. art. 3071 et seq. A compromise is valid only if there is a meeting of the minds between the parties as to exactly what they intended at the time the compromise was reached. The mutual consent of the parties is critical to the existence of a valid compromise. The trial court noted that Neff’s offer of judgment specified that the total amount of $125,000 was exclusive of costs, interest, and attorney fees. The plaintiffs accepted the offer as written and stated that the amount offered would satisfy all the plaintiffs’ claims except those for legal interest on the amounts due, as well as costs, expenses, and attorney fees. The trial court found that the parties entered into a compromise without a common intent as to whether Neff would be responsible for additional claims. There was no meeting of the minds as to the total amount to be paid by Neff at the time when the compromise was entered into; therefore, there was no valid compromise. The trial court noted that the amount of costs, interest, and attorney fees sought by the plaintiffs is more than the amount offered in the settlement. According to the trial court, to award double the amount of the offer by adding interest, costs, and attorney fees would be an absurd result not intended by the parties at the time of the compromise. The trial court found that the offer of judgment was not a valid compromise and was unenforceable.

The plaintiffs filed for a writ of review of the denial of their motion for judgment on offer of judgment. In January 2011, this court granted the writ and remanded the matter for entry of judgment in accordance with the accepted offer made pursuant to La. C.C.P. art. 970. This court found that the plain meaning of the offer was that the $125,000 did not include the costs, interest, and attorney fees. The matter was remanded to the trial court for a hearing and assessment by the trial court of these additional amounts.

On March 4, 2011, this court denied Neffs application for rehearing, with one judge dissenting. Neffs application for writs to the Louisiana Supreme Court was denied.

In compliance with this court’s instructions, on February 8, 2012, the trial court signed a judgment in favor of the plaintiffs and against Neff for $125,000. A hearing was held on February 8, 2012, on the issue of attorney fees, costs, and interest.

The trial court granted the plaintiffs’ claims for all fees and costs paid to the clerks of court. The trial court granted the plaintiffs’ demand for legal interest on the judgment in the amount of $125,000 until paid, running from the date of judgment. The trial court denied the plaintiffs’ claims for | attorney fees, and any and all other expenses and fees. All other relief prayed for and not granted was denied.

In reasons for judgment, the trial judge stated that, although she was not the original trial court judge in this matter, she understood why the original judge found that there was no meeting of the minds on the offer of judgment. She concurred in this assessment.

The trial court reasoned that an offer of judgment and the judgment signed in connection with it are not admissions of liability. The trial court held that, absent a finding of legal liability under the New Home Warranty Act, there is no statutory or legal basis for an award of attorney fees.

Because there was no trial in this matter, the trial court found that the plaintiffs were not entitled to expert fees or expenses. According to the trial court, in the pretrial conference, the plaintiffs candidly acknowledged that they realized expert witness fees were probably not recoverable under the law.

The trial court determined that the plaintiffs were entitled only to court costs paid to the trial and appellate courts. All other items claimed as costs were litigation expenses not authorized to be recoverable by statute or jurisprudence.

Regarding legal interest, the trial court observed that, in their rule to tax costs and assess attorney fees, the plaintiffs requested legal interest only from the date of judgment until paid. Therefore, legal interest on the $125,000, was awarded only from the date of judgment, as prayed for. The plaintiffs appealed.

ATTORNEY FEES

The plaintiffs maintain that the trial court erred in denying their claim for attorney fees under the New Home Warranty Act and La. C.C.P. art. 970. The plaintiffs argue that the trial court erred in finding that the entry of judgment on the offer of judgment did not admit liability which would entitle the plaintiffs to attorney fees and costs under the New Home Warranty Act. The plaintiffs urge that an offer of judgment is distinguishable from an offer of settlement. They contend that, while making an offer of judgment is not an admission of liability, if the offer is accepted, the judgment results in a finding of liability. The plaintiffs argue that the New Home Warranty Act allows attorney fees where a builder violates the Act. The plaintiffs maintain that this court should reverse the decision of the trial court and render a decision based on the record. The plaintiffs contend that we have sufficient evidence in the record to render a decision granting their claims. These arguments are without merit.

Discussion

La. C.C.P. art. 970 provides:

A. At any time more than thirty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them. The offer of judgment shall be in writing and state that it is made under this Article; specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Unless accepted, an offer of judgment shall remain confidential between the offeror and offeree. If the adverse party, within ten days after service, serves written notice that the offer is accepted, either party may move for judgment on the offer. The court shall grant such judgment on the motion of either party.
B. An offer of judgment not accepted shall be deemed withdrawn and evidence of an offer of judgment shall not be admissible except in a proceeding to determine costs pursuant to this Article.
C. If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.
D. The fact that an offer is made but not accepted does not preclude a subsequent offer or a counter offer. When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the damages remains to be determined by future proceedings, either party may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than thirty days before the start of hearings to determine the amount or extent of damages.
E. For purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained, which judgment shall take into account any additur or remittitur, the final judgment obtained shall not include any amounts attributable to costs, interest, or attorney fees, or to any other amount which may be awarded pursuant to statute or rule, unless such amount was expressly included in the offer.
F. A judgment granted on a motion for judgment on an offer of judgment is a final judgment when signed by the judge; however, an appeal cannot be taken by a party who has consented to the judgment.

Most cases construing La. C.C.P. art. 970 deal with the award of costs after an offer of judgment is rejected, the matter is tried on the merits, and the award is at least 25 percent less than the amount offered by the defendant-offeror or is at least 25 percent greater than the amount offered by the plaintiff-offeror. See Edwards v. Daugherty, 98-635 (La.App. 3d Cir.6/9/99), 736 So.2d 345, writ denied, 1999-2034 (La.9/17/99), 747 So.2d 568; Heid v. Aubert, 2002-1486 (La.App. 1st Cir.5/9/03), 845 So.2d 625; Suprun v. Louisiana Farm Bureau Mutual Insurance Company, 2009-1555 (La.App. 1st Cir.4/30/10), 40 So.3d 261. In the present case, the issue is whether the plaintiffs are entitled to costs, interest, and attorney fees where the offer of judgment is accepted.

The plaintiffs contend that, under La. C.C.P. art. 970, because Neff made the offer exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule, they could seek to recover those amounts in addition to the amount of the offer. We have examined La. C.C.P. art. 970, dealing with offers of judgment and stating that such an offer shall specify whether the offer is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Under the laws of statutory interpretation, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10. The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter. La. C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12.

In this matter, we find that La. C.C.P. art. 970 must be read as a whole. La. C.C.P. art. 970(A) states that an offer of judgment shall specify the total amount of money of the settlement offer and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, or any other amount which may be awarded pursuant to statute or rule. If an offer of judgment is refused, the matter goes to trial on the merits, and the final judgment obtained by the plaintiff-offeree is at least 25 percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least 25 percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court. La. C.C.P. art. 970(C).

La. C.C.P. art. 970(E) provides the method for calculating this amount. According to that subsection, for purposes of comparing the amount of money offered in the offer of judgment to the final judgment obtained, which judgment shall take into account any additur or remittitur, the final judgment obtained shall not include any amounts attributable to costs, interest, or attorney fees, or to any other amount which may be awarded pursuant to statute or rule, unless such amount was expressly included in the offer. La. C.C.P. art. 970(E) only comes into play after there has been a trial on the merits and a finding of liability under the applicable statute or rule. In such a case, whether the offer of judgment was inclusive or exclusive of costs, interest, attorney fees, or any other amount which may be awarded pursuant to statute or rule, determines whether these amounts are added to the principal amount of the offer to calculate whether the final judgment is 25 percent less than the offer made by the defendant-offeror or is 25 percent greater than the offer made by the plaintiff-offeror. This was not the scenario in this case. Neffs offer, made exclusive of costs, interest, or attorney fees, did not entitle the plaintiffs to recover those amounts without a finding of liability under the New Home Warranty Act.

The plaintiffs cite Crawford v. United Services Automobile Association, 2003-2117 (La.App. 1st Cir.3/24/05), 899 So.2d 668, in support of their argument that costs are due in this case because the offer of judgment was made exclusive of costs, interest, and attorney fees. In Crawford, the plaintiff was involved in auto accidents in 1994 and 1995. He filed two separate suits against his insurer, United Services Automobile Association (“USAA”), seeking to recover under the underinsured/unin-sured motorist and medical payment coverage of his policy. The matters were consolidated and the plaintiff filed a motion for summary judgment on the issue of liability and coverage. The trial court granted the summary judgment in part, finding that the plaintiff established liability as to the 1994 accident, but failed to establish liability for the 1995 accident. The court found that the plaintiff had proved coverage on both accidents, subject to a credit for the amounts already paid by USAA. During the course of the proceedings, the parties jointly stipulated liability in favor of the plaintiff as to the 1995 accident, the percentage of penalties and attorney fees due on any damage award, and how the post-verdict calculations were to be performed.

USAA sent the plaintiff an offer of judgment for $250,000, exclusive of all costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute, rule, or stipulation. The plaintiff accepted the offer and faxed a letter to USAA specifying the amount demanded, $250,000, but also including amounts for penalties, attorney fees, and legal interest. USAA indicated that there was a misunderstanding as to the terms of the offer of judgment, that it did not intend to pay any more than $250,000, and that it intended to reduce that amount by the sums it had already paid.

The trial court gave USAA a credit for sums already paid and made an award of penalties and attorney fees. The first circuit reversed the trial court decision, analyzing the offer of judgment under the rules for a transaction or compromise. The court discussed the language in the offer of judgment specifying that the offer was “exclusive of all costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute, rule, or stipulation.” In finding that USAA was required to pay amounts in addition to $250,000 offered, the first circuit cited Nichols v. Alonzo, 575 So.2d 403 (La.App. 4th Cir.1991), writ denied, 577 So.2d 3 (La.1991), interpreting the phrase “exclusive of interest and costs” as used in La. R.S. 32:900, a statute defining “Motor Vehicle Liability Policy.” The court in Crawford found that by the use of the word “exclusive,” any other amount which may be awarded pursuant to statute, rule, or stipulation meant any additional award to which the plaintiff might be entitled beyond the total amount of the settlement offer, plus costs, interest and attorney fees. The first circuit then found that USAA was not entitled to reduce the total amount of the settlement offer by previously determined credits. The court ordered USAA to pay the entire $250,000, as well as penalties, attorney fees, legal interest, and costs.

The facts in Crawford are distinguishable from those in the present case. In Crawford, the defendant’s liability to the plaintiff had been established by the granting of a motion for summary judgment and a joint stipulation as to liability. Also, the parties stipulated that the plaintiff was entitled to attorney fees according to a set formula.

In the present case, there has been no determination of liability by a trier of fact, no entry of summary judgment in favor of the plaintiffs, and no stipulation as to liability. There is no agreement in this case regarding the calculation of attorney fees. Whether the plaintiffs are entitled to costs, interest and attorney fees rests upon whether the acceptance of the offer of judgment resulted in a judgment against Neff establishing its liability under the New Home Warranty Act. The relevant portion of that statute, La. R.S. 9:3149(A) provides:

If a builder violates this Chapter by failing to perform as required by the warranties provided in this Chapter, any affected owner shall have a cause of action against the builder for actual damages, including attorney fees and court costs, arising out of the violation. The damages with respect to a single defect shall not exceed the reasonable cost of repair or replacement necessary to cure the defect, and damages with respect to all defects in the home shall not exceed the original purchase price of the home.

In order for the plaintiffs to be entitled to attorney fees and costs under the New Home Warranty Act, the judgment entered in this case under La. C.C.P. art. 970 must constitute a finding that Neff violated the Act, resulting in liability on the part of Neff. The jurisprudence of this state holds that the entry of a judgment on an offer of judgment under La. C.C.P. art. 970 incorporates the relevant portion of the statute “without any admission of liability.” Hamilton v. Louisiana Casino Cruises, Inc., 1999-1147 (La.App. 1st Cir.6/10/00), 828 So.2d 1, writ denied, 2000-2373 (La.11/17/00), 774 So.2d 973. In Hamilton, the defendant made an offer of judgment under La. C.C.P. art. 970, which was accepted by the plaintiff. In discussions regarding the judgment to be submitted to the court for signature, the defendant desired to have the phrase “without any admission of liability” included in the judgment. The appellate court affirmed the trial court judgment finding that the citation to the article was sufficient to express that the judgment was without any admission of liability.

In this case, we find that the offer of judgment and the judgment entered after the offer of judgment was accepted did not result in a finding of liability on the part of Neff. Therefore, there is no finding that Neff violated the New Home Warranty Act and the plaintiffs are not entitled to recover attorney fees and costs under that statute.

La. C.C.P. art. 970 has been found by some courts of this state to be a modified yersion of Rule 68 of the Federal Rules of Civil Procedure. See Edwards v. Daugherty, supra. We find that there are significant differences which preclude the application of federal jurisprudence in this matter. The federal rule provides:

(a) Making an Offer;. Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evk dence of an unaccepted offer is not admissible except in a proceeding to determine costs.
(c) Offer After Liability is Determined. When one party’s liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time — but at least 14 days — before the date set for a hearing to determine the extent of liability.
(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. [Emphasis supplied.]

La. C.C.P. art. 970 specifies that the offer of judgment is not an admission of liability. Rule 68 does not contain such language. La. C.C.P. art. 970 states that an offer of judgment shall specify whether the offer is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Rule 68 requires that all offers of judgment include “costs then accrued.” In Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), the Supreme Court stated that the phrase “costs” includes all costs that are properly awardable in an action. Where the underlying statute defines “costs” to include attorney fees, such fees are to be included as costs for the purpose of Rule 68. The Supreme Court in Marek specified that, if an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs. If the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion it determines to be sufficient to cover the costs. Because Louisiana’s rule on offer of judgment, is significantly different from Rule 68, as applied to this case, we find that federal jurisprudence regarding the award of attorney fees when an offer of judgment is accepted is not applicable here.

INTEREST

The plaintiffs argue that the trial court erred in awarding them interest on the principal amount of the judgment only from the date of the rendition of the judgment rather than from the date of judicial demand. According to the plaintiffs, the trial court made the award of interest only from the date of judgment based upon their rule to tax costs and assess attorney fees, but failed to recognize that the motion for judgment on the offer of judgment requested legal interest from the date of judicial demand. The plaintiffs assert that the trial court was required to award legal interest from the date of judicial demand on the principal amount of the judgment. This argument has merit.

Discussion

In this case, the trial court found that La. C.C.P. art. 970 is a penalty statute, to be strictly construed, and the plaintiffs were bound by the prayer in their motion. We observe that the penalty provision in La. C.C.P. art. 970 is triggered when an offer of judgment is refused, the matter goes to trial, and the final judgment obtained by the plaintiff-offeree is at least 25 percent less than the amount of the offer of judgment made by the defendant-offer- or, or if the final judgment obtained against the defendant-offeree is at least 25 percent greater than the amount of the offer of judgment made by the plaintiff-offeror. In such a ease, the offeree must pay the offeror’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court. La. C.C.P. art. 970 is punitive and its function is to compensate the rejected offeror who was forced to incur greater trial litigation costs which could have been avoided if the offer-ee had not acted unreasonably in rejecting the offer. Edwards v. Daugherty, supra; Held v. Aubert, supra. This is not the scenario in this case; the penalty provision was not triggered.

We find a distinction between the date upon which interest is due on the principal demand and the date upon which interest is due on penalties and attorney fees. Attorney fees and penalties are never automatically assessed against the defeated party, but rather are awarded only when the statutory requirements for such are met. Because awards of penalties and attorney fees are not automatic, but rather rest with the discretion of a factfinder, they become due, if at all, only on the date of their award; thus, such awards may not earn interest until after that date. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382; Sher v. Lafayette Insurance Company, 2007-2441, 2007-2443 (La.4/8/08), 988 So.2d 186, rehearing in part, (La.7/7/08), 988 So.2d 186.

Regarding interest on the principal demand, we note that La. C.C.P. art. 1921 provides that legal interest which is not prayed for or provided by law cannot be awarded on appeal. A judgment may and should include an award of legal interest on the principal amount of the judgment where legal interest is authorized by code article or statute even though it is not prayed for. La. C.C.P. art. 862; Mini Togs Products, Inc. v. Wallace, 513 So.2d 867 (La.App. 2d Cir.1987), writs denied, 515 So.2d 447, 451 (La.1987); Rollison v. Rollison, 541 So.2d 375 (La.App. 2d Cir.1989). Legal interest is due on all sums which are the object of a judicial demand. La. R.S. 9:3500; Mini Togs Products, Inc. v. Wallace, supra; Rollison v. Rollison, supra. A party’s recovery of legal interest is not limited by his prayer for relief. Fabiano v. Bryan, 438 So.2d 719 (La.App. 2d Cir.1983); Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978).

The plaintiffs originally requested interest on their claims from the date of judicial demand. In a later pleading, the rule to tax costs and attorney fees, they properly requested interest on costs and attorney fees from the date of judgment. The plaintiffs are entitled to interest on the principal demand from the date of judicial demand. They would have been entitled to interest from this date even if they had not prayed for it in their pleadings. Therefore, we find that the trial court erred in awarding interest only from the date of judgment. We reverse that portion of the trial court judgment and order that interest is due to the plaintiff on the principal amount of the judgment, $125,000, from the date of judicial demand, May 10, 2005.

EXPERT WITNESS FEES AND COSTS

The plaintiffs maintain that the trial court erred in denying their claims for expert witness fees and costs related to depositions under the New Home Warranty Act and La. C.C.P.. art. 970. The trial court denied the expert witness fees and deposition costs because there was no trial in this matter. The plaintiffs argue that they would have been entitled to these items if they had been successful at trial. Therefore, because they have a judgment against Neff, they claim they are still entitled to recover for these items. In a related argument, the plaintiffs assert that they are entitled to interest on attorney fees and costs related to expert fees and depositions from the date of award of those fees and costs. These arguments are without merit.

Discussion

La. R.S. 13:4533 provides that the costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs. Expert witness fees for testifying at trial and for time spent preparing for that testimony are recoverable. The costs of depositions “used at trial” are recoverable. However, to be considered “used at trial” for purposes of La. R.S. 13:4533, a deposition must be introduced and accepted into evidence. Thus, the costs of depositions that are not used at trial, including the fee of the deponent giving the deposition and the court reporter fees, are not taxable as costs. Succession of Franz, 242 La. 875, 139 So.2d 216 (1962); Morris & Dickson Co., Inc. v. Jones Brothers Co., Inc., 29,379 (La.App.2d Cir.4/11/97), 691 So.2d 882, writ denied, 1997-1259 (La.9/5/97), 700 So.2d 509; Watters v. Department of Social Services, 2008-0977 (La.App. 4th Cir.6/17/09), 15 So.3d 1128, writs denied, 2009-1651, 2009-1638 (La.10/30/09), 21 So.3d 291, 293; Russell v. Snelling Personnel, 2001-2134 (La.App. 1st Cir.10/9/02), 835 So.2d 672.

As discussed above, the judgment entered on the offer of judgment in this case did not amount to a finding of liability on the part of Neff sufficient to trigger the provisions of the New Home Warranty Act. Further, there was no trial in this matter. Therefore, the plaintiffs were not entitled to recover for expert witness fees and costs related to depositions which were not introduced into evidence. The trial court did not err in refusing to award these fees and costs. We also find that, because they were not entitled to them, the trial court did not err in refusing to award interest on attorney fees and on costs related to expert fees and depositions.

PAROL EVIDENCE

The plaintiffs urge that the trial court erred in allowing testimony about the colloquy between the attorneys regarding the written irrevocable offer of judgment. At the hearing, the plaintiffs objected to testimony regarding conversations between their attorney and the attorney for Neff on the grounds that the language in the offer of judgment was clear and unambiguous and therefore, parol evidence was not admissible. This argument is without merit.

Discussion

The plaintiffs objected at the hearing to questions posed to the attorney for the plaintiffs regarding discussions with the attorney for Neff concerning the offer of judgment and what rights the plaintiffs had to recover more than the $125,000 offered. The trial court stated that it would allow the testimony because it was germane on the issue of whether there were discussions about additional costs.

The plaintiffs cite La. C.C. art. 1848 in support of their argument that the trial court erred in allowing testimony about the understanding of the parties concerning the offer of judgment. The article provides:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

Parol or extrinsic evidence is generally inadmissible to vary the terms of a written contract unless the written expression of the common intention of the parties is ambiguous. A contract is considered ambiguous on the issue of intent when either it lacks a provision on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. Whether a contract is ambiguous is a question of law. Miller v. Miller, 44,163 (La.App.2d Cir.1/14/09), 1 So.3d 815.

We find that the trial court in this matter did not err in allowing the testimony. We also note that, even if the testimony was not admissible, the plaintiffs were not prejudiced by it. Our decision in this matter is not based upon that testimony. Rather, our decision rests upon La. C.C. art. 970 and the jurisprudence construing it.

EXPERT TESTIMONY

The plaintiffs argue that the trial court erred in failing to admit the testimony and report of their expert, Ricky Soot-er. Mr. Sooter was offered as an expert in the nature of New Home Warranty Act litigation and construction litigation to establish how much of the lawyer’s time was attributable to the case against Neff. This argument is without merit.

Discussion

The parties stipulated as to the reasonableness of the attorney fees claimed and the amount of time spent by the plaintiffs’ attorney on the ease. Therefore, the trial court found there was no need to have Mr. Sooter testify. This finding was correct. Also, as noted above, the plaintiffs are not entitled to attorney fees in this case. Therefore, any arguments the plaintiffs have regarding the failure to allow Mr. Sooter to testify as to attorney fees are moot.

CONCLUSION

For the reasons stated above, we affirm those portions of the trial court judgment denying the plaintiffs’ claims for attorney fees, expert witness fees and costs, and interest on attorney fees, expert witness fees, and deposition costs, and allowing evidence concerning the agreement between the parties. We reverse that portion of the trial court judgment awarding the plaintiffs judicial interest only from the date of judgment. We order that Neff is to pay judicial interest on the principal judgment, $125,000, from the date of judicial demand. Costs in this court are assessed one-half to the plaintiffs, Nicholas deBerardinis and David deBerardinis, and one-half to the defendant, Neff Construction, Inc.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, LOLLEY, MOORE and HARRISON (Pro Tempore), JJ.

| Rehearing denied.

      . Mrs. Hendrick passed away in December 2008. Her sons, Nicholas and David deBer-ardinis, were substituted in her place as plaintiffs.

      . In Crawford v. United Services Automobile Association, supra, the court considered parol evidence concerning the intent of the parties. However, there was no objection that the evidence was improperly admitted. We are aware of Abushanab v. St. Charles Gaming Co., Inc., 2012-155 (La.App. 3d Cir. 11/7/12), 103 So.3d 1197, which held that ambiguities in an offer of judgment are to be construed against the offeror and that extrinsic evidence is not admissible. The case has not yet been released for publication in the permanent law reports. We do not find the reasoning of Abushanab to be persuasive under the facts presented here.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Carlos BERROA-REYES.
    No. 12-KA-581.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Myles D. Ranier, Jeffrey G. Lagarde, Assistant District Attorneys, Gretna, LA, for Plain-tiffiAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

On April 25, 2011, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Carlos Berroa-Reyes, and co-perpetrator, Jose Morales, with one count of armed robbery while armed with a shotgun in violation of LSA-R.S. 14:64 and 14:63.3. Defendant pled not guilty at arraignment. On June 30, 2011, defendant filed various pre-trial motions including motions to suppress evidence and statements. On August 31, 2011, the trial court heard and denied defendant s motions.

The matter was tried before a 12-person jury on November 7-9, 2011, and upon conclusion, defendant was found guilty as charged. Thereafter, the trial court sentenced defendant to 25 years at hard labor, to be served without benefit of probation, parole, or suspension of sentence. Defendant timely appealed. For the following reasons, we affirm.

FACTS

The victim, Rafael Abreu-Valerio, testified that he and the defendant “more or less” friends, having known each other for seven months prior to the robbery. He further testified that on March 9, 2011, he was living at 1433 Utah Beach, in Bridge City, when he decided to play a practical joke on defendant and co-perpetrator, Jose Morales. Thus, the victim went over to the apartment defendant and Morales were seen visiting and pretended to be the police, which prompted the men to discard their drugs down the toilet. Defendant and Morales became upset, threatened to injure the victim, and demanded money for the drugs that had been destroyed. The victim paid the men and went back to his apartment, where he started drinking.

Angered by the events that had just transpired, the victim slashed the tires on a vehicle occupied by defendant and Morales. The men exited their vehicle, each carrying a gun and pointing it at him. The victim lifted his hands in the air, dropped the knife he had used to slash their tires and pleaded with the men not to shoot him. The victim also gave the men $120.00 to pay for the damaged tire. The victim testified that when he tried to go back to his apartment, defendant put down the gun, picked up the knife, and followed him to his apartment with Morales close behind and still armed with a shotgun. The men then followed the victim into his apartment, where they locked the door, “turned up the music loud,” and told the victim to get them more money. The victim told them that he did not have any more money, so Morales proceeded to punch the victim in the face and then hit him with the shotgun. Once Morales stopped punching the victim, the defendant then took the victim’s cellular phone and some money out of the victim’s pockets. Unsatisfied with the amount of money recovered, the men continued to punch the Uvictim while demanding more money. The victim further testified that the defendant came towards him with the knife as if he was going to stab him, but Morales intervened and was able to stop the defendant. After the men left his apartment, the victim used a neighbor’s phone to call his girlfriend, who then reported the incident to the police due to the victim’s inability to speak English.

The victim’s girlfriend, Liseyda Montoya, testified that she and the victim were living in an apartment at 1438 Utah Beach Drive at the time of the incident. Montoya testified that she is acquainted with the defendant and Morales (a.k.a. Larry). Montoya further testified that on March 10, 2011, she received a call from the victim to advise her of the incident involving the defendant and Morales. Because the victim does not speak English, Montoya called the police to report the incident. When Montoya arrived home from work, she observed that the victim had a black eye and had sustained injuries to his mouth and head. Montoya accompanied the victim to seek medical treatment the following day.

Co-perpetrator, Jose Morales, testified that he pled guilty to the armed robbery of Rafael Abreu-Valerio with a firearm. Morales confirmed that the victim had “played a prank” on him and the defendant that resulted in the disposal of his marijuana. Morales testified that he confronted the victim, who paid him fifty dollars for the marijuana that was destroyed. Later that evening, Morales testified that he and the defendant were in the defendant’s car when they caught the victim slashing one of their tires.

Morales further testified that he had a shotgun in the trunk of the car that was later recovered by the police at his home, but maintained that defendant did not know about the shotgun. Morales also stated that the shotgun remained in the defendant’s car the entire time and was never brandished in the parking lot or brought into the victim’s apartment.

Morales explained that the victim offered the defendant 20 or 30 dollars to pay for the tire, but that the defendant told him it was not enough money to pay for a Cadillac tire. Morales further testified that he followed the victim and the defendant upstairs, where he observed the victim and defendant “having a little fight,” which he attempted to break up. According to Morales, the victim had a knife in his pocket, so Morales took the knife and “threw it out the door.” At that time, the victim and defendant started fighting again, so Morales pushed the victim into the kitchen and left with the defendant.

Morales testified that they did not rob the victim, but that he decided to plead guilty to armed robbery because he was in possession of the victim’s cellular phone. Morales noted that the victim’s phone had fallen to the ground during the altercation with the defendant, and that he picked it up and put it in his car because he believed it was the defendant’s phone.

Morales’ trial testimony was in direct contradiction to a statement provided by Morales after the incident. Thus, Morales admitted that he had previously lied to the police when he was interviewed and told them that it was the defendant who had pulled the shotgun on the victim, and that he had taken the shotgun away from the defendant because he did not want to see the victim get shot. Morales also admitted that he lied to the police when he told them that the defendant had taken the victim’s knife and threatened to use it on the victim. Morales explained that he had lied to the police because at the time of his arrest he “wanted [the defendant] to look like the bad guy.” Morales further stated that he had originally told the police that the defendant and the victim had been arguing about money, but that his | statements to the police were falsehoods intended “to pin everything down on him [the defendant].”

Deputy Jesus Falcon, of the Jefferson Parish Sheriffs Office, testified that he arrested the defendant and assisted in the taking of defendant’s statement. Deputy Falcon testified that he advised defendant of his rights in Spanish from a Rights of Arrestee form written in Spanish.

In his statement, defendant told the officers that the victim had slashed the tires to his friend’s car so they started arguing about how the victim was going to pay for the damage. Defendant denied ever seeing a shotgun that night, but admitted that he has used a shotgun before for hunting purposes. The defendant also told the police that because they were neighbors, he went with the victim to his apartment where the victim attempted to pay him $50.00 for the tire, which defendant refused because it would not cover the cost. Defendant stated that the victim came after him with a knife and they engaged in a physical altercation. According to defendant, Morales attempted to break apart the fight. Defendant denied that he or Morales brandished a gun during the dispute with the victim.

Detective Randy Thibodeaux, also of the Jefferson Parish Sheriff’s Office, testified that he investigated the armed robbery that took place at the victim’s apartment. When he arrived at the scene, he met with the victim, whom he observed to have sustained facial trauma. Upon entering the apartment, Detective Thibodeaux also observed blood behind the front door, in the kitchen, and in the living room, that Thibo-deaux believed to be consistent with the sequence of events described by the victim. Detective Thibodeaux testified that the victim identified photographs of Morales and the defendant as his assailants. Based upon the victim’s identification of the two suspects and statement provided to Thibodeaux, arrest warrants were obtained.

Jefferson Parish Sheriffs Office Detective David Kachtik testified that he prepared a search warrant for a black Cadillac believed to have been involved in the incident. Upon execution of the warrant, Detective Kachtik recovered a Samsung cellular phone, a Samsung cellular phone battery, and a box of shotgun shells, among other items. Using the phone number the victim had provided, Detective Kachtik was able to determine that the cellular phone found in the Cadillac belonged to the .victim. Detective Kachtik further testified that he executed a search warrant of the clothing worn by the defendant at the time of his arrest. Pursuant to that search, Detective Kachtik recovered $441.48. Detective Kachtik noted that during his brief interaction with the defendant, he asked him whether he had a shotgun, to which he responded “no.” However, when confronted with a photograph that had been obtained of the defendant holding a shotgun, the defendant said it was for hunting.

Next, Detective Todd Rivere testified that on March 10, 2011, he participated in the execution of a search warrant at Morales’ residence in Bridge City. Several photographs depicting the evidence seized during the execution of the warrant were identified and admitted into evidence. Among the evidence seized from Morales’ home was a shotgun, marijuana, currency ($55.00), ammunition of various calibers, and a spent rifle cartridge.

The State rested and the defense called Cito Mercedes, the defendant’s uncle, to the stand. Mercedes testified that on the day of the incident, he was outside of his apartment when he heard Morales complaining to the victim “that he needed to pay him fifty dollars.” According to Mercedes, the -victim asked the defendant to convince Morales not to “charge [him] for the fifty dollars,” to which the defendant responded that he “was not going to get involved with that.” The victim then told the defendant that he did not “want to be his friend anymore.” Mercedes testified that after the defendant left, the victim told him he could “go after him [the defendant] and just follow him at point with a machete, to go on top of him with a machete, or, if not, cause him a big deal, a big problem that night, so he could really get mad, and they could go out at each other.”

Lastly, the defendant testified that in the hours leading up to the incident, he was in an apartment with Morales, who was preparing to smoke marijuana when someone kicked the front door and yelled “police.” Morales flushed the marijuana down the toilet, and the defendant exited the apartment through a window. Noticing no police cars, defendant went back to the apartment where he heard Morales and the victim, who appeared intoxicated, arguing about the incident. The defendant testified that Morales told the victim that he would have to pay him $50.00 or “they were going to have to fight, fight out, fight it, or something like that.” The defendant further testified that he was friends with both the victim and Morales and did not want to get in the middle of their dispute.

Later that evening, while sitting in his car with Morales listening to music, the defendant testified that they caught the victim slashing one of his tires. When he confronted the victim about the damage he had caused, the victim offered him $30.00 or the loan of his vehicle. Defendant testified that they continued to argue and once in front of the victim’s apartment, he told the victim that if he did not pay for his tire he was going to call the police. According to defendant, the victim “got very mad and threw a punch” at him. The altercation escalated into the victim’s apartment where the defendant gave the victim “a couple of punches to his face.” Morales was able to break apart the fight after which they left the victim’s apartment.

Defendant denied robbing the victim, possessing a firearm, or threatening the victim with a knife that night. Additionally, on cross-examination, defendant testified that he had never seen Morales with a shotgun. Defendant stated that he never saw the shotgun that Morales confirmed was in the trunk of defendant’s vehicle. Lastly, defendant admitted that when he was arrested, he was in possession of $450.00.

ASSIGNMENTS OF ERROR

Defendant appeals his conviction, arguing that the trial court erroneously denied his motion to suppress evidence and allowed the State to present inadmissible other crimes evidence at trial.

DISCUSSION

In his first assignment of error, defendant argues that the State failed to prove a knowing and voluntary waiver, therefore, the trial judge erred in denying his motion to suppress statement. Specifically, defendant contends that the waiver falls short of the goal of reasonably conveying defendant’s Miranda rights. Defendant asserts that he was questioned by Detective Falcon who although claiming to be fluent in Spanish, struggled with translating the language contained in the waiver of rights form. Thus, defendant maintains that Detective Falcon’s lack of fluency casts doubt on the validity of the waiver obtained in this case.

In response, the State argues that defendant is procedurally barred from raising, for the first time on appeal, the argument that defendant’s Miranda rights were not effectively communicated in Spanish by Detective Falcon. Alternatively, the State argues that it has met its burden of proving a knowing and voluntary waiver based on the totality of the circumstances in this case.

Motion to Suppress Hearing

At the motion to suppress hearing, Detective Jesus Falcon testified that he assisted in the taking of the defendant’s statement on March 10, 2011. Detective Falcon testified that because the defendant did not speak English, he assisted Detective David Deroche in translating the interview. Detective Falcon testified that he advised defendant of his rights in Spanish from a Spanish Rights of Arrestee form.

Detective Falcon was then asked to read the Rights of Arrestee form into the record, in Spanish, while the court’s interpreter, Emilio Rubi, translated Detective Falcon’s reading into English.

As translated into English by the Interpreter, Detective Falcon testified that the following rights were read to the defendant prior to conducting the interview:

Before asking you the following questions, you should understand your rights. You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to speak to an attorney, to obtain counsel before we ask any question of you and have you with us while we are asking these questions. If you cannot hire an attorney, one will be assigned, one shall be appointed for you before questions, if you so wish. If you desire to answer the questions at this moment, without an attorney being present, you will have the right to not respond at any moment until you are able to speak to an attorney.

The defendant signed under the declaration that he had been read his rights by Detective Falcon. The last portion of the form entitled “Waiver of Rights” was then read by Falcon and translated by the Interpreter:

11 Waiver 0f Rights. I have understood what my rights are. I am willing to make questions of the waiver and of my answers. I do not wish to have an attorney at this moment. I understand and know what I am doing. No promises or threats have been made against me. No one has pressured me or coerced me against myself in any way.

The defendant also signed next to the Waiver of Rights. When asked by the trial court, through the use of the Interpreter, whether the defendant had understood everything Detective Falcon had just read in Spanish, the defendant answered in the affirmative.

In addition to signing the form twice, acknowledging that he understood his rights and elected to waive them, Detective Falcon testified that the defendant also initialed next to each of the rights he was read. Detective Falcon also testified that after inquiring into the defendant’s level of education, he read the Waiver of Rights form to the defendant “word of word” while the defendant read along. He also explained the waiver and his rights in layman’s terms. According to Falcon, the defendant indicated that he understood his rights and wished to waive them.

On cross-examination, Detective Falcon testified that prior to reading the defendant his rights, he also provided a copy of the Rights of Arrestee form to the defendant to read since the defendant had indicated that he was able to read. Defense counsel then asked Detective Falcon to read the Waiver of Rights portion of the form in Spanish for a second time because she believed the first translation was unclear. Specifically, the following colloquy took place between defense counsel and Detective Falcon:

Q: Okay. I only picked up on one particular question in this. “I am willing to make questions of my answers”?
A: I’m sorry?
Q: One of the rights or one of the statements beneath the signature is, as it was interpreted, “I am willing to make questions of my answers” or did I miss that?
|12A: I don’t see that, ma’am.
Q: That would be under the rights.
THE STATE: Or the waiver?
Q: Yeah, on the waiver.
A: I don’t see that.
Q: I definitely heard that in the interpretation. That’s why I asked.
THE COURT: Do you want him to reinterpret those rights again?
* * *
THE COURT: What part of the form, Ms. Parent, are you directing the witness? Direct the witness to that section of the form that you have a question.
Q: Waiver of rights at the bottom of the page.
THE COURT: All right. Would you reinterpret and, this time, as he speaks in Spanish — you can stay right there — translate it for us.
(THROUGH THE INTERPRETER):
I know what my rights are. I am willing to make questions of this declaration and of the answers. I do not wish to have an attorney at this moment. I know and I understand what I am doing. No questions or threats have been made, and no one has pressured me or has coerced me of the questions — of the matters that have been used against me.
Q: So, in there there is a statement that says — and I’m presuming it’s being interpreted — One, I am willing to make a statement and answer questions. It’s interpreted I’m willing to make questions. Is that right?
INTERPRETER: I did not say that to him.

At the conclusion of the hearing, when asked by the trial court whether the defense had any argument it wished to present to the court prior to ruling, defense counsel presented no argument concerning the validity of the waiver based on Detective Falcon’s alleged inability to effectively communicate defendant’s rights.

The trial court denied defendant’s motions to suppress statements, evidence and identification, and noted defense counsel’s general objection. In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing, but may also consider the evidence presented at trial. State v. Huntley, 08-125, p. 6 (La.App. 5 Cir. 5/27/08), 986 So.2d 792, 796 (citing State v. Brumfield, 96-2667, p. 43 (La.10/20/98), 737 So.2d 660, 683, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999)).

At trial, Detective Falcon testified that he was born in the United States but that Spanish was his first language. Again, Detective Falcon testified that he advised defendant of his rights in Spanish from a Rights of Arrestee form written in Spanish. Detective Falcon then translated the form for the jury as follows:

A: Before answering — before we ask you any questions, you have the right to remain silent.
Q: Okay. And then the next one, if you could just translate it into English?
A: Read it in Spanish, sir?
Q: No. Translate it to English.
A: Anything you say can be used against you in court.
Q: Okay. And the next one?
A: You have the right to speak to an attorney before questioning and have him with you during questioning.
Q: Okay. This line?
A: If you cannot obtain an attorney, one will be provided to you if you wish.
Q: And the last one?
A: If you wish to answer any questions at this time without an attorney present, you still have the right to — you can answer if you wish and stop at anytime, also, if you wish, until you can get with your attorney.
Q: All right. And here it says — can you translate that line?
A: I have read my declaration of my rights.
Q: Okay. And he signed that there?
A: Yes, sir.

Detective Falcon also indicated that the defendant signed the form a second time waiving the rights that he had previously been advised. Additionally, the transcribed audio statement form indicates that before taking defendant’s official statement, Detective Falcon read defendant his rights for a second time. A recording of defendant’s statement taken in Spanish was then played for the jury as they followed along from the transcription. The defense did not lodge an objection as to the admissibility of the statement.

For the first time on appeal, defendant now argues that the State failed to prove a knowing and intelligent waiver because the waiver as translated in court demonstrates Detective Falcon’s inability to effectively communicate the Miranda rights to defendant in Spanish. Specifically, defendant contends that the waiver was deficient as translated because it states “I am willing to make questions of this declaration and of the answers.” Defendant claims that this advisory offers compelling evidence that the remainder of the waiver is likewise constitutionally deficient.

Although the trial court conducted a suppression hearing before trial, defense counsel failed to object, or argue that the State failed to carry its burden of proving a knowing waiver. Accordingly, the trial judge never ruled on the issue of whether a knowing and intelligent waiver was obtained in this case due to Detective Falcon’s alleged lack of Spanish fluency. Further, defendant’s written motion to suppress does not assert the grounds for suppression now argued on appeal.

Articulating a new basis for the motion to suppress for the first time on appeal is prohibited under LSA-C.Cr.P. art. 841, since the trial court would not be afforded an opportunity to consider the merits of the particular claim. State v. Harris, 414 So.2d 325 (La.1982). Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Montejo, 06-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967, cert. denied, Montejo v. Louisiana, — U.S. -, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010); See: LSA-C.Cr.P. art. 841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”); State v. Simmons, 422 So.2d 138 (La.1982); State v. Harris, 414 So.2d 325 (La.1982); State v. Davis, 357 So.2d 1125 (La.1978); See also: State v. Carter, 10-973, p. 7-8 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, writ denied, 2011-2060 (La.2/10/12), 80 So.3d 469 (holding defendant waived the argument that evidence should be suppressed because the search exceeded the scope of the search warrant when the defense counsel never asked the trial judge to rule on the “constitutionally overbroad” issue asserted for the first time on appeal); State v. Brown, 434 So.2d 399 (La.1983) (rejecting defendant’s alternative argument regarding the denial of his motion to suppress because he had not raised the issue at trial); State v. Johnson, 07-1040, p. 8 (La.App. 4 Cir. 9/10/08), 993 So.2d 326, 330-31, writ denied, 2008-2649 (La.6/5/09), 9 So.3d 868 (“failure to raise a ground for suppressing an item of evidence in a properly filed motion to suppress waives such a basis for exclusion on appeal”); State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162 (defendant is limited on appeal to the grounds he articulated at trial and a new basis for a claim, even if it would be meritorious, cannot be raised for the first time on appeal).

Accordingly, we find that defendant has waived the argument that his statement should be suppressed because his waiver was invalid when Detective Falcon failed to adequately advise him of his Miranda rights in Spanish. Therefore, this assignment of error will not be addressed on appeal.

In his second assignment of error, defendant argues that it was error for the trial court to invite the State to present inadmissible evidence of other crimes. Specifically, defendant contends that the trial court erred in finding that defense witness, Cito Mercedes, “opened the door” for the introduction of other crimes evidence; namely, the introduction of defendant’s pending aggravated battery charge in Orleans Parish and an incident involving a battery committed with a rifle in Bridge City on January 20, 2011. Defendant further maintains that the objectionable testimony was intentionally elicited by the State and thus, attributable to the State. Accordingly, defendant maintains that a mistrial was an appropriate remedy. And although defendant concedes that defense counsel failed to move for a mistrial, defendant submits that the failure to object should be “excused given the trial court’s role in inviting the improper impeachment on cross.”

At trial, the defense called Cito Mercedes, defendant’s uncle, in its case-in-chief. On cross-examination, Mercedes was asked: “[y]ou love your nephew?” to which Mercedes responded “[y]es.” The State then followed-up Mercedes’ response with “[y]ou love him no matter what, right?” to which Mercedes responded “[n]o. If he would do bad things, no. I came here because he’s a good nephew, he’s hard working.” (Emphasis added).

A bench conference was held at which time the State argued that Mercedes’ testimony opened the door to the introduction of other crimes evidence. Thus, the State requested the court’s permission to question Mercedes about two incidents involving the defendant, namely defendant’s pending aggravated battery charge in Orleans Parish and an incident involving a battery committed with a rifle in Bridge City on January 20, 2011. The trial court agreed with the State, noting that through his response, Mercedes “opened the door. He’s basically said, from a character standpoint, he’s a good boy.” It appears that the defense attorney also agreed with the State and the trial court, stating:

DEFENSE: Well, he can ask him if he knows.
* * *
DEFENSE: I do understand that, because he says he’s a good boy that he can ask him do you know. I understand about that. But the remark is prejudicial in the fact that this child has not been arrested for that. I was going to bring it out on direct when I talked to Carlos.
THE COURT: You’re going to cover it anyway. So you’re going to call him?
DEFENSE: Okay. Yes.

With the agreement of the court and defense counsel, the State proceeded to question Mercedes regarding his knowledge of an aggravated battery incident involving defendant at the House of Blues in New Orleans. Mercedes testified that he was unaware of the aggravated battery incident. The State then asked Mercedes whether he knew a man by the name of Santos Cardenas. Defense counsel objected to this line of questioning on the grounds that the State was attempting to introduce evidence of a crime that was not a conviction and because it was “just prejudicial.” A bench conference was held where the State explained that it was not questioning Mercedes any further about the details surrounding the aggravated battery crime of which the witness had no knowledge, but rather, was inquiring into his knowledge concerning a second battery incident involving the hitting of a man with a rifle in Bridge City. Defense counsel responded “[o]h, you didn’t tell me about that either.” Without objection, the State then questioned Mercedes about the second offense. Defense counsel then concluded re-direct examination by asking Mercedes whether he knew defendant to be a violent person, to which Mercedes responded “[n]o, I don’t know him as a violent person, because I been knowing him since he was little.”

Procedural Issue

For several reasons, we find that defendant has failed to preserve this issue for appeal.

First, the defendant failed to properly preserve this issue for appeal, when defense counsel failed to lodge a proper objection. In order to 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. LSA-C.Cr.P. art. 841; State v. Taylor, 04-200, p. 9 (La.App. 5 Cir. 10/26/04), 888 So.2d 272, 279, writ denied, 04-3162 (La.4/1/05), 897 So.2d 601. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem, and to prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. LSA-C.Cr.P. art. 841; State v. Rochon, 98-717, p. 4 (La.App. 5 Cir. 3/10/99), 733 So.2d 624, 627. A defendant is precluded from raising an error related to the State’s elicitation of other crimes evidence on appeal when the defendant failed to lodge a contemporaneous objection on this ground during trial as required by LSA-C.Cr.P. art. 841. State v. Noil, 01-521, p. 25 (La.App. 5 Cir. 12/26/01), 807 So.2d 295, 313, writ denied, 02-0276 (La.10/25/02), 827 So.2d 1177.

As to the first offense, the aggravated battery committed in Orleans Parish, we find that defense counsel failed to make a timely objection, and even conceded that because Mercedes said the defendant was “a good boy,” the State could ask Mercedes “if he knows” about the battery, thereby acquiescing to the State’s line of questioning. And although defense counsel objected when the State began questioning Mercedes about the second offense, the objection was not concerning the first offense, and had come after the question and response pertaining to the first offense had been heard by the jury. An objection made after the evidence is before the jury is too late. State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 227; State v. Bretz, 394 So.2d 245, 251 (La.1981), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981); State v. Jones, 99-1185, p. 20 (La.App. 5 Cir. 9/22/00), 769 So.2d 708, 719. Moreover, the record indicates that the trial court never ruled on defendant’s late objection that the evidence was “just prejudicial.”

Additionally, as to the second offense, the defendant waived his right to assert that the introduction of the second offense was error when defense counsel failed to lodge a contemporaneous objection to its introduction. Specifically, when the State informed defense counsel of its intent to question Mercedes about the alleged battery committed by defendant with a rifle in Bridge City, defense counsel’s only response was “[o]h, you didn’t tell me about that, either”, again acquiescing to the State’s line of questioning. Thus, due to defense counsel’s failure to object to the introduction of these two offenses, we find that these issues are not preserved for consideration.

Second, had we found that defense counsel lodged a proper objection to the introduction of other crimes evidence, any such objection was based on the grounds that the aggravated battery did not result in a conviction and that it was “just prejudicial.” However, for the first time on appeal, defendant now asserts a new basis for objection to the introduction of the other crimes evidence. In particular, on appeal defendant now argues that Mercedes’ testimony did not open the door to the introduction of inadmissible other crimes evidence and that the trial court erred by “unfairly interjecting itself into the proceeding” by inviting the State to construe “good nephew” to mean “good boy” and thus, allowing the presentation of inadmissible other crimes evidence.

Again, a new basis for objection cannot be raised for the first time on appeal. See: LSA-C.Cr.P. art. 841; State v. Necaise, 466 So.2d 660, 667 (La.App. 5 Cir.1985) (where this Court found that a new basis for objection cannot be raised for the first time on appeal); State v. Hill, 636 So.2d 999, 1002 (La.App. 5 Cir.1994), writ denied, 94-3144 (La.9/1/95), 658 So.2d 1259, (citing State v. Henry, 449 So.2d 486 (La.1984), where the court found that counsel’s failure to state the ground of his objection with specificity prevented him from raising the issue on appeal). Thus, because defendant now asserts a new ground for his objection that was never presented to the trial court, we also find that defendant is prevented from raising this issue on appeal.

Third, defendant failed to request a mistrial or admonition to the jury after the State began questioning Mercedes about the prior bad acts. The appropriate remedies for the improper admission of other crimes evidence are found in LSA-C.Cr.P. art. 770. State v. Sterling, 95-673, p. 14 (La.App. 5 Cir. 2/27/96), 670 So.2d 1316, 1324. LSA-C.Cr.P. art. 770 provides that “[u]pon motion of a defendant, a mistrial shall be ordered when a remark, made within the hearing of the jury by ... [the] district attorney ... during the trial ... refers directly ... [to another] crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” LSA-C.Cr.P. art. 770(2) (Emphasis added). The failure of the defense to move for a mistrial on the wrongful admission of other crimes evidence is a waiver of the error. Sterling, 95-673 at 15, 670 So.2d at 1324; Official Revision Comment (b) to LSA-C.Cr.P. art. 770.

Accordingly, in failing to avail himself of the procedural remedies provided under LSA-C.Cr.P. art. 770, we additionally find that defendant waived the alleged error and thus, is procedurally barred from raising this issue on appeal. See Noil, supra; Sterling, supra, noting that although defense counsel lodged an objection to the state’s improper introduction of other crimes evidence, he did not request a mistrial or an admonition to the jury.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975). The following matters require corrective action.

First, we note that the trial judge imposed an indeterminate sentence because he failed to impose the mandatory five-year firearm enhancement provision required by La. R.S. 14:64.3. Louisiana Revised Statute 14:64.3 provides:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

Although the State listed the enhancement in the bill of information and the jury found defendant guilty of committing armed robbery with a firearm, the trial judge did not specify what portion, if any, of defendant’s 25-year sentence included the firearm enhancement penalty under LSA-R.S. 14:64.3.

We therefore find the sentence indeterminate. We vacate that sentence and remand for resentencing. See State v. White, 42,725, pp. 12-13 (La.App. 2 Cir. 10/24/07), 968 So.2d 901, 908-09 (where the defendant was convicted of 2 counts of armed robbery with a firearm, and sentenced to 35 years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrently. On error patent review, the court noted that the trial court did not specify what portion, if any, of the defendant’s 35-year hard labor sentence without benefits was imposed under LSA-R.S. 14:64.3. The court found that the absence of a specification that the defendant’s sentences included a term under LSA-R.S. 14:64.3, rendered the defendant’s sentence indeterminate. Therefore, the court vacated the sentences and remanded for resen-tencing according to law for clarification of whether the defendant’s sentences included any additional punishment under LSA-R.S. 14:64.3.)

Second, the transcript indicates that the trial court provided defendant with an incomplete advisal of the time period for seeking post-conviction relief as required by LSA-C.Cr.P. art. 930.8. Specifically, the trial court advised defendant that he had “two years to seek post-conviction relief.” It is well-settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to LSA-C.Cr.P. art. 930.8, the court may correct said error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Smith, 12-580 (La.App. 5 Cir. 12/27/12), 106 So.3d 1265; State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767, 768, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120; State v. Thomas, 10-220 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, writs denied, 10-2758 (La.4/25/11); 62 So.3d 89 and 10-2752 (La.5/20/11), 6 So.3d 974; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753, (La.2/10/12), 80 So.3d 468; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Thus, by means of this opinion, we correct this error and inform defendant that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

DECREE

Based on the foregoing, we affirm defendant’s conviction, vacate defendant’s sentence as indeterminate, and remand for re-sentencing.

CONVICTION AFFIRMED; SENTENCE VACATED & REMANDED

      . On November 7, 2011, the State amended the bill of information to include defendant’s and co-perpetrator's aliases, and to clarify that defendant was being charged under the armed robbery with a firearm statute pursuant to LSA-R.S. 14:64.3.

      . Morales pled guilty after jury selection.

      . The victim also testified that he was well acquainted with Jose Morales, defendant’s co-perpetrator, having known him for approximately three years.

      . The victim testified that approximately $400.00 was taken from his pocket, and that approximately $3,000.00 was taken from one of his dresser drawers.

      . Morales further testified he has been convicted of various crimes on five separate occasions.

      . The Rights of Arrestee form written in Spanish was admitted into evidence. A recording of defendant’s statement taken in Spanish was played for the jury as they followed along from a transcript translated into English.

      . Detective Kachtik also identified a tire that was located in the trunk of the Cadillac that appeared to be punctured.

      . On cross-examination, Detective Kachtik testified that when he had the conversation about the shotgun with the defendant, an interpreter was not present because the defendant indicated that "he spoke a little English, and ... appeared that he understood everything” that was asked.

      . Mercedes testified that the defendant used to live with him.

      . Griselda Geraldino also testified for the defense. Geraldino testified that she is acquainted with the defendant, and that on the date of the incident she overheard an argument about money. Geraldino further testified that the victim "drank a lot,” and that the defendant "is a good boy.”

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

      . The Rights of Arrestee form written in Spanish was admitted into evidence as State’s Exhibit 32. Notably, the form indicated that defendant had a twelfth grade education.

      . Defendant’s motion to suppress requests that the court suppress defendant's statement on two grounds: (1) the statement was obtained through the use of influence of fear, duress, intimidation, threats, inducements, and promises; and (2) the defendant did not intelligently waive the right to incriminate himself because he was not advised of his Miranda warnings until after he was presented a rights of arrestee form, which was after he made his statements.

      . See State v. Thompson, 12-409 (La.App. 5 Cir. 12/11/12), 106 So.3d 1102, where this Court noted that where defense counsel acquiesces when the court sustains a State's objection to the examination of a witness, that objection is waived.


author: PAUL A. BONIN, Judge.

text:
    Kimberly THIBODEAUX and Todd Thibodeaux Individually and on Behalf of their minor Child, Gabrielle Thibodeaux v. BRAUD & GALLAGHER, L.L.C., C. Arlen Braud II, Michelle O. Gallagher, Lewis, Kullman, Sterbcow & Abramson, and Paul M. Sterbcow.
    No. 2012-CA-0904.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2013.
    See 9 So.3d 120.

      Ralph E. Kraft, F. Douglas Gatz, Jr., Bryan E. Lege, Kraft Gatz LLC, Lafayette, LA, for Plaintiff/Appellant.
    Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

| T After an adverse ruling by a district court but before the appeal from it was decided, Kimberly and Todd Thibodeaux filed suit for legal malpractice against their former attorneys, Braud and Gallagher, LLC, for the lawyers’ alleged negligence in allowing their medical malpractice claim to prescribe. Even though the district court’s ruling was reversed and their medical malpractice lawsuit reinstated, the Thi-bodeauxs, without amending their original lawsuit, pursued their former lawyers for professional negligence.

The district court dismissed their legal malpractice claim, and they have appealed, arguing that they nonetheless sustained damages because their former lawyer failed to make a reasonable or correct argument to defeat their physician’s exception of prescription. Because it is factually uncontested that the medical malpractice lawsuit is not prescribed, after our de novo review of the motion for summary judgment, we find that the Thibodeauxs have failed to establish as an essential element of their claim any actionable negligence on the part of the former attorneys. Accordingly, we affirm the dismissal with prejudice and explain our holding in greater detail below.

I

In this Part we discuss the decisions of the First Circuit and of the Louisiana Supreme Court which conclusively establish that the medical malpractice lawsuit was timely filed.

Mrs. Thibodeaux’s physician performed a caesarian section and a hysterectomy. While she was still hospitalized, Mrs. Thi-bodeaux contacted and engaged these attorneys to represent her because she believed that her physician had negligently lacerated her bladder while performing the hysterectomy. The attorneys timely filed a request for medical review panel as there were about sixteen days remaining before the expiration of the period for Iiberative prescription. The filing of this request suspended the prescriptive period. See La. R.S. 40:1299.41 G.

On June 16, 2005, the parties were notified by the Patient’s Compensation Fund that an attorney chairman had been selected. But the medical review panel did not meet and did not issue an opinion. Because there was no extension, the panel dissolved on June 16, 2006. See La. R.S. 40:1299.47 B(l)(b). No notice of the panel’s expiration was given. The attorneys filed a medical malpractice suit against the physician on October 26, 2006.

The physician objected to the suit arguing that the prescriptive period (ninety days from June 16, 2006 plus the remaining sixteen days) had expired before the lawsuit was filed. The district court sustained the physician’s exception and dismissed the medical malpractice suit with prejudice. Shortly afterwards the Thibo-deauxs discharged their attorneys and engaged replacement counsel who handled the appeal in the medical malpractice case (and at the same time instituted this legal malpractice case).

On appeal in the First Circuit, the matter was assigned to a five-judge panel. See La. Const. art. V, § 8(B) (“[I]n civil matters only, when a judgment of a district court ... is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to the rendition of judgment, and a majority shall concur to render judgment”). In the First Circuit the Thibodeauxs’ replacement counsel argued that the prescriptive period had not expired because the Thibodeauxs’ counsel had not received notification by certified mail that the medical review panel had dissolved, and thus the period of suspension had not yet begun to run when the malpractice lawsuit was filed. In a divided decision the First Circuit agreed. It reversed the judgment and remanded the matter to the district court. Thibodeaux v. Donnell, 07-1845, p. 7 (La.App. 1 Cir. 9/12/08), 994 So.2d 612, 618 (Kuhn, J., dissenting). The First Circuit had concluded that La. R.S. 40:1299.47 B(3) requires that a claimant be given notice before the suspension of prescription can terminate. Id. Judge Kuhn, in his dissent, observed that the Thibodeauxs’ argument on appeal was not the argument advanced by them in the trial court. Id. at 618.

The physician then filed an application for a writ of certiorari in the Supreme Court, which was granted. Thibodeaux v. Donnell, 08-2436 (La.12/19/08), 996 So.2d 1124. The Supreme Court, also in a divided decision, decided that the Thibodeauxs’ malpractice suit was timely. Thibodeaux v. Donnell, 08-2436, p. 8 (La.5/9/09), 9 So.3d 120, 126 (Victory, Traylor and Gui-dry, JJ., dissenting). The physician’s application for rehearing was denied on May 29, 2009; the decision is now final. See La. C.C.P. art. 2167 (“When an application for rehearing has been applied for timely, a judgment of the supreme court becomes final and definitive when the application is denied.”)

Thus, without dispute and as a matter of law, the Thibodeauxs’ malpractice lawsuit was timely filed by the attorneys who are sued in this legal malpractice case.

II

As we have previously held, “[i]n order to prevail on a legal malpractice claim, the plaintiff must establish the following three elements: 1) an attorney-client relationship; 2) that the attorney was negligent in his representation of the client; and 3) that negligence caused the plaintiff loss.” St. Paul Fire and Marine Ins. Co. v. GAB Robins North America, Inc., 08-0331, p. 8 (La.App. 4 Cir. 11/19/08), 999 So.2d 72, 77. The plaintiff bears the burden of proof with respect to each of these elements. Id. But, most importantly for the purposes of this case, failure to prove one of these elements is fatal to the claim. See Palumbo v. Shapiro, 11-0769, p. 13 (La.App. 4 Cir. 12/14/11), 81 So.3d 923, 930-931.

The Thibodeauxs prudently instituted this legal malpractice suit when the trial court ruled that their medical malpractice suit was prescribed. “[O]nce the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney’s negligence caused him some loss ...” Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1110 (La.1982); see also Evans v. Detweiler, 466 So.2d 800, 802 (La.App. 4th Cir.1985). But, because the medical malpractice lawsuit, as it turns out, was timely filed, the Thibodeauxs cannot establish the second essential element of their legal malpractice claim: that their attorneys were negligent in their representation.

Moreover, as we already observed, the burden of proof at the trial of the legal malpractice claim would not be on the defendant attorneys in this case. In order for the attorneys to prevail on their motion for summary judgment, they need only “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966 C(2). The Thibodeauxs necessarily fail to produce any factual support to establish that they would be able to satisfy their evidentiary burden of proof at trial that the attorneys negligently allowed the medical malpractice claim to prescribe; thus there is no genuine issue of material fact, and the summary judgment was correctly granted. Id.

III

The Thibodeauxs have nonetheless argued to us that even though the medical malpractice lawsuit is timely filed there is still actionable negligence on the part of their former attorneys. They describe the negligence as the failure to raise the appropriate defenses to the physician’s exception in the trial court. They characterized the former attorneys’ trial court arguments as improper, inadequate, and unsound under the facts. They inform us that the attorneys opposed the exception only on a contra non valentón basis, arguing that the Thibodeauxs had not discovered the harm. See also Thibodeaux v. Donnell, 07-1845, p. 3, n. 2 (La.App. 1 Cir. 9/12/08), 994 So.2d 612, 615, n. 2. They infer that the ensuing appeal and its expenses were necessitated solely by the failure of the attorneys to present the trial court with the same arguments which their replacement counsel successfully urged in the appellate courts.

We cannot accept the inference that the trial judge would necessarily have accepted the merits of an argument which ultimately prevailed in the Supreme Court, especially in this case where there was considerable difference of opinion among the justices as to the merits of the argument. And thus we cannot accept the Thibodeauxs’ predicate that the ensuing appeal and expenses would not have been occasioned but for their former attorneys’ failure to make a particular argument.

Moreover, as we consider the vagaries inherent in litigation, we cannot suppose that a single ineffective (or even unsound) argument in the trial court can constitute actionable negligence when the party ultimately prevails on the very issue to which the ineffective argument was addressed. Therefore, we conclude that the Thibodeauxs have not raised a genuine issue of material fact by asserting that their former attorneys’ single ineffective trial court argument caused them any compensable damage.

DECREE

We affirm the summary judgment in favor of Braud & Gallagher, LLC, C. Ar-len Braud, and Michelle Gallagher and against Kimberly Thibodeaux and Todd Thibodeaux, individually and on behalf of their minor child, Gabrielle Thibodeaux, dismissing their suit with prejudice. All costs of the appeal are taxed to the appellants. See La. C.C.P. art. 2164.

AFFIRMED

      . Also named as defendants are the members of the firm, C. Arlen Braud II and Michelle Gallagher, who are appellees. Other attorneys, who were referral counsel, were named as defendants, but they are not before us on this appeal.

      . Braud & Gallagher were assisted in the medical malpractice claim by referral counsel.

      . We do not mean to suggest that a lawyer who engages in a course of substandard conduct by actively counseling his client to the client’s detriment can avoid liability for the client's added expenses simply because his former client is able to recover through the employment of other counsel what would otherwise have been lost. Cf. Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972).