author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Rochelle BOUTTE.
    No. 13-KA-559.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Emily Booth, Shannon Swaim, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Mandeville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Pefendant, Rochelle Boutte, appeals her conviction and sentence of La. R.S. 14:64.1. For the following reasons, we affirm.

Procedural History

The Jefferson Parish District Attorney’s Office filed a bill of information charging defendant with first degree robbery in violation of La. R.S. 14:64.1. Defendant pleaded not guilty at arraignment. Defendant filed pre-trial motions, including a motion to suppress statement and a motion for preliminary examination. After a hearing, the trial court found probable cause to hold defendant on the charge and denied defendant’s motion to suppress statement.

Defendant subsequently withdrew her plea of not guilty and entered a plea of guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for a term of 12 years with credit for time served, to be served without benefit of parole, probation, or suspension of sentence. The sentence was ordered to run concurrently with defendant’s sentence in Texas and any other sentence defendant may be serving. The court also recommended that defendant receive any self-help and rehabilitation programs within the Department of Corrections. The court additionally ordered defendant to pay a $45.00 Indigent Defense Board Fee.

|aThe trial court subsequently granted defendant’s pro se motion for appeal. Defendant’s appeal follows.

Facts

As this conviction is the result of a guilty plea, the underlying facts were not fully developed. However, the bill of information alleges that on May 20, 2011, defendant violated La. R.S. 14.64.1 in that she committed first degree robbery of Donna Howard while leading the victim to reasonably believe defendant was armed with a dangerous weapon.

In addition, Detective David Canas of the Jefferson Parish Sheriffs Office testified at the suppression hearing to the following:

On that date, a black female entered the store at 4325 Veterans, Payless Store. She went to the aisle, picked up a shoe box, immediately went to the counter. The manager was working at that time. She made a comment on how fast she picked out what she wanted, and she walked around to the counter.
The black female handed a note that said “You have ten seconds to give me all the money in the drawer. If not, I’m going to start shooting.” The manager then took the money out. The black female then pointed down to a safe. At that time, she opened up the safe, and she was able to give her additional money. The black female then left leaving the note and the shoe box on the counter.
... The box was fingerprinted by a crime scene technician on the scene, and a fingerprint was obtained. That fingerprint later came back to a Rochelle Boutte.
... I learned, number one, Rochelle fit the description and the body height of the suspect. She also had an armed robbery charge or robbery charge. I wasn’t able to put her in a lineup at the time because she had red hair in the Jefferson Parish lineup. But later I was able to get — when she was arrested from Texas, I was able to get a photograph where she did not have red hair and it was easier to put her in a lineup.

^Detective Canas further testified that the victim was unable to identify defendant in a lineup. “The victim said it happened fast. And due to [defendant] having a hat, it was very hard for [the victim] to see her face.”

Detective Canas testified that defendant was subsequently arrested in Texas and extradited to Louisiana. Detective Canas stated:

Ms. Boutte was transported to the Jefferson Parish Sheriffs Correctional Facility. Upon her arrival, I met her there. I advised her of an ongoing investigation. I asked her if she would come back to the Detectiye Bureau and speak with me. She acknowledged that she understood what was going on and she wanted to speak with me.
At that time, I advised her of her rights using a Jefferson Parish Sheriffs Rights of Arrestee Form.

Detective Canas explained that after he advised defendant of her Miranda rights, defendant was very cooperative and gave a taped statement, wherein she admitted that she committed the robbery in order to buy food for her hungry daughter.

Anders Brief

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that she has thoroughly reviewed the trial court record and “can find no non-frivolous issues to raise on appeal and can find no ruling of the trial court that arguably supports the appeal.” Accordingly, appointed counsel requests to withdraw as attorney of record.

| Jn Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds the case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, supra at 241, the Louisiana Supreme Court explained that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court further indicated that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, supra, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, Rif the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point identified by the court, or grant the motion and appoint substitute appellate counsel. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

Here, defendant’s appellate counsel asserts that after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that although a motion to suppress was heard and denied by the court, defendant subsequently pleaded guilty without reserving any pretrial rulings under State v. Crosby, 338 So.2d 584 (La.1976). Counsel further explains that defendant was fully informed of the legal consequences of entering a plea of guilty and that defendant’s guilty plea precludes counsel from raising an excessive sentence claim, acknowledging that defendant was fully apprised of her sentence prior to pleading guilty.

Along with her brief, appellate counsel filed a motion to withdraw as attorney of record, which states that she has made a conscientious and thorough review of the trial court record and could find no non-frivolous issues to raise on appeal and no rulings of the trial court that would arguably support the appeal. Counsel further asserts that she notified defendant of the filing of counsel’s motion to withdraw and advised defendant of her right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing her that an Anders brief was filed and that she could file a pro se supplemental brief. Defendant has filed a pro se brief, assigning two claims as well as requesting an error patent review of the record that will be conducted herein.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of | information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See generally La.C.Cr.P. arts. 464-466. Further, as reflected by the minute entries and commitment, defendant appeared at all crucial stages of the proceedings against her, including arraignment, guilty plea proceedings, and sentencing.

As explained herein, defendant pleaded guilty as charged to first degree robbery. When a defendant pleads guilty, he normally waives all non-jurisdictional defects .in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. In the instant case, defendant filed a motion to suppress statement that was denied after a hearing. However, defendant did not preserve this ruling for review under the holding in State v. Crosby, supra.

Additionally, our review of the record reveals no irregularities in defendant’s guilty plea to first degree robbery. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124; State v. Dixon, 449 So.2d 463, 464 (La.1984).

The record reflects that defendant entered a knowing and voluntary plea of guilty to one count of first degree robbery. Defendant was advised of her right to a trial by jury or judge, her right to confrontation, and her privilege against self-jin-erimination.8 Defendant was advised of these rights by means of the waiver of rights form, where she initialed each right, and the colloquy between defendant and judge. Defendant indicated that she understood that she was waiving these rights and stated that she was not forced, coerced, or threatened into pleading guilty.

Defendant additionally indicated by means of the waiver of rights form and the colloquy with the trial judge that she understood the sentencing ranges for the offense charged, as well as the actual sentence she would receive. Specifically, the trial court advised that defendant faced a sentencing range of three to 40 years imprisonment without benefit of parole, probation, or suspension of sentence. The court further advised defendant it would impose a sentence of 12 years that would not be deferred and would run concurrently with any and all other sentences that she was serving, including her conviction in Texas. Upon accepting defendant’s guilty plea, the trial judge indicated that he was entirely satisfied that defendant was aware of the nature of the crime, that she did in fact commit said crime, and that she understood the consequences of her guilty plea. The judge further indicated that defendant knowingly, intelligently, freely, and voluntarily entered her guilty plea.

Additionally, defendant’s sentence does not appear to present any issues for appeal. A defendant is precluded from raising a claim of excessiveness on appeal when the imposed sentence is the product of a plea agreement. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30. “A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” La.C.Cr.P. art. 881.2. Defendant’s 12-year sentence was imposed pursuant to a plea agreement and falls within the sentencing range of not less than three years and not more than 40 years as set forth in La. R.S. 14:64.1.

|9Based on the foregoing, we find defendant’s guilty plea and sentence do not present any issues for appeal. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

Pro Se Assignments of Error

Sufficiency

In defendant’s pro se brief, defendant appears to assert that there was insufficient evidence to support a conviction of first degree robbery. As addressed above, defendant pleaded guilty as charged to first degree robbery in violation of La. R.S. 14:64.1. A plea of guilty by its nature admits factual guilt and relieves the State of the necessity of proving it by a contested trial. State v. Crosby, supra. Moreover, when pleading guilty, defendant waived all non-jurisdictional defects; therefore, she cannot challenge the sufficiency of the evidence on appeal. State v. Gates, 13-206 (La.App. 5 Cir. 10/9/13), 128 So.3d 417, 2013 WL 5556023; State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 824, writ denied, 08-0927 (La.11/14/08), 996 So.2d 1088.

Accordingly, this assignment of error is not subject to appellate review.

Ineffective Assistance of Counsel

Defendant additionally raises an ineffective assistance of counsel claim, alleging that her trial counsel did not effectively advocate her position that she did not commit first degree robbery, and indicated that defendant would have to retain private counsel if she wished to go to trial.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post conviction relief filed in the trial court, where a full | inevidentiary hearing can be conducted, rather than on direct appeal. State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 983. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001).

Here, the record is insufficient to address defendant’s claims of ineffective assistance of counsel on appeal. Since defendant’s conviction was the result of a guilty plea, it is impossible to determine, based on the limited record on appeal, whether trial counsel effectively represented defendant’s intentions. Defendant’s claims should be addressed through post conviction proceedings where, if deemed appropriate, a full evidentiary hearing can be held and defendant can present evidence to support her allegations.

Eiror Patent Review

Defendant additionally requests an error patent review of the record. However, we routinely review the record for errors patent in accordance with 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). Upon review of the record, we do not find any errors patent requiring corrective action.

Decree

Accordingly, we affirm defendant’s conviction and sentence and we grant appellate counsel’s motion to withdraw as counsel for defendant.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The record reflects that defendant is serving a sentence for a conviction in case no. 131073601010 in the 248th District of Harris County, Texas.

      . The procedure set forth in Benjamin, supra, for compliance with Anders, supra, was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11.

      . The United States Supreme Court most recently reaffirmed its position in Anders, supra, in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Frank LAWLER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 13-CA-589.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Al M. Thompson, Jr., David Gibbons, Attorneys at Law, Thompson Gibbons & Westsholz, New Orleans, Louisiana, for Plaintiff/Appellee.
    Raymond R. Egan, III, W. Paul Anders-son, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gDefendant/Appellant, Government Employees Insurance Company (hereinafter referred to as “GEICO”), appeals the summary judgment in favor of Plaintiff/Appellee, Frank Lawler, regarding the insurance coverage of a replacement recreational vehicle from the 24th Judicial District Court, Division “J”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The following pertinent facts are not disputed by the parties.

On September 30, 2011, Mr. Lawler purchased a 2005 Wildwood Model 27RLSS recreational vehicle (hereinafter referred to as “Wildwood trailer”). GEICO issued policy number 4222-02-36-91 to Mr. Lawler for coverage of the Wildwood trailer, which was effective from August 22, 2011 through February 22, 2012. On October 30, 2011, Mr. Lawler traded the Wildwood trailer and purchased a 2006 Zeppelin Model 192 recreational vehicle (hereinafter referred to as “Zeppelin trailer”). The Zeppelin trailer was not added to the insurance policy. |3In a fire that occurred on November 7, 2011, the Zeppelin trailer was completely destroyed. Mr. Lawler filed an insurance claim with GEICO for the Zeppelin trailer; however, GEICO refused to issue a payment for the vehicle.

Mr. Lawler filed a “Petition for Damages” on November 2, 2012. In his petition, Mr. Lawler alleged that his replacement recreational vehicle covered under his policy with GEICO was totally destroyed by fire on November 7, 2011. He further alleged that he made an immediate demand on GEICO to make payment for the loss under the provisions of the insurance policy. In its “Answer to Petition for Damages and Request for Trial by Jury” filed on January 2, 2013, GEICO countered that it only provided coverage for the vehicle listed in the applicable policy, which was the Wildwood trailer. GEICO contended that because Mr. Lawler’s Zeppelin trailer was not described in the policy and because a premium charge was not shown for its coverage, there was no applicable coverage.

On March 1, 2013, Mr. Lawler filed a “Motion for Summary Judgment.” In the motion, Mr. Lawler sought partial summary judgment on the basis that his Zeppelin trailer was covered as an “Owned auto,” and he filed a claim with GEICO for the loss of his replacement recreational vehicle within the 30-day grace period provided in the policy. On May 10, 2013, GEICO filed an opposition to Mr. Lawler’s motion and a cross-motion for summary judgment. GEICO argued the Zeppelin trailer was never added to the applicable policy; therefore, it was not a covered “Owned auto” under the policy.

The motions for summary judgment were heard on May 17, 2013. The trial court granted Mr. Lawler’s motion on the issue of insurance coverage and denied GEICO’s motion on May 28, 2013. In a joint motion to certify the judgment as final pursuant to La. C.C.P. art.1915 filed on June 12, 2013, the parties requested that the trial court designate the May 28, 2013 judgment as final and appealable |4because there was no just reason for delaying the matter for appeal. The joint motion was granted on the same date as the filing. The instant appeal followed.

ASSIGNMENT OF ERROR

On appeal, GEICO’s sole assignment of error is that the trial court committed a legal error in finding that the applicable policy provided coverage for the property damage of the Zeppelin trailer, an unlisted, non-described recreational vehicle.

LAW AND ANALYSIS

The summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy and inexpensive determination of actions. Louisiana High School Athletics Ass’n, Inc. v. State, 12-1471 (La.1/29/13); 107 So.3d 583, 598, citing La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo, using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Moreno v. Entergy Corp., 12-0097 (La.12/4/12); 105 So.3d 40, 47, citing Greemon v. City of Bossier City, 10-2828 (La.7/1/11); 65 So.3d 1263. Thus, appellate courts must ask the same questions as the trial court as to whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Louisiana High School Athletics Ass’n, Inc., supra, citing Hood v. Cotter, 08-215 (La.12/2/08); 5 So.3d 819.

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, 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)(2). The party seeking summary judgment has the burden of proving there is no genuine issue of material fact. Louisiana High School Athletics Ass’n, Inc., supra. If the movant satisfies the initial burden, the burden shifts to the party opposing summary |-judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. Id.

In the case at bar, GEICO alleges the trial court erred in granting summary judgment in favor of Mr. Lawler because the plain language of the endorsement section of the policy directly and clearly alters the policy as it pertains to any “motor home or travel trailer” provision listed in the policy. GEICO argues that the clear intent of the endorsement is to provide a complete change in the definition of “Owned auto.” GEICO contends that only a strained interpretation of the word “amend” results in a morphing of the definition of “Owned auto,” such that it would comply with Mr. Lawler’s argument that his Zeppelin trailer was covered. GEICO further argues that if there is a conflict between the insurance contract and the endorsement, the endorsement prevails because it is a more specific provision that controls the general contract provisions. Lastly, GEICO argues there is no public policy provision that prohibits it from limiting its coverage to only listed vehicles in the policy.

Mr. Lawler avers the trial court was correct in granting his “Motion for Summary Judgment” because the policy contains multiple and inconsistent definitions of “Owned auto,” and the endorsement relied upon by GEICO adds to the ambiguity of the policy. Mr. Lawler maintains that the physical damage portion of the endorsement gives two definitions of the term “covered auto,” which creates an inherent ambiguity. Mr. Lawler further maintains that his Zeppelin trailer squarely fits into, at least, one of the definitions of a trailer set forth in the policy. Because there is ambiguity regarding coverage of the trailer in the policy, Mr. Lawler asserts that the ambiguity must be construed in favor of coverage for the Zeppelin trailer.

In Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06); 935 So.2d 691, 693-694, reh. denied, (La. 9/1/06), the Louisiana Supreme Court provided the following procedure for interpreting insurance policies:

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. If after apply the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured.
[Internal citations omitted],

If an endorsement is attached to an insurance policy, and the policy and endorsement are parts of the same contract, the endorsement becomes part of the contract; and, the two must be construed together. Gauge v. Hamed, 12-510 (La.App. 5 Cir. 5/30/13); 118 So.3d 36, 41, writ denied, 13-2050 (La.11/15/13); 126 So.3d 472, citing Mattingly v. Sportsline, Inc., 98-230 (La.App. 5 Cir. 10/28/98); 720 So.2d 1227. If there is a conflict between the endorsement and the policy, the endorsement must prevail. Id.

Here, policy number 4222-02-36-91 provides the following, in pertinent part, under “DEFINITIONS” in Section I:

6. “Owned auto” means:
(a) a vehicle described in this policy for which a premium charge is shown for these coverages;
(b) a trailer owned by you;
(c) a private passenger, farm or utility auto which you obtain ownership of during the policy period or for which you enter into a lease for a term of six months or more during the policy period, if
(i) it replaces an owned auto as defined in (a) above, or
[ 7(ii) we insure all private passenger, farm and utility autos owned or leased by you on the date of the acquisition, and you ask us to add it to the policy no more than 30 days later;
(d) a temporary substitute auto.
[Emphasis in original].

The policy later states in Section III for “Physical Damage Coverages” the following pertinent provisions:

8. “Owned auto” means:
(a) any vehicle described in this policy for which a specific premium charge indicates there is coverage;
(b) a private passenger, farm or utility auto or a trailer which you obtain ownership of during the policy period or for which you enter into a lease for a term of six months or more during the policy period if
(i) it replaces an owned auto as described in (a) above, or
(ii) we insure all private passenger, farm, utility autos and trailers owned or leased by you on the date of such acquisition and you request us to add it to the policy within 30 days afterward;
(c) a temporary substitute auto.

9. “Trailer” means a trailer designed for use with a private passenger auto and not used as a home, office, store, display or passenger trailer.

[Emphasis in original].

In the “RECREATIONAL VEHICLE COVERAGE AUTOMOBILE POLICY ENDORSEMENT” attached to the policy, the following pertinent information is provided under “DEFINITIONS” of “SECTION I-VACATION LIABILITY COVERAGE”:

The definitions in Section 1-Liability Coverages of the GEICO automobile insurance policy apply to this endorsement, except for the following definitions: owned auto, non-owned auto, trailer, private passenger auto and temporary substitute auto.
The definitions of owned auto, non-owned auto, and trailer are amended as follows:
Owned auto means:
(a) a motor home or travel trailer described in this policy for which a premium charge is shown for these coverages; and
ls(b) A trailer owned by you.
[Emphasis in original].

Later in the same endorsement, under “SECTION III-PHYSICAL DAMAGE COVERAGES,” there is a provision that states, “The definitions in Section I-Liability Coverage of the GEICO automobile insurance policy apply to this Section. The definitions in Section I-Vacation Liability Coverage of this endorsement apply to this Section.” [Emphasis in original].

After review of the insurance policy and endorsement as a whole, we find that there is a remaining ambiguity within the provisions as to what is considered to be an “Owned auto.” Although the endorsement initially states that the definitions under “SECTION I-LIABILITY COVERAGES” are excluded and a different definition of “Owned auto” is provided, the same endorsement later states that the definitions from “SECTION I-LIABILITY COVERAGES” are applicable to that section. We agree with Mr. Lawler that the endorsement is inherently ambiguous. Ultimately, the endorsement both excludes and includes coverage for a replacement trailer added within 30 days of acquisition. As such, the contractual provisions are to be construed against GEICO, the issuer of the policy, and in favor of Mr. Lawler. See, Hill, supra. Therefore, upon our de novo review, we find that GEICO policy number 4222-02-36-91 does provide coverage for the Zeppelin trailer formerly owned by Mr. Lawler.

DECREE

For the foregoing reasons, we find that summary judgment in favor of Mr. Lawler is appropriate on the issue of insurance coverage. GEICO is assessed the costs of this appeal.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Susan SICARD v. TOURO INFIRMARY.
    No. 13-CA-544.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      John B. Fox, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    William H. Voigt, Attorney at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

|2Defendant, Touro Infirmary (“Touro”), appeals the trial court’s judgment finding it liable to plaintiff, Ms. Susan Sicard, under Louisiana’s Worker’s Compensation law. Touro argues the trial court manifestly erred in finding that Ms. Sicard suffered a work-related injury on April 23, 2012. Ms. Sicard answered the appeal, seeking attorney’s fees for her attorney’s work on this appeal. After examining the evidence, we disagree with Touro. We find the trial court’s decision to be reasonable and therefore affirm its judgment on the merits. However, as we find that Tou-ro reasonably controverted Ms. Sicard’s claim on appeal, we deny Ms. Sicard’s request for additional attorney’s fees.

PROCEDURAL HISTORY

On May 11, 2012, Ms. Sicard filed two disputed claims for Worker’s Compensation benefits against Touro. In one, she alleged she suffered a work-related injury on August 29, 2011. In the other, she alleged she suffered another work-related injury on April 23, 2012. In response, Touro admitted it employed Ms. Sicard; however, it argued that it was not liable to Ms. Sicard because she had not had a compensable “accident” under the terms and provisions of La. R.S. 23:1021(1).

¡■¡The trial court combined these two claims and then, on January 17, 2013, held a trial on the merits. The trial court issued its judgment on March 14, 2013.

In favor of Touro, the trial court found that Ms. Sicard failed to prove that she suffered a work-related injury on August 29, 2011. The trial court also found that Touro had reasonably controverted Ms. Si-card entitlement to benefits and that therefore, no penalties or additional attorney’s fees would be assessed.

In favor of Ms. Sicard, the trial court found that she was injured by an accident, during the course and scope of her employment, on April 23, 2012. The trial court also found that Ms. Sicard had preexisting medical problems before April 23, 2012 which were aggravated by the work-related accident on April 23, 2012.

Having found Ms. Sicard had suffered a work-related accident on April 23, 2012, the trial court issued awards in favor of Ms. Sicard and her attorney. For the time period from April 24, 2012 through September 3, 2012, the trial court ordered Touro to pay Ms. Sicard the maximum compensation rate of $592.00 weekly in temporary total disability benefits. For the time period from September 12, 2012 to the present and continuing, the trial court ordered Touro to pay Ms. Sicard supplemental earnings benefits. The trial court ordered the amount of these benefits to be calculated using a minimum wage earning capacity. Further, the trial court ordered Touro to pay Ms. Sicard all medical expenses, medication expenses, indemnity, and travel expenses for the aggravation of the injuries caused by the accident on April 23, 2012. The trial court also ordered Touro to reimburse Ms. Sicard for medical co-payments that she made for the injuries of April 23, 2012. The trial court ordered that Touro be given a credit for all benefits paid by them in ^accordance with law. Finally, it ordered Touro to pay statutory attorney’s fees to Ms. Sicard’s attorney and assessed against Touro all costs and interest.

Touro petitioned for a suspensive appeal on April 12, 2013. The trial court granted this petition on April 15, 2013. On July 16, 2013, Ms. Sicard answered this appeal and requested that this Court award her a reasonable attorney’s fee in connection with her attorney’s work on this appeal. Ms. Sicard does not appeal the trial court’s finding that she did not suffer a work-related accident on August 29, 2011.

FACTS

At trial, the court heard testimony from: the plaintiff, Ms. Sicard; her director at Touro, Mr. Robert Burger; and her supervisor at Touro, Ms. Bthel Bromlay. The trial court also admitted portions of Ms. Sicard’s Touro personnel file, as well as medical records describing Ms. Sicard’s condition and treatment at various points. The parties stipulated that Ms. Sicard’s average weekly wage on April 23, 2012 was $1,331.50.

Susan Sicard testified that on August 29, 2011 and on April 23, 2012, she was a full-time Touro Infirmary employee working as an ultrasound technician. Describing her job, Ms. Sicard testified that it took her between 45 minutes and two hours to perform an ultrasound study. Ms. Sicard testified that she spent 80% of her time standing performing tasks such as adjusting, pushing, and pulling the ultrasound machine. She testified that she spent the other 20% of her time sitting, crouching down, bending at the waist, and twisting. Ms. Sicard testified that when she used a transducer, a piece of equipment that directs ultrasound waves into the body, she was forced to sit on the patient’s side and lean over the patient. Occasionally, she assisted patients onto gurneys; which involved heavy lifting. | ¿Another part of her job was to pump the gurney up and down; and she did this by pumping the gurney with her foot. Ms. Sicard testified that she was required to do this pumping motion between 20 and 30 times a day.

Condition before the April 12, 2012 Accident

Ms. Sicard testified that she had two surgeries related to her back before her accident on April 23, 2012. The first surgery was due to an injury she sustained while working with a previous employer sometime after Hurricane Katrina in 2006. This 2006 injury occurred while she was pushing an ultrasound machine. She experienced a severe right sciatica pain which continued into her right leg. She was diagnosed with a severe compression of her sciatica nerve. To treat that injury, Ms. Sicard testified that she underwent microdiscectomy surgery on her right side and lower back in the L5-S1 area of her spine. She testified that she felt she made a complete recovery after this surgery.

The second surgery occurred after Ms. Sicard’s incident on August 29, 2011. Ms. Sicard testified that on August 29, 2011, she was attending a conference in Wisconsin to learn how to use new ultrasound equipment Touro had purchased. Touro stipulated that Ms. Sicard’s attendance at this conference was in connection with her job duties at Touro. August 29, 2011 was a Monday; it was the first day of the conference. Ms. Sicard testified that when stepping into the shower that morning, her left leg “gave a little bit” and her “right hip hit the shower tub edge.” She did not fall into the tub. This incident caused her a bruise and tenderness on her right hip and buttock area.

Ms. Sicard testified that she did not report this incident to her employer either at the conference or upon her return to work. She continued to attend all three days of the conference as she had planned. She then returned to New Orleans Rand worked the Thursday and Friday of that week at Touro. Ms. Sicard testified that she did not begin to suffer severe pain until Thursday, September 8, 2011, the week after she attended the conference.

This pain was on her right side in her hip and buttocks. Ms. Sicard testified that this pain was similar to the symptoms she had from her previous injury in 2006. Ms. Sicard testified that her pain became so intense that she sought medical treatment from her primary care physician and then from Dr. Miles.

Dr. Miles gave Ms. Sicard an MRI which revealed that her L5-S1 right disc was severely compressed and herniated. Dr. Miles advised her not to work until she saw her neurosurgeon, Dr. Richard Co-rales. Ms. Sicard saw Dr. Corales the following Monday, September 12, 2011, and he admitted her to East Jefferson General Hospital for pain management. On September 14, 2011, Dr. Corales performed a right microdiscectomy surgery on Ms. Sicard. Medical records show that this surgery was at least somewhat successful in relieving her pain. Following her surgery, Sicard received post-operative therapy at Crane Rehab and was placed on leave pursuant to the Family Medical Leave Act. Ms. Sicard testified that she returned to work around October 29, 2011. Ms. Sicard worked a shortened schedule for approximately two weeks, and then returned to her normal eight-hour shift.

Ms. Sicard testified that in the beginning of 2012, she started to develop the same pain in her right side. Ms. Sicard went back to Dr. Corales in mid-February of 2012. Dr. Corales gave Ms. Sicard lido-caine patches and a steroid pack to help treat her pain. Ms. Sicard saw Dr. Co-rales for this pain again in March of 2012. Dr. Corales referred her to Dr. Crapanza-no for a steroid injection. Ms. Sicard described her pain as “a repetitive type thing where I was doing the same thing over and over again.”

17At some point towards the end of March, Ms. Sicard testified she spoke to her director, Robert Burger, about her physical problems. Ms. Sicard informed Mr. Burger that her repetitive work was causing her pain on both of her sides, but the pain was more severe on the left side starting in February. She asked him if she could reduce her work schedule to three days a week. Mr. Burger denied this accommodation. Ms. Sicard testified that the pains which led her to ask Mr. Burger for a reduction in work hours were not the result of a specific accident; rather, they occurred while Ms. Sicard did her work.

The April 23, 2012 Accident

Ms. Sicard testified that while performing an ultrasound on April 23, 2012, she was standing up and leaning over the patient reaching over the patient on her right side when she felt “a severe, sharp pain down” her right leg. Ms. Sicard testified this pain was like a snap and that then her left hip and buttocks started throbbing and burning in pain.

Ms. Sicard testified that she had scanned two patients that day before her injury. In regards to this accident, Ms. Sicard testified that it occurred suddenly when she was pumping the stretcher up with her left leg. Describing her pain, Ms. Sicard testified, “[i]t was a sudden, severe, sharp pain down my right leg like sciatica pain and in the right hip. And it was severe and burning on the left buttocks and left hip. Just like a burning like something is inflamed. It ... was just so intense.” Ms. Sicard testified that while her previous pain was an “achy aggravation,” this pain was much more intense. Ms. Sicard continued her shift, but the pain did not go away after resting at home. Ms. Sicard testified that her pain was so severe that she could not return to work.

On April 25, 2012, Ms. Sicard reported her April 23, 2012 accident to Patsy Fo-berg who worked in Touro’s Human Resources department via email. In that 1 semail, Ms. Sicard informed Ms. Foberg that on April 23, 2012, she “experienced an episode of severe right leg pain causing my sciatic nerve to flare up” and requested an incident report. Ms. Sicard received and completed her injury report the same day. On April 26, 2012, in another email to Ms. Foberg, Ms. Sicard explained the history of her pain starting from the August 29, 2011 incident.

Ms. Sicard first saw Dr. Crapanzano, a pain management doctor, on May 1, 2012. Dr. Crapanzano gave her a left sacral iliac joint injection. Ms. Sicard’s first visit after her April 23, 2012 accident was to Dr. Crapanzano because she had a previously scheduled appointment with him.

Ms. Sicard also gave a statement on May 1, 2012 to Ms. Tammy Bartlett who was working on behalf of Touro. In that statement, Ms. Sicard described her accident as occurring on April 23, 2012 when she was scanning a patient. She made no specific mention about pumping gurneys. Also in that statement, Ms. Sicard stated that no one witnessed her injury and that she did not report her injury to the director, Robert Burger, but rather went home and later reported it to Ms. Foberg.

Ms. Sicard returned to work at Touro for the first time after her accident on June 18, 2012. Ms. Sicard testified that on her second day back at the job, when pumping up a stretcher with her left leg, the pain came back intensely. Ms. Sicard then decided that she could not continue her work because this pumping task would be required every time she was to perform an ultrasound scan. Ms. Sicard called into work to say that she could not continue.

After this failed attempt to return to work, Ms. Sicard continued her treatment with physical therapy and epidural injections with Dr. Crapanzano. Ms. Sicard also sought the treatment of Dr. Moss. After months of continued | ¡treatment, Dr. Moss issued her restrictions which prevented her from performing her job. Dr. Moss issued Ms. Sicard restrictions against prolonged standing, sitting, squatting, bending or twisting. Dr. Moss also restricted Ms. Sicard from pushing or pulling heavy equipment such as an ultrasound machine, lifting anything heavier that ten to twenty pounds, pumping up of a stretcher with lower extremities, and working more than four hours a day.

Ms. Sicard testified that she received a letter from Touro informing her that it could not accommodate her restrictions and that if she could not return to work that it would consider her to have voluntarily resigned. Ms. Sicard testified that this ended her employment with Touro and that she has not worked since June 29, 2012.

Regarding her current condition, Ms. Sicard testified that she feels continuing pain in her left hip and buttock, in her right hip, in her lower back, and sciatica pain down the left lateral aspect of her leg into her calf area. Ms. Sicard testified that she has numbness in her right calf and right foot. She said her pain continues at a level of 5 out of 10 and stated that the pain increases to a level of 8 when she conducts daily activities. She testified that her last epidural injection treatment by Dr. Crapanzano was on October 4, 2012. In December of 2012, Ms. Sicard saw Dr. Robert Miles again for her continued pain; he suggested another round of physical therapy. Ms. Sicard testified that she is still undergoing physical therapy.

With regard to her future employment opportunities, Ms. Sicard testified that she does not feel as if she can return to work at Touro because her job requires repetitive tasks of her that give her severe pain. She testified that her highest level |inof educational achievement was an Associate of Science degree in radiologic technology. Ms. Sicard testified that this degree prepared her to be an x-ray technologist and that she learned ultrasound technology on the job. She testified that she has worked as an ultrasound technician for over twenty years.

With regard to the expenses she incurred, Ms. Sicard testified that while her health insurance has paid for most of her medical bills, she still incurred the cost of her deductibles.

Supervisors’ Testimony

Mr. Robert Burger, the director of the Touro Imaging Center, testified that he was never made aware of any injury of Ms. Sicard while she attended the training seminar in August of 2011. Mr. Burger confirmed that Ms. Sicard came to him in March of 2012 asking for a reduction in the number of her working hours because of her ongoing back problems. He also confirmed that Ms. Sicard did not report to him that she had an accident on April 23, 2012. Mr. Burger testified that he first became aware of her April 28, 2012 accident later in the year, after her leave of absence. Mr. Burger testified that after Ms. Sicard went “out from work” around April 24, 2012, he communicated with her via text message and Ms. Sicard did not indicate in those messages that she had an accident or the cause of her being out from work.

Mr. Burger confirmed that Ms. Sicard returned to work for two days in June of 2012. Mr. Burger testified that during those two days, Ms. Sicard performed her normal work duties and did not request any accommodation. Mr. Burger also testified that he was not told by Ms. Sicard why she was leaving after those two days.

Bthel Bromlay, a sonographer at the Touro Imaging Center and Ms. Sicard’s supervisor there, testified that she runs the day-to-day operations in the ultrasound lnarea. She testified that she worked with Ms. Sieard there in 2011 and 2012. Ms. Bromlay testified that Ms. Si-card did not report the first alleged accident of August 29, 2011 to her. Ms. Bromlay also testified that Ms. Sieard never asked her for any accommodations in her job duties, nor did Ms. Sieard complain to her about any pain or discomfort while performing her duties. With regard to April 23, 2012 specifically, Ms. Bromlay testified that she did not believe Ms. Si-card had an accident on that date.

DISCUSSION

Touro’s Assignment of Error

In its sole assignment of error, Touro argues the trial court erred in finding Ms. Sieard suffered a compensable “accident” under Louisiana’s Worker’s Compensation law. Specifically, Touro points this Court to Ms. Sicard’s pre-existing back condition and alleges that Ms. Sieard is not a credible witness because of inconsistencies in Ms. Sicard’s reporting as to whether this incident occurred while she was pumping up a gurney with her foot or when she was scanning a patient. Touro argues that Ms. Sieard did not suffer an “accident” because she did not experience a precipitous and sudden event.

The trial court considered this line of argument by Touro at trial and rejected it. On appeal, this Court reviews findings of fact such as this under the “manifest error-clearly wrong” standard of review. Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112, 117, citing, Brown v. Coastal Constr. Eng’g, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10. Accordingly, the findings of the trial court will not be set aside by this Court unless they are found to be clearly wrong in light of the record viewed in its entirety. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon | ^review, even though this Court may feel that its own evaluations and inferences are as reasonable. Id., citing, Robinson v. North Am. Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Louisiana Revised Statute 23:1021(1) defines an “accident” for purposes of Worker’s Compensation law as:

an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

Where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of La. R.S. 23:1021(1). Rostrop v. Gray Ins. Co., 12-554 (La.App. 5 Cir. 4/10/13), 115 So.3d 535, 539-40.

The employee in a workers’ compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.7/2/12), 93 So.3d 1253, 1257. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11), 56 So.3d 215, 219, citing Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

Here, Ms. Sicard alleged she suffered an accident on April 23, 2012 that was unwit-nessed by any of her co-workers or supervisors. Ms. Sicard consistently described her accident on April 23, 2012 as an episode of severe pain that was substantially different than the pain which she was previously experiencing. Ms. Sicard consistently reported that this pain occurred while she was working when she was performing an ultrasound scan of a patient. Furthermore, Touro offered no medical evidence to refute Ms. Sicard’s allegations of this accident and injury. Ms. Sicard’s testimony is also supported by the circumstantial events surrounding Ms. Sicard’s April 23, 2012 accident. Ms. Sicard did not return to work the next day. She reported her accident to her employer soon after the accident occurred. And subsequent medical records note April 23, 2012 as a distinct date of an accident which worsened Ms. Sicard’s condition.

We find this case similar to McCall v. Wal-Mart Stores, Inc., 02-1343 (La.App. 3 Cir. 3/5/03), 846 So.2d 832. In McCall, experts disagreed over whether the claimant/cashier was injured by a specific movement or on account of her advanced age and her job’s requirements of constant standing, lifting, and bending. Furthermore, while the claimant testified that she first experienced the pain from her injury while working on a specific day and time, the plaintiff could not identify the exact movement she was making when she suffered the injury she alleged. Despite this, the Third Circuit found that the claimant reasonably proved that she suffered a work-related injury. The court found that it was immaterial that the plaintiff could not identify the exact movement she was making at the time of the sudden onset of pain.

114Considering the law, jurisprudence, and the evidence in the record, we find the trial court did not manifestly err in determining Ms. Sicard suffered an accident and injury on April 23, 2012. Accordingly, Touro’s assignment of error is without merit.

Attorney’s Fees on Appeal

Ms. Sicard answered this appeal requesting additional attorney’s fees for her attorney’s work on this appeal.

We recognize that “[a]n increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase.” Richert v. Schindler Elevator Corp., 11-1099 (La.App. 5 Cir. 6/28/12), 97 So.3d 487, 494, writ denied, 12-1760 (La.11/2/12), 99 So.3d 677. The record here shows that Ms. Sicard’s attorney requested such attorney’s fees and filed a brief in support of the trial court’s ruling. However, in this case, we find that Touro reasonably controverted Ms. Sicard’s claim through this appeal. Because this claim has been reasonably controverted, there is no statutory basis for the award of attorney’s fees on appeal. Therefore, we decline to grant Ms. Sicard attorney’s fees for this appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s March 14, 2013 judgment. We also deny Ms. Sicard’s request for additional attorney’s fees.

AFFIRMED.

      . This case was consolidated from cases numbered 12-03217 and 12-03219.

      . The trial court found that, on April 23, 2012, Ms. Sicard's average weekly wage was $1,331.50.

      . On May 8, 2013, the trial court issued its reasons for judgment.

      . Dr. Corales’s medical records describe Ms. Sicard’s 2006 surgery as a "right L5-S1 lami-nectomy discectomy.”

      . In May of 2012, Ms. Sicard also began seeing Dr. Moss at Southern Orthopedic.

      . Dr. Moss issued these restrictions in a letter dated September 12, 2012.

      . On cross-examination, Ms. Sicard admitted that when filling out forms for treatment by Dr. Moss that she indicated that her condition was not work related and not as a result of an accident.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Tricia SCHIRO v. John M. FARRELL.
    No. 13-CA-635.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.
    Michael Baham, Pat M. Franz, Attorneys at Law, Pat M. Franz & Associates, LLC, Metairie, Louisiana, for Plaintiff/Appellant, Tricia Schiro.
    Zoe Olivia Fleming, Calvin A. Flem-ming, III, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellee, John M. Farrell.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

| ¿This is a divorce proceeding. The issue on appeal is whether a second petition for divorce may be filed under the same case number as an earlier-filed petition for divorce, when the parties reconciled before judgment was rendered on the first petition. We affirm the trial court’s ruling that after reconciliation, the original action is extinguished, and a subsequent petition for divorce must be filed as a new proceeding.

PROCEEDINGS IN TRIAL COURT

On November 9, 2007, Tricia Schiro filed a petition for divorce under La. C.C. art. 103 against her husband, John M. Farrell, on the basis of the parties’ having already lived separate and apart for the requisite amount of time. The petition alleged that the parties were married on December 9, 2001, that two children were born of the marriage, that the parties had separated on November 8, 2006, and that they had lived separate and apart since then. On December 13, 2007, Mr. Farrell filed an answer to the petition that incorporated a reconventional demand for divorce under Article 103.

[¡¡No further action was taken in the record until May 31, 2011, when Ms. Schi-ro filed a second petition for divorce, under the same case number and caption as the first suit. The second petition sought divorce under La. C.C. art. 102. The 2011 petition recited that the parties were married on December 9, 2001, that three children were born of the marriage, and that the petitioner desired a divorce. Mr. Farrell accepted service of the petition on June 17, 2011. There followed proceedings regarding child custody, visitation and support, interim spousal support, use of the community home, and use of community vehicles. Those claims were resolved in a consent judgment on August 31, 2011.

On October 2, 2012, Ms. Schiro filed a Rule to Show Cause for Divorce under La. C.C. art. 102, stating that the parties had resided separate and apart continuously and without reconciliation for more than 365 days following the defendant’s acceptance of service of the petition. The rule hearing was set for November 14, 2012.

Prior to the hearing on the rule for divorce, Mr. Farrell filed a Motion to Dismiss Petition for Divorce Ex Parte. He alleged that the petition for divorce had become null by operation of law, because neither party had sought or filed a rule for divorce within two years after service of the 2007 petition for divorce, pursuant to La. C.C.P. art. 3954(A). Mr. Farrell asserted that the failure of either party to seek or file a rule for a divorce rendered that petition abandoned by operation of [Jaw on November 18, 2009 (two years after the date that he received personal service of the petition for divorce in the underlying suit).

In her memorandum in opposition to the motion to dismiss, Ms. Schiro pointed out that her first demand for divorce was filed pursuant to La. C.C. art. 103, not Article 102, and therefore La. C.C.P. art. 3954 did not apply to it. She admitted, however, that the first demand was extinguished by operation of law due to the reconciliation of the parties, as provided by La. C.C. art. 104. She asserted that extinguishment made moot any consideration of whether it was abandoned under La. C.C. art. 561 after the lapse of three years.

She argued that the 2011 petition for divorce is independent of the first, because it is not an amended or supplemental petition, and it does not rely on anything connected with the first demand. It does not attempt to preserve any “retroactive” date or any time periods begun during the first demand, and there were no judgments on the first demand to be carried forward. She stated, “Whether or not there had ever been a prior proceeding is completely immaterial to the pending demand.”

Ms. Schiro pointed out that the local rules of the district court require the clerk to file new pleadings between the same parties in domestic cases in the same case number. Her memorandum stated:

At the time of the filing of the new demand on May 31, 2011, the Clerk’s index contained the earlier proceeding between the same parties. The suit record contained no dismissal or final judgment. There was no declaration for the record that the parties had reconciled. There was nothing in the record for the Clerk to determine that the earlier demand was no longer “pending.” The Local Rules do not require the Clerk to make a legal determination that the earlier action had been extinguished or abandoned — such a legal question is for the Court to decide in accordance with law.
|sThe Clerk followed the Local Rules and the new demand was filed in the same suit record as the first demand.

After a hearing on January 15, 2013, the district court rendered judgment granting the motion to dismiss. In ruling from the bench, the court stated,

The Court finds that in matter Number 652-954, that matter, by way of the reconciliation, that matter is extinguished .... So, Counsel, if you’ll go down to the Clerk’s Office and see if they will allow you to put the subsequent divorce pleading in another case number, or else you’ll have to file another suit. All right, that’s the Court’s ruling on this matter. This matter is extinguished.

The written judgment stated, in pertinent part, “It is ordered, adjudged and decreed that this matter be and it is hereby extinguished in accord with LCC Art. 104 based upon the reconciliation of the parties. If Trida Schiro can have the suit that she filed May 31, 2011 filed as a new suit with the Clerk of Court, then she may do so.”

Ms. Schiro filed a Motion for New Trial and Motion to Transfer Case, in which she noted that on January 15, 2013, the date the judgment was rendered, Mr. Farrell had filed a petition for divorce under La. C.C. art. 103, under a separate case number, which was allotted to a different division. Ms. Schiro stated that her counsel had consulted with personnel in the Clerk’s Office about whether the Clerk would allow another case number for the proceedings commenced on May 31, 2011. She stated that the Clerk’s Office personnel, upon being informed of Mr. Farrell’s newly-filed action, had advised Ms. Schi-ro’s counsel that a solution would be for the May 31, 2011 divorce demand, and proceedings and judgments subsequent thereto, to be consolidated with Mr. Farrell’s action under the new case number. Accordingly, Ms. Schiro requested that the court transfer her case to the ^division to which Mr. Farrell’s proceeding was assigned, for consolidation with his case.

In opposition to the motion for new trial, Mr. Farrell reiterated the arguments made in support of his motion to dismiss. He acknowledged he had filed a new lawsuit on January 15, 2013, under a new case number, and stated that Ms. Schiro had filed an answer and reconventional demand in that suit. He argued that Ms. Schiro’s request for a new trial did not allege any ground that could form the basis for a revival of her divorce proceeding. He asserted that the extinguishment of the underlying case means that all other portions of the suit expired unless such ancillary matters were resolved and no longer pending. He stated, “There were underlying ancillary matters, but they were still pending at the time of the expiration of this lawsuit.” He argued there is no law or authority to have portions of an extinguished case transferred to a later-filed case unless very specific exemptions apply.

On April 1, 2013, the trial court denied both the motion for new trial and the motion to transfer the case, and dismissed the case in its entirety.

Ms. Schiro appeals the judgment of January 15, 2013, and also the judgment of April 1, 2013, “to the extent that it may have adjudicated any matters in addition to the January 15, 2013 judgment.”

ARGUMENTS

On appeal, Ms. Schiro contends the trial court erred in dismissing all proceedings in the second demand for divorce. She states the issue is whether the filing of a new divorce demand in the same record as an earlier extinguished divorce demand thereby extinguishes and invalidates any and all proceedings and judgments taken on the second demand. She argues that an incorrect case number does not invalidate any proceedings which bear that number.

|7Ms. Schiro admits that the granting of a judgment of divorce in Mr. Farrell’s divorce action (case number 722-908) on June 11, 2013, made her second demand for divorce moot, but she contends “the various incidental matters presented with the second demand are not moot, because the outcome of this appeal will affect those demands.”

She argues that the second demand was totally independent of the first: The second demand was neither an amended petition nor a supplemental petition; it did not seek to rely upon anything connected with the first demand — there was no “retroactive” date to preserve, no time periods begun during the first demand to be preserved, no judgments on the first demand to be carried forward, no need for anything in the second demand to “relate back” to the earlier demand, such as an interruption of prescription. Whether or not there ever had been a prior proceeding was completely immaterial to the second demand.

Ms. Schiro points out,
There are a number of substantive effects on the parties if the May 31, 2011 divorce demand and subsequent proceedings are dismissed and annulled. The consent judgments on custody and support would be impacted, vested rights to accrued support would be affected, there would have been a different termination date for the community and for the determination of fault for the purposes of final spousal support, and there is the potential professional liability of former counsel for filing the new demand in an incorrect case number (assuming that as a matter of law, such would cause the dismissal of all proceedings).”

In opposition to the appeal, Mr. Farrell avers that the trial court correctly dismissed the entire case because the reconciliation extinguished the matter. He argues that a reconciliation means the underlying case is over. It cannot be brought back, because it is the equivalent of a case that has been dismissed with prejudice.

IsLAW AND ANALYSIS

The Louisiana Civil Code provides that parties may be divorced after living separate and apart for a statutorily mandated amount of time, which is either 180 days or 365 days. Which period applies depends on whether there are minor children of the marriage, or on certain specific circumstances. La. C.C. art. 103.1.

Under La. C.C. art. 102, a person seeking divorce may file a petition before the requisite time period has passed, following it after expiration of the time period with a rule to show cause why divorce should not be granted. The advantage of an Article 102 divorce is that the marital community will be considered terminated at an earlier date, because the divorce judgment once obtained will be retroactive to the date the petition was filed.

Under La. C.C. art. 103, a person seeking divorce may file a petition for and be granted a divorce after the requisite time period has passed. The advantage of Ran Article 103 divorce is that there is very little waiting to obtain the judgment of divorce, because the required period of separation will have already taken place by the time the petition is filed. The termination date of the marital community, however, will also be after the requisite waiting period has expired, because the Article 103 petition cannot be filed before then.

Under La. C.C. art. 104, “The cause of action for divorce is extinguished by the reconciliation of the parties.”

Ms. Schiro’s first petition was filed in 2007. It is undisputed that the parties reconciled in 2008. There was no formal dismissal of the 2007 petition, but Ms. Schiro agrees that the reconciliation extinguished her cause of action for divorce under the Article 103 petition filed in 2007.

When Ms. Schiro filed her second petition for divorce in 2011, this time seeking divorce under Article 102, however, she filed it under the same docket number as the first petition. She claims that she did so in order to comply with the local district court rules.

Rule 25.1(A) of the Rules of the 24th Judicial District Court provides, “All pleadings or motions between the same parties filed in domestic cases must be filed in the first suit filed by either party. The proceeding first filed, unless abandoned or dismissed as a matter of law, shall be the proceeding for all subsequent litigation in the case.” (Emphasis added.).

In this case, the reconciliation extinguished the cause of action, which had the same effect as “an abandonment or a dismissal as a matter of law,” as required by the 24th Judicial District Court Rules, Rule 25.1(A). The lawsuit was concluded, even without a formal dismissal. Therefore, the 2011 petition should have been filed as a new suit, with a new number.

|inMs. Schiro has argued that “cause of action” as used in Article 104 is not synonymous with a “case number.” She also argues that many lawsuits are comprised of different causes of action asserted by different parties, and that dismissal of one cause of action by or against one party need not necessarily affect other parties or other causes of action. Hence, she contends, her filing of the second divorce demand, based on a different code article (La.C.C. art. 102), was independent of the first and the extinguishment of the first should not be fatal to the second.

We agree that many lawsuits include different causes of action by different parties, but we note that in such cases other ongoing actions existed prior to the dismissal of one of them — as, for example, a suit with multiple plaintiffs and/or multiple defendants. Her proffered example does not revive her 2011 petition. We analogize the extinguishment of her cause of action for Article 103 divorce to an abandonment of the action. Once an action has been abandoned, it is final. No further proceedings may be conducted in that action. The Article 103 proceeding was terminated when the cause of action was extinguished. Subsequent filing of the unrelated Article 102 divorce petition in 2011, after the proceeding was terminated by operation of law, could not revive the case. Hence, the 2011 petition should have been filed as a new matter, under a new case number.

Accordingly, the trial court did not err in its ruling.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Tricia Schiro.

AFFIRMED.

      . The petitions also contained claims concerning custody and support of the parties’ minor children, as well as Ms. Schiro's claim for spousal support, and claims regarding certain community property. Those issues are not before us on this appeal.

      . Schiro v. Farrell, 24th Judicial District Court, Div. "P”, Number 652-954.

      . The parties had reconciled in 2008 and another child was born of the marriage in 2009.

      . Both parties also filed motions for protection from abuse that later were voluntarily dismissed.

      . La. C.C.P. art. 3954 provides,
      A. A divorce action instituted under Civil Code Article 102 is abandoned if the rule to show cause provided by that Article is not filed within two years of the service of the original petition or execution of written waiver of service of the original petition.
      B. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of abandonment.

      . Farrell v. Schiro, 24th Judicial District Court, Division "J”, No. 722-908.

      . La. C.C. art. 103.1 provides:
      The requisite periods of time, in accordance with Articles 102 and 103 shall be as follows:
      (1) One hundred eighty days:
      (a) Where there are no minor children of the marriage; or
      (b) Upon a finding by the court, pursuant to a rule to show cause, that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses; or
      (c) If, after a contradictory hearing or consent decree, a protective order or an injunction has been issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.
      (2) Three hundred sixty-five days when there are minor children of the marriage at the time the rule to show cause is filed in accordance with Article 102 or a petition is filed in accordance with Article 103.

      . La. C.C. art. 102 states:
      Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.
      The motion shall be a rule to show cause filed after all such delays have elapsed.

      . "A judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered.” La. C.C. art. 159.

      . La. C.C. art. 103 states:
      Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
      (1) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed....