author: GASKINS, J. SEXTON, Judge Pro Tem.,

text:
    TEALWOOD PROPERTIES, LLC, Plaintiff-Appellant v. The SUCCESSION OF Glen D. GRAVES, et al., Defendants-Appellees.
    No. 47,446-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Kenneth R. Antee, for Plaintiff-Appellant.
    Bradley, Murchison, Kelly & Shea, LLC, Shreveport, LA, by David R. Taggert, Brad Wilkerson, for Defendant-Appellee, Dale Oil Corporation, Inc.
    Before STEWART, GASKINS and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

hThe plaintiff, Tealwood Properties, LLC, appeals from a trial court judgment sustaining an exception of res judicata filed by Dale Oil Company, Inc. d/b/a Dale Oil Corporation (“Dale”). For the following reasons, we reverse the trial court judgment and remand to the trial court for further proceedings.

FACTS

The property at issue in this case is 477.99 acres of land in Greenwood, Louisiana. In August 1990, Mildred Elizabeth Meeker, the mother of Glen D. Graves, conveyed a mineral servitude in the property to Dale. Dale is a wholly-owned corporation of the Graves. In December 1990, Mrs. Meeker sold the land to the Graves.

On August 11, 2003, a warranty deed was executed between the Graves and Tealwood for the sale of the property for 1.25 million dollars. The deed provided that the Graves were transferring all rights to oil, gas, and other minerals lying on or under said property with the exception of production of one specific well. Also, on August 11, 2003, Dale executed a release of surface rights to Tealwood. The document was signed by Mr. Graves, as president of Dale, but not by any representative of Tealwood.

In April 2008, a mineral lease on the property was granted by Dale. On June 18, 2008, Tealwood filed suit against the Graves and Dale, seeking specific performance of transferring the mineral rights to the plaintiff. Tealwood claimed breach of contract, civil fraud, and bad faith.

| ;Dale filed an exception of prescription in the trial court, claiming that there was no contractual relationship between Teal-wood and Dale; only a delictual claim for fraud was alleged and was subject to a one-year prescriptive period.

On August 3, 2009, Tealwood filed a motion for partial summary judgment against the Graves and Dale for specific performance of transfer of the mineral rights, alleging that Dale was the alter-ego of the Graves and that Mr. Graves acted in both his individual and official capacities as president of Dale. Tealwood argued that Dale and the Graves were the same entity in the transaction which transferred the property to Tealwood.

The trial court heard argument simultaneously on the exception of prescription and the motion for partial summary judgment. Tealwood conceded that the delic-tual fraud claims had prescribed. Dale argued that, because there was no contract between Dale and Tealwood, the remaining claims against Dale were prescribed and should be dismissed.

In reasons for judgment dated October 20, 2009, the trial court found that Teal-wood’s claims against Dale had prescribed and that Tealwood’s delictual claims, including fraud, against the Graves had prescribed. Because Tealwood’s claims against Dale had prescribed and there was no evidence in the record to support piercing the corporate veil, Tealwood’s motion for partial summary judgment, as it related to Dale, was denied as moot and Dale was dismissed from the suit. The trial court found that the contractual claims by Tealwood against the Graves had not prescribed, and Tealwood’s motion for partial summary judgment on contract claims against the Graves were |sdenied because there were genuine issues of material fact. On October 26, 2009, the trial court signed judgments to this effect.

Tealwood filed a motion for new trial and a motion to reconsider the granting of the exception of prescription as to Dale. The motions were denied by the trial court on February 23, 2010. Tealwood appealed only the judgment sustaining Dale’s exception of prescription. The order of appeal was signed by the trial court on March 15, 2010.

On July 12, 2010, while the judgment on the exception of prescription as to Dale was on appeal in this court, the Graves filed a motion for summary judgment in the trial court, claiming that the sole issue remaining before the court was Tealwood’s contractual claim against them. The Graves noted that, according to Tealwood, the Graves breached the warranty deed when they did not transfer all the mineral rights in the disputed property. The Graves contended that the warranty deed was clear and unambiguous and the parties’ intent may be determined from the face of the instrument. The Graves did not dispute that the warranty deed conveyed all mineral interests in the property owned by them, with a limited reservation of production from an existing well.

The Graves claimed that there were no genuine issues of material fact regarding their satisfaction of the requirements of the warranty deed transferring all of their individual interest in the disputed property subject to the limited mineral reservation; therefore, they were entitled to summary judgment dismissing Tealwood’s remaining contractual claim against them.

On September 21, 2010, the trial court filed written reasons for judgment, granting the Graves’ motion for summary judgment and dismissing Tealwood’s claims against them. The trial court noted that, at the time the ^warranty deed was executed, the Graves did not own the mineral rights on the property. Tealwood alleged that the Graves committed fraud by not revealing that Dale owned the mineral rights on the land. According to the trial court, if the party against whom fraud is committed could have ascertained the truth without difficulty, inconvenience, or special skill, the fraud will not vitiate consent. Because the transfer of mineral rights to Dale was recorded in the public records, the trial court found that the public records doctrine imputed knowledge of the transfer to Tealwood. The trial court also noted that, at the time of the sale, Dale executed a release of surface rights in favor of Tealwood which was also recorded in the public records. The trial court concluded that Tealwood’s consent to the warranty deed was not vitiated by fraud and the Graves satisfied their obligations under the warranty deed. Therefore, summary judgment was granted in favor of the Graves. A judgment to that effect was signed by the trial court on October 1, 2010.

In April 2011, this court rendered its decision on Tealwood’s appeal of the judgment sustaining Dale’s exception of prescription and dismissing Dale from the suit. In Tealwood Properties, L.L.C. v. Succession of Graves, 45,975 (La.App.2d Cir.4/27/11), 64 So.3d 397, this court found that the issue was whether Tealwood had stated a cause of action for the disregard of Dale’s corporate personality because its sole shareholders obligated themselves under the deed to deliver to Tealwood the right to explore for minerals which the Graves fraudulently or erroneously retained in Dale. This court found that the allegations made by Tealwood, suggesting circumstantially that the Graves’ intent in signing the deed cannot be separated from Dale’s intent, state a case of faction to reform the deed with Dale’s direct participation in the conveyance and the cause of action had not prescribed.

Regarding the piercing of the corporate veil, we reasoned that this case fell under the “circumvention” category of veil-piercing jurisprudence. We stated that:

... in the circumvention type of case the court is being asked to disregard the separate existence of a corporation in order to prevent the shareholder of the Corporation from getting around some restriction on his own freedom of action. The veil is pierced in these cases to stop the shareholder from doing indirectly through a corporation what he could not do directly as an individual, or viewed in a slightly different way, to impute to a corporation some legal disability or characteristic that, as a formal matter, is actually held by the shareholder rather than by the corporation itself. Thus, the circumvention cases do not involve issues of corporation law, as such. Rather, they raise questions about the proper interpretation of a particular statute or contract, i.e., whether the particular statute or contract in question ought to be interpreted to reach only those actions taken by the parties directly, or instead ought to be seen as reaching indirect actions as well.
Further in the opinion, we stated:
On the face of the Deed, the Graves, in their personal capacities, warranted a sale of the Tract unencumbered by any existing mineral servitude. Yet, they now assert that they simultaneously retained full ownership of the right to explore for minerals by virtue of their corporation’s mineral servitude and that this allows circumvention of the obligations of the Deed. If the written Deed is determined after trial to accurately reflect the parties’ mutual intent for the sale, the Graves’ intent may be imputed to their corporation, and Dale may be treated as a party to the transaction. This is a cause of action recognized in our jurisprudence, which prevents the shareholders to cloak themselves behind the corporate entity to shield themselves from the responsibility of the obligations of their sale.
This cause of action as expressed in Keller v. Haas, supra [202 La. 486, 12 So.2d 238 (La.1943) ], and described by Professor Morris, supra [Glenn G. Morris, Piercing the Corporate Veil in Louisiana, 52 La. L.Rev. 271 (1991) ] does not require any measure of the shareholder’s actual intent, such that bad faith or |fifraud must be proven. If it is determined that the Graves’ mutual intent with Tealwood was for the conveyance of ownership of the Tract unencumbered and with the complete landowner’s right for minerals (except the limited Baker Well mineral reservation), the Graves may have simply been in error, without any actual fraudulent intent, holding a mistaken belief that the Dale Servitude no longer encumbered their Tract. With that understanding, they would have been in good faith in the execution of the Deed but may not now shield themselves and circumvent their obligations of the Deed by asserting their corporate ownership.
Finally, there are two important points of policy. Should Tealwood prevail in its claim against Dale, the policy of limited liability for shareholders is not implicated. This so-called “circumvention ease” is not an attack on the shareholder’s shield from liability of the corporation’s debt. Likewise, the policy for our public records doctrine is not affected since Dale’s recorded mineral sale and lease to third parties after the time of the Deed are protected from the later reformation of the Deed. Yet, Dale still owns one-half of the mineral interest in the Tract. As between the parties, Teal-wood, the Graves and Dale, the Deed may now be reformed if the substantial factual dispute over the parties’ mutual intent for the mineral interest in the Tract is ultimately adjudicated as alleged by Tealwood. [Emphasis supplied.]

This court overruled the granting of the exception of prescription in favor of Dale and remanded the matter to the trial court for further proceedings. The opinion concluded:

In summary, Tealwood has made factual allegations sufficient to state a cause of action against Dale “for the specific performance of transferring the mineral rights” of the Tract to Tealwood by a reformation of the Deed. Dale’s remaining ownership affecting the minerals amounts to one-half of the minerals, which is the only portion which may be included in the sale to Tealwood by virtue of such reformation of the Deed. The cause of action now recognized has a prescriptive period of ten years. Accordingly, the trial court’s grant of the peremptory exception of prescription dismissing the claims against Dale is reversed.

|7When this court remanded the matter to the trial court for further proceedings, Dale filed an exception of res judicata, claiming that the trial court’s grant of summary judgment in favor of the Graves on October 1, 2010, disposed of all remaining claims in this case and that judgment became final on December 14, 2010, because Tealwood did not appeal. A hearing on the exception of res judicata was held on November 7, 2011. Essentially, Dale argued that the trial court judgment of October 1, 2010, finding that the Graves satisfied their obligations under the warranty deed, precluded any consideration on remand by the trial court as to whether Dale could be required to transfer its mineral interest in the tract to Tealwood by a reformation of the deed. Dale pointed out that, in the motion for summary judgment filed by the Graves, the trial court considered all claims for breach of the contract and decided that there was no breach. Dale argued that it was proper to accept that the Graves and Dale are one in the same.

On November 15, 2011, the trial court signed a judgment sustaining the exception of res judicata and dismissing Teal-wood’s claims against Dale. Tealwood appealed, arguing that the trial court erred in granting Dale’s exception of res judica-ta.

LEGAL PRINCIPLES

The law regarding res judicata in this state is set forth in La. R.S. 13:4231:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction |sor occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Comment (d) to this statute provides in pertinent part:

To have any preclusive effect a judgment must be valid, that is, it must have been rendered by a court with jurisdiction over subject matter and over parties, and proper notice must have been given....

Pursuant to this statute, a second action is precluded when all of the following criteria are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Wooley v. State Farm, Fire and Casualty Insurance Company, 2004-882 (La.1/19/05), 893 So.2d 746. See also Richland Parish Police Jury v. Debnam, 47,-159 (La.App.2d Cir.4/18/12), 92 So.3d 487, 2012 WL 1316996; Von Drake v. Rogers, 45,305 (La.App.2d Cir.5/19/10), 36 So.3d 1218, writ denied, 2010-1471 (La.10/15/10), 45 So.3d 1111.

The first two requirements mandate the existence of a valid and final judgment. For res judicata purposes, a valid judgment is one rendered by a court with jurisdiction over both the subject matter and the parties after proper | ^notice was given. Similarly, a final judgment is one that disposes of the merits in whole or in part. Wooley v. State Farm, Fire and Casualty Insurance Company, supra; Von Drake v. Rogers, supra, A claim is not barred by res judicata if the court in which the first action was brought lacked subject matter jurisdiction to adjudicate the claim. Kelty v. Brumfield, 633 So.2d 1210 (La.1994).

La. C.C.P. art. 3 provides:

The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.

It is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Atkins v. Atkins, 623 So.2d 239 (La.App. 2d Cir.1993); Renno v. Evans, 580 So.2d 945 (La.App. 2d Cir.1991). Subject matter jurisdiction is nonwaivable and the lack of it can be recognized by the court on its own motion at any time. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. Barry v. Barry, 606 So.2d 1391 (La.App. 2d Cir.1992).

The doctrine of res judicata is stricti juris; any doubt concerning application of the principle of res judicata must be resolved against its application. The doctrine of res judicata cannot be invoked unless all its essential elements are present, and each element must be established beyond all question. Kelty v. Brumfield, supra.

La. C.C.P. art. 2088 provides:

|inA. The jurisdiction of the trial court over all matters in the case renewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the ease of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1438;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit- the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

Under the express provisions of the article, the trial court is not considered divested of jurisdiction to consider any issue that is “not reviewable |nunder the appeal.” This language, “not reviewable under the appeal,” has generally been interpreted to give the trial court continuing jurisdiction over all issues that are unaffected by the appeal, even if the issue is not specifically listed in La. C.C.P. art. 2088. Partain v. Peaker, 46,978 (La.App.2d Cir.4/11/2012), 91 So.3d 1160.

A judgment entered by a trial court after jurisdiction is divested is an absolute nullity. See Pleasure v. Louisiana Organ Procurement Agency, 11-175 (La.App.5th Cir.12/28/11), 83 So.3d 174, writ denied, 2012-0280 (La.4/13/12), 85 So.3d 1248.

DISCUSSION

The first requirement for establishing res judicata is a valid judgment. Where the trial court lacks subject matter jurisdiction, the judgment is an absolute nullity. This court has a duty to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants.

In the first appeal of this matter, we found that, if the written deed accurately reflects the parties’ mutual intent for the sale, the Graves’ intent may be imputed to Dale and Dale may be treated as a party to the transaction. We stated that, as between Tealwood, the Graves, and Dale, the deed may be reformed if the substantial factual dispute over the parties’ mutual intent for the mineral interest in the tract is ultimately adjudicated as alleged by Tealwood. Essentially, we found that the corporate veil in this matter should be pierced and that Dale should be considered a party to the transaction. Even in argument on the exception of res judicata, Dale stated that it was proper to accept that Dale and the Graves are one in the same.

hjUnder these circumstances, on March 15, 2010, when the trial court signed the order for Tealwood’s appeal from the granting of the exception of prescription as to Dale, the trial court’s jurisdiction in this matter was divested as to both the Graves and Dale, who are one and the same. According to La. C.C.P. art. 2088, the trial court was without jurisdiction to hear the Graves’ motion for summary judgment regarding whether they had satisfied their obligations under the warranty deed because it was divested of jurisdiction. In hearing the Graves’ motion for summary judgment, the trial court was examining issues reviewable under the appeal and affected by the appeal. We also note that the trial court’s decision in favor of the Graves was based upon its prior reasoning that there was no evidence in the record to support piercing the corporate veil and that Dale was not a party to the transaction, notions clearly rejected in our prior opinion in this case.

Dale stated at the argument on its exception of res judicata that “The only reason we’re now here is because the remand on the prescription issue and the decision of the trial court on the deed kind of passed in the night.” La. C.C.P. art. 2088, which divests the trial court of jurisdiction while a matter is on appeal, is aimed at preventing the occurrence of cases “passing in the night.” The article prevents a trial court from continuing to adjudicate matters while a case is on appeal, resulting in inconsistent results with the findings of this court and in possible miscarriages of justice.

Because, under La. C.C.P. art. 2088, the trial court was divested of jurisdiction when the matter was appealed, the decision granting the Graves’ motion for summary judgment was an absolute nullity and is not a valid judgment. Without a valid judgment, Dale’s exception of res judicata must be | ^denied. Accordingly, the trial court erred in granting Dale’s exception of res judicata, based upon an invalid grant of summary judgment and that decision must be reversed.

As we stated in our prior opinion, “As between the parties, Tealwood, the Graves and Dale, the Deed may now be reformed if the substantial factual dispute over the parties’ mutual intent for the mineral interest in the Tract is ultimately adjudicated as alleged by Tealwood.”

CONCLUSION

For the reasons stated above, we reverse the trial court judgment granting the exception of res judicata in favor of Dale Oil Corporation and remand the matter to the trial court for further proceedings in accordance with this opinion and our opinion in the prior appeal of this matter. Costs in this court are assessed to Dale Oil Corporation.

REVERSED AND REMANDED.

SEXTON, J. Pro Tem., additionally concurring.

SEXTON, Judge Pro Tem.,

additionally concurring.

|TI agree that the trial court was without jurisdiction to grant Dale’s exception of res judicata in the September 15, 2011, judgment. I write further to note that the trial court judgment of October 1, 2010, upon which the res judicata exception was based, released only “the Succession of Glen D. Graves and Maricelli Graves,” and did not mention Dale. Thus, the trial court judgment sustaining the exception of res judicata was in error on that basis as well. This court’s first opinion herein clearly emphasized the potential of Dale’s responsibility.

      . The succession of Glen D. Graves and Mary Maricelli Graves (collectively "Graves”) were defendants in the original suit.

      . In May 2008, Dale sold one-half of the minerals on the tract to Jones Energy Company, LLC ("Jones”). Jones was included as a defendant. In October 2009, the trial court found that Tealwood's claims against Jones had prescribed.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Latonya HARRIS and Shatara Harris, Plaintiffs-Appellants v. Latiffany Latrice DUNN, USAgencies Insurance Company, and State Farm Insurance Company, Defendants-Appellees.
    No. 47,453-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Smith & Nwokorie by Brian G. Smith, for Appellant, Shatara Harris.
    Kitchens, Benton, Kitchens & Black, Minden, LA, by Graydon K. Kitchens, III, for Appellee, State Farm Ins. Co.
    Neal Law Firm by Mark J. Neal, Monroe, LA, for Appellee, USAgencies Ins. Co.
    Before BROWN, WILLIAMS, and GASKINS, JJ.
   BROWN, Chief Judge.

hOn August 1, 2006, plaintiff, Shatara Harris (“Shatara”), filed suit for damages after she was struck by a vehicle driven by defendant, Latiffany Latrice Dunn (“Latif-fany”). Also named as defendants were Latiffany’s liability insurer, USAgencies Casualty Insurance Company, Inc. (“USA-gencies”), as well as State Farm Mutual Automobile Insurance Company (“State Farm”), the provider of uninsured/underin-sured motorist (“UM”) coverage for the driver of the vehicle in which Shatara was a passenger. Service was unsuccessfully attempted on Latiffany multiple times. Initially, both USAgencies and State Farm filed motions for summary judgment on the grounds that Latiffany used her vehicle to intentionally strike Shatara. The trial court granted both motions; however, finding that a genuine issue of material fact existed as to whether Latiffany acted intentionally, we reversed the summary judgments and remanded for further proceedings. Harris v. Dunn, 45,619 (La.App.2d Cir.09/22/10), 48 So.3d 367.

Plaintiff, Shatara Harris, now appeals from an adverse judgment denying all of her claims for damages against defendants, USAgencies and State Farm. Although disagreeing in part with the reasons of the trial court, we affirm.

| ⅞Facts and Procedural History

A bench trial was held on May 23, 2011. Latonya Robinson, the driver of the vehicle in which Shatara was a passenger, and Shatara were the only witnesses called to testify. The deposition of Sgt. Jimmy Hamilton of the Homer Police Department and Latiffany’s recorded statement taken by Sgt. Hamilton on the night of the collision, along with Shatara’s medical records, were admitted into evidence.

The automobile collision at issue occurred on August 2, 2005, in Homer, Louisiana. At approximately 9:30 P.M., Latonya Robinson was driving her vehicle down Pearl Street with five other family members riding along, including her sister, plaintiff, Shatara Harris. Plaintiffs cousin, Latiffany Dunn, was in her vehicle at the intersection of Washington and Pearl Streets when Latonya sounded her horn and pulled her vehicle up to the right side of Latiffany’s car. Shatara, riding in the passenger side front seat, exited the car and walked around the cars to Latiffany’s window.

In statements to the police, Latiffany alleged that Shatara reached inside of the car and struck her twice in the face. La-tiffany stated that Shatara and her family had been harassing her prior to this incident. According to Latiffany, the reason for Shatara’s and Latonya’s animosity was because she was engaged to marry the father of Latonya’s child. In their statements to police, Latonya and Shatara said that there was a confrontation and that Shatara attempted to hit Latiffany. At trial, however, Latonya and Shatara testified that they were unsure as to whether Shatara | .«¡ever attempted to strike Latiffa-ny. At trial Shatara also claimed that Latiffany had tried to hit her with a car earlier that day.

Following the confrontation at Latiffa-ny’s vehicle, Shatara was walking back to Latonya’s car when Latiffany pulled forward, performed a quick U-turn and drove back to Latonya’s car. Latiffany told the police that she was turning around so she could hit Shatara with a stick that she kept in her car; however, Latiffany’s vehicle struck the passenger side door of Latonya’s car as it was opened by Shatara. Plaintiff was hit by the door and became caught on the bumper of Latiffany’s vehicle. She was dragged several feet before becoming free and was later treated for a broken wrist. Latiffany was arrested on the charge of second degree battery, eventually pleading guilty to a charge of simple battery. Shatara was also cited for simple battery.

On October 25, 2011, the trial court rendered judgment in favor of defendants and issued written reasons for judgment. The trial court found that Shatara failed to put into evidence the insurance policies and therefore, failed to meet her burden of proving insurance coverage. The court also found that Latiffany intentionally struck Shatara. Thereafter, Shatara filed this timely appeal.

Discussion

Plaintiff raises two assignments of error on appeal. First, Shatara asserts that the trial court erred in finding that Latiffany’s actions were intentional and that plaintiff failed to meet her burden of proof to establish insurance coverage for the collision.

\4Intentional Act

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).

If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous. Id.; Easter v. Direct Ins. Co., 42,178 (La.App.2d Cir.05/09/07), 957 So.2d 328. Further, when findings are based upon determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Id.

The evidence supports the finding that Shatara was the initial aggressor in the confrontation. Shatara got out of the vehicle in which she was riding and walked over to Latiffany and at least attempted to strike her. Latiffany made an aggressive U-turn with the admitted intent of striking Shatara. Latiffany then struck the passenger side door of the car into which plaintiff was getting. The trial court cor-reetly found that Latiffany, who pled guilty to simple battery, acted intentionally to injure Shatara.

Insurance Coverage

It is not disputed that plaintiff failed to introduce both State Farm’s and US Agency’s policies into evidence at trial.

| BThis court has 'addressed the issue of proving insurance coverage when a plaintiff fails to introduce the insurance policy into the record. In the context of confirming a preliminary default judgment, this court has held that the policy itself is essential to establishing a prima facie case against an insurer. Sudds v. Protective Cas. Ins. Co., 554 So.2d 149 (La.App. 2d Cir.1989); Brown v. Trinity Ins. Co., 480 So.2d 919 (La.App. 2d Cir.1985). Addressing the importance of introducing an insurance contract into evidence, this court opined:

It is almost unnecessary to state that the reason for the rule is that the true intent of the parties may be best determined by reading the written document. Failure to do so can result in the sort of inaccuracies that are alleged in the instant case. [... ] The proper remedy is not a judgment based on insufficient proof; rather the plaintiff should pursue discovery procedures in the trial court for securing the production of the document or the admission of its contents.

Sudds, 554 So.2d at 151.

In her original petition, plaintiff alleged that State Farm issued an insurance policy for Latonya Robinson’s vehicle which provided UM coverage and USAgencies issued a policy to Latiffany Dunn which provided coverage for the collision. State Farm responded by admitting that a policy was issued to Latonya, but that the policy itself was “the best evidence of that which is contained therein.” USAgencies denied the allegation and stated that “[i]n further response, USAgencies shows that its policy does not provide coverage for the allegations made [in ... ] this Petition pursuant to the intentional act exclusion contained with the policy. USAgencies further pleads any and all other applicable exclusions contained with the policy of insurance.”

IfiAs stated above, this is the second time this case has come before this court. In the first appeal, this court explained:

... Seeking to deny coverage, both US-Agencies and State Farm filed motions for summary judgment on the grounds that Latiffany intentionally struck the vehicle and Shatara. The trial court granted both motions. Shatara now appeals the dismissal of her claims as to these two defendants. Because we find that a genuine issue of material fact exists as to whether Latiffany acted intentionally, we reverse the summary judgments and remand for further proceedings.

Harris, 48 So.3d at 369.

In the first Harris case this court recognized the insurance policies of both insurers, as had the trial court, and, in fact, quoted extensively from certain provisions from those policies. This court found that there were material issues of fact as to the intentional act exclusion and remanded for trial. As to the uninsured motorist provision, this court wrote:

This issue of fact also means that summary judgment in favor of State Farm is also not warranted. We make no ruling on State Farm’s argument that its UM coverage is not triggered when an intentional act, rather than an “accident,” causes damage or injury to persons entitled to UM coverage under its policy.

Harris, 48 So.3d at 375.

The insurance policies are in the record. They were attached to the affidavits filed by defendants in their summary judgment motions. These policies were referred to by the trial court in its consideration of the summary judgment motions, as well as in this court on appeal.

Under these particular circumstances, we find this case to be distinguishable from the cited cases. Therefore, we find that the trial court’s ruling on this issue is erroneous. Defendants’ pleadings, stipulations,^J^and the record of the summary judgment motions and appeal serve to prove the existence and contents of the policies.

Having found that Latiffany’s actions were intentional and that the USAgencies policy had an intentional act exclusion, we affirm the trial court’s judgment in favor of USAgencies. This also applies to the cross-claim of State Farm against USA-gencies. It was stipulated that State Farm’s cross-claim against USAgencies included payment by State Farm of both property damage claims in the amount of $4,672.82 and medical bills in the amount of $4,458.90.

Uninsured motorist coverage by State Farm

In this case, the requirement that an “accident” must occur is applicable for the recovery of uninsured motorist benefits. State Farm argues that intentionally inflicted injuries are not “caused by accident” and thus, are beyond the scope of protection afforded by its uninsured motorist clause.

In Blue v. State Farm Mut. Auto. Ins. Co., 493 So.2d 701, 703 (La.App. 2d Cir.1986), writ denied, 496 So.2d 1041 (La.1986), a case involving an assault with a ball point pen after a minor accident, the court stated:

[Ajdmittedly, this court and the First Circuit have expressly stated that the phrase “caused by accident” in an uninsured motorist provision should be interpreted from the victim’s standpoint. Thus, acts intentionally committed -with a vehicle by an uninsured motorist would be included under the coverage ... Nevertheless, this issue is not really crucial to a correct disposition of the instant case. Regardless of how the incident that causes the injuries is interpreted, it still must be shown to have arisen out of the operation, maintenance or use of an uninsured motor vehicle.

| sIn Redden v. Doe, 357 So.2d 632 (La.App. 1st Cir.1978), the plaintiff’s car was intentionally forced off the road by two vehicles occupied by men who sought to steal bank deposits which plaintiff supposedly had in her vehicle. Plaintiffs car capsized and came to rest in a bayou, at which time one of the assailants grabbed her by the shoulder and pulled her from the car. Plaintiff suffered injuries as she was pulled through a broken window in the car. She thereafter sued her auto insurer, claiming coverage under the UM provisions of her policy which, in essence, obligated the insurer to compensate the insured for injuries “caused by accident.” The court of appeal affirmed the trial court’s judgment, finding that, from the standpoint of the insured, the incident in question was an accident even though her injuries resulted, at least indirectly, from the commission of an intentional tort by her assailants. In this regard, the court stated the following:

We believe that the nature and purpose of uninsured motorist coverage require that the question of whether or not an injury is accidental must be determined from the victim’s standpoint. From this point of view, although inflicted intentionally, the victim’s injuries result nonetheless from an ‘accident’ within the meaning of the policy. See Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla.App.1975); Celina Mutual Insurance Co. v. Saylor, 35 Ohio Misc. 81, 301 N.E.2d 721 (1973). See also 72 A.L.R.3d 1161.

Redden, 357 So.2d at 634.

The Redden case has been compared with Mangum v. Weigel, 393 So.2d 871 (La.Ct.App. 4th Cir.1981), in William S. Mckenzie & H. Alston Johnson, III, Insurance Law and Practice § 116, in 15 Louisiana Civil Law Treatise (3d ed.2006):

| ^Insurance policies normally require that the bodily injury be “caused by accident.” Closely related is the requirement discussed in the next section that the bodily injury arise out of the ownership, maintenance, or use of the uninsured motor vehicle ...
On the other hand, the insured in Mangum v. Weigel [393 So.2d 871 (La.App. 4th Cir.1981) ] was involved in a minor accident in the French Quarter. The other driver emerged from his vehicle shouting obscenities at the insured, came to the insured’s vehicle, and repeatedly punched the insured in the face through the open window. He then opened the door and continued the assault, causing severe injuries. The UM insurer denied that the injuries were caused by accident or arose out of the use of an uninsured vehicle. The court held that the injuries, which resulted solely from the battery committed by the uninsured motorist, were not caused by accident. Redden was distinguished because there the injuries were sustained in escape from the vehicle. The court in Mangum also found that the incident did not arise out of the “use” of the uninsured vehicle. The holding on “use” appears to be the more valid distinction between Redden and Mangum. Otherwise, if determined from the innocent insured’s viewpoint, apparently any intentional assault which arose out of the use of an uninsured vehicle would be a covered accident.

As to uninsured motorist coverage, it is particularly appropriate to examine the occurrence from the viewpoint of the injured party rather than from that of the aggressor. While the injury may be intentionally inflicted by the aggressor, to the extent that the assault is unprovoked and/or unexpected from the injured person’s standpoint the damages are just as accidental as if he had been negligently struck. There is almost no reason to consider the accident from any viewpoint but that of the injured person, except in the event that the claimant provoked the assault, as in the instant case.

In the case sub judice, plaintiff, a passenger in the insured vehicle, was the initial aggressor. Shatara walked around the two vehicles to strike Latiffany. Shatara’s grievance was that Latiffany was engaged to the father | inof her sister’s child. Latif-fany, who was outraged, then used her car to assault Shatara who had by that time returned to her sister’s car.

In this case, both Shatara, the injured person/claimant and Latiffany, the one causing the injury, were aggressors and each was guilty of an intentional act against the other. The UM coverage viewed from the injured party’s standpoint shows both provocation and fault. Plaintiffs aggressive and intentional acts provoked and caused her own injuries. Under these circumstances this incident was not accidental.

Conclusion

For the reasons set forth above, we affirm.

AFFIRMED.

      . Latonya Harris, now Robinson, was initially a plaintiff in this suit. In response to USA-gencies' motion to dismiss plaintiffs’ May, 1, 2009, suspensive appeal for failure to pay costs, Latonya filed a motion to dismiss her claims against defendants with prejudice. The trial court granted the motion on March 17, 2010. Plaintiff, Shatara Harris, was granted pauper status and allowed to proceed with the appeal. Shatara is the only remaining plaintiff.


author: SEXTON, Judge Pro Tem.

text:
    Melanie GARDNER, Plaintiff-Appellant v. Mike CRAFT, et al., & The Stebbins Engineering and Manufacturing Company, Defendants-Appellees.
    No. 47,360-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    Rehearing Denied Nov. 8, 2012.
    Delphin Law Offices, APLC, by Mark A. Delphin, Lake Charles, LA, Arthur J. O’Keefe, Law Offices of Reed Morgan, PC, by Stephen Reed Morgan, for Appellant.
    Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Caldwell Roberts, Jr., The Stebbins Engineering and Manufacturing Co., for Appellee.
    Cook, Yancey, King & Galloway, by Herschel E. Richard, Jr., John C. Nickel-son, Jason Andrew Green, Shreveport, LA, Thomas C. Quinlen, for Int’l Paper Co. & Mike Craft.
    Before CARAWAY, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| ] Plaintiff, Melanie Gardner, appeals a summary judgment of the trial court in favor of Defendant, Stebbins Engineering and Manufacturing Company (“Stebbins”), dismissing with prejudice her claims against Stebbins. For the reasons stated herein, we affirm.

FACTS

Ms. Gardner is the widow of Toby Gardner, who worked at the Mansfield location of International Paper Company, Inc. (“IP”). On September 28, 2009, Mr. Gardner was repairing a valve on the platform surrounding the top of the linerboard white water tank/tile chest (“whitewater tank”) when he fell through the access opening and into the tank. Tanks such as the one at issue contain pressurized liquid kept at 150 degrees Fahrenheit, pulp fibers and debris. Mr. Gardner died within minutes. The record reflects that the access opening covers are not affixed to the tank and may become dislodged if the tank is overpressurized or overfilled, causing overflow of the liquid and debris onto the top of the tank. Photographs and testimony established that there was pulp debris accumulation around the access opening on the whitewater tank on the day of Mr. Gardner’s accident, indicating that the access opening cover may have been dislodged due to overflow at some point prior to his fall.

Ms. Gardner filed suit against Mike Craft, the manager of the Mansfield paper mill, IP and Stebbins. Stebbins designs and constructs cylindrical concrete tanks or tile chests that can hold cold or hot liquids, and, more than 20 years ago, it designed and manufactured part of the whitewater tank into which Mr. Gardner fell. Stebbins did not design or 12construct the access opening covers on the tanks. Stebbins also has a contractual arrangement with IP to inspect the structural integrity of tile chests at many of its locations worldwide. Ms. Gardner asserted that, through inspections at plants other than the Mansfield paper mill, Stebbins learned that some tile chests were being overpressurized and were overflowing. Ms. Gardner further alleged that this practice caused the access opening covers to become dislodged, presenting a hazard to IP employees working on the tanks, and that the knowledge of this hazardous practice created an obligation on the part of Stebbins to inform IP of the unsafe practice. It should be noted that Stebbins had no such inspection contract for the Mansfield paper mill.

Ms. Gardner took the corporate deposition of Stebbins and Joe Branch testified on its behalf. Mr. Branch conducted the inspections of the tile chests at various IP locations. The whitewater tank at issue at the Mansfield paper mill was not inspected by Stebbins prior to Mr. Gardner’s accident. Mr. Branch testified that, usually, the inspections were requested after a plant had closed and inspections of operating tanks were limited to the structural integrity of the tank. Mr. Branch explained that he “inspect[s] the outside and interior of tile chests and tanks for the outward appearance of the condition of the tile, the cement or the concrete, and the reinforcing steel.” He stated that the inspections have nothing to do with operation of the tank. When he would note overfilling of the tanks, he would be concerned with “cracks or structural flaws that may have occurred from pressure or overpressure,” not with the practice of the plant in [ <¡overpressurizing the tank. Mr. Branch clearly stated that “[w]e’re not trained to operate the plant.”

Stebbins filed a motion for summary judgment arguing that Ms. Gardner’s design claim was perempted under La. R.S. 9:2772 and/or La. 9:5607. It further argued that it had not inspected the whitewater tank at the Mansfield paper mill and had no duty to IP or Mr. Gardner. The trial judge granted the motion, finding “no issue of an affirmative obligation on behalf of Stebbins at the Mansfield Plant. And that 9:2772 in addition to that, bars the claim after five years.” This appeal by Ms. Gardner ensued.

DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(B). The burden of proof on a motion for summary judgment remains with the movant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant is not required to negate all the essential elements of the adverse party’s claim, action or defense. Id. Rather, the movant need only 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. Samaha, supra. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and movant is entitled to summary judgment. See La. C.C.P. art. 966(C)(2).

It is undisputed that Stebbins’ design and construction of part of the whitewater tank at issue was completed and accepted by IP more than 20 years prior to Mr. Gardner’s accident. Stebbins performed no work on or inspection of the whitewater tank after November 28, 1980. La. R.S. 9:2772 provides a peremptive period of 5 years on design and construction claims. Accordingly, absent a showing of some other duty or obligation on the part of Stebbins in this case, all claims of Ms. Gardner against it are clearly perempted.

In a effort to survive peremption, Ms. Gardner argues that Stebbins’ inspections of the tile chests and alleged knowledge of the overfilling and overflowing of tile chests at IP plants, albeit in locations other than Mansfield, created a duty on the part of Stebbins to inform IP of the dangerous operation of the tanks by its employees. In other words, Ms. Gardner asserts that Stebbins assumed a duty to provide safety advice to IP due to its occasional observation and awareness of overpressurizing and overflowing tanks during its inspection of the structural integrity of the walls of the tile chests. We disagree.

In Bujol v. Entergy Services, Inc., 03-0492 (La.5/25/04), 922 So.2d 1113, the supreme court explained:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as |5necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
This common law doctrine has existed for centuries and has traditionally been used to impose liability upon an actor who has failed to exercise reasonable care when it undertook to perform a duty owed to a third party.

The Bujol court was faced with the question of whether a parent corporation had assumed a duty for the workplace safety of its subsidiary, the plaintiffs employer. The supreme court noted that, under Louisiana jurisprudence, “parties who voluntarily assume certain duties for work place safety must perform those duties in a reasonable and prudent manner.” Bujol, supra. In order to find such an assumed duty, the supreme court required “some proof of positive undertaking” for work place safety, stating that “neither mere concern with nor minimal contact about safety matters creates a duty to ensure a safe working environment for employees of a subsidiary corporation.” Bujol, supra, citing Muniz v. National Can Corp., 737 F.2d 145 (1st Cir.1984).

Here, there is no evidence that Stebbins positively undertook any obligation to ensure the safety of IP employees. To the contrary, the evidence conclusively establishes that the only obligation on the part of Stebbins was to inspect for structural integrity certain tanks as requested by RIP. Stebbins exhibited no concern for, or contact with, the operational safety of IP plants or, specifically, the tile chests. Bu-jol, supra; Muniz, supra. There simply is no basis in law for the creation or assumption of any duty on the part of Stebbins to ensure the safe operation of the IP tanks. The trial judge properly granted Stebbins’ motion for summary judgment.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of Stebbins Engineering and Manufacturing Company is affirmed. Costs of appeal are assessed to Plaintiff, Melanie Gardner.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, MOORE, LOLLEY & SEXTON (Pro Tempore), JJ.

Rehearing denied.


author: MOORE, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Richard Weyman MAFFETT, Appellant.
    No. 47,430-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    Rehearing Denied Oct. 30, 2012.

      DeVan Pardue, Springfield, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Jordan Bird, Assistant District Attorney, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

| Richard Weyman Maffett appeals his conviction and sentence arising from á no contest plea to driving while intoxicated, fourth or subsequent offense, La. R.S. 14:98 E. We affirm.

Factual and Procedural Background

The Shreveport Police Department received a service call on the evening of July 5, 2011, that a car had struck a utility pole several times on Sprague Street near Lawrence Street just west of downtown. Officer Nations arrived at the scene and could smell alcohol on the driver, Maffett. After receiving his Miranda rights, Maffett admitted driving the car and having drunk two cans of Miller Lite. Officer Nations took him to the police station, where Maf-fett’s Intoxilyzer reading was 0.169g%. Corporal Hicks arrested him for DWI, fifth offense.

At an initial appearance on July 8, the district court appointed the indigent defender’s office, which filed a motion for discovery. On September 1, the state charged Maffett by bill of information with DWI, fourth or subsequent offense, citing prior DWI convictions arising from guilty pleas to DWI in August 2007, December 2004 and September 2001. The state also provided, in response to discovery, copies of the arrest report and officer’s narrative, Maffett’s rap sheet and records proving the three prior DWI convictions.

At arraignment on September 8, the court set trial for November 14. Maffett told the court that he was not indigent but was unable to access money in a safe deposit box; he retained counsel in Livingston Parish who 12had to file a civil suit to get these funds. Counsel formally enrolled on November 9 and obtained a continuance of trial until December 5. Counsel also filed additional discovery motions; in response, the state revealed that it had a video recording of the arrest and an audiotape of the 911 call. The state provided a copy of the video but not the 911 tape; counsel filed a subpoena duces tecum to obtain this.

On the date set for trial, December 5, counsel advised the court that he had still not received the 911 tape. The court issued an instanter order allowing counsel to review the recording, but set trial for the next day, December 6. Counsel argued that the 911 tape revealed the name of the person who made the call, a fact not previously disclosed to the defense.

Before trial on December 6, counsel filed a motion to suppress Maffett’s post-Miranda confession on grounds that (1) the police report stated that Maffett admitted driving a vehicle, (2) his confession and ability to confess were disputed, and the video of the arrest and booking gave rise to a factual dispute that should be addressed at a hearing, and (3) he had retained an expert court reporter to transcribe the video and prepare a presentation in the interest of judicial economy “and to improve the accuracy of presentation to the court and/or jury.”

Action in the Trial Court

On the date of trial, December 6, counsel argued the motion to suppress, adding that the tape showed that no Miranda warnings were ever given. The court denied the motion, but stated that precisely the same issue would be addressed in the free-and-voluntary hearing. Counsel also moved for continuance, arguing that he could not get witnesses and prepare a | ^defense until he analyzed the 911 tape, which he received only the day before and would require several hours to transcribe. The court denied the continuance but stated it would reconsider on a new showing. The court then called a recess, during which counsel listened to the 911 tape.

After the recess, the state announced that the parties had reached an agreement whereby Maffett would plead no contest to DWI, fourth offense, in exchange for a sentence of 10 years, all but two years suspended, and probation. The court advised Maffett of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Maffett agreed that even though he maintained his innocence, there was considerable evidence against him, and weighing the advantages and disadvantages he had decided it was in his best interest to take the plea. The state then recited the factual basis for the plea; Maffett again denied those facts but confirmed the no contest plea.

The court found that the plea was free and voluntary, and that Maffett understood the nature of the proceedings against him. The court accepted the plea and imposed the agreed sentence of 10 years at hard labor, all but two years suspended, and five years’ probation with special conditions.

After sentence was pronounced, counsel stated that Maffett wished to “preserve all rights for anything after he reads the transcript.” The state did not object.

Maffett has appealed, raising two assignments of error.

Discussion: Motion to Continue

By his first assignment, Maffett urges the court erred in denying the motion to suppress and motion to continue when the state failed to produce | information requested by the defense in a timely manner. He argues that the video of the arrest created an issue of fact as to whether Maffett was even driving the car when it crashed into the pole, and the 911 tape contained the name of a witness unknown to the defense or the state until the date of trial. He shows that under La. C. Cr. P. art. 729.5, when a party fails to comply with discovery, the court may grant a continuance or prohibit the party from introducing into evidence the subject matter not disclosed; he also shows that the state did not object to a continuance. He concludes that the court abused its discretion in denying these motions.

The state responds that the trial court has great discretion in granting or denying a continuance, and its ruling will not be disturbed absent a showing of arbitrariness or abuse. State v. Sosa, 328 So.2d 889 (La.1976). The court had already granted one continuance and said that it would grant another “if there’s some other ground that comes up”; however, after listening to the 911 tape, Maffett obviously heard nothing to support reasserting the motion. The state suggests there was no abuse of discretion.

Ordinarily, a motion for continuance “shall be filed at least seven days prior to the commencement of trial.” La. C. Cr. P. art. 707. However, upon written motion “at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the best interest of justice.” Id. The decision to grant or deny a motion for continuance rests within the sound discretion of the trial court, and a reviewing court will not disturb a trial court’s determination absent a clear Mabuse of discretion. La. C. Cr. P. art. 712; State v. Harris, 2001-2730 (La.1/19/05), 892 So.2d 1238, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). Even when an abuse of discretion is shown, the supreme court typically declines to reverse a conviction based on denial of a continuance absent a showing of specific prejudice. State v. Harris, supra; State v. Hill, 46,-050 (La.App. 2 Cir. 4/20/11), 64 So.2d 801, writ denied, 2011-1078 (La.11/14/11), 75 So.3d 940.

La. C. Cr. P. art. 729.5 provides, in pertinent part:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter [discovery and inspection] or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

On close examination, we find no abuse of the district court’s great discretion. The court granted one motion to continue, noting that counsel had not enrolled until days before the first trial setting. When it came to the court’s attention on December 6 that the state had still not provided the 911 tape to defense counsel, the court issued an instanter order, with which the state complied, and called a recess during which counsel could listen to the tape. Both these options were reasonable under Art. 729.5. The court also stated that it would reconsider the continuance if new grounds were raised, but after hearing the tape counsel did not reassert the motion.

Counsel argued that the 911 tape disclosed the name of the 911 caller, but has not shown how the belated disclosure of this information prejudiced his defense, especially in light of the arrest video and other evidence. We 1 ñfind no specific prejudice. State v. Harris, supra; State v. Hill, supra. The district court could reasonably find that after viewing the belatedly disclosed evidence, Maffett and his counsel decided there was nothing therein that would support the motion to continue or the motion to suppress. We perceive no abuse of the court’s discretion. La. C. Cr. P. art. 712. This assignment lacks merit.

Validity of Plea

By his second assignment, Maffett urges the court erred in accepting his no contest plea. He contends that the Boykin colloquy proves that the plea was the result of the court’s wrongful denial of the motion to suppress, and hence was not knowing and voluntary. He shows that he advised the court that he did not agree with the factual basis provided by the state, but argues that the court failed to inquire into his understanding of the knowing and intelligent waiver of his rights, such as asking his “age, education, experience, background, competency and conduct of the accused, as well as the nature, complexity and seriousness of the charge.” State v. Strain, 585 So.2d 540 (La.1991). He concludes that this warrants vacating the plea and remanding the case for further proceedings.

The state responds that the court fully complied with the statutory requirements for accepting a no contest plea, La. C. Cr. P. art. 556.1, and did not abuse its discretion in finding the plea knowing and voluntary.

La. C. Cr. P. art. 556.1 provides, in pertinent part:

A. In a felony case, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
|7(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
B. In a felony case, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

The supreme court has held that State v. Strain, supra, did not establish inflexible criteria or “a magic word formula” for determining the voluntariness of a waiver. State v. Simmons, 2005-1462 (La.3/17/06), 924 So.2d 187; State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843. This is because the trial court is in the position to assess the extent of inquiry necessary to determine the knowing, intelligent and voluntary nature of the guilty plea. State v. Simmons, supra.

This record shows full compliance with Art. 556.1. The district court set forth the plea agreement, including the mandatory minimum sentence, which the parties agreed would be the sentence imposed; asked whether he |Rhad any confusion about what was happening or had been offered anything outside the plea agreement; whether he had been forced or threatened in any way; and advised him of his right to counsel, right to trial by jury, right to confront and cross-examine the witnesses against him, and right against self-incrimination. Admittedly, the court did not perform an intricate inquiry into Maffett’s age, education, and the other Strain factors. However, this was Maf-fett’s fourth time to plead guilty to DWI in Caddo Parish in the last 10 years, each time with the assistance of counsel; he cannot credibly argue that he failed to grasp the nature of the offense or the proceedings against him. We find no denial of his substantial rights. La. C. Cr. P. art. 556.1 E. We also find that the denial of his motions to continue and to suppress were not an abuse of the court’s discretion and thus did not amount to “force or threats or * * * promises” that would make the plea involuntary. La. C. Cr. P. art. 556.1 B. This assignment lacks merit.

Conclusion

We have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

BROWN, Chief Judge, concurs and assigns written reasons.

BROWN, Chief Judge,

concurring.

| iQn the eve of trial, retained defense attorney filed a Motion to Suppress. The trial court stated:

It’s denied. Number one. It’s not timely filed. You don’t file a Motion to Suppress on the eve of trial, and so I’m denying it. But I’m saying for the record, you’re going to get exactly the same thing in the Free and Voluntary Hearing. (Emphasis added).

Next, defense counsel complained about the 911 tape. He had a subpoena issued to the City Attorney for it. The court said, “Okay, then we will deal with getting the material for you. And I’ll give you a chance. If anything pops up on that (911 tape) when you look at it, (that) you need to address, then we’ll give you a chance to do that.” (Emphasis added). Defense counsel retired to listen to the 911 tape, which was produced by the City Attorney.

That afternoon they returned to court and announced that a deal had been struck. Defendant would enter a no eon-test/best interestJAlford plea with an agreed-to sentence — the minimum allowed under the statute. A nolo contendere plea waives the right to a trial, and the court is authorized to proceed as if the accused were guilty. While a nolo contendere plea is indisputably tantamount to a conviction, it is not necessarily tantamount to an admission of factual guilt.

The general rule is that a plea of guilty or nolo contendere, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea. A defendant normally waives any nonjurisdictional error by his plea of guilty or nolo contendere. “Under |2both state and federal jurisprudence, an unqualified plea of guilty waives all nonjurisdictional defects occurring prior thereto, and precludes review thereof either by appeal or by post-conviction remedy.” State v. Crosby, 338 So.2d 584, 588 (La.1976).

In State v. Mendenhall, 40,986 (La.App.2d Cir.02/07/07), 948 So.2d 1255, 1257, this court found that:

A guilty plea relieves the state of the burden of proving guilt and waives the defendant’s right to question the state’s case as well as appellate review of the case against the defendant. State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710. Specifically, a plea of guilty waives all nonjurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976); State v. Torres, 281 So.2d 451 (La.1973); State v. Taylor, 30,531 (La.App.2d Cir.05/13/98), 714 So.2d 143. Here, defendant failed to inquire as to the identity of the confidential informant before entering a guilty plea and failed to reserve his right to raise this issue on appeal under Crosby, supra. Accordingly, we conclude that Defendant waived any claim to this information ...

This is exactly what happened in the case sub judice. There was an unqualified plea and no reservation of rights.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, MOORE and HARRISON, JJ.

Rehearing denied.

MOORE, J., would not consider rehearing.

      . According to the rap sheet, Maffett also had DWI convictions arising from guilty pleas in August 1982, January 1996 and January 2005.

      . The state also suggests that Maffett did not fully comply with State v. Crosby, 338 So.2d 584 (La.1976), in that his reservation of rights "was inarguably vague and nonspecific,” but in the interest of judicial economy addresses both assignments as though properly reserved.