text:
    Michael STAMPS, Glenn Miller, Michael Chauvin, Billie Hartline and Randolph Doucet v. JEFFERSON PARISH ADMINISTRATION (Public Works-Sewerage).
    No. 09-CA-443.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Scott W. McQuaig, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Clement P. Donelon, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| .¿The Plaintiffs, Michael Stamps, Glenn Miller, Michael Chauvin, Billie Hartline and Randolph Doucet, appeal their suspensions without pay for violating the Jefferson Parish Workplace Harassment Policy, No. 2.02 (the harassment policy).

The Plaintiffs were suspended in November of 2007 as a result of displaying certain items in the office of the Jefferson Parish Department of Public Works-Sewerage (the Department) that were alleged to be of such a nature as to harass, harm, or offend the public and/or other employees. The items displayed were:

1)A large white rope with a knot and a running loop (rope).
2) A black whip (whip).
3) A sign that read: “Bill’s Whipping Post” (sign).
4) A dart board with a picture of a man holding a large yellow fin tuna.
5) A kicking device which was operated by pulling a rope which had a loop at the end of the rope.

Each of the Plaintiffs worked for the Parish of Jefferson in some capacity for over 20 years. During a period from six to fifteen years, the objectionable items were on display in the Department’s office. All of the Plaintiffs were aware that |sthe items were plainly visible to anyone who entered, and all were in supervisory positions during all or part of that time period.

In addition, the objects remained on display throughout a period of exacerbated racial tensions in Louisiana resulting from an incident in which three nooses were hung from a tree outside a high school in Jena, Louisiana. The Jena incident was the focus of national media attention during the summer and fall of 2007. Nevertheless, none of the Plaintiffs took any steps to have the objects in the Department removed.

None of the items in question were owned and/or placed in the office by any of the Plaintiffs. Although the office was visited over the years by other Jefferson Parish employees, supervisors, members of the administration, and the public, no one was instructed to remove the items from the workplace, no one ever complained about any of the items, and no one was warned that any of the respective items may be considered to be offensive by either a Jefferson Parish employee or member of the public.

In November of 2007, Terrance Lee filed a civil rights complaint of racial discrimination with the Federal Bureau of Investigation (FBI) regarding the five objects displayed in the Department. Lee had worked around the items and was aware of them existence for a number of years. In addition, Lee often filed grievances and/or complaints, and he took pictures of the items eighteen months prior to making his first complaint. He lodged the complaint after he was disciplined for other reasons.

|4The Jefferson Parish Administration and the Jefferson Parish Department of Human Resource Management first learned that the five objects were on display in the Department’s office on November 7, 2007 following the complaint made by Lee. At that time, the Parish Administration immediately ordered the objects to be removed.

On November 13, 2007, the Parish President appointed Tim Whitmer, Chief Administrative Assistant, to investigate the complaint filed by Lee and to serve as the Appointing Authority in regard to any disciplinary actions that needed to be taken as a result of Lee’s complaints of racial discrimination in the Department. Whit-mer asked the Chief Administrative Assistant, Darryl Ward, an African-American, to conduct the investigation. He commenced by going to the location where the objects were located, and later interviewing fifty-two past and present employees of the Department.

After the completion of that investigation and after conducting a pre-disciplinary hearing with each Plaintiff, Whitmer issued a Letter of Discipline (LOD) to the Plaintiffs. Whitmer found that the Plaintiffs ■violated the harassment policy and the Jefferson Parish Employee Regulations of Conduct (ROC). He found that the Plaintiffs, inter alia, allowed the five objects to remain on display for an extended period of time; failed to take appropriate steps to either remove the objects, or have the objects removed; failed to assist in the maintenance of a work place free of harassment; and failed to take appropriate steps to remove the open display of objects which could serve to offend and harass other employees.

Stamps, Hartline, and Miller were each suspended for thirty days without pay. Chauvin and Doucet were each suspended for twenty days without pay.

The Plaintiffs subsequently filed appeals with the Jefferson Parish Personnel Board (JPPB). The Personnel Board appointed a hearing officer to conduct the 1.¡¡hearings on the appeals. The Hearing Officer consolidated the appeals. He heard the appeals on five different days beginning in June of 2008 and ending in November of 2008.

On January 13, 2009, the Hearing Officer issued decisions reducing the suspensions. He found that the objects “were inappropriate to a workplace environment and should not have been in a Jefferson Parish Office, especially the darts, for the dart board.” The Hearing Officer found that all five Plaintiffs violated ROC. However, the Hearing Officer determined that “no harassment was intended and in fact, none occurred,” and as a result, the Hearing Officer determined that the Plaintiffs did not violate the Parish’s workplace harassment policy. Consequently, the Hearing Office reduced Hartline’s suspension from thirty to twenty days, Stamp’s and Miller’s suspensions were reduced from thirty to fifteen days, Doucet’s suspension was reduced from twenty to ten days, and Chauvin’s suspension was reduced from twenty to five days.

The Appointing Authority then appealed to the Jefferson Parish Personnel Board (JPPB) which issued a judgment on February 26, 2009. The JPPB reversed the decisions of the Hearing Officer, and reinstated the Appointing Authority’s suspensions. The JPPB stated in its ruling, “After reviewing the hearing transcripts, pleadings and the record, the Board has reached a unanimous decision in this matter that the Appellants violated the Jefferson Parish Workplace Harassment Policy as written, no intent being required, and the penalties imposed albeit harsh, are within the discretion of the Appointing Authority.”

The issues on appeal are whether the JPPB committed manifest error by reversing the decisions of the Hearing Officer; in failing to rescind the suspensions, substituting the suspensions with an appropriate letter of warning; and in failing to award the Plaintiffs back pay, attorney’s fees and costs. The Plaintiffs also assert 16that the JPPB erred by accepting or considering certain documents provided by the Hearing Officer with the Application for Review of the Hearing Officer’s decision that had not been introduced into the record, contrary to the JPPB Rules of Appeal Procedure and other applicable law.

The Plaintiffs first contend that the JPPB was manifestly erroneous in sustaining the suspensions.

The Plaintiffs argue that the Hearing Officer listened to five days of live testimony, considered the credibility of the witnesses, and correctly characterized the items and intent of the Plaintiffs. He described the rope with the large knot and running loop “as a lariat of the kind used to rope cattle,” and the whip “as a gift to Bill Hartline as a joke to go along with the whipping post.” He stated that the third item was “a dart board with a photograph of a man who had gone fishing with members of the Sewerage Department and darts.” The Hearing Officer concluded that this item was “a way of mocking the man in the photo who did not live up to his agreement to share the fish, but who took what must have been a bigger share with him at the conclusion of the trip.” The fourth item was a kicking mechanism, described as a device made to resemble the device Wyle E. Coyote used to punish himself when he would fail to capture the road runner in the popular cartoon “The Road Runner.” The Hearing Officer concluded that the items were intended to be humorous, not to harm or harass anyone. Thus, the Plaintiffs claim Appointing Authority failed its burden of proving that a violation of the Parish workplace policy had occurred, as no harassment was intended and in fact, no harassment had ever occurred.

The Plaintiffs note that the Hearing Officer made a specific reference to the fact that Lee took the photographs over an eighteen month period, and only filed a complaint after he was disciplined for other reasons.

|7The Plaintiffs further argue that it is uncontroverted that the items were neither owned by, nor placed in the office by any of the Plaintiffs. The kicking device was built fifteen to eighteen years prior to this litigation. The dart board was placed in the office after a fishing trip five to six years prior to this litigation. The whip, rope, and whipping post sign were assembled by prior employees of the Department years before, and Hartline, a Plaintiff here, was the brunt of that joke.

They also point out that the items were repeatedly mischaracterized and misrepresented by the media and the Appointing Authority. The Plaintiffs argue that the harsh reaction by the Parish to the discovery of these items was a knee-jerk reaction caused by the media, the NAACP, and the threat of litigation by the complaining employee, and did not result from an act or omission by the Plaintiffs. They argue that they received a severe discipline due to pressure from the events that had occurred in Jena, Louisiana involving the display of a noose at the high school, and the subsequent racial tensions there. Hence, the characterization of the rope in this case as a noose, when it was not intended to be anything other than a cattle rope, and the characterization of the face on the dart board as African American, when the face was actually of a Caucasian man. The Plaintiffs further note that the Appointing Authority failed to call Lee to testify at the hearing, and only presented the testimony of Ward, its investigator. Although Wai'd testified that he found the items offensive, he also incorrectly characterized the rope as a noose and another item as a gallows type device.

The Defendant argues that the Plaintiffs did violate the workplace harassment policy. It cites the testimony of Ward and the U.S. Equal Employment Opportunity Commission (EEOC) determination that there was reasonable cause to believe that the presence of the rope and other objects on display in the Department were racially offensive and constituted a violation of Title VII.

|sThe documents submitted by the Defendant in its application for review of the Hearing Officer’s decisions contained the five decisions of the Hearing Officer, a copy of the Parish workplace harassment policy, a copy of the EEOC Determination, and photographs of the rope and whip, all of which were introduced into evidence. The items that were not entered into evidence at the hearing were: a one page transcript of comments made by the hearing officer at a disciplinary hearing involving Lee on May 13, 2008; an article in the New Orleans, Louisiana newspaper, the Times-Picayune (T-P) dated May 14 2008 that quoted those comments; and one page from Ward’s testimony at the hearing. According to the hearing officer’s comments made after Lee’s disciplinary hearing, Lee complained in his testimony that the Defendant was retaliating against him for complaining about the objects at issue here. The hearing officer at that time described the items differently than in the 2009 decisions and stated that Lee was upset every time he saw them.

The Jefferson Parish Personnel Rules (the Rules), Rule II, Section 8.1 grants to the JPPB the authority to hear and decide all removal and other actions appealable under the Rules.

A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). St. Pe’ v. Jefferson Parish Dept. of Public Works-Drainage Pump Stations, 06-779, p. 3 (La.App. 5 Cir. 3/13/07), 956 So.2d 623, 625; Adams v. Jefferson Parish Department of Community Action Programs, 02-1090, p. 4 (La. App. 5 Cir. 4/29/2003), 845 So.2d 1147, 1150; Lewis v. Jefferson Parish Dept. of Public Works, 99-16, p. 4 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, 559, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215. Cause is synonymous with legal cause, and legal cause is when the employee impairs the efficiency of the public service. St. Pe’ 06-779 at 3, 956 So.2d at 625; Bruno v. Jefferson Parish Library Dept., 04-504, p. 7 (La.App. 5 Cir. 11/30/04), 890 So.2d 604, 608.

The appointing authority bears the burden of proving legal cause. St. Pe’ 06-779 at 3, 956 So.2d at 625; Adams, 02-1090 at 4, 845 So.2d at 1150; Lewis, 99-16 at 4, 761 So.2d at 559. In addition, the personnel board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. St. Pe’ 06-779 at 3, 956 So.2d at 625; Bruno, 04-504 at 7, 890 So.2d at 608.

On appeal, this Court applies the clearly wrong or manifest error rule. St. Pe’, 06-779 at 3, 956 So.2d at 625; Lewis, 99-16 at 4, 761So.2d at 560. For a review of an administrative disciplinary decision, the appellate court is limited to a determination of whether the decision was made in good faith for legal cause. Unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. St. Pe’ 06-779 at 3, 956 So.2d at 625; Lewis, 99-16 at 4, 761 So.2d at 560.

The ROC provides in pertinent part that “Each employee, because of his job and assignment, has to perform certain duties and assume responsibilities. An employee’s failure in either or both of these areas is neglect of duty.” ROC, Section 3.14, Neglect of Duty.

The Appointing Authority also disciplined the Plaintiffs for violating Section 7.03 of the ROC which lists, inter alia, the following as prohibited conduct and grounds for disciplinary action:

2. Engaging in fighting, horseplay, scuffling, practical joldng, pushing, shoving ... or other such disruptive and non-productive behavior.
[ )06. Threatening, intimidating, coercing, distracting, causing confusion, shouting, or in any way interfering with work of fellow employees.
12. Insubordination or refusing to obey orders.
16. Committing any act to discredit, disrupt, or prejudice of the Parish; violating any laws, rules, or regulations of the nation, state, parish, or other competent jurisdiction; conviction of a felony offense while employed.
18. Violation of “Sexual Harassment,” “Harassment,” “EEO”, and/or “Violence in the Workplace Policies”.
19. Unsatisfactory job performance; violation of “Employee Duty Expectations.”

Jefferson Parish adopted the workplace harassment policy in recognition of its legal responsibility to prevent the creation of a hostile, and/or racially insensitive and/or racially provocative workplace environment.

The workplace harassment policy provides that “it is the intent of the Jefferson Parish Government to provide and maintain a workplace free of all types and forms of harassment, including but not limited to harassment based on disability, national origin, age, race, color, religion or gender.” Paragraph II, Policy. That section further states that the employee is prohibited from “... conduct that harasses, denigrates, shows hostility, insults or involves offending acts such as epithets, slurs, negative stereotyping, threatening behavior, public humiliation, or posting, distributing, creating, or displaying written or graphic materials which serve to offend and harass an individual or group of individuals.”

The objectives of the workplace harassment policy include providing a workplace which is conducive to efficient, productive public service and to ensure that employees do not have to endure harassment. Paragraph III, Policy Objectives. All employees, including supervisors, are responsible for promoting a workplace free of harassment and complying with the policy. Paragraph IV, Policy Scope, and Paragraph V, A., Supervisor Responsibility.

| n Supervisors under the Policy must assist in maintaining a workplace free of harassment, including periodically inspecting work locations and facilities on a regular basis to insure that no offensive materials are posted or displayed. Paragraph V, A, Supervisor Responsibility.

The evidence shows that all of the Plaintiffs worked in supervisory capacities while the items were displayed. They were aware of and received training about the harassment policy. Stamps testified that the policy was usually discussed in staff meetings. The other four Plaintiffs received copies of and signed a receipt for the harassment policy and ROC.

In McGinest v. GTE Service Corp., 360 F.3d 1103, 1115 (9th Cir.2004), cert. denied, 552 U.S. 1180, 128 S.Ct. 1226, 170 L.Ed.2d 61 (2008), the Court held that allegations of a racially hostile workplace must be assessed from the perspective of a reasonable person belonging to the racial group of the complainant.

In this case, Ward testified that the fifty-two past and present employees he interviewed indicated that there was no racial intent in displaying the objects or allowing them to remain in the office, although one or two said they complained verbally to their supervisors. Nevertheless, Ward testified he was offended, particularly by the whip, and the rope which he perceived as a noose. Ward is the Chief Administrative Assistant, and his testimony was credible. His opinion indicates that the items were at the very least potentially offensive to reasonable African-Americans. That conclusion is supported by the reasonable cause determination issued by the EEOC, which also found the items racially offensive. After hearing this testimony, Stamps and Miller conceded that the rope and the whip had the potential to be racially insensitive or racially provocative.

Based on this evidence, we find that the Plaintiffs violated the ROC and the workplace harassment policy by failing to remove the objectionable items, have | l2them removed, or report their existence to the appropriate authority, if there had been resistance to their removal. The fact that the items had been there for a long time, or that the Plaintiffs did not consider the items to be anything other than jokes on each other is irrelevant. It is the perception of the observer that determines whether an act or display is legally considered harassment. The perception here is that the items were racially offensive.

In regard to the JPPB’s consideration of Lee’s transcript from his hearing and the T-P article that were not part of the record, there is sufficient evidence to support the decision of the JPPB without consideration of those documents. Furthermore, the JPPB had the right to consider all of the evidence produced at the hearing, including the copy of Ward’s testimony. The JPPB is authorized to review the entire record to determine whether the Healing Officer erred in his decisions. See St. Pe’, 06-779 at 3, 956 So.2d at 625; Lewis, 99-16 at 4, 761 So.2d at 560. In addition, the Board also based its decision on the fact that no intent is necessary to find a violation. We agree that no intent is required in order for an employee to violate the harassment policy.

Consequently, we find no manifest error in the decision by JPPB finding that the Plaintiffs violated the harassment policy.

The Plaintiffs further argued that the suspensions were excessive in light of facts, and that they were harsh, as they were suspended without pay near the Christmas holidays.

The JPPB recognized that the penalties imposed by the Appointing Authority were harsh. However, the Plaintiffs allowed the items to be displayed for many years, even during a period of racial tension. The Plaintiffs’ insensitivity to the possible misinterpretation of the meaning of the display, combined with their positions of authority, warrants the penalties imposed. Thus, we find that the JPPB he,did not err in failing to reverse the suspensions, or reduce the length of the suspensions.

Accordingly, we hereby affirm the decision of the Jefferson Parish Personnel Board.

AFFIRMED.

      . Policy No. 2.02 was promulgated in 1996 by the Jefferson Parish President in a document entitled Administrative Management Policy Memorandum.

      . Stamps has been the Assistant Director since 1998. Miller was a Superintendent II from 2003 to 2006 when he was promoted to General Superintendent of Lift Stations. Hartline was Sewerage Maintenance Foreman from 1999 until he was promoted in 2003 to Sewerage Lift Station Superintendent II. Chauvin has been a Foreman I since 2003. He reports to Hartline. During the relevant time period, Chauvin was the immediate supervisor of four laborers who worked in the Department, including Terrance Lee, an African-American, the complainant in this case. Doucet was a Sewerage Lift Station Superintendent II from 1997 to July of 2003. All, except Stamps worked in or near the office containing the items in plain view, and Stamps went into the office regularly.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge. WICKER, J.,

license: Public Domain

text:
    Frederick GONZALES v. BUILD-A-BEAR WORKSHOP, INC. and Zurich North American Insurance Company.
    No. 09-CA-368.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Joseph G. Albe, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Richard L. Seelman, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS
   WALTER J. ROTHSCHILD, Judge.

|2In this suit for personal injuries, defendant appeals from a default judgment rendered in plaintiffs favor. The issue presented is whether the evidence introduced by the plaintiff, Frederick Gonzales, against defendant HA Logistics to confirm the default judgment was sufficient to establish a prima facie case under La. C.C.P. art. 1702. After reviewing the record and the applicable law, we find that the plaintiff failed to sustain his burden of proof for confirmation of the default judgment and we therefore must vacate the judgment and remand for further proceedings consistent herewith.

Factual and Procedural History

On March 10, 2005, Frederick Gonzales, an employee of Sundown Express, Inc., filed the instant petition for damages against Build-A-Bear Workshop, Inc. (“Build-A-Bear”) and its insurer for injuries he sustained while delivering a bale of cotton to defendant’s location at Lakeside Shopping Center in Metairie, Louisiana. Build-A-Bear subsequently filed an answer denying the allegations of the petition. Thereafter, the workers’ lacompensation insurer for Sundown Express, Inc. filed a petition to intervene in the proceedings for benefits paid to Gonzales as a result of his injuries.

Discovery proceeded in this matter, and on June 18, 2008, defendant Build-A-Bear filed a third party demand against HA Logistics, Inc. based on a contract between the two entities regarding the movement of supplies for Build-A-Bear’s business. Build-A-Bear asserted it was entitled to a defense and indemnity from HA Logistics for plaintiffs claim for personal injury pursuant to the terms of this contract. A copy of the agreement between the parties was attached to the third party demand.

On June 23, 2008, plaintiff filed a Supplemental and Amending Petition naming as defendant “HA Longistics, Inc.” “HA Longistics, Inc.” was served via certified mail pursuant to the Long Arm Statute on July 12, 2008. No answer was filed on behalf of this defendant, and the trial court entered a preliminary default on August 12, 2008. However, this default was subsequently vacated by the trial court as “HA Longistics, Inc.” was not the proper defendant in these proceedings.

The record also contains a Joint Motion for Partial Dismissal which was signed by the trial court on November 6, 2008 indicating that the claims between plaintiff and Build-A-Bear were settled and dismissing those claims, but reserving plaintiffs rights to proceed against HA Logistics, Inc.

On November 18, 2008, plaintiff filed a 2nd Supplemental and Amending Petition correctly naming HA Logistics, Inc. as defendant in the main demand. This defendant was served at its corporate address via certified mail pursuant to the Long Arm Statute on December 1, 2008, and no answer was filed on behalf of this defendant. The trial court entered a preliminary default against HA Logistics, Inc. on January 22, 2008. On |4January 29, 2009, the trial court confirmed the prelimi-nai’y default and entered judgment against defendant, HA Logistics, Inc. in the amount of $211,384.65, together with costs and judicial interest from March 10, 2005.

HA Logistics, Inc. now appeals from this judgment on the basis of several assignments of error: that the trial court erred in finding plaintiff met his burden to establish a prima facie case pursuant to La. C.C.P. art. 1702; that the trial court erred in failing to quantify comparative fault of all parties prior to entering judgment; that the trial court erred in holding that judicial interest ran from the date of the original demand. Because we find merit in defendant’s first assignment of error which requires us to vacate the judgment, it is unnecessary to reach the remaining assignments.

Applicable Law

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702 A. For a plaintiff to obtain a default judgment, he must establish the elements of a prim,a facie case with competent evidence, as fully as though the defendant denied each of the allegations in the petition. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280, writ denied, 01-1035 (La.6/1/01) 793 So.2d 196, citing Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of |fithe case, require additional evidence in the form of oral testimony before entering judgment. La. C.C.P. art. 1702(B)(2). When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. La. C.C.P. art. 1702(D).

Standard of review

The determination of whether there is sufficient proof to support a default judgment is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Ledet v. Moe, 03-745 (La.App. 5 Cir. 12/9/03), 864 So.2d 643, 644. Where it is uncontested that entry of the default judgment was procedurally proper, appellate review is limited to determining whether there was sufficient evidence introduced at the default confirmation hearing to support the default judgment. Akerman v. Dawes, 94-757 (La.App. 4 Cir. 1/19/95), 658 So.2d 1270, 1271-1272.

Prima Facie Case

In its first assignment of error, HA Logistics argues that plaintiff did not present a prima facie case of liability or damages, citing La. C.C.P. art. 1702. While we pretermit the issue of whether the evidence submitted by plaintiff with regard to liability is sufficient to prove a prima facie case, we find the medical evidence to be insufficient to meet plaintiffs burden.

At the confirmation hearing, plaintiff submitted the following: excerpts from depositions of the corporate representatives of Build-A-Bear and Sundown Express, Inc., a copy of an agreement between HA Logistics and Build-A-Bear, plaintiffs wage records, certified copies of plaintiffs medical records and plaintiffs own testimony regarding the accident and his injuries.

11,Plaintiff testified that at the time of the accident herein, he was employed by Sundown Express, Inc. and was making a delivery to Build-A-Bear location in Lakeside Shopping Center. He identified his wage records and stated that he was paid based upon the number of and weight of deliveries he made every day. He stated that the cotton bale he was delivering to Build-A-Bear on the date in question weighed approximately 700 pounds. During this delivery, Build-A-Bear employees furnished him a furniture cart which was smaller than the cart usually used for this delivery and that the weight of the cotton broke the cart and the bale of cotton fell on top of him. Plaintiff was shown a copy of the agreement between HA Logistics, Inc. and Build-A-Bear and he testified he had never seen the agreement and no one had told him of the manner of making deliveries specified in the agreement. He testified he was not given training by HA Logistics on how to deliver the bales of cotton. He also testified that the bales of cotton did not arrive strapped onto a cart as indicated in the agreement.

Plaintiff briefly described the injury to his neck, the medical treatment he received, the amount of time he was out of work and his inability to continue to work as a delivery person. He also testified that he underwent surgery on his neck and described his level of pain as a result of this injury.

Plaintiff also submitted excerpts of the deposition testimony of two corporate representatives from Build-A-Bear. Julie Ann Phillips stated that she completed an accident report for plaintiffs injuries on March 16, 2004 and Jeffery Lynn Fullmer testified that Build-A-Bear entered into a contract with HA Logistics, Inc. in 2002 to deliver their products to their stores. Mr. Fullmer identified the contract in question as a true and correct copy and the 17contract was attached to his deposition. He stated that pursuant to the agreement, HA Logistics had the duty to communicate the method of delivery contained in the agreement to their independent contractors and failure to do so would be considered a violation of the agreement.

We first consider the issue of whether the medical evidence submitted by plaintiff is sufficient to meet his burden of establishing a prima facie case. To obtain a default judgment, one must establish the elements of a prima facie case with competent evidence as fully as though the defendant denied each of the allegations of the petition. Ventola v. Hall, 03-703 (La.App. 5 Cir. 11/12/03), 861 So.2d 677. In a claim for personal injuries, La. C.C.P. art. 1702(D) states that “a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.”

None of plaintiffs treating physicians testified in this personal injury case and there were no sworn narrative reports offered in lieu of testimony. The medical records offered into evidence include certified copies of medical bills and statements, pharmacy receipts, health insurance claims, physician progress notes, letters and reports and operating room reports. The only reference to causation in these records is contained in a letter from Dr. Stewart Altman to an insurer dated March 29, 2004, several weeks after the accident, that plaintiffs symptoms of mild spine and shoulder strain are causally related to the accident.

Plaintiff contends that it is not necessary to introduce either testimony or sworn narrative reports of his treating physicians to meet his burden of proof under La. C.C.P. art. 1702(D). Plaintiff relies on Oliver v. Cal Dive Intern., Inc., 02-1122 (La.App. 1 Cir. 4/2/03), 844 So.2d 942, 945, writ denied, 03-1230 (La.9/19/03), 858 So.2d 638 and writ denied, 03-1796 (La.9/19/03),8 853 So.2d 648, in which the First Circuit held that a physician’s letters in the medical records that plaintiff could no longer continue in his profession were sufficient to establish prima facie proof of the treating physician’s professional diagnosis. Plaintiff also relies on Arias v. Stolthaven New Orleans L.L.C., 07-650 (La. App 4 Cir. 3/19/08), 980 So.2d 791, 803, reversed on other grounds, 9 So.3d 815 (La.5/5/09), 08-1111, in which the Fourth Circuit adopted the ruling in Oliver and held that a prima facie case concerning medical issues may be made for default purposes under La. C.C.P. art. 1702(B)(2) without either oral physician testimony or a sworn narrative report thereof, depending on the quality of the evidence offered. In that case, the Court found that the trial court committed no error in receiving the certified medical records offered by the plaintiffs in support of the default confirmation.

Although other jurisdictions have found that the lack of a sworn narrative report required by La. C.C.P. art. 1702 does not invalidate a default judgment rendered on other evidence, this Court has repeatedly held otherwise. A line of jurisprudence from this Circuit supports a conclusion that the medical evidence presented in this case does not meet plaintiffs burden of presenting a prima facie case. In a similar factual situation, a panel of this Court held that a sworn narrative report or testimony of plaintiffs treating physician is necessary to establish the causal connection between plaintiffs accident and her injuries. Dufrene v. Carter, 05-335 (La.App. 5 Cir. 11/29/05), 917 So.2d 1149, 1153. Further, this Court has held that physician’s letter reports do not comply with the requirements of La. C.C.P. art. 1702(D). Campbell v. Kendrick, 556 So.2d 140, 141 (La.App. 5 Cir.1990). The medical bills may be admissible to support the plaintiffs | testimony as to the fact that plaintiff had surgery and the costs incurred, but inadmissible to show the services were necessary. Id. See also, Ventola v. Hall, 03-703, (La.App. 5 Cir. 11/12/03), 861 So.2d 677, 681; Arias v. State Farm Mut. Auto. Ins. Co., 98-978 (La.App. 5 Cir. 3/10/99), 734 So.2d 730.

We are bound to follow previous holdings from this Circuit that the type of evidence presented herein is insufficient to comply with the codal requirements for a default judgment. In the present case, we find that the evidence submitted by plaintiff with regard to causation and medical damages is not sufficient to prove a prima facie case. We conclude that plaintiff has failed to establish a prima facie case supporting the award of $211,384.65. Accordingly, we vacate and set aside the default judgment rendered in favor of plaintiff and we remand for further proceedings.

VACATED AND REMANDED

WICKER, J., concurs with reasons.

WICKER, J.,

concurs with reasons:

|,I agree that the judgment of the trial court should be vacated and that this case should be remanded for further proceedings. However, I respectfully disagree with the analysis of the majority opinion for two reasons.

First, I believe that certified medical records should be sufficient to establish a prima facie default judgment so long as the records are admissible and demonstrate both an injury and a causal link between the plaintiffs injuries and the accident at issue. The First, Third, and Fourth Circuit Courts of Appeal adhere to this rule. See Assamad v. Percy Square and Diamond Foods, L.L.C., 2007-1229 (La.App. 1 Cir. 7/29/08), 993 So.2d 644, 650; Bordelon v. Sayer, 2001-0717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235-36; Goldfinch v. United Cabs, Inc., 2008-1447 (La.App. 4 Cir. 5/13/09), 13 So.3d 1173, 1178. This Court does not.

The Fourth Circuit explicitly rejected our approach in Arias v. Stolthaven New Orleans, L.L.C., 2007-0650 (La.App. 4 Cir. 3/19/08), 980 So.2d 791, 801-02, rev’d on other grounds, 2008-1111 (La.5/5/09), 9 So.3d 815. The Arias court determined that the purpose of La. C.C.P. art. 1702(D) is to make it easier for a plaintiff to obtain a default, not to make the process more difficult by requiring sworn narrative reports rather than certified medical records. Arias, 980 So.2d at 802. The Fourth Circuit ^additionally noted that “there is nothing in [La. C.C.P. art. 1702(D) ], expressed or implied, saying that oral physician testimony or a sworn narrative report in lieu thereof is the sine qua non of a prima facie case for default purposes.” Id. at 803. I agree with this reasoning and believe that this Court should adopt the rule of the First, Third, and Fourth Circuits.

Second, I respectfully disagree with the majority’s conclusion that the plaintiffs certified medical records failed to establish causation. To establish a prima facie case for default judgment, a plaintiff must demonstrate the causal connection between his injuries and the accident by introducing competent evidence establishing that it is more probable than not that the accident at issue caused his injuries. Hall v. Folger Coffee Co., 2002-0920 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1248. If the plaintiff was in good health before the accident, but a disabling condition appeared and continuously manifested itself afterwards, causation should be presumed. Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

Here, the plaintiff submitted certified medical records documenting his injuries and the medical treatment he received following the accident. Dr. Altman’s certified medical report indicates he found a causal link between the plaintiffs injuries and the nature of the accident. Dr. Altman in his report concluded that the type of injuries suffered by the plaintiff, including strains in the cervical spine, right shoulder, thoracic spine, and lumbar spine, were consistent with the type of accident that occurred. At the hearing on the default judgment, the plaintiffs counsel did not ask the plaintiff whether he experienced shoulder and neck pain before the accident. However, the history portion of the plaintiffs certified medical records with Dr. Richard Hages indicates that the plaintiff had never previously injured his neck or back prior to this incident. In addition, Dr. Bradley ^Bartholomew drafted an office note on August 30, 2007 indicating that the plaintiff denied any previous medical history on his neck or back. Dr. Hages treated the plaintiff in 2006 and 2007. Dr. Bartholomew treated and performed surgery on the plaintiff in 2008. After considering both the presumption favoring causation and the manifest error standard of review, I believe this Court should defer to the trial court’s finding of causation in this case.

Nonetheless, I concur in the disposition of this matter because I believe that the trial court erred in admitting into evidence a deposition of Build-A-Bear’s corporate representative and a deposition of Build-A-Bear employee Julie Ann Phillips. Both depositions were taken before HA Logistics was made a party to this suit. Under Louisiana law, depositions “may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.” La. C.C.P. art. 1450(A). To satisfy the reasonable notice requirement, the party desiring to take the deposition must notify every other party to the action before taking the deposition. La. C.C.P. art. 1438. Here, HA received no notice of the depositions because it had not been made a party to the suit at the time the depositions were taken. Accordingly, I believe that the trial court was manifestly erroneous in admitting deposition testimony taken prior to HA’s involvement in this suit. See by analogy Silva v. Allen 256 So.2d 447 (La.App. 4th Cir.1972) (holding that a deposition of the defendant was inadmissible against a co-defendant because the plaintiff deposed the defendant prior to adding the co-defendant to the lawsuit); Davlin v. Smalley, 554 So.2d 763 (La.App. 3d Cir.1989) (holding that a deposition was inadmissible against the appellants when the record demonstrated that |4appellants were not present at the deposition and appellants received no advance notice thereof).

For the foregoing reasons, I respectfully concur.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Stacy Cambre ENGLISH v. Donald Lawrence ENGLISH.
    No. 09-CA-214.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Lila M. Samuel, George Read Coleman, Attorneys at Law, Gretna, LA, for Plain-tiffiAppellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2Plaintiff, Stacy Cambre English (hereinafter referred to as “Stacy”), appeals the trial court’s judgment denying her claim against defendant, Donald English (hereinafter referred to as “Donald”), for final periodic spousal support. For the reasons which follow, we reverse the trial court judgment and remand this matter for further proceedings.

STATEMENT OF THE CASE

The parties, Stacy and Donald, were married on August 30, 1994. On June 24, 2005, Stacy filed a petition for divorce and, on July 21, 2006, a judgment of divorce was rendered. On June 16, 2006, Stacy filed a pleading in the trial court seeking relief on several issues and asking the trial court to award her final periodic spousal support, claiming that she is free from fault in the break-up of the marriage and that she has insufficient income or means to support herself. On November 5, 2007, Stacy filed a “Rule/Petition to Reset Final Spousal Support and Rule to Set Trial for Determination of Fault,” in which she stated that she had been receiving a $930.59 monthly benefit from Donald’s retirement pension, but Donald returned to work at the Jefferson Parish Sheriffs Office so she was no longer receiving this benefit. Accordingly, she asked the court to order Donald to pay her final periodic spousal support in the amount that she had been receiving from the pension.

|sThe parties appeared before the trial court on April 25, 2008 for a fault trial relative to the issue of final spousal support. At the conclusion of trial, the trial judge took the matter under advisement. On May 15, 2008, the trial judge rendered a judgment finding that Stacy is not entitled to final periodic spousal support, because although she was not at fault in the break-up of the marriage, she did not show that she was in need of support. Stacy appeals.

DISCUSSION

On appeal, Stacy contends that the trial judge abused her discretion in making a determination as to Stacy’s need of support, because the only issue before the court at the trial was whether or not Stacy was at fault in the break-up of the marriage. We agree.

At the beginning of the trial, the trial judge stated:

We have decided to hear fault first; is that correct?

Counsel for Stacy answered affirmatively and there was no objection or other clarification by counsel for Donald. Thereafter, there were several instances indicating that fault was the sole issue to be considered at this trial. During cross-examination of Stacy, Donald’s counsel began questioning Stacy about her work hours and indicated to the trial judge that she was attempting to demonstrate that Stacy did not make $11,000 to $12,000 per year. Counsel for Stacy stated:

Your Honor, my understanding was we were having a fault hearing. I didn’t put on the financial. I mean, we can go there but I think you have to have the fault hearing before you send us back to Carl to compute the numbers.

The trial judge replied:

Yes, let’s handle fault at this time. I toon’t allow the question right now but preserve that question.

|4Later in the proceeding, Donald’s counsel questioned Stacy about the parties’ daughter, Kayla, and Stacy’s counsel objected. The trial judge stated:

We’re not going to talk about Kayla. Let’s talk about fault. Objection sustained. Otherwise, we’ll be here until tonight.

Thereafter, when Stacy’s counsel questioned Donald about why he returned to work, his counsel objected as follows:

Your Honor, I’m going to object because that’s beyond the fault and that’s also beyond the date of the filing of the divorce.

Finally, when Stacy’s counsel questioned Donald regarding his payment of child support to his previous wife, his counsel objected as follows:

Your Honor, I’m going to object to the relevance unless that’s considered for the breakup of the marriage. I don’t think that’s been an allegation.

In a proceeding for divorce or thereafter, the trial court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. LSA-C.C. art. 111. Fault is a threshold issue in a claim for spousal support. Hutson v. Hutson, 39,901, p. 8 (La.App. 2 Cir. 8/9/05), 908 So.2d 1231, 1236. The initial consideration in determining if a claimant is entitled to permanent spousal support is whether he or she is free from fault in causing the breakup of the marriage and, once the lack of fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. Ardoin v. Ardoin, 06-245, p. 3 (La.App. 3 Cir. 6/28/06), 934 So.2d 253, 255, writ denied, 06-1925 (La.11/3/06), 940 So.2d 667. The burden of proof is on the claimant seeking final periodic support to show that he/she is without fault. Adkins v. Adkins, 42,076, p. 2 (La.App. 2 Cir. 4/11/07), 954 So.2d 920, 922.

The record before us clearly shows that the only issue before the trial court on April 25, 2008 was whether or not Stacy was at fault in the breakup of the | .^marriage. Even the trial court’s judgment, dated May 15, 2008, reads: “[t]his matter came for hearing on April 25, 2008, for a fault trial relative to the issue of final periodic spousal support.” (Emphasis added.) Although the trial judge indicated that she considered the relevant factors under LSA-C.C. art. 112 and there was some testimony regarding Stacy’s income, the entire transcript reveals that whether or not Stacy was in need of final periodic spousal support and the factors in LSA-C.C. art. 112(B) were not fully addressed or at issue. The sole issue before the trial court was the threshold issue of whether or not Stacy was at fault in the break-up of the marriage.

In Arcuri v. Arcuri, 94-1027 (La.App. 1 Cir. 11/10/94), 646 So.2d 1017, the trial judge indicated that the only issue being addressed and considered at a hearing was whether the mother would be allowed to relocate with the children to another state. However, after the hearing, the trial judge ruled that not only could the mother relocate with the children, but also she was awarded sole custody of the children. The father appealed, arguing that the trial judge erred in adjudicating the issue of custody when that issue was not properly before the Court. Although there was obviously some testimony that was pertinent to the issue of custody, the First Circuit reversed the trial judge’s award of sole custody to the mother and remanded the case, finding that the father was deprived of a meaningful contradictory hearing |fion the custody issue by the trial court’s statement at the beginning of the hearing that the sole issue to be decided was whether the mother would be permitted to leave the state with the children. Arcuri, 94-1027 at 5, 646 So.2d at 1019.

In the present case, because the record clearly shows that the only issue before the trial judge was whether or not Stacy was at fault in the breakup of the marriage, we find that the trial judge erred in also deciding that Stacy was not in need of support. Although some of the testimony was pertinent to the issue of need of support, Stacy was not afforded a meaningful contradictory hearing on the issue of need of support because the record shows that the trial judge and counsel for each party were aware that fault was the only issue to be addressed.

DECREE

For the foregoing reasons, the decision of the trial court finding that Stacy is not entitled to final periodic spousal support because she did not show that she was in need of support is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . We note that although the trial judge found that Stacy was not in need of support, on January 7, 2009, the trial judge granted Stacy's request to prosecute or defend this litiga-lion without paying costs or in forma pauper-is.

      . Donald did not file an appellee brief with this Court.

      . LSA-C.C. art. 112 provides:
      A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
      B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
      1. The income and means of the parties, including the liquidity of such means.
      2. The financial obligations of the parties.
      3. The earning capacity of the parties.
      4. The effect of custody of children upon a party's earning capacity.
      5. The time necessary for the claimant to acquire appropriate education, training, or employment.
      6. The health and age of the parties.
      7. The duration of the marriage.
      8. The tax consequences to either or both parties.
      C. The sum awarded under this Article shall not exceed one-third of the obligor's net income.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Edward McMILLAN.
    No. 09-KA-415.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12This is a criminal proceeding in which the defendant/appellant Edward McMillan seeks an appeal of his conviction for possession of cocaine with intent to distribute. The defendant assigns as error the trial court’s denial of a motion to suppress. The defendant also contends that the trial court erred by allowing testimony of his previous conviction for possession of cocaine. For the reasons that follow, we affirm the defendant’s possession of cocaine conviction. We additionally vacate the defendant’s enhanced sentence and remand this matter for resentencing.

PROCEDURAL HISTORY

By bill of information, the state charged the defendant with one count of possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). The defendant pleaded not guilty at arraignment and filed a motion to suppress the evidence. The trial court denied a motion to suppress after a hearing.

IsAfter a two-day jury trial, the defendant was found guilty as charged. The trial court sentenced the defendant to a term of imprisonment of fifteen years at hard labor. The trial court thereafter denied the defendant’s motion for new trial after a contradictory hearing. The state subsequently filed a multiple bill of information alleging that the defendant was a second felony offender. The state thereafter amended the multiple offender bill of information to allege that the defendant was a second felony offender. The defendant then stipulated that he had previously been convicted of the predicate felony as stated in the multiple bill and pleaded guilty to the multiple bill. The trial court thereafter imposed an enhanced sentence of 20 years at hard labor without benefit of probation or suspension of sentence. This timely appeal followed.

FACTS

The following facts were developed from the hearing on the defendant’s motion to suppress and at trial. On April 11, 2007, Detective Elvan Módica of the Jefferson Parish Sheriffs Office and several other police officers were on patrol in the Bunche Village area of Jefferson Parish. According to Detective Módica, Bunche Village is a high crime area known for drug activity. At approximately 1:15 AM, Detective Módica was driving an unmarked black Ford Explorer with his partner, Sergeant Todd Vignes. Detective Módica and Sergeant Vignes were patrolling on North Elm Street. Detective Mó-dica observed the defendant engage in a hand-to-hand transfer with a woman later identified as Elaine Lewis (“Lewis”). At the hearing on the motion to suppress, Módica explained that he saw Lewis reach her hand into the defendant’s hand and take an object out of his hand. Lewis then looked at the object for a second, put the object in her pocket, and walked away. Detective Módica believed that the defendant and Lewis had just engaged in a drug transaction. However, Detective Módica did not witness |4any money changing hands. In addition, Vignes did not observe the transaction.

The man and the woman began to walk towards Detective Modica’s vehicle. Detective Módica radioed for backup. Detective Sean Cursain responded to the call. As Detective Cursain approached Detective Modica’s vehicle, he saw the defendant and Lewis walking towards the street where Detective Módica was parked. Detective Cursain was also driving an unmarked vehicle, but he had a flashing blue light in the dashboard of his vehicle. As soon as Detective Cursain made eye contact with the defendant, the defendant ran toward the apartment complex behind him. Lewis did not attempt to flee. She was detained and handcuffed to a chain link fence by Sergeant Curtis Matthews, Detective Cursain’s partner.

Detectives Módica and Cursain, along with Sergeant Vignes thei'eafter began to pursue the defendant. Detective Módica and Sergeant Vignes saw the defendant open a door to an apartment in the apartment complex. As the defendant opened the door, Detective Módica and Sergeant Vignes saw the defendant drop an object on the ground. The defendant then ran inside the apartment and locked the door. When Detective Módica reached the door, he was able to retrieve the object that the defendant dropped. The object was an off-white rock wrapped in plastic. Charles Kron, an expert in the field of drug identification and analysis, testified at trial that the rock dropped by the defendant tested positive for cocaine.

Detective Módica kicked the door of the apartment open and ran into the apartment alongside Sergeant Vignes. Sergeant Vignes examined the kitchen and a front bedroom. Detective Módica encountered the defendant in a rear bedroom. Detective Módica testified at trial that one of the windows in the bedroom was open. Detective Módica attempted to detain the defendant, but the defendant pushed him and the two men became engaged in a struggle. During the course of |ñthe struggle, Módica noticed that the defendant’s right hand was clinched and that plastic was protruding from the defendant’s hand. The defendant managed to break free from Modica’s grasp and throw a bag out of the window. At that time, Sergeant Vignes arrived and helped Detective Módi-ca handcuff and overpower the defendant.

After Detective Módica and Sergeant Vignes had secured the defendant, Detective Módica walked outside to retrieve the bag that the defendant had dropped out the window. Sergeant Vignes remained in the apartment and located the bag with his flashlight. Detective Módica was eventually able to retrieve the bag with Sergeant Vignes’s assistance. The bag contained 26 individually wrapped off-white rocks weighing approximately seven and a half grams. At trial, Charles Kron testified that the rocks tested positive for cocaine.

Detective Cursain asked Shamika Jolla (“Jolla”) for consent to search the apartment. Jolla was the lessee of the apartment and the mother of the defendant’s children. Jolla gave her consent and executed a Consent Search Form. While searching of the apartment, officers discovered one off-white rock on the floor of the bedroom where the defendant was apprehended. The rock later tested positive for cocaine.

FIRST ASSIGNMENT OF ERROR

The defendant contends that Detective Módica and Sergeant Vignes did not have reasonable suspicion sufficient to detain him. The defendant further contends that his actions were consistent with innocent, non-criminal behavior and were insufficient to provide the officer with the requisite reasonable suspicion for an investigatory stop. We disagree.

The Fourth Amendment to the United States Constitution and La. Const. Art. 1, § 5 protect individuals from unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988 (citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)).

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment’s warrant exceptions. See, e.g., State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The state has the burden of showing that one of the exceptions applies. See, e.g., State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259, 1262.

However, the right of law enforcement officers to stop and question a person where there is “reasonable suspicion” to believe that the person is committing, has committed, or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Duran, 96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2, 3, application dismissed, 97-1485 (La.1/9/98), 705 So.2d 1087.

La. C. Cr. P. art. 215.1 codified the United States Supreme Court’s requirements for a valid Terry stop and for any search incident to the stop. La. C. Cr. P. art. 215.1 provides in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

Terry stops require reasonable suspicion of criminal activity. The test for “reasonable suspicion” is whether the police officer had sufficient knowledge of |7the facts and circumstances to justify an infringement upon the individual’s right to be free from governmental interference. See, e.g., State v. Melancon, 03-514 (La.App. 5 Cir. 10/28/03), 860 So.2d 225, 228, writ denied, 03-3505 (La.4/23/04), 870 So.2d 297. “Reasonable suspicion” is something less than probable cause. See, e.g., State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidents of crime. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048. If the police officer did not have reasonable suspicion to conduct the investigatory stop, the stop is illegal and the evidence seized from it must be suppressed. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C. Cr. P. art. 703(D). The trial court’s decision to deny a Motion to Suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Bergman, 04-435, (La.App. 5 Cir. 10/12/04), 887 So.2d 127.

The issue in this case is whether Detective Módica and Sergeant Vignes had sufficient reasonable suspicion to stop the defendant. In several cases factually similar to the instant case, this Court has determined that police officers did have | ^sufficient reasonable suspicion. For example, in State v. Ayche, 07-753 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, the defendant was charged with one count of possession with intent to distribute cocaine. He assigned as error the trial judge’s denial of the motion to suppress the evidence. Two police officers observed the defendant and another man exchange an object in a hand-to-hand transaction. Id. at 1146. The transaction took place in a high crime area. The officers pulled up their unit a few feet from the two men, then exited the unit, walked toward the subjects, and identified themselves as police officers. Id. The two men immediately ran. The defendant discarded a clear plastic bag while running from the officers. Id. at 1146-47. One of the officers stopped to pick up the bag. The bag contained numerous rock-like objects, which later tested positive for crack cocaine. Id. at 1147. The trial court denied the motion to suppress. This Court affirmed, reasoning that “the experienced officers’ observation of an apparent drug deal in a high drug crime area followed by the defendant’s flight upon the approach of two police officers gave the police the requisite reasonable suspicion to pursue and detain him.” Id. at 1149. See also State v. Temple, 02-1895 (La.9/9/03), 854 So.2d 856, 861 (holding that reasonable suspicion for a stop was more than “looking nervous” and sitting on a porch in a “high crime area.”); State v. Fearheiley, 08-0307 (La.4/18/08), 979 So.2d 487, 489 (holding that a police officer’s observation of a apparent brief hand-to-hand transaction inside a vehicle gave rise to reasonable suspicion for an investigatory stop because the officer was not “required to turn a blind eye to the circumstances and ignore what two years of experience in narcotics investigations ... had taught him, that in the narcotics trade ‘when it’s done outside, it’s done very fast and from one hand to the next.’ ”).

The defendant contends that his position is supported by State v. Gagnon, 01-1302 (La.App. 5 Cir. 4/10/02), 817 So.2d 167. The defendant is correct in his |3assertion that in Gagnon, this Court determined that a police officer did not have the requisite reasonable suspicion to justify an investigatory stop. However, Gagnon is distinguishable from the instant case. In Gagnon, a police officer stopped the defendant solely to obtain his identity and to investigate a tip that a black male was selling narcotics at an apartment. The officer had not witnessed a hand-to-hand transaction. Id. at 170. We held that the officer did not have sufficient reasonable suspicion to detain the defendant because the officer was unsure of any criminal activity the defendant was committing and no evidence was presented that the area or the apartment complex was a known drug or high crime area. Id. at 171.

In the present case, testimony was presented that an experienced police officer observed the defendant in a high-crime, high-drug area in what appeared to be a hand-to-hand narcotics transaction. When the defendant observed police officers approach, he fled. We find that the officer’s observation of an apparent drug deal in a high drug crime area followed by the defendant’s flight upon the approach of police officers gave the police the requisite reasonable suspicion to pursue and detain him. The trial court was not manifestly erroneous in denying the defendant’s motion to suppress.

Accordingly, this assignment of error has no merit.

SECOND ASSIGNMENT OF ERROR

The defendant contends that the trial court erred in allowing the state to present evidence of his previous convictions based on the testimony of Elaine Lewis. Lewis testified at trial that she had known the defendant her entire life. Defense counsel asked Lewis if the defendant had ever offered to sell her cocaine. She responded, “I never ... I never known [the defendant] to sell crack cocaine.” Before defense counsel tendered the witness for cross-examination, counsel 110requested a bench conference. At the conference, counsel argued that the state should not be allowed to question Lewis about the defendant’s previous convictions. The trial court disagreed and allowed the prosecutor to ask Lewis about the defendant’s 1998 conviction for possession with intent to distribute cocaine.

A witness may be cross-examined on any matter relevant to any issue in the case. La. C.E. art. 611. However, La. C.E. art. 401 generally excludes the admission on cross examination of evidence of the defendant’s character or a trait of his character for the purpose of proving he acted in conformity therewith on the occasion in question. However, La. C.E. art. 404(A)(1) allows admission on cross-examination of evidence of a pertinent trait of a defendant’s character offered by the prosecution to rebut evidence of the defendant’s good character admitted by the defense during its case-in-chief. Under La. C.E. art. 405(A), a character witness may be cross-examined regarding relevant specific instances of conduct. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La.10/3/03), 855 So.2d 308

In State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, this Court held that the trial court did not err in allowing the state to introduce records of the defendant’s prior narcotics convictions during its cross-examination of a defense witness. On direct examination, the witness testified she had known the defendant for one and one-half years and that she had never known the defendant to sell narcotics. Id. at 715. Before beginning his cross-examination, the prosecutor requested a bench conference. The prosecutor told the judge that he believed defense counsel had opened the door to questions regarding the ^defendant's prior drug convictions. Id. The trial court agreed and allowed the state to question the defense witness about the defendant’s prior drug convictions and introduce into evidence certified copies of the defendant’s two prior convictions. Id. at 715-16. This Court concluded that questions regarding the defendant’s past drug convictions were proper because the defense counsel opened the door to such rebuttal questioning when he asked the defense witness whether she knew the defendant to be a drug dealer. Id. at 716.

Similarly, in State v. Hurst, 01-1817 (La.App. 4 Cir. 9/25/02), 828 So.2d 1165, writ denied, 03-0709 (La.3/19/04), 869 So.2d 840, the defendant was convicted of second degree murder. The defendant’s mother was called by the defense as a character witness at trial. Id. at 1168. The defense counsel questioned the mother as to whether she had ever known her son to be violent or to carry a gun. Id. at 1170. She responded that the defendant was not violent, and that she had not seen a gun. Id. On cross-examination, the prosecutor asked her about the defendant’s prior arrests for armed robbery, possession of cocaine and possession of marijuana, and his conviction for theft of goods valued at under $100.00. Hurst, 828 So.2d at 1170. On appeal, the Fourth Circuit concluded that “[t]he defense opened the door to evidence concerning the defendant’s character.” Id.

In this case, Lewis unambiguously testified that she had known the defendant since he was born and that she had never known him to sell cocaine. She therefore opened the door to questions regarding the defendant’s previous conviction for possession with intent to distribute cocaine. The trial court was not manifestly erroneous in overruling defense counsel’s objection to the testimony.

Finally, we note that the defendant additionally contends in this assignment of error that the state did not properly authenticate the documentation of his previous conviction. However, the defendant stipulated to the previous conviction |12and defense counsel failed to make a contemporaneous objection pursuant to La. C. Cr. P. art. 841. An irregularity or error cannot be availed of after a verdict unless it was objected to at the time of the occurrence. State v. Noil, 01-521 (La.App. 5 Cir. 12/26/01), 807 So.2d 295, writ denied, 02-0276 (La.10/25/02), 827 So.2d 1177.

Accordingly, this assignment of error has no merit.

ERRORS PATENT

The record was reviewed for errors patent pursuant to La. C. Cr. P. art. 920(2). See also State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We discern two errors patent.

First, the trial court failed to vacate the defendant’s original fifteen year sentence prior to sentencing the defendant to a term of twenty years as a multiple offender. Where the original sentence on the underlying offense has not been vacated at the time of defendant’s sentencing as a multiple offender, the original sentence remains in effect and the subsequent sentence as a multiple offender is null and void. State v. Thomas, 98-1298 (La.App. 5 Cir.4/27/99), 734 So.2d 140, 144. We therefore remand this matter to the trial court for resentencing, with instructions to vacate defendant’s original sentence before imposing the multiple offender sentence. State v. Stokes, 99-1287 (La.App. 5 Cir.4/13/00), 759 So.2d 980, 988.

We acknowledge that in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, this Court followed the dictates of State v. Mayer, 1999-3124 (La.3/31/00), 760 So.2d 309. In Mayer, the Louisiana Supreme Court found that vacation of the habitual offender sentence was not necessary where the transcript failed to reflect the trial court vacated the previously imposed sentence before imposing the habitual offender sentence. The court reasoned that the substantial | ^rights of the defendant were protected since the commitment/minute entry “reflect [ed] that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement ...” Mayer, 760 So.2d at 310.

In Davis, this court found that the multiple offender sentence was valid despite the fact that the transcript failed to indicate that the trial judge had vacated the original sentence. However, both Davis and Mayer are distinguishable from the instant case. In those cases, the commitment and minute entry reflected that the trial court vacated defendant’s original sentence whereas the transcript did not so reflect. In the present case, neither the transcript nor the commitment and minute entry indicates that the trial court vacated defendant’s original sentence prior to imposing an enhanced sentence. Under these circumstances, we find that it is necessary to vacate defendant’s multiple offender sentence as null and void and to remand the matter for resentencing.

Second, the court imposed the habitual offender sentence without benefit of probation or suspension of sentence, as required by La. R.S. 15:529.1(G), but failed to require that the first two years be served without benefit of parole, as required by La. R.S. 40:967 B(4)(b). This error requires no corrective action. La. R.S. 15:301.1 makes the restriction self-activating.

CONCLUSION AND DECREE

For the foregoing reasons, the defendant’s conviction is affirmed. This matter is remanded to the trial court. The trial court is instructed to vacate the defendant’s original fifteen year sentence prior to sentencing the defendant as a multiple offender.

|,4AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: JUDE G. GRAVOIS, Judge.

text:
    Kimberle S. PATERNOSTRO and Dino D. Paternostro v. WELLS FARGO HOME MORTGAGE, INC.
    No. 09-CA-469.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Patricia S. Leblanc, Michael L. Fantaci, Attorneys at Law, Metairie, LA, for Plain-tifflAppellant.
    Stephen W. Rider, Lauren Campisi, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|gThe plaintiffs, Kimberle and Dino Pa-ternostro, have appealed the summary judgment granted in favor of the defendant, Wells Fargo Home Mortgage, Inc. (“Wells Fargo”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs filed a petition for damages against Wells Fargo indicating that when they purchased their home located at 4620 Hessmer Avenue in Metairie, Louisiana, in 1999, they obtained both hazard and flood insurance coverage on their homesite (premises) and its contents (personal property) from State Farm Fire and Casualty Company (“State Farm”). In their petition, plaintiffs allege that they sustained losses to their personal property on August 29, 2005 from Hurricane Katrina, resulting in their submitting a claim to State Farm under their flood insurance policy for personal property losses amounting to $58,676.88. State Farm thereupon informed plaintiffs that $26,447.34 of their claim was over their policy |,-¡limits for personal property coverage, that $3,729.54 of their claim was non-recoverable due to depreciation, and that their claim would be reduced by $500 due to the policy’s deductible. State Farm thereupon paid $29,000 to plaintiffs for their personal property losses under their flood insurance policy issued by State Farm.

In their petition, plaintiffs also allege, among other things: 1) that they obtained flood insurance coverage for their premises in the amount required by Wells Fargo, plus personal property coverage of up to $50,000; 2) that their flood insurance policy with State Farm had an indexed inflation provision on their personal property coverage so that the coverage levels thereon would automatically increase annually; 3) that in 2003 when Wells Fargo received notice of an underpayment of their flood insurance premiums, Wells Fargo paid the underpayment due and State Farm reinstated their contents coverage to $54,000; 4) that in 2004, Wells Fargo again underpaid their flood insurance premium and that State Farm again notified Wells Fargo of the underpayment; 5) that Wells Fargo did not, however, subsequently pay the underpayment premium, resulting in State Farm’s decreasing their personal property coverage level from $56,700 to $27,500; 6) that because Wells Fargo had received an identical notice the previous year and had paid the underpayment premium without any action by plaintiffs, they relied on Wells Fargo’s prior course of conduct and assumed that the underpayment premium payment had been made by Wells Fargo as it had done in the prior year; 7) that because the prior year’s coverage had not been corrected, State Farm renewed the contents coverage at the $28,500 level for the 2005-06 coverage period; 8) that Wells Fargo placed itself in a fiduciary position with respect to the insurance premiums payments which plaintiffs relied on to their detriment; and 9) that Wells Fargo’s failure to pay their insurance premiums from |4the funds held in escrow constituted a breach of that fiduciary duty, making Wells Fargo liable to them for $30,176.88 for their excess personal property flood losses.

Wells Fargo responded to plaintiffs’ petition with a general denial.

Plaintiffs thereafter filed a supplemental and amending petition alleging, among other things: 1) that Wells Fargo voluntarily undertook to collect payments and make payments from plaintiffs’ escrow account for the premiums on plaintiffs personal property, for which Wells Fargo had no insurable interest; 2) that the renewal certificates plaintiffs received from State Farm stated “do not pay” and “premium is being paid by mortgagee”; 3) that Wells Fargo intervened in the relationship between plaintiffs and their insurer which created a legal relationship and duty between Wells Fargo and plaintiffs; and 4) alternatively, that the actions of Wells Fargo on behalf of plaintiffs created a contract which Wells Fargo breached by failing to pay the premiums maintaining the insurance at the amount agreed to at the outset of the parties’ business relationship.

Wells Fargo also denied the allegations of plaintiffs’ supplemental and amending petition.

Wells Fargo thereafter filed a motion for summary judgment claiming it was not liable to plaintiffs under any legal theory. The trial court held a hearing on the motion for summary judgment and took the matter under advisement. The trial court subsequently rendered judgment in favor of Wells Fargo granting its motion for summary judgment. This timely appeal followed.

LAW

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it |sin the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04) 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Summary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

ANALYSIS

In its motion for summary judgment, Wells Fargo claimed that it had no contractual or other legal duty to procure or maintain any insurance on plaintiffs Ifiproperty, including plaintiffs’ personal property flood insurance coverage. It reasoned that because plaintiffs cannot establish a claim against Wells Fargo based on either contract or negligence, it was entitled to judgment as a matter of law. Specifically, Wells Fargo argued that plaintiffs’ claim based on fiduciary duty must be dismissed because LSA-R.S. 6:1124 expressly limits the imposition of a fiduciary duty on a lender such as Wells Fargo. Wells Fargo also argued that the mortgage contract expressly provided that plaintiffs had to procure and maintain flood insurance coverage; plaintiffs thus had the responsibility to ensure that the correct insurance premium was paid. Wells Fargo specifically notes that the notices regarding renewals were sent to plaintiffs with copies to Wells Fargo. Plaintiffs therefore had actual knowledge of the change in coverage about which they complain.

Wells Fargo further argued that plaintiffs’ detrimental reliance claim must also be dismissed as a matter of law because any alleged detrimental reliance cannot be deemed reasonable. Wells Fargo contends that plaintiffs’ mortgage contract requires plaintiffs to procure and maintain insurance; thus any alleged reliance on Wells Fargo cannot be reasonable as such would allow plaintiffs to amend the provision of the mortgage contract to impose duties upon Wells Fargo that were not bargained for. Wells Fargo further argued that plaintiffs could not have reasonably relied on Wells Fargo to maintain coverage as alleged because there is no provision in the mortgage contract obligating Wells Fargo 1) to [7purchase or maintain insurance for the benefit of plaintiffs, 2) to notify plaintiffs of any change in coverage, or 3) to notify plaintiffs of any lack of coverage. Based on this reasoning, Wells Fargo argued that plaintiffs cannot succeed in a negligence claim against Wells Fargo.

Finally, Wells Fargo argued that the Louisiana Credit Agreement Statute, LSA-R.S. 6:1121, et seq., bars any causes of action against Wells Fargo based on its purported unwritten agreement to pay the flood insurance premiums for plaintiffs’ contents coverage. Specifically, Wells Fargo states that under these statutes, unless an agreement is in writing and signed by the creditor and debtor, there can be no finding of a new agreement. Wells Fargo concludes that these statutes bar all causes of action whether in contract or tort because plaintiffs’ purported agreement is not in writing.

In addition to plaintiffs’ mortgage contract, the following were among the exhibits that were attached to Wells Fargo’s motion for summary judgment:

(1) The original declarations page for the flood insurance policy for the coverage period from February 10, 1999 to February 10, 2000, with plaintiffs’ personal property coverage being set at $50,000.
(2) A letter from State Farm to plaintiffs dated February 10, 2003, with a copy to Wells Fargo, stating that the premium was underpaid on the flood insurance policy for the period from February 2003 to February 2004, and advising that the coverage would be reduced to match the amount of premium paid. Enclosed therewith was a declarations page Ron the flood insurance policy from State Farm dated February 10, 2003 addressed to plaintiffs showing that plaintiffs’ personal property coverage was set at $30,000.
(3) A declarations page from State Farm on the flood insurance policy dated February 18, 2003, addressed to plaintiffs, showing that their personal property coverage had been increased from $30,000 to $55,400.
(4) A letter from State Farm to plaintiffs dated February 6, 2004, with a copy to Wells Fargo, stating that the premium was underpaid on the flood insurance policy for the period from February 2004 to February 2005, and advising that the coverage would be reduced to match the amount of premium paid. Enclosed therewith was a declarations page on the flood insurance policy dated February 6, 2004 for the coverage period from February 10, 2004 to February 10, 2005 addressed to plaintiffs showing plaintiffs’ personal property coverage being set at $27,500.
(5) A renewal certificate for the flood insurance policy from State Farm addressed to plaintiffs dated December 27, 2004 for the coverage period from February 10, 2005 to February 10, 2006, indicating that plaintiffs’ personal property coverage was set at $28,500.

Plaintiffs opposed the motion for summary judgment arguing that material facts regarding the responsibility for and management of the escrow account for flood insurance coverage are in dispute. Plaintiffs contend that under C.C. art. 2292, Wells Fargo is responsible because it voluntarily usurped plaintiffs’ right to manage payment of their flood insurance policy premiums. Plaintiffs argue that they were not given a choice as to how the premiums were paid; rather, there was one bill issued to cover the premiums on both their personal property coverage and them real property coverage, and both were paid by Wells Fargo. Plaintiffs conclude that Wells Fargo is liable for them losses under the law of delictual liability citing C.C. art. 2315 and C.C. art. 2316.19 Plaintiffs also argue that the Louisiana Credit Agreement Statute is not relevant here because this matter does not involve any oral credit agreement.

Attached to plaintiffs’ motion in opposition are identical affidavits executed individually by both plaintiffs, essentially verifying by affidavit all of the allegations contained in their original and supplemental petitions.

A review of the evidence submitted by Wells Fargo in support of the motion for summary judgment indicates that Section 5 of the mortgage contract clearly obligates the borrower to obtain insurance. This section further provides that if the borrower fails to maintain insurance, the lender may obtain insurance, and in this instance, the insurance obtained by the lender may or may not cover the borrower’s contents. (Emphasis added.) Thus, under the terms of the mortgage contract, there is no obligation or duty on the part of Wells Fargo to obtain insurance. Further, Section 3 of the mortgage contract provides that the borrower shall pay to the lender funds to provide for payments of amounts due for insurance. This section provides that the lender may waive borrower’s obligation to pay these funds to the lender and that the borrower may pay these amounts directly. Thus, contrary to plaintiffs’ assertion that they had no choice in the manner in which the flood insurance premiums were paid, under the terms of the mortgage contract, plaintiffs could have sought written waiver from Wells Fargo to pay the flood insurance premiums directly to State Farm.

Moreover, there is nothing in plaintiffs’ affidavits to refute the evidence submitted by Wells Fargo that clearly shows that plaintiffs had notice of the decrease in the personal property contents coverage since at least February 2004 and took no action of their own to increase the coverage to their desired level. | ,n Wells Fargo submitted evidence to show that when the underpayment was made in 2003, State Farm sent plaintiffs a letter informing them of the underpayment accompanied by a new declarations page showing the personal property contents coverage had been decreased to $30,000. After the additional payment was made, State Farm sent plaintiffs a second declarations page indicating that the personal property contents coverage was increased to $55,400. Thereafter in 2004, plaintiffs were informed by State Farm that Wells Fargo again had underpaid the premium and the amount of insurance was decreased accordingly. This letter was accompanied by a declarations page indicating plaintiffs’ personal property coverage was decreased to $27,500. After this correspondence, plaintiffs did not receive a new declarations page indicating their personal property contents coverage was raised back to the higher amount which would have indicated that an additional premium payment had been made by Wells Fargo. Additionally, plaintiffs received a renewal certificate for their flood insurance policy from State Farm dated December 27, 2004 for the coverage period from February 10, 2005 to February 10, 2006 indicating that their personal property coverage was $28,500. Therefore, plaintiffs could not have reasonably believed that Wells Fargo had made or would make an additional payment increasing the personal contents coverage to plaintiffs’ desired level. As plaintiffs have acknowledged in their petition and brief to this Court, Wells Fargo had no security interest in their personal property coverage. Thus, Wells Fargo had no obligation to ensure that plaintiffs’ personal property contents coverage was at the level plaintiffs originally requested.

For the foregoing reasons, we find that Wells Fargo had no contractual or other legal duty to procure or maintain any insurance on plaintiffs property, including personal property flood insurance coverage. Accordingly, Wells Fargo Inis not liable to plaintiffs under any legal theory. Therefore, there is no genuine issue of material fact herein and Wells Fargo is aecordingly entitled to judgment as a matter of law.

CONCLUSION

The summary judgment granted by the trial court in favor of Wells Fargo is hereby affirmed.

AFFIRMED.

      . A transcript of the hearing was not made part of the appellate record.

      . This statute provides:
      No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciaty, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary. The fiduciary responsibility and liability of a financial institution or any officer or employee thereof shall be limited solely to performance under such a contract and shall not extend beyond the scope thereof. Any claim for breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof. This Section is not limited to credit agreements and shall apply to all types of relationships to which a financial institution may be a party.

      . LSA-R.S. 6:1122 provides:
      A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor. LSA-R.S. 6:1124 provides:
      No financial institution or officer or employee thereof shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties other than shareholders of the institution, unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary. The fiduciary responsibility and liability of a financial institution or any officer or employee thereof shall be limited solely to performance under such a contract and shall not extend beyond the scope thereof. Any claim for breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof. This Section is not limited to credit agreements and shall apply to all types of relationships to which a financial institution may be a party.

      . C.C. art. 2292 provides:
      There is a management of affairs when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.

      . C.C. art. 2315 provides:
      A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

      .C.C. art. 2316 provides:
      Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

      . This holding makes a discussion of whether or not the Louisiana Credit Agreement Statute, LSA-R.S. 6:1121, et seq., is applicable to this case moot.


author: MARION F. EDWARDS, Judge.

text:
    Ralph HYMEL v. DISCOVER BANK f/k/a Greenwood Trust Company, Issuer of the Discover Card.
    No. 09-CA-286.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      John M. Amato, Law Office of John M. Amato, Hahnville, Louisiana, for Plaintiff/Appellant.
    Melissa L. Theriot, LaBorde & Neuner, Lafayette, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   MARION F. EDWARDS, Judge.

12PIaintifyappellant, Ralph Hymel (“Hy-mel”), appeals a district court judgment dismissing his Petition for Nullity. We affirm.

On June 15, 2005, Discover Bank, defendant/appellee, obtained a preliminary default against Hymel for sums which it alleged were owed on Hymel’s Discover Card (“Discover”). On the same day, Hy-mel’s counsel was informed via a letter from Discover’s counsel that the preliminary default had been entered and that Discover was moving forward to confirm it. On August 10, 2005, the default was confirmed. On April 14, 2008, Hymel filed the present action to annul the default judgment for “fraud and ill practices.” In the petition, Hymel alleged that Discover did not establish a prima facie case and that the affidavit of non-military service was insufficient.

Discover filed several exceptions, including an Exception of No Cause of Action and of Prescription/Peremption. Following a hearing, the trial court granted the above exceptions and dismissed the case with prejudice. Hymel appeals.

On appeal, Hymel alleges that it was an ill practice within the scope of La. C.C.P. art. 2004 to confirm the default without offering an itemized statement of |3the account as required by La. C.C.P. art. 1702.1, and, further, that Discover committed an ill practice at the confirmation “when it violated Code of Civil Procedure Article 1703 by obtaining damages it did not prove.” Finally, Hymel argues that it was error to grant the Exception of Prescription/Peremption because it was brought within one year of discovering the ill practices.

According to La. C.C.P. art. 2004, any final judgment obtained by fraud or ill practices may be annulled. It is imperative that courts review a petition for nullity closely as an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. The failure to establish a prima facie case as required by La. C.C.P. art. 1702, or a failure of proof, must be raised in a motion for new trial or by appeal, not by an action for nullity. The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals. Here, the delays for asserting a motion for new trial, as well as the appeal delays, have long since expired for Hymel.

In reviewing a decision of the trial court on a petition for nullity, the issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court’s conclusions were reasonable. Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer.

La. C.C.P. art. 2004

is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through |,[Some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable....

(Citations omitted.)

Conduct that prevents an opposing party from having an opportunity to appear or to assert a defense constitutes a deprivation of the party’s legal rights. A party seeking an annulment must demonstrate how he was prevented or excused from asserting any defenses he may have had, i.e., that he was deprived of the knowledge of the existence of the defense relied upon or the opportunity to present the defense by some fraud or ill practice on the part of the opposing party. When ill practices are alleged, the court must examine the case from an equitable viewpoint to determine whether the party seeking annulment has met the burden of showing “how he was prevented or excused” from asserting his claims or defenses.

The appellate record contains, among other things, a copy of the original petition fried by Discover; a Request for Admission of Fact; an affidavit from the account manager that the statement of account was true and correct; a copy of the card member agreement; a signed order granting the Motion for Preliminary Default; Affidavits of Correctness of Account by counsel for Discover in accordance with La. C.C.P. art. 1702.1; and a copy of the judgment confirming the default. These same documents have been found sufficient to maintain a default judgment by another court. We agree.

Hymel does not point to any action by Discover that prevented or excused him from appearing or asserting a defense, nor do we discern any such action. In connection with his second assignment of error, he does allege that there was a | ¡^discrepancy between the account summary presented at confirmation and the prima facie proof set forth in its petition and affidavit. Hymel avers that the account summary submitted as evidence showed a balance of “0” dollars while the petition and the affidavit offered at the confirmation attested to a balance due of $11,735.63. However, the account statement in the record clearly shows that the amount of $11,735.63 was internally charged off. La. C.C.P. art. 1703 states: “A judgment by default shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.” The Official Notes to Article 1703 explain that the article itself “is essential to prevent the judgment by default from going beyond the scope of the prayer.” Here, the entire default proceedings prayed for the same type and amount that was ultimately awarded. Thus, the article is inapplicable.

In the absence of a showing of any improper procedure on the part of Discover, or of any showing of how he was prevented or excused from presenting his defense, we see no abuse in the trial court’s discretion in dismissing Hymel’s Petition for Nullity. Because of our above findings, we pretermit any discussion of prescription/peremption.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

      . Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La.10/16/01), 800 So.2d 762.

      . See, Hollander v. Wandell, 97-556 (La.App. 5 Cir. 11/12/97), 703 So.2d 742.

      . Advanta Bank Corp. v. First Mount Zion Baptist Church, 03-732 (La.App. 5 Cir. 12/30/03), 865 So.2d 165.

      . Belle Pass Terminal Inc., supra.

      . Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662.

      . Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983); Wright v. La. Power & Light, 06-1181 (La.3/9/07) 951 So.2d 1058.

        .See, Advanta Bank Corp. v. First Mount Zion Baptist Church, supra; Kem Search, supra.

      . Id. (citing Andrus v. Chrysler Fin. Corp., 99-105 (La.App. 3 Cir. 6/2/99), 741 So.2d 780, 784, writ denied, 99-1968 (La.10/15/99), 748 So.2d 1150).

      . See, Discover Bank v. Peters, 38,366 (La.App. 2 Cir. 4/14/04), 870 So.2d 602.