author: |, GASKINS, J.

text:
    J.D. BLACKSHIRE, et al., Plaintiffs-Appellants v. Harvey WASHINGTON, Defendant-Appellee.
    No. 39,028-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Kammer & Huckabay, by Pugh Hucka-bay, Shreveport, for Appellants.
    Joel L. Pearce, Shreveport, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   |, GASKINS, J.

The plaintiffs, J.D. Blackshire and Ellen Blackshire, appeal a trial court judgment granting sole custody of their minor granddaughters to the children’s father, Harvey Washington. For the following reasons, we affirm the trial court judgment.

PACTS

The minor girls in this matter are the children of the defendant, Harvey Washington, and the plaintiffs’ daughter, Tracy Blackshire. H.M.W. was born January 24, 1994, and T.R.W. was born June 19, 1995. Mr. Washington and Tracy were not married, but he is listed as the father on the children’s birth certificates. Tracy had an older son, C.T.B., born July 5, 1989, from another relationship. C.T.B. has always resided with the plaintiffs and his custody is not at issue in this matter.

Tracy was killed in an auto accident March 24, 2000. Before her death, the girls resided with their mother and father, but stayed with the Blackshires frequently. Mr. Washington and Tracy had a tumultuous relationship involving physical violence against each other. Police intervention was sometimes necessary. Mr. Washington and Tracy separated several weeks before Tracy was killed. At about the time of the separation, the girls began living with the Blackshires.

After Tracy’s death, Mr. Washington began living with a woman named Nina. During the course of these proceedings, they married and had two daughters. On June 8, 2001, the Blackshires filed suit to obtain custody of H.M.W. and T.R.W. They claimed that Mr. Washington rarely visited the children and did not support them. The Blackshires also alleged that lathe Washingtons physically and verbally abused the girls and claimed that the children were afraid of their father.

On January 7, 2002, the Blackshires were granted provisional custody of the children. Mr. Washington filed a rule for contempt on March 13, 2002, alleging that he had been denied visitation. On March 15, 2002, the Blackshires filed a motion for a protective order alleging domestic abuse by Mr. Washington and Nina against the children.

The protracted hearing in this matter took place over approximately 21 months. The hearing began on April 4-5, 2002. The next day of trial was July 12, 2002. During the pendency of these proceedings, on January 23, 2003, an interim consent judgment was entered continuing provisional custody with the Blackshires and ordering Mr. Washington to pay $523 per month in child support. A visitation schedule was set up for Mr. Washington.

The next day of trial was October 10, 2003, and the final day of testimony was heard on January 16, 2004. The court took the matter under advisement and filed a judgment on February 18, 2004. Sole custody of the girls was awarded to Mr. Washington under a graduated transfer. Full custody of the children to Mr. Washington was to occur in July 2004. The court ordered that the Blackshires and the girls immediately begin family counseling to assist in the transfer, at Mr. Washington’s expense. After the transfer, the Blackshires are to have visitation with the children according to a specified schedule.

I oThe Blackshires appealed the trial court judgment, asserting several assignments of error. They argue that the trial court erred in failing to award custody of the children to them. They also contend that the trial court erred in not allowing the children to testify a second time in this protracted litigation; in not allowing the testimony of Robert Minnear, who had counseled the children; and in not allowing the introduction of the medical records of Dr. Carter Boyd, who treated T.R.W.

CUSTODY

The plaintiffs contend that the trial court erred in failing to award them custody of the girls, with reasonable visitation to Mr. Washington. This argument is without merit.

The best interest of the child is the guiding principle in all child custody litigation. La. C.C. arts. 131, 134; Lamp v. Lamp, 36,919 (La.App.2d Cir.12/11/02), 833 So.2d 1224; Street v. May, 35,589 (La.App.2d Cir.12/5/01), 803 So.2d 312.

In a conflict between a parent and a nonparent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. Lamp v. Lamp, supra; Martin v. Dupont, 32,490 (La.App.2d Cir.12/8/99), 748 So.2d 574. La. C.C. art. 133 provides:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

14At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would result in substantial harm to the child, thus necessitating an award of custody to the nonparent. La. C.C. art. 133; Lamp v. Lamp, supra.

In a child custody case, the determination of the trial judge will not be disturbed absent a clear showing of abuse of discretion. Lamp v. Lamp, supra. An appellate court is required to extend great weight to the factual conclusions of trial courts which are based on reasonable evaluations of credibility and reasonable inferences of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The trial judge has the opportunity to see and hear the witnesses and to evaluate their sincerity and credibility. The trial judge is in a better position to evaluate the credibility of witnesses and the weight of evidence than an appellate court, which does not hear or see the witnesses. For this reason, a reviewing court should adopt the trial court’s findings as its own in the absence of clear error, even if other conclusions from the same evidence were equally reasonable. Martin v. Dupont, supra.

Mrs. Blackshire testified that she kept the girls frequently before Tracy’s death. Since their mother’s death, the girls have lived exclusively with the Blackshires. Mrs. Blackshire is rétired and Mr. Black-shire works part time. He is partially paralyzed and cannot sit for long periods of time. Mr. Blackshire did not appear in these proceedings.

| sMrs. Blackshire outlined the times that Mr. Washington exercised visitation with the children. Mrs. Blackshire denied doing anything to interfere with visitation.

Mrs. Blackshire admitted that the children’s grades are poor, but asserted that H.M.W.’s grades worsened after she began visiting her father. Mrs. Blackshire claimed that she tried to get tutoring for H.M.W. from her school. The record shows that Mrs. Blackshire was extremely argumentative and uncooperative with school officials who offered help for H.M.W. The help offered was not to Mrs. Blackshire’s liking and a verbal confrontation ensued. According to Mrs. Black-shire, Mr. Washington makes the girls do an excessive amount of school work and he ridicules and belittles T.R.W.

Mrs. Blackshire claimed that Nina threw T.R.W. against a sofa and injured her arm. T.R.W. told Mrs. Blackshire that Mr. Washington and Nina made her sit in front of a patio door during an electrical storm. Mrs. Blackshire also contended that Mr. Washington jerked H.M.W. off a toilet in a store and spanked her. She further claimed that Mr. Washington tried to choke H.M.W. while combing her hair.

Mrs. Blackshire stated that on one occasion when she took the girls to meet Mr. Washington for visitation, T.R.W. resisted. She said that Mr. Washington pulled T.R.W. out of the car, injuring her arm. Mrs. Blackshire took the child to a doctor following the incident. Mrs. Blackshire testified that Nina tried to whip T.R.W. with a belt and that Mr. Washington threw T.R.W. on a bed and she bounced off, hitting a dresser. Mrs. Blackshire |fitook the child to a doctor for treatment of back pain she claimed resulted from this incident. Mrs. Blackshire asserted that, during this incident, Mr. Washington prevented T.R.W. from calling 911. However, he later called the police. Mrs. Blackshire said that she did not take T.R.W. for her next scheduled visitation with Mr. Washington due to concerns for her safety.

Mrs. Blackshire acknowledged that the girls’ half-brother, C.T.B., had discipline problems and had been accused of touching girls at school inappropriately. However, she explained that this was a problem with his entire sixth-grade class where the children have been “hugging, kissing, and pinching each other on the behind.”

Eight-year-old H.M.W. testified that she likes her father and Nina, but wants to live with her grandparents. She said that her father and Nina do not treat T.R.W. well. H.M.W. testified that Nina threw T.R.W. on her arm against the sofa because T.R.W. was being bad. On further questioning, H.M.W. said that she did not think Nina was trying to hurt T.R.W.

H.M.W. stated that once, while at her father’s house, she saw Mr. Washington watching a “nasty movie.” H.M.W. said that she is afraid of her father and that he once choked her while combing her hair. However, she said that it was her grandmother that interpreted Mr. Washington’s behavior as choking. H.M.W. admitted that she has not performed well in school.

Seven-year-old T.R.W. testified that she wants to live with her grandparents. She related that the girls sometimes sleep with their grandparents when visitors sleep in their bed. T.R.W. said that her [7grandmother has blocked Mr. Washington’s calls when he was calling too much.

T.R.W. stated that she had seen pornographic movies at her father’s house and that her father sometimes spanks the girls. According to T.R.W., Nina spanks her and once threw her into a sofa. T.R.W. said that she does not feel safe at her father’s house and that he has told the girls that he will spank them when they go to live with him.

Caleetra Simmons, a friend of Tracy and Mr. Washington, testified that while the girls’ mother was alive, Mr. Washington once hit Tracy, severely injuring her eye. Ms. Simmons said that about one year before Tracy died, she saw people buy marijuana at Mr. Washington’s house, but she has never seen him use drugs or harm the children. Ms. Simmons related an incident in which transvestite friends of Mr. Washington attended a party at his house and engaged in oral sex with a cousin of Mr. Washington in the back yard while the children played in the front of the house.

The plaintiffs presented the testimony of several witnesses to establish that the girls stayed with them often. Delores Taylor related an incident in which Mr. Washington came to H.MW.’s birthday party and made her leave early, upsetting the child.

Mickey Jones, a mental health counsel- or, testified on behalf of the plaintiffs. Ms. Jones stated that she had counseled Mrs. Blackshire and the girls. In June 2001, H.M.W. told Ms. Jones that she thought her father was a drug dealer and described behavior indicative of a drug sale. H.M.W. also | ¡¡alluded to possible sexual abuse by her father while her mother was still alive. Ms. Jones stated that she did not think the child had been abused, noting that H.M.W. did not behave as a child that had been sexually molested, and thought the incident was more akin to giving a “wedgie.”

Ms. Jones stated that H.M.W. had symptoms of anxiety including hair loss and nail biting. H.M.W. reported that her father spanked her for calling him by his first name. In January 2002, H.M.W. stated that she was upset over Mr. Washington making her leave her birthday party early. H.M.W. also said that her father told the girls that when he got custody, he was going to beat them. However, Ms. Jones stated that she did not think that Mr. Washington would actually beat the children.

In January 2002, Ms. Jones went to Mr. Washington’s house while he had the girls. She observed that the house was appropriately clean. She also noted that Mr. Washington had a messy backyard with four large dogs. T.R.W. had a rash which might have been the result of an allergy to the dogs. Ms. Jones had a favorable impression of Nina, but thought it would be harmful to remove the girls from their grandmother suddenly.

Mr. Washington admitted having frequent physical altercations with the girls’ mother, some of which were inflicted by Tracy. He acknowledged that he twice pled guilty to charges arising from those incidents. Following Tracy’s death, he said he tried to see the girls frequently and often visited them at school. He claims that he exercised all the visitation that Mrs. Blackshire would allow him to.

|aMr. Washington asserted that Mrs. Blackshire blocked his phone calls and thwarted his efforts to see his daughters. He produced five certified letters sent to Mrs. Blackshire seeking visitation with the girls and asking to have his calls unblocked. Mr. Washington claimed that he took sheriffs deputies with him to the Blackshires to see the girls. The children were instructed to leave the house by a back door. Mr. Washington claimed that on another occasion Mrs. Blackshire told the girls to hide in the house and not to answer the door when he came to the Blackshires’ house.

Mr. Washington denied selling or using drugs and stated that he had undergone drug testing at work for the past two years with negative results. Although he admitted having pornographic movies on occasion, he claimed the children never saw them at his house. Mr. Washington denied spanking the children after being instructed by the court not to use corporal punishment. Mr. Washington denied choking H.M.W. He testified that he was merely trying to keep her head straight while he combed her hair. He also denied belittling T.R.W. He admitted being behind in his child support payments.

According to Mr. Washington, T.R.W. has a behavior problem. In January 2004, she was sent to her room and began kicking the ’door. The Washingtons checked on T.R.W. numerous times, but she refused to settle down. T.R.W. also threatened to tell the authorities if the Washing-tons tried to physically discipline her. Later that night, after the passage of a significant period of time with no let up in T.R.W.’s bad behavior and with no effective way to discipline the child, Mr. Washington called the police to hnscare her. Ms. Blackshire stopped bringing the girls for visitation, claiming that he was mistreating T.R.W. He also acknowledged that child protection authorities were called, but stated that none of their investigations supported the claims made against him.

Mr. Washington said that the children usually went for visitation more willingly if he picked them up from school rather than meeting Mrs. Blackshire for the exchange. He admitted taking T.R.W. back to Mrs. Blackshire early from Christmas visitation because the child wanted to go. He opined that T.R.W. wants to stay with her grandmother because of the lack of discipline in Mrs. Blackshire’s home. Mr. Washington stated that Mrs. Blackshire is not fostering a good relationship between him and the girls.

Nina Washington testified that she gets along well with H.M.W., but has no relationship with T.R.W. According to Nina, Mrs. Blackshire told her that she shouldn’t have anything to do with the girls. She also said that Mrs. Blackshire told the children that they did not have to listen to Nina. Nina stated that Mrs. Blackshire was not fostering a good relationship between Mr. Washington and the children.

Nina denied spanking the girls or throwing T.R.W. into a couch. She did order the child to sit on the couch and T.R.W. refused to obey. She also denied spanking her with a belt. Nina stated that she took a belt away from T.R.W. when the child was hitting the wall with the buckle. Nina acknowledged that they called the police regarding T.R.W.’s behavior. This seemed to be prompted by the lack of an effective method for controlling [ nthe child’s behavior and the fear of allegations of mistreatment. The police discussed putting her in the youth shelter, but she was too young.

The plaintiffs assert that the trial court should have applied the reasoning of Mills v. Wilkerson, 34,694 (La.App.2d Cir.3/26/01), 785 So.2d 69, to this case. In Mills v. Wilkerson, supra, this court reversed a trial court judgment and awarded the custody of a child to the grandparents, rather than the father, following the death of the child’s mother. In Mills, this court found that substantial harm would result to the child if custody was awarded to the father due to the father’s alcoholism, unstable job and living arrangements, and limited time for the child.

Mr. Washington contends that the facts of the present case are analogous to Lamp v. Lamp, supra, in which this court ordered a gradual transfer of custody of a child to the father rather than awarding custody to the grandparents. We found that the father did not pose a substantial risk of harm to the child and that the grandparents thwarted any development of a relationship between the child and his father.

The trial court in this matter was presented with conflicting testimony regarding the care of H.M.W. and T.R.W. and was required to make credibility determinations. In its reasons for judgment, the trial court stated that it found Mr. Washington to be credible. The children were found not to be credible, were easily manipulated and were themselves manipulative. The court noted that the children were aware of the court-imposed ban on corporal punishment and flaunted that when visiting their father. The court stated that Mrs. Blackshire failed to produce the children for visitation on | ^numerous occasions and their performance in school was “horrible” with H.M.W. failing all courses during the last reporting period.

The plaintiffs have failed to carry the burden of showing that substantial harm will result to the children if custody is placed with Mr. Washington. The record shows that Mr. Washington has steady employment, a stable relationship with his wife, and a deep concern for the welfare of H.M.W. and T.R.W. Any infrequency in his visitation with the children was caused by Mrs. Blackshire in blocking his telephone calls and failing to deliver the children to the meeting place. Mrs. Blackshire also encouraged the children to disobey the Washingtons and exaggerated incidents to allege abuse.

In the present case, the allegations of abuse of the children by the father are troubling at first glance. However, we note that reasonable explanations were offered for those allegations. As to the incident in which Mr. Washington allegedly choked H.M.W. while combing her hair, he stated that he was merely trying to keep her head straight. H.M.W. testified that it was Mrs. Blackshire who interpreted the behavior as “choking.”

After each incident in which Mrs. Washington perceived that Mr. Washington or Nina had physically abused the children, child protection authorities were contacted. The record shows that the complaints were investigated and found to be groundless.

The children’s fear of their father seems to be instigated by Mrs. Blackshire. Although she complained that Mr. Washington’s spanking was abusive, Mrs. Black-shire stated that she also had spanked the girls. The |13children claimed that they were called “ignorant” and “stupid” and made to work on homework for excessive hours. Although derogatory names are not healthy, the Washingtons are to be commended for trying to work with the girls when, under Mrs. Blackshire’s tutelage, they are failing or close to failing.

The record shows that there are behavior problems with T.R.W., but it appears that she is encouraged by Mrs. Blackshire to disobey and to be disrespectful. Any attempts by the Washingtons to regulate her behavior are reported to the authorities as abuse. While the allegations of pornographic movies and drug sales in the Washington household are disturbing, it appears that these incidents occurred years ago, possibly while Tracy was still alive. We also observe that, while Tracy and Mr. Washington had a tumultuous relationship, many of their physical altercations were instigated by Tracy. For the past two years, Mr. Washington’s drug screens at work indicate that he has not abused drugs. Nina also testified that there has been no physical abuse between them. Mr. Washington has had a past that is not stainless, but the evidence indicates that he has matured and is striving to be a good father and husband.

The record supports the finding that, even though Mrs. Blackshire obviously loves her granddaughters a great deal, she did not work to foster a good relationship between the girls and their father. Mrs. Blackshire has exacerbated and exaggerated conflicts to the point that the children fear their father. In fact, she encourages bad behavior and has been unable to make significant progress in the children’s education. Based upon the [14record before us, we do not find that the trial court abused its discretion in placing the sole custody of the children with their father, Mr. Washington. The trial court correctly ordered the gradual transfer of sole custody of the children to their father, with visitation to the grandparents.

TESTIMONY OF THE CHILDREN

The plaintiffs argue that the trial court erred in refusing to allow the girls to testify a second time at trial. The plaintiffs wanted to put the girls on the stand to testify about conditions since their testimony 18 months earlier. According to the Blackshires, the trial court noted that it would be good to hear what the kids had to say, but then refused to allow them to testify.

A trial judge has great discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. La. C.C.P. art. 1631; Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 2001-2812 (La.App. 1st Cir.12/30/02), 839 So.2d 82, writ denied, 2003-0306 (La.4/4/03), 840 So.2d 1219. The judge’s discretion includes the admissibility of a witness’s testimony. It is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, supra.

In the present case, the trial court heard the girls’ testimony and was able to evaluate their credibility. The court heard the children’s preference regarding where they wanted to live. The court was also made aware of the allegations of abuse that occurred after the children testified. There is no |1Rshowing that the plaintiffs suffered prejudice due to the trial court’s decision not to allow the girls to testify a second time. In making its ruling, the court was mindful that this litigation had been ongoing for a significant period of time. The court felt that allowing the children to testify once more would unduly delay the proceedings. Under the facts presented, we do not find that the trial court abused its discretion in refusing to allow this additional testimony.

EXPERT TESTIMONY AND MEDICAL EVIDENCE

The Blaekshires argue that the trial court erred in refusing to allow the testimony of Robert Minnear, who counseled the children since the implementation of the new custody plan in January 2003. The grounds for the refusal included insufficient notice to the defense and the fact that this witness was not included on the witness list drawn up when the trial began almost two years earlier. The plaintiffs point out that this witness developed during the course of the proceedings and, although it might have prolonged the litigation to allow additional time for the defense to prepare for the witness, the importance of the custody of the children should have outweighed those concerns.

The Blaekshires further assert that the trial court erred in refusing to allow the introduction into evidence of the medical records of Dr. Boyd regarding the treatment of T.R.W. for two injuries allegedly sustained while staying with Mr. Washington.

Counsel for the Blaekshires argued that he found out about Mr. Minnear only a few days before that portion of the trial that was heard on ^January 16, 2004. Mr. Minnear had been counseling the children since December 2003, approximately one month. The Blaekshires also sought to introduce the medical records of Dr. Boyd relating to treatment of T.R.W. The trial court rejected the suggestion that the proceedings be further delayed in order for Mr. Washington’s counsel to prepare for the witness and this additional evidence.

The pretrial order controls the subsequent course of the action, though it can be modified at trial to prevent substantial injustice. The trier of fact is given broad discretion to determine whether to modify a pretrial order. This discretion is controlled by the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pretrial rulings or agreements and structured their preparation and presentation of their cases accordingly. Vernon v. Wade Correctional Institute, 26,053 (La.App.2d Cir.8/19/94), 642 So.2d 684; Southern Casing of Louisiana v. Houma Avionics, Inc., 2000-1930, 2000-1931 (La.App. 1st Cir.9/28/01), 809 So.2d 1040.

A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous. Hoerner v. ANCO Insulations, Inc., 2000-2333 (La.App. 4th Cir.1/23/02), 812 So.2d 45, writs denied, 2002-0935, 2002-0965, 2002-0967, 2002-0972 (La.6/21/02), 819 So.2d 1023.

The trial court was faced with protracted litigation in this custody matter which included numerous delays. In order to move the proceedings |17to a conclusion, the court exercised its discretion in refusing to allow the witness to testify and in refusing to admit the medical records. The trial court was well aware of alleged problems occurring during the course of the proceedings that would have been the subject of this evidence. Under the circumstances present in this matter, we do not find that the trial court abused its discretion.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court granting sole custody of H.M.W. and T.R.W. to their father, Harvey Washington, with visitation to the grandparents, J.D. Blackshire and Ellen Blackshire, as set forth in the trial court judgment. Costs in this court are assessed to the plaintiffs.

AFFIRMED.


source: Caselaw Access Project

author: JjLOLLBY, J.

license: Public Domain

text:
    INTERDICTION OF C.S.B.
    No. 38,889-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Patricia N. Miramon, for Applicanb-Ap-pellee, Bryan T. Brown.
    Mental Health Advocacy Service, by Claire P. Sharp, for Respondent-Appellant, C.S.B.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   JjLOLLBY, J.

This is an appeal on behalf of C.S.B., a 49 year old male (the “appellant”), from a judgment of commitment in the First Judicial District Court, Parish of Caddo, Louisiana rendered in favor of his brother, Bryan T. Brown (“Brown”). For the following reasons, we dismiss this appeal as moot.

Facts

In April 2003 appellant was interdicted in an interdiction proceeding by the same trial judge that heard the commitment proceeding which is the subject of this appeal. A judgment of limited interdiction was rendered and a curator named. Arrangements were made whereby appellant was allowed to live alone in his previous dwelling. Ultimately, serious differences of opinion arose among appellant, the curator and others involved in the care of appellant. As a result of these differences, Brown filed a Petition for Judicial Commitment against appellant on December 1, 2003, in the interdiction proceeding, alleging that C.S.B. was “physically, emotionally and psychologically disabled.” Brown also claimed that appellant’s use of drugs and/or alcohol made him a danger to himself and others. On December 17, 2003, various motions were filed, including a Motion to Dismiss requesting that the proceedings be dismissed or transferred for random assignment to the proper court. The motions were denied on December 18, 2003, as a preliminary matter. A bench trial was held on December 18, 19 and 22, 2003 before the same trial judge that interdicted 12appellant previously and judgment rendered in favor of Brown committing appellant for involuntary treatment at The Pines Treatment Center where he remained until February 9, 2004. This appeal ensued.

Discussion

The sole issue on appeal is whether or not it was error for the trial court to hear a subsequent commitment proceeding when the same trial judge heard the appellant’s interdiction proceeding. Appellant argues that the commitment proceeding against him was improperly filed in a previous interdiction proceeding in violation of La. C.C.P. art. 253.1, Rule 23 of the First Judicial District Court Rules, and public policy. Appellant contends that the requirement of random assignment of cases pursuant to La. C.C.P. art. 253.1 applies to judicial commitments mandating that the commitment of C.S.B. be filed and allotted independently of the previous interdiction proceeding. Rule 23 of the First Judicial District Court’s local rules, states that “... the Family Law Division will handle all aspects of all civil mental commitment matters from filing to the end of the case.” However, the Family Law Division did not handle the matter. Nevertheless, for the following reasons, we deem this issue to be moot.

The appellant had already been committed for involuntary treatment at the time of appeal and was released from the commitment on February 9, 2004, rendering the issue raised on appeal moot. A moot case is one that seeks a judgment or a decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405, 406 (La.1980). It is well settled that the function of the appellate courts is to | ¡¡render judgments that can be made effective and not to give opinion on moot questions or abstract propositions. State ex rel. Jones v. Slater, 205 La. 1077, 18 So.2d 627, 628 (1944); Orange Grove Properties, L.L.C. Allured, 2003-1878 (La.App. 1st Cir.06/25/04), — So.2d —, 2004 WL 1418052. It is well settled that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Baxter v. Scott, 2003-2013 (La.2003), 860 So.2d 535; St. Charles Parish School Board v. GAF Corporation, 512 So.2d 1165 (La.1987). Furthermore, La. C.C.P. art. 2162 in pertinent part states:

An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.

As the issue on appeal is moot, this court lacks jurisdiction to consider it. Therefore, we dismiss this appeal, and costs are assessed to appellant.

APPEAL DISMISSED.

      . The attorney representing C.S.B. became his curator and continued to serve as his attorney. The original curator was replaced with a family member after the commitment proceedings were filed.


author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    Rosalyn M. WEBER, Wife of/and Jay Weber v. RAY BRANDT NISSAN, INC., New Hampshire Insurance Company.
    No. 2004-CA-0004.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 2004.
    Rehearing Denied Sept. 9, 2004.

      Ford T. Hardy, Jr., New Orleans, LA, for Plaintiffs/Appellants, Rosalyn M. Weber and Jay Weber.
    W. Evan Plauche’, Shannon H. Huber, Hailey, McNamara, Hall, Larmann & Pa-pale, L.L.P., Metairie, LA, for Defendants/Appellees, Ray Brandt Nissan and New Hampshire Insurance Company.
    (Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   JjLEON A. CANNIZZARO, JR., Judge.

This appeal arises out of a claim filed by Rosalyn M. Weber and her husband, Jay Weber, against Ray Brandt Nissan, Inc., its insurer, New Hampshire Insurance Company, and the Debartolo Capital Partnership in connection with a fall suffered by Mrs. Weber in the New Orleans Center Shopping Mall owned by Debartolo . Ray Brandt and New Hampshire filed a motion for summary judgment, which was granted by the trial court. The trial court dismissed Ray Brandt and New Hampshire from the case, and the Webers are appealing the trial court’s decision.

FACTS AND PROCEDURAL HISTORY

This case involves a “slip and fall” by Mrs. Weber on the premises of the New Orleans Center Shopping Mall. Mrs. Weber alleged that she fell because of a wax build-up or a residue of a waxy substance, such as Armor All, that she |2understood to have been left on the floor in the area of the mall where she fell as a result of an automobile display.

On the day that she fell, Mrs. Weber went to Macy’s Department Store in the mall to return an item that had been previously purchased there. She had just left Macy’s and walked a short distance into the mall when she fell on her buttocks. Mrs. Weber sustained injuries that she asserts were diagnosed as strains of her spine and right shoulder, a bruise on her right knee, and low back pain syndrome. Mrs. Weber has also undergone MRI testing related to her injuries, and the results of the testing showed a problem that may require surgery. Mrs. Weber has alleged that she is in continuing pain as a result of her injuries.

Because she did not want anyone else to fall, Mrs. Weber promptly alerted a security guard at the mall that she had fallen on a slippery area. An inspection report was prepared by another employee of the security company, and in the report there was a notation that described the “Injury-Scene Surface Condition” with the words “slippery substance.”

During the discovery process in this case prior to the hearing on the motion for summary judgment, Mrs. Weber learned that an automobile owned by Ray Brandt was displayed in the area where she fell for approximately three months prior to her fall. The display had been removed from the mall just prior to the opening of the mall on the morning that Mrs. Weber fell. According to the deposition of the Ray Brandt employee who delivered the automobile owned by |sRay Brandt to the mall and who removed it from the mall three months later, neither the automobile nor the space that it occupied in the mall was ever cleaned by Ray Brandt either before, during, or after the display. He also stated in his deposition that when the automobile was removed from the mall, the space that it had occupied was “pretty dusty.” The Ray Brandt employee testified that no Armor All or liquids were ever used on the automobile while it was at the mall. Further, he testified that when the car was removed from the mall, there was nothing but dust and dirt in the area of the mall where the automobile had been.

In Mrs. Weber’s deposition, she testified that “[tjhere was something on the floor” of the mall when she fell, but she also testified that she did not see anything on the floor before or after she fell. She furthered testified that she could not describe either the color or smell of the substance on the floor, but she said that she realized that there was a substance on the floor “when I slipped and fell.”

After Mrs. Weber had given the information regarding her fall to the security guard who was assigned to make a report of the accident, she went to her place of employment. After she had been at work for a while, she began to “feel tightness” related to her accident. Approximately two days after her fall, Mrs. Weber consulted a physician regarding her injuries from the fall.

After a hearing, the trial court granted a summary judgment in favor of Ray Brandt and its insurer, New Hampshire. The Webers are now appealing that judgment.

) ¿DISCUSSION

Standard of Review

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action....” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

99-2181, 99-2257, p. 7, 755 So.2d at 230-31. See also Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

Assignments of Error

The Webers have made three assignments of error. First, they contend that the trial court erred in granting a summary judgment on insufficient evidence and subjective facts. Second, they contend that the trial court erred in not finding that Ray Brandt’s failure to act in a “reasonable manner” under the provisions of La. |r,R.S. 9:2800.6 resulted in Mrs. Weber’s accident. Third, they contend that because there is a question of fact regarding who had custody and control of the area where Mrs. Weber fell, there is a genuine issue of material fact that must be decided at trial.

Burden of Proof

La. R.S. 9:2800.6

The plaintiff in a lawsuit involving a “slip and fall” on a merchant’s premises has the burden of proving the following elements under La. R.S. 9:2800.6(B):

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

La. R.S. 9:2800.6(C)(1) defines the “constructive notice” required by La. R.S. 9:2800.6(B)(2) to mean that “the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” The presence of an employee of the merchant in the vicinity of the condition does not, without more, constitute constructive notice unless the employee knew or should have known of the condition had the employee exercised reasonable care. La. R.S. 9:2800.6(C)(1).

| (¡The Webers argue that it is clear from the incident report prepared by one of the security guards at the mall that there was a “slippery substance” on the floor in the area where Ray Brandt had displayed an automobile prior to Mrs. Weber’s fall. Mrs. Weber also claims that she was informed by a maintenance man who cleaned the area where the fall occurred that he thought that there was Armor All on the floor.

Mrs. Weber’s claims regarding the possibility that she slipped and fell because Armor All made the floor slippery were countered by the deposition testimony of the Ray Brandt employee who placed the automobile owned by Ray Brandt in the mall and removed it from the mall three months later. He testified in his deposition that “we didn’t spray nothing” on the automobile when asked whether any aerosol spray cleaner such as Armor All had been used. He also testified that when he removed the automobile from the mall, he looked around the area where the car had been. He said that he saw “nothing but a lot of dust and dirt.” He further stated that “I didn’t see nothing liquid or nothing like that around it.”

Mrs. Weber testified in her deposition as follows:

Q. Okay. And do you think that there was a substance on the floor when you fell?
A. There was something on the floor.
Q. Okay. Did you see anything on the floor?
A. No.
Q. Okay. Did you see anything on the floor before you fell? Did you see any substance on the floor before you fell?
A. No.
Q. Okay. When you got up, did you see any substance on the floor, when you got up to go get the security guard?
A. No.
Q. Okay. So you couldn’t tell me the color or the smell of the substance? Would that be correct?
A. Correct.

17Mrs. Weber also stated, however, that an employee who worked in the Signature store in the mall saw her slip. Although he did not tell Mrs. Weber that there was a slippery substance on the floor, she testified that he told her that “people had been slipping all day.”

Mrs. Weber also testified regarding the events that occurred after she reported her fall. She stated as follows in her deposition:

Q. So they came over and inspected the accident scene where you had fallen?
A. Correct.
Q. And did they see any substance on the floor?
A. Yes.
Q. And what did they see?
A. They saw that it was slippery because they started rubbing their feet on the floor and they noticed that it was slippery.
Q. Okay. So was it slippery or was there a substance on the floor?
A. It was slippery.
Q. And were you there when the maintenance guy came?
A. Yes, I was.
Q. And what did he do when he got there?
A. He checked the floors and rubbing his feet on the floor and noticed that it was slippery. The security guards came up and they started checking the floor and slipping around on the floor also.

Mrs. Weber testified later in her deposition that there was a “glaze” on the floor where she fell. She also stated that she believed the substance on the floor was Armor All, because “one of the cleanup guys” stated that “it was Armor-All.”

Mrs. Weber additionally testified that an employee of the Signature’s store told her that people had been slipping all morning in the spot where she fell. There is nothing in the record, however, to corroborate this.

The Webers have failed to provide any tangible evidence that there was a foreign substance on the floor where Mrs. Weber fell. The incident report for Mrs. IsWeber’s fall does say that there was a “slippery substance” on the floor where Mrs. Weber fell, but Mrs. Weber gave that information to the person who prepared the incident report. There is no evidence in the record that the person to whom Mrs. Weber gave the information independently verified what Mrs. Weber told that person.

In the instant case the Webers have failed to show that they can prove at trial that Ray Brandt created a condition that caused Mrs. Weber to fall. Further, there is no evidence that Ray Brandt had actual notice of the condition, and the Webers failed to show that they could prove at trial that the condition existed for such a period of time that it would have been discovered had Ray Brandt exercised reasonable care. Mrs. Weber was unable to adequately describe the “slippery substance” that she claimed caused her to fall so that the substance could be identified, and the Webers offered no evidence regarding the length of time the substance had been on the floor.

La. C.C.P. art. 966

La. C.C.P. art. 966(C)(2) provides that in a motion for summary judgment, “[t]he burden of proof remains with the movant.” Nevertheless, La. C.C.P. art. 966(C)(2) also provides that “if the movant will not bear the burden of proof at trial ... the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim ... but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim.... ” Then, “if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

|9In this case the burden of proof was initially on Ray Brandt and New Hampshire. They were the movers in the motion for summary judgment. We believe that they have met their burden of showing an absence of factual support for the Webers’ claims. Therefore, it became incumbent upon the Webers to show that they would be able to establish their evi-dentiary burden of proof at trial. We do not find that they met their burden. Although Mrs. Weber testified that the floor was slippery and had a “glaze,” the Ray Brandt employee who removed the automobile displayed by Ray Brandt testified that no liquid or waxy substance was in the area where the automobile had been on display. Further, he testified that no one associated with Ray Brandt had put Armor All or any other substance on the automobile while it was on display and that Armor All had never been used on the tires or on any other part of the automobile.

To defeat the motion for summary judgment filed by Ray Brandt and New Hampshire, the Webers must show that they can prove at trial that there was a foreign substance on the floor, that it was there as a result of the Ray Brandt display, and that Ray Brandt had actual or constructive notice that the substance was on the floor. The fall occurred after the Ray Brandt display had been removed from the mall. There are a number of possible causes of Mrs. Weber’s fall that do not involve Ray Brandt in any way. For example, the fall could have been caused by a foreign material placed on the floor by another patron of the mall or by the inherently slippery nature of the floor on which she fell. The Webers have failed to show that they can prove at trial the elements that they are required to prove for liability to be imposed upon Ray Brandt.

| inCustody and Control of the Premises

The Webers contend that there is a genuine issue of material fact regarding the custody and control of the area where Mrs. Weber fell. It is clear that Ray Brandt had physically vacated the premises where the automobile display had been prior to the time that Mrs. Weber fell. Nevertheless, because Ray Brandt was obligated by its agreement with Debartolo to clean the display area after the automobile was removed from the mall and did not do so, the Webers argue that there is a genuine issue of material fact regarding whether Ray Brandt retained custody and control of the area where Mrs. Weber fell until all of its obligations to Debartolo regarding the display were fulfilled.

In Whitney National Bank v. Rockwell, 94-3049 (La.1995), 661 So.2d 1325, 1329, the Louisiana Supreme Court stated that “[a] material fact is one whose existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery, i.e., one that would matter on the trial of the merits.” The Supreme Court then stated that “[a] genuine issue is a triable issue.” Id. In the instant case, who had custody and control of the area of the floor in the mall where Mrs. Weber fell is not a material fact. Ray Brandt clearly did not have physical custody or control of the area where Mrs. Weber fell at the time that she fell. Because the Webers have failed to show that they can prove at trial that a substance related to the Ray Brandt display was on the floor when Mrs. Weber fell, there is no genuine issue of material fact regarding Ray Brandt’s liability.

CONCLUSION

The Webers have failed to show that they could prove at trial the existence of a slippery substance on the floor where Mrs. Weber fell or that it was in any way related to the Ray Brandt automobile display. Therefore, we find that the In Webers failed to show the existence of a genuine issue of material fact in connection with their claim against Ray Brandt that would preclude summary judgment in favor of Ray Brandt. The judgment of the trial court is affirmed.

AFFIRMED.

      . UNICCO Service Company, the company that provides janitorial and maintenance service to the mall, and its insurer, Travelers Insurance Company, were added as defendants in a supplemental petition.

      . Armor All is a product designed to clean, shine, and protect the rubber, vinyl, and plastic parts of an automobile.

      .MRI, an acronym for magnetic resonance imaging, refers to a technique used to create images of organs of the body and other living tissue.

      . La. R.S. 9:2800.6 establishes the burden of proof in claims against merchants by persons who use the merchants’ premises.


author: | WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Gerod D. BREWER, Appellant.
    No. 38,515-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2004.

      Richard C. Goorley, Shreveport, Peggy J. Sullivan, Monroe, for Appellant.
    Gerod D. Brewer, Pro Se.
    Paul J. Carmouche, District Attorney, for Appellee.
    Tommy J. Johnson, Laura O. Wingate, Sean D. Miller, Assistant District Attorney.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   | WILLIAMS, J.

The defendant, Gerod D. Brewer, was charged by grand jury indictment with first degree murder, a violation of LSA-R.S. 14:30. The indictment was later amended to charge the defendant with second degree murder, a violation of LSA-R.S. 14:30.1. After a jury trial, the defendant was found guilty of the responsive verdict of manslaughter, a violation of LSA-R.S. 14:31 A(l). Subsequently, the state filed a habitual offender bill against the defendant, and the court adjudicated the defendant a third felony offender. He was sentenced to serve the mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm the defendant’s conviction, his adjudication as a third felony offender, and the mandatory life sentence which was imposed.

FACTS

The victim, Robert Morris, Sr., also known as “Soot” or “Sut” lived in Mira, Louisiana. He was sixty-two years old and confined to a wheelchair. It was well-known around town that Morris would help anyone in town who needed transportation, to use the telephone or to wash his or her clothes. Morris was also known to always have large sums of cash on his person. A co-defendant, LaShonda Strom-ile Hill, lived next door to Morris in a trailer owned by Morris’ daughter, Celest Morris; Because Morris’ first wife is married to Hill’s father, she referred to Morris as her stepfather.

On July 5, 2001, the day before the murder, Hill had been given an eviction notice for nonpayment of her rent. She was given three days to pay her rent or vacate her home. Hill testified that on the day of the murder, she |2went to Texar-kana, Texas to visit the defendant, who is the father of two of her children. Since Hill’s husband was in jail, she and the defendant decided to spend the evening together and party in Mira. The defendant took a change of clothing with him before they left Texarkana. During the trip, the defendant bought beer and gin which he drank throughout the drive. Hill testified the defendant told her that he needed money and asked her if Morris had any money. They then discussed plans to rob Morris, and the defendant decided that he would kill Morris to prevent them from getting caught.

Because Hill knew that Morris would not let anyone in his trailer after 8:00 p.m. unless he either knew them or the visit was prearranged, she drove the defendant to Morris’ house and informed Morris that the defendant needed to use his telephone. Morris let the defendant inside and Hill went back to her car. Hill testified that she heard Morris screaming and the defendant screaming at Morris. According to Hill, when she got out of her car and walked back to the trailer, she saw the defendant stab Morris at least two times. She testified that Morris screamed to her for help, but she just screamed and ran back to her car. Hill testified that the defendant later ran from the trailer and got into the passenger seat of her car with the bloody knife in his possession. She testified that the defendant had a cut on his hand, and he was screaming, “I did it.” ... “I got $1400.” Hill and the defendant then drove back to Plain Dealing. Hill testified that she drove the defendant to a Piggly Wiggly in Plain Dealing, where he threw the murder weapon and the victim’s wallet into a dumpster. The defendant changed pinto his other clothes and threw the pair of jeans and t-shirt that he was wearing during the murder over the bridge in Plain Dealing. Hill drove the defendant back to Texarkana, where she spent the night. She stated that the defendant gave her some of the money from the robbery and told her to keep quiet.

Early the next morning, Hill drove back to Mira. When she realized that no one had discovered the homicide, she notified the victim’s son, Robert Morris, Jr., claiming to have just discovered the crime. That same day, Hill spent her share of the money on money orders for her jailed husband and her rent payments. She also got a beauty treatment and went on a shopping spree at Wal-Mart.

During the investigation of the murder, Hill gave several different accounts of the robbery-murder, but all implicated the defendant. Both she and the defendant were arrested and charged with the murder of Robert Morris, Sr. Subsequently, Hill pled guilty to armed robbery, received an agreed sentence of 19 years and agreed to testify truthfully against the defendant. An unrelated aggravated battery charge pending against Hill was also dismissed in exchange for her testimony. At the defendant’s trial, his defense was essentially that the jury should not believe Hill. The defense urged that Hill was a liar, who was protecting herself and some third party. Defendant also claimed that Hill had framed him.

The jury found the defendant guilty of the responsive verdict of manslaughter. A timely motion for new trial and in arrest of judgment was denied. The state filed a habitual offender bill, alleging a prior 1990 ^conviction for distribution of a Schedule I, controlled dangerous substance and a prior 1996 conviction for aggravated battery. Both of the predicate convictions were based on guilty pleas. After a hearing, the trial court adjudicated the defendant a third felony offender and imposed the mandatory sentence of life imprisonment, without the benefit of parole, probation or suspension of sentence. The court denied a timely motion for reconsideration of sentence. The defendant now appeals his conviction and sentence.

DISCUSSION

Sufficiency of the Evidence:

By this assignment of error, the defendant contends the evidence presented was insufficient to support the jury’s verdict of manslaughter. He argues that the state’s key witness, Hill, was not a credible witness because she had given several contradictory statements to the investigators. As stated above, the defendant was charged with second degree murder. The jury returned a responsive verdict of manslaughter, as allowed under LSA-C.Cr.P. Art. 814.

Second degree murder is “the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm or when the offender is engaged in the perpetration of an enumerated felony.” LSA-R.S. 14:30.1. Specific intent is the state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act. LSA-R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d5 798 (1990). Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371.

Manslaughter, LSA-R.S. 14:31 A(l), is defined as a homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood. Both Articles 30 and 30.1 list armed robbery as an enumerated offense.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in LSA-C.Cr.P. Art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. This court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

|fiIn the instant case, the trial testimony and other evidence presented, support the defendant’s manslaughter conviction. Hill testified that both she and the defendant needed money. Théy discussed robbing Morris. She drove the defendant to Morris’ trailer and under the pretext of using Morris’ telephone, gave the defendant access inside Morris’ home. Hill witnessed the defendant stabbing Morris. Hill also received some of the money from the robbery-murder. Although Hill gave five different accounts to the police of the events of the crime, in each of her accounts she implicated the defendant as the actual murderer. Her false statements mainly centered around her involvement in the crime.

Moreover, other trial testimony and the physical evidence corroborated Hill’s testimony. Shawanda DeBose, the defendant’s cousin, testified that Hill and the defendant came to her home in Plain Dealing on the night of the homicide to request her brother’s assistance in changing a flat tire. The defendant offered her $20 to call her brother. DeBose testified that the defendant was in the possession of “a lot of money” when he came to her home.

Celest Morris, the victim’s daughter, testified that Morris only allowed people he knew to use his telephone. She testified Hill’s rent was two months in arrears and she owed a total of $360. The day after the homicide, Hill paid the back rent with money orders. Both Sherry Abbott, an employee of the Quick Pantry in Vivian, and Tammy Terry, the store manager, confirmed that Hill purchased money orders the day after the homicide.

17Caddo Parish Detective James Bon-nette testified that he seized two of the bills that Hill had used to purchase money orders because the bills had red spots on them that appeared to be blood. The money was sent to the crime lab. After interviewing Hill, Bonnette and other officers searched the Plain Dealing bridge. The search team found a pair of black pants and a white T-shirt exactly where Hill stated the defendant had thrown them. They also recovered the victim’s wallet and the murder weapon. Bonnette testified that in each of Hill’s statements she named the defendant as the person who had killed Morris. According to Bon-nette, Hill admitted her involvement in the robbery, but she denied any participation in the homicide.

Connie Brown, a forensic DNA analyst at the crime lab, testified that she examined the specimens submitted in this case. Blood found on the inside of the passenger’s door of Hill’s car belonged to the victim. The defendant’s DNA was recovered from the console of Hill’s car, the T-shirt and the currency Hill used to purchase the money orders.

The state also introduced photographs of the defendant’s hands showing cuts and abrasions on them. The defendant testified that he was in Arkansas during the time of the murder and he had hurt his hand on July 5, 2001 while scaling fish at a family fish fry; however, the jury did not find his testimony credible.

After a thorough review of this record, we conclude that the evidence in the instant case, when viewed in the light most favorable to the prosecution, was sufficient to convict the defendant of the crime of ^manslaughter, beyond a reasonable doubt. This assignment of error lacks merit.

Improper Closing Argument

Motion for Mistrial

By his next assignment of error, the defendant contends the trial court erred in denying his motion for mistrial based on improper statements made by the prosecutor during closing argument. The defendant argues that during closing argument the prosecutor stated his personal opinion as to the veracity of LaShon-da Hill’s testimony.

During closing argument the prosecutor stated, “She was not lying in this courtroom yesterday. She had too much to lose. If she didn’t testify truthfully she is going to be sitting right there not looking at a life sentence, looking at a possible death sentence and if for one second, one word, the State thought that she was lying this trial would have been over.” At the end of the closing argument, the defense requested a mistrial based on the prosecutor’s comments.

The trial court ruled that the statement did not meet the statutory requirement for a mistrial and added, “Nor do I think the jury picked up on anything that was said, nor do I think anything was stated that may have a prejudicial effect against the defendant.”

The scope of the argument is defined in LSA-C.Cr.P. Art. 774, which provides in part:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice.

|flA mistrial is a drastic remedy which is warranted only when substantial prejudice would otherwise result to the accused. State v. Edwards, 420 So.2d 663 (La.1982); State v. Harris, 28,517 (La.App.2d Cir.8/21/96), 679 So.2d 549. Determining whether such prejudice has resulted is within the sound discretion of the trial judge. State v. Matthews, 552 So.2d 590 (La.App. 2d Cir.1989), writ denied, 559 So.2d 137 (La.1990).

In State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, 200 cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995), the supreme court held that a conviction will not be reversed due to an improper remark during closing argument unless the reviewing court is thoroughly convinced the remark influenced the jury and contributed to the verdict. The court concluded, “Much credibility should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and who have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.”

Based on this record, we conclude that the jury was presented with ample evidence of the defendant’s guilt. Thus, we do not find that the jury was influenced by the prosecutor’s remarks or that they contributed to the verdict. Moreover, an argument with regard to the credibility of a witness is proper where the credibility of the witness is in question and the facts bearing on the witness’ credibility appear in the record. State v. Sayles, 395 So.2d 695 (La.1981); State v. Procell, 365 So.2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979); State v. May, 339 So.2d 764 (La.1976); State v. West, 319 So.2d 901 (La.1975).

In the instant case, the testimony at trial revealed the facts of Hill’s plea agreement, her five different factual accounts of the crime to investigators and the defendant’s accusation that she was lying and framing him. Therefore, because Hill’s credibility was in question, the prosecutor’s comments were proper. The trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. This assignment lacks merit.

Habitual Offender Adjudication:

By this assignment, the defendant contends the trial court erred in adjudicating him a third felony offender. He argues that the 1990 drug distribution conviction should not have been used as a predicate offense because he was not properly advised of his right to a trial by jury.

LSA-R.S. 15:529.1 D(l)(b) provides that a defendant must file a written response to the habitual offender bill of information in order to assert a claim that any conviction is invalid. This article also provides that a copy of the response shall be served on the prosecutor, and the factual basis for the challenge must be set forth with particularity. Further, the statute states, “Any challenge to a previous conviction ... which is not made before sentence is imposed may not thereafter be raised to attack the sentence.”

In the instant case, the defendant did not file a written response to the habitual offender bill of information. However, he did object on constitutional grounds to the use of his April 1990 conviction as a predicate offense during the habitual offender hearing, specifically noting, prior to imposition of sentence, that the challenged guilty plea lacked an explanation Inof the right to trial by jury. Accordingly, we find that this issue is properly before us for review.

In State v. Shelton, 92-3070 (La.7/1/93), 621 So.2d 769, the Louisiana Supreme Court held that when a defendant in a habitual offender proceeding denies the allegations of the prior offense, the defendant has the burden of showing an infringement of his rights or a procedural irregularity. If the defendant does this, the burden of proving the constitutionality of the prior guilty plea shifts to the prosecution. If the state introduces anything less than a “perfect transcript” of the guilty plea, the judge conducting the habitual offender proceeding must weigh the evidence submitted by the parties to determine whether the state has met its burden of “proving that defendant’s prior guilty plea was informed and voluntary, and was made with an articulated waiver of Boykin rights respecting jury trial, confronting accusers, and self-incrimination.” See also, State v. Brady, 32,909 (La.App.2d Cir.12/30/99), 748 So.2d 1280.

A review of the transcript of the challenged guilty plea colloquy shows that the defendant was present in court with counsel. The court asked defense counsel, “Is your client ready for trial or do you want to take up the proceedings outside the presence of the venire?” Counsel replied, “Outside the presence of the jury.” The court then excused the jurors.

Under these circumstances, we hold that defendant’s claim that this guilty plea was invalid because he was not made aware that he had a right to trial by jury lacks merit. Although the trial judge did not specifically say “trial by jury” during the Boykin colloquy, the defendant had seen that a jury 11gwas present. Both the court and defense counsel referred to the jury which was seated in the room at that time. Thus, the record demonstrates adequately that defendant was aware he was entitled to a trial by jury. Therefore, the trial court in the instant proceeding did not err in adjudging defendant to be a third felony offender.

And see, State v. Gillespie, 486 So.2d 984, 986 (La.App. 2d Cir.1986), which held that a valid and sufficient waiver of jury trial may be entered when the defendant’s attorney does so in open court in the defendant’s presence, notwithstanding the trial judge’s failure to inform the defendant of such a right and to have him personally state he waives same.

Excessive sentence:

By his last assignment of error, the defendant contends the mandatory life sentence imposed by the trial court is unconstitutionally excessive. He further argues that the trial court did not articulate its reasons for the sentence imposed.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714; State v. Owens, 32,642 (La.App.2d Cir.10/27/99), 743 So.2d 890, writ denied, 2000-0438 (La.9/29/00), 769 So.2d 553. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Johnson, 31,448 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653, cert. denied, Johnson v. Louisiana, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).

In this case, La. R.S. 15:529.1(A)(l)(b)(ii) mandated a life sentence without benefits for defendant: he is a third felony offender with prior convictions for distribution of CDS and for aggravated battery, a crime of violence under La. R.S. 14:2(13)(e).

As this court stated in State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490:

Although, in State v. Dorthey, 623 So.2d 1276 (La.1993), the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. (Citations omitted.)

Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675. And, the mandatory life sentences it requires are presumptively constitutional and should be accorded great deference by the judiciary. State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.

Johnson and Wade, supra, also held that the burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign | usentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson at 676; Wade, supra.

Here, defendant has made no such showing. Although he argues that the predicate distribution charge involved only a small amount of CDS he has not met his burden of proving that, because of that fact, he is that exceptional person for whom the mandatory sentence is not appropriate. The mandatory life sentence in this case, based on the totality of the facts and circumstances, is appropriate.

CONCLUSION

For the foregoing reasons, the defendant’s conviction, his adjudication as a third felony offender, and the life sentence imposed are affirmed.

AFFIRMED.


author: b DREW, J.

text:
    Elmer N. WATTS, Jr., et ux., Plaintiffs-Appellants v. Samuel Mack THURMAN and Mary Joe Davis Thurman, Defendants-Appellees.
    No. 38,744-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2004.

      Tyler & Johnson, by Tommy J. Johnson Shreveport, for Appellants, Elmer N. Watts, Jr. and Melinda Watts.
    Cotton, Bolton, Hoychick & Doughty, by David P. Doughty, Rayville, for Appellees Samuel Mack Thurman and Mary Jo Thurman.
    Nelson, Zentner, Sartor & Snellings, by Thomas G. Zentner, Jr., Monroe, for Ap-pellee La. Farm Bureau Casualty Insurance Company.
    Hayes, Harkey, Smith & Cascio, by Joseph D. Cascio, Jr., Gary Maxwell Cox, Monroe, for Third Party Appellee, Cona-gra Poultry Company.
    George Edward Lucas, Jr., Monroe, for Appellee Samuel Steve Thurman.
    Before GASKINS, DREW and LOLLEY, JJ.
   b DREW, J.

Samuel Mack Thurman (“Samuel”) is the father of Samuel Steve Thurman (“Sammye”). Beginning in 1995, Sammye raised chickens for ConAgra Poultry Company in chicken houses that were located on his father’s property in Lillie, Louisiana. Sammye apparently leased these houses from his father. Samuel and Sam-mye had each purchased Farmer’s Comprehensive Personal Liability insurance from Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”). Samuel’s policy was numbered CP829184. Sammye’s policy was numbered CP846636 and provided coverage for Sammye’s property located in Bernice, Louisiana, not his poultry operations located on his father’s property.

Elmer Watts was employed by J & C Poultry, Inc. to supervise the collecting of chickens by migrant workers. Watts alleged that he was injured when a fan located in one of the chicken houses fell against him. On October 16, 2000, Watts and his wife filed suit against Samuel and his wife, Mary Thurman. In their answer, the Thurmans filed a third-party demand against J & C Poultry and ConAgra Poultry. The Wattses later amended their petition to add Sammye and Farm Bureau as defendants. The amended petition alleged that Farm Bureau was liable under the terms of Samuel’s policy that provided coverage to him and/or his son.

Farm Bureau filed a motion for summary judgment in which it urged that it did not afford coverage to Sammye for the injuries sustained by Elmer Watts. Samuel and his wife filed a motion for summary judgment against the Wattses. They asserted that they were not liable for the alleged | ¡¡injuries because they did not own the fan in question and they did not have custody of the chicken house at the time of the accident.

The trial court ruled on the motions for summary judgment on February 14, 2003. The motion for summary judgment filed by Samuel and his wife was denied. The motion for summary judgment filed by Farm Bureau was granted, with the court finding that the General Liability Policy was the insuring agreement and the accident did not occur on insured premises. A judgment rendered the next month stated that Farm Bureau was dismissed as a defendant regarding the insurance policy issued to Samuel. Mr. and Mrs. Watts then appealed.

Recognizing that Farm Bureau remained as a party as Sammye’s liability insurer, this court ordered the parties to show cause why the appeal should not be dismissed as an unappealable partial judgment. This court also noted that it was unclear from the judgment if Farm Bureau was dismissed as Samuel’s insurer regarding his liability or the liability of his son. In a joint motion to maintain appeal, the parties argued that Farm Bureau had been dismissed as to coverage afforded to Sammye under either policy. Dismissing the appeal, this court noted that despite the assertion to the contrary in the joint motion, the judgment only dismissed Farm Bureau as a defendant regarding coverage provided under Samuel’s policy.

The parties next filed a joint motion in the trial court to amend, clarify, and certify the judgment. An amended and clarified judgment was rendered on December 5, 2003.- The judgment now stated that Farm Bureau was dismissed as to any insurance coverage on behalf of Sammye under any |3Farm Bureau policy. The judgment was also certified as a partial final judgment under ' La. C.C.P. art. 1915(B)(1). The Wattses again appealed.

DISCUSSION

The solitary issue raised by appellants before this court is whether the exclusions and definitions for policies CP829184 and CP846636 are set forth in a Farm Bureau General Liability Policy booklet. Plaintiffs contend the General Liability Policy booklet does not limit the policies’ coverage because there is not a link between the policies’ declarations sheets and the booklet in compliance with La. R.S. 22:628. In granting Farm Bureau’s motion for summary judgment, the trial court found there was no genuine issue of material fact that the General Liability Policy is the insuring agreement. The trial court emphasized the existence of a certification placed upon the declarations sheets by Farm Bureau, as well as the numerous references to “declarations” that were made in the General Liability Policy booklet.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. |4966(B). Facts are “material” if they potentially insure or preclude recovery, affect the litigants’ ultimate success, or determine the outcome of a legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

La. R.S. 22:628, also known as the “Entire Policy Contract Statute,” provides:

No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance. This Section shall not apply to contracts as provided in Part XV of this Chapter.
The provisions of this Section shall apply where a policy or other written evidence of insurance is coupled by specific reference with another policy or written evidence of insurance in existence as of the effective date hereof or issued thereafter.
Any written agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be deemed to be physically made a part of a policy or other written evidence of insurance, within the meaning of this section, whenever such written agreement makes reference to such policy or evidence of insurance and is sent to the holder of such policy or evidence of insurance by United States mail, postage prepaid, at such holder’s last known address as shown on such policy or evidence of insurance or is personally delivered to such holder.

In order to address the application of this statute as sought by appellants, it is helpful to examine the supreme court’s decision in Lindsey v. Colonial Lloyd’s Ins. Co., 595 So.2d 606 (La.1992). In that case, Liberty Mutual issued a Business Automobile Insurance Policy to Action Auto Rental, Inc. The policy provided $500,000 in coverage to Action Auto’s short-term lessees. An endorsement to the policy provided that coverage was subject to any limits of liability in rental agreements. When LeAnne Roy rented a car from Action Auto, the rental agreement stated that Action Auto provided liability coverage for the customer and driver with liability limits equal to the minimum limits required by Louisiana’s financial responsibility laws. The rental car driven by Mrs. Roy subsequently struck a vehicle in which Mrs. Lindsey and her son were riding, injuring the Lindseys, and a lawsuit was brought.

At issue in Lindsey was whether the much lower liability coverage limits set forth in the rental agreement were rendered ineffective because of Liberty Mutual’s alleged failure to comply with La. R.S. 22:628. The supreme court dismissed this argument, finding that because the Entire Contract Policy Statute was not intended to apply to the situation, “... the lack of reference in the rental agreement to the policy [was] immaterial.” Id., 595 So.2d at 607.

Discussing the intent and purpose of La. R.S. 22:628, the supreme court stated:

... The legislature obviously did not intend § 628 to protect third parties inasmuch as the statute refers to informing the policyholder of changes in its coverage. Indeed, informing third parties of changes in the policy is both impractical and unnecessary given third parties do not, and are nowhere required to, have possession of the policy in the first place.
* * *
1 sThe obvious intent of § 628 is to protect the policyholder from fraud or deception on the part of the insurer. We have held the “Entire Contract Policy Statute” is meant to protect the parties to the insurance contract by assuring that both have in their possession the entire contract.
* * *
... It is thus patent to this Court that § 628 does not provide and was not meant to provide protection to third parties, that is, parties other than the actual policyholder. Rather, the section was intended to apply to situations in which the insurer modifies the contract of insurance, hence the requirement that the modifying agreement, such as an endorsement, refer to the policy and be sent to the policyholder.

Id, 595 So.2d at 611. (Emphasis added.)

Therefore, .it is clear that the Wattses cannot depend on Farm Bureau’s alleged non-compliance with La. R.S. 22:628 as their basis to defeat Farm Bureau’s motion for summary judgment. This is an argument reserved for the insureds in this case. Accordingly, we affirm the judgment dismissing Farm Bureau as a defendant as to any insurance coverage on behalf of Sammye under either policy CP829184 or CP846636 for the accident at issue.

DECREE

At appellants’ costs, the judgment is AFFIRMED.

      . "Samuel” is sometimes spelled "Samual” in the record, including the caption for the original petition.

      . Robert Riche, a product manager for Farm Bureau, testified that Farm Bureau does not offer a specific Farmer’s Comprehensive Personal Liability Policy. Instead, Farm Bureau offers a General Liability Policy, and the booklet for that policy applies to personal liability, farm liability, and commercial liability coverages.

      . A review of the record does not show any opposition filed by Samuel Mack Thurman or Samuel Steve Thurman to Farm Bureau's motion for summary judgment, nor did either Thurman appeal the judgment.


author: | ,MAX N. TOBIAS, JR., Judge.

text:
    FORUM FOR EQUALITY PAC, a Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. LeBlanc and William A. Schultz v. CITY OF NEW ORLEANS and the Honorable W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana Only, and Not Individually.
    No. 2004-CA-1432.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2004.

      John D. Rawls, Regina 0. Matthews, Martzell & Bickford, Kenneth Randall Evans, Evans & Clesi, PLC, New Orleans, LA, for Plaintiffs/Appellants.
    Charles C. Foti, Jr., Attorney General, Angie R. LaPlace, Assistant Attorney General, Roy A. Mongrue, Jr., Assistant Attorney General, Thomas S. Halligan, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellee, W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARRO, JR., and Judge ROLAND L. BELSOME).
   | ,MAX N. TOBIAS, JR., Judge.

This appeal is brought by the plaintiffs, Forum for Equality PAC, a registered Louisiana political action committee, Lawrence E. Best, Jeanne M. LeBlanc, and William A. Schultz (hereinafter collectively, the “plaintiffs”), who contend that the trial court erred by granting the defendants’ declinatory exception of improper venue. Based on a review of the record and the applicable law, we affirm the judgment.

On 6 August 2004, the plaintiffs filed suit in the Civil District Court for the Parish of Orleans objecting to the 18 September 2004 election on Acts 2004, No. 926 of the 2004 regular session of the Louisiana Legislature (hereinafter, “Act 926”), a joint resolution of the legislature for a proposed constitutional amendment which states:

Proposing an amendment to the Constitution of Louisiana, to enact Article XII, Section 15, relative to marriage; to require that marriage in the state shall consist only of the union of one man and one woman; to provide that the legal incidents of marriage shall be conferred only upon such union; to prohibit the validation or recognition of the legal status of any union of unmarried individuals; to prohibit the recognition of a marriage | ^contracted in another jurisdiction which is not the union of one man and one woman; to provide for submission of the proposed amendment to the electors and provide a ballot proposition; and to provide for related matters.

Section 1. Be it resolved by the Legislature of Louisiana, two-thirds of the members elected to each house concurring, that there shall be submitted to the electors of the state of Louisiana, for their approval or rejection in the manner provided by law, a proposal to add Article XII, Section 15 of the Constitution of Louisiana, to read as follows: § 15. Defense of Marriage

Section 15. Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.

Section 2. Be it further resolved that this proposed amendment shall be submitted to the electors of the state of Louisiana at the statewide election to be held on September 18, 2004.

Section 3. Be it further resolved that on the official ballot to be used at said election there shall be printed a proposition, upon which the electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows:

To provide that marriage in this state shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or | ¡¡any marriage contracted in any other jurisdiction which is not the union of one man and one woman. (Adds Article XIII, Section 15)

The suit was filed against defendants, the City of New Orleans, W. Fox McKeithen (Louisiana’s Secretary of State) (hereinafter, “McKeithen”), , and the Attorney General of Louisiana (collectively hereinafter, the “defendants”), asserting Act 926 could not constitutionally be placed on the 18 September 2004 ballot because it would violate La. Const, arts. I, §§ 1, 3, 4, 22, and 23, and XIII, § 1.

In response to the suit, McKeithen filed several exceptions, including a declinatory exception of improper venue, arguing that pursuant to La. R.S. 18:1404 C, exclusive venue for the suit was in East Baton Rouge Parish. The plaintiffs opposed the exception, contending the statute in question applied only to post-election challenges. Thus, they argued, venue was proper because the City of New Orleans was also a party. Thus, suit could be filed in either East Baton Rouge or Orleans Parish.

The matter was heard by the trial court on 10 August 2004, at which time the court granted the exception of improper venue, stating:

The court, having reviewed the law and after considering the memoranda and arguments of counsel, finds that pursuant to R.S. 18:1404 C, the exclusive venue for this suit is in East Baton Rouge Parish, and upon the request by counsel for the plaintiffis] that in the event that this court finds venue improper in this court, that the suit be dismissed rather than transferred to East Baton Rouge Parish.

|4The sole issue presented for review is whether the trial court erred in granting the exception of improper venue. For that determination, we look to the statute in question, La. R.S. 18:1404 C, which states:

§ 1404. Venue

A. (1) An action objecting to a candidate or contesting an election shall be instituted in the district court for the parish where the state capitol is situated if the action involves an office filled by statewide election and shall be instituted in the district court for any parish included, in whole or part, in the district for the office the action involves.
(2) An action objecting to the calling of a special election shall be instituted in the district court for the parish where the governing authority calling such special election is domiciled. If the governor, president of the Senate, or speaker of the House of Representatives calls the special election, then an action objecting to the calling of such special election shall be instituted in the district court for the parish where the state capítol is situated.
B. An action contesting an election on a proposition, except an election on a proposed constitutional amendment, shall be brought in the district court for the parish where the governing authority calling the election is domiciled.
C. An action contesting an election upon a proposed constitutional amendment shall be brought in the district court for the parish where the state capítol is situated.
[Emphasis added.]

The plaintiffs contend that the trial court relied upon the venue requirements for a post-election challenge that alleges irregularities and fraud in the voting process. However, the plain language of the statute refers to a proposed | Kconstitutional amendment. This means a constitutional amendment that has not yet passed. Therefore, as found by the trial court, this action must be brought in East Baton Rouge Parish.

Further, we find that La. R.S. 18:1404, a special statute contained within the Election Code mandated by La. Const, art. XI, § 1, supersedes the venue articles contained in Chapter 2 of Title 1 of Book I of the Louisiana Code of Civil Procedure, La. C.C.P. arts. 41, et seq. and La. C.C.P. arts. 71, et seq., and other special venue articles. The City of New Orleans, named as a party defendant by the plaintiffs in this suit, is neither a necessary or indispensable party to this litigation for purposes of adjudication of the present issues. La. C.C.P. arts. 641 and 642. The City’s interest is tangential; if the City wishes to assert an interest in the litigation, it is best handled as an incidental action asserted in accordance with Chapter 6 of Title 2 of Book I of the Louisiana Code of Civil Procedure. Thus, the venue article for a suit against a political subdivision (like the City of New Orleans) contained in La. R.S. 13:5104 is inferior to the interests of the state in requiring venue in election matters to be in East Baton Rouge Parish, the site of the Louisiana capítol.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.