author: BROWN, C.J.

text:
    Kay Pedigo JONES, Plaintiff-Appellee v. John Daniel JONES, Defendant-Appellant.
    No. 38,790-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2004.

      The Boles Law Firm by Robert Alan Breithaupt, Monroe, for Appellant.
    Donald L. Kneipp, Monroe, for Appellee.
    Before BROWN, PEATROSS, and MOORE, JJ.

      . Dr. Baker’s recommendations entailed longer alternating weekends, from Thursday evenings until Monday mornings during the school year, and additional weekday visits during the weeks that Danny does not have weekend visitation. This would result in the children spending an additional 37-45 nights per year with their father.

   BROWN, C.J.

This appeal arises out of rulings incidental to the divorce of Kay Cherie Pedigo Jones (“Cherie”) and John Daniel Jones (“Danny”). For the reasons set forth below, we amend in part and, as amended, affirm.

Facts and Procedural Background

Danny and Cherie were married on November 18, 1994. Two children were born to the couple: a daughter, Shelby, on September 3, 1997, and a son, Benjamin, on February 28, 2000. After several separations and reconciliations during the course of their marriage, the parties separated in August 2002 and Cherie filed for divorce that same month, seeking joint custody and designation as domiciliary parent, as well as awards of child and spousal support. In his answer, Danny filed a recon-ventional demand for divorce, sought domiciliary custody, and asserted that Cherie’s fault should preclude an award of permanent spousal support.

An interim order was entered on November 19, 2002, providing that Cherie would have domiciliary custody of the children, with Danny having visitation on an alternating basis of three nights one week, two nights the next week. Thereafter, on March 24, 2003, a second order was entered, awarding Cherie interim spousal support in the amount of $5,000 per month and child support in the amount of $3,500 per month. A judgment of divorce was rendered on May 8, 2003.

|2A hearing was held over the course of several months in the summer of 2003. The trial court’s written reasons were issued on October 31, 2003, and a judgment was signed and filed on November 24, 2003. The court’s judgment provided for:

(1)joint custody, with Cherie as domiciliary parent and Danny having specified weekend, holiday and summer visitation;
(2) Danny to pay child support in the amount of $4,000 per month;
(3) Danny to maintain health insurance on the children and bear the cost of all medical, dental, prescription, and orthodontic expenses not covered by insurance;
(4) Danny to pay interim spousal support in the amount of $5,000 per month; and
(5) Cherie to pay $625 per month to Danny for use of the matrimonial home.

The judgment further found that Cherie was free from legal fault in the dissolution of the parties’ marriage, although an award of permanent spousal support was not made at that time. It is from this judgment that Danny has appealed.

Discussion

Child Custody

The trial court’s award of joint custody and designation of Cherie as domiciliary parent are not contested. Danny simply asserts that his time with the children is inadequate.

The trial court awarded Danny visitation 'with the children as follows:' alternating weekend visitation during the school year from Friday after school until Sunday at 6:00 p.m.; three hours every Wednesday afternoon during the school year; most of the summer, except for three one-week | ^periods and alternating weekends, during which the children will be with Cherie; and specified holidays.

Taking issue with the fact that the trial court’s visitation schedule' gives him only 102-106 overnight visits per. year, Danny contends that his contact with the children is- insufficient and asks this court to increase his visitation in accordance with the recommendations of Dr. E.H. Baker, the court-appointed psychologist.

La. R.S. 9:335(2)(a) provides that in decrees of joint custody, the implementation order shall allocate time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents. Subsection (2)(b) further states that, to the extent it is feasible and in the best interest of the child, physical custody of the child should be shared equally.

The trial court’s finding that joint custody is in the best interest of the child does not necessarily require an equal sharing of physical custody. Collins v. Collins, 36,629 (La.App.2d Cir.10/23/02), 830 So.2d 448; Craft v. Craft, 35,785 (La. App.2d Cir.01/23/02), 805 So.2d 1213; Nichols v. Nichols, 32,219 (La.App.2d Cir.09/22/99), 747 So.2d 120. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Collins, supra; Craft, supra; EUinwood v. Breaux, 32,730 (La.App.2d Cir.03/01/00), 753 So.2d 977; Nichols, supra. Joint custody does not necessarily mean a fifty-fifty sharing of time. Collins, supra; Nichols, supra.

Each child custody case must be viewed in light of its unique facts and circumstances with the principal goal of reaching a decision that embodies the best interest of the child. Collins, supra; O’Brien v. O’Brien, 30,001 (La.App.2d Cir.12/10/97), 704 So.2d 933. A determination in each case will depend on the child’s age, the parents’ situations, and other factors relevant to that particular custody dispute. Craft, supra; Nichols, supra.

Regarding the testimony of an expert in a custody matter, after weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. The weight given expert testimony is dependent upon the expert’s professional qualifications and experience and the facts upon which the opinion is based. It is within the trial court’s discretion to substitute common sense and judgment when such a substitution appears warranted upon the record as a whole. Derbigny v. Derbigny, 34,672 (La.App.2d Cir.04/06/01), 785 So.2d 989; Warlick v. Warlick, 27,389 (La. App.2d Cir.09/29/95), 661 So.2d 706.

The trial court’s determination regarding child custody is entitled to great weight and will not be disturbed absent a clear abuse of discretion. Collins, supra; Craft, supra; Ellinwood, supra. As noted by the court in Wilson v. Wilson, 30,445 (La.App.2d Cir.04/09/98), 714 So.2d 35, an appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion.

|RAs noted above, Danny feels that the trial court erred in not awarding visitation as recommended by Dr. Baker. An examination of the entirety of Dr. Baker’s testimony, however, reveals that the psychologist backed away from his initial recommendation after evidence was presented which showed that Shelby’s grades had suffered as a result of being with her father on school nights. Dr. Baker further testified that if Danny’s co-parenting behavior did not improve, Shelby would continue to have problems. Dr. Baker opined, and the trial court found, given Danny’s behavior over the course of these proceedings (refusal to allow Cherie telephone contact with the children and failure to share Shelby’s testing and related school information with Cherie), that there was no indication that he would in fact change.

In fashioning the details and specifics of the joint custody plan in the instant case, the trial court discussed extensively the factors set forth in La. C.C. art. 134.- The following is excerpted from the court’s written reasons:

Mother has clearly demonstrated .that she is the parent who was intimately involved in the spiritual guidance, education, and rearing of the children. She was the parent who made the decisions concerning the educational and spiritual needs of the children. She has both the capacity and disposition to provide these needs.... [T]he evidence failed to establish that [Father] had the disposition to provide for these needs.
Mother has exclusive use of the former matrimonial domicile where the children have lived since 2000. Father has recently purchased a new home in West Monroe where he lives with his new wife and her two children. This factor weighs in favor of Mother as the children are accustomed to their own home and neighborhood and are not accustomed to living with their stepmother and her children with whom they will be sharing bedrooms.
_k- • • •
... If Father’s testimony is to be believed, then he has married a woman whom he has known for less than three months. He now has two stepchildren and lives in a new home. Father lacks the ability to provide a stable home life for the children as evidenced by his leaving the matrimonial domicile on three occasions. Additionally, it is apparent from the evidence that Father will likely resume his prior work schedule now that this litigation has concluded, and thus the children will be cared for by his' new wife whom the children have known for an extremely short period of time. Mother, on the other hand, has remained the only constant factor in the children’s lives.
The record is replete with instances of Father’s failure to cooperate or communicate with Mother concerning the needs and well-being of the children. Father failed to share schoolwork with Mother, failed to answer his telephone when Mother would call or to return her calls even on special occasions....
Mother has stayed at home with both children since she became pregnant with the parties’ younger child. She has been the primary care taker of both children and . has been very active in their lives. On the other hand, Father has been - very successful in his home health business of which he owns an one-third - interest. Prior to the commencement of these legal proceedings, he would go to work early and come home after work late.
The evidence showed that Father does not adhere ■ to any routine where the children are concerned. While under his care, their bedtime and mealtime varied from night to night and he would take Shelby to gymnastics if “she felt like going.” The evidence also showed that Father failed to discipline his children choosing instead to be a “fun” dad. On the other hand, the evidence showed that Mother provided an appropriate routine for the children as well as appropriate discipline.
The interim custody order provided for every weekend visitation for Father. This arrangement has not served the best interest of the children because it affords them no weekend time with their Mother and shifts visitation the night before Shelby’s test day at school.

17After considering the testimony and other evidence presented in this casé, the trial court found that it was in the best interest of the children for the parties to share physical custody of the children as set forth above. Specifically, the court found that its plan would insure that the children had significant and frequent contact with both parents, but in a way that would minimize disruption of their school schedule and prevent further conflict between the parties. We find no abuse of the trial court’s discretion and will not disturb the court’s ruling on appeal.

Child Support

Danny contends that the trial court’s award of $4,000 per month in child support is excessive and asks this court to reduce it to $2,800 per month. In the alternative, he suggests that a decrease in support is warranted for the summer months, when the children will be with him except for three weeks and alternating weekends with their mother.

La. R.S. 9:315.19 provides a schedule to be used to determine basic child support. Its listing stops at a combined adjusted gross monthly income of $20,000. At that level, for two children, the basic support amount is $2,647. However, La. R.S. 9:315.13(B) provides that if the combined adjusted gross income of the parties exceeds the highest level specified in the schedule contained in La. R.S. 9:315.19, the court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent, but in no event shall it be less than the highest amount set forth in the schedule.

[sThe amount of child support in a specific matter is to be judged on a case-by-case basis; there is no mathematical formula. Reeves v. Reeves, 36,259 (La. App.2d Cir.07/24/02), 823 So.2d 1023; Bagwell v. Bagwell, 35,728 (La.App.2d Cir.03/08/02), 812 So.2d 854; State v. Baxter, 33,188 (La.App.2d Cir.05/10/00), 759 So.2d 1079. A parent’s ability to pay and the lifestyle that the children would have enjoyed had the parents not separated are important considerations. Id. The overriding factor in determining the amount of support is the best interest of the children. Reeves, supra; Bagwell, supra. Under the clear provisions of La. R.S. 9:315.13, the trial court must use its discretion in setting the amount of the basic child support obligation when the gross income of the parties exceeds the highest figure provided by the schedule, and its judgment in such matters will not be disturbed in the absence of a showing of an abuse of discretion. Verges v. Verges, 01-0208 (La.App. 1st Cir.03/28/02), 815 So.2d 356, writ denied, 02-1528 (La.09/20/02), 825 So.2d 1179.

It is undisputed that Cherie, a stay-at-home mother, has no income, and that Danny’s income exceeds $20,000 per month. In fact, the trial court found that Danny’s monthly income ranged from $31,250 to $33,750 per month. In awarding child support of $4,000 per month, the trial court made the following observations:

Under any financial scenario that Father presented to this court, his monthly gross income significantly exceeds $20,000 per month, which is the maximum income amount shown in the guidelines. Under these circumstances, the court is authorized to deviate from the guidelines; however, a child support amount cannot be less than the maximum amount of $2,647 provided therein for two children.
|gIn this particular case, the court considers the fact that the Jones family enjoyed a rather lavish lifestyle. The evidence belies Father’s description of their lifestyle as modest. They lived in a large and expensive home in West Monroe furnished by an interior decorator at a handsome price. Both parents drove expensive vehicles and they owned a camp, rental property, recreational vehicles and another lot on which they planned to build another home. The children enjoyed extracurricular activities, entertainment, vacations and expensive clothing.

As noted by this court in Reeves, supra at 1027, children are entitled to support in an amount to maintain them in the style commensurate with the standard of living the family enjoyed before the marriage terminated. Inasmuch as the record contains a reasonable factual basis for the trial court’s award in the instant case, we decline to disturb it on appeal.

We will now address Danny’s request for a decrease in his support obligation for the summer months each year.

La. R.S. 9:315.8(E) provides in pertinent part:

(1) In cases of joint custody, the court shall consider the period of time spent by the child by the nondomieiliary parent as a basis for adjustment to the amount of child support to be paid during that period of time....
(3) In determining the amount of credit to be given, the court shall consider the following:
(a) The amount of time the child spends with the person to whom the credit would be applied.
(b) The increase in the financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c)The best interests of the child and what is equitable between the parties.
(4) The burden of proof is on the person seeking the credit pursuant to this Subsection.

An automatic deviation from the child support guidelines is not allowed. Guittot v. Munn, 99-2132 (La.03/24/00), 756 So.2d 290. All that |inis required by this statute is that the trial court consider the period of time spent with the nondomi-ciliary parent as a basis for adjustment of the child support obligation. Falterman v. Falterman, 97-192 (La.App. 3d Cir.10/08/97), 702 So.2d 781, unit not considered, 98-0076 (La.03/13/98), 712 So.2d 863. It also, iniportantly, requires the court to make this consideration in light of the domiciliary parent’s continuing expenses and the contribution made by the nondomieiliary parent to the children’s needs. State in the Interest of Travers, 28,022 (La.App.2d Cir.12/06/95), 665 So.2d 625; Falterman, supra; Green v. Green, 95-307 (La.App. 3d Cir.10/04/95), 663 So.2d 277. La. R.S. 9:315.8(E) does not mandate an adjustment for time spent, nor does it remove from the trial court the discretion to decide whether to make an adjustment. Falterman, supra; Temple v. Temple, 94-1244 (La.App. 3d Cir.03/01/95), 651 So.2d ,466. There is no hard and fast rule to determine just how much, if any, to reduce the child support obligation based on the percentage of time the children live with either parent. Falterman, supra; In the Matter of Burkenstock, 95-586 (La.App. 5th Cir.12/13/95), 666 So.2d 1168.

While the trial judge’s written reasons for judgment do not show that she considered this provision in setting Danny’s child support obligation, we nonetheless find that, while the children spend approximately 28% of their time with their father, the majority of this being during the summer months, the children’s ongoing expenses provided by their mother will be unaffected during the time they are with Danny. As noted by the court in Falter-man, supra, courts have consistently refused to grant a reduction |1Twhere the expenses of a domiciliary parent remain constant. See In the Matter of Burkenstock, supra; Corley v. Corley, 600 So.2d 908 (La.App. 4th Cir.1992). Furthermore, the trial court found that Danny lacked the disposition to provide for the children’s material needs in the manner he provided during the marriage, due to his recent remarriage and refusal to provide any support for Cherie and the children during the pendency of these proceedings until ordered to do so.

In light of the facts and circumstances of this case, particularly the fact that Danny’s monthly child support obligation is a mere 11-12% of his monthly income, we decline to grant a reduction in child support to Danny for the time that the children spend with him.

Fault

Danny argues that the trial court erred in concluding that Cherie was free from fault in the dissolution of their marriage. Specifically, he asserts that the breakup of their marriage was caused by Cherie’s inappropriate relationship with Greg Eberts, the husband of her friend, Carmen Eberts. While Danny has not taken issue with the trial court’s conclusion that the evidence did not establish that Cherie and Greg were involved in an adulterous or romantic relationship, he contends that Cherie’s friendship with Greg constituted cruel treatment.

Fault is a threshold issue in a claim for spousal support. In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on |1gthe needs of that party and the ability of the other party to pay. Roan v. Roan, 38,383 (La.App.2d Cir.04/14/04), 870 So.2d 626; Lyons v. Lyons, 33,237 (La. App.2d Cir.10/10/00), 768 So.2d 853, writ denied, 00-3089 (La.01/05/01), 778 So.2d 1142.

Fault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. Revision Comment (c) of 1997, La. C.C. art. Ill; Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359; Roan, supra; Jones v. Jones, 35,502 (La.App.2d Cir.12/05/01), 804 So.2d 161. Fault that precludes an award of spousal support must have occurred prior to the filing of the action for divorce, in this case, August 12, 2002. Legal fault may include, among other things, habitual intemperance or excesses, cruel treatment or outrages, abandonment, and adultery. Roan, supra; Mayes v. Mayes, 98-2228 (La.App. 1st Cir.11/05/99), 743 So.2d 1257. A spouse who seeks permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Roan, supra; Lyons, supra.

Domestic relations issues such as the determination of entitlement to spousal support largely turn on evaluations of witness credibility. Skannal v. Skannal, 25,467 (La.App.2d Cir.01/19/94), 631 So.2d 558, writ denied, 94-0697 (La.05/13/97), 637 So.2d 1067. The trial court has vast discretion in matters regarding determination of fault for purposes of precluding final periodic support. The trial judge’s finding of fact on the issue of fault will |13not be disturbed unless it is manifestly erroneous or clearly wrong. Roan, supra; Lyons, supra; Skannal, supra.

The following is excerpted from the trial court’s written-reasons for judgment:

The court finds that the evidence presented does not establish fault to the degree necessary to preclude Mother from receiving permanent periodic support.
Father sought to prove two separate episodes in an effort to establish his case for fault. One dealt with Mother traveling to Jack Blocker’s house bn the night of October 8, 2002, where she stayed for several hours. This occurred after the original petition for divorce and the re-conventional demand had been filed. ■Therefore, this action, because of when it occurred, could not have rendered the marriage insupportable since cross-petitions were already pending. Furthermore, the evidence offered, including the credible testimony of Jack Blocker, does not prove adultery or cruel treatment. The other episode dealt with an alleged romance between Greg Eberts and Mother. Apparently, Father recorded telephone conversations between Mother and Mr. Eberts, although when asked that question, he invoked his Fifth Amendment privilege against self-incrimination and refused to answer. However, Carmen Eberts, wife of Greg, testified that Father played such tapes for her. . Mr. Eberts admitted that he did speak to Mother on the phone on a number of occasions, and often on a daily basis. He admitted that this type of conduct on his part was not appropriate. However, Greg Eberts did testify that he was the one that initiated the majority of the phone calls and that Mother did not encourage him to pursue any type. of romantic relationship. There was also testimony. concerning Mother’s suggestive and provocative attire worn in the presence of Mr. Eberts. Both Mother and Mr. Eberts denied any sexual involvement with each other.
The court has previously outlined the circumstances which Father placed Mother in during 2002 and the steps which he took to plan for their ultimate divorce. Despite the innumerable allegations of cruel_|j^treatment made by Father against Mother, none are supported by the evidence nor do they rise to the level of cruel treatment. The court finds Mother free from legal fault. Thus, Mother is entitled to an award of permanent periodic spousal support the amount of which is not at issue in these proceedings.

In light of the above legal principles, as well as the testimony presented on this issue, we are unable to say that the trial ■court’s finding that Cherie was free fr,om legal fault in the dissolution of the parties’ marriage, is either manifestly erroneous or clearly wrong.

Interim Spousal Support

Danny next contends that the trial court’s award of $5,000 per month in interim spousal support is excessive. He points out that $5,000 per month, when combined with the child support award of $4,000 per month, has him paying Cherie $9,000, which is $1,342.19 more than the total expenses per month she alleged for herself and the children, $7,657.81, without even subtracting from this amount expenses Danny asserts are unreasonable and therefore not to be included in calculating interim spousal support.

A spouse may be awarded an interim allowance based on the needs of that spouse, the ability of the other spouse to pay and the standard of living of the spouses during the marriage. La. C.C. art. 113; Hitchens v. Hitchens, 38,339 (La.App.2d Cir.05/12/04), 873 So.2d 882; Bagwell v. Bagwell, 35,728 (La.App.2d Cir.03/08/02), 812 So.2d 854; Clark v. Clark, 34,314 (La.App.2d Cir.11/01/00), 779 So.2d 822, writ denied, 00-3196 (La.01/12/01), 781 So.2d 563. A spouse’s right to claim interim periodic support is based on the statutorily imposed duty of the spouses to support each other during their marriage. Bagwell, supra; McAlpine v. McAlpine, 94-1594 (La.09/05/96), 679 So.2d 85.

The purpose of interim spousal support is to maintain the status quo without unnecessary financial dislocation until a final determination of support can be made. Hitchens, supra; Stephenson v. Stephenson, 37,323 (La.App.2d Cir.05/14/03), 847 So.2d 175. The needs of the claimant spouse, in this case, the wife, have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay. Hitchens, supra; Braswell v. Braswell, 494 So.2d 1333 (La.App. 2d Cir.1986); Whatley v. Whatley, 430 So.2d 129 (La.App. 2d Cir.1983).

In order to demonstrate need for interim periodic spousal support, the claimant has the burden of proving that she lacks sufficient income or the ability to earn a sufficient income to maintain the standard of living that she enjoyed during the parties’ marriage. Hitchens, supra; Bagwell, supra; Thomey v. Thomey, 33,-000 (La.App.2d Cir.04/07/00), 756 So.2d 698.

The trial court is afforded much discretion in determining an award of interim spousal support. Such a finding will not be disturbed absent a clear abuse of discretion. Bagwell, supra; McDermott v. McDermott, 32,014 (La.App.2d Cir.06/16/99), 741 So.2d 186.

We agree with Danny that the trial court erred in awarding Cherie more per month than the amount shown in her affidavit of expenses. Therefore, we will amend the trial court’s judgment to reflect an interim support award of $3,650 per month rather than $5,000 each month. We decline, however, to reduce Cherie’s interim spousal support award further, noting again that, insofar as temporary support is concerned, Cherie is entitled to an amount which is in keeping with the standard of living enjoyed by the spouses during their marriage. See Hitchens, supra; Bagwell, supra. Having reviewed the affidavit showing Cherie’s monthly expenditures, we observe that some of these expenses will be reduced or excluded entirely for purposes of calculation of final periodic support.

Conclusion

For the reasons set forth above, the trial court’s judgment is amended to reduce the interim spousal support awarded to Cherie Jones from $5,000 to $3,650 per month. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are assessed one-fourth to Cherie and three-fourths to Danny.

AMENDED, and, AS AMENDED, AFFIRMED.

      . The parties and children were also required to undergo an evaluation with Dr. E.H. Baker, psychologist.

      . Danny was also ordered to continue pay- - ment of the house note on the matrimonial domicile. '

      . The trial court observed:
      In the first year of their marriage, Father left the matrimonial domicile and filed a petition for divorce; however, the parties reconciled approximately a month later. On another occasion, after the birth of their first child, Father again laid plans to leave the matrimonial domicile, but changed his mind after Mother begged him not to leave. A third separation occurred during the Christmas holidays of 2001 when Father left for approximately six (6) weeks. The parties went to counseling and reconciled briefly.
      After the reconciliation, Father closed their joint checking account and refused to provide Mother and children with support. Ultimately, Mother filed a petition for divorce on August 12, 2002, and Father filed an answer ... on August 27, 2002.

      . As noted by this court in Guillory v. Guillory, 626 So.2d 826 (La.App. 2d Cir.1993), permanent spousal support is not governed by the guidelines for interim spousal support. Spousal support after divorce is intended to provide for the maintenance of the spouse, as opposed to continuing an accustomed style of living. Gibbs v. Gibbs, 33,169 (La.App.2d Cir.06/21/00), 764 So.2d 261; Brewton v. Brewton, 30,134 (La.App.2d Cir.01/21/98), 705 So.2d 799. Maintenance includes the basic necessities of life, such as food, shelter, clothing, transportation, medical and drug expenses, utilities, household maintenance, and income tax liability generated by alimony payments. McLaughlin v. McLaughlin, 29,213 (La.App.2d Cir.04/02/97), 691 So.2d 834.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Melvin L. BURNS, Jr.
    No. 04-KA-175.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, R. Christopher Cox, III, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and MARION F. EDWARDS.
   THOMAS F. DALEY, Judge.

Defendant, Melvin L. Burns, Jr., appeals his conviction of possession of cocaine in violation of LSA-R.S. 40:967(C). He pleaded no contest under State v. Crosby, reserving the right to appeal the denial of his Motion to Suppress Evidence.

Burns was charged in a Bill of Information on October 15, 2002 with possession of cocaine in violation of LSA-R.S. 40:967(C). He filed several pre-trial motions including a Motion to Suppress the Evidence. After a hearing on April 15, 2003, the trial court denied the Motion to Suppress the Evidence. Thereafter, on the same day, Burns proceeded to trial before a six-person jury. The minute entry reflects that he withdrew his not guilty plea and entered a plea of no ^contest before the jury could return with a verdict. The transcript shows the jury returned a verdict of guilty.

At some point during the trial proceedings, Burns entered a plea of no contest reserving his right under Crosby to appeal denial of his Motion to Suppress the Evidence. The trial court conducted a plea colloquy with Burns, advising him of his rights and subsequently accepted Burns’s plea of no contest. In accordance with a plea agreement, defendant was sentenced to two years at hard labor, which was suspended in favor of two years of active probation. Burns was also ordered to pay a fine of $450.00.

Burns appeals the denial of his Motion to Suppress the Evidence.

FACTS

At the Motion to Suppress the Evidence hearing, Deputy Ronnie Voorhies testified that on October 1, 2002, he and his partner, Deputy Gary Mariano, were on patrol in an unmarked police unit in the 6000 block of Field Street. Deputy Voorhies, who is with the Street Crimes Unit of the Jefferson Parish Sheriffs Office, stated that the area is a high drug trafficking area.

At approximately 9:30 p.m., Deputy Voorhies observed Burns standing in the middle of the street. Deputy Voorhies explained that as he and Deputy Mariano approached, Burns recognized the unmarked vehicle as “police presence” and turned and started walking towards a nearby residence. Deputy Voorhies stated Deputy Mariano stopped the car so they could investigate. He testified that when he and Deputy Mariano exited the vehicle, Burns ran toward the residence at |46010 Field Street. Deputy Voorhies stated he and Deputy Mariano were wearing utilities, or their street crimes uniforms.

Deputy Voorhies ran after Burns and caught him as he was standing in the doorway of the residence. Deputy Voor-hies testified that right before he. grabbed Burns, he observed defendant reach his right hand into the right front pocket of his pants, retrieve an object and discard it on the ground. Deputy Voorhies handcuffed Burns and then retrieved the object, which was a clear plastic wrap containing eight off-white rock-like objects, from the ground right inside the doorway of the residence.

ASSIGNMENT OF ERROR NUMBER ONE

Burns argues the trial court erred in denying his Motion to Suppress the Evidence. He contends the initial stop of Burns was an unjustified intrusion on his constitutional right to be left alone. Burns asserts the police conducted an investigatory stop based solely on their “hunch” that he was up to no good. He submits that his flight from the police and subsequent abandonment of the cocaine was triggered by unlawful interference. The State responds that Burns’s presence in a high crime area coupled with his flight from the officers was sufficient to justify an investigatory stop.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial.

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. LSA-C.Cr.P. |fiart. 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.

It is well-established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articula-ble suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference.

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.

An officer’s mere unparticular-ized suspicion or “hunch” of criminal activity is insufficient to establish reasonable grounds to stop a person. 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 incidence of crimes. While an individual’s mere presence in a high-crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high-crime area coupled with nervousness, startled behavior, flight or | ^suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop.

In Illinois v. Wardlow, the United States Supreme Court held that an individual’s unprovoked flight through a high-crime area in response to the approach of the police gives rise to reasonable suspicion for an investigatory stop. In Illinois v. Wardlow, police officers were in a four-car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The two officers in the last car observed defendant standing next to a building holding an opaque bag. Defendant looked in the direction of the officers and then fled. The officers pursued defendant and eventually stopped him. They conducted a protective patdown search and discovered defendant was carrying a gun.

The United States Supreme Court found that it was defendant’s unprovoked flight upon noticing the police that aroused the officers’ suspicion and not defendant’s mere presence in an area known for heavy narcotics trafficking. Citing its previous opinion in United States v. Sokolow, supra, the Supreme Court again stated, “Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Noting that an individual has a right to ignore the police and go about his business, the United States Supreme Court stated that unprovoked flight is not a mere refusal to cooperate. It further stated that “[fjlight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.”

In State v. Johnson, the Louisiana Supreme Court found that police officers had reasonable suspicion to conduct an investigatory stop when defendant and his eom-panion “significantly picked up their pace” and headed in a direction away from the officers.' In Johnson, the police officers were patrolling an area known for |7high narcotics activity. The officers - approached defendant and his companion in a marked unit. The two ■ men picked up their pace and headed toward a crossover that led to another courtyard. The men were “nearly running” and repeatedly looked over their shoulders at the officers. The officers stopped the men before they reached the crossover and ordered them to place their hands on the hood of the patrol car. Prior to the pat down search, defendant removed his left hand from the hood of the patrol unit and dropped a glass crack cocaine pipe to the ground.

The Louisiana Supreme Court' noted that the defendant did not enter into a “headlong flight,” but rather had quickened his pace. In upholding the validity of the investigatory stop, the Louisiana Supreme Court concluded that in the context of the circumstances known to the officer such as “the lateness of the hour, the high crime character of the area, and the nervous demeanor of the two men reflected in their repeated glances over their shoulders, [the defendant’s] evasive conduct provided the minimal objective justificátion for an investigatory stop.”

In the present case, Deputy Voorhies testified that he was on patrol at night in a high crime area when he observed defendant standing in the middle of the street. He stated that when defendant noticed the unmarked unit as “police presence,” Burns started to walk away toward the residence. Deputy Voorhies testified that Burns made eye contact before walking away. During trial, Deputy Voorhies stated that as Burns was walking away, he was looking back towards the officers. Deputy Voorhies explained that these actions led him to believe Burns was attempting to evade the officers. When Deputy Voorhies exited the vehicle, Burns began to run toward the residence.

In denying the Motion to Suppress the Evidence, the trial court stated:

jsI heard testimony to the effect that the defendant was standing in the street, that he did take steps that appeared to the officers at the time to be in their view obviously evasive of police, and I take significant notice of the fact that this is a high drug trafficking or high drug crime area, a fact which is not in dispute. When I consider the totality of circumstances although Ms. Taylor you are quite right citizens have a right to avoid contact with police in they so chose [sic] that does not mean that circumstances may not exist under which the police may have reached the rather low level of reasonable suspicion to pursue an individual who attempts — who raises their suspicion by attempting to get away from them under circumstances such as these.

Based on the above-discussed jurisprudence, Burns’s unprovoked flight from the officers in a high crime area provided the requisite reasonable suspicion to justify the investigatory stop. Burns discarded the contraband -before Deputy Voorhies made physical contact with him. Thus, there was no unlawful intrusion into Burns’s right to be free from governmental interference and any property abandoned by Burns was lawfully seized. The trial court did not err in denying the Motion to Suppress the Evidence.

Burns notes in his appellant brief that Deputy Voorhies’ testimony regarding the high crime nature of the area was elicited by the trial court over defense counsel’s objection. He suggests the trial judge questioned Deputy Voorhies in such a manner that the trial judge abandoned his role as a neutral magistrate and improperly acted as an advocate for the State’s position. Burns did not assign the trial judge’s conduct of questioning the witness as an error. Further, Burns neither argued his position nor cited any legal authority for his suggestion that the trial judge’s questioning was improper. Therefore, the trial judge’s questioning of the witness is not an issue for review. See, Uniform Rules, Courts of Appeal, Rule 2-12.4.

| flOf note, a court can take judicial notice of the high crime nature of an area. The 6000 block of Field Street has been previously recognized by this Court as a high crime area. This Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

As requested by the defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920.

The commitment shows that Burns was ordered to pay $300.00 of which $150.00 was to be paid to the I Can Help Drug Program. The transcript reflects he was ordered to pay a $450.00 fine of which $150.00 was to be paid to the drug program. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. We order the trial court to correct the discrepancies to ensure an accurate record.

The trial court failed to properly inform Burns of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. The minute entry shows Burns was advised that he had “two (2) years after judgment of conviction and sentence has become final to seek post-conviction relief.” However, the transcript shows the trial court advised Burns he had “two years from the date your sentence becomes final to request post-conviction relief.” As noted above, the transcript prevails where there are discrepancies between the minute entry and transcript. This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. Therefore, we remand the case and order the district court to properly inform Burns of the time from which prescription for post-conviction relief runs by sending written notice of such to Burns within ten days of the | ^rendition of its opinion and to file written proof that defendant received the notice in the record. Id.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State V. Crosby, 338 So.2d 584 (La.1976).

      . There is no minute entry indicating defendant was arraigned. Defendant did not object to the failure to arraign him prior to proceeding to trial or prior to pleading to the bill; therefore, any irregularity in the arraignment procedure or lack thereof is waived. See, LSA-C.Cr.P. art. 555; State v. Smith, 02-1018 (La.App. 5 Cir. 3/11/03), 844 So.2d 119, 126. When there has been a failure to arraign a defendant, it is considered as if he pled not guilty. LSA-C.Cr.P. art. 555.

      . According to Burns's appellant brief, there was not a proper verdict because the jury’s verdict was not unanimous. The transcript reflects the jury was polled, but there are no polling slips contained in the record and the polling process and results were not transcribed. Of note, the written verdict sheet included in the record has a handwritten notation at the bottom stating, "verdict sheet not correct.”

      . Unless otherwise noted, the facts are taken from the evidence presented at the Motion to Suppress the Evidence hearing.

      . This information was elicited upon the trial judge's questioning of Deputy Voorhies after argument on the Motion to Suppress the Evidence and over defense counsel's objection.

      . At trial, before defendant pled no contest, it was established that the eight rock-like objects were cocaine. The gross weight of the eight rocks of cocaine with the bag was 1.68 grams.

      . State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

      . State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 74, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); 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); State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968.

      . State v. Belton, supra at 1198; State v. Massey, supra at 968.

      . State v. Massey, supra at 968

      . United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); State v. Barney, 97-777 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207.

      . State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102.

      . State v. Barney, supra at 1207.

      . 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

      . Illinois v. Wardlow, 528 U.S. at 124, 120 S.Ct. 673.

      . Id., 528 U.S. at 125, 120 S.Ct. 673.

      . 01-2081 (La.4/26/02), 815 So.2d 809.

      . State v. Johnson, supra at 811.

      . In determining whether the trial court's ruling on a defendant’s Motion to Suppress the Evidence is correct, the appellate court may consider evidence adduced at both the suppression hearing and at trial. State v. Hotard, 03-435 (La.App. 5 Cir. 12/30/03), 864 So.2d 748, 756, footnote 10.

        . See, State v. Tucker, 626 So.2d 707, 710 (La.1993).

      . LSA-C.E. art. 201; State v. Miskel, 95-584 (La.App. 5 Cir. 1/20/96), 668 So.2d 1299, 1303.

      . See, State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 967, 970.

      . State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . See, State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975.


author: LSOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Jackie C. MERRITT, II.
    No. 04-KA-204.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   LSOL GOTHARD, Judge.

Defendant was charged with simple burglary of an inhabited dwelling (count one) in violation of LSA-R.S. 14:62.2, possession of cocaine (count two) and attempt to disarm a police officer in violation of LSA-R.S; 14:27; 14:34.6 (amended count three). After trial ori the merits, he was convicted of counts one and three, and found not guilty of count two. The trial court sentenced defendant to imprisonment at hard labor for twelve years on count one with the first year of the sentence to be served without benefit of parole, probation, or suspension of sentence, and imprisonment at hard labor for two years and six months on count three, and with the sentences to run consecutively. Pursuant to a multiple bill, defendant was found to be a second offender. The trial court vacated the original sentence on count one and resen-tenced defendant under the multiple bill statute to imprisonment at hard labor for 14 years to run consecutively to the previous sentence on count three of two years and six months. The trial court further | .^ordered the sentence to run concurrently with a prior conviction and sentence in Plaquemines Parish. Defendant now appeals.

FACTS

On October 3, 2002 at approximately 1:20 a.m. during Hurricane Lily, a man went into Thelma Kemp’s home while Ms. Kemp was lying in her recliner; took her purse containing approximately $600 in cash, and walked out the back door. Ms. Kemp testified that she was eighty-six years old and lived at 1406 Severn Avenue in Metairie. She did not see the man’s face, only the back of him.

Police officers were called to the scene, and the officers set up a perimeter near Ms. Kemp’s home in order to locate the perpetrator. Deputy Ryan Weaver testified that there were strong winds and hard rain that night, and that he could not remember seeing any civilians outside in that area. While monitoring his radio, Deputy Ryan Weaver learned that officers were chasing a subject who fit the description of the perpetrator, later identified as defendant, and that the subject had crossed Severn Avenue and was jumping backyard fences. Deputy Weaver relocated to that area and went into the backyard of 3400 43rd Street. A white male fitting the description given over the radio jumped over the fence into the yard. Deputy Weaver, who was in uniform, drew his weapon, identified himself as a sheriffs officer, said “Let me see your hands,” and approached defendant in order to handcuff him. While Deputy Weaver was attempting to apprehend defendant, defendant attempted to take the deputy’s gun, so he shot defendant in the front of his leg. Approximately thirty minutes elapsed between the time Ms. Kemp reported the burglary and the time when defendant was apprehended.

The purse and its contents were ultimately recovered in the area surrounding Ms. Kemp’s home. At the hospital, a small straw containing cocaine powder was found in defendant’s pocket. The State also introduced evidence to show that ^defendant had previously burglarized another home because he needed money to buy drugs.

Defendant testified at trial that he was twenty-three years old, approximately 5'10" tall, and weighed 180 pounds. He acknowledged that he moved to his brother’s apartment in Metairie one month prior to the burglary at Ms. Kemp’s home to get away from his drug problem.

Defendant testified that, on October 3, 2002, he, his brother, and some other individuals were drinking at his brother’s apartment. When defendant and one of the individuals got into an argument, defendant got upset, and left the apartment in a truck his mother had loaned him. Defendant subsequently got out of the truck because he was intoxicated, it was raining so hard he could barely see, and he felt like he might cause an accident. Defendant did not know which direction his brother’s apartment was in, so he started walking in the direction that he thought was correct. As he did so, he spotted the police.

Defendant testified that he ran from the police because he had traffic attachments and had been drinking, which violated his probation, and he did not want to be arrested and taken to jail. Defendant explained that he got lost when he started running and admitted cutting through backyards and jumping fences. He stated that the police chased him until he jumped over the fence where Deputy Weaver was. He claimed that he did not remember Deputy Weaver hollering verbal commands.

Defendant denied charging Deputy Weaver and trying to take his gun away from him or trying to fight with him. Defendant explained that he “blacked out,” heard a gunshot and fell. When he looked back, he saw the officer behind him. Defendant testified that, when he heard the gunshot, he “woke up.” He maintained that Deputy Weaver shot him from behind, and that the wound on the back of his leg was much smaller than the wound on the front. Defendant denied going into |sMs. Kemp’s home and taking her purse or being in possession of a straw containing cocaine that night.

On cross-examination, defendant admitted that he had been convicted of six felonies: burglary of the Lee’s house, attempted burglary of an inhabited dwelling, three convictions for burglary of vehicles, and simple criminal damagé to property over $500. Defendant claimed that the State’s witnesses lied regarding the occurrences of the night in question in order to get a conviction to cover up the shooting. He testified that he spoke to his mother on the night of the storm and told her that he needed some money, but that she told him she could not give him any money because she was evacuating.

At the trial, Deputy Weaver testified that he did not smell any alcohol on defendant’s breath, and that defendant did not appear intoxicated. Detective Norman Schultz, who went to the hospital, testified that he did not smell any alcohol on defendant’s breath and that defendant did not appear to be under the influence of alcohol.

In his first allegation of error, defendant argues that the trial court erred by denying the motion to suppress his statement because the investigating officer dishonored defendant’s request for an attorney and suggested to him that, with or without an attorney, he was not free to remain silent, which violated his Sixth Amendment right to counsel.

The State responds that defendant is precluded on appeal from raising this issue because it was not raised in the trial court. Alternatively, the State, contends that defendant waived his constitutional rights, including the right to- an attorney, and that his statement was freely, knowingly, and voluntarily given.

Generally, to preserve an issue for appeal, a party need not enter a contemporaneous objection to the court’s ruling on a written motion. LSA-C.Cr.P. art. 841(B). However, where a defendant initially files a pre-trial motion objecting 1 fito the introduction of certain evidence, if at trial he specifically agrees to the introduction, he has waived his prior objection and loses the right to present the issue on appeal. State v. Dillon, 93-707 (La.App. 5 Cir. 1/24/94), 631 So.2d 1171.

Accordingly, in this case where the. defendant first noted his objection to the admissibility of the statement by his written motion and his objection to the trial judge’s ruling on the motion, but thereafter stated that he had no objection to its introduction at trial, he waived any right to raise issues on appeal concerning the admissibility of the challenged statement.

Additionally, defendant did not argue either in his motion to suppress or at the suppression hearing that the officer violated his right to counsel. He raises this issue for the first time on appeal. Defendant is limited on appeal to the grounds articulated at trial. A new basis, even if meritorious, cannot be raised for the first time on appeal. State v. Gaol, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294; State v. Richardson, 00-1551 (La.App. 5 Cir. 8/28/01), 795 So.2d 477, writ denied, 01-2670 (La.8/30/02), 823 So.2d 939.

Assuming arguendo that we were to consider the merits of defendant’s allegation, any failure to suppress the statement would not be reversible error. The erroneous admission of a confession or a statement is a trial error which is subject to harmless error analysis. State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1217, citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

An error is harmless if it does not affect substantial rights of an accused. LSA-C.Cr.P. art. 921. Such errors are harmless if a guilty verdict was surely unattributable to the error. State v.Code, 627 So.2d 1373, 1384 (La.1993), cert denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994); State v. Winfrey, 1797 — 427 (La. App. 5 Cir. 10/28/97), 703 So.2d 63, 78, wñt denied, 98-264 (La.6/19/98), 719 So.2d 481 (citations omitted).

In the instant case, the State introduced overwhelming evidence establishing defendant’s guilt. The evidence shows that, at approximately 1:20 a.m., a white male wearing a light-colored T-shirt and light-colored pants entered Ms. Kemp’s home, took her purse, and walked out the back door. Approximately thirty minutes later, officers found a subject fitting the description of the perpetrator near Ms. Kemp’s home. That subject, later identified as defendant, ran away from police through backyards and over fences. Although he claimed that he ran because he was intoxicated and did not want to risk a probation violation, the officers testified that they did not smell alcohol on defendant’s breath, and that defendant did not appear to be intoxicated.

The $600 in $20 bills was found in the area where defendant was apprehended. Defendant’s truck was found one block from Ms. Kemp’s home. No other civilians were seen outside during the search and apprehension of defendant, because of the strong winds and rain from Hurricane Lily.

Additionally, defendant did not admit in his statement that he committed any of the offenses with which he was charged. Defendant’s statement was inculpatory only in that it placed defendant in the area of where the burglary and attempt to disarm a police officer were committed. Further, the statement was virtually identical to defendant’s trial testimony.

In light of the foregoing, we find that any error in the admission of defendant’s statement was harmless because the evidence against defendant was overwhelming, and because the statement, which was inculpatory, only in that it placed defendant in the area where the crimes were committed, did not significantly contribute to the verdict. State v. Onezime, 01-1018 (La.App. 5 Cir. 2/26/02), 811 So.2d 1033, writ denied, 02-1099 (La.3/21/03), 840 So.2d 535.

|sWe find no merit to this allegation of error.

In his second allegation of error, defendant argues that the evidence was legally insufficient to support the verdict of guilty of attempting to disarm a police officer. He contends that there was no evidence that he touched or reached for the weapon, and no evidence that he was aware that a weapon was drawn on him. He claims that the State proved only that he resisted the arrest of an armed police officer. The State responds that the evidence was sufficient to support the conviction.

The standard for appellate review of the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

LSA-R.S. 14:34.6 defines the offense of disarming of a police officer as follows:

A. (1) Disarming of a peace officer is committed when an offender, through use of force or threat of force, and without the consent of the peace officer, takes possession of a firearm from the person of a peace officer or from an area within the peace officer’s immediate control, when the offender has reasonable grounds to believe that the victim is a peace officer acting in the performance of his duty.

LSA-R.S. 14:27 defines attempt as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
_k- • • •
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

In the present case, Deputy Weaver testified that, when he observed defendant jump over the fence into the backyard, he drew his weapon, identified himself as a sheriffs officer, and asked to see defendant’s hands. At the time, the deputy was in uniform. Defendant not only failed to comply with the deputy’s commands, he began running at Deputy Weaver. Deputy Weaver explained that, during the ensuing struggle, he fired one round at defendant, because defendant’s hands were out, and because defendant was moving aggressively toward him, lunging at him, and going for his gun.

We find that the evidence was sufficient to show that defendant attempted to disarm the deputy.

In his third allegation of error, defendant argues that the trial court erred in admitting evidence of the Plaquemines Parish burglary. He contends that evidence of the other crime was not relevant to show knowledge, guilty knowledge, intent, or motive because these were not avenues of defense. He further contends that evidence of the other crime did not show system, because each crime was dissimilar. Defendant asserts that the only purpose of the other crimes evidence was to show that he was a person of bad character. Defendant does not appear to challenge the admission of the prior conviction itself, since he admitted to it during his testimony. Rather, it appears that defendant is challenging the admissibility of the details of the prior conviction, particularly his admission after the Plaquemines Parish burglary that he committed the crime to obtain money to buy drugs. Defendant does not contend that the State failed to prove that he committed the|inother crime. The State responds that the other crime evidence was admissible to prove defendant’s motive, intent, and absence of mistake or accident.

At trial, Mr. Lee and Detective Ledet testified regarding the prior burglary. Gilbert Lee, age 64, testified that defendant was good friends with his stepsons and like a son to' him. On the night of January 23, 2002, he secured his trailer located in Boothville in Plaquemines Parish and went to bed. When he woke up the next morning, he discovered that his wallet, his money clip containing approximately $200 of his money, and his wife’s purse were missing. The wallet and money clip had been on the lavatory, and his wife’s purse had been on the vanity. He and his wife found a back window open and a cinder block on the ground; however, when he went to bed the night before, the window was closed. Mr. Lee later learned that defendant admitted committing the crimes.

Plaquemines Parish Sheriffs Office Detective Jesse Ledet testified that he investigated the burglary of the Lee’s home. While he was at the scene, he was informed that defendant wanted to speak to him regarding the burglary. Detective Ledet went to the jail and took a statement from defendant who admitted to the burglary. Defendant told him that he needed money to buy cocaine.

Defendant admitted at trial that he had been convicted of the burglary of the Lee’s home.

In State v. Miller, 98-301 (La.9/9/98), 718 So.2d 960, 962, the Louisiana Supreme Court set forth the applicable law pertaining to the admissibility of other crimes evidence as follows (footnote added):

Article 404(B) of the Louisiana Code of Evidence provides the basic rule regarding the use of evidence of “other crimes, wrongs or acts” at trial. It states in pertinent part:

(1) Except as provided in Article 412 [regarding a victim’s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, h however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

Several other statutory and jurisprudential rules also play a role in determining the admissibility of such evidence. First, one of the factors listed in Article 404(B) “must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.” State v. Jackson, 625 So.2d 146, 149 (La.1993). Second, the state is required

to prove the defendant committed these other acts by clear and convincing evidence. Id.; State v. Davis, 449 So.2d 466 (La.1984). Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Finally, the requirements set forth in State v. Prieur, 277 So.2d 126 (La.1973) must be met. Thereunder, the state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and, describe these acts in sufficient detail. The state must show the evidence is neither repetitive nor cumulative, and is not being introduced to show the defendant is of bad character. Further, the court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced. The court must also charge the jury at the close of the trial that the other crimes evidence serves a limited purpose and that the defendant cannot be convicted for any crime other than the one charged or any offense responsive to it.

A trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art. 404(B)(1) will not be disturbed absent an abuse of discretion. State v. Richard, 01-952 (La.App. 5 Cir. 1/29/02), 807 So.2d 1129, 1136.

The record reflects that the State had two main reasons for introducing evidence of the other crime: to prove system or modus operandi, i.e., that both crimes were distinctly similar and, therefore, must have been committed by the same person; and to prove motive, i.e., that defendant took the money in both cases to sustain his cocaine habit.

Louisiana jurisprudence has long sanctioned the use of other crimes evidence to show modus operandi as it bears on the question of identity when the prior crime is so distinctively similar to the one charged, especially in terms of time, place and manner of commission, that one may reasonably infer that the same person is the perpetrator in both instances. State v. Hills, 99-1750 (La.5/16/00), 761 So.2d 516, 520, 521. However, to assure that modus operandi or system evidence involving crimes similar to the charged offense does not become a means of introducing character and propensity evidence otherwise prohibited by LSA-C.E. art. 404(B), such evidence must be closely analyzed to. determine whether it exhibits “ ‘such peculiar modes of operation to distinguish them as the work of one person.’ ” Hills,' 761 So.2d at 521 (quoting State v. Gaines, 340 So.2d 1294, 1297 (La. 1976)). Thus, in order to be admissible, “‘the modus operandi employed by the defendant in both the charged and uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person.’ ” Hills, 761 So.2d at 521 (quoting State v. Henry, 436 So.2d 510, 513 (La.1983)) (emphasis as found in the original).

In Hills, the Louisiana Supreme Court delineated the requirements for admissibility of other crimes evidence under the modus operandi or system exception as follows:

(1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; ... (2) the modus operandi employed by the defendant in both the charged and uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person[;] ... (3) the other crimes evidence must- be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; ... (4) the other crimes evidence must tend to prove a material fact genuinely at issue; ... [and] (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect.

Hills, 761 So.2d at 520-521 (emphasis as found in the original; citations omitted).

In the present case, similarities exist between the two burglaries. In both cases, defendant entered the victims’ homes at night while the victims were inside, took purses and wallets, and discarded the purses and wallets near the victims’ homes. However, there are many distinctions between the two burglaries.

113After a close analysis of the respective crimes, we conclude there were no truly distinctive similarities between the Lee burglary and the Kemp burglary. The two crimes are not “so peculiarly distinctive that one must logically say they are the work of the same person.” Hills, supra. Thus, since this extraneous other crime evidence failed to show a system or modus operandi that 'established the identity of defendant as the person who committed the instant offense.

The -State also contends that the other crime evidence was introduced to show motive.

In State v. Abercrombie, 375 So.2d 1170, 1175 (La.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980), the Louisiana Supreme Court pointed out the difference between “intent” and “motive”:

“While intent and motive are frequently regarded as one and the same thing, there is a clear distinction between them. Motive is the cause or reason that moves the will and induces action for a definite result, while intent is the purpose to use a particular means to effect such result.” ...
In State v. Sutfield, 354 So.2d 1334, 1336-37 (La.1978), we recognized that evidence of other crimes may be admissible if the evidence is relevant to show motive, i.e., to show that the defendant had a reason to commit the crime he is charged with....

In State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037, 1041-1042, the Louisiana Supreme Court explained when other crimes evidence is admissible to establish the “motive” of a defendant (citations omitted):

“ ‘Motive’ evidence reveals the state of mind or emotion that influenced the defendant to desire the result of the charged crime.” ... If ... the other crimes evidence does not tend to show a motive to commit this particular crime against this particular victim, it merely shows a character trait and is inadmissible character evidence.

In Sutfield, supra, the Louisiana Supreme Court concluded that evidence of narcotic addiction was inadmissible to show the motive for armed robbery. It stated in pertinent part (citations omitted):

In order to have independent relevance, the motive established by the other crimes must be more than a general one, such as gaining |uwealth, which could be the underlying basis for almost any crime; it must be a motive factually peculiar to the victim and the charged crime.... Evidence of drug addiction to show a motive for illegally obtaining funds clearly establishes only a general motive. Even where it is shown that an addicted defendant’s wealth and income are not sufficient to maintain his habit, nor more than a general motive to commit any one of many types of crime involving a myriad of potential victims has been shown. Without additional evidence indicating a motive to commit the particular crime involving the particular victim, heroin addiction should not be admitted to prove motive. Its tenuous probative value is far outweighed by its tendency to incite a jury to resolve the issue of guilt or innocence on a defendant’s character rather than on proof of the essential elements of the crime....

Sutfield, 354 So.2d at 1337.

In the instant case, the State argued that evidence of the other crime was admissible because the motives for both crimes were the same, i.e., to obtain money to support a drug habit or addiction. In light of the foregoing jurisprudence, it appears that evidence of drug addiction or, by inference, evidence of taking money in the past to support a drug addiction, constitutes a general motive and therefore, is inadmissible at the trial of the instant offense. A review of the record reveals that the other crime evidence did not tend to show a motive to commit this particular crime (burglary of an inhabited dwelling) against this particular victim (Ms. Kemp). The evidence of drug addiction had little, if any, relevance for a purpose other than to show a probability that defendant committed the crime on trial because he was a man of criminal character. Any probative value of this evidence was clearly outweighed by the danger of its prejudicial effect upon the jury. Additionally, evidence of drug addiction was not admissible at trial to prove motive, because motive was not an issue at trial, and it was not an element of the crime charged. Jackson, supra.

We therefore find that the trial court erred in admitting the other crimes evidence. However, an improper reference to other crimes evidence is subject to the harmless error rule. State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 852, unit denied, 99-1785 (La.11/24/99), 750 So.2d 980 (citing State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 101-102). The test for determining harmless error is whether the verdict actually rendered in the ease was surely unattributable to the error. Id.

In this case, the State’s other evidence against defendant was overwhelming. Furthermore, a limiting instruction was given to the jury. Accordingly, we find that any error in admitting the particulars of defendant’s Plaquemines Parish conviction was harmless.

In his fourth allegation of error, defendant requests a review of the record for errors patent. We have reviewed the record, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following.

It is unclear from the record whether defendant was advised of the prescriptive period during the enhanced sentencing. Accordingly, we remand this case and order the trial judge to send written notice to the defendant of the prescriptive period, along with a notice of when the period begins to run, within ten days of the rendering of this opinion, and then to file written proof in the record that the defendant received this notice. State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

In accordance with the above discussed reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: SOL GOTHARD, Judge.

text:
    SUCCESSIONS OF Theodore Pierre ROUSSEL and Elizabeth T. Roussel.
    No. 04-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.
    Steven F. Griffith, Sr., Destrehan, LA, for Plaintiffi'Appellant.

      George S. Ruppenicker, Harvey, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   SOL GOTHARD, Judge.

The issue for our consideration in this matter arises from the Successions of Theodore Pierre Roussel and Elizabeth T. Roussel, and involves a protracted dispute among the heirs over ownership of certain family pictures. The actual judgment before us is the denial of a petition to accept a proposed tableau of distribution. For the following reasons, we affirm.

Theodore Pierre Roussel died intestate in 1941. His wife, Elizabeth T. Roussel, died testate in 1991. In her will Elizabeth made the following testamentary disposition:

To my beloved son, HAROLD P. ROUS-SEL, I hereby give and bequeath the original pictures of myself and my husband. Upon his death (Harold’s) the pictures are to be given to another family member (brother or sister) and are to remain in family possession.

After Harold’s death in 2000, Theodore J. Roussel, opened the successions of Theodore Pierre and Elizabeth, and was appointed as administrator of the estates. In that capacity, he filed a “Motion and Order to Secure Return of Property for Distribution to Heirs,” demanding that the family pictures given to Harold, now in the possession of Rose Mae Arcement, be returned to the estate. In her answer to the pleading, Ms. Arcement asserted that the photographs were hand delivered to Harold by Elizabeth before her death. After Elizabeth’s death in |31991 the remaining assets in the estate were informally divided among her heirs, the bills were paid, and it was decided that there was no need to open her estate. The answer further asserts that the detailed descriptive list filed by the administrator shows that the estate was relatively free from debt and contains only movable property. That matter went before the trial court, and on February 6, 2001, a judgment was entered finding the testamentary disposition by which Harold received the pictures a fidei-commissum. The reasons for judgment show that the trial court made the finding that the testamentary disposition only reveals a preference of the testator that the pictures go to another family member. Ultimately, the court found that “this is merely meant to go to Harold’s conscience and not to divest his own children of their grandparent’s legacy, to the benefit of his aunts and uncles.” On a second issue argued by the administrator regarding whether the pictures were part of the community between Elizabeth and Theodore, the trial court found “(t)he only issue before the court is whether Mrs. Roussel’s legacy to Harold is valid. Consequently, the paintings’ status as community property is not relevant.” An appeal taken from that judgment was dismissed as untimely by this court on July 18, 2002. Therefore the judgment is final.

On May 12, 2003, Theodore J., in his capacity as administrator of the estates of Elizabeth and Theodore Pierre Roussell, filed a “Petition for Authority to File Tableau of Distribution and to Pay Outstanding Debts.” The Proposed Tableau of Distribution again listed the pictures which were the subject of the earlier appeal. The tableau lists the pictures as community assets to be distributed to the legatees. Ms. Arcement filed an opposition to the proposed tableau of distribution, arguing that this is an unauthorized attempt to appeal the original judgment. She further argues that the $4,300.00 in legal fees listed in the proposed tableau is unwarranted because the estates were “frivolously opened, under the false pretense of the necessity of an administration, on non-existent assets, for the sole purpose of | intimidation the heirs of Harold P. Rous-sel estate (sic) for the return of the pictures.”

The trial court heard the matter and rendered judgment denying the adoption of the Proposed Tableau of Distribution. In the written reasons for judgment the court reiterated its ruling in the previous, and now final, judgment in this matter and found that the Proposed Tableau of Distribution is inappropriate in this case. The trial court found that:

At the time these succession proceedings were opened, the succession was absolved of all debts and assets (including funeral expenses paid over ten years ago and the pictures). Moreover, since we have concluded that the succession was unnecessarily opened, the attorney fees incurred in the opening of this succession can not be justified.

In brief to this court, plaintiff argues that judgment was rendered in error. Plaintiff assigns three errors for our review. We have reviewed the assignments of error and find them to be a rehashing of the same arguments made to the trial court before the first judgment was rendered in this matter. Essentially, the arguments are that the pictures were property of the community of acquets and gains between Theodore Pierre and Elizabeth, and the testamentary disposition of the pictures to Harold in Elizabeth’s will was not a fidei-commissum. Therefore, plaintiff argues they are assets of the estates of Theodore Pierre and Elizabeth and must be returned to the estates for distribution.

We find those issues have been previously decided by judgment of the trial court, which is now final. That judgment is valid and definitive and will not be revisited by this court. Accordingly, we find the trial court’s well-reasoned justification for the denial of the proposed tableau of distribution contains no error, and we affirm the judgment. Costs of this appeal are assessed to appellant.

AFFIRMED.

      . The relationship between Rose Mae Arcement and the Roussels is not made clear in the record.


author: MARION F. EDWARDS, Judge.

text:
    Harley Clinton WAGUESPACK, v. Karenlyn W. JUDGE, Harold M. Judge, Jr. And Chris Judge.
    No. 04-CA-137.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Vaherie L. Oxner, Metairie, LA, for Plaintiff/Appellant.
    Michael G. Fanning, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

•Plaintiff, Harley Clinton Waguespack, appeals from a judgment of the district court sustaining an exception of prescription in favor of the defendants, Karenlyn W. Judge, Harold Judge Sr., and Chris Judge (“Judges”).

On December 20, 2001, Waguespack filed a Petition For Defamation, Abuse Of Process, Malicious Prosecution, False Imprisonment, and Intentional Infliction of Emotional Distress. Waguespack averred that on February 4, 2000, the defendants, his sister, brother-in-law, and nephew, caused the Jefferson Parish Sheriffs Office to arrest him on charges of stalking and threatening them. In addition, Wag-uespack contended that the Judges told the sheriffs office that he was a user of illegal drugs and was armed and dangerous, none of which was true. On February 6, 2000, eight deputies arrived at Wagues-pack’s home and knocked on his door with weapons drawn. One of the deputies put a shotgun to his head, his home was searched, and he was arrested and incarcerated overnight. He was | ^released from jail and transferred to the East Jefferson General Hospital Psychiatric Ward, where he was kept overnight. Waguespack had to retain counsel to represent him in the criminal matter. He urged that he was innocent of all the accusations, and alleged mental, emotional, and physical damages, as well as loss of income.

The Judges filed a reconventional demand, alleging that the arrest was a result of numerous written and verbal threats against them, that the petition had no factual basis whatsoever, and that Wagues-pack was guilty of abuse of process and malicious prosecution. Subsequently, the Judges filed Exceptions of Prescription and No Cause of Action, alleging that Waguespack had only until February 4, 2002, (sic) in which to file his actions for defamation, false imprisonment, and intentional infliction of emotional distress. They further alleged that although his action for malicious prosecution was timely, that he had failed to properly state a cause of action under the applicable jurisprudence. Finally, they urged that there was no cause of action stated for the issue of “abuse of process,” and further that any such action had prescribed.

The Exceptions came for hearing on November 6, 2002. Following the hearing, the trial court sustained the Exceptions of Prescription as to false imprisonment and intentional infliction of emotional distress, as well as for defamation, and dismissed those actions. The Exception of No Cause of Action was sustained as to abuse of process and malicious prosecution, giving Waguespack thirty days in which to amend his petition to state a cause of action. Waguespack appeals the judgment only insofar as it grants the Exceptions of Prescription.

On the trial of a peremptory exception of prescription pleaded prior to trial on the merits, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. |4C.C.P. Art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true.

In the present case, no competent evidence was introduced by either Wag-uespack or the Judges. Therefore, we must determine the exceptions on the facts alleged. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed.

The petition states that the Judges made allegations that caused the sheriffs office to arrest Waguespack on February 4, 2000. He was arrested and incarcerated overnight, then sent to East Jefferson where he was kept overnight again. While the petition states that there were criminal charges brought, it does not give a date on which those charges were prosecuted in court, nor does it indicate that the prosecution was unsuccessful. (In the answer to the petition, the Judges state that Wag-uespack pleaded guilty to lesser charges on April 17, 2001. This pleading is not evidence.)

The trial judge took judicial notice, and notified the parties, that the criminal proceedings had taken place in his court, and that he had been given a copy of the minute entry. Both parties had copies of the criminal proceedings. None of these documents were offered or received into evidence.

The actions for defamation, intentional infliction of emotional distress, and false imprisonment are clearly prescribed on the face of the petition, which was [¿filed on December 20, 2001. We farther observe that Waguespaek does not state a cause of action for false imprisonment against the Judges.

The tort of false imprisonment or false arrest consists of two essential elements: detention of the person and the unlawfulness of the detention. False imprisonment or arrest occurs when one arrests and restrains another against his will without warrant or other statutory authority. Although the Judges’ statements to the sheriffs office may have resulted in arrest, there are no allegations that the Judges restrained or detained Waguespaek and thus do not give rise to a claim of false imprisonment.

An action tor defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. The trial court acknowledged that the criminal action involving Waguespaek came before his court, although there is no evidence in the record of either the date or the outcome of those proceedings.

La. C.C.P. art. 934 has been liberally applied in cases involving prescription. Although it is not necessary to ’allow time to amend if the plaintiff cannot point out grounds sufficient to overcome the exception, opportunity to amend should be allowed unless it can be determined in advance of the amendment that new allegations would have no effect on the prescription issue. Thus, while the trial court correctly granted the exception as to the defamation action, Waguespaek should have been given the opportunity to amend his pleadings.

Regarding the cause of action for intentional infliction of emotional distress, the trial court was correct in finding that the activities of the Judges giving rise to | fithat cause of action occurred on February 4-5, 2000, and thus were prescribed. Waguespaek does not argue that any further behavior by the Judges caused his injuries, but rather argues that he could not bring his suit on this issue until the termination of the criminal proceeding. We find no legal basis for this argument. In the absence of any allegation or evidence of tortious conduct which took place after February 2000, the trial court correctly granted the exception of prescription as to this cause of action.

For the foregoing reasons, the judgment granting the Exception of Prescription as to false imprisonment, intentional infliction of emotional distress, and defamation is affirmed. We further find that Wagues-pack has failed to state a cause of action for false imprisonment. The matter is remanded to the trial court with instructions to grant Waguespaek additional time within which to amend his petition to remove the grounds of the objection of prescription as to the action for defamation.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Perez v. Trahant, 2000-2372 (La.App. 1st Cir. 12/28/01), 806 So.2d 110, writs denied, 2002-0847, 2002-0901 (La.8/30/02), 823 So.2d 953:

      . Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993); Campo v. Correa 2001-2707 (La.6/21/02), 828 So.2d 502.

      . Plessy v. Hayes Motor Co., Inc., 31,974 (La. App.2d Cir.6/16/99), 742 So.2d 934, 938; Tabora v. City of Kenner, 94-613 (La.App. 5th Cir. 1/18/95), 650 So.2d 319, writ denied, 95-0402 (La.3/30/95), 651 So.2d 843.

      . Plessy v. Hayes, supra.

      . See Nolan v. Jefferson Parish Hosp. Service Dist. No. 2, 01-175 (La.App. 5 Cir. 6/27/01), 790 So.2d 725; Ballex v. Naccari 95-0057 (La.App. 4 Cir. 6/7/95), 657 So.2d 511.

      . Whitnell v. Menville, 540 So.2d 304, 309 (La.1989); Chapital v. Guaranty Sav. & Homestead Ass'n, 96-0244 (La.App. 4 Cir. 10/2/96), 681 So.2d 1307, writ denied 96-2639 (La.12/13/96), 692 So.2d 1068.