author: J^LEON A. CANNIZZARO, JR., Judge.

text:
    SOUTHERN NIGHTS, INC. v. James BARNETT.
    No. 2004-CA-0411.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 2004.

      David D. Duggins, The Duggins Law Firm, APLC, New Orleans, LA, for Plaintiff/Appellee, Southern Nights, Inc.
    Stephen D. Marx, Chehardy Sherman Ellis Breslin Murray & Recile L.L.P., Me-tairie, LA, for Defendant/Appellant, James Barnett.
    Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME.
   J^LEON A. CANNIZZARO, JR., Judge.

This is an appeal from a judgment rendered in favor of the plaintiff, Southern Nights, Inc. (Southern Nights), and against the defendant, James Barnett, in a suit on open account. For the reasons assigned below, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Barnett contracted with Southern Nights to install and repair exterior landscape lighting at his home in New Orleans. Upon completion of the project, Southern Nights’ invoices totaled $24,248.47. After a credit was given for $15,000.00 paid by Mr. Barnett, Southern Nights made demand for a balance due in the amount of $9,248.47. Mr. Barnett denied that any balance was owed, claiming, instead, that the $15,000.00 he had paid represented the full amount due under the contract.

According to Mr. Barnett, he told Tony Alexander, the owner of Southern Nights, that he had a $15,000.00 budget for the lighting project, which Mr. Alexander acknowledged. Mr. Barnett contends that he never authorized any work that Southern Nights performed beyond the $15,000.00 limit. According to him, the parties had agreed to settle the matter by allowing Southern Nights to remove | {.the extra $9,248.47 worth of lighting fixtures from his property, but instead of returning to remove the equipment as agreed, Southern Nights filed suit for the alleged balance.

Following trial, the trial court rendered judgment awarding Southern Nights $7,873.47 as well as court costs, 25% attorney fees in the amount of $1,968.36, and legal interest. The trial court gave no reasons for judgment. Mr. Barnett appealed.

ASSIGNMENTS OF ERROR

Mr. Barnett assigns two errors on the part of the trial court. First, that the trial court erred in not finding that the dispute had been settled, and second, that the trial court erred in awarding attorney fees for a suit on open account pursuant to La. R.S. 9:2781.

LAW AND DISCUSSION

In his first assignment of error, Mr. Barnett claims that the parties’ agreement to settle the dispute by allowing Southern Nights to remove certain lighting fixtures is evidenced by trial exhibit D-7. Specifically, Mr. Barnett maintains that exhibit D-7 includes a letter from Southern Nights’ attorney to Mr. Barnett, acknowledging the agreement to “uninstall” $9,248.47 worth of lighting fixtures. Mr. Barnett contends that, due to this agreement to settle, Southern Nights’ claim is merged into the settlement agreement and its sole remedy is to recover the items set forth in the agreement. He cites the case of Palmer v. Lanco Construction, Inc., 95-0987 (La.App. 4 Cir. 11/30/95), 665 So.2d 1217, 1221, arguing that a valid settlement agreement effectively abrogates the antecedent |3claim upon which it is predicated; thus, the parties’ only legal recourse is to enforce their rights within the context of the compromise agreement.

In response, Southern Nights maintains that the letters written to Mr. Barnett do not evidence an agreement. To the contrary, Southern Nights argues that Mr. Barnett never accepted the offer to remove the lighting. In fact, Southern Nights contends that Mr. Barnett never responded to the letter, and made no specific arrangements for the removal of the lighting or for the payment of the outstanding balance.

As to whether the trial court failed to recognize a settlement agreement in this case, we look to La. C.C. art. 3071, which provides:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

A compromise agreement that is not reduced to writing is unenforceable. Felder v. Georgia Pac. Corp., 405 So.2d 521, 523 (La.1981). The writing requirement does not necessarily mean that the agreement must be contained in one document, however, the purpose of the writing requirement is to serve as proof of the agreement and acquiescence therein and, as such, must be signed by both parties. Id.

In Coleman on Behalf of Coleman v. Academy of Sacred Heart, 93-2015 (La. App. 4 Cir. 3/29/94), 650 So.2d 265, this court held that a letter by one of the Lparties setting forth their understanding of the agreement is not an agreement of the parties reduced to writing. A compromise is a bilateral contract. See also, Scott v. Green, 621 So.2d 1, 3 (La.App. 4 Cir. 1993).

In the instant case, Mr. Barnett presented two letters as evidence of the compromise. (Exhibit D-7) The first letter dated January 31, 2001, from Southern Nights to Mr. Barnett demanded payment of $9,248.47 and suggested that Mr. Barnett had three options: 1) send a check immediately; 2) coordinate with Southern Nights to have $9,248.47 worth of light fixtures uninstalled; or 3) ignore the demand and face legal action. The second letter dated February 7, 2001, from Southern Nights’ attorney to Mr. Barnett, states as follows:

I represent Southern Nights, Inc. It is my understanding that you have agreed to resolve this matter by having my client “uninstall” and remove from your property $9,248.47 worth of landscape lighting fixtures.
Please contact my office today to make arrangements for the removal of the subject equipment on either Thursday or Friday of this week. I look forward to hearing from you so that this matter may be resolved.

Mr. Alexander, the owner of Southern Nights, testified at trial that he believed the agreement to uninstall the lights was one sided because Mr. Barnett never responded to the February 7, 2001 letter. Mr. Barnett, on the other hand, testified that he agreed to have the light fixtures uninstalled, but Southern Nights never returned to perform the work. As in Coleman, the only evidence of a binding compromise is the February 7, 2001 letter, referencing an understanding that an agreement existed. Otherwise, there is nothing signed by Mr. Barnett to show that an agreement to settle had been reached. In view of La. C.C. art. 3071 and the jurisprudence cited herein, we find insufficient proof in this case that a settlement agreement was | ¡¡reduced into writing or recited in open court. Accordingly, the trial court did not err in determining that a binding settlement agreement between the parties did not exist.

In his second assignment of error, Mr. Barnett submits that pursuant to La. R.S. 9:2781, attorney’s fees are not recoverable unless the precise amount claimed due is proven. Montgomery Stire & Partners, Inc. v. London Livery, Ltd., 99-3145 (La.App. 4 Cir. 9/20/00), 769 So.2d 703. Specifically, Mr. Barnett argues that since Southern Nights demanded $9,248.47, but was awarded only $7,873.47, the amount demanded was incorrect and attorney fees were not warranted.

La. R.S. 9:2781 entitles a person seeking debt collection on an open account to recover reasonable attorney fees if prior written demand has been made upon the debtor “correctly setting forth the amount owed.” Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1015-16 (La.1984).

Further, the courts have held that “[t]he amount stated in the demand letter and the amount recovered in the judgment do not have to be the same for a party to recover attorney’s fees under La. R.S. 9:2781.” Sears, Roebuck & Co. v. Larose, 460 So.2d 8, 9 (La.App. 1 Cir.1984). See also, Guidry’s Seafood Distributors, Inc. v. Farmers Seafood Co., Inc., 99-1005 (La. App. 3 Cir. 12/15/99), 759 So.2d 806. However, it is incumbent on the creditor seeking attorney fees through 9:2781 to show that the written demand for payment made on the debtor correctly stated the amount owed. Texas Industries, Inc. v. Roach, 426 So.2d 315 (La.App. 2 Cir.1983).

In this case, the trial court awarded a lesser amount than that demanded by Southern Nights but did not provide an explanation. We cannot, however, assume that the trial court determined the amount demanded to be incorrect. Rather, in 1 ^rder to ascertain whether Southern Nights is entitled to attorney fees, we must determine whether the amount demanded correctly stated the amount owed. After a careful review of the record, we find that Southern Nights presented detailed invoices evidencing that the amounts owed and demanded were the same, i.e., $9,248.47. Mr. Barnett, on the other hand, did not dispute Southern Nights’ contention that an additional $9,248.47 worth of lighting had been installed. Therefore, we conclude that the amount sought by Southern Nights was correct and that attorney fees were properly awarded pursuant to La. R.S. 9:2781.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: I JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Walter GOODWIN, Jr.
    No. 2004-K-0466.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 2004.

      Dwight Doskey and Nicholas Trenticos-ta, New Orleans, LA, for Defendant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge DAVID S. GORBATY).
   I JOAN BERNARD ARMSTRONG, Chief Judge.

On June 9, 1994 the defendant, Walter Goodwin, Jr., was indicted for the first degree murder of Jonathan Craig Thompson. On February 9, 1995 a twelve-person jury found him guilty of second degree murder. The court denied his motion for new trial on July 11 and sentenced him to life imprisonment without benefits of parole, probation, or suspension of sentence. On appeal, this court affirmed his conviction and sentence, State v. Goodwin, 96-0334 (La.App. 4 Cir. 11/19/97), 703 So.2d 168, and the Supreme Court denied writs from this court’s ruling, State v. Goodwin, 97-3159 (La.4/28/98), 717 So.2d 1164.

The defendant then obtained documents pursuant to a public records request to the District Attorney’s Office. On April 23, 1999, the defendant filed an application for post conviction relief based upon the State’s failure to produce Brady material. The court denied the application on June 27, 2000, but apparently the court allowed the defendant to reopen the matter, and it set a hearing on the application for August 20, 2001. The court reset the matter a few times, with the court finally hearing the matter on December 20, 2001. The court took the matter under advisement, and it was not until April 11, 2003 that the court denied the application. The defendant’s writ application to this Court followed. FACTS

|;>The following fact summary is taken from this court’s opinion in the relator’s appeal:

At 1:24 a.m. on Monday, April 11, 1994, the New Orleans Police Department received a report that a gunman had just robbed Russell’s Marina Grill on Pontchartrain Boulevard. Two patrol officers arrived at the restaurant ten minutes later to find Elton Hall waving at them frantically from the parking area. Mr. Hall, a dishwasher at the Grill, told the police that after he had emptied some garbage cans in the back, he had reentered the restaurant to see five men, all dressed in black and wearing ski masks, holding guns on the night manager, Craig Thompson. He immediately ran away from the restaurant, returning only when he saw the five robbers leave. He had called Craig’s name several times with no response, and had then phoned the police.
One of the officers found Mr. Thompson in the restaurant’s upstairs office, dead from one gunshot in the back of his head. Two spent .40-caliber casings and two live rounds were found on the scene, and the lock on the upstairs safe had been shot. The policeman returned to his patrol car and called for EMS and the police homicide squad, then informed Mr. Hall that the manager was dead.
Mr. Hall now stated that he had seen only one gunman in the restaurant, standing near the cash register while Mr. Thompson was lying on the floor between two counters. The robber was described as about five feet, nine inches tall with African-American features visible through the holes in the ski mask. Mr. Hall denied hearing any gunshots, but said he thought he had heard the cash register click open as he ran out of the restaurant. He had watched from a distance for a few minutes, then saw the robber run from the back door and meet up with four others dressed all in black. Mr. Hall said that after he saw the five men run towards Robert E. Lee Boulevard, he had returned to the Grill. On further questioning later that morning, Mr. Hall added that the perpetrator was about two-hundred pounds with a light or red complexion, but he gave no indication that he could identify the gunman.
Paul “Pavlos” Petrou, the owner of the restaurant, was called to the scene by the police. His examination revealed that five hundred dollars in small bills were missing from the cash register, but the safe upstairs had not been opened. When asked if Mr. Thompson had had any troubles with any of the employees, Mr. Petrou recounted that one of the | «dishwashers, Kenneth Williams, had been suspended in the preceding week because he got mad and refused to leave when told he was not scheduled to work that day. The officers sent to investigate this lead reported, however, that Mr. Williams had an alibi for the time of the robbery and did not match Elton Hall’s description of the gunman. Lacking further information, the investigation was now at a standstill.
On the next afternoon, however, Kenneth Williams recontacted the police and gave a statement implicating Walter Goodwin, Jr., who also worked at the Grill. This led to interviews with two other employees, Isaac Shelby and Charles Caldwell, who corroborated Mr. Williams’ claim that Mr. Goodwin had confessed to robbing and killing Mr. Thompson. Mr. Caldwell also said he had seen Walter Goodwin take Mr. Shelby’s .40-caliber pistol, the same type used to kill Mr. Thompson, the evening before the murder. After the defendant had been arrested, Elton Hall said he had recognized Mr. Goodwin as the gunman in the restaurant, but at the time he had been too afraid to tell the police. In pre-trial proceedings, Mr. Hall recanted, then reaffirmed, his identification of Mr. Goodwin as the murderer. At trial, Mr. Shelby testified that he had varied his preliminary testimony because he felt pressured by members of his family. Both Mr. Williams and Mr. Hall admitted at trial that they had lied in their initial statements to police, and Mr. Caldwell testified that until the police told him he was “facing ten to twenty” himself, he had denied any knowledge of the crime or of Mr. Goodwin’s confession. It was established at trial that all four of these witnesses had been friends for years, attending the same school and generally hanging out together. They also were acquainted with the defendant before he began working at the Grill, because Walter Goodwin and Isaac Shelby were first cousins, and Mr. Goodwin often visited their grandmother who lived downstairs from Isaac. Additionally, Elton Hall, Kenneth Williams, Isaac Shelby and Charles Caldwell all testified that they had gotten together the morning after the murder, but their testimony regarding whether the robbery had been discussed was inconsistent. Although the gun used in the murder was never found, a spent casing furnished by Mr. Shelby established that it was his pistol that had fired the casings found in the restaurant. Isaac Shelby testified that his three friends, as well as the defendant, knew he had that gun in his bedroom.
Lit was also established at trial that within a few days of the defendant’s arrest, cabdriver David Carpenter had informed the police that his company had received a call at 12:59 a.m. on April 11, asking for a cab at Mr. Goodwin’s address. At 1:00 a.m., Mr. Carpenter had picked up a young African-American man who came out from between that address and the house next door, then dropped him off at 1:10 a.m. at a strip shopping center at the intersection of Robert E. Lee and Pontchartrain Boulevards. The man paid Mr. Carpenter twenty-five dollars to return at 2:00 a.m. and pick him up at the same location, in front of the 24-hour grocery. When the cabdriver returned at 1:50 a.m., the same man was just hanging up a pay phone inside the grocery. The man then came outside, got into the cab, and was dropped off at Mr. Goodwin’s address ten minutes later.
At his initial police interview, Mr. Carpenter said that the TV news had shown the man that had been arrested for the crime, but that man did not look like his passenger, who was about five feet, seven or eight inches tall, approximately 150 pounds, with dark skin, short hair, and a thin moustache. The fare had worn a black T-shirt with writing on it and was carrying a plastic bag similar to those used by grocery stores, but smaller. When presented with both photographic and physical lineups, Mr. Carpenter eliminated Mr. Goodwin as a possible suspect, but he indicated uncertainty when shown photo arrays that included the four witnesses who had implicated the defendant.
Mr. Carpenter explained that he had been careful to closely examine his passenger, who sat next to him in the front seat, both because he. had previously been robbed four times and because the man named no specific destination, but asked only to be taken to the area of Robert E. Lee and Pontchartrain Boulevards. He also stated that he had known the victim, Craig Thompson, and was thus concerned that the perpetrator be caught. Mr. Carpenter testified at trial that the defendant had a much lighter complexion than the man he had transported in his cab the night of the murder.
Walter Goodwin, Jr. took the stand in his own defense, testifying that he arrived home about 9:30 Sunday night and only learned about the murder the next morning. His father, Walter Goodwin, Sr., corroborated this, stating that when he went to bed at 12:15 that Sunday night, Walter 1 fiwas in the kitchen. Both Byron and Carlyn Goodwin, the defendant’s brother and sister, testified that they saw their brother in bed at approximately 1:00 a.m., and Carlyn saw him again, still in bed, twenty or twenty-five minutes later when she went to sleep. Both siblings also said that they would have seen or heard anyone leaving the house, so they were certain that Walter was home and in bed at the time of this murder. On cross examination, and without objection from the defense, the prosecutor used grand jury transcripts to show that both Byron and Carlyn Goodwin had previously given testimony that was inconsistent in several details from their assertions at trial.

State v. Goodwin, 96-0334, pp. 1-5, 703 So.2d at 168-170.

The relator argues that the trial court erred by denying his application for post conviction relief because the State withheld statements from its witnesses and from another person which included exculpatory evidence that could have been used to impeach the State’s witnesses.

In State v. Crawford, 2002-2048, pp. 10-11 (La.App. 4 Cir. 2/12/03), 848 So.2d 615, 623-624 this Court set forth the standard for determining the merits of a Brady claim:

To comport with the dictates of the due process clause of the Fourteenth Amendment, the State must disclose to the defense evidence that is favorable to the defense and is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Porter, 98-0279 (La. App. 4 Cir. 3/15/00), 756 So.2d 1156, writ denied, 2000-1135 (La.1/10/02), 790 So.2d 3. Included in this rule is evidence that impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial, that is, evidence favorable to the defendant which is material to guilt or punishment.” State v. Rosiere, 488 So.2d 965, 970 (La.1986). See also Porter, supra.
| (¡Materiality was defined in U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985): “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” The same test is to be employed whether or not the defense makes a pretrial request for exculpatory evidence. Bagley; State v. Phillips, 92-1063 (La.App. 4 Cir.2/29/96), 670 So.2d 588.
In Kyles v. Whitley, 514 U.S. 419, 434-435, 115 S.Ct. 1555, 1565-1566, 131 L.Ed.2d 490 (1995), the Court discussed “materiality”:
Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). ... Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the Government’s evidentiary suppression “undermines confidence in the outcome of the trial.” Bagley, 473 U.S., at 678,105 S.Ct., at 3381.
The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

See also State v. Greco, 2003-0709 (La.App. 4 Cir. 12/17/03), 862 So.2d 1152. In | .¡.addition, the Louisiana Supreme Court recently held:

For purposes of the State’s due process duty to disclose, no difference exists between exculpatory evidence and impeachment evidence. State v. Kemp, 00-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545. The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 So.2d 956, 959 (La.1991).
Nevertheless, it is important to note that Brady and its progeny do not establish a general rule of discoverability, and not every case in which it is discovered post-trial that favorable evidence was withheld by the State will result in a reversal of the conviction. A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the “omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). For purposes of Brady’s due process rule, a reviewing court determining materiality must ascertain:
not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. [Emphasis supplied.]
Kyles v. Whitley, 514. U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). See also, State v. Strickland, 94-0025, p. 38 (La.11/1/96), 683 So.2d 218, 234. Thus, the reviewing court does not put the withheld evidence to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when the “evi-dentiary suppression ‘undermines confidence in the outcome of the trial.’ “ Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).

State v. Bright, 2002-2793, pp. 5-6 (La.5/25/04), 875 So.2d 37, 41-42.

Here, the relator cites to two statements he received long after trial which he 1 ^contends contained exculpatory evidence that, had he been privy to their contents, would have undermined confidence in the jury’s verdict. He first points to the second statement of Elton Hall, wherein Hall stated that he had heard that Isaac Shelby had purchased the gun used in the robbery/murder and had given it to the relator to “go hit a hustle, but he said ... he said, he didn’t know what hustle he was gonna hit, he had supposed [sic] to know what hustle he was gonna hit [sic] he gave him the gun.” The relator points out that this statement directly contradicted the testimony of the State’s witnesses that the relator took the gun without Shelby’s knowledge. He acknowledges that the defense was given Shelby’s statement prior to trial wherein Shelby admitted he had obtained the gun at the relator’s request one and a half weeks prior to the murder and had given the gun to the relator on the evening before the murder when the relator told him he wanted the gun because he was going to ride around and find someone he could rob. He notes that this statement contradicts Shelby’s trial testimony, wherein Shelby admitted he obtained the gun for the relator but contended he did not know the relator had taken the gun until the next day, after the murder, when he noticed the gun was missing.

The relator argues that his theory of defense was that one of the young men in the group of workers from the restaurant, all of whom went to school together and associated with each other, was the actual killer, and the group conspired to blame the murder on him. He argues that while the members of the group first stated that Shelby had given the gun to the relator, by trial they were “in lockstep, all changing directions by a hundred and eighty degrees” in their testimony. This statement, however,' is somewhat-misleading. At trial, only two witnesses testified as to how the relator obtained the gun from Shelby. Shelby testified as described above, but the defense had his pretrial statement with which to impeach his testimony. Although for | asome unknown reason defense counsel did not question Shelby about his statement that he gave the gun to the relator, defense counsel elicited from Det. Graffeo that Shelby told him that “he [Shelby] gave him [the relator] the gun. I guess he informed him whére it was.” Charles Caldwell testified he saw the relator actually take the gun from under the upper bunk of the bed. This testimony matches his statement, which was not produced for the defense prior to trial. Elton Hall’s testimony did not include information ábout how the relator obtained the gun, most likely because this testimony would be inadmissible hearsay. The other members of the hypothetical conspiracy did not mention the source of the gun in either their statements or their trial testimony. Therefore, it appears that even if the defense had been given both Caldwell’s and Hall’s statements, these statements did not contain information which would have undermined confidence in the jury’s verdict. The jurors heard Shelby testify that he obtained the gun at the relator’s behest so that the relator could pull a “hustle,” a claim that Shelby made both in his statement and at trial. Thus, the issue of whether Shelby actually handed the relator the gun or merely showed the relator where he hid the gun does not appear to rise to the level of casting doubt on the validity of the jury’s verdict.

The relator further argues that the withholding of Hall’s statement was even more harmful when added to the information contained in a statement by Ryan Thompson, which was also not produced. Ryan Thompson, Hall’s cousin, accompanied Hall’s sister to the restaurant on the night of the murder to pick up Hall. Ryan Thompson, who apparently was not related to the victim and did not testify at trial, recounted in his statement that he arrived at the restaurant and was told by Hall that the restaurant had been robbed. Ryan Thompson stated that Hall described the robbery to him, telling Thompson he saw one man inside the restaurant robbing the Imvictim, and later saw five people running from the restaurant. Thompson stated that at Hall’s behest, he called Caldwell to attempt to get the telephone number of the owner of the restaurant, but Caldwell was unable to give him the number. He stated that he and Hall’s sister eventually left the scene. When asked if he had heard anyone talking about robbing the restaurant, Ryan Thompson stated that in early March Shelby told him that he knew a way to get a lot of money. When pressed, Shelby told Thompson that “he knew somebody that was gonna hit Russell’s Marina Grill. Isaac said that his cousin Walter had a plan to rob Russell [sic] Marina Grill and that he could do it.” Thompson denied that Shelby told him how he and the relator planned to execute the robbery, merely noting that they “had a plan.”

The relator now argues that had he been aware of Ryan Thompson’s statement, he could have subpoenaed him to show that Shelby, who owned the gun, had confided in Thompson that he planned to rob the restaurant. The relator acknowledges that Shelby’s supposed statement to Ryan Thompson also inculpated him in the robbery, but he likens his case to Kyles, where the informant tried to attribute many of his own actions to Kyles in the informant’s withheld statement. However, the withheld statements here do not rise to the level of exculpatory evidence found in Kyles, where the informant did not testify at trial but provided the basis for the investigating officers’ discovery of inculpa-tory evidence at the defendant’s house. Indeed, as noted above, the jury was aware that Shelby bought the gun purportedly used in the robbery and in some fashion gave it to the relator, who indicated he wanted to use it in a “hustle.”' In both Shelby’s statements and his trial testimony, as well as in Caldwell’s statement and testimony, they indicated that the relator confessed his guilt to them over the telephone. - In addition, although eyewitnesses identified Kyles as the shooter, none of them knew Kyles, and their lnwithheld statements cast doubt on their ability to identify him as the assailant. By contrast, here the sole eyewitness to the robbery/murder knew the relator.

The relator argues that although each of these withheld statements individually might not have cast doubt on the jury’s verdict, had the jury been aware of this mutual plan in addition to the fact that Shelby gave the gun to the relator, there is a reasonable probability that it would have reached a different verdict. However, it appears that these two withheld statements do not rise to the level of Kyles. The most Ryan Thompson’s statement would show was that both Shelby and the relator planned to rob the restaurant. The most Hall’s statement would show was that Shelby gave the relator the gun to use in the robbery, something Shelby admitted in his statement to the police, which was provided to the defense prior to trial. Neither of these statements exculpate the relator; both support the State’s theory that the relator planned to rob the restaurant and took the gun from Shelby (either with or without Shelby’s express knowledge). Neither statement furthers the defense theory that the group “set up” the relator as the robber/murderer.

As noted in Bright, “not every case in which it is discovered post-trial that favorable evidence was withheld by the State will result in a reversal of the conviction. A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the ‘omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” Bright, 2002-2793 at p. 6, 875 So.2d at 42, quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). Contrary to the relator’s claims, it appears that the information contained in the statements withheld in this case, even taken together, does not undermine confidence in the jury’s verdict. As such, the trial court did not err by denying the relator’s application for post conviction relief. For the foregoing reasons, Lathe relator’s application is granted and the judgment of the trial court affirmed.

WRIT GRANTED; RELIEF DENIED; JUDGMENT OF THE TRIAL COURT AFFIRMED.

      . Writ den. 2003-1085 (La.3/12/04), 869 So.2d 815.


author: JjMICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Burnell HART.
    No. 2004-KA-0121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 2004.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Milton P. Masinter, New Orleans, LA, and Dwight Doskey, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge ■ PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   JjMICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

On January 31, 2002, Burnell Hart was indicted for the second degree murder of Coshia Turner. At his arraignment on February 8 he pled not guilty. Trial began on January 21, 2003, and on January 23 a twelve-person jury found him guilty as charged. On July 18 Hart filed a motion for post verdict judgment of acquittal, and on October 2 he filed a motion for new trial. The court denied these motions. Hart then waived further delays, and the court sentenced him to life imprisonment without benefits of parole, probation, or suspension of sentence.

FACTS

On the morning of November 19, 2001 eleven-month-old Coshia Turner was taken to Touro Infirmary’s emergency room. Coshia had no signs of life, and her body was cold to the touch when she arrived. She was formally pronounced dead approximately forty minutes later. Dr. Kenneth Jordan, the emergency room physician who attended Coshia, testified Coshia had multiple bruises and abrasions Dover a good portion of her body, and these injuries were in various stages of healing. Dr. Jordan testified Coshia had bruises on her forehead, her cheek, and around her eyes, as well as on her back, her chest, and her abdomen. She also had thirty ccs of blood in her stomach, as well as bruising on her abdomen over her stomach, which he estimated was at least one day but less than two weeks old. Dr. Jordan, who was qualified as an expert in the field of emergency medicine and services, stated that incorrectly administering CPR would not have caused the bleeding in Coshia’s stomach; rather, it was caused by massive abdominal trauma that caused the tissue of the stomach to tear. Dr. Jordan also stated that normally a person’s body remains warm for an hour or two after death, and he theorized that the low temperature of Coshia’s body could be attributable either to her being dead for many hours or to her body being immersed in cold water for approximately an hour. He indicated someone told him that Coshia’s mother had immersed the baby in cold water that morning to try to revive her. Dr. Jordan testified a CT scan of Coshia’s brain showed swelling and bleeding, and he stated that this type of injury could not occur as a result of the child knocking her head against a wall. In addition, he stated that dropping a baby from chest height onto its head would not cause as much injury as was present in Coshia’s head. Dr. Jordan concluded that Coshia was the victim of non-accidental trauma.

The parties stipulated that if the forensic pathologist who performed the autopsy on Coshia were to testify, the testimony would be consistent with the findings in the autopsy protocol, which was introduced into evidence.

The protocol listed Coshia’s injuries, including: bruises on her forehead; abrasions on her left eyelid; brush bums on the left side of her face; a cut under her left eye; hemorrhaging in her eyes; sub-dural hemorrhaging over the left cerebral | ¡¡hemisphere, as well as at the base of the brain; cerebral swelling and hemorrhaging; at least eight bruises on her chest, mostly in the center of her chest, as well as abrasions; multiple bruises on her upper back; rib fractures and hemorrhages; blood in the peritoneal cavity and left lung; laceration in the liver; hemorrhaging in her stomach; abrasions on the left arm above the elbow and on her right upper arm and above her right knee; bruises on her right foot; scattered cuts on her left thigh; and bruises on the upper back of her arms and her buttocks. The protocol classified her death as homicide caused by child abuse.

Felicia Hart testified she is the defendant Burnell Hart’s sister. She stated that she first met Kimberly Turner, Coshia’s mother, a few weeks before Coshia’s death. Ms. Hart stated that during this two-week period, Kimberly lived with Burnell and his three children at Burnell’s house on Foucher Street, but neither of Kimberly’s two children resided with them. Ms. Hart testified that on the Thursday before Cos-hia’s death, she was visiting Burnell’s house when Kimberly received a call from Kimberly’s sister instructing Kimberly to pick up her children, who had been staying with Kimberly’s grandmother. Ms. Hart testified she accompanied Kimberly to her grandmother’s house, and when they picked up the children, Coshia and Kimberly, Jr. (who was two years old), the girls were dirty and had cuts on their faces. Ms. Hart stated that in addition, Coshia had a fever and was sick and crying, wanting Kimberly to hold her. Ms. Hart testified Kimberly refused to do so. Ms. Hart stated that when she asked Kimberly why Coshia was so sick, Kimberly refused to respond. Ms. Hart then suggested that they take Coshia to the hospital, and Kimberly replied that she did not want to do so because she was afraid she would go to jail. Ms. Hart stated she did not see either Kimberly or her brother hit Coshia that day.

|4Ms. Hart further testified that when she returned to the Foucher Street house on Sunday, the night before Coshia died, she noticed Coshia was lying on the couch, still sick and still crying. Ms. Hart noticed Coshia had more bruises than she had observed on Thursday. Ms. Hart stated Kimberly again rejected her advice to take Coshia to the hospital. Instead, Ms. Hart gave Coshia some medicine to help bring down Coshia’s fever. Ms. Hart stated she also saw Coshia hitting her head against the wall that evening. She maintained she did not see either Burnell or Kimberly strike the child that night, although she did see Kimberly drop Coshia to the ground, where Coshia fell onto her buttocks. Ms. Hart stated that the next day, Burnell came to her house to get an asthma machine, telling her that he wanted it because Coshia was not feeling well. Ms. Hart, however, could not find the machine.

Burnell Hart, Jr. testified he was six years old at the time of trial. After being found competent to testify, Burnell, Jr. stated he remembered Kimberly and her babies coming to stay at his house just before Coshia died. He stated that on the evening before Coshia died, Kimberly was in the kitchen and Coshia was in another room, crying for Kimberly. Burnell, Jr. stated that he saw his father punch Coshia hard in the chest four times and tell her not to go into the kitchen because Kimberly did not want her. Burnell, Jr. testified that Coshia cried for a time, and his older sister tried to feed her with a bottle. Cos-hia then went to sleep.

The young boy also testified that a man named John McDonald called for emergency services the next day for Coshia. Bur-nell, Jr. stated he was in the kitchen when the police arrived. Burnell, Jr.’s testimony was somewhat confused, however, because he testified that he had slept at his father’s house the night before trial, and that was the night he had seen his father hit Coshia. He also testified that |fiKimberly had three, not two, babies who came to the house. In addition, he first answered no, then yes, to the question of whether the last time he saw Coshia alive was the night before the police came to his house.

Blair Easton testified he was a N.O.P.D. fireman, assigned to a fire station near the defendant’s house. He testified that in cases where people seek emergency treatment, firefighters are also dispatched, and in many cases they respond before EMS personnel arrive.

Mr. Easton testified that on November 19, 2001 at approximately 8:00 a.m. he responded to the call of an unconscious child at the defendant’s house. He stated that when he arrived, he saw a woman sitting on a couch in the front room. In the second room, he saw the defendant standing next to a double bed, on top of which was a baby. The defendant was thrusting both of his hands into the baby’s chest, and he told Mr. Easton he had last seen the baby alive the night before. Mr. Easton stated that as he and his partner started setting up their equipment, he advised the defendant to use only one hand on the baby’s chest, but even this was too much pressure.

Mr. Easton testified that when he took the baby and placed her on the floor, she was already cold to the touch, her pupils were dilated, and she was not breathing. He testified he and his partner established an airway and started performing CPR. He stated the baby had large abrasions on her face and multiple bruising on her chest and neck. He testified that when his captain arrived, he advised his captain to secure the occupants of the house and notify the police. He continued to perform CPR on the baby until the ambulance arrived to take the baby to the hospital. Mr. Easton identified the woman sitting on the couch that morning [fias Kimberly Turner, whom he described as showing no emotion during the incident.

Det. Nicole McCaskill testified she responded to the call of an unconscious child at 1931 Foucher Street. She testified that by the time she arrived, EMS personnel and a fire engine were already on the scene. She testified that as she walked up to the house, EMTs were carrying out a baby. She testified she noticed the baby had several large bruises on her stomach and face. She described the baby as unresponsive and cold, and the baby’s eyes were rolled back into her head.

Det. McCaskill testified she called for a ranking officer, and upon subsequently receiving a call from the hospital, advising her to treat the matter as a homicide, she roped off the scene and separated Kimberly Turner and the defendant (the only adults in the house). She testified she advised them both of their rights, and she questioned Kimberly.

Det. McCaskill testified she found the defendant’s sons playing video games in the kitchen of the house. She later escorted the boys outside, where Ms. Hart was waiting for them. She testified she also helped dress Kimberly’s older daughter. Det. McCaskill testified that when she first arrived on the scene, the defendant seemed surprised to see her and told her that he had not called for the police.

DISCUSSION AND RECOMMENDATION

A. Errors Patent

A review of the record reveals no patent errors.

\rjB: Assignment of Error

By his sole assignment of error, the appellant argues the State presented insufficient evidence to support his conviction for second degree murder. Specifically, he argues that the evidence did not show that Coshia died as a direct result of his actions; at most, it showed she died while she was staying at his house. He insists the jury convicted him based upon his failure to take action to stop any further abuse or to seek medical attention for Cos-hia, a ground upon which the State did not charge him and had agreed not to present.

The test for determining the sufficiency of evidence to support a conviction was set forth in State v. Armstead, 2002-1030, pp. 5-6 (La.App. 4 Cir. 11/6/02), 832 So.2d 389, 393-394, writ den. 2002-3017 (La.4/21/03), 841 So.2d 791:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains
evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d 1305; Green, 588 So.2d 757. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).
bln addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson, but rather is an evi-dentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

The appellant was charged with second degree murder, which provides in pertinent part: “Second degree murder is the killing of a human being: ... When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or inflict great bodily harm.” La. R.S. 14:30.1 A(2)(b). Although the indictment merely charged the appellant with second degree murder the State’s answer to the bill of particulars, discovery, and inspection noted that particular subsection of the statute. Cruelty to juveniles is defined by La. R.S. 14:93 A as: “... the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” See State v. Keelen, 95-0668 (La.App. 4 Cir. 2/29/96), 670 So.2d 578. As noted by this court in State v. Leblanc, 2003-0276, p. 6 (La.App. 4 Cir. 11/19/03), 862 So.2d 129, 134, writ den. 2004-0054 (La.5/7/04), 872 So.2d 1078:

Specific criminal intent is “that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). The determination of specific criminal intent is a question of fact. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, 373, cert. denied, Seals v. Louisiana, 520 U.S. 1199 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997). Specific intent may be inferred from the circumstances and the actions of the defendant. Seals, 684 So.2d at 373.

Here, the appellant does not argue that he was under the age of seventeen at the time Coshia died or that she was over that age. Indeed, there was ample evidence that Coshia was eleven months old at the time of her death, and the jury could observe the appellant to determine that he was over seventeen at the time of the death. Given the fact that his son testified he was six years old at the time of trial, it appears highly unlikely that the appellant was under seventeen at the time of Coshia’s death. In addition, the State adequately proved that Coshia was killed; the autopsy protocol classified her death as a homicide attributable to child abuse. The appellant argues, however, that the evidence does not support his conviction because there was no evidence of what injury caused her death. He maintains, therefore, that the jurors convicted him not because they believed he intentionally performed an act which led to her death, but rather because they found his failure to protect Coshia amounted to negligence, which the State had maintained it was not going to try to prove.

Contrary to the appellant’s argument, however, it appears the evidence more than adequately supported a finding that he intentionally mistreated Coshia, causing her unjustifiable pain or suffering. His son testified that he saw the appellant punch Coshia in the chest hard four times the night before her death when she kept crying for her mother, who was in another room and apparently did not want to see her. The ER physician who examined Coshia testified she had blood in her stomach and bruises on her chest which corresponded to her stomach area. The physician estimated these bruises were at least a day old. In addition, the autopsy protocol indicated Coshia had broken ribs. Although the defense |insought to explain these injuries occurred when the appellant attempted to revive Coshia using improper CPR techniques on the morning she was discovered not breathing, the ER physician testified that the type of injuries Cos-hia sustained would not have occurred through the use of improper CPR techniques. Rather, he indicated these injuries were the result of massive abdominal trauma which caused the tissues of her stomach to tear.

The appellant attacks his son’s credibility, especially with respect to his ability to judge when certain events occurred. Indeed, his son’s testimony was somewhat confused, and his perception of time was not clear. However, he was positive that he saw his father punch Coshia at night, not on the morning that she was taken to the hospital. As such, his observations could not be explained as merely seeing his father attempt to revive Coshia using CPR. In addition, the firefighter who responded to the call for assistance testified that when he entered the house, only the appellant and Coshia were in the bedroom where the appellant was trying to revive her. The officer who arrived as the EMTs were taking Coshia’s body out of the house testified both boys were in the kitchen playing video games when she arrived.

Even given Burnell, Jr.’s lack of clarity, the jury obviously believed his testimony that he saw the appellant punch Coshia in the stomach four times the night before she died. A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093, writ den. 2002-0703 (La.11/V02), 828 So.2d 564; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The jury was able to observe the boy’s demeanor and judge his credibility, and his testimony as a whole is not so suspect that it was contrary to the evidence. Thus, Inthe State presented sufficient evidence to show the appellant violated La. R.S. 14:93 by intentionally mistreating Coshia, causing her unjustifiable pain or suffering.

The appellant insists, however, that the evidence was not sufficient to support his second degree murder conviction because there was no evidence as to the actual cause of death. Coshia already had many cuts and bruises when she arrived at the appellant’s house four days before she died. In addition, when Ms. Hart saw Coshia the day before she died, Coshia had more bruises and cuts than she had when Ms. Hart last saw her the day she arrived. The ER physician testified the bruises and cuts he observed on Coshia were of varying ages, indicating she had been injured over a period of time. In addition to the bleeding in her stomach, Coshia had cranial bleeding and brain swelling, also caused by significant trauma to her head. The only classification of death on the autopsy protocol was homicide by child abuse, but it did not specify exactly which injury, or combination of injuries, caused her death. The appellant was not the only person in the house with Coshia during the last days of her life.

In support, the appellant cites cases where defendants were convicted in connection with the death of a child and there was more evidence linking the defendant to the death than was presented here. In only one case, however, was the defendant charged with second degree murder, and in that case the State prosecuted the defendant under La. R.S. 14:301 A(l), where the offender had the intent to kill or inflict great bodily harm. In State v. Mosely, 475 So.2d 76 (La.App. 2 Cir.1985), the child sustained massive injuries while in the defendant’s care, including fingernail marks on both sides of the child’s neck and massive internal injuries. The jury convicted the defendant, and on review the court found hi>the evidence supported the verdict. Interestingly, in discussing the evidence adduced against the defendant, the court stated:

The Louisiana Supreme Court has held on several occasions that it is not essential that the act of the defendant should have been the sole cause of the death. If the conduct of defendant hastened the termination of life, or contributed, medi-ately or immediately to the death, in a degree sufficient to be a clearly contributing cause, that is sufficient cause in fact. State v. Matthews, 450 So.2d 644 (La.1984); State v. Wilson, 114 La. 398, 38 So. 397 (1905); State v. Scott, 12 La.Ann. 274 (1857). The Louisiana Supreme Court has adopted, in State v. Durio, 371 So.2d 1158 (La.1979), the standard for determining causation in fact that is approved by the LaFave and Scott treatise on criminal law. The standard is whether or not “the defendant’s conduct is a substantial factor in bringing about the forbidden result.” W. LaFave and A. Scott, Handbook on Criminal Law, § 35 at 250 (1972).

Mosely, 475 So.2d at 79.

In State v. Larson, 579 So.2d 1050 (La. App. 3 Cir.1991), the defendant was charged with manslaughter in the death of a child he was watching. The defendant claimed the baby drowned while he was bathing the child, but the autopsy showed no water in the child’s lungs; rather, the autopsy showed the baby died of head injuries. There was evidence the defendant fell on the stairs while holding the baby when he went to a neighbor’s apartment seeking help, but the neighbor testified it did not look like the child hit his head when the defendant fell. The defense presented an expert who theorized that none of the injuries listed in the autopsy would have caused the child’s death. Nonetheless the court upheld the defendant’s manslaughter conviction.

Two other cases cited by the appellant involved first degree murder convictions. In both State v. Deal, 2000-0434 (La.11/28/01), 802 So.2d 1254, cert. den. Deal v. Louisiana, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002), and State v. Wright, 2001-0322 (La.12/4/02), 834 So.2d 974, cert. den. Wright v. Louisiana, 540 U.S. 833, 124 S.Ct. 82, 157 L.Ed.2d 62 (2003), the Court considered whether there was sufficient evidence to show the defendant intended to kill or inflict great bodily harm, elements the State was not required to show in the present case. In Deal, EMTs found pieces of wadded paper towels in the baby’s airways, and the defendant admitted “swabbing” the baby’s mouth with paper towels while trying to clean up the baby after it had spit up. The defendant also admitted throwing the baby into its crib when it continued to cry. The Court found that the considerable force needed to jam the pieces of paper towel into the baby’s airway and the force needed to inflict the head injuries showed an intent to kill or inflict great bodily harm.

Likewise, in Wright the defendant admitted he and the victim’s mother regularly beat the victim to “discipline” her. The autopsy listed the cause of death as child abuse, and the coroner testified that the child died of a massive head injury which could only have been caused by the infliction of significant force. The coroner testified: “Her cause of death is basically child abuse. The head injury is the final step in the blunt force injuries. The head and brain injury is what ultimately cause her death.” Wright, at p. 5, 834 So.2d at 980. The coroner testified that the continued abuse weakened the child’s immune system, but she would have survived absent the head trauma. The Court extensively discussed the principal theory of culpability and found the physical evidence, added to the defendant’s confessions, showed he had the specific intent to kill or inflict great bodily harm to the child, justifying the jury’s finding he was a principal to her murder.

| uHere, however, contrary to the appellant’s argument, the State did not have to prove he had the specific intent to kill Coshia or inflict great bodily harm upon her. Instead, it had to show her death occurred as a result of his intentional mistreatment of her which caused her unjustifiable pain or suffering. The evidence adduced at trial supports the jury’s finding that the beating the appellant administered contributed to Coshia’s death. While it is not clear that the beating alone would have killed Coshia, the beating in connection with her other injuries did kill her. The evidence shows that despite her other injuries, on the night before her death Coshia was still alert, crying, and ambulatory. It was only after the appellant beat her that she went to sleep, only to be discovered dead the next morning. Thus, there was sufficient evidence for the jury to find that the appellant’s actions resulted in her death, even though he may not have intended to kill her or inflict great bodily harm on her. Therefore, the State presented sufficient evidence to support his conviction for second degree murder which occurred as a result of a violation of La. R.S. 14:93.

In the alternative, the appellant argues that the jury was misled by the prosecutor’s argument into believing it could convict him of second degree murder upon a showing of his neglect in not preventing the injuries Coshia sustained while she was staying at his house and in not seeking medical attention for her. In support, he cites various times where the prosecutor argued to the jury that the appellant’s actions constituted negligence. He contends this argument caused the jury to convict him on the basis of criminal negligence under La. R.S. 14:93, |1fiwhich the State had agreed before trial was not applicable, rather than on the basis of intentional mistreatment.

The appellant acknowledges that the court admonished the jury that it was not to consider neglect. During the closing argument, when the defense objected to the prosecutor’s reference to criminal neglect, the court explained it was going to let the prosecutor proceed, but it admonished the jury that it would instruct them on the law at the close of the case, noting: “I’ve discussed with the attorneys the instructions of law which I intend to give in this case is that there was an intentional mistreatment. There was no criminal neglect on the part of this defendant.” During its instructions on cruelty to juveniles, the court defined the crime only as the intentional mistreatment of the juvenile; it did not mention neglect. The court further stated: “Thus, in order to find that the defendant committed cruelty to juveniles, you must find first, that the defendant intentionally mistreated Coshia Turner by physically striking the victim, secondly, that the defendant was over the age of 17, and thirdly that the victim was under the age of 17, and that the defendant’s — fourthly, and that the defendant’s intentional mistreatment caused — caused the victim unjustifiable pain or suffering.” When the jury returned for further instructions, the court reiterated this instruction.

The court’s instructions clearly told the jurors that they must find the appellant intentionally mistreated Coshia in order to convict him of second degree murder. Although the appellant now argues that the court’s instruction was somewhat vague, defense counsel approved of this instruction prior to the court’s |1fireading it and did not object either time it was read. The instruction was not vague, and the court additionally told the jurors during the State’s argument that there was no negligence on the appellant’s part. Thus, the appellant has failed to show that any argument by the prosecutor concerning negligence on the appellant’s part influenced the jury’s verdict. As noted above, there was ample evidence for the jury to find the appellant intentionally mistreated Coshia, causing her unjustifiable pain or suffering. This claim has no merit, and the entire assignment of error has no merit.

For the above reasons the appellant’s conviction and sentence are affirmed.

AFFIRMED.

      . The victim's mother, Kimberly Turner, was also indicted in the same bill for second degree murder. On March 12, 2002 the court found her incompetent to proceed. On November 13, 2003 the court found her unable to stand trial and ordered the case "closed” as to her. However, a lunacy hearing is set for December 9, 2004. She is not a party to this proceeding.

      . Although we could find nothing in the record which specifically showed that the State planned to limit its proof to intentional mistreatment, at a pretrial hearing the judge stated: “In this case, based upon what you told me in chambers, the co-defendant [Kimberly Turner] is charged with the neglect, the defendant [Burnell Hart] is charged with committing the act itself. Correct?” The prosecutor replied affirmatively.


author: | PATRICIA RIVET MURRAY, Judge.

text:
    NEW ORLEANS REDEVELOPMENT AUTHORITY v. Elmer LUCAS and his succession and heirs if deceased.
    No. 2002-CA-2344.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 2004.
    Rehearing Denied Oct. 6, 2004.

      Christopher Gobert, Cade, Collins & Go-bert, New Orleans, LA, for Plaintiff/Appel-lee.
    James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Interve-nor/Appellant, Wesley Alden, M.D., d/b/a Crescent City Property Services.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   | PATRICIA RIVET MURRAY, Judge.

In this nullity action, the plaintiff, Wesley Alden, M.D., d/b/a Crescent City Property Services (“Dr. Alden”), seeks to annul an expropriation judgment rendered in favor of the defendant, New Orleans Redevelopment Authority (“NORA”), a state agency with statutory authority to expropriate blighted property. This is Dr. Alden’s second appeal. On his first appeal, we rejected his argument that he was an indispensable party to NORA’s expropriation action. Reasoning that Dr. Alden “had no legally protected interest in the property because he failed to obtain the tax deed and timely record it prior to the judgment of expropriation,” we affirmed the expropriation judgment. New Orleans Redevelopment Authority v. Lucas, 2002-1546 (La.App. 4 Cir. 2/12/03), 838 So.2d 946 (unpub.), writ denied, 2003-1060 (La.6/27/03), 847 So.2d 1278 (“Lucas /”). Based on La. C.C.P. art. 2005 and the law of the case doctrine, we decline to reconsider Dr. Alden’s arguments raised on this appeal, having considered and rejected those same arguments on his prior appeal. We, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are undisputed. Since - June 16, 1995, Elmer Lucas has been the record owner of the property located at 5019-21 LaSalle Street in New 12Orleans (the “Property”). On October 17, 2000, the Administrative Adjudication Bureau of the New Orleans Health Department rendered judgment adjudicating the Property blighted and eligible for expropriation by NORA.

As statutorily authorized, NORA identified a prospective purchaser for the Property, Velma Aiola. Ms. Aiola commissioned the required appraisals for which she paid $425. The appraisers valued the Property at $7,000. On May 15, 2001, NORA and Ms. Aiola entered into an Agreement to Purchase and Sell the Property. Pursuant to the Agreement, Ms. Aiola agreed to purchase the Property at its appraised value and to renovate it within 270 days of her purchase. The Agreement, however, was conditioned on NORA’s expropriation of the Property from its record owner. Ms. Aiola tendered the appraised value, $7,000, for deposit into the registry of the court in the impending expropriation proceeding.

On November 16, 2001, Dr. Alden purchased the Property at a tax sale from the City of New Orleans, paying $611.39 for delinquent 1999 and 2000 taxes. However, the City did not execute a tax sale deed to Dr. Alden until March 22, 2002, and Dr. Alden did not record the tax sale deed until March 25, 2002.

On November 26, 2001, NORA filed a petition to expropriate the Property. NORA named as defendants the record owner of the property, Mr. Lucas, or “his succession, whether open or unopened, and any unknown heirs, if he should be deceased.” Because Mr. Lucas’ whereabouts were unknown, NORA requested a curator ad hoc be appointed to represent him. Dr. Alden was neither named as a [ .^defendant, nor served with notice of the expropriation action. Among Mr. Lucas’ creditors who were served with notice was the City, which claimed $3,922.20 in delinquent taxes and liens. The trial was set for February 7, 2002.

On December 3, 2001, NORA filed a notice of lis pendens in the public records pursuant to La. C.C.P. art. 3752.

On December 5, 2001, Dr. Alden informed NORA, by letter, that he had purchased the blighted Property at tax sale and that he had begun refurbishing it. On December 10, 2001, NORA responded; it advised Dr. Alden, by letter, that it had inspected the Property and another property Dr. Alden had purchased at tax sale and had found no work m progress at either address. NORA further advised Dr. Alden that it would “continue its expropriation proceedings until there is evidence of work in progress and will not remove the subject properties from its inventory until they are completely renovated.”

|40n February 6, 2002, the day before trial, Dr. Alden alleges that NORA’s attorney telephoned him and first advised him that the expropriation petition had been filed. At the expropriation trial the next day, Dr. Alden, NORA, the City, and Mr. Lucas were represented by counsel. Dr. Alden’s attorney requested a continuance to allow him to research the legal issues regarding his client’s rights and obligations. Both NORA’s attorney and Mr. Lucas’ curator opposed that request. Denying that request, the trial court stated: “The error is, your sale was not recorded. And I think there is a remedy for that and a recourse. I truly don’t know who the recourse is against, but it sounds to me that there is a serious error that needs to be corrected and I will proceed with the expropriation.”

At trial, the sole witness was NORA’s representative, Madeliene Leon. She testified that she inspected the Property on February 5, 2002, and found the Property was still blighted. Particularly, she testified:

“The property still remained, inhabitable [sic]. There is no current utilities, no electricity or water. There is shrubbery growing over the roof. There is some — look like a refrigerator or stove on the outside. And there was no work in progress at that time.”

Ijn response to questioning by Dr. Alden’s attorney, Ms. Leon testified that on the day before trial she was informed that in November 2001 the City had sold the Property at tax sale to Dr. Alden. Also at trial, NORA and Mr. Lucas’ curator introduced exhibits. At the close of the one-day trial, the trial court orally rendered judgment of expropriation in NORA’s favor.

On February 15, 2002, NORA sold the property to Ms. Aiola.

On March 15, 2002, the trial court signed a written expropriation judgment, which, as statutorily authorized by both La. R.S. 19:11 and NORA’s enabling legislation, transferred title of the Property to NORA free and clear of any taxes, liens, mortgages, and encumbrances.

On March 19, 2002, Dr. Alden filed multiple exceptions (insufficiency of citation and service, prematurity, want of amicable demand, lack of procedural capacity, res judicata, nonjoinder of a party, no cause of action, and no right of action).

On April 17, 2002, Dr. Alden filed a motion for new trial. On April 19, 2002, the trial court denied the motion for new trial. On May 14, 2002, Dr. Alden filed a third party appeal pursuant to La. C.C.P. art. 2086.

On June 3, 2002, Dr. Alden filed a “Petition for Intervention, Nullity, Permanent Injunction and Damages” (the “Nullity Petition”), naming NORA as a defendant and citing La. C.C.P. art. 2005 as authority for filing of a nullity action during the pen-dency of an appeal. The petition alleged the expropriation judgment |fiwas an absolute nullity because it was rendered against a non-party, Dr. Alden, and a relative nullity based on fraud and ill practices pursuant to La. C.C.P. art. 2004. Also on June 3, 2003, the trial court signed an order of intervention, granting Dr. Alden’s request for leave to file the Nullity Petition.

On June 11, 2002, Dr. Alden filed a motion for partial summary judgment and motion for expedited hearing, seeking a declaration that the expropriation judgment was an absolute nullity.

On June 21, 2002, NORA filed exceptions of no cause and no right of action, contending that Dr. Alden had no legal interest in the Property when the expropriation action was filed or when the judgment was rendered.

On July 1, 2002, Dr. Alden filed a rule to show cause why the expropriation judgment should not be annulled and requested an expedited hearing. In support of that request, Dr. Alden cited the principle that an absolute nullity may be attacked at any time and by any method.

On July 12, 2002, this court granted Dr. Alden’s motion for expedited appeal. Before we rendered our decision in Lucas I, the trial court, on August 16, 2002, held a hearing on NORA’s exceptions and Dr. Alden’s rule to show cause why the expropriation judgment should not be annulled. On August 26, 2002, the trial court rendered judgment sustaining NORA’s exceptions, denying Dr. Alden’s rule to show cause, and dismissing his nullity action. The instant appeal is from that August 26, 2003, judgment.

|70n February 12, 2003, this court rendered its decision on the prior appeal in Lucas I. On that appeal, we framed the dispositive issue to be whether Dr. Alden was an indispensable party to the expropriation action. Finding he was not, we reasoned that he had no legally protected interest in the Property because he failed to obtain and to record the tax sale deed before the expropriation judgment was rendered. Accordingly, in Lucas I, we affirmed the expropriation judgment. On March 14, 2003, we denied Dr. Alden’s application for rehearing. On June 27, 2003, the Louisiana Supreme Court denied Ms application for certiorari.

As noted, the instant appeal is from the August 26, 2002 judgment, sustaining NORA’s exceptions, denying Dr. Alden’s rule to show cause, and dismissing his nullity action.

ANALYSIS

Dr. Alden’s arguments on the instant appeal are premised on the trial court’s inclusion of the following declaration regarding his unrecorded tax sale in the expropriation judgment; to wit:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that without advance payment and thirty (30) days subsequent to the rendition of the Judgment of Expropriation, the unrecorded tax sale to W. Wesley Alden d/b/a Crescent City Property Redevelopment, be and it is voided, cancelled and set aside ordering the redemption thereof in favor of the New Orleans Redevelopment Authority, or if in the event that some or all of the amount due for the redemption cannot be satisfied from the deposit in the Court’s registry then the redemption thereof is unnecessary, the tax sale cancelled and voided in favor of the New Orleans Redevelopment Authority, and the failure to pay the full amount, or any part thereof shall not create a cloud on the title of the property expropriated herein.

|sDr. Alden’s primary argument is that the trial court’s inclusion of the above declaration in the judgment coupled with NORA’s failure to name him as a party in the underlying expropriation proceeding renders the judgment an absolute nullity. NORA counters that the inclusion of the above declaration does not deprive Dr. Alden of any legal interest in the Property because at the time the judgment was rendered he had no such interest. We agree.

Even without the above declaration, the rendering of the expropriation judgment removed any cloud on the Property resulting from Dr. Alden’s unrecorded tax sale. As noted, pursuant to La. R.S. 19:11 and NORA’s enabling legislation, title to the expropriated property passes to the expropriating authority (NORA) free and clear of all encumbrances. A creditor’s remedy is against the expropriation proceeds deposited in the registry of the court. Pursuant to La. R.S. 9:3191, “[i]f, after the expropriation, any individual pretends that he had rights respecting the thing, either as owner or as creditor, he shall have recourse against the person who received the price.”

Nor was NORA required to name Dr. Alden as a party to the underlying expropriation proceedings. “As an expropriating authority, NORA had the right to rely on the public records in determining the identity of the property owners it was required to name as defendants.” New Orleans Redevelopment Authority v. Stroughter, 2003-1085, p. 7, n. 3 (La.App. 4 Cir. 12/17/03), 861 So.2d 940, 944-45, writ denied, 2004-0433 (La.4/2/04), 869 So.2d 888 (citing State Dep’t of Transportation & Development v. Jacob, 483 So.2d 592, 596 (La.l986)(noting that expropriating authority “need only name those defendants whose interests appear in the public records.”)). Given Dr. Alden’s tax sale was neither executed nor recorded at the time of the expropriation judgment, he had no right to be named as a party to that proceeding.

In sum, we find that Dr. Alden, as an unrecorded tax sale purchaser at the time the expropriation judgment was rendered, had no legally protected interest in the Property. The inclusion of the above declaration in the judgment neither deprived Dr. Alden of any rights, nor rendered the expropriation judgment an absolute nullity. Rather, the above declaration was mere surplusage that did not affect the validity of the judgment. See Coleman E. Adler & Sons, Inc. v. Waggoner, 538 So.2d 1131, 1133 (La.App. 5th Cir.l989)(construing judgment captioned “default judgment” and including declaration that a preliminary default was being confirmed as “sur-plusage.”)

As noted at the outset, Dr. Alden’s arguments on this appeal are substantively the same the arguments he asserted, and we rejected, in Lucas I. Based on La. C.C.P. art. 2005 and the law of the case doctrine, we decline to reconsider our prior decision.

|inLa. C.C.P. Art.2005

The governing statutory provision applicable to this case is La. C.C.P. art. 2005, which provides:

[1] A judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.
[2] A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.
[3] An action of nullity does not affect the right to appeal.

La. C.C.P. art. 2005.

Article 2005[1] codifies an exception to the general rule, under La. C.C.P. art. 2088, that a trial court is divested of jurisdiction when an appeal is filed. It authorizes a litigant to seek direct relief in the trial court to annul a judgment before or pending an appeal; it also authorizes the trial court to annul a judgment during the pendency of an appeal. However, once an appellate court has rendered a judgment on the pending appeal, Article 2005[2] applies.

In this case, the trial court dismissed the Nullity Petition without reasons on August 26, 2002. During the pendency of Dr. Alden’s appeal from the dismissal of the Nullity Petition, this court rendered its opinion in Lucas I, affirming the expropriation judgment. Although Dr. Alden’s Nullity Petition correctly cited Article 2005[1] as authorizing the filing of the instant nullity action during the pendency of the prior appeal, Article 2005[2] became applicable once this court rendered its decision affirming the expropriation judgment.

InA similar procedural scenario was presented in Morgan Building and Spas, Inc. v. Cutrer, 1998-1504, p. 7 (La.App. 1 Cir. 7/29/99), 739 So.2d 990. There, as in this case, the nullity action was filed and denied without reasons during the pendency of the appeal of the prior decision. In deciding the subsequent appeal from the denial of the nullity action, the appellate court held that because the appellant previously assigned the same error as he asserted on the second appeal, it was constrained by Article 2005[2] from granting him the relief he requested (ie., annulling the judgment). Such is the case here.

Article 2005[2] limits a litigant’s right to bring a subsequent nullity suit. Weller v. Brown, 2001-0314, p. 4 (La.App. 1 Cir. 3/28/02), 813 So.2d 635, 638. The jurisprudence has construed Article 2005[2] as providing two exclusive, disjunctive grounds for annulling a judgment that an appellate court has rendered; to wit: (i) when the ground for nullity was not in the record of appeal, or (ii) when the ground for nullity was not considered by the appellate court. Meldean’s, Inc. v. Rivers, 410 So.2d 837, 839 (La.App. 3rd Cir.l982)(describing grounds as exclusive); Weller, 2001-0314 at p. 5, 813 So.2d at 638 (describing grounds as disjunctive). “When a judgment has been affirmed by an appellate court, which considered the moving party’s arguments that the judgment should be annulled, the judgment cannot thereafter be annulled.” Steven R. Plotkin, Louisiana Civil Procedure, Book II, Commentary to La.C.C.P. art. 2005 (1994) (“Plotkin”) (emphasis supplied); Posey v. Smith, 453 So.2d 1016 (La.App. 3 Cir.1984) (finding Article 2005[2] precluded appellate court from annulling judgment on second appeal given appellate court’s consideration of same ground of nullity on prior appeal).

Nonetheless, when a litigant asserts a claim of fraud or ill practices and establishes that there are facts that did not appear in the record on a prior appeal, we have found Article 2005[2] inapplicable, and remanded to allow the litigant “to amend his petition to include the necessary allegations to state a cause of action in view of the developments which occurred subsequent to the filing of his original petition.” Roy v. Griffith, 306 So.2d 85, 89 (La.App. 4th Cir.1974). To justify a remand, however, the new facts must be relevant to the basis of the court’s prior decision. “If the fraud or ill practice pertained to a matter which was irrelevant to the basis of the court’s decision, the judgment was not ‘obtained by fraud or ill practice’ and cannot be annulled on that ground.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 12.6 (1999)(“Ma-raist & Lemmon”).

Dr. Alden argues that the limitations imposed by Article 2005[2] are not applicable here for three reasons. First, he argues that a claim of absolute nullity, such as he asserts, can be asserted at any time and in any method, and thus is not subject to the limitations in Article 2005[2]. The jurisprudence, however, has not recognized an absolute nullity exception to this provision, and we decline to craft one in this case.

Second, he argues that the facts have changed since the expropriation judgment was rendered. Since then, he has obtained a written tax sale deed and recorded it, giving him a right and a cause of action to establish his title to the

|13Property in this case. However, these factual events — his subsequent obtaining a tax sale deed and recording it — are not only noted in our prior decision in Lucas I, but also are irrelevant to the validity of the expropriation judgment, which was rendered before these events occurred. Nor has Dr. Alden alleged any ground for nullity that did not appear in the record on his prior appeal, or that was not considered by this court in that appeal.

Although Dr. Alden argues that this court neither considered nor decided in Lucas I the issues he raises on this appeal, the opinion does not support that argument. In Lucas I, we rejected Dr. Alden’s argument that the expropriation judgment was an absolute nullity because it was rendered against him as a non-party and because he was an indispensable party who was not joined. Although we analyzed only the indispensable party issue, the opinion held that issue was dispositive of the other issues he raised. In so holding, we implicitly found unpersuasive all the issues Dr. Alden raised.

Dr. Alden’s arguments in this appeal are virtually verbatim to the arguments he asserted in his prior appeal, his rehearing application, and his application for certio-rari to the Louisiana Supreme Court. Given these circumstances, we conclude that the issues raised in this appeal are the same issues we decided in our prior decision.

luIn sum, we find neither of the grounds for annulment under Article 2005[2] applies to the judgment at issue in this appeal.

Law of the case doctrine

The law of the case doctrine refers to “(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973); Louisiana Land and Exploration Co. v. Verdin, 95-2579, pp. 3-1 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65. This doctrine “may bar redetermination of a question of law or a mixed question of law and fact during the course of a judicial proceeding.” Maraist & Lemmon, supra at § 6.7. Thus, the law of the case doctrine is the proper procedural principle, as opposed to res ju-dicata, for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Posey, 453 So.2d at 1018.

The policy reasons behind this doctrine include: (i) avoiding relitigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing & Sheet Metal Carp., 260 La. 325, 330, 256 So.2d 105, 107 (1971).

Unlike the statutory doctrine of res judicata, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly. “Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.” Petition of Sewerage and Water Bd., 278 So.2d at 83. In addition to the latter exception for pal pable error, the jurisprudence has recognized two other contexts in which this discretionary doctrine will not be applied. First, it will not be applied to “supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions.” Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1094, 262 So.2d 328, 332-33; Landry v. Blaise, Inc., 2002-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 666. Sec ond, it will not be applied when the underlying, operative facts upon which the court’s prior decision was based have changed. Morrison v. C.A. Guidry Produce, 2003-0307 (La.App. 3 Cir. 10/01/02), 856 So.2d 1222, 1226-27.

Dr. Alden argues that the law of the case doctrine cannot apply in this case for the following six reasons: (1) this action and the expropriation action are not the same action, (2) the parties are not the same, (3) the issues are not identical, (4) the doctrine does not apply to decisions overruling peremptory exceptions, (5) the facts have changed, and (6) there was palpable error and it would be manifestly unjust to apply the doctrine. We briefly address each of these reasons.

First, although this nullity action \vas filed under the same case number as the expropriation action, Dr. Alden contends that this is a separate action because his prior appeal of the expropriation judgment divested the trial court of jurisdiction. This argument is answered by Article 2005[1], which provides that nullity actions are an exception to the general rule that the trial court is divested of jurisdiction by the filing of an appeal for nullity actions. Moreover, the jurisprudence has construed Article 2005[2] as equivalent to the law of the case doctrine. Posey, 453 So.2d at 1018.

|1fiSecond, stressing NORA’s failure to ever join him as a party to the expropriation action, Dr. Alden argues that the parties are not the same. This argument is belied by both the in rem nature of expropriation proceedings, in general, and by the multiple pleadings Dr. Alden has filed in both the trial court and the appellate court in this case, in particular.

Given the in rem nature of expropriation proceedings, which are proceedings against the property itself, the only indispensable party who must be joined as a defendant is the owner of the property. United Gas Pipe Line Co. v. New Orleans Terminal Co., 156 So.2d 297, 300 (La.App. 4 Cir.1963). As we held in Lucas I, NORA was not required to join Dr. Alden as a defendant because he lacked a legally protected interest in the Property. Although NORA was not required to be join him as a party to the expropriation proceeding, Dr. Alden was represented at the trial and asserted an interest in the Property. The trial court allowed him to file post-trial exceptions and a motion for new trial. In Lucas I, he filed a third party appeal, rehearing application, and application for certiorari from our prior decision. These multiple pleadings have all involved both Dr. Alden and NORA, the parties in this nullity action. His argument that the parties are not the same is disingenuous.

Third, as discussed above, Dr. Alden’s argument that the issues are not the same here as in Lucas I is unpersuasive.

Fourth, Dr. Alden contends that this court’s prior decision was limited to overruling his peremptory exception of non-joinder of an indispensable party. |17Again, as discussed above, our prior decision was not so limited. Although this exception for peremptory exceptions is premised on the notion that a jurisprudential doctrine cannot trump a Code of Civil Procedure provision, the applicable provision here is not the provision allowing re-urging of peremptory exceptions, but rather Article 2005[2], limiting subsequent attempts to nullify a judgment once an appellate decision has been rendered. The purpose behind the limitations Article 2005[2] imposes on subsequent nullity actions is to promote the goal of finality of judgments. See Plotkin, supra.

Fifth, Dr. Alden’s attempt to invoke the exception for a change in the factual circumstances was addressed, and rejected above, in connection with our analysis of Article 2005[2]. As we stated, the underlying material facts have not changed since our prior decision; hence, the exception for a change in circumstances is inap-posite.

Finally, Dr. Alden argues that the law of the case doctrine is inapplicable because this court’s prior decision that he had no legally protected interest in the Property before the tax sale deed was executed and recorded is palpably erroneous and has resulted in manifest injustice. We disagree. Indeed, as NORA emphasizes, our prior holding is supported by two well-established legal principles. First, title to immovable property cannot be transferred without a writing. In the context of a tax sale, the required writing is the tax sale deed provided for in La. R.S. 47:2183. Indeed, in State ex rel. Hinton v. Justice, 248 So.2d 361, 363 (La.App. 4th Cir.1971), this court held that such a signed, tax sale deed is sacramental, reasoning: |1R“it appears axiomatic that the signature of a vendor, or his representative, on such a [tax sale] deed or instrument is sacramental. He is the only one who can transfer title to the property and without his signature there has been no such transfer.” Id. The instant case is even stronger in that not only was the tax deed not signed, it did not even exist until after the expropriation judgment was rendered.

The second well-established principle is that an unrecorded purchase of an immovable has no effect as to third party purchasers (like NORA). Moreover, as noted earlier, NORA had the right to rely on the public records in determining the identity of the property owners it was required to name as defendants. Stroughter, 2003-1085 at p. 7, n. 3, 861 So.2d at 944-45. Given these well-settled principles, we find no palpable error in our prior holding.

Dr. Alden also argues that it would be inequitable or unconscionable to enforce the expropriation judgment against him because NORA knew he owned the property and was renovating it, yet failed to give him the required statutory and constitutional notice of the expropriation proceedings or to comply with the requirements for expropriation. This claim is the basis for Dr. Alden’s argument that he stated a claim to annul under La. C.C.P. art. 2004 based on fraud or ill practices. However, as discussed elsewhere, Dr. Alden failed to allege any operative, material facts not contained in the record on the prior appeal to support this claim. Given his failure to even allege any subsequent factual developments since this court’s pri- or decision was rendered, we reject Dr. Alden’s request to have this court reconsider the application of the law to the same facts. See Will Drill Resources, Inc. v. Huggs, Inc., 36,797 (La.App. 2 Cir. 1/29/03), 836 So.2d 1211 (based on law of case doctrine rejected litigant’s request to have appellate court decide same issue based on its construction of same document construed on prior appeal). As NORA points out, this court’s prior decision affirming the expropriation judgment rejected these same arguments.

NORA further points out that this court recently rejected similar claims of bad faith by Dr. Alden against NORA in another case. Stroughter, 2003-1085 at p. 7, n. 3, 861 So.2d at 944-45. There, we noted that NORA’s actions in commencing and continuing an expropriation proceeding despite actual knowledge of Dr. Alden’s unrecorded tax sale purchase and plans to renovate were reasonable. We noted that NORA “was reasonable in continuing the proceeding after investigating Dr. Alden’s claim that he had begun renovating the Property and discovering it to be untrue.” Id. Similarly, in this case NORA’s witness, Ms. Leon, testified at the trial that she inspected the Property and found no work in progress.

Summarizing, we find both the law of the case doctrine and Article 2005[2] apply and decline to reconsider our prior ruling.

DECREE

Having previously held that Dr. Alden has no legally protected interest in the Property and having previously rejected Dr. Alden’s request to annul the expropriation judgment, we affirm the judgment of the trial court at appellant’s cost.

AFFIRMED.

      . Although our prior opinion refers to the date as November 13th, the record reflects the tax sale occurred on November 16, 2001.

      . This amount apparently included the 1999 and 2000 delinquent taxes Dr. Alden paid to purchase the Property at tax sale on November 16, 2001.

      . La. C.C.P. art. 3752 provides:
      The notice referred to in Article 3751 [entitled "Notice to be recorded to affect third persons”] shall be in writing, signed by the plaintiff, defendant, or other party to the action or proceeding who desires to have the notice recorded, or by a counsel of record for such party, showing the name of the court in which the action or proceeding has been filed, the title, docket number, date of filing, and object thereof, and the description of the property sought to be affected thereby. This notice shall be recorded in the mortgage office of the parish where the property to be affected is situated, and has effect from the time of the filing for recordation.
      The relevance of the filing of a notice of lis pendens is that a subsequent sale of the property is subject to La. C.C. art. 2453, which provides:
      When the ownership of a thing is the subject of litigation, the sale of that thing during the pendency of the suit does not affect the claimant’s rights. Where the thing is immovable, the rights of third persons are governed by the laws of registry.

      .The relevance of the blighted status of the Property to a tax sale purchaser is that La. Const, art. 7, § 25 provides for a shorter eighteen-month (in place of the general three-year) redemption period for blighted property-

      . The other property referred to in this letter is the property that was at issue in New Orleans Redevelopment Authority v. Stroughter, 2003-1085 (La.App. 4 Cir. 12/17/03), 861 So.2d 940, writ denied, 2004-0433 (La.4/2/04), 869 So.2d 888. In Stroughter, the timing of the expropriation proceeding was different than in this case. There, the expropriation petition was not filed until March 2002. Before the scheduled July 2, 2002, trial date, NORA apparently obtained a tax certificate that reflected Dr. Alden’s payment of the delinquent property taxes. In response, NORA filed an amended petition to name Dr. Alden as an additional defendant, stating that he was the “purchaser of the referenced property for unpaid 1997 taxes ... as reflected by the unrecorded tax sale from the City of New Orleans dated November 13, 2001." Stroughter, 2003-1085 at p. 3, 861 So.2d at 942. Thereafter, NORA re-inspected the property, found the property was renovated, and dismissed the expropriation proceeding. Dr. Alden then filed, inter alia, a motion for an award of attorney’s fees under La. R.S. 19:201, claiming entitlement to such fees as "owner” of property subject to a dismissed expropriation proceeding. Without deciding if he was an "owner” under that statute, we held he was not entitled to attorney’s fees.

      . As NORA requested in its expropriation petition, the trial court appointed a curator to represent Mr. Lucas. At trial, the curator represented that Mr. Lucas’ whereabouts could not be determined. However, while this case was before us on Dr. Alden's first appeal, the Succession of Lucas filed a motion to be substituted as the proper party defendant, and the Succession of Lucas was allowed to file a brief in that appeal. In a separate appeal, we affirmed the trial court’s judgment denying the Succession of Lucas’ motion for new trial, and the Louisiana Supreme Court denied both the Succession of Lucas' and Dr. Alden's applications for certio-rari from that decision. New Orleans Redevelopment Authority v. Lucas, 2003-1406 (La. App. 4 Cir. 2/11/04), 868 So.2d 325 (unpub.), writs denied, 2004-0656, 2004-0659 (La.4/30/04), 872 So.2d 494.

      . The purchase agreement reflects that the property was sold, to Ms. Aiola and Mable Tobias.

      . The record contains no ruling on the exceptions.

      . According to NORA, this declaration was designed to allow Dr. Alden to recover the money he paid for the taxes. At trial, NORA's counsel commented that “[ajlthough I have a general judgment prepared, I’m not ready to submit it.... There needs to be some discussion between the City of New Orleans and the tax purchaser to avoid any future conflict relative to what amounts to which they're entitled.” Moreover, this ranking dispute between the City and Dr. Alden also prompted the City to file a motion seeking to have Dr. Alden declared owner, as opposed to creditor, and Dr. Alden opposed that motion. We stress that Dr. Alden’s rights against the City are not before us on appeal, and we express no opinion on that issue.

      . Although we acknowledge that Dr. Alden's petition stated a cause of action for nullity at the time it was filed, we find no error in the trial court’s dismissal of his petition. The trial court had previously denied Dr. Alden's motion for new trial, which contained substantively the same arguments asserted in the nullity petition. The trial court thus was entitled to refuse to reconsider the same legal arguments it previously rejected under the law of the case doctrine. Although that doctrine generally is applied in the appellate context, as mentioned above, it also has been invoked in contexts similar to this one to find that "the trial court was justified in refusing to try anew the identical factual issues already tried and decided in the same case.” Succes

        sion of Cameron, 446 So.2d 948, 951 (La.App. 3rd Cir.1984).

      . The following errors, which were quoted in full in this court’s unpublished opinion, were assigned by Dr. Alden in Lucas I:

      1. The trial court erred in denying [Dr.] Alden’s motion to continue, in entering judgment against a person not named as a party, and in denying [Dr.] Alden's motion for new trial.
      2. The trial court erred in failing to grant [Dr.] Alden's exceptions, in failing on its own motion to supply the objections of nonjoinder of a party, no cause of action, no right of action, and in failing to hold NORA to its statutory and constitutional duties.
      3. The trial court erred in both expropriating the property from Elmer Lucas and ordering redemption of the tax sale from [Dr.] Alden, which forms of relief are mutually exclusive.
      4. The trial court erred in not fully compensating [Dr.] Alden for the property taken from him.