author: PEATROSS, J.

text:
    WALKER LANDS, INC. and Hollybrook Land Company, Inc., Plaintiff-Appellee, v. EAST CARROLL PARISH POLICE JURY and The State of Louisiana, Defendants-Appellants.
    No. 38,376-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2004.
    Rehearing Denied May 6, 2004.

      Louisiana Department of Justice by Gary L. Keyser, Asst. Attorney General, for Appellant, State of Louisiana.
    McGlinchey Stafford, PLLC by James C. Crigler, Jr., Constance Charles Wil-lems, New Orleans, for Appellee, Walker Lands, Inc.
    Paul Loy Hurd, Monroe, for Waterways Access Association.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

This appeal arises from a trial court judgment in favor of Plaintiff Walker Lands, Inc. (“Walker Lands”) and against Defendant State of Louisiana (“State”). The State now appeals the judgment of the trial court. For the reasons stated herein, we affirm in part, reverse in part and remand.

FACTS

On June 10, 1996, Walker Lands filed suit seeking an injunction against the East Carroll Parish Police Jury to stop all pub-lie use of Gassoway Lake and a drainage ditch which runs into the lake, both in the vicinity of the Mississippi River. In its lawsuit, Walker Lands also sought a declaratory judgment from the trial court declaring that Walker Lands is the owner of Gassoway Lake and that the lake and the drainage ditch are not subject to any right of public use. Subsequently, the East Carroll Parish Police Jury filed a third-party demand against the State alleging that the State was an indispensable party to the suit, since it had a duty to defend title and access to alleged public lands.

The State answered this lawsuit claiming the ownership and/or servitude to the bed, bottoms and waters of Gassoway Lake and the drainage ditch; and, therefore, Gassoway Lake and the drainage ditch were subject to public use. The State and Walker Lands also claimed ownership of land that the State labels as an island, that sits between the lake and the Mississippi River.

A trial over these matters was held in 1999 and 2001. The trial court received extensive evidence from both parties concerning the creation and ownership of Gas-soway Lake. At trial, it was determined that Gassoway Lake did not exist in 1812, the year Louisiana was admitted into the Union. The land where Gassoway Lake now sits was either woods or farmland in 1812, west of the Mississippi River. When the Mississippi River shifted westward before approximately 1880, it flowed over this dry land. When the Mississippi River shifted eastward, private riparian landowners acquired the land, which includes Gas-soway Lake and the drainage ditch, and have owned it ever since, with Walker Lands having purchased the land in 1974. Since 1960, all owners of the land and Gassoway Lake have prohibited access to it.

Dr. Richard Kesel, expert for Walker Lands, testified that, based on map evidence, data concerning the course and flow of the Mississippi River and other information, Gassoway Lake was in existence by 1894. During the 1860s and 1870s, the Mississippi River began moving in a westward direction toward the geographical site now occupied by Gassoway Lake. Dr. Kesel opined that the land was created through alluvion or accretion when the Mississippi River moved slowly and imperceptibly back eastward, leaving behind dry land and what is now Gassoway Lake in a shallow swale. Gassoway Lake is a very shallow lake and its depth has not changed since its formation. Currently, the channel of the Mississippi River is approximately three and a half miles east of Gassoway Lake. Gassoway Lake remains landlocked during most of the year and is practically inaccessible by boat. The lake only receives water when the Mississippi River floods, which causes water to run through the ditch and eventually spilling over into the lake. The drainage ditch runs from the southern end of Gasso-way Lake to Bunch’s Cutoff, another body of water. At low water, which is at 77 feet, the ditch is mostly dry and the land that sits between the lake and the Mississippi River is mostly dry. A levee on the land blocks the Mississippi River from flooding any more dry land west of Gasso-way Lake. At times when the Mississippi River floods, the land owned by Walker Lands, including Gassoway Lake, is submerged under the waters of the Mississippi River, below the ordinary high water mark, which is 112 feet, all the way to the base of the levee. When the Mississippi River is not at an elevated state, however, the land and Gassoway Lake remains well above the ordinary low water mark of the Mississippi River.

The trial court found that, according to the 1894 map, Gassoway Lake was formed as a shallow swale. In making such a finding, the trial court rejected the conclusion found in a Louisiana Attorney General Opinion that Gassoway Lake was created as a result of a neck cut-off; the testimony of the State’s expert, Dr. Paul Kemp, who opined that Gassoway Lake was created as a result of chute cut-off, as described in La. C.C. art. 503, within the alluvial plain; and that the lake was formed out of the former Mississippi River bed. Dr. Kemp testified that the area where Gassoway Lake is located was the main channel of the Mississippi River in 1881 and that, when the Mississippi River moved eastward, it left alluvion deposits against the west bank of the river, with Gassoway Lake as a feature within the alluvion build up, which cut it off from the Mississippi River, but that it remained a channel for the Mississippi River.

The trial court ultimately rendered judgment in favor of Walker Lands, concluding that Gassoway Lake and the drainage ditch are privately owned by Walker Lands because the lake and ditch are not navigable in fact; and, thus, not navigable in law. In addition, the trial court determined that certain land between Gassoway Lake and the Mississippi River was not an island and was owned by Walker Lands. Further, the trial court found that the State has never claimed this land in the past and cannot now do so. Thereafter, the trial court entered a permanent injunction enjoining the State or the general public-at-large from going on or about Gassoway Lake, the land between Gasso-way Lake and the Mississippi River and the drainage ditch which runs into the lake. The State now appeals the judgment of the trial court, raising the following assignments of error (verbatim):

1. The trial court erred in its adoption of the final judgment written by Walker which prohibits public navigation on waters of the Mississippi and awards Island No. 1, formed in the Mississippi, to Walker;
2. The trial court erred in disregarding all relevant and competent evidence and in rendering a judgment contrary to the law of Louisiana and long standing public policy;
3. The trial court erred in refusing to grant the State a suspensive appeal where all procedures were followed, and the trial court simply nullified the request without consent of the parties and a hearing; and
4. The trial court erred in maintaining a TRO in effect from 1996 to present, despite the reversal of a prior judgment by the Court of Appeal, Second Circuit and remand to the trial court for a full trial.

DISCUSSION

It is well settled that a court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must, instead, review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349 (La.1992). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)).

The State asserts that the evidence at trial showed that Gassoway Lake was created out of the former bed of the Mississippi River, it remains navigable and connected to the Mississippi River as a channel and is public water under the law. Further, the State contends that, when Gassoway Lake is below the ordinary high water of the Mississippi River, it is burdened by a navigation servitude, levee servitude and the public use. The State also charges that the trial court’s judgment is overly broad.

Creation of Gassoway Lake

The central issue involved in this case is the creation of Gassoway Lake and the effect of the movement of the Mississippi River. La. C.C. art. 499 provides:

Accretion formed successively and imperceptibly on the bank of a river or stream, whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank, who is bound to leave public that portion of the bank which is required for public use.
The same rule applies to dereliction formed by water receding imperceptibly from a bank of a river or stream. The owner of the land situated at the edge of the bank left dry owns the dereliction.

Any alluvion and/or dereliction which forms along the banks of a river belongs to the riparian landowners, who own the land adjacent to the river, when the river shifts course. Nevels v. State, 95-0100 (La.App. 1st Cir.11/9/95), 665 So.2d 26; Davis Oil Company v. Citrus Land Company, 576 So.2d 495 (La.1991). Moreover, La. C.C. art. 504 provides:

When a navigable river or stream abandons its bed and opens a new one, the owners of the land on which the new bed is located shall take by way of indemnification the abandoned bed, each in proportion to the quantity of land that he lost.
If the river returns to the old bed, each shall take his former land.

At trial, it was established that Walker Lands’ predecessors-in-title were the riparian landowners of the property that sat at the bank of the Mississippi River when it changed course sometime after 1880 and began shifting back eastward, leaving behind dry land and standing water in a shallow swale in the land, what is now Gassoway Lake. Walker Lands’ predecessors-in-title began to acquire, through allu-vion, new land that was created, when the Mississippi River shifted east. Dr. Kesel explained that Gassoway Lake was part of this creation of new land as the Mississippi River shifted eastward.

Gassoway Lake and surrounding lands between the lake and the river are sometimes flooded by the Mississippi River. Privately owned land does not become part of a navigable body of water when a nearby navigable body of water overflows its normal bed and temporarily covers the property. Edmiston v. Wood, 566 So.2d 673 (La.App. 2d Cir.1990); Buckskin Hunting Club v. Bayard, 03-1428 (La.App. 3d Cir.3/3/04), 868 So.2d 266. Gassoway Lake is landlocked and does not now lie in the bed of the Mississippi River, which is some three and one-half miles to the east; likewise, it is not a channel of the river, since it is cut off from it. Further, since Gassoway Lake is not a channel of the Mississippi River, the dry land between it and the Mississippi River is not an island, as claimed by the State. When the land that is now Gassoway Lake sat in the bed of the Mississippi River, the river bed was owned by the State as the bed of the Mississippi River and not as the bed of a separate navigable lake. The land and the lake, however, no longer sit in the bed of the Mississippi River.

We find that the land surrounding Gassoway Lake was formed through accretion/alluvion as the Mississippi River shifted course. Gassoway Lake formed due to water left behind in a swale in the land when the river shifted eastward. We note that the depth of the lake has not changed since its formation. This evidence supports the conclusion that the lake was formed in a swale and not through a chute or neck cut-off. Applying La. C.C. art. 499 to the facts in the instant case, we further find that, as owners of the bank of the Mississippi River, Walker Lands’ predecessors-in-title gained ownership of not only the newly formed dry land, but also the lake itself. The trial court heard the testimony of both Dr. Kesel and Dr. Kemp and found Dr. Kesel’s theory of the shift in the Mississippi River and creation of Gassoway Lake to be more credible. After reviewing the evidence in its entirety, we find that the trial court’s conclusion was a reasonable one. The trial court did not commit manifest error, nor was it clearly wrong in determining the manner in which Gassoway Lake was created.

Navigability and Ownership of Gassoway Lake

First, we note that the State cannot claim ownership of Gassoway Lake by basing its argument on La. R.S. 9:1101, as it asserts in its brief. La. R.S. 9:1101 provides, in pertinent part, that “The waters of all bayous, rivers, streams, lagoons, lakes and bays and the beds thereof, not under the direct ownership of any persons on August 12, 1910, are declared to be the property of the state.” Walker Lands proved at trial that its predecessors-in-title owned the land encompassing Gassoway Lake on August 12, 1910. We find no merit in the State’s argument in this regard. We also find no merit in the argument that the State owns Gassoway Lake because the State owns all bodies of water that were within its territory when it was admitted into the Union in 1812. Gasso-way Lake did not exist in 1812; and, consequently, this law would not apply.

Since the State only owns navigable bodies of water, it argues that Gasso-way Lake and the drainage ditch are navigable. “Non-navigable lakes are private things. Accordingly, they may belong to ... a private person.” La. C.C. art. 506 cmt. c. A body of water is navigable in law if it is navigable in fact. Ramsey River Road Property Owners Association, Inc. v. Reeves, 396 So.2d 873 (La.1981). A body of water is navigable in fact if it is capable of being used for a commercial purpose over which trade and travel are or may be conducted in the customary modes of trade and travel. Id.

Non-navigable lakes are subject to the law governing dry lands. See La. C.C. art. 506 cmt. d. La. R.S. 9:1115.2 provides:

A. Inland non-navigable water bodies are those which are not navigable in fact and are not sea, arms of the sea, or seashore.
B. Inland non-navigable water beds or bottoms are private things and may be owned by private persons or by the state and its political subdivisions in their capacity as private persons.

Whether or not Gassoway Lake and the drainage ditch are navigable as they normally sit when they are not flooded by the Mississippi River depends on whether they are used in commerce. The trial court found that Gassoway Lake and the drainage ditch were not navigable and we find no manifest error in that conclusion. At trial, the State attempted to prove that Gassoway Lake and the drainage ditch can be used for commercial purposes. The trial judge properly rejected this argument.

A body of water not connected to a navigable body of water and surrounded by land can serve no useful commercial purpose. Fitzsimmons v. Cassity, 172 So. 824 (La.App. 2d Cir.1937). In Fitzsimmons, a shift in the Red River caused a shallow body of water to be left behind. This body of water had no connection with the Red River. The court found that the body of water “partakes more of a character of a shallow lake than it does a navigable stream” and it was owned by the private landowner and not the State.

In the case sub judice, the State argued that the rental of boats for fishing and other recreational purposes on Gassoway Lake was enough to find that the lake was being used for a commercial purpose to support navigability. Further, the State argued that the drainage ditch was navigable in fact. Recreational use of a body of water alone is not enough to say that the body of water is being used for a commercial purpose. Gassoway Lake is a non-navigable body of water that is owned by a private entity. It is a private thing. Moreover, the evidence in the record supports the conclusion that the drainage ditch remains completely dry for most of the year, making it unusable. The drainage ditch also cannot be used for a commercial purpose and it is a private thing. The trial court did not commit manifest error and was not clearly wrong in finding that Gassoway Lake and the drainage ditch are not navigable bodies of water. Along with the land at issue before the trial court, Gassoway Lake and the drainage ditch are owned by Walker Lands and not the State.

Injunction

First, the State argues that the judgment is overly broad because it enjoins use of the Mississippi River. We do not agree. We have reviewed the specific language of the injunction and find that it does not enjoin use of the Mississippi River, which is obviously a public body of water and no one can prevent boaters from navigating it; however, the permanent injunction must fail on other grounds.

Although the issue of standing has not been raised on appeal, we must consider this issue since it is fundamental to the granting of relief, such as the issuance of an injunction. Louisiana Dept. of Agriculture and Forestry v. Louisiana State Licensing Board for Contractors, 36,694 (La.App.2d Cir.1/29/03), 837 So.2d 726. Justiciable controversy has been defined as:

“[a]n actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relation of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Atchafalaya Basin Levee District v. Pecquet, 364 So.2d 610 (La.App. 1st Cir.1978).

A justiciable controversy is shown if there is a genuine controversy between a plaintiff and a defendant as to legal rights requiring a judicial determination. Louisiana Dept. of Agriculture and Forestry, supra.

In addition, under La. C.C.P. art. 3611, enforcement of an injunction is punishable as a “contempt of court.” Such a contempt judgment, however, may only be obtained against the party/defendant against whom the action for injunction was brought.

In the case sub judice, Walker Lands and the State were the only parties involved in this lawsuit at trial and no other persons or private entities were involved; however, the trial judge issued a permanent injunction against not only the State’s use of the property, but also the public’s-at-large use of the property. The trial judge ordered, adjudged and decreed, in pertinent part, that:

[T]he State of Louisiana, and its subdivisions or agencies, and any employee, juror, or agent thereof, and all other persons, including members of the public, (all these persons collectively “Persons”), be and are hereby permanently enjoined from entering upon the Property ..., which Property includes all lands ... and the bed, bottoms and waters of Gassoway Lake ... whether or not any of the lands or water bodies on the Property are inundated by flood waters from the Mississippi River or any other water body, for any purpose whatsoever,....
All said Persons are further permanently enjoined from a) engaging in any conduct or activity which directly or indirectly encourages or permits other Persons, including members of the general public, to enter upon the Property described above, without Walker’s or its successors-in-title express prior authorization; and b) from using such Property or authorizing, causing or encouraging anyone, other than Walker or its successors-in-title and their agents, invitees and licensees from using the Property, including the bed, bottoms and waters of Gassoway lake and the water body, (whether called a ditch, bayou, or outlet channel or otherwise) ... for any purpose whatsoever,....
All said Persons are further permanently enjoined from using any portion of the Property, including the lands and any bed, bottoms and waters of any water bodies thereon, for any purpose whatsoever, unless they have express prior authorization of Walker or its successors-in-title.

Walker Lands cannot be given relief against a hypothetical public-at-large. It cannot have an injunction enforced against every individual person in the state when there is no actual dispute against every individual person in the state. There is no genuine controversy between Walker Lands and every person in the State of Louisiana. After thorough research, we found no law or jurisprudence in this State that supports the conclusion that an entire hypothetical public-at-large can be enjoined by a court from doing an act.

Further, we find that there is no direct evidence in the record of any direct violation by State officials or departments of the State attempting to invade Walker Lands’ property; and, therefore, there is no justiciable controversy between Walker Lands and the State that would warrant an injunction being issued against the State. Simply put, there is no genuine controversy between Walker Lands and the State over the issue of injunctive relief. Walker Lands does, however, have a right to prevent its private property from being exploited. It has the same rights as all other owners of private property against a person or entity who invades its land and that is to enforce its rights as a private landowner through use of the trespass statutes, to seek specific damages against a person or entity or to ask for an injunction against a specific person or entity, but only at the time that the person or entity invades its land. Owners of private property may forbid entry to anyone for purposes of hunting or fishing and the like. La. C.C. art. 3413. We hereby reverse the permanent injunction issued by the trial court.

Public Use Servitude

Finally, in support of its argument for ownership, the State raised the issue of the existence of legal public servi-tudes under La. C.C. art. 665 in favor of itself and the general public for the utility of the Mississippi River banks at times of high water and for levee maintenance purposes. The Civil Code’s definition of the bank of a navigable river is the land lying between the ordinary low and the ordinal high stage of the water. See La. C.C. art. 456. The State, however, has not presented a justiciable controversy in this case showing that the State, through its agents in its propriety capacity, seeks to utilize any rights to these public servi-tudes. We likewise, therefore, pretermit discussion of the available use of these legal public servitudes during times of high water.

Devolutive Appeal and Temporary Restraining Order

The State also argues that the trial judge unilaterally converted its motion for a suspensive appeal into a devolu-tive appeal. Further, the State asserts that the temporary restraining order (TRO) put into effect by the trial judge in the first decision in this case, which was later reversed by this court, should not have stayed in effect after the reversal.

First, we will address the devolutive appeal. A trial judge has discretion to issue a devolutive appeal. See La. C.C.P. art. 3612. In the instant case, the State requested a suspensive appeal, or in the alternative, a devolutive appeal. When the State submitted a draft order for the trial judge to sign, however, it mentioned only a suspensive appeal in the draft order. The trial judge marked out the word suspen-sive and wrote in devolutive, |using the discretion allowed to him under our code of civil procedure. We find no merit to the State’s third assignment of error.

Finally, the State claims that the TRO should not have remained in effect after the original decision was reversed by our court. In reviewing the record, we found that the parties had agreed to maintain the TRO until the trial court rendered a decision over the merits of the permanent injunction. Likewise, we find no merit in the State’s final assignment of error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed as to the ruling that Gassoway Lake and its surrounding lands are owned by Walker Lands. The judgment of the trial court is reversed as to the permanent injunction. Costs of this appeal shall be divided equally between the parties. The total cost of this appeal was $167.50, of which half shall be assessed against the State of Louisiana through the Department of Justice, pursuant to La. R.S. 13:5112. The matter is remanded to the trial court for the calculation of trial court costs to be assessed equally against the parties.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

J¿7 APPENDIX

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

      . This lawsuit has previously been before this court. See Walker Lands, Inc. v. East Carroll Parish Police Jury, 31,490, 738 So.2d 205 (La.App.2d Cir.3/5/99), unpublished opinion, writ denied, 99-1181 (La.6/4/99), 744 So.2d 631. The previous decision in this case was our court's reversal of summary judgment which had been granted by the trial court for Walker Lands in determining ownership of Gassoway Lake.

      . The East Carroll Parish Police Jury was later dropped from the suit. Hollybrook Land Co., Inc. was also an original party to this suit, but was later dismissed as well.

      . Walker Lands refers to the gully that provides water to Gassoway Lake in times of high water as a drainage ditch. The State refers to the gully as an outlet channel. The pictures of the gully in the record indicate that a more accurate term for it is a drainage ditch; therefore, this term will be used herein.

      . By law, the State owns all bodies of water that were in existence within its borders in 1812. See Texas v. Louisiana, 410 U.S. 702, 93 S.Ct. 1215, 35 L.Ed.2d 646 (1973); Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576 (La.1974).

      . A swale is a valley or low place; a tract of low and usually wet land. Webster's Revised Unabridged Dictionary (1913). A swale is a long, narrow, shallow, natural depression in the land.

      . The western portion of Gassoway Lake is bounded by the main levee for the Mississippi River.

      . This is an important fact and detrimental to the State's case, because, with respect to rivers and streams, the bed or bottoms of water which the State owns in her sovereign capacity is only the land covered by the water up to its ordinary low water stage. See State v. Cockrell, 162 So.2d 361 (La.App. 1st Cir. 1964), writ refused, 246 La. 343, 164 So.2d 350 (1964); Esso Standard Oil Company v. Jones, 233 La. 915, 98 So.2d 236 (1957). In this case, if the State argues that the land and Gassoway Lake are within the bed of the Mississippi River, then its argument that it owns Gassoway Lake must fail because it is above the ordinary low water mark.

      . See La. Atty. Gen. Op. No. 96-206.

      . La. C.C. art. 503 provides;
      When a river or stream, whether navigable or not, opens a new channel and surrounds riparian land malting it an island, the ownership of that land is not affected.

      . Please see the attached map of the property at issue in the appendix at the end of this opinion. This map was entered into evidence at the trial court as Plaintiff's Exhibit 47.

      . The State makes more specific arguments in its brief.

      . Alluvion may be defined as an addition to riparian land, gradual and imperceptible, made by the water to which the land is contiguous. The test as to what is gradual and imperceptible in the sense of the rule is that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artificial causes makes no difference. The result as to the ownership in either case is the same. Esso Standard Oil Company, supra.

      . Alluvion and accretion are terms used synonymously. Accretion is defined as the act of growing to a thing; usually applied to the gradual and imperceptible accumulation of land by natural causes, as out of the sea or river. Black’s Law Dictionaty 20 (6th ed.1990). Accretion is the addition of portions of soil, by gradual deposition through the operation of natural causes, to that already in possession of owner. The term allu-vion is applied to the deposit itself, while accretion denotes the act.

      . For example, see Cenac v. Public Access Water Rights Association, 02-2660 (La.6/27/03), 851 So.2d 1006; Buckcskin Hunting Club, supra.

      . La. C.C. art. 665 provides:
      Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works.
      All that relates to this kind of servitude is determined by laws or particular regulations.

      . We do note that the jurisprudence in our state has long held that the public use servitude means that the public may use the bank of a river only for a navigational purpose. See La. C.C. art. 456 cmt. b; Ward v. Board of Levee Com'rs of Orleans Levee District, 152 La. 158, 92 So. 769 (1922), cert. denied, 260 U.S. 745, 43 S.Ct. 246, 67 L.Ed. 492 (1923); Jefferson Parish v. Universal Fleeting Company, 234 So.2d 88 (La.App. 4th Cir.1970). Fishing and hunting on flooded lands do not meet the definition of using the bank of a river at its high water mark for a navigational purpose. See State v. Barras, 615 So.2d 285 (La.1993); Warner v. Clarke, 232 So.2d 99 (La.App. 2d Cir.1970), writ refused, 255 La. 918, 233 So.2d 565 (1970).


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Jayanne CRAWLEY, d/b/a Southlands Premium Tropicals v. COASTAL BRIDGE CO., INC. and Louisiana Grain Services, Inc.
    No. 03-CA-1303.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.
    Rehearing Denied May 28, 2004.
    Richard M. Millet, Laplace, LA, for Plaintiff/Appellant.
    Kathryn T. Wiedorn, Claudette L. Bien-venu, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

Plaintiff/Appellant, Jayanne Crawley, d/b/a Southlands Premium Tropicals, appeals from a trial court ruling which granted summary judgment in fayor of defendant, Louisiana Grain Services, Inc., on the issue of Crawley’s claim for property damages. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

On October 3, 1999, plaintiff Jayanne Crawley, d/b/a Southlands Premium Tropi-cals (“Crawley”) entered into a lease of commercial property with defendant, Louisiana Grain Services, Inc., for vacant land located at Lot 6A, Bert Street, in LaPlace, Louisiana. Crawley leased the land in connection with the cultivation of thousands of Sago Palm plants, which she would then sell through Southlands Premium Tropicals. The term of the lease was for six months, commencing on November 1, 1999 and ending on April 30, 2000. Paragraph 25 of the lease provided that upon expiration of the lease, Crawley would immediately surrender possession of the land to Louisiana Grain, and that there would be no holdover of the lease by Crawley except by written agreement.

The lease between Crawley and Louisiana Grain passed without a renewal, and Crawley neither removed her property from the premises nor made any further payment of rent. Louisiana Grain thereafter leased the land to defendant, Coastal Bridge Co., Inc., (“Coastal”) for a term of four months, commencing July 19, 2000 and ending 12:00 p.m. on November 30, 2000.

Crawley asserts that on July 19, 2000, Coastal entered upon the leased premises while she was out of town and destroyed/removed her property, including approximately 3,000 palm plants. Crawley further asserts that on July 27, 2000, while in the process of trying to move what remained of her property and equipment, she sustained a personal injury consisting of a complex fracture to her ankle.

Crawley 'filed suit against Louisiana Grain and Coastal in the Fortieth Judicial District Court for the Parish of St. John, alleging, among other things, damages for her personal injury, as well as for damages “in negligently destroying her property and business” without notice.

On November 20, 2002, Louisiana Grain filed a Motion for Summary Judgment that addressed Crawley’s claim for property damages alleged against it. After a hearing on March 14, 2003, the trial court granted Louisiana Grain’s motion, and dismissed Crawley’s claim for property damages.

Crawley timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Crawley raises two issues/assignments of error:

1. Whether Louisiana Code of Civil Procedure Article 4701 five day notice to vacate waiver contained in the lease relieved Louisiana Grain of having to comply with formal Louisiana eviction law, and;
2. Whether paragraph 25 of the lease relieved Louisiana Grain of having to comply with formal Louisiana eviction law.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

LSA-C.C.P. Art. 4701 states:

When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
If the lease has no definite term, the notice required by law for its termination shall be considered as a notice to vacate under this Article. If the lease has a definite term, notice to vacate may be given not more than thirty days before the expiration of the term.
A lessee may waive the notice requirements of this Article by written waiver contained in the lease, in which case, upon termination of the lessee’s right of occupancy for any reason, the lessor or his agent may immediately institute eviction proceedings in accordance with Chapter 2 of Title XI of the Louisiana Code of Civil Procedure.

In the present case, paragraph 25 of the lease states, in relevant part:

Upon expiration or termination of this lease, Lessee shall surrender possession of the leased premises immediately to Lessor. Any holding over by Lessee shall not operate, except by written agreement, to extend or renew this lease, but in such case, Lessor may terminate Lessee’s occupancy at once or may consider such occupancy to be from month to month ... Lessee hereby waives any and all notices to vacate under La.Code of Civil Procedure. Art 1701. [Emphasis added].

In interpreting the above cited provision, the trial court noted in its Reasons For Judgment:

Paragraph 25 of the lease agreement clearly illustrates that the lease did not allow reconduction. This court, like the jurisprudence before it must find that the parties did not intend to continue or renew this lease except by written agreement,

The trial court further found the following facts to be uncontroverted: 1) there was no written agreement between the parties to extend or renew the lease; 2) Crawley signed the lease, and; 3) Crawley paid no rent after April 30, 2000.

In International Properties Inc. v. Drury, this Court considered a lease with nearly identical language provided in the lease provision cited above. In that case, we observed:

Although a presumption exists that a lease is reconducted on a month to month basis if the lessee remains in possession beyond the term of the lease, the jurisprudence has unequivocally held that the presumption of reconduction is inoperative in the face of the clear intention of the parties to the contrary.

Accordingly, in the present ease, we find that the trial court’s interpretation of the lease in regard to reconduction to be correct. Making this finding, we next consider whether the waiver of notice made by Crawley in paragraph 25 of the lease between the parties relieved Louisiana Grain of having to comply with formal Louisiana eviction law.

The trial court noted in regard to this assignment of error by Crawley:

Crawley contends that because Louisiana Grain took no steps to evict her after April 30, 2000 her continued possession of the property was lawful and therefore, defendant is responsible for her resulting damages. Her contention is based on the fact that no formal eviction proceedings were brought under Code of Civil Procedure Article 4701 et seq. That contention, however, completely ignore the fact that she ... waived Article 4701 notice. That having been done, we do not even get to Articles 4702 and 4731 through 4734. Any other interpretation renders the waiver meaningless.

In the case of Divincenti v. Redondo, the First Circuit considered a similar issue, and found that where the lessee had effectively waived any and all notice requirements, and where reconduction of the lease had not taken place, formal eviction proceedings by the Lessor were not required.

Similarly, in this case, Crawley clearly waived all notice requirements and the parties further expressed a clear intention that the lease would not be reconducted except by written agreement. No such written agreement was ever executed. Accordingly, we find that the trial court did not err in holding that Louisiana Coastal was not required to file formal eviction proceedings before removing Crawley from the property.

Also, as she did in the lower court, Crawley argues that the lease provides that should she “holdover on the property after expiration of the lease period, Louisiana Grain may terminate ... occupancy at once or consider such occupancy to be month to month in which case ... Crawley would pay triple the rent stipulated in the lease.” In regard to this argument, however, the trial found:

Plaintiff also mistakenly relies on the on the following language in Paragraph 25.
“... but in such case, lessor may terminate lessor’s occupancy at once or may consider such occupancy to be from month to month.”
Notice the operative word, may, it is discretionary, and therefore not binding upon the Lessor. Contrasted with that is the mandatory language of the preceding verse of the sentence, “any holding over by lessee shall not operate, except by written agreement, to extend or renew this lease.”

After a review of the record, we cannot say that the trial court’s interpretation of Paragraph 25 of the lease was erroneous. As previously discussed, the language in the lease clearly provides that no recon-duction of the lease would take place except by written agreement. In this case, no such agreement was executed.

Accordingly, for the foregoing reasons, the judgment of the trial court, granting summary judgment in favor of defendant, Louisiana Grain Services, Inc. on the issue of Crawley’s claim for property damages, is affirmed.

AFFIRMED.

      . Crawley's claim for personal injuries was dismissed by the trial court and affirmed by this Court in an unpublished opinion.

      . Bua v. Dressel, 96-79 (La.App. 5th Cir.5/28/96), 675 So.2d 1191; writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

      . Tassin v. City of Westwego, 95-307 (La.App. 5th Cir. 12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

      . 96-798 (La.App. 5 Cir. 1/15/97), 688 So.2d 83.

      . 486 So.2d 959, (La.App. 1 Cir.1986).


text:
    STATE of Louisiana, Respondent, v. David L. COOPER, Applicant.
    No. 38,986-KH.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2004.
    David L. Cooper, pro se.
    Jerry L. Jones, District Attorney, for Respondent.
    Before STEWART, PEATROSS and MOORE JJ.
   1/WRIT DENIED.

The writ application is denied as untimely under La. C. Cr. P. art. 930.8. The applicant pled guilty to forcible rape on August 16, 1999. His sentence was affirmed on appeal. State v. Cooper, 34312 (La.App. 2 Cir. 12/15/00), 774 So.2d 1153. No writ application was filed with the Louisiana Supreme Court within 30 days of the judgment by this court and the conviction became final and the time delays for seeking post-conviction relief began to run. Thus, the applicant had January 15, 2003 to seek post-conviction relief.

The district court clerk has provided documentation that the applicant filed a motion to file an “out of time” p.e.r. application on February 27, 2004, which the trial court granted, giving the applicant until April 28, 2004 to file. The application was filed on March 25, 2004 and denied on April 30, 2004.

In his motion, the applicant claimed that he had filed a p.c.r. application “on the 10-28 day of November, 2000” (sic) and alleged that it was lost in the mail or lost by the correctional officers where he was in custody. He sought reinstatement of his right to seek post-conviction relief and cited State v. Counterman, 475 So.2d 336 (La.1985). There is no indication that the trial court made any factual findings relating to this claim of a lost filing.

The only statutory exceptions that allow the filing of applications after the two-year time limit are those in La. C. Cr. P. art. 930.8 A. The allegations in this petition do not fit any of these exceptions.

It is possible that the trial court could have granted such an extension based on a factual finding that a post-conviction relief application was in fact delivered to prison authorities in a timely fashion. The “date of filing” for 930.8 purposes, under the principles enunciated in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), is the date that the p.c.r. petition was delivered to prison authorities. Thus, if the trial court found that the petition had been prepared and delivered within the time limits, and then lost or not forwarded to the court, it could consider the filing to be timely. There is no indication from the present filing that the trial court made any such determination or had any factual basis for reaching such a conclusion, other than the applicant’s unsupported allegations. Had it sought to reach such a conclusion, it could not properly do so by what appears to be an ex-parte order, without allowing the state to urge objections to the filing of a post-conviction relief application two years after the time delays had run. On the record provided, we cannot find that any basis existed to “reinstate” the applicant’s right to seek post-conviction relief and specifically decline to extend Counterman to include such a right of reinstatement. Post-conviction relief is a statutorily-created right and contains an exclusive list of exceptions, none of which are urged here. The writ is denied as untimely.

We note that, were we to reach the merits of the post-conviction relief claims, we would find them to be only conclusory allegations and completely meritless.


text:
    STATE of Louisiana, Applicant, v. Dewey E. BROWN, Respondent.
    No. 39,039-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 26, 2004.

      Lavalle B. Salomon, Monroe, for Respondent.
    Jerry L. Jones, District Attorney, Daniel J. Ellender, Assistant District Attorney, for Applicant.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   WRIT GRANTED; MADE PEREMPTORY; REMANDED.

In this case of first impression, we are called upon to construe La. R.S. 32:309(C) which provides in pertinent part that “all lighting devices ... mounted on the rear of any vehicle shall display or reflect a red color ... except that the light emitted by a backup lamp shall be white.” The issue presented is whether a cargo lamp, located on the back side of a pickup truck’s passenger area, is mounted “on the rear” of said vehicle. Trooper Harvey Bonner testified that at a little past midnight on March 15, 2004 he made a traffic stop on the defendant and his pickup truck. Trooper Bonner made the stop solely because the truck’s white cargo light was activated. He testified that he makes stops on that basis “quite often” just to advise the drivers to turn off the lights which may distract or blind drivers behind them. On this occasion, as soon as defendant Brown got out of his truck, Bonner noticed Brown was intoxicated. After further investigation, Trooper Bonner issued citations for improper lighting under La. R.S. 32:309(C) and for DWI-first offense.

On cross, Trooper Bonner candidly agreed that the only reason for the traffic stop was that the rear cargo light was on. What he referred to as “the rear lights” of the vehicle, i.e. the brake lights and tail lights, were operating correctly. Those “rear lights” are located at the rear end of the truck bed. The cargo lamp is on the cab of the truck at its top and rear, but because it emits light to the rear, Trooper Bonner considered the light to be “the rear of the vehicle” for purposes of La. R.S. 32:309(C).

Common experience indicates that cargo lamps illuminate toward the rear of the truck upon which they are mounted. When such lights are illuminated at night, they easily may confuse or distract a following motorist to believe that a backup light is in use, which is what the pertinent Title 32 section is designed to regulate. Therefore, we disagree with the district court and conclude that such a white cargo lamp is mounted on the rear of the vehicle.

It is well settled that the right to make an investigatory stop must be based on reasonable cause to believe that the suspect has been, is, or is about to be engaged in criminal activity. State v. Rodriguez, 396 So.2d 1312 (La.1981); State v. Washington, 621 So.2d 114 (La.App. 2d Cir.1993); State v. Patterson, 588 So.2d 392 (La.App. 4th Cir.1991); State v. Thibodeaux, 531 So.2d 284 (La.App. 3d Cir. 1987).

Here, the basis for the initial traffic stop was the trooper’s belief that a rear-facing white lamp was being used improperly. Under the traffic code, this gave a reasonable basis to believe an offense was being committed. Accordingly, there was a valid traffic stop. The evidence of intoxication discovered as a result of that stop is admissible at trial.

The writ is granted and made peremptory. The matter is remanded for further proceedings.


author: GRAVES, Justice,

text:
    Dewayne A. FAIRLEY v. STATE of Mississippi.
    No. 2002-KA-00779-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.
    Rehearing Denied May 20, 2004.

      Julie Ann Epps, Samuel H. Wilkins, Jackson, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorneys for appellee.
    Before SMITH, P. J., CARLSON AND GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. DeWayne A. Fairley was convicted by a jury in the Circuit Court of Rankin County of murder and sentenced to serve a life sentence in the custody of the Mississippi Department of Corrections. Aggrieved by this conviction and sentence, Fairley raises the following issues on appeal:

I. WHETHER FAIRLEY’S CONVICTION SHOULD BE REVERSED DUE TO INSUFFICIENT EVIDENCE.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING FAIR-LEY’S CULPABLE NEGLIGENCE MANSLAUGHTER INSTRUCTION, D-5.
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING OFFICER DAVID RUTH TO TESTIFY AS AN EXPERT WITNESS.

FACTS

¶ 2. On March 4, 2001, DeWayne A. Fairley and his girlfriend, Sonja Stapleton, left her mother’s house in Mendenhall and were driving to the casinos in Vicksburg when an argument ensued. Stapleton began yelling at Fairley; he then retrieved his gun from the glove compartment and placed it in his lap. When Stapleton continued to yell at Fairley, he cocked the gun and pointed it at her. According to Fair-ley, the gun accidently discharged and struck Stapleton in the head. Stapleton died from the gunshot wound.

¶ 3. Fairley then stopped the vehicle, opened the passenger door, and shoved Stapleton’s body out of the car and onto the road. Although already deceased, Sta-pleton was struck by a subsequent vehicle. Fairley then drove to Hattiesburg, checked into a hotel, and stayed the night. The next day he returned to Brandon, telephoned the police, turned himself in, and confessed to shooting Stapleton.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

¶ 4. Fairley asserts that there was insufficient evidence presented at trial to support his conviction for murder. Fairley contends that, under the facts of this case, the Weathersby Rule should have been applied and he should have been granted a directed verdict, peremptory instruction, judgment notwithstanding the verdict and/or a new trial based on the insufficiency of the evidence.

¶ 5. In Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933), this Court stated:

[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

This decision and language has since been referred to as the Weathersby Rule. “Defendants have often cited and argued application of the Weathersby Rule, but seldom have they prevailed. Usually, a factual issue is presented which requires submission of the case to the jury.” Buchanan v. State, 567 So.2d 194, 196 (Miss.1990).

¶ 6. In the case at bar, factual issues were proffered which mandated submission to a jury namely, how Fairley came to have the gun in his left hand at the time of the incident. In one version Fairley said that Stapleton gave it to him at his request; in the other version he said that he took the gun from the glove box. Fairley also stated that the gun just went off while he was pulling back on the hammer of the weapon, this testimony was contradicted by the State’s expert witness. Where conflicting stories are given about a homicide by the accused, the Weathersby Rule does not apply, Taylor v. State, 795 So.2d 512, 516-17 (Miss.2001). We reject Fairley’s assertion that the Weathersby Rule is applicable to the case at hand.

¶ 7. After careful review of the record, we conclude that there is sufficient evidence to support the verdict of murder. The facts indicate that Stapleton and Fair-ley began to argue, Fairley retrieved his gun from the glove compartment and placed it in his lap. When Stapleton continued to yell at Fairley, he cocked the gun and pointed it at her. The gun discharged, and the bullet struck Stapleton in the head fatally wounding her. Fairley stopped the vehicle and shoved Stapleton out of the car onto the road where she was struck by another vehicle. We find that these uncontested facts constitute ample evidence to support the verdict of murder.

¶ 8. When a defendant has been found guilty by a jury, appellate authority is limited, and the verdict should not be overturned so long as there is “credible evidence in the record from which the jury could have found or reasonably inferred each element of the offense.” Davis v. State, 586 So.2d 817, 819 (Miss.1991). The reviewing court is to examine all of the evidence in the light most favorable to the verdict. Yates v. State, 685 So.2d 715, 718 (Miss.1996). This Court finds the evidence presented at trial was sufficient to permit the verdict found by the jury.

II. PROPOSED JURY INSTRUCTION D-5

¶ 9. Fairley asserts that the trial court erred in refusing to grant proposed jury instruction D-5, which would have directed the jury to consider manslaughter by culpable negligence. Proposed jury instruction D-5 stated:

The Court instructs you that manslaughter by culpable negligence is a lesser included offense of the crime of murder which you may consider in this case. Not every negligent act, however, constitutes culpable negligence. Culpable negligence is of a higher degree than mere negligence and that which in civil cases is held to be gross negligence. It is characterized by negligence which exhibits or manifests more than an indifference to just any consequences. Culpable negligence is characterized by a wanton or reckless disregard or indifference under circumstances involving danger to human life. Therefore, before you may find the Defendant guilty of culpable negligence manslaughter, you must find beyond a reasonable that the acts of Defendant, not only caused the death of Sonia Stapleton, but that they manifested a wanton or reckless disregard for the safety to human life.

¶ 10. The court gave jury instruction S-6 which stated:

The Court instructs the jury that the term “heat of passion” is defined as a state of violent and uncontrollable rage caused by certain provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
The passion felt by the person committing the act should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation. In other words, passion and anger alone are not sufficient to reduce a crime from murder to manslaughter. Additionally, there must be such circumstances as would indicate that a normal mind would be roused to extent that reason is overthrown and passion usurps the mind destroying judgment.

¶ 11. “The trial court enjoys considerable discretion regarding the form and substance of jury instructions.” Higgins v. State, 725 So.2d 220, 223 (Miss.1998). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Id. The record reflects that the trial court’s refusal to grant proposed jury instruction D-5 was based on its assessment that Fairley did not adequately present a culpable negligence theory but more accurately presented a heat of passion theory.

¶ 12. We agree with the trial court. The uncontested facts reveal that the victim and Fairley began to argue, he pointed his gun at the victim, pulled the hammer back and shot the victim. Fairley then callously shoved the victim’s bleeding body onto the highway where she was subsequently struck by another vehicle. Fair-ley’s ruthless actions occasioned the victim’s demise. The sequence of events in the case at bar warrant a heat of passion jury instruction, not a culpable negligence manslaughter instruction. This Court finds that jury instruction S-6 more accurately supports the evidence submitted by Fairley. Additionally, Fairley has failed to demonstrate an abuse of discretion by the trial court’s refusal to grant the proposed jury instruction D-5. We find this assignment of error is without merit.

III. OFFICER RUTH’S TESTIMONY AS AN EXPERT WITNESS

¶ 13. Fairley alleges that the trial court erred when it allowed Officer Ruth to testify as an expert witness.

¶ 14. At trial, during direct examination, the State called Officer David Ruth to testify as a fact witness. Ruth was permitted to testify. However, when the State attempted to tender Ruth as an expert in the field of firearms, Fairley objected. The trial court sustained Fairley’s objection on the ground that the State had not provided Ruth’s name or the substance of his testimony to the defense as provided by the rules of discovery.

¶ 15. Later, during its rebuttal case, the State recalled Ruth to testify to rebut Fairley’s explanation of how the gun fired, he having testified in substance that the hammer was pulled back and the gun accidentally discharged without contact of the trigger. Following a bench conference, the trial court permitted Ruth’s testimony reasoning that Fairley had “opened the door” for such testimony.

¶ 16. The record indicates that Ruth only testified as to how the gun physically worked. Ruth detailed a characteristic common to revolvers, that being that they are designed not to fire except when the hammer is fully drawn back and firing in a single action. We conclude that Ruth was not testifying as an expert witness. According to M.R.E. 702, an expert witness is one whose testimony is about “scientific, technical, or other specialized knowledge.... ” The testimony presented by Ruth required no particular skill or training and was not beyond the knowledge of a layman. Additionally, the testimony was given during rebuttal. The State is not required to disclose rebuttal witnesses in discovery. Smith v. State, 724 So.2d 280, 320 (Miss.1998). Considering the overwhelming evidence of Fairley’s guilt, it is inconceivable that Ruth’s rebuttal testimony prompted the verdict. See Dancer v. State, 721 So.2d 583, 590 (Miss.1998). We find that this assignment of error is without merit.

CONCLUSION

¶ 17. We find that the arguments presented by Fairley are without merit, and we affirm the judgment entered by the trial court.

¶ 18. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, EASLEY AND CARLSON, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.


text:
    SUPERIOR CAR RENTAL, INC., Mike Bonfiglio and Real Cash for Titles, Inc., Appellants v. Elizabeth R. ROBERTS, Richard D. Roberts and Southern Automotive Products, Inc., Appellees.
    No. 2001-CA-01670.
    Supreme Court of Mississippi.
    March 25, 2004.
   ORDER

This appeal is before the Court en banc on the Appellees’ Motion to. Assess Statutory Damages. Following a jury verdict in favor of Elizabeth Roberts, Richard D. Roberts and Southern Automotive Products, Inc. (“Appellees”), on September 19, 2001, the Circuit Court of the First Judicial District of Hinds County, Mississippi entered the Corrected Final Judgment, which is a money judgment in favor of Appellees and against Superior Car Rental, Inc., Mike Bonfiglio and Real Cash for Titles, Inc. (“Appellants”). Appellants appealed and on February 4, 2003, the appeal was dismissed by Order of this Court for Appellants’ failure to file their brief. Appellants filed a motion to reinstate the appeal. Appellees filed a response in opposition to that motion and requested that statutory damages pursuant to Miss.Code Ann. § 11-3-23 be assessed. This Court denied the motion to reinstate the appeal and invited the parties and the Attorney General of the State of Mississippi to file briefs discussing the effective date of the repeal of Miss.Code Ann. § 11-3-23. The Appellees filed a brief in support of their motion, and the Attorney General filed a brief as amicus curiae. The Appellants did not file a brief.

During its 2002 Third Extraordinary Session, the Mississippi Legislature passed House Bill No. 19, the “Civil Justice Reform Act,” and the Governor signed it into law. 2002 Miss. Laws (3rd Ex.Sess.) Ch. 4. Section 14 of the Act states, “Sections 11-3-23 and 11-3-25, Mississippi Code of 1972, which provide for the assessment of a penalty on the appeal of certain judgments to the Supreme Court, are repealed.” Prior to being repealed, Miss. Code Ann. § 11-3-23, provided:

In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the Supreme Court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%), as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property. If the judgment or decree be for the dissolution of an injunction or other restraining process at law or in chancery, the damages shall be computed on the amount due the appel-lee which was enjoined or restrained. If the judgment or decree be for the dissolution of an injunction or other restraining process as to certain property, real or personal, or a certain interest in property, or be a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it, if the value of the property or interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree; provided, however, the above penalty shall not be assessed against any condemnee appealing from a special court of eminent domain in any circumstances.

Appellees argue that they are entitled to an award of statutory damages in an amount equal to fifteen percent of the circuit court judgment.

After due consideration, the Court finds that Section 16 of the Civil Justice Reform Act states that the “act shall take effect and be in force from and after January 1, 2003, and shall apply to all causes of action filed on or after that date.” Consistent with the argument of the Attorney General, the Court finds that, pursuant to the savings clause contained in Section 16 of the Act, the repeal of Miss.Code Ann. § 11-3-23 applies to all cases commenced in a trial court on or after January 1, 2003. Cases which were filed in a trial court before January 1, 2003, are still subject to Miss.Code Ann. § 11-3-23.

The Court finds that this matter was commenced in the circuit court prior to January 1, 2003. The Court further finds that Appellants appealed from a money judgment against them and failed to prosecute their appeal to effect. Accordingly, the Court finds that Appellees’ Motion to Assess Statutory Damages is well taken and should be granted. The Court further finds that this Court’s mandate should be amended accordingly.

IT IS THEREFORE ORDERED that Appellees’ Motion to Assess Statutory Damages is granted. The statutory penalty of fifteen percent of the judgment is hereby assessed against the Appellants.

IT IS FURTHER ORDERED that the mandate shall be amended to read as follows:

THE APPEAL IS DISMISSED UPON ENTRY OF THIS ORDER. ALL COSTS OF THE APPEAL ARE ASSESSED TO APPELLANTS. ORDER ENTERED. STATUTORY PENALTY ASSESSED AGAINST THE APPELLANTS.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this Order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition).

/s/ Edwin Lloyd Pittman

EDWIN LLOYD PITTMAN, CHIEF JUSTICE FOR THE COURT

DIAZ, J., NOT PARTICIPATING.


author: EASLEY, Justice,

text:
    Claire Louise GRUMME v. Darren W. GRUMME.
    No. 2003-CA-01209-SCT.
    Supreme Court of Mississippi.
    May 6, 2004.

      W. Eugene Henry, attorney for appellant.
    Dempsey M. Levi, Ocean Springs, attorney for appellee.
    Before WALLER, P.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. On June 7, 1999, Claire Louise Grumme (Claire) and Darren Wayne Grumme (Darren) were divorced by Judgment of Divorce in the Superior Court of Guam. They had one child, Vincent Hansen Grumme (Vincent), born on March 3, 1993. Darren was enlisted in the United States Navy during the time the parties lived and were divorced in the U.S. territory of Guam. In the Property Settlement Agreement (PSA) incorporated in the final Judgment of Divorce, Claire received physical and legal custody of the minor child subject to Darren’s visitation rights. Darren was ordered to pay $350.00 per month in child support until Vincent turned 18 or is no longer a full-time student. The parties also agreed in the PSA that jurisdiction over future issues would be in the country where the wife and child reside.

¶ 2. While Claire was a resident of the United Kingdom, and Darren was a resident of Jackson County, Mississippi, Claire filed this action in the Chancery Court of Jackson County, Mississippi, seeking to register the Guam Judgment of Divorce and to register and enforce, as well as, modify the order of support as allowed by the Uniform Interstate Family Support Act (UIFSA), codified as Miss.Code Ann. §§ 93-25-1 to -117 (Supp.2003). Claire requested that a wage withholding order be issued to obligate Darren’s employer to deduct the child support from his wages.

¶ 3. Darren filed a special appearance and an answer to the complaint. Darren argued that according to the PSA attached to the Judgment of Divorce the parties agreed to have jurisdiction of any future issues handled in the United Kingdom. The trial court held a hearing on Darren’s motion to dismiss and dismissed this action for lack of jurisdiction. In a contradictory analysis, the trial court determined that:

This [cjourt is certainly mindful of the fact that jurisdiction is something that cannot be agreed upon, however, in that this matter involves the country and place of residence where the mother and the child are living and the fact that the father has agreed to enter his appearance to same, it appears to the Court that the logical forum to try this case would be within the jurisdiction of the United Kingdom where in the opinion of this [cjourt jurisdiction attaches not only by the agreement of the parties but by the fact that the mother and child reside there.

¶ 4. This Court finds that the trial court’s analysis is not consistent with the provisions of the UIFSA established to handle the situation where neither of the parties currently reside in the issuing state where the support order was entered. The trial court also misapplied the Nelson v. Halley, 827 So.2d 42 (Miss.Ct.App.2002). In fact, the trial court stated that based on the intent of the UIFSA statutes it would not be able to reach the same conclusion except for the consent aspect of Halley and Miss.Code Ann. § 93-25-101.

¶ 5. On appeal, the sole issue presented to this Court for review is whether the Chancery Court of Jackson County erred in dismissing for lack of jurisdiction Claire’s petition to register the foreign order in order to enforce and modify the child support order issued by the Superior Court of Guam under the provisions of the Uniform Interstate Family Support Act.

LEGAL ANALYSIS

¶ 6. A child support order or an income-withholding order (foreign judgment/order) issued by the tribunal of another state (issuing state) may be registered in this state for enforcement. Miss. Code Ann. § 93-25-81. Registration of the order does not require commencement of litigation; however, a petition or pleading for modification may be filed at the same time as the registration or after registration. See id. § 93-25-97. The purpose of UIFSA is to create certainty as to a single state that can modify the child support order. The issuing state retains continuing, exclusive jurisdiction until another state (registering state) acquires jurisdiction. See id. § 93-25-17. The continuing, exclusive jurisdiction of the issuing state remains in effect as long as one of the parents or the child still resides in the issuing state, unless the parties agree to the contrary. Id. When both parents and the child leave the issuing state, the continuing, exclusive jurisdiction of the issuing state remains in effect and enforceable until it is modified by another appropriate tribunal (court). Id.

¶ 7. Under Mississippi’s statutory version of UIFSA, the first step is to file the foreign judgment in an appropriate chancery court. Miss.Code Ann. § 93-25-83 specifies the procedure required to register a foreign order as follows:

(1) A support order or income-withholding order of another state may be registered in this state by sending the following documents and information to the appropriate tribunal in this state:
(a) A letter of transmittal to the tribunal requesting registration and enforcement;
(b) Two (2) copies, including one (1) certified copy, of all orders to be registered, including any modification of an order;
(c) A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage;
(d) The name of the obligor and, if known:
(i) The obligor’s address and Social Security number;
(ii) The name and address of the obligor’s employer and any other source of income of the obli-gor; and
(iii) A description and the location of property of the obligor in this state not exempt from execution; and
(e) The name and address of the obli-gee and, if applicable, the agency or person to whom support payments are to be remitted.
(2) On receipt of a request for registration, the registering tribunal shall cause the order to be filed as a foreign judgment, together with one (1) copy of the documents and information, regardless of their form.
(3) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.

(emphasis added). Miss.Code Ann. § 93-25-39 outlines the grounds on which to contest or object to the registration or enforcement of the foreign order. Miss. Code Ann. § 93-25-93(1) provides that the party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one of the following defenses:

(a) The issuing tribunal lacked personal jurisdiction over the contesting parfy;
(b) The order was obtained by fraud;
(c) The order has been vacated, suspended or modified by a later order;
(d) The issuing tribunal has stayed the order pending appeal;
(e) There is a defense under the law of this state to the remedy sought;
(f) Full or partial payment has been made; or
(g) The statute of limitation under Section 93-25-87 (Choice of law) precludes enforcement of some or all of the arrearage.

¶ 8. Here, the Superior Court of Guam, the issuing tribunal, had in personam jurisdiction over Darren. At the time of the divorce, both parties resided in Guam. In this record there is no allegation or proof that the foreign order was obtained by fraud, or that the order had been vacated, suspended, modified or stayed pending appeal. Darren does not contest the validity of the foreign order. Also, no issue as to any full or partial payment of the child support was raised.

¶ 9. Therefore, Darren’s objection to registration of the order for enforcement does not fall within the objections spelled out in Miss.Code Ann. § 93-25-93. Miss. Code Ann. § 93-25-93(3) provides that: “[i]f the contesting party does not establish a defense under subsection (1) to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order.”

¶ 10. After the foreign order has been registered in this state, the tribunal of this state may modify that order pursuant to Miss.Code Ann. § 93-25-101 if the provisions of Miss.Code Ann. § 93-25-107 are not applicable and the following requirements are met: (i) the child, the individual obligee and the obligor do not reside in the issuing state; (ii) a petitioner who is a nonresident of this state seeks modification; and (iii) the respondent is subject to the personal jurisdiction of the tribunal of this state.

¶ 11. Miss.Code Ann. § 93-25-107 is not applicable here. None of the parties or the minor child still reside in the issuing state (Guam). Claire and the minor child reside in the United Kingdom. Therefore, the petitioner (Claire) is a nonresident of this state. As a resident of Jackson County, Mississippi, Darren, the respondent, is subject to the in personam jurisdiction of this tribunal (Chancery Court of Jackson County). Clearly, this case meets the statutory requirements to bring this matter in the Chancery Court of Jackson County for modification. In concluding otherwise, the trial court improperly applied Halley to the facts at bar.

¶ 12. In Halley, the parties divorced in California in 1988. Halley, 827 So.2d at 44. The husband was ordered to pay child support on the parties’ three children. The wife received custody of the children. In 1991, the child support order was subsequently modified by a California court based on an increase in the husband’s income. The husband then moved to Maryland. The wife and the children moved to Forrest County, Mississippi. Id.

¶ 13. In 1999 the husband filed a petition for modification of child custody in the Chancery Court of Forrest County, Mississippi, seeking custody of his son and to end support obligations for his son. The husband filed the petition pursuant to the UCCJA (Uniform Child Custody Jurisdiction Act) in the resident state of the child. Id. Miss.Code Ann. § 93-23-5 adopted the provisions of the UCCJA.

¶ 14. Subsequently, the wife counterclaimed in the Mississippi action to increase the amount of the child support by lengthening the period of time for child support payments to age 21 in Mississippi rather than age 18 in the California decree under California law. Id. The husband contested the wife’s counterclaim to modify the child support payments. Id. at 44-45. The husband’s argument was that the wife’s modification of the child support payments should have been made in California where the divorce had been granted or in the husband’s resident state of Maryland. Id. at 45.

¶ 15. The parties entered a temporary order in the Chancery Court of Forrest County signed by both parties that: “[p]ursuant to the Uniform Child Custody Jurisdiction Act and the consent of the parties hereto, this [c]ourt has jurisdiction of the parties and the subject matter hereof and in particular assumes jurisdiction to determine all matters pertaining to the custody, support, maintenance and visitation of the children of the parties’ marriage ...” Id. at 50.

¶ 16. In Halley, the Mississippi Court of Appeals upheld the trial court’s jurisdiction and authority to modify under Miss. Code Ann. §§ 93-23-5; 93-23-9; 93-23-27 (Rev.1997) and the award of custody to the husband. However, the Mississippi Court of Appeals reversed the trial court’s creation of arrearage by improperly extending the terms of child support payments to age 21 under Mississippi law rather than age 18 under California law. The court ordered recalculation of the ar-rearage as provided under the terms of the California decree. Id. at 44.

¶ 17. In Peregoy v. Peregoy, 358 N.J.Super. 179, 817 A.2d 381, 384 (2003), the Superior Court of New Jersey, Appellate Division, examined the parties consent-to-jurisdiction agreement in the context of the Uniform Child Custody Jurisdiction Act (UCCJA). While the application of UCCJA and the UIFSA are different, and therefore, Peregoy is clearly distinguishable from the case sub judice, the New Jersey court’s holding on the parties’ consent-to-jurisdiction agreement in the context of the UCCJA is worthy of examination in order to help provide insight into the argument advanced by Darren. In Peregoy, the court found that as long as one of the parties remained a resident of New Jersey, the other party’s consent to jurisdiction establishes the minimum basis for the court to retain continuing jurisdiction. The court stated that: “However, that consent is only one factor to be weighed in the decision whether to exercise jurisdiction pursuant to the UCCJA.” Id. at 384. The court further held that: “The parties cannot agree in advance to ignore the Act [UC-CJA], or for the court to proceed contrary to the Act [UCCJA].” Id.

¶ 18. Thus, this Court finds that the facts of Halley are clearly distinguishable from the facts here. Therefore, the trial court’s reliance on Halley was misplaced. Claire’s petition was filed pursuant to UIFSA, not the UCCJA. Since Darren is a resident of Jackson County, Mississippi, Claire is a nonresident of Mississippi and neither Claire, Darren nor the child reside in the issuing state of Guam, the Chancery Court of Jackson County had jurisdiction to decide the petition to enforce and modify the foreign judgment.

CONCLUSION

¶ 19. Therefore, based on the foregoing reasons, we reverse the judgment of the chancery court and remand this case to the Chancery Court of Jackson County for further proceedings consistent with this opinion.

¶ 20. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES AND DICKINSON JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The parties represented in the PSA that Claire intended to reside in the United Kingdom (England). Claire and the minor child did in fact move to the United Kingdom. Darren moved to Jackson County, Mississippi. However, there were provisions in the PSA as to how the United Kingdom would have enforcement powers over Darren as a nonresident of the United Kingdom if he did not comply with his support obligations.

      . As will be discussed, Halley also involved the Uniform Child Custody Jurisdiction Act (UCCJA), codified as Miss.Code Ann. §§ 93-23-1 to -47 (Rev. 1994), which is not involved in this case.

      . Choice of law was not raised as an issue in this case. Miss.Code Ann. § 93-25-87 dictates that the laws of the issuing state govern the modification of the support payments and the statute of limitations in proceedings for arrearage. The parties did not make this an issue. The trial court did not render a decision regarding any arrearage amount.

      . Miss.Code Ann. § 93-25-107 provides jurisdiction to modify support order of another state when individual parties reside in this state:
      (1) If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order.
      (2) A tribunal of this state exercising jurisdiction as provided in this section shall apply the provisions of Sections 93-25-3 through 93-25-7 and Sections 93-25-9 through 93-25-25 to the enforcement or modification proceedings. Sections 93-25-27 through 93-25-77 and Sections 93-25-109 through 93-25-113 do not apply and the tribunal shall apply the procedural and substantive law of this state.

      . These statutes, Miss.Code Ann. §§ 93-23-5; 93-23-9; 93-23-27, concern the application of the UCCJA which is not before this Court in this case.