author: 1TERRI F. LOVE, Judge.

text:
    Raleigh LANDRY and Clailee Aucoin Landry v. AVONDALE INDUSTRIES, INC., et al.
    Nos. 2003-C-1112, 2003-C-1174.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Rehearing Denied Nov. 14, 2003.
    Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, LA, for Clailee, Jamie and Glen Landry.
    Gary A. Lee, Richard M. Perles, Johanna G. Ring, Lee, Futrell & Perles, LLP, New Orleans, LA, for Peter Territo, Albert Boissier, Jr., Edward Blanchard, and J. Melton Garret.
    Stephen N. Elliot, Robert A. Knight, Francine Giugno, Bernard, Cassisa, Elliot & Davis, PLC, Metairie, LA, for Reilly-Benton Company, Inc., and Liberty Mutual Insurance Company.
    Gary M. Zwain, Goeffrey P. Clement, Dana Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for Olympic Glove & Safety Company, Inc.
    Dawn Fulce, Hattiesburg, MS, Dana Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for Steel Grip, Inc.
    Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE.
   1TERRI F. LOVE, Judge.

Relators, Peter Territo, Edward Blanchard, J. Melton Garret and Albert Bossier Jr., are defendants in the tort action brought by Raleigh Landry and his wife Clailee, arising out of Mr. Landry’s alleged asbestos-related injury. Relators were co-employees of Mr. Landry while he was employed at Avondale between May 1965 and May 1967. Mr. Landry died of Meso-thelioma on November 21, 2002.

Defendant, Reilly-Benton Company, Inc., filed a Motion for Summary Judgment arguing that Comparative Fault was applicable to plaintiffs’ wrongful death claim. The Special Master, Honorable Gerald Fedoroff, submitted a report to the district court recommending the Reilly Benton’s Motion for Summary Judgment be granted. Relators and plaintiffs submitted objections to the Special Master’s report. After a contradictory hearing on the objection, the district court overruled the objection and adopted the Special Master’s recommendation. The relators’ filed the instant writ application asking this Court to reverse the judgment of the trial court. The plaintiffs in this mesothelioma litigation also sought review of the trial court’s granting the motion for Summary Judgment filed by defendant. The issue presented in plaintiffs’ writ application is identical to the issue in writ | g2003-C-1112. Accordingly, the relators in writ 2003-C-1112 filed a motion to consolidate the two writ applications. Considering that the issues and parties are identical in the aforementioned writ applications, the motion to consolidate the two writ applications was granted.

The Comparative Fault Act, La. Acts 1979, No. 431, § 4, eff. Aug. 1, 1980 provides in pertinent part: “The provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective” (emphasis added). The Supreme Court, in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), interpreted the term “events” to mean the incidents of exposure. As found in Cole, the expression of legislative intent evidenced by § 4 as a whole indicates that Act 431 does not apply to long — term occupational disease cases where the events ultimately causing the death of the decedent occurred prior to Act 431’s effective date.

Defendant, Reilly-Benton, Inc., relies on Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, to support the proposition that in a wrongful death action the “event” is the death. However, in the case of a wrongful death action arising upon death from a long-latency occupational disease, the “events” referred to in the expression of legislative intent in Act 431, § 4 can only mean the incidents of exposure. The Supreme Court’s decision in Walls is not applicable to the instant case because it involves La. R.S. 23:1032, the Louisiana Workers’ Compensation Act. La. R.S. 23:1032 does not contain the clear expression of legislative intent found in Act 431.

The overall thrust of the statement of legislative intent in Act 431, § 4, clearly demonstrates that the legislature did not intend that Act 431 adversely affect the rights of survivors in a case, such as the instant one, where the decedent dies as a direct result of pre-Act events, i.e., significant exposure to asbestos-containing products manufactured and/or distributed by the alleged tortfeasor.

|sThe trial court committed an error of law in finding that Comparative fault was applicable to plaintiffs’ wrongful death claim. Therefore, we reverse the ruling of the trial court and remand for further proceedings.

Pursuant to this ruling, the stay order issued by this Court, on June 26, 2003, is vacated.

REVERSED AND REMANDED.

      . Due to conflicting opinions, this Court considered the issue en banc, and a majority agreed that the Comparative Fault Act, La. C.C. art. 2323, enacted by Acts 1979, No. 431, Section 1, effective August 1, 1980, does not apply to the plaintiffs' wrongful death claim.


source: Caselaw Access Project

author: 2TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Henry L. COLEMAN.
    No. 2003-KA-1138.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   2TERRI F. LOVE, Judge.

This appeal concerns resentencing only. Finding no error in the sentences, we affirm.

Henry Coleman was charged with six felony offenses: one count of attempted first degree murder, one count of armed robbery, two counts of aggravated burglary, and two counts of false imprisonment while armed with a dangerous weapon. The armed robbery charge was dismissed prior to trial. The appellant was found guilty on October 5, 2000, of aggravated battery, aggravated burglary, unauthorized entry of an inhabited dwelling and two counts of false imprisonment while armed with a dangerous weapon. The State filed a multiple bill charging the defendant as a second offender, and on February 15, 2001, the trial court sentenced the defendant under La. R.S. 15:529.1 on all five counts. He appealed and, in an unpublished opinion, this court held that the trial court erred in sentencing Coleman as a multiple offender on all five of his offenses and vacated the sentences and remanded the case for resentencing. State v. Coleman, 2001-1463 consolidated with 2001-1151 (La.App. '4 Cir. 9/18/02), 827 So.2d 671.

Mr. Coleman was resentenced on October 13, 2002, to serve ten years on the aggravated battery conviction; twenty years as a second offender under La. R.S. 15:529.1 on the aggravated burglary conviction to run consecutively to the | ¡¡aggravated battery conviction; six years on the unauthorized entry into an inhabited dwelling conviction to run concurrently to the aggravated burglary conviction; and ten years on each of the two false imprisonment convictions to run concurrently with the aggravated burglary conviction. The appellant’s motion for reconsideration was denied and his motion for an appeal was granted.

The facts of the case, as summarized in State v. Kenyon Williams, 2001-1464 (La.App. 4 Cir. 5/1/02), 818 So.2d 274, in which we affirmed a co-defendant’s conviction and sentences, are as follows:

On the evening of November 4, 1999, Derwin Anear, his girlfriend, Yvonne Barthelemy and Latisha Anear, his niece, were asleep in his trailer. Anear awoke when he heard someone knocking at the door. When he opened the door, three men attacked him. Anear told the men that his girlfriend and niece were in the trailer and to leave them alone. At that point, Latisha woke up and heard Anear arguing with someone outside. Latisha ran into the bedroom and woke up Yvonne. One of the men, later identified as Henry Coleman, entered the trailer armed with a gun and told the women to come out into the living area. Latisha told Coleman that Yvonne was pregnant, and he allowed them to sit on the sofa. Coleman asked Yvonne “where were the drugs and money?” She stated that she did not know anything about drugs but that they did have some money that was in the bedroom. She showed Coleman where the money had been hidden. Coleman took the money, approximately six thousand dollars, and walked outside. He returned inside the trailer; then he heard someone say that the police were coming, and all of the men left. Shortly thereafter, she heard a gunshot towards the highway.
At approximately the same time, Rolen-da Merrick, Anear’s sister who lived next door, heard Anear talking to someone. She heard someone say, “Where it’s at?” She went outside and asked the man, later identified as Ortiz Jackson, what he wanted with her brother. Jackson told her to shut up and stay there. Jackson had a knife at Ancar’s throat. A few minutes later, another man, later identified as Coleman, asked her if anyone was in the trailer and if she had a telephone. She stated that she did Rnot have a phone and that her children and grandchild were in the trailer. Anear and Jackson began fighting outside when Coleman went inside Anear’s- trailer. He was able to break away from Jackson and ran towards the highway. He turned and saw the three men running from the trailer and entering a blue Cadillac. At that point, he observed Kenyon Williams take off the mask he had been wearing. The defendants saw Anear near the highway and fired at him. Anear ran back towards the trailers. He did not realize he had been shot until he got back to his trailer. Rolenda took Anear to the hospital.
When the police arrived on the scene, Yvonne gave the officers a statement and then proceeded to the hospital. On the way to the hospital, she was stopped and asked if she could identify the perpetrators in a one on one identification. She identified Coleman at the scene. Letisha identified Coleman in a photographic lineup, and Anear identified Williams, Coleman and Jackson in photographic lineups. Anear stated that he had seventy-five hundred dollars in his trailer that was to be used to pay off his vehicle. He testified that his mother loaned some of the money to him and the rest was received as a partial settlement of a lawsuit. He admitted to several misdemeanor and traffic convictions as well as two convictions for possession of cocaine.
Detective Jessie Ledet, the officer in charge of the investigation, arrived on the scene at approximately 11:30 p.m. When he arrived on the scene, he learned that the victim’s sister had taken the victim to the hospital. He took photographs of the scene and obtained statements from several witnesses. He conducted photographic lineups with the witnesses who identified Coleman, Jackson and Williams.
Officer William Black, Jr. was on patrol when he heard the description of the vehicle used during the incident. He observed a vehicle fitting the description in Ironton. He stopped the vehicle one mile north of Ironton, near the BP plant. Other officers assisted in stopping the vehicle. The three subjects in the vehicle were ordered out of the vehicle and patted down. Williams was driving the vehicle, Coleman was the passenger in the front seat, and Jackson was the passenger in the rear seat. No weapons were found in the vehicle. Each subject was placed in a separate police vehicle and advised of his rights. While they were on the scene, Lt. Bowers arrived |Rwith Yvonne Barthelemy. After she identified the subjects, they were transported to jail.

State v. Williams, 2001-1464 at pp. 2-4, 818 So.2d at 275-276.

The facts concerning Mr. Coleman’s conviction for false imprisonment are taken from his earlier appeal; they are as follows:

In State v. Williams the facts did not include any testimony as to false imprisonment by someone armed with a dangerous weapon because Williams was found to be not guilty on those charges. However, Coleman was found to be guilty on two charges of false imprisonment on the testimony of Kendall Merrick, who told the court that Coleman entered his home with a knife, cut the telephone line, and tied him up, and that of Rolenda Merrick, who testified that Coleman — armed with a knife — forced her into her home and then tied up her son; he was in the process of tying her hands when his accomplices called to him and he left.

State v. Coleman, 2001-1463, pp. 4-5 (La.App. 4 Cir. 9/18/02), 827 So.2d 671.

The appellant through counsel now makes two assignments of error: (1) that his sentences are excessive and (2) that he is entitled to a new multiple bill hearing because part of the transcript of the multiple bill hearing is missing. He has also submitted a pro se brief in which he makes several assignments of error concerning his convictions. This appeal, however, is limited to issues concerning his sentences. Accordingly, we shall consider only his argument that consecutive sentences were imposed without justification.

In his first assignment, the appellant points out that he received the maximum sentence for four of his five offenses and did not received the minimum term under La. R.S. 15:529.1 on the other offense. He maintains that his sentences are excessive considering that he has no history of violent crime. In a pro se argument, he contends that the court erred in imposing consecutive sentences.

|fiLa. R.S. 14:60, the aggravated burglary statute, requires imposition of a sentence at hard labor for not less than one or more than thirty years. As a second offender under La. R.S. 15:529.1, Mr. Coleman faced a sentencing range of fifteen to sixty years. He received a twenty-year term. His other sentences are ten years on the aggravated battery conviction, six years on the unauthorized entry of an inhabited dwelling conviction, and two terms of ten years for each of the two convictions for false imprisonment while armed with a dangerous weapon.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). Because the trial court has broad discretion in imposing a sentence within statutory limits, a reviewing court can set it aside only if it is clearly excessive, rather than because another sentence might have been appropriate. See State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 958.

In reviewing a claim of excessive sentence, the appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines and that the sentence is warranted under the facts established by the record. State v. Soco, 441 So.2d 719 (La.1983). Because a sentence could be excessive even though it falls within the statutory limit, the trial court’s statement regarding the factors considered under Article 894.1 of the Code of Criminal Procedure is an important aid in reviewing an alleged excessive sentence. See State v. Cann, 471 So.2d 701, 703 (La.1985).

At the resentencing hearing on October 13, 2002, the judge adopted his treasons from the earlier sentencing. At that sentencing on February 15, 2001, the judge declared that a pre-sentence report had been received and studied in an effort to determine appropriate sentences. He noted that Mr. Coleman had convictions for burglary of an inhabited dwelling as a juvenile and for possession of cocaine as an adult. The judge stated that La.C.Cr.P. art. 894.1 had been considered and asked the appellant’s attorney if any other factor should be taken into account. The attorney answered negatively. The judge then stated:

The Court feels there was a deliberate cruelty to the victim. The Court feels that at that time they [the defendant and his two co-defendants] knew the victims, were targeting the victims, and due to the youthful age, that there were children present or a child present during the offense. The Court finds that there was also an aggravating circumstance in that he knowingly created the risk of death or great bodily harm to more than one person, and they used threats or actual violence in the commission of the offense in that a dangerous weapon was used.
The Court finds no mitigating circumstances ....

When asked about aggravating circumstances, the assistant district attorney stated that invading two homes at night and threatening and tying up women and children as well as shooting at a man would permanently scar the families involved. The defense attorney responded that the entire criminal incident could be characterized as a “bad drug deal gone wrong” and then suggested that one of the victims provoked-the crime and the fact that families were involved was the victim’s fault. The judge disagreed with the defense attorney’s interpretation and declared that the victim’s family was in no danger until the three defendants went to their homes. He also condemned the defendants’ violent act in attempting to shoot the victim as they were leaving the scene and noted that each man was responsible for that act.

IsThe appellant now argues that the trial court’s reasoning was irrational as to the families being in no danger until the defendant and his co-defendants attacked them. Appellant, through counsel, assumes unproven facts about the victim and his relationship with the defendant and co-defendants and presumes that the victim deliberately or thoughtlessly exposed his family to danger. We agree with the trial judge that the sleeping families were in no danger until the three defendants in this case cruelly attacked them.

The judge who sentenced Mr. Coleman also presided at his trial and was well acquainted with the facts of the case. His comments, when considered with the facts established in the record, provide this Court with a record of the considerations taken into account and an adequate factual basis for the sentence. La.C.Cr.P. art. 894.1 C. We find there was no justification for these offenses which could have resulted in very serious injuries. Furthermore, we do not find the challenged sentences to be excessive or grossly disproportionate to the seriousness of the crimes under the circumstances established in the record. See State v. Robinson, 2001-1458 (La.App. 4 Cir. 4/24/02), 818 So.2d 246; State v. Hawthorne, 454 So.2d 285 (La.App. 4 Cir.1984).

Therefore, we find no abuse of discretion in the sentences imposed by the trial court.

In his pro se assignment, the appellant contends that the district court erred in imposing his ten-year aggravated battery sentence to be served consecutively to his other sentences. Consecutive and concurrent sentences are governed by La.C.Cr.P. art. 883, which states:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms [9of imprisonment are to be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

In its reasons for judgment, the district court stated that the fact that the defendants shot at the victim was particularly distressing. The court also found that the use of a dangerous weapon in commission of the crime created the risk of death or great bodily harm to more than one person.

In State v. Walker, 2000-3200 (La.10/12/01), 799 So.2d 461, 462, the Louisiana Supreme Court considered a similar situation and stated:

Although La.C.Cr.P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the ... commission of the crimes justify treating him as a grave risk to the safety of the community.

In Walker the court noted that the defendant’s crimes — possession of a handgun and twenty-seven bags of cocaine — while on probation for an earlier crime provided the trial court with “an articulable and particularized basis for concluding that respondent was a dangerous repeat offender who merited consecutive terms of imprisonment.” Id.

Similarly, Mr. Coleman was on probation for his prior offense when he was arrested for the current crimes. The judge’s comments at sentencing indicate that the appellant was considered a danger to public safety. Furthermore in Walker, the court noted that even with the consecutive penalties the defendant’s total incarceration time was less than the maximum term he could have received as a|insecond offender on his drug conviction. We note that the maximum penalty Mr. Coleman could have received for aggravated burglary as a second offender was sixty years; the cumulative incarceration time he received including the consecutive term is thirty years or one-half of the sentencing range.

Therefore, we do not find the consecutive sentences excessive in this case.

In his second assignment through counsel, the appellant argues that Mr. Coleman is entitled to a new multiple bill hearing because part of his multiple bill transcript is missing. The appellant correctly points out that at the multiple bill hearing on November 14, 2001, the State asked for a recess because the fingerprints from the Mr. Coleman’s prior offense were not clear enough to use. The hearing was continued to November 15th when the State’s fingerprint expert testified as to a fingerprint card from Orleans Parish, which the appellant claims does not “coincide” with the Orleans Parish arrest and conviction. Asserting that the November 15th transcript is necessary to review the record, the appellant asks this Court to remand the case for a new multiple bill hearing.

The record in this case contains a document labeled “Written Reasons for Judgment under 15:529.1,” in which the judge describes what happened at the sentencing hearing. The document reads as follows:

This Court has made a finding that the defendant, Henry L. Coleman, was and is a multiple offender as contemplated by R.S. 15:529.1. He was convicted of Possession of Cocaine, 40:967 in matter # 395784 in Criminal District Court in the Parish of Orleans, he was sentenced to serve 3 years DOC.
On October 5, 2000, in the 25th Judicial District Court, the defendant under Matter # 00-0646, was convicted for the crimes of: Count 1 of Agg. Battery, R.S. 14:34. Count 2, of Agg. Burglary, R.S. 14:60, Ct. 3 Unauthorized entry of an Inhabited Dwelling, 14:62, Count 4, False Imprisonment While Armed with a | ^Dangerous Weapon, R.S. 14:46.1, and Count 5, False Imprisonment While Armed with a Dangerous Weapon, R.S. 14:46.1, all felonies under the laws of Louisiana.
The State presented evidence of the Bill of Information and minutes of the convictions from Orleans Parish, as well as the booking records of Plaquemines Parish, which all included fingerprint cards and documentation, and fingerprints taken by the expert from the defendant in open court. All fingerprints were declared to be identical to each other and to the defendant’s.
The court also noted that the defendant has the same name, date of birth, and same address. The court noted that there was a discrepancy of the Social Security number with one digit, which this court took as a typographical error. As a result therefore, this court found the defendant to be a second offender.

The document indicates the judgment was rendered on November 15, 2001, and signed on November 20, 2001.

Recently in State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127, the Louisiana Supreme Court addressed the issue of the State’s burden of proof at a multiple bill hearing. In Payton the State appealed the finding that the evidence was insufficient to prove the appellant’s identity on a prior conviction.

The Payton opinion cites State v. Chaney, 423 So.2d 1092 (La.1983), where the court held that in “order to prove the defendant is a habitual offender, the State need only establish by competent evidence that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony.” Id. at 1103. The court also looked to State v. Henry, 96-1280 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, and State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339, where the appellants challenged the sufficiency of the evidence supporting their multiple offender convictions. In those eases the courts held that there are | ^various methods available to prove that the defendant is the same person convicted of the prior felony offense, including testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, or photographs in the duly authenticated record.

The record in this case contains the bill of information from Orleans Parish charging Mr. Coleman charging with distribution of cocaine and the minute entry of trial from August 11,1999, showing that he was convicted of possession of cocaine. It also contains the minute entry from November 15, 2001, which indicates that the defendant and his attorney were present. In the exhibits in the record the appellant’s name, sex, race, and birthday are identical. As the district court noted, the appellant’s social security number is one digit off in the 1997 record.

In Payton the Supreme Court concluded that missing fingerprints were not fatal to a multiple bill. The court stated: “This Court has repeatedly held that [the Habitual Offender Act] does not require the State to use a specific type of evidence to carry its burden at an habitual offender hearing and that prior convictions may be proved by any competent evidence.” State v. Payton, 810 So.2d at 1132, citing State v. Lindsey, 770 So.2d at 344 n. 3.

The case at bar is unusual in that the district court issued reasons for judgment in which it stated that the fingerprint expert testified in court that the fingerprints taken in court and those on the prior conviction record were identical. Furthermore, the exhibits support the identification. The appellant contends that the transcript is necessary to insure that there was no problem with the adjudication. Given the evidence in the record and the judge’s contemporaneous reasons for judgment, we find that even in the absence of the sentencing transcript 113from the multiple offender hearing, there was sufficient competent evidence to establish the appellant’s second offender status.

For the foregoing reasons, the appellant’s sentences are affirmed.

AFFIRMED.


author: 1JOAN BERNARD ARMSTRONG, Judge. 1MURRAY, J.,

text:
    Hilda N. GARRISON, et al. v. ST. CHARLES GENERAL HOSPITAL, et al.
    Nos. 2002-C-1430, 2002-C-1431, 2002-C-1446, 2002-C-1454, 2002-C-1460.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Eve Barrie Masinter, Monica A. Frois, Joe Giarrusso, Jr., Nathalie G. Simon, McGlinchey Stafford, PLLC, New Orleans, LA, for St. Tammany Parish Hospital Service, District No. 1 d/b/a St. Tammany Parish Hospital, et al.
    Michael C. Luquet, Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Breazeale, Sachse & Wilson, L.L.C., New Orleans, LA, for Jefferson Parish Hospital District No. 1, et al.
    T. Allen Usry, Craig E. Frosch, Usry, Weeks & Matthews, New Orleans, LA, for Carrie H. Ingram, et al.
    Catherine M. Williams, Thomas P. An-zelmo, Campbell, McCranie, Sistrunk, An-zelmo & Hardy, Metairie, LA, for Jefferson Parish Hospital District No. 2, etc.

      Daniel A. Reed, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Hospital Service District No. 3 of LaFourche Parish, etc.
    Peter T. Dazzio, Chris J. Leblanc, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Vermillion Parish Hospital Service District No. 2, et al.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge JAMES F. McKAY, III).
   1JOAN BERNARD ARMSTRONG, Judge.

The sole issue presented to us in these consolidated writ applications is whether, as to certain defendants as to whom it has been determined that venue is improper, the case should be transferred to proper venues or, instead, dismissed without prejudice. This seemingly routine procedural issue is fraught with weighty substantive consequences because the present case involves alleged liability as to blood transfusions. Apparently, the defendants seek dismissal, even without prejudice, because they believe that two statutes as to blood transfusions enacted in 1999, La. R.S. 9:5628.1 and/or La. R.S. 9:2797, would be applicable to newly-filed actions, but would not apply to the presently pending action. The plaintiffs, apparently apprehensive that the defendants may be correct as to those two statutes, seek transfer rather than dismissal even if the dismissal were to be without prejudice.

The relators, who are some of the defendants, excepted as to venue. The trial court determined that venue is proper and overruled the venue exceptions. The rela-tors, in prior writ applications, sought review as to the venue issue. Aj^prior writ panel of this court determined that venue was improper as to the relators and ordered: “The case is remanded to the trial court to determine whether the actions against relators should be dismissed, or whether those actions should be transferred to courts of proper venue.” Garrison v. St Charles General Hospital, 2001-C-1294 c/w 2001-C-1311 c/w 2001-C-1312 c/w 2001-C-1523 (Jan. 10, 2002) (hereinafter “Garrison I”). Upon remand, the trial court at first decided to dismiss the action as to the relators but then, upon the plaintiffs’ motion for reconsideration decided to transfer the action as to the relators to courts of proper venue. The relators then sought writs for review of the trial court’s decision to transfer rather than dismiss. This panel, in a prior decision of January 15, 2003 in the present writ application proceeding (hereinafter “Garrison II”), affirmed the trial court’s decision to transfer rather than dismiss. In Garrison II, we noted the Garrison I decision’s order (quoted above) that the trial court determine whether to transfer or to dismiss and, pursuant to the “law of the case” doctrine, adhered to that decision of Garrison I. The relators then sought review by writs to the Supreme Court. The Supreme Court granted writs and held that the Garrison I decision’s order (quoted above) that the trial court should determine whether to transfer or dismiss was dicta and, therefore, that the “law of the case” doctrine is inapplicable to that order. Garrison v. St. Charles General Hospital, Nos. 03-CC-0423 c/w 03-CC-0429 c/w 03-CC-0488 (La.Apr. 25, 2003), 845 So.2d 1047 (hereinafter “Garrison III”). The Supreme Court in Garrison III also directed that we should reconsider our decision in Garrison II in | slight of the inapplicability of the law of the case doctrine. This present decision constitutes that reconsideration.

Upon reconsideration, we affirm the trial court’s decision to transfer rather than dismiss. The Code of Civil Procedure provides that: “When an action is brought in a court of improper venue, the court may dismiss the action, or in the interest of justice transfer it to a court of proper venue.” La.Code Civ. Proc. art. 121. Accord La.Code Civ. Proc. art. 932. It is a very well-established rule of law that transfer, rather than dismissal, is to be employed except when the plaintiff knowingly files suit in an improper venue. Simien v. Fairfield Industries, Inc., 99-2897 (La.App. 4 Cir. 02/09/00), 753 So.2d 918, 919-20. Accord Marler v. Petty, 94-1851 (La.04/10/95), 653 So.2d 1167, 1171; Green v. Alaska Nat. Ins. Co., 99-2844 (La.App. 4 Cir. 03/29/00), 759 So.2d 165, 169. This rule serves efficiency to some extent but, much more importantly, is “in the interest of justice” because it prevents substantive rights being lost, without a determination upon the merits, by becoming time-barred under prescription or per-emption despite having been filed and served timely albeit in the improper venue. That very important purpose is strongly implicated in the present case as discussed at the outset of this opinion. Thus, the trial court was correct in deciding to transfer rather than dismiss.

The relators argue that, in deciding to reconsider its earlier decision to dismiss, and in deciding to instead transfer, the trial court acted improperly because the standards for granting a new trial were not met. See La.Code Civ. Proc. arts.1972, 1973. However, because the trial court’s order to dismiss for | improper venue did not determine the merits, it was an interlocutory ruling, and the trial court had discretion to change that ruling prior to a final judgment. Vasalle v. Wal-Mart Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 331, 334-36. Thus, the standards for granting a new trial were not applicable.

Relators next argue that, because the claims against them were improperly cu-mulated with the claims against the other defendants (because venue was improper as to the relators), Article 464 of the Code of Civil Procedure is applicable and that, pursuant to that article, the claims against relators must necessarily be dismissed rather than transferred. In making this argument, the relators appear to assume both that cumulation of actions as to the defendants, pursuant to Articles 461-464 of the Code of Civil Procedure, applies to the present case which involves a defendant class, and that the Garrison I decision maintained an exception of improper cumulation of actions. However, in this regard, we note that certain controlling published caselaw of this court, binding upon this panel, and discussed below, was decided after the time that the relators filed their writ applications, so that the relators did not have the benefit of that recent, controlling caselaw.

This case involves both a plaintiff class and a defendant class. It is the defendant class which is of significance here. Because there is a defendant class, there is necessarily no cumulation of actions against any defendants in this case. Class actions and cumulation of actions are distinct procedures which do not overlap. Cumulation of actions is the bringing of claims against multiple | ^individual defendants (or by multiple individual plaintiffs) in the same action. La.Code Civ. Proc. art. 461 et seq. A class action is the bringing of claims against all members of a defined class (or by all members of a defined class) without actually naming as parties all of the class members. La.Code Civ. Proc. art. 591 et seq. Accordingly, there are distinct requirements for cumu-lation of actions, La.Code Civ. Proc. art. 463, and entirely separate distinct requirements for class actions, La.Code Civ. Proc. art. 591. Class actions are subject to the additional procedure of class certification. La.Code Civ. Proc art. 592. Thus, while cumulation of actions and class actions share a superficial similarity in that both are mechanisms for aggregation of claims by plaintiffs or claims against defendants in a single proceeding, they are distinct procedures, provided for by different articles of the Code of Civil Procedure, with distinct requirements. The requirements of either one of these procedures cannot be superimposed upon the other procedure because the legislature, in the Code of Civil Procedure, has provided specific, distinct requirements for each of these procedures.

In a recent decision, in which this court held that “the putative class currently before the court will not be disassembled based upon statutory provisions relating to cumulation of actions,” Thomas v. Mobil Oil Corp., 2002 1904 (La.App. 4 Cir. 03/19/03), 843 So.2d 504, we denied the defendants’ exception of improper cumulation in a class action and explained that, when there is a plaintiff class, there is no cumulation of plaintiffs:

[ (¡Defendants have also filed an exception of improper cumulation of action under Article 926(7) (based on the provisions of 506 Article 463) of the Code of Civil Procedure. Cumulation is not relevant to the current case. Therefore, extraction of its concept of “community of interests” and application of cases interpreting and applying this concept is misplaced.
Cumulation under Article 463 is a procedure pursuant to which several plaintiffs may sue several defendants in the same proceeding and have all their claims resolved. In a cumulated action, each plaintiff presents a case and each defendant responds. When the number of plaintiffs suing one or more defendants climbs into the thousands and membership in the group of plaintiffs is fluid and changing, such as here, each plaintiff cannot appear, and cumulation is not an appropriate tool.
It is at that point that the provisions governing class actions must be applied to determine if a resolution of all claims can be appropriately conducted in one proceeding. In fact, the articles on class actions provide that it is where numer-osity of plaintiffs makes joinder impracticable that class action proceedings are appropriate. See LSA C.C.P. art. 591(A)(1). See Thomas v. Charles Schwab and Company, Inc., 95-1405, 683 So.2d 734 (La.App. 3rd Cir.9/25/1997) writ denied, 97-0009, 96-2579, 686 So.2d 858, 859 (La.1/24/1997):
Parties who are attempting to certify a class do not first cumulate their actions ... The prerequisites for each action are similar. However, the difference between Louisiana Code of Civ. P. Article 591 and Article 463 is that the former is specifically for class actions and the latter is for cumulation of individual actions ... Class action is more appropriate than cumulation where there is a large number of plaintiffs or defendants involved.
Thomas, 683 So.2d at 737; citing Dumas v. Angus Chemical Company, 25,632, 635 So.2d 446 (La.App. 2nd Cir.3/30/1994).

Thomas, supra (bold added). In other words, because there was a plaintiff class in Thomas, there necessarily was no cumulation of plaintiffs in Thomas. [7 Also in Thomas, we distinguished Albarado v. Union Pacific R.R. Co., 2000-2540, 787 So.2d 431 (La.App. 4 Cir. 4/25/2001), rev’d in part, 2001-1537 (La.09/14/2001), 796 So.2d 666, which was a decision which involved a plaintiff class but which (unlike the present action) did not involve a defendant class, but instead involved multiple individual defendants, and so did involve cumulation of the defendants. Likewise, Strasner v. State, 99-1099 (La.App. 1 Cir. 6/23/00), 762 So.2d 1206, writ denied, 2000-2195 (La.10/27/00), 772 So.2d 125, did not involve a defendant class.

To summarize and clarify: When there is a plaintiff class and multiple individual defendants, there is cumulation as to the defendants but not as to the plaintiffs. When there is a defendant class and multiple individual plaintiffs, there is cumulation as to the plaintiffs but not as to the defendants. When there is a plaintiff class and a defendant class, there is no cumulation. As the present case involves both a plaintiff class and a defendant class, and specifically because it involves a defendant class, Article 464 of the Code of Civil Procedure has no application. As to our Garrison I decision, that decision decided only an exception of improper venue. Our Garrison I decision does not even state that any party filed an exception of improper cumu-lation much less state that an exception of improper cumulation was being maintained. Our Garrison I decision does not cite Article 464 or Articles 461 et seq. of the Code of Civil Frocedure and does not even use the phrase “cumulation of actions” or the word “cumulation” anywhere in the opinion. In view of the fact that this case involves a defendant class, the only issue jsin Garrison I was the choice between two venue statutes, and cumulation among the defendants necessarily was not an issue. In any case, as the Supreme court stated in remanding this case to us for reconsideration, “the only issue reached by the [Garrison I ] court was the exception of improper venue”. Garrison III, supra. Accordingly, any discussion of other issues in Garrison I would be dicta. Id. In contrast, our Thomas decision, quoted and discussed above, is a more recent, published, binding precedent which, as a necessary part of its holding, specifically addressed (and rejected) the use of cumu-lation requirements as to a class.

The relators argue that transfer, as opposed to dismissal, as to the claims against the relators, is not “in the interest of justice”, La.Code Civ. Proc. Art. 121, because the clerk of court of the trial court will have to send copies of the voluminous record to each of the transferee courts. While we are cognizant of the burden that may be imposed upon the clerk of court of the trial court, we think that such a burden is clearly outweighed by the considerations of substantive justice, including possible loss by peremption of claims without any consideration of their merits, discussed at the outset of this decision. At the least, the trial court did not abuse its discretion in so striking the balance. Moreover, we are confident that all counsel will assist the clerk of court in selecting which portions of the record need to be copied to be transmitted to each transferee court and that such assistance will minimize the burden upon the clerk of court.

The relators point out that a case should be dismissed, rather than transferred, when the plaintiff knowingly filed suit in an improper venue. Simien, supra; Marler, supra; Green, supra. They then argue that the plaintiffs knowingly filed this action in an improper venue as to the relators because, under La. R.S. 13:5104 B, the only proper venues as to the relators were in the parishes where they are located. However, the relators are members of a defendant class, the Code of Civil Procedure provides that venue is proper “in a parish of proper venue as to any member of the class named as a defendant”, La. Code Civ. Proc. Art. 593 B, and venue is indisputably proper in Orleans Parish as to some members of the defendant class other than the relators. Thus, the plaintiffs had a clearly non-frivolous argument that venue was proper as to all defendant class members, including the relators, in Orleans Parish. Until Garrison I, there was no caselaw deciding the choice between la. R.S. 13:5104 B and Article 593 B, so it cannot be said that the plaintiffs proceeded in the face of clear law to the contrary of their position. Moreover, we cannot conclude that the plaintiffs knowingly filed suit in an improper venue when the trial court agreed with the plaintiffs as to venue and denied the relators’ venue exceptions.

Relators argue that transfer is improper because both the plaintiff class and the defendant class alleged in the petition as amended are defined in state-wide terms. We note that in each of the transferee courts, the only defendant or defendants will be the one or more of the relators which is or are located in that parish. Also, we note that only the plaintiff class members who received transfusions from that defendant or these defendants will have any interest in pursuing claims against that defendant or those defendants. Thus, we can foresee |inthat, in the transferee courts, this action will not be pursued as to a defendant class but, rather, will be pursued as to only one or more individual defendants. We can also foresee that, in each of the transferee courts, the plaintiff class will be redefined in terms of the persons who received transfusions from the defendant or defendants in that transferee court. However, all such issues are to be addressed in the transferee courts by amendment of the pleadings, by class certification proceedings or by other means. None of these issues are before us now. We simply explain that the fact that the plaintiff and defendant classes are presently alleged in state-wide terms, and will have to be modified in the transferee courts, does not present any obstacle to transfer or any reason to dismiss rather than transfer.

For the foregoing reasons, we affirm the judgment of the trial court, transferring rather than dismissing as to the relators, and consequently, deny the consolidated writ applications.

AFFIRMED.

MURRAY, J., dissents with reasons.

1MURRAY, J.,

dissents with reasons.

The majority affirms the trial court’s decision to transfer based primarily upon the fact that the instant lawsuit involves a defendant class as well as a plaintiff class. I agree with the majority’s reasoning to the extent that, in cases in which both a plaintiff and a defendant class have been asserted, the cumulation articles (La.C.C.P. arts. 461 through 465) have no application.

However, in my opinion, the majority, while recognizing the holding of this court in Garrison I, which was that the venue provision applicable to state hospital districts (La. R.S. 13:5104) overrides the class action venue provision (La.C.C.P. art. 593), ignores the premise of that decision. The Garrison I writ disposition (unpublished) includes extensive reasons, which clearly reveal that the basis of the decision to be this court’s finding that there is not sufficient commonality among the defendant hospitals to uphold a defendant class in the instant case. The disparity of reasoning between two decisions of this court in the same case is confusing, at best, and in my view, is unnecessary in this instance.

In Garrison III, supra, the Supreme Court stated: “Under the law of the case doctrine, appellate courts have held they have the discretion to not reconsider a previously-decided issue unless they find the previous decision is based on palpable error or that manifest injustice would occur.” Because I believe the decision in Garrison I is erroneous, I would decline to follow it. In order to reach its holding in Garrison I, this court considered (and effectively decided) an issue that was not before it — whether a defendant class should be certified. Because the court decided that the prerequisites for class certification were lacking, it held that the special venue statute for political subdivisions of the state should be applied rather than the class action venue provision, and therefore overturned the trial court’s denial of defendants’ exception of improper venue. In doing so, the Garrison I court relied exclusively upon prior decisions that, unlike the instant case, did not involve the assertion of a defendant class.

When, as here, a defendant class has been asserted but not yet certified and there is a conflict between venue- statutes, I believe the most reasonable alternative is for the court to assume there is a proper class and to apply the class action venue provision (La. C.C.P. article 593) until the issue of class certification has been addressed and decided. Then, if the demand for class certification is stricken or if class certification is denied and the action proceeds between the named parties, the exceptions of improper venue asserted by individual named defendants can be reasserted in the context of an ordinary action with multiple defendants.

Therefore, I believe Garrison I was wrongly decided, and the trial court’s original ruling denying the exception of improper venue should have been affirmed by this court. In the instant case, I would repudiate this court’s decision in Garrison I, affirm the trial court’s original ruling, and vacate the trial court’s | .^subsequent decision to transfer upon remand. On these grounds, I respectfully dissent.

      . Such confusion is evidenced by the majority’s recognition that once transferred to different venues, these actions will no longer-be able to be maintained as class actions. Ironically, the majority’s decision, which is entirely premised upon the presence of a defendant class, will, nevertheless, result in the dismantling of that class before class certification is ever considered.

      . Citations omitted.

      . The court cited Albarado v. Union Pacific R.R. Co., 2000-2540 (La.App. 4 Cir. 4/25/01), 787 So.2d 431, writ granted and reversed in part, 2001-1537 (La.9/14/01), 796 So.2d 666; Strasner v. State, 99-1099 (La.App. 1 Cir. 6/23/00), 762 So.2d 1206; and Underwood v. Lane Memorial Hospital, 97-1997(La.7/8/98), 714 So.2d 715.

      . See La. C.C.P. art. 592.


author: 1KIRBY, Judge.

text:
    STATE of Louisiana v. Alsando DOWELL, et al.
    No. 2003-K-1143.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.

      Eddie J. Jordan, Jr., District Attorney, Kathy Billings, Assistant District Attorney, New Orleans, LA, for Relator.
    Ronald J. Rakosky, Ronald J. Rakosky, A P.L.C., New Orleans, LA, for Respondent (Darryl Clay).
    Joseph Meyer, Jr., New Orelans, LA, for Respondents (Alsando Dowell and Travis Johnson).
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.)
   1KIRBY, Judge.

STATEMENT OF THE CASE

On August 15, 2002 the State filed a bill of information charging the defendants with violations of La. R.S. 40:966 relative to possession of heroin with the intent to distribute (Alsando Dowell and Darryl Clay) and simple possession of heroin (Travis Johnson). The defendants all entered not guilty pleas at arraignment. On May 7, 2003 the motion to suppress hearing and preliminary hearing were held. As to defendant Dowell the court found insufficient probable cause to sustain the charge, noting that no motion to suppress pertained to him. As to Johnson the court granted the motion to suppress evidence and found insufficient probable cause to sustain the charge. As to Clay, the court granted the motion to suppress only as to items taken from his person. The court found sufficient probable cause to bind Clay over for trial. The State objected to all of the rulings which were adverse to it and gave notice of intent to seek writs. The court set a return date for June 5, 2003 which was extended on June 4, 2003 to June 20, 2003. The court stayed the trial pending the writ application.

2MOTION TO DISMISS:

The defense has filed a motion to dismiss the writ application arguing that the State did not property file its extension of the writ return date. We find the writ application to have been timely filed because it is post marked on the last day of an extension granted by the trial court. The mover asserts that the motion for an extension of time was not filed in the District Court and is not a part of the record of that court. However, there is attached to the writ application an order granting the Stated until June 20th to submit its writ application. We therefore overrule the motion to dismiss.

STATEMENT OF THE FACTS

At the motion hearing, the parties stipulated that Sergeant Lampard, if called to testify, would state that he was the affiant on a search warrant used to search Apartment A, 3409 Martin Luther King Blvd., but he did not actually participate in the search, detention, or arrest of the defendants. The search warrant application alleged that, within the prior twenty-four hours, Sgt. Lampard had been contacted by a documented confidential informant. The C.I. stated that a black male named Darryl was selling retail quantities of heroin from the apartment. The C.I. offered to make a controlled buy from Darryl. Sgt. Lampard, with the assistance of Officer James Foucha, proceeded with the standard procedure for a controlled purchase, including searching the C.I., providing money, and setting up a surveillance location. As the officers watched, the informant approached the front steps of 3409 Martin Luther King. The C.I. met a black male wearing a white t-shirt with a red logo and a pair of blue jean shorts. The two had a discussion; the C.I. handed the male the currency, and the targeted subject walked into the building. He | .¡returned a couple of minutes later and gave the C.I. a small object. The informant proceeded to the prearranged meeting place where he gave the officers a foil containing an off-white powder. Sgt. Lampard then proceeded to apply for the search warrant.

Officer James Foucha was the first police officer to testify at the motion hearing. He stated that he assisted the surveillance operation during the controlled buy from the targeted apartment. Officer Foucha testified that he observed the transaction between the C.I. and the seller, who was later identified as Darryl Clay, one of the defendants herein. Officer Foucha maintained the surveillance while Sgt. Lampard applied for the search warrant. When the warrant had been approved, Officer Fou-cha watched other officers detain the three individuals, the defendants herein, who were in front of the building. Once the scene was secure, Officer Foucha left; he did not participate in the detention and arrest of the defendants or the search of the apartment.

During a brief cross-examination by counsel for defendants Dowell and Johnson, Officer Foucha testified that those defendants were sitting on the porch during the incident. He did not see them participate in the transaction which occurred between the C.I. and Darryl Clay.

Counsel for the defendant Darryl Clay questioned Officer Foucha extensively about the physical configuration of the building at 3409 Martin Luther King Blvd. and the officer’s ability to view Apartment A. He established that there are a total of four apartments in the building; Apartment A was one of two on the first floor. Officer Foucha explained that it was possible to see Clay enter the hallway and turn toward the left, the side of the floor where Apartment A was located.

1 ¿Officer Mark Amos testified that he was with the support unit for the investigation. Once he was notified by radio that the search warrant had been issued, he and other officers moved into the 3400 block of Martin Luther King Blvd. They stopped the defendants, who were sitting on the porch of the building, obtained identification from each, and conducted frisks. He stated that his frisk of the defendant Travis Johnson resulted in the seizure of a small foil of heroin. After the frisks were completed, he seized a set of keys from Darryl Clay and used them to gain entry into the targeted apartment. A search there resulted in the seizure of heroin, firearms, packaging material, a scale, and two pieces of mail containing the name of defendant Alsando Dowell. At that point, the officers placed Clay and Dowell under formal arrest. Officer Amos further testified that, to his knowledge, nothing was seized from the person of Dowell, but that a plastic bag containing seventeen foils of heroin was found on Clay’s person.

During cross-examination, Officer Amos conceded that, at the time he arrived with his fellow officers to execute the warrant, they had no information that Johnson and Dowell had any connection with the targeted apartment or the drug transaction referenced in the search warrant application. Officer Amos stated that they were detained solely because they were on the porch when the drug transaction had been completed. No weapons were found on either man. However, as to the foil found on Johnson, Officer Amos testified that it was sticking out of the edge of Johnson’s waistband; it was not found during the actual weapons frisk. Officer Amos conceded that neither Dowell nor Johnson engaged in any suspicious or threatening behavior; rather he viewed them as bystanders who were “in the wrong place at the wrong time.”

1 .^Officer Amos further testified that, although two pieces of mail were found with Dowell’s name on them, he did not find out who leased the apartment.

Counsel for Darryl Clay cross-examined Officer Amos regarding the police report and search warrant return which he prepared. Officer Amos conceded that the search warrant return inventory reflected that two bags of heroin were seized from the residence; one contained twenty-two foils and the other seventeen, even though he had testified that the seventeen foils were seized from Clay’s person. Officer Amos conceded that he was asked by the district attorney to make some corrections to his report, but he did not clarify that aspect of it.

In further cross-examination, Officer Amos testified that he had been provided with a description of the seller; this had been relayed by Officer Foucha via radio. Clay was handcuffed and the keys seized based on the fact that he matched that description.

DISCUSSION

The State is before this Court complaining that the trial court erred when it found no probable cause for Dowell’s arrest, found no probable cause for Johnson’s arrest and suppressed the foil of heroin seized from him, and suppressed the key seized from Clay. The defense did not argue, and the court did not find, that there was any basis to suppress the evidence found inside the apartment and seized pursuant to the search warrant.

Probable cause to arrest exists when the facts and circumstances known to the officer are sufficient to justify a man of ordinary caution to believe the person |fito be arrested has committed a crime. State v. Matthews, 94-2112, p. 5 (La.App. 4 Cir. 4/26/95), 654 So.2d 868, 871. Because the defendants’ arrests and seizure of evidence from their persons were without a warrant, the State bears the burden of proof. La.C.Cr.P. art. 703.

This Court has held that there is reasonable suspicion to stop and frisk a person who is in the company of another during a drug transaction. See State v. Green, 586 So.2d 639 (La.App. 4 Cir.1991), in which police officers on patrol in a marked vehicle received a call of a drug deal. The officers parked their vehicle out of sight and walked to the location so that they would not be seen. When they were within approximately twelve feet, they observed the defendant standing with a man named Jones. Jones was approached by another person, and a drug transaction occurred. The defendant did not participate in the transaction. Nevertheless, the officers approached all of the men and placed them against a car in order to do a frisk for weapons. The drug buyer had a rock of cocaine concealed in his hand. The defendant, while his hands were on the car, opened his right hand and dropped a rock-like substance. Green was then placed under arrest. The trial court suppressed the evidence. This Court reversed, stating:

Because the defendant was with Williams and Jones during the drug purchase in a high drug trafficking area, the officers were justified under these circumstances to conduct a pat-down search of the three men under Terry v. Ohio, 892 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Landry, 393 So.2d 713 (La.1981). Therefore, the seizure of the cocaine which the defendant abandoned because of that justified pat-down search was legal.

State v. Green, 586 So.2d at 640. See also State v. Eddie, 96-2787 (La.App. 4 Cir. 4/30/97), 694 So.2d 503 (investigatory stop lawful where defendant was one of three individuals present when a drug transaction occurred, and he fled when the police J^appeared at the scene of the transaction); and State v. Robinson, 2000-1050 (La.App. 4 Cir. 4/11/01), 784 So.2d 781, writ granted on other grounds 2002-1373 (La.4/26/02), 816 So.2d 846, (defendant in car with a person in possession of drugs could be frisked for weapons).

However, this Court found that the police did not have probable cause to arrest the driver of a vehicle solely because a person involved in a drug transaction entered the vehicle immediately after concluding a drug sale to an undercover officer. State v. Broussard, 99-2848 (La.App. 4 Cir. 10/4/00), 769 So.2d 1257, rev’d on other grounds, 2000-3230 (La.5/24/02), 816 So.2d 1284. The Court noted that, “although it is somewhat arguable that the appellant’s proximity to the undercover drug sale might have given the officers reasonable suspicion to stop the appellant, these circumstances did not constitute probable cause to believe the appellant was involved in Allen’s and Hills’ drug operation in any way.” Id. p. 9, 769 So.2d at 1261.

As to both Johnson and Dowell, their presence during the drug transaction between Clay and the confidential informant provided a basis for an investigatory stop. Officer Amos testified that he frisked them for the officers’ safety. During the interaction, but not as a direct result of the frisk, Officer Amos saw a foil protruding from Johnson’s waistband. In State v. Smith, 96-2161 p. 3 (La.App. 4 Cir. 6/3/98), 715 So.2d 547, 549, this Court discussed the plain view exception:

In order for an object to be lawfully seized pursuant to the “plain view” exception to the Fourth Amendment, “(1) there must be a prior justification for the intrusion into a protected area; (2) in the course of which the evidence is inadvertently discovered; and (3) where it is immediately apparent without close inspection |athat the items are evidence or contraband.” State v. Hernandez, 410 So.2d 1381, 1383 (La.1982); State v. Tate, 623 So.2d 908, 917 (La.App. 4 Cir.), writ denied 629 So.2d 1126 and 1140 (La.1993). In Tate, this court further noted: “In Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the Court held that evidence found in plain view need not have been found “inadvertently” in order to fall within this exception to the warrant requirement, although in most cases evidence seized pursuant to this exception will have been discovered inadvertently.” Tate at 917.

Here, the officers had confirmed information that narcotics sales were occurring from the location. Johnson had been present while such sales were occurring. Officer Amos saw an item which was consistent with such sales during a valid investigatory stop. He was entitled to seize it and arrest Johnson for the offense of simple possession. The trial court erred in finding that there was no basis for the seizure and arrest as to Johnson and we reverse the judgment below as to Johnson.

The issue as to Dowell is more difficult. No evidence of involvement in the drug sale was found on his person. He did not flee. No one testified that he acted in a suspicious manner. The informant had not provided any information relative to him, but rather only as to Darryl Clay. Dowell did not have keys to the apartment where the drugs were located. The sole basis for his arrest was the discovery of two pieces of mail inside the apartment which had his name on them. Those pieces of mail were not described with any particularity at the hearing, nor did Officer Amos or any other officer testify as to where in the apartment the mail was located. Officer Amos conceded that the police had made no attempt to determine who was the lessee of the apartment. The mail was not introduced at the hearing.

In State v. Toups, 01-1875, pp. 3-4 (La.10/15/02), 833 So.2d 910, the Court discussed the law on constructive possession:

A person may be in constructive possession of a | adrug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it.... Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug. State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).
A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: “evidence that the area was frequented by drug users”).

In State v. Anderson, 36,969 (La.App. 2 Cir. 4/9/03), 842 So.2d 1222, the Court found that the evidence was sufficient to establish the defendant’s constructive possession of contraband found in a residence pursuant to a search warrant. The State introduced evidence of the defendant’s ownership of the residence, utility bills, uniforms with the defendant’s name on them, and photographs of the defendant.

At this time in the instant case, the State is not required to prove beyond a reasonable doubt that Dowell was in constructive possession of the drugs found in the apartment. At the preliminary hearing, the State was only required to prove that there is probable cause to believe that Dowell was in constructive possession. |inHowever, it does not appear that the trial court was manifestly erroneous in concluding that the State had failed in its burden. No one saw Dowell entering the apartment, nor did he have keys to it. The police were not given any information that Dowell was involved in the drug trafficking occurring from Apartment A. The State produced no evidence to show that Dowell had a lessee’s interest in the apartment. The mail was not identified as clearly reflecting that Dowell exercised dominion and control over the apartment, for example, current utility bills. Thus, we affirm this aspect of the trial court’s ruling.

The remaining issue in this writ application is whether the trial court erred when it suppressed evidence seized from the person of Darryl Clay. The trial court at the motion hearing explained that it was suppressing the evidence seized from Clay’s person because the police were only in possession of a search warrant, not an arrest warrant, and that “[t]hey did not independently observe any criminal activity that they alleged the defendant was engaged in at the time of his arrest. Nor was there any testimony regarding any particular criminal activity ... that would have justified anything other than the stop and frisk, which is indeed authorized.... ”

La.C.Cr.P. art. 213 authorizes a peace officer to make an arrest without a warrant when the person to be arrested has committed an offense in his presence; has committed a felony, although not in the presence of the officer; or where the officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. This Court set forth the Inapplicable law on probable cause for an arrest in State v. Pham, 2001-2199 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, as follows:

It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. For an arrest, the law does not require that “reasonable cause to believe” be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience.
Probable cause for an arrest must be judged by the probabilities and practical considerations of everyday life in which average people, and particularly average police officers, can be expected to act. The reputation of the area is an articula-ble fact upon which a police officer may legitimately rely. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or a preponderance standard demands. Deference should be given to the experience of the police who were present at the time of the incident. The fundamental philosophy behind the probable cause requirement of the Fourth Amendment is that common rumor or report is not an adequate basis for the arrest of a person. Police are not required to arrest an individual at the point at which probable cause for arrest arises.
Pursuant to a lawful arrest, the officer may lawfully conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. (Citations omitted).

2001-2199, pp. 5-6, 839 So.2d at 219-220.

In State v. Robertson, 2002-0156 (La.App. 4 Cir. 2/12/03), 840 So.2d 631, police received information from a confidential informant that an individual known as “Red,” who walked with a limp and drove a gray Chevy Corsica, sold cocaine while sitting in front of an abandoned house at the corner of LaSalle and Josephine Streets. The informant also told the officers that Red kept more narcotics inside his residence at 3025 Toledano Street. The next day, one officer went to 3025 Toledano Street, where he observed the gray Chevy Corsica parked in front. He then drove to LaSalle and Josephine Streets and parked nearby. Within ten minutes of Red’s arrival, the gray Chevy Corsica pulled up and parked nearby. Red exited and walked, with a limp, to the rear of an abandoned residence. The officer observed, through binoculars, Red remove a plastic bag from his pants pocket and place it on the sidewalk at the rear of a back shed, then walk over and sit on the steps of the abandoned residence. The officer observed two separate narcotics transactions with two unknown males. In each transaction, unknown males approached Red, engaged him in a brief conversation, and handed the defendant currency. Red walked to the back shed area, retrieved a small object, and returned to give the object to the male. A third male subsequently approached. He and Red walked to the back shed area and retrieved the plastic bag. Red showed the bag to the third male, and removed a small object and gave it to him. This third male placed the object in his sock and sat on a milk crate next to the steps where Red had been sitting. The officer observed this third male conduct a drug transaction as the defendant had done. A female joined this third male, sitting on the steps.

Subsequently, the surveilling officer contacted two other officers, who approached Red, the male and the female, conducted pat-down searches, and | ^informed them they were under investigation for drug violations. This court held that the corroboration of the informant’s information by the first officer’s surveillance gave the detaining officers not only reasonable suspicion to stop Red, but probable cause to arrest him.

In State v. Julian, 2000-1238 (La.App. 4 Cir. 3/14/01), 785 So.2d 872, police received a telephone complaint, presumably anonymous, regarding drug activity at a residence. Police had received numerous complaints concerning that residence. Police set up surveillance, and had been on the scene less than a minute when they observed an individual matching a description given by the caller come out of an alleyway of the residence and speak to another individual, who was holding currency in his hand. After a brief conversation, the first individual removed a plastic object from his right pants pocket, opened it, removed something from it, and handed it to the second individual. The first individual then took currency from the second individual, who walked off. The observing officers radioed other officers, who arrested the first individual and recovered a film container with crack cocaine inside from that individual’s right front pants pocket. On reviewing the seizure, this court stated that the officers not only had reasonable cause to stop the individual, but that the observation of a narcotics transaction also provided probable cause to arrest him.

Here, the testimony of Officer Fou-cha and the affidavit in support of the search warrant executed by Sergeant Lampard established that Darryl Clay made a sale of narcotics to a confidential informant, who had already provided the police with the tip that a man named Darryl was selling drugs from the targeted location. The police officers had probable cause to arrest Clay, and lawfully conducted a lusearch incidental to that arrest. The trial court erred in suppressing the evidence seized from Clay’s person and we reverse the judgment as to Clay.

CONCLUSION

For the reasons stated above the defense motion to dismiss the writ is denied. The trial court’s rulings as to the defendants Johnson and Clay are reversed. The ruling as to Dowell is affirmed.

MOTION TO DISMISS DENIED; RULINGS AS TO JOHNSON AND CLAY REVERSED; RULING AS TO DOWELL AFFIRMED.

      . The trial court actually suppressed the evidence seized from Clay’s person, not the keys per se. Officer Amos testified that both the apartment keys and seventeen foils of heroin were found in the search of Clay.

      . The Louisiana Supreme Court reversed on the grounds that the defendant had not been arrested; the Court did not dispute that probable cause for an arrest did not exist.

      . The State might be able to meet its burden at trial; the court’s ruling that there was insufficient cause to bind the defendant over does not preclude the State continuing the prosecution of Dowell.

      . It should be noted that the officers did not make a warrantless entry into the residence to effect the arrest of Clay, distinguishing this case from Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002), where the Supreme Court reaffirmed that both probable cause and exigent circumstances are necessary to make a warrantless entry to arrest a person. Furthermore, the Court in Kirk noted that the police officers had neither an arrest warrant nor a search warrant, implying that either type of valid warrant would have been sufficient for a search of Kirk.


author: 1JOAN BERNARD ARMSTRONG, Judge.

text:
    STATE of Louisiana v. Monotor M. PETE.
    No. 2003-KA-0694.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge MAX N. TOBIAS Jr.).
   1JOAN BERNARD ARMSTRONG, Judge.

On August 29, 2001, the defendant, Mo-notor M. Pete, was charged by bill of information with carnal knowledge of a juvenile, a violation of La. R.S. 14:80. At his arraignment on September 27, 2001, the defendant pleaded not guilty. On November 28, 2001, the defendant was ordered to submit to a paternity test. The State filed a motion to hold the defendant in contempt of court after he failed to keep several appointments for testing. On January 4, 2002, at a hearing on the motion, the trial court found the defendant had willfully and deliberately refused to comply with the order of November 28, 2001 and he was found to be in contempt of court and sentenced to serve 120 days in Orleans Parish Prison. After trial on November 7, 2002, a six-member jury found him guilty as charged. He was sentenced on January 16, 2003, to serve six years at hard labor; the sentence includes the special condition that he register as a sex offender. His motion to reconsider the sentence was denied, and his motion for an appeal was granted.

At trial T.H. testified that she was fourteen years old in April and May of 2000 when she first met the defendant. She was at the public library, and 12he sat down at a table near her, and they began talking. They spoke on the telephone a few times after that, and then he came by her house one day. They had consensual sex that day and on other occasions. T.H.’s mother worked at night, and the defendant usually came to her house while her mother was working. She stated that she told him her age the day they met in the library. In September when she realized she was pregnant, she told her sister who then informed her mother. After her son was born, she and he had DNA tests.

Dr. Michael Murray, an expert in DNA analysis and paternity testing, testified that he supervises the DNA testing lab at ReliaGene Technologies. He stated that T.H. and her son gave blood on December 4, 2001, and completed the forms required. The defendant, who gave blood on another day, refused to sign the form and wrote “under duress” on every line where his signature was required. Dr. Murray told the court the tests indicated that the probability the defendant was the father of T.H.’s child was 99.999%. Under cross-examination, the doctor stated that although he could not say absolutely that the defendant was the father of the victim’s child, it was extremely likely that the defendant was the father.

Detective John Gutierrez of the Sex Crime Section of the N.O.P.D. testified that he participated in the investigation involving the defendant. The detective was notified that a young pregnant girl had named the defendant as the father of her child. Detective Gutierrez prepared a photo lineup, and the victim selected the picture of the thirty-nine year old defendant and named him as the person with whom she had consensual sex when she was fourteen years old. Under cross-examination, the detective stated that the victim knew the name and age of the defendant and that she | mever told the defendant her age. Moreover, she never reported the relationship until she found she was pregnant.

The defendant testified that he met T.H. on a “party line” — a singles telephone line. T.H. and a gay man were both on the line initially, and T.H. told the defendant she was almost twenty. He said, he had no reason to doubt her age. They exchanged telephone numbers, and she called him right back at home. He met her at her house that night. As the defendant was coming into the house, another man was leaving. That man, who was introduced as T.H.’s uncle, kissed her on the head as he left. T.H.’s mother was not at home, and T.H. told the defendant that the apartment was hers. She had a six-month-old baby there, and she claimed it was hers and said the baby’s father was in jail. The defendant testified that he visited T.H.’s house almost every night for six to eight weeks from the time he met her, and on most nights he stayed there the entire night. One night he became suspicious when she would not let him go upstairs. He also claimed he “popped over” to her place during the day several times, and her mother was not at home. The defendant never tried to conceal his identity from T.H.; in fact, he gave her his business card. He said he never intentionally had sex with someone under seventeen.

The State called T.H.’s mother, R.H., to testify in rebuttal. R.H. said that she did not know that her daughter was seeing the defendant during April and March of 2000. R.H. worked nights at Rite Aid, but Sunday and Monday were her days off. When asked if she had been home on those days, she said that she would “sometime ... go places.”

A review of the record for errors patent reveals none.

In a single assignment of error, the defendant argues that he was denied the assistance of counsel at the presentencing investigatory interview.

| ¿The defendant maintains that under the Louisiana Constitution and the United States Constitution he is entitled to assistance of counsel at each stage of the proceedings in a criminal prosecution. However, he concedes that the presentencing investigatory report is not an essential part of sentencing process. As authority for his position that he was entitled to counsel during the interview with the probation officer, he cites the Louisiana Standards on Indigent Defense which provide in pertinent part that “[w]here appropriate, defense counsel should attend the probation officer’s interview with the accused.” Nevertheless, he acknowledges that Supreme Court Rule XXXI, which authorizes the Louisiana Indigent Defenders Board to construct these guidelines, also provides that the standards “shall not form a basis for a procedural or substantive attack in any case or proceeding pending or instituted in the Louisiana criminal justice system....” Thus, the Louisiana Standards on Indigent Defense, which provide for assistance of counsel “where appropriate,” are specifically limited so as not to provide the authority this defendant seeks.

The State cites Baumann v. U.S., 692 F.2d 565 (9.Cir.1982), a non-capital case in which the appellant argued the same point made in the instant case. The Ninth Circuit held that the Fifth and Sixth Amendment rights to counsel did not confer a constitutional right on a defendant to have counsel present at the presentencing interview. Baumann, 692 F.2d at 574. Furthermore, in Baumann, the appellant maintained he received a longer sentence because of the probation officer’s report, and in the instant case, |RPete does not argue that he was harmed by not having counsel at his presentencing interview.

The State adopts the holding of the Ninth Circuit in this case; however, this federal case provides only persuasive authority. Under La.C.Cr.P. art. 875, a court may order a presentencing investigatory report, and under art. 877, the court may inform the defendant or his counsel of the contents of the report. The Code of Criminal Procedure does not require a presentencing investigatory report prior to sentencing, and it certainly does not provide that defense counsel be present when a defendant is interviewed for such a report In State v. Telsee, 388 So.2d 747 (La.1980), the Supreme Court considered a case in which the defendant argued that he was adversely affected by presentencing information communicated privately to the judge, and the Court held that a defendant must have an opportunity to contradict or explain prejudicial information in a presen-tencing report or otherwise presented to the judge.

At the sentencing hearing in the case at bar, the defense attorney announced that he had reviewed the presenteneing report. He then informed the judge that the defendant had requested his attorney’s presence when the presentencing report was made and his request was not granted. He asked that the court not consider the report. The defendant was given an opportunity to address the court, and he spoke of filing a motion to this court arguing that he was denied counsel during the interview. However, he never argues that he suffered any harm as a result of the report.

Clearly the defendant did not have a right to counsel during the presentencing interview. Under State v. Telsee, both he and his attorney were given an opportunity to address the court about the interview.

| (¡Furthermore, when he was sentenced, the judge recited his prior arrests and convictions for possession of marijuana, first offense, and battery of a police officer. The judge, who also presided at defendant’s trial, reviewed the facts of the case and the sentencing guidelines under La. C.Cr.P. art. 894.1 and imposed a six-year sentence. The presentencing report recommended a five-year term, and the maximum sentence under La. R.S. 14:80 is ten years and/or a fine of not more than $5,000. Thus, the defendant did not receive the sentence recommended by the probation officer or the maximum sentence. Rather, having observed the defendant’s reluctance to undergo DNA testing, his lack of remorse for his offense, and his complete disinterest in the child born of his action, the trial judge imposed a sentence based on his criminal history and the facts of the case as presented at trial.

This assignment is without merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . According to the bill of information T.H.'s birth date is August 8, 1985.

      . In Baumann, the court reasoned that the trial judge had wide discretion in determining a sentence no matter what the pre-sentence report suggested. However, in U.S. v. Herrera-Figueroa, 918 F.2d 1430 (9 Cir.1991), an appellant successfully argued that given the adoption of the Federal Sentencing Guidelines, the pre-sentence interview constitutes a critical stage of the proceedings for sixth amendment purposes, and a defendant's request for an attorney must be honored. The defendant in Herrera-Figueroa had refused to take part in a presentencing interview without counsel, and at sentencing the judge declared that the sentence was based on the finding of the probation officer.


text:
    SALT DOMES, INC. v. VILLERE FOOD GROUP, INC., Pierre G. Villere and Myriam R. Villere.
    No. 2003-CA-0185.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.

      John E. Heinrich, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, Baton Rouge, LA, and Elizabeth W. Mag-ner, New Orleans, LA, for Plaintiff/Appellant.
    Randall A. Smith, Owen B. St. Amant, Smith & Fawer, L.L.C., New Orleans, LA, for DefendanVAppehee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   1TERRI F. LOVE, Judge.

This case involves a petition to revive a judgment filed by the plaintiff, Salt Domes, Inc. At a hearing, the trial court sustained the defendant’s exception of no right of action as to Salt Domes, Inc. and dismissed the matter in its entirety. Additionally, the trial court denied Salt Domes Partnership’s motion to intervene and to file an amending petition substituting the partnership for the corporation, as the proper party plaintiff in the revival action. The defendant, Salt Domes Partnership (known hereinafter as “Salt Domes Partnership”), now files this appeal.

FACTS AND PROCEDURAL HISTORY

In 1985, a money judgment was rendered in favor of Salt Domes, Inc. and against Villere Food Group, Inc., Pierre G. Villere, and Myriam R. Villere, in solido, in the amount of $22,000 together with legal interest at the rate of eighteen percent (18%) per annum from October 14, 1981 until paid in addition to twenty-five percent (25%) of the principal’s attorney’s fees and all costs associated with the proceedings. In 1994, Salt Domes, Inc. filed a petition to revive a money judgment. Service was not effected until 1998. Salt Domes Inc. filed for and was ^granted a default judgment in 1999. In 2001, My-riam R. Villere filed an ex parte motion to dismiss the revival action alleging abandonment, which was granted by the trial court. Salt Domes, Inc. subsequently filed a motion for new trial, which was denied by the trial court. Salt Domes Partnership subsequently filed a motion for leave of court to intervene and file a supplemental and amending petition seeking to intervene as proper party plaintiff in the matter, which was denied by the trial court. As a result, the matter was dismissed, with prejudice. Salt Domes Partnership now files this appeal. We affirm the trial court’s judgment for the following reasons.

ASSIGNMENT OF ERROR ONE

Salt Domes Partnership argues the trial court erred when it sustained the defendant’s exception of no right of action without allowing the plaintiff time to amend the petition and when it denied Salt Domes Partnership’s motion for leave to intervene and for leave to file a supplemental and amending petition to substitute Salt Domes Partnership as the proper party in the revival action.

The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor. Thomas v. State of Louisiana, 545 So.2d 632 (La.App. 4th Cir.1989). When considering the exception, the court must ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted. In re G.E.T., 529 So.2d 524 (La.App. 1st Cir.1988). The exception does not raise the question of the plaintiffs ability to prevail on the merits nor the question of whether the defendant may have a valid defense. Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155 (La.App. 1st Cir.1992).

La.C.C. art. 24 defines a juridical person as:

A juridical person as an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members.

La.C.C. art. 3501 provides:

A money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing if no appeal has been taken, or, if an appeal has been taken it is prescribed by the lapse of ten years from the time the judgment becomes final.

Salt Domes Partnership asserts the transfer agreement effectively transferred all of the assets owned by Salt Domes Inc. including “the assumption by the partnership of all of the corporation’s liabilities and obligations.” Salt Domes Partnership argues that right to revive the money judgment was included in the transfer of corporation’s assets and rights associated with those assets.

The defendant, Myriam Villere, argued in her exception of no right of action that Salt Domes Inc.’s voluntary dissolution of the corporation in 1988 definitively terminated its’ existence as a juridical person. This court notes that Salt Domes Inc. was a Delaware corporation doing business in Louisiana and was voluntarily dissolved according to laws of Delaware.

Under Delaware’s corporations law, the assets along with the rights and obligations of the dissolved corporation shall, be transferred to the newly formed partnership or entity within three years time from the date of dissolution of the corporation. A review of record reveals that the assets and rights and obligations of Salt Domes Inc. were timely transferred the newly formed Salt Domes Partnership.

14At the hearing on the matter, the trial court responded to these contentions in the following manner:

Court: We are past the assertion of the claim. We’re at judgment. I would agree that that (sic) may the claims, the right to assert. This case had gone to judgment. A judgment had been recorded and had been recorded for years. And it is now time for it to revive the judgment again. And we’re past the claims stage.
Plaintiffs Counsel: But your Honor, the Code of Civil Procedure requires that party bring an action to revive the judgment. That’s the claim. Because if you don’t bring that claim, the claim being, I want to continue the judgment.
Court: But it wasn’t done in the partnership’s name.
Plaintiffs Counsel: There’s no doubt about that, your Honor. But what I’m saying is the Fourth Circuit and the Supreme Court has allowed, in the light of an exception, just like being brought here, for the substitution of the proper party plaintiff.
Court: But the problem I’ve got with it is that you knew who the proper party plaintiff was ever since 1988 when they were dissolved, as far as I know ... But these people have known since at least 199-1988 who the proper person was because you made the transfer. I’m going to grant the Exception of No Right of Action.

Ms. Villere also pointed out at the hearing that Salt Domes Partnership never filed anything in the trial court until the motion to intervene and it never sought to substitute itself as proper party plaintiff until fourteen years after Salt Domes Partnership acquired the right to revive this judgment.

La. C.C.P. art. 2031, which governs money judgments, states:

A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.

In the instant case, Salt Domes, Inc. voluntarily dissolved in 1988. A petition to revive the money judgment was filed by Salt Domes, Inc. in 1994. However, Salt Domes Inc. was neither the proper party nor an [¡interested party, as provided in La.C.C.P. art. 2031, because it was legally non-existent as a corporation. Now, Salt Domes Partnership attempts to enforce the judgment some fourteen years after it assumed the right to do so and consequently after the right has prescribed.

We find that although the right to enforce the money judgment action was transferred from Salt Domes Inc. to Salt Domes Partnership in the transfer agreement, Salt Domes Partnership does not have a viable right of action against Myriam Villere, because it failed to exercise this right within the time limits prescribed under La. C.C. art. 3501. Furthermore, we find that prescription is not interrupted when a non-existent corporation files a petition to revive a money judgment. Thus, the trial court did not err in granting Myriam Villere’s exception of no right of action.

ASSIGNMENT OF ERROR TWO

In the second assignment of error, Salt Domes Partnership argues the trial court erred when it dismissed the case, with prejudice. Specifically, the plaintiffs argue that should this Court decide that the trial court did not err in granting defendants’ exception of no cause of action then we should find that the trial court erred in not allowing plaintiffs to amend their petition.

La.C.C.P art. 1151 allows the amendment of a pleading at any time before the answer is served. After the answer is served, the petition and answer “may be amended only by leave of court or by written consent of the adverse party.” La.C.C.P. art. 1151. The decision to disallow an amendment under La.C.C.P. art. 1151 is within the discretion of the trial judge and that decision should not be 1 ¡¡disturbed on appeal unless there has been an abuse of the broad discretion vested in the trial court. Glover v. Shiflett Transport Services, Inc. et al., 1997-2787, p. 4 (La.App. 4 Cir. 5/6/98), 718 So.2d 436, 438.

As previously noted, Salt Domes Partnership did not seek to substitute itself into the action until eight years after it filed a petition to revive the money judgment and fourteen years after it acquired the right to enforce such a judgment. During this period of time, Salt Domes Partnership never sought to revive the money judgment in its name. By the time Salt Domes Partnership attempted to substitute itself into the action as the proper party plaintiff in 2002, the right to revive the money judgment had prescribed in 1995. Therefore, even if we find that the trial court erred when it denied Salt Domes Partnership’s motion to amend its petition and intervene in the action as proper party plaintiff, the subsequent substitution of Salt Domes Partnership as proper party plaintiff would not cure the obvious prescription of the right to revive the money judgment. We simply cannot ignore Salt Domes Partnership’s failure to substitute itself into this action as proper party plaintiff for fourteen years. Most importantly, a trial court has broad discretion on the issue of whether to allow amendment of a petition after the time for doing so has expired. Therefore, we will not disturb the trial court’s ruling denying the plaintiffs motion to amend the petition.

Based on Salt Domes Partnership’s failure to substitute itself into the action fourteen years after it acquired the right to enforce such action, we do not find that the trial court erred in denying the plaintiffs motion to substitute itself as proper |7party plaintiff and to amend the petition. Hence, we affirm the trial court’s judgment granting defendant’s exception of no cause of action, dismissing plaintiffs’ claims.

AFFIRMED.