author: I,DECUIR, Judge.

text:
    Ecclesiastes VEAZIE v. GILCHRIST CONSTRUCTION COMPANY.
    No. 2004-118.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      Michael B. Miller, Crowley, LA, for PlaintiffAppellant: Ecclesiastes Veazie.
    Deanne B. McCauley, Rabalais, Unland & Lorio, Covington, LA, for Defendant/Appellant: Gilchrist Construction Company.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   I,DECUIR, Judge.

Ecclesiastes Veazie filed this workers’ compensation claim against his employer, Gilchrist Construction, after developing an infection from a minor knee injury. Gilchrist denied the claim, contesting that a work-related injury had occurred. After a trial on the merits, the workers’ compensation judge ruled in favor of Veazie, awarding him medical and disability benefits, penalties, and attorney fees in the amount of $10,000.00. Both Gilchrist and Veazie have appealed. For the following reasons, we amend and, as amended, affirm.

The facts in the record show Veazie injured his right knee when he fell onto some gravel in August of 2002. He testified the accident occurred at work, though he knew of no witnesses to the incident and did not think it was serious enough to report to his supervisor. He described the injury as insignificant, but within days his knee was swollen and he sought medical treatment. He was diagnosed with an infection and spent one night at a Eunice health care facility where he was administered antibiotics intravenously. Veazie was instructed to seek further treatment at University Medical Center. He traveled there daily from August 22 through August 28, where he was given IV antibiotics. A medical record from UMC dated August 29, 2002 indicates that the cellulitis had resolved and that Veazie was given two prescriptions, one for pain medication and one for an oral antibiotic. He was also referred to UMC’s Medicine Clinic for high blood pressure. The record contains no further medical evidence.

Veazie’s immediate supervisor at Gilchrist Construction, Curtis Clayton, testified at trial. He was unaware of Veazie’s accident until three days after it occurred when he noticed Veazie limping slightly. He asked Veazie about it, and Veazie told him he had fallen on a rock. The following day, Clayton thought Veazie’s limp had improved and he was able to kneel down in the course of doing | ¡.cement work that day. Clayton asked Veazie if he could look at the injured knee at least twice, and both times Veazie refused his request.

Clayton testified that he received a call from Veazie on August 19, reporting that he was in the hospital and would not be able to return to work until the following Monday. Clayton said he asked Veazie if he wanted to see the company doctor or file a compensation claim, but Veazie responded that he had hurt himself at home. The medical records from the Eunice Community Medical Center, however, indicate the injury was work-related. Additionally, between his discharge from the Eunice hospital and the initiation of treatment at UMC, Veazie hired an attorney and filed a disputed claim for compensation benefits. In September 2002, he requested reimbursement for his medical expenses, which totaled $2,081.05, and mileage to and from UMC.

Concerning Veazie’s disability status, the record shows he sought no medical treatment for his knee subsequent to August 29, 2002. He testified at trial that he sometimes feels pain in his knee. He admitted he was involved in an automobile accident in February of 2003, in which he sustained injury to his legs, neck, and back. He explained that he never returned to work at Gilchrist Construction because he was waiting for a call from UMC advising him of the date of a return appointment. The medical records, however, do not indicate that a return appointment would be scheduled. The entirety of the evidence on disability consists of the following exchange between Veazie and his attorney on direct examination after a discussion of Veazie’s duties at Gilchrist Construction: “Q: Can you do that work now with your knee? A: I don’t believe so right now, sir.”

Appellate review in workers’ compensation cases is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed, Eater, 93-1530 (La.1/14/94),a 630 So.2d 733. The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Deference is due to the factfinder’s determinations regarding the credibility of witnesses, “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d at 844.

The worker’s burden of proof in establishing the occurrence of a job-related accident is preponderance of the evidence. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). When an accident is unwit-nessed, the worker’s testimony alone may be sufficient to establish the accident occurred if (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by circumstances following the alleged accident.

The trial court described the issues in this case as close credibility determinations. He found Veazie’s evidence slightly more credible than the defendant’s, commenting the plaintiff just “barely” met his burden of proof. Our review of the record reveals a very contentious proceeding with irreconcilable evidence presented by the opposing parties. The trial court found the plaintiff to be slightly more credible than the defendant’s witnesses, and we find no error in that determination. Accordingly, the issues which rest on this credibility determination, |4i.e., the occurrence of a work-related accident with resulting compensable medical and transportation bills, can be affirmed.

We turn now to the question of the plaintiffs disability status. Louisiana Revised Statute 23:1221 requires proof of temporary total disability by clear and convincing evidence. In order to receive benefits for a temporary total disability, the claimant must prove, by clear and convincing evidence, that he is “physically unable to engage in any employment or self-employment.” “While the workers’ compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden.” Bolton v. Grant Parish Sch. Bd., 98-1430, p. 4 (La.3/2/99), 730 So.2d 882, 885. The plaintiff in this case did not meet his burden of proving an ongoing temporary total disability.

We affirm the trial court’s finding that Veazie was injured in the course and scope of his employment. Consequently, we likewise affirm the award of “all reasonable and necessary” medical benefits. On the question of disability benefits, it is certainly clear that Veazie, by virtue of his ongoing medical care, was temporarily disabled from the time he sought medical care in Eunice until his condition resolved as evidenced in the August 29, 2002 medical record. Therefore, Veazie is entitled to temporary total benefits from August 19, 2002 through August 29, 2002, based on an average weekly wage of $300.00. There is, however, insufficient proof that Veazie was disabled past August 29, 2002, and we amend the award of indemnity benefits so as to exclude benefits beyond that date.

Both parties dispute the award of penalties and attorney fees. Veazie contends he should have been awarded a penalty for the failure to pay indemnity benefits and an additional penalty for the failure to pay medical benefits. He also requests additional attorney fees for work done on appeal. Gilchrist Construction contends |Rthat because the claim was reasonably controverted, penalties and attorney fees should not have been awarded.

The determination of whether an employer should be east with penalties and attorney fees is essentially a question of fact, and the trial court’s finding must not be disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650. “To avoid penalties and attorneys fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.” George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209.

The workers’ compensation judge found that Gilchrist “did not do all that it could have, and indeed should have done,” in response to the plaintiffs injury. We find no manifest error in this conclusion. Accordingly, we affirm the award of a $2,000.00 penalty for the failure to pay indemnity benefits, and we award an additional penalty of $2,000.00 for the failure to pay medical benefits.

While we find that attorney fees .were properly awarded, we have determined, based on our review of the record, that the amount of the attorney fee award is excessive. Pretrial discovery was minimal, the issues were not complicated, and the trial lasted a half day. Although a time sheet is in evidence, we find it wholly inadequate, detailing neither time expended nor personnel involved in each task. Accordingly, the attorney fee award is reduced to $5,000.00. An additional attorney fee of $2,500.00 is awarded for work done on appeal.

Costs of this appeal are assessed to Gilchrist Construction.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: l iGREMILLION, Judge.

license: Public Domain

text:
    Stanley J. EARTHLY v. UNITED OF OMAHA LIFE INS. CO.
    No. 2004-104.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      Michael L. Glass, Alexandria, LA, for Plaintiff^Appellee, Stanley J. Earthly.
    Wilbert J. Saucier, Jr., Pineville, LA, for PlaintifPAppellee, Stanley J. Earthly.
    Thomas E. Loehn, New Orleans, LA, for Defendant/Appellant, United of Omaha Life Ins. Co.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   l iGREMILLION, Judge.

In this ease, the defendant, United of Omaha Life Insurance Company, appeals the summary judgment in favor of the plaintiff, Stanley J. Earthly, awarding him the proceeds of an annuity. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 1996, United issued a single premium deferred annuity to John Earthly, Sr., and his wife, Jessie Mae Earthly. Them two children were listed as beneficiaries, with Stanley being the primary beneficiary and his brother, John, Jr., being the contingent beneficiary. In March 1998, John, Sr. died and Jessie Mae chose not to receive the sum payable at his death, but instead continued the contract in full force as sole owner. Jessie Mae died in November 1999. Prior to their deaths, both John, Sr. and Jessie Mae executed statutory wills instructing that their property be transferred in indivisión to their sons. Each will also appointed John, Jr. as executor of their estates. John, Jr. opened the successions of his parents and initiated a claim for the proceeds of the annuity. United paid the proceeds of the contract to the estate of Jessie Mae. Particularly, the draft was made payable to the order of:

ESTATE OF JESSIE MAE EARTHLY

JOHN EARTHLY, JR. EXECUTOR.

Thereafter, John, Jr. and his wife, Antoinette Earthly, endorsed the check and deposited the entire sum into Antoinette’s personal credit union account. John and Antoinette spent the entire sum for their own personal use and benefit.

Stanley then learned of the existence of the annuity and made demand upon United for the payment of the proceeds. United informed Stanley that it had paid the proper payment under the terms of the contract. Stanley filed suit against | ¡JJnited alleging that he was the sole beneficiary entitled to the proceeds of the annuity. Following a hearing on an Exception of No Cause of Action, Motion to Strike, Motion in Limine filed by United and Motions for Summary Judgment filed by both parties, the trial court granted Stanley’s Motion for Partial Summary Judgment finding that he was the sole beneficiary under the contract of annuity and was, therefore, entitled to be paid $90,512.41 in full from United. United now appeals.

United assigns as error:

1. The trial court’s finding that Stanley is the sole beneficiary under the contract of annuity.
2. The trial court’s finding that the payment of the annuity proceeds to the estate of Jessie Mae was an improper distribution.
3. The trial court’s failure to find that Stanley and John, Jr. are co-contingent beneficiaries with equal ownership interest in the annuity proceeds.
4. The trial court’s application of La. R.S. 22:658 and La.R.S. 22:1220 to a contract of annuity.
5. The trial court’s finding that Stanley is entitled to an award of penalties and attorney’s fees under La.R.S. 22:658.
6. The trial court’s finding that Stanley is entitled to an award of penalties and attorney’s fees under La.R.S. 22:1220.
7. The trial court’s finding that it was arbitrary or capricious in refusing to tender payment to Stanley.

LAW

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.9/7/99), 789 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. | ¡¡Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evi-dentiary burden at trial, no genuine issues of material fact exist.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ.P. art. 966(A)(2).

It is undisputed that the contract filled out and signed by John, Sr., and Jessie Mae, designated Stanley as the primary beneficiary. However, United argues that once John Sr. died, Jessie Mae became the primary beneficiary with Stanley and John, Jr. becoming co-contingent beneficiaries.

On page three of the contract Beneficiary is defined:

BENEFICIARY — the person(s) or other legal entity listed by the owner in the application referred to in this policy as the named beneficiary. In the case of joint owners, the surviving joint owner is the primary beneficiary and the named beneficiary is the contingent beneficiary. If the named beneficiary does not survive the owner or annuitant, the estate of the owner or the annuitant is the beneficiary.

| ¿On page four of the contract is a section titled, “Owner, Joint Owner, Annuitant and Beneficiary.” The section titled “Death of Owner, Joint Owner” states:

Prior to the annuity starting date upon the death of the owner or joint owner, the policy will end and the sum payable at death will be paid to the beneficiary. If there are joint owners, the surviving joint owner shall be the beneficiary regardless of whether a beneficiary was named on the application. If both joint owners die simultaneously, the sum payable at death will be paid to the named beneficiary.
If the beneficiary is the surviving spouse, the spouse may either receive the sum payable at death and the policy mil end or the spouse may continue the policy in force as the owner.

“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art. 2046. In Cadwallader v. Allstate Insurance Co., p. 2 (La.6/27/03), 848 So.2d 577, 580, the Louisiana Supreme Court recently stated:

Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ.Code art. 2047: Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1028-29; Carbon, 719 So.2d at 440-441; Reynolds, 634 So.2d at 1183. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, p. 11 (La.4/11/00), 759 So.2d 37, 43; Peterson, 729 So.2d at 1029. The rules of construction do not authorize a perversion of words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 4 (La.1/15/02); 805 So.2d 1134, 1138; Peterson, 729 So.2d at 1029.
|BIf the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Fannaly, 805 So.2d at 1137; Louisiana Ins., 630 So.2d at 764. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Peterson, 729 So.2d at 1029; Louisiana Ins., 630 So.2d at 764. The determination of whether a contract is clear or ambiguous is a question of law. Louisiana Ins., 630 So.2d at 764.

We find there is no genuine issue of fact that Jessie Mae was the owner of the policy and that Stanley was the primary beneficiary. Upon John, Sr.’s death, Jessie Mae became the beneficiary. At that point, she could have cashed out the policy • and received the funds. However, because she did not, pursuant to United’s own contractual terms, Jessie Mae continued the “policy in force as the owner.” We agree with Stanley that United’s argument that Jessie Mae was the beneficiary upon her death is unreasonable. United’s argument that Jessie Mae was the primary beneficiary and Stanley and John, Jr. were co-contingent beneficiaries strains the very plain and unambiguous wording of the contract. Moreover, United suggests that Jessie Mae was the owner and the primary beneficiary, thus rendering its tender to her estate upon her death appropriate. We disagree. Clearly, when John, Sr. and Jessie Mae purchased the annuity they intended for Stanley to be the primary beneficiary. The contract states that, if the surviving joint owner does not end the policy, then it continues in force. Thus, the policy continued in force with Stanley as the primary beneficiary upon Jessie Mae’s death. Therefore, Stanley was entitled to the funds upon her death. Accordingly, summary judgment in favor of Stanley on this issue was appropriately granted.

ATTORNEY’S FEES AND PENALTIES

At the conclusion of the trial, the trial court orally stated that Stanley was | fientitled to claim penalties and attorney’s fees pursuant to La.R.S. 22:658 and La. R.S. 22:122o. However, in its judgment, the trial court stated:

STILL FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff’s entitlement to claim penalties and attorney’s fees against defendant be and hereby is reserved, pending motion to establish same[.]

United argues that neither of these provisions apply to an annuity contract, which is not an insurance policy, that these provisions do not apply to third parties to a contract, which Stanley is, and that the requisites for assessing penalties and attorney’s fees were not met. Stanley urges that this issue is not properly before this court and we agree. Clearly, the judgment reserves Stanley’s right to claim that he is due penalties and attorney’s fees. The issues of whether he is entitled to them and whether United acted in an arbitrary and capricious manner in handling his request for payment have not been adjudicated.' Thus, there is no final judgment as the merits were not addressed and it is premature on appeal. See La. Code Civ.P. art. 2083. This assignment of error is, therefore, dismissed.

CONCLUSION

The summary judgment granted in favor of the plaintiff-appellee, Stanley J. Earthly, and against the defendant-appellant, United of Omaha Life Insurance Company, is affirmed. Costs of this appeal are assessed to United.

AFFIRMED.

      . La.R.S. 22:1220 authorizes an insurer to be penalized for late payments “when such failure is found to be arbitrary, capricious, or without probable cause.” La.R.S. 22:658(B)(1) authorizes the collection of attorney’s fees when an insurer is found to be in bad faith for failure to pay.


author: I iPETERS, J.

text:
    Kevin Dale GRIFFIN, et ux. v. Doris John ABSHIRE, et ux.
    No. 04-0037.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      R. Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Plaintiffs/Appellants/Appellees: Kevin Dale Griffin, Ca-mila Broussard Griffin.
    J. Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Defendants/Appellants/Appellees: Doris John Abshire, Theresa Pommier Abshire.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as judge pro tempore.

   I iPETERS, J.

This appeal arises out of a dispute between neighbors over the size, ownership and use of a private road established in a 1951 act of partition. Kevin Dale Griffin and Camila Broussard Griffin (the “Griffins”), husband and wife, are the plaintiffs and defendants in reconvention in the litigation. Doris John Abshire and Theresa Pommier- Abshire (the “Abshires”), husband and wife, are the defendants and plaintiffs in reconvention. Dissatisfied with the judgment of the trial court, both sets of litigants have appealed. For the following reasons, we reverse in part, amend in part, affirm in part, and render in part.

DISCUSSION OF THE RECORD

The litigation stems from an act of partition dated September 21, 1951, dividing the community of aequéts and gains previously existing between Martial Trahan and his deceased wife, Aleñe Hebert Trahan. In that partition agreement, Martial Tra-han and his children divided both movable and immovable property. One of the properties received by Martial Trahan in full ownership was a twenty-five acre tract of land in Section 4, Township 12 South, Range 2 East, Vermilion Parish. The partition agreement described the tract by the property surrounding it rather than by metes and bounds. Of significance to this litigation is the established western boundary of the tract, the Hunter Canal. Because some of the immovable property transferred to his children lay north and west of the twenty-five acres, Martial Tra-han granted his children a thirty-foot servitude of passage along its western boundary.

[ .¿Martial Trahan died on January 21, 1971. On February 12, 1971, his children entered into an act of partition wherein they divided the twenty-five acres as well as other property. Enite Abshire acquired the west one-fourth of the twenty-five acres with the remaining three-fourths being divided among the other three children. This act of partition continued to describe the divided tracts by the property surrounding each, and not by metes and bounds. It described the west boundary of Enite Abshire’s tract as the Hunter Canal.

On November 4, 1982, Enite Abshire transferred 1.431 acres of the property she obtained in 1971 to her son, Doris John Abshire, and his wife, Theresa Pommier Abshire. The cash deed transferring the 1.431 acres described the property as:

That certain tract or parcel of ground, containing 1.431 acres, more or less, and being located in Southeast Quarter (SEfc) of Section 4, Township 12 South, Range 1 [sic] East, Vermilion Parish, Louisiana and being the same property marked “DORIS ABSHIRE & THERESA POMMIER” on a plat of survey prepared by Stephen J. Langlinai [sic], P.E., dated August 27, 1982, and attached hereto and made a part hereof.

The attached plat established the location of the 1.431 acres as a generally rectangular tract extending 370 feet north and south on the east and west boundaries and as situated north of a line approximately 760 feet north of the southern boundary of Enite Abshire’s property. The east line of the 1.431 acres corresponded to Enite Ab-shire’s east property line, but the west line fell thirty-eight feet east of her west property line along the Hunter Canal. The plat described the thirty-eight-foot parcel not transferred as a private right-of-way. Additionally, the plat extended the thirty-_jeight-foot-wide3 private right-of-way the complete length of Enite Abshire’s western boundary. In other words, the right-of-way described on the plat was eight feet wider than the servitude of passage granted in the 1951 act of partition. The deed did not transfer the Abshires any interest in the right-of-way, but simply described the right-of-way.

On June 12, 1991, or almost nine years after she sold the 1.431-acre tract to Doris John and Theresa Abshire, Enite Abshire divided the remainder of the tract, as well as other immovable property, among her children. In the act of donation transferring the property, four of her children (Hazel Abshire, Roland Abshire, Doris John Abshire, and Linus Abshire) shared the remainder of the west one-fourth of the twenty-five acres, while her remaining children received other properties. The four named children each received a lot measuring 170 feet east and west and 380 feet north and south, with Hazel Abshire acquiring the lot immediately north of Louisiana Highway 696 (the southern boundary of the original twenty-five acres); Roland Abshire acquiring the next lot; Doris John Abshire, who already owned the next lot based on the November 4, 1982 transfer, acquiring the lot immediately north of that acquisition; and Linus Abshire acquiring the northernmost lot. The act of donation described the west boundary of each lot as “the 30 foot right-of-way.” Thus, whether intentionally or by inadvertence, Enite Abshire retained ownership of the thirty-foot strip as well as her entire interest in the servitude of passage.

Kevin and Camila Griffin purchased Hazel Abshire’s tract on July 8, 1992. In the cash deed, Hazel Abshire also transferred to the Griffins “[a]ll of [her] rights, titles and interest in and to the 30 foot private road right of way which runs northerly |4along the west side of [the property transferred].” Doris John and Theresa Abshire acquired Roland Abshire’s tract on July 19,1995.

On September 5, 2001, the Griffins instituted suit against the Abshires. In their petition, the Griffins asserted an undivided ownership interest in the thirty-foot servitude of passage and asserted that the Ab-shires had constructed a fence on the thirty-foot tract in an effort to impede their use of the property, had filed criminal complaints against them for their attempted use of the property, and had trespassed on the tract that they purchased from Hazel Abshire. The Griffins sought closure of a ditch the Abshires had dug along the west boundary of their property, removal of the fence, damages, and attorney fees.

The Abshires answered the petition and reconvened for damages of their own, asserting that the Griffins had obstructed the natural drainage from their property, had prevented them from utilizing the right-of-way, and had interfered with the peaceful possession of their property.

Following a trial on the merits, the trial court entered judgment declaring the servitude of passage to be thirty-eight-feet wide, declaring that the Griffins had acquired an undivided interest in the servitude of passage and rejecting the damage demands of both parties. On appeal, the Griffins assert that the trial court erred in setting the right-of-way width at thirty-eight feet and in failing to award damages for trespass, and the Abshires assert that the trial court erred in concluding that the Griffins acquired an undivided interest in the servitude of passage.

Griffin Appeal

The 1951 act of partition described the servitude of passage as follows:

| s[Martial Trahan] ... does hereby grant, cede, and sell unto [his children], present and accepting, and to their heirs and assigns forever, a servitude of passage and way ... over the lands herein-above described and received by him.... Said Servitude of Passage and Way is to be Thirty (30) feet in width and to be located along the western boundary of [the twenty-five acres] running north and south the distance of the length of the southwest quarter of the southeast quarter of Section Four, township Twelve, south range Two East, in which it it [sic] to be taken, and then west along the southern boundary of [the property transferred to his children].

The 1971 act of partition did not mention the servitude. However, Enite Abshire’s 1991 act of donation used the eastern boundary of the thirty-foot servitude of passage as the west boundary of the property, as did Hazel Abshire’s 1992 deed to the Griffins and Roland Abshire’s deed to the Abshires. The only documentary evidence of a thirty-eight-foot right-of-way appears in the plat prepared by Stephen J. Langlinais and attached to the 1982 deed from Enite Abshire to the Abshires.

Over the objection of the Griffins, Paul Weston Trahan, the son of Rex Trahan, testified at trial that in February of 1970, Martial Trahan and his children (with the help of eight of Martial’s grandchildren) measured the twenty-five acres and staked off their proposed respective properties by placing iron pipes on the property corners. He testified that the group staked a thirty-eight-foot right-of-way and that he personally prepared a hand-drawn plat of their work. The extra eight feet, according to the witness, was necessary to accommodate four-foot ditches on either side of the proposed thirty-foot servitude of passage. The trial court allowed the introduction of the hand-drawn plat, dated February 20, 1970, into evidence over the Griffins’ objection.

Mr. Langlinais testified that he prepared the August 27, 1982 plat at the request of Doris John Abshire. In preparing the plat, he never examined the public records, never talked to Enite Abshire or any member of the Abshire family other than Doris |r,John Abshire, never determined who placed the pipes in the ground that he was to later rely upon, and relied solely upon the results of his physical survey and the assertion of Doris John Ab-shire that all of the heirs had agreed to a thirty-eight-foot right-of-way.

During the property survey, Mr. Langli-nais found a two-inch iron pipe at the intersection of a north-south fence line and the northern right-of-way of Louisiana Highway 696. He concluded that this iron pipe represented the southwest corner of Enite Abshire’s property. When he found a one-inch iron pipe thirty-eight feet east of that point, he concluded that it represented the east edge of the servitude of passage. He then found a three-fourth-inch iron pipe 149.5 feet east of that iron pipe and concluded it represented the southeast corner of Enite Abshire’s property. Using these measurements, he inserted a thirty-eight-foot right-of-way on the plat, concluding that this was the owners’ intent. He reached this conclusion despite learning at some point during the survey activity that other documents reflected a thirty-foot servitude of passage. The Griffins timely objected to this opinion testimony, and the trial court rejected the objection.

In setting the right-of-way at thirty-eight feet, the trial court stated that it was impressed with the testimony of Paul Weston Trahan and Stephen J. Langlinais. The Griffins assert that the trial court erred in considering the evidence presented by these two witnesses, and we agree.

The issue is not whether a servitude of passage exists, as all agree that such a servitude does exist. Rather, the issue involves the width of the servitude. “For a servitude to be created by title, the instrument must be express as to the nature and extent of the servitude.” Palomeque, v. Prudhomme, 95-0725, p. 8 (La.11/27/95), 664 So.2d 88, 93. Additionally, “[wjhen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. By clear and explicit language, Martial Trahan expressly set forth the nature and extent of the servitude he created in the September 21, 1951 act of partition. He granted a thirty-foot-wide servitude of passage extending north and south along the west boundary line of his twenty-five acres. The grant was separate from the transfer of the land itself. Additionally, nowhere in the 1951 act of partition does one find the mention of an additional four feet on each side of the servitude of passage to accommodate drainage.

Because the language of the 1951 act of partition was clear and explicit and leads to no absurd consequences, parol evidence was not admissible to change its terms. Therefore, the trial court erred in considering the evidence presented through the testimony of Paul Weston Trahan and Stephen J. Langlinais. Without consideration of that evidence, the record overwhelmingly establishes that the servitude of passage is thirty feet wide.

Even considering the testimony of these two witnesses, the February 20, 1970 hand-drawn plat, and Mr. Langlinais’ survey, we would reach the same conclusion. Paul Weston Trahan’s testimony concerning the four-foot drainage ditches rings hollow when one considers that both the 1951 and 1971 partition agreements identify the west boundary as the Hunter Canal, a drainage conduit in itself. The servitude of passage created by the 1951 document did not begin four feet east of the canal, but immediately adjacent to the canal. Additionally, the hand-drawn plat was prepared almost one year before the 1971 act of partition. Not only did that document not refer to the hand-drawn plat, but Martial Trahan had since died and was not a party to the |Ragreement. The document specifically corresponds to the 1951 partition agreement in that it also describes the west boundary as the Hunter Canal.

Mr. Langlinais’ testimony is no less suspect. The guides for evaluating a boundary question have long been recognized by the courts of this state as follows:

[T]he legal guides for determining a question of boundary, or the location of a land line, in order of their importance and value, are: (1) Natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity. But the controlling consideration is the intention of the party or parties. ... Monuments of the character mentioned are allowed to control, for the reason that in cases where the line is uncertain, but approximately in a given location, these guides are more permanent and possess less of the possibilities of error incident to courses, distances, and area; but when the basis for the rule ceases, as where, admittedly, the monument does not meet the calls of the deeds, then it cannot control, and must give way to the weaker guides.

Meyer v. Comegys, 147 La. 851, 857-59, 86 So. 307, 309 (1920) (emphasis added); see also Boudreaux v. Shadyside Co., 111 So.2d 891 (La.App. 1 Cir.1959).

Not only do the artificial monuments accepted by Mr. Langlinais not correspond to the 1951 act of partition establishing the servitude of passage, but his acceptance of 149.5 feet as the extent of Enite Abshire’s southern boundary does not correspond to the act of donation wherein Enite Ab-shire’s children acquired their interest in her property.

For the reasons set forth above, we reverse the trial court’s determination that the right-of-way in question constituted a thirty-eight-foot right-of-way. We enter judgment declaring a thirty-foot right-of-way as provided for in the partition agreements previously described.

Abshire Appeal

|9The Abshires assert in their appeal that the trial court erred in recognizing the Griffins’ undivided interest in the servitude of passage. They base this assertion on the lack of evidence in the record concerning Hazel Abshire’s interest in En-ite Abshire’s estate.

At the beginning of trial, the parties stipulated that Enite Abshire died on January 3, 2000, but the parties presented no other evidence concerning the disposition of her estate. The Griffins assert in brief that it is not disputed that Enite Abshire died intestate and that Hazel Abshire is one of her forced heirs. However, the record does not support this argument, and the Abshires make no concessions on these issues in brief. Still, the record does establish that if Enite Abshire died intestate, Hazel Abshire was one of seven children and is therefore an heir.

Louisiana Civil Code Article 871 provides in part that “[sjuccession is the transmission of the estate of the deceased to his successors.” Additionally, “[s]uccession occurs at the death of a person.” La.Civ.Code art. 934. Acquisition of ownership of the deceased’s estate by an heir occurs “[ijmmediately at the death of the decedent.” La.Civ.Code art. 935. Therefore, Hazel Abshire became the owner of any -property rights she inherited from her mother immediately upon the death of En-ite Abshire. “[W]hen a vendor sells property which he does not own and later acquires title, ownership immediately vests in the buyer. This concept is known as the doctrine of after acquired title.” Mayo v. Simon, 94-590, p. 3 (La.App. 3 Cir. 11/2/94), 646 So.2d 973, 975.

We must agree with the Abshires that there is insufficient evidence to establish that the Griffins acquired an ownership interest in the thirty-foot servitude of passage. However, the evidence does establish that they acquired whatever ownership in the hnthirty-foot servitude of passage that Hazel Abshire may have acquired as a result of her mother’s death. We amend the trial court’s judgment to that effect.

Damages

As a part of their appeal, the Griffins assert that a reversal of the trial court’s judgment concerning the width of the servitude of passage would revitalize their claim for damages. We agree, and, because the record is complete before us, we address that issue rather than remand it to the trial court.

The evidence is uncontradicted that the Abshires have consistently harassed the Griffins over the servitude of passage as well as the boundary dispute since at least 1999. Kevin Griffin testified that the Ab-shires dug a ditch without his permission along the west portion of his property exactly eight feet east of the west boundary line of the thirty-foot servitude of passage for the specific purpose of prohibiting him from accessing his property from the servitude of passage. Additionally, each time that he would walk across the servitude of passage for any purpose, the Ab-shires would complain to the law enforcement authorities that he was trespassing. According to Kevin Griffin, this occurred at least fifteen times between late 1999 and his filing suit.

Kevin Griffin also complained that the Abshire family ceased driving on the road situated on the thirty-foot strip along the west property line and began using only the eight feet east of that existing road. This assertion was supported by the testimony of Lawrence and Flo Dartez, neighbors who lived immediately south of Louisiana Highway 696 from the Griffins’ property. According to Lawrence Dartez, approximately four to five years before the trial, the Abshires began driving In exclusively down the eight-foot strip. A photograph of the servitude’s intersection with Louisiana Highway 696 supports the testimony as it shows clearly an attempt by those using the servitude of passage to concentrate only on the easternmost portion despite the existence of a roadway to the west of the area now being used. The Abshires presented no evidence to contradict these assertions.

“A trespass occurs when there is an unlawful physical invasion of the property or possession of another person.” Harrington v. Abshire, 98-1651, 98-1652, p. 7 (La.App. 3 Cir. 3/31/99), 732 So.2d 677, 682. Additionally,

In an action for trespass, it is incumbent upon the plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass. Bell v. Sediment Removers, Inc., 479 So.2d 1078 (La.App. 3 Cir. 1985), writ denied, 481 So.2d 1350 (La. 1986). The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence. Id. One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience. Ard v. Samedan Oil Corp., 483 So.2d 925 (La.1986). Mental anguish does not result of necessity from a trespass or the encroachment on a person’s property; even though mental anguish may be compensable, it must be proven with sufficient evidence. Bell, 479 So.2d 1078. However, mental anguish does not require proof that medical or psychiatric care was required as a result of the incident, but minimal worry and inconvenience should not be compensated. Phillips v. Town of Many, 538 So.2d 745 (La.App. 3 Cir.1989).

Id.

In their petition, the Griffins sought closure of the ditch, removal of the fence, and damages, but on appeal they seek only an award of damages. We find that the record supports an award of damages in the amount of $10,000.00.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s determination that the right-of-way in question measured thirty-eight rather than thirty feet, amend the judgment to provide that the Griffins acquired whatever interest in the thirty-foot | ^servitude of passage that Hazel Abshire may have acquired as a result of her mother’s death, and render judgment awarding the Griffins $10,000.00 in damages. We affirm the judgment in all other respects and assess costs of this appeal to Doris John Abshire and Theresa Pommier Ab-shire.

REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART; AND RENDERED IN PART.

      . Aleñe Hebert Trahan died on January 12, 1951.

      . The children were identified in the act of partition as Elier Trahan, husband of Ella Broussard; Edmee Trahan, wife of Harrison Marceaux; Rex Trahan, husband of Nellie Labrie; and Enite Trahan, wife of Lennis Abshire.

      . In the act of partition, the children were identified as Edmay (Edmee) Trahan, wife of Harrison Marceaux; Elier Trahan, husband of Ella Broussard; Rex Trahan, husband of Nellie Labry (Labrie); and Anite (Enite) Tra-han, widow of Lanest (Lennis) Abshire.

      . Mrs. Abshire was referred to in the February 12, 1971 partition as "Anite Abshire." However, in the September 21, 1951 act of partition and in later deeds, she was referred to as "Enite Abshire.” For consistency in this opinion, we will refer to her as "Enite Ab-shire."

      . The Griffins also named the unopened succession of Enite Trahan as a party defendant. However, there has been no appearance on behalf of the succession.

      . The act of donation, as well as the hand-drawn plat attached to the instrument, establishes that measurement at 170 feet.

      . While Doris John Abshire claims as authority for digging the ditch the thirty-eight-foot servitude of passage, we note that he had no ownership interest in the servitude of passage until the death of his mother.


author: hPETERS, J.

text:
    STATE of Louisiana v. Kenry James LEWIS.
    No. 2004-0020.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      Michael Harson, District Attorney, Keith A. States, Asst. District Attorney, Lafayette, LA, for Plaintiff/Appellee: State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant: Kenry James Lewis.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as judge pro tempore.

   hPETERS, J.

The defendant, Kenry James Lewis, pled guilty to first degree murder, a violation of La.R.S. 14:30. However, in doing so, he reserved his right pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court rulings on pretrial motions. After the trial court sentenced the defendant, he appealed his conviction, asserting that the trial court erred in refusing to grant his motion to suppress certain items of clothing. For the following reasons, we affirm the conviction in all respects.

The State of Louisiana (state) and the defendant reduced to writing the factual basis for the plea. With regard to the offense itself, the document stated the following:

On September 27, 2001, at approximately 11:20 PM, the defendant, using his cell phone, called and placed an order with the Domino[’s] Pizza located on the Evangeline Thruway, in Broussard, LA. The defendant ordered the delivery of pizza to the location of 609 Austin Road, Youngsville, LA. At approximately 11:48 PM, a call was made from Domino’s Pizza to the defendant’s cell phone to confirm the order and delivery. At approximately 11:50 PM, the victim, Tiffany Ann Ulmer, left the Domino’s Pizza in her car, marked with a Domino’s Pizza sign, to make the delivery of the pizza ordered by the defendant to the location designated by the defendant, 609 Austin Road, Youngsville, LA.
At approximately midnight September 27-28, 2003, Tiffany Ulmer arrived in the driveway at 609 Austin Road, Youngsville, LA, where the defendant was awaiting. A violent encounter ensued between the defendant and the victim, causing the defendant to drop the cell phone he had used to place the order; the defendant dropped his cell phone in the driveway. The defendant’s cell phone was found by the police upon investigating the disappearance of the victim.
During this violent encounter, the victim resisted and inflicted an injury to the defendant’s eye. During this violent encounter, the defendant pulled hair from its roots from the victim’s head. During this violent encounter, the defendant took physical control of the victim and of her car. The defendant forcibly seized the victim and carried her utilizing her car from that driveway at 609 Austin Road, Youngsville, La. to an area to the rear of 609 Austin Road, Youngs-ville, LA. Thereafter, the defendant physically injured and sexually abused the victim. The victim’s face and skull were fractured. The victim’s shoulder and ribs were broken.
The victim resisted to the utmost but was overcome by the force of the attack by the defendant. The defendant then drove the victim’s 1 ?car, with the victim incapacitated, out of the area of the rear of 609 Austin Road. A short distance away, the defendant discarded the Domino’s Pizza sign from the top of the victim’s car. The police found the discarded sign on the side of the road upon investigating the disappearance of the victim. The defendant carried to [sic] the dead or dying victim to a remote location in the middle of a sugar cane field where the defendant buried the body of the victim. The victim was killed when the defendant had specific intent to kill or to inflict great bodily harm and was engaged in second degree kidnapping, aggravated rape, or forcible rape.
Strands of the pulled hair of the victim were found in the pockets of the defendant. DNA from the roots of the pulled hair found in the pockets of the defendant were matched to DNA from the victim. A tooth from the remains of the victim were [sic] also matched to DNA from the victim.
After leaving the victim buried in a remote sugar cane field, the defendant drove the victim’s car to another remote location and set fire to it. The defendant then walked to a friend’s home nearby and obtained a ride from that friend back to 609 Austin Road, Youngs-ville, LA. When they arrived there and saw the police who had arrived to search for the missing victim, the defendant instructed his friend not to tell the police that he had seen the defendant.
Later, the defendant returned to the site of the victim’s body and set fire to the remains. After the remains had been burned, the defendant covered the remains with debris from the sugar cane field. On or about December 4, 2001, the victim’s remains were discovered. Her identity was confirmed by dental records and a comparison of DNA.

The clothing containing the victim’s hair was seized by law enforcement officers in the search of an old house located on the 609 Austin Road property. The defendant attempted to have this evidence suppressed in a pretrial motion which the trial court rejected.

There exists little factual dispute surrounding the search and seizure of the clothing. Eddie Lewis, Sr., the defendant’s father, owns the immovable property described as 609 Austin Road. His residence faces the street in front of the property and is connected to the street by a concrete driveway. Mr. Lewis’ land contains other out-buildings, including an old house located on the rear of the property, where Mr. Lewis allowed a Mexican farm worker named Mendez to live rent free.

| aDeputy Keith Thomas Reed arrived at Mr. Lewis’ residence to investigate Tiffany Ulmer’s disappearance at approximately 2:00 a.m. on September 28. He immediately found a pack of cigarettes and a cellular telephone with the battery detached, lying on the driveway in such a way as to suggest to the deputy that a struggle had ensued at that location in the immediate past. When he reattached the battery to the cellular telephone, the defendant’s name and the cellular telephone number immediately appeared bn the display screen. Deputy Reed then confirmed with other investigating officers that this cellular telephone had been used to make the Domino’s Pizza order, resulting in Ms. Ulmer leaving to deliver a pizza to the Austin Road address.

Deputy Kyle Ipson arrived at the Austin Road address at approximately the same time as Deputy Reed. After obtaining additional information concerning the victim, Deputy Ipson began checking the area in an attempt to locate the victim’s missing vehicle. During his search of the area, he recovered a Domino’s Pizza sign, which had been attached to the victim’s vehicle when she left for the delivery. The sign had been discovered in Vermilion Parish, approximately one to one and one-half miles from the Austin Road address. He then returned to the Austin Road address, where he and Deputy Reed remained until they were joined, at approximately 7:00 a.m., by Detectives John Babin and Terence Olivier.

When Detective Babin arrived, he encountered a farm hand who informed him that the old house behind the principal residence was occupied by “someone.” Hoping that they might find the victim, or information about her, Detectives Babin and Olivier, together with Deputies Reed and Ipson, proceeded to the back of the ^property. They found the front door of the old house open, and after announcing their presence and receiving no response, the officers entered the house.

The officers quickly found the defendant asleep on a bed in a back room. After waking him, the officers patted him down for weapons, and Deputy Ipson obtained permission from the defendant to cheek the immediate area for weapons. Deputy Ipson then checked the bed where the defendant had been sleeping. In doing so, he lifted the upper mattress and observed the clothing, which would later be the subject of the seizure, lying between the mattresses. Because he was looking for weapons, Deputy Ipson did not secure the clothing at that time.

When questioned by Detective Babin about his presence in the house, the defendant told the detective that he did not live there and that his father allowed a Mexican farm hand to live in the house. Concerning the cellular telephone, the defendant informed Detective Babin that he had dropped it on his father’s driveway the night before. At this point, Detective Ba-bin advised the defendant of his Miranda rights and asked him to accompany the officers to the sheriffs office for further questioning. Detective Babin did not place the defendant under arrest at this time. At this point, the officers escorted the defendant outside of the house, and Deputy Reed transported him to the sheriffs office.

Detective Babin then spoke to Eddie Lewis, Sr., who told the detective that his son did not live in the old house, was not supposed to be there, and that he allowed Mr. Mendez to live there rent free. At the request of Detective Babin, Mr. Lewis gave written permission to search the 1 sold house. This occurred at approximately 8:10 a.m. Detective Babin also contacted Mr. Mendez and obtained his permission to search the house as well. The officers then reentered the old house and seized the clothing that Deputy Ipson had previously seen under the mattress.

In his sole assignment of error, the defendant asserts that the law enforcement officers, initially, did not have probable cause to enter the residence and question him and that the consent to search granted by his father and Mr. Mendez was not valid as to him.

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983) and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213.

State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La.5/28/99), 743 So.2d 658.

The right to be protected from unreasonable searches and seizures at the hands of law enforcement officers is protected by both the federal and state constitutions. U.S. Const, art. IV; La. Const, art. I, § 5. With regard to warrantless searches, the supreme court has held in State v. Brisban, 00-3437, p. 4 (La.2/26/02), 809 So.2d 923, 927:

Warrantless entries into the home for arrest or seizure are invalid in the absence of exigent circumstances. Pay- ton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Fourth Amendment has drawn a firm line at the entrance to the home, and a police officer therefore needs both probable cause to arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into a private premises. State v. Talbert, 449 So.2d 446 (La.1984); State v. Hathaway, 411 So.2d 1074 (La.1982).

Exigent circumstances include situations where law enforcement officers have reasonable grounds to protect the lives of others, the entry and search is not motivated by an intent to arrest someone or to seize evidence, and there is a reasonable basis to | fiassociate an emergency with the area to be entered and searched. State v. Kirk, 00-190 (La.App. 4 Cir. 11/13/02), 833 So.2d 418, writ denied 02-3079 (La.5/9/03), 843 So.2d 394, (citing Roska v. Peterson, 304 F.3d 982 (10th Cir.2002), abrogated in part on other grounds, 328 F.3d 1230 (10th Cir.2003)). As stated in Kirk: “The United States Supreme Court has defined exigent circumstances as ‘a plausible claim of specially pressing or urgent law enforcement need.’ See Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001).” Id. at 420.

In rejecting the defendant’s motion to suppress, the trial court obviously concluded that both probable cause and exigent circumstances existed for the initial entry into the older structure, which resulted in the discovery of the defendant asleep in the bedroom. We agree with the trial court’s conclusion.

Given all of the information known to the investigating officers on the morning of September 28, 2001, it is clear that they had reasonable grounds to believe that there was an immediate need to protect the life of Tiffany Ulmer, if at all possible. She had been missing since 11:50 p.m. the day before, and all of the evidence available to the officers on the morning of September 28 pointed to foul play. Certainly, time was of the essence in the investigation. Both Deputy Ipson and Detective Babin stressed that their entrance into the house, where the defendant was sleeping, was motivated by their desire to obtain information concerning the missing victim and not to make an arrest or to seize evidence. Given the surrounding circumstances, and especially the information given to Detective Babin that “someone” was in the old house, the officers had a reasonable basis, if not probable cause, to associate an emergency situation with the occupied house. When Deputy Reed first arrived at 609 Austin Street, the last place the victim was supposed to have |7been, he found signs of a struggle and the defendant’s cellular telephone. Thus, we conclude that the investigating officer had sufficient exigent circumstances and probable cause to enter any buildings at 609 Austin Street for the purpose of attempting to locate the victim.

The defendant also argues that the clothing had already been seized before the officers gained the consent of Mr. Lewis and Mr. Mendez. This argument is based on the conflicting testimony of Detective Babin and Detective Olivier. While Detective Babin testified that the clothing had not been removed from under the mattress until he gained permission from Mr. Lewis and Mr. Mendez, Detective Olivier testified that the clothing had been removed from under the mattress and placed on top of the bed, where it remained until consent was obtained from both men. Even assuming Detective Olivier’s recollection of the events of the seizure to be accurate, the movement from under the mattress to the top of the mattress would have no effect on the seizure.

“A seizure occurs when ‘there is some meaningful interference with an individual’s possessory interests’ in the property seized.” Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985), (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). In this case, the officers did not remove the clothing from the premises until Detective Ba-bin obtained the consent of Mr. Lewis and Mr. Mendez. By that time, the defendant had been transported to the sheriffs office. Thus, there could be no interference with his actual possession because he did not have actual possession. Additionally, because, at most, the evidence shifted only location with regard to the mattress and never actually left the |spremises, there was no interference with the defendant’s constructive possession of the clothing pri- or to the officers receiving consent to search.

The defendant also asserts that the consent from Mr. Lewis and Mr. Mendez was not sufficient to search a room where he was found. With regard to warrantless searches with consent, the supreme court has held:

It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States Constitutions. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Dowling, 387 So.2d 1165 (La.1980); State v. Wilkerson, 367 So.2d 319 (La.1979); State v. Wagster, 361 So.2d 849 (La.1978); State v. Mitchell, 360 So.2d 189 (La.1978). Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). This common authority stems not so much from one’s property interest, “... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of the number might permit the common area to be searched.” Matlock, supra, 94 S.Ct. at 993, fn. 7.

State v. Bodley, 394 So.2d 584, 588 (La. 1981).

Mr. Mendez testified that the defendant would shower and spend the night in his house on occasion. Additionally, the defendant left work uniforms in the house at times. The bedroom where the defendant would stay had no lock, and Mr. Mendez had full access. Thus, there was no area of privacy given to the defendant in Mr. Mendez’s house, and he stayed at the sole discretion of Mr. Mendez. Thus, we find that Mr. Mendez could give his consent to search the entire house. See State v. Gomez, 01-717 (La.App. 5 Cir. 11/27/01), 802 So.2d 914; State v. Melbert, 94-140 (La. App. 3 Cir. 11/30/94), 649 So.2d 740; State v. Evins, 626 So.2d 480 (La.App. 3 Cir. 1993).

^DISPOSITION

We affirm the defendant’s conviction in all respects.

AFFIRMED.

      . All of the law enforcement officers identified in this opinion were employees of the Lafayette Parish Sheriff's Office.