author: I .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Raymond E. MELANCON.
    No. 03-KA-514.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, District Attorney District, Andrea F. Long, Terry Boudreaux, Bradley R. Burget, Assistant District Attorneys, Gretna, LA, for Appellee.
    Holli Herrle Castillo, Marrero, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   I .MARION F. EDWARDS, Judge.

Defendant appeals Ms conviction for possession with intent to distribute cocaine. For the following reasons, defendant's conviction is affirmed.

On December 4, 2001, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Raymond Melancon, with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). Melancon was arraigned on December 27, 2001, and entered a plea of not guilty.

On May 7, 2002, the trial court heard and denied a defense motion to suppress the evidence. Trial commenced that day. After a jury was selected and sworn, Me-lancon expressed his intention to withdraw his plea of not guilty and enter a guilty plea. The trial judge questioned Melancon with regard to his background, age, education, and general competency. The judge further instructed Melancon as to the nature of the offense to which he was pleading guilty, and the sentencing range to which he would be exposed.

jsThe court advised Melancon of his right to trial by jury and confrontation, and his privilege against self-incrimination. Melancon indicated he understood those rights, and that he wished to waive them and enter a guilty plea. Melancon and his attorney completed a waiver of rights/guilty plea form. The trial court accepted Melancon’s plea as knowing and voluntary. As part of the plea bargain, the State agreed to refrain from filing a habitual offender bill.

The judge sentenced Melancon to eight years at hard labor, the first two years of which would be served without the benefit of parole, probation or suspension of sentence. The judge directed that the sentence be served concurrently with any other sentence defendant was serving. Melancon orally noticed his intention to appeal the trial court’s denial of his motion to suppress under State v. Crosby.

Facts surrounding the charged offense were adduced at the hearing on Melan-con’s motion to suppress evidence. Additionally, the record includes the police incident report prepared by Detective Tod Vignes. The report was not introduced as evidence at the motion hearing, but it is marked as Defense Exhibit 1. Paragraph 12 of defendant’s guilty plea form states, “Would you explain to the court the factual circumstances surrounding this crime?” The handwritten response, initialed by defendant, is, “Submit to Police Report.”

Detective Tod Vignes of the Jefferson Parish Sheriffs Office testified that, on November 11, 2001, he received a tip from a confidential informant. The informant stated that a drug transaction would take place within ten minutes in the parking lot of Rainbow Lanes bowling alley on Manhattan Boulevard in Harvey. The informant described the men and the cars that would be involved |4in the transaction.

When Vignes arrived at the scene, he saw defendant, Raymond Melancon, meeting with a second man. Melancon walked away from the other man and toward a white Ford Probe automobile. Melancon and the car fit the informant’s description. Melancon stood beside the open door on the driver’s side of the car, and moved his hand from the pocket of his jacket to the inside handle of the door. Melancon then sat inside the car and closed the door. Vignes approached the car and saw that there were three people inside with Melan-con.

Vignes asked Melancon to exit the car, and Melancon complied. The officer placed Melancon in handcuffs and performed a pat-down search of his outer clothing for weapons, but did not find any. Backup officers arrived, and they ran a criminal history check on Melancon and his three companions. One of the men had an outstanding attachment, and the others had prior drug arrests. Vignes arrested the man who was wanted on the attachment, and found marijuana on his person in a search incident to arrest. Some other individuals in the area were temporarily detained, but were not arrested. Vignes called a K-9 officer to the scene. An officer arrived with a dog, and they surveyed the outside of the Ford. The dog alerted to the driver’s side door of the car. Vignes searched the interior of the car, and recovered a bag of crack cocaine from the driver’s side door handle. Melancon was then placed under arrest.

Melancon testified that he was simply at the bowling alley to socialize with his friends. He was having trouble with his car, and was about to look under the hood for the source of the problem, when several police officers surrounded him. R Detective Vignes drew his gun and said, “Here, got a stolen car.” Melancon attempted to show Vignes the car’s registration in order to verify his ownership, but the officer did not acknowledge his protestations. Vignes searched Melancon’s clothing and said, “Here you go, crack cocaine.” Vignes placed Melancon in handcuffs and told him and his companions to lie on the ground.

Detective Vignes demanded to know where the rest of the drugs were. He and other officers looked inside of the Ford, but did not find any contraband. A dog arrived and inspected the car. The officers recovered about seven grams of crack cocaine. Melancon denied that he was in the parking lot to participate in a drug transaction. He testified there was no cocaine in the car prior to the police search, and that Vignes planted the cocaine on his person and in the car.

In his lone assignment of error, Melan-con complains the investigatory stop conducted by Detective Vignes was invalid, arguing that the officer acted upon an uncorroborated tip from an unidentified informant, and, therefore, the evidence seized pursuant to that stop should have been suppressed. Melancon does not challenge the sufficiency of the evidence as to the element of distribution.

The Fourth Amendment to the United States Constitution and Article I, Section V of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal behavior is recognized by state and federal jurisprudence. The Terry standard is codified in LSA-C.Cr.P. art. 215.1, which allows a police officer “to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense” and to demand that the person identify himself and explain his actions.

| RReasonable suspicion for an investigatory stop is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Absent reasonable suspicion, an investigatory stop is illegal, and the evidence seized is suppressible.

An informant’s tip may provide reasonable suspicion for an investigatory stop if it accurately predicts future conduct in sufficient detail to support a reasonable belief that the informant had reliable information regarding the suspect’s illegal activity. The ability to predict the suspect’s future behavior goes to the informant’s reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. The sufficiency of such a tip under Terry is determined by the reliability of its assertion of illegality, and not just its tendency to identify a determinate person.

Sufficiency of an informant’s tip must be considered under the totality of the circumstances. Corroboration of details of an informant’s tip by an independent police investigation is valuable when applying the totality of the circumstances analysis.

The stop in this case was instigated by a telephone call Detective Vignes received from a confidential informant. Vignes testified he had worked with the informant for six years, and that information from this individual had led to many narcotics arrests. In Vignes’ opinion, the informant had proven himself to be reliable. The informant described a narcotics transaction that would take place in 17ten minutes in the parking lot of Rainbow Lanes on Manhattan Boulevard. Vignes testified the descriptions and information were specific, that the informant predicted future activities, and that he (Vignes) was able to corroborate it through his investigation.

The informant told Vignes that a black male driving a white Ford Probe automobile would meet with a second black male driving a gray car, and the two would conduct a transaction in the parking lot. Melancon would supply the cocaine, and the other individual would purchase it. While the officer was en route to the specified location, the informant called him again to say that' the parties were already in the parking lot. When Vignes arrived at the parking lot, he saw Melancon meeting with another man. Melancon walked away from the second individual, and stood at the open driver’s side door of the Ford. Vignes testified that the vehicles and individuals he saw at the scene matched the description the informant had given him.

Vignes saw Melancon make a hand motion from his jacket pocket toward the interior door handle of the Ford. The officer testified that he believed Melancon had either put something into his pocket or taken something out of it. Vignes approached the ear and identified himself as a police officer. At that time, Melancon sat in the driver’s seat, closed the car door, and turned on the ignition. There were three other people inside the car. Vignes asked Melancon to take the keys out of the ignition and get out of the car, because he was concerned that Melancon would leave the scene. Melancon complied, and the officer performed a pat-down search of Melancon’s outer clothing for weapons, as sanctioned by LSA-C.Cr.P. art. 215.1. No weapons were recovered.

Based on the foregoing, we find that Detective Vignes had reasonable suspicion to justify an investigatory stop under Terry. The officer’s actions were | «based on information from an individual whom he knew to be reliable. Vignes’ surveillance of defendant was brief, but he was able to observe that Melancon fit the description the informant had given him, and Melancon’s actions corresponded with the informant’s assertion that he would be selling cocaine in the parking lot. In Alabama v. White, supra, the Supreme Court stated that a tip predicting future behavior can be reliable when it demonstrates, “inside information — a special familiarity with respondent’s affairs.” In this case, the informant knew Melancon by name, was able to detail where and how, and when the criminal activity would occur, and accurately described those involved in the illegal activity.

Melancon argues that Vignes’ surveillance was insufficient, and that he did not witness any activity that could be construed as an illegal transaction. On the contrary, Vignes observed some sort of exchange between Melancon and the second person, and saw Melancon furtively place something in the handle of his car door.

In State v. Nelson this Court affirmed the trial court’s denial of the defendant’s motion to suppress the evidence, as well as the defendant’s conviction for possession of cocaine. In that case, police officers learned from an informant about drug activity in the Bon Soir Motel, room 59, in Westwego. One of the officers testified that the informant had provided information in the past that had led to arrests and convictions. The informant told the officers that a subject named “Tony” and a Pontiac Grand Am rental car were involved. Officers went to the motel and observed a car meeting that description. During the investigation, the officers also learned that the defendant had rented the car and room 59. One of the officers learned that the car would be at the McDonald’s Restaurant on Stumpf 19Boulevard in Gretna, and that it contained a large amount of cocaine. Officers set up a surveillance at the McDonald’s and waited for the car.

When the officers saw the described car in the restaurant’s parking lot, they approached it and identified themselves as police. Defendant, who was sitting in the car’s passenger seat, exited the vehicle, along with the car’s driver. A pat-down search of the defendant’s person revealed no weapons. Defendant took a bag of crack cocaine from inside her bra and gave it to officers. This Court found that the confidential informant’s tip was sufficient to establish reasonable suspicion to justify the stop, because the information given by the informant was sufficiently corroborated by the information the officers obtained through the surveillance.

Defendant further argues that, by handcuffing him, Detective Vignes went beyond the scope of LSA-C.Cr.P. art. 215.1, and that the officer’s actions constituted an illegal arrest. The courts have found that an officer’s handcuffing a suspect prior to an article 215.1 pat-down for weapons is acceptable where the officer’s concern for safety is reasonable under the circumstances. In State v. Broussard, the supreme court stated:

Like an arrest, an investigatory stop entails a complete restriction of movement, but for a shorter period of time. See United States v. Merritt, 736 F.2d 223, 229 (5th Cir.1984); State v. Bailey, 410 So.2d 1123, 1125 (La.1982). However, brevity alone does not always distinguish investigatory stops from arrests, as the former may be accompanied by arrest-like features, e.g., use of drawn weapons and handcuffs, which may, but do not invariably, render the seizure a de facto arrest. See United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir.1998) (“There is no question that the use of handcuffs, being one of the most recognizable indicia of a traditional arrest, ‘substantially aggravates the intrusiveness’ of a putative Terry stop. Thus, when the government seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, it must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.”) (citations omitted)[.] ...

|inIn the instant case, Vignes handcuffed defendant before performing a pat-down search because backup officers had not yet arrived, and the fact that he detained a total of six individuals caused him to be concerned for his safety. Moreover, he wanted to prevent Melancon from getting back into his car and fleeing the scene. He testified that it is not uncommon for an officer to place a suspect in handcuffs before searching him. The “detention” was a brief one, as the K-9 officer arrived at the scene ten minutes after Vignes placed defendant in handcuffs.

We therefore find, based on the foregoing, that handcuffing Melancon in this case did not rise to the level of arrest. Rather, the action was authorized under LSA-C.Cr.P. art. 215.1(B) for purposes of performing a limited pat-down for weapons.

Melancon also contends that the officers did not have probable cause to conduct the automobile search that led to the discovery of the cocaine. We disagree.

When backup officers arrived at the scene, Melancon’s companions were taken from the Ford and handcuffed for security reasons. Detective Vignes ran the names of defendant and his companions on the police computer system, and determined that all of them had drug arrest records. One of the men had an outstanding attachment, and he was placed under arrest. That man was discovered to be in possession of marijuana. It appears that the men’s criminal records, along with what Detective Vignes knew at that point, gave the officers a basis for enlarging the scope of the initial stop. When a K-9 officer, Sergeant Bujol, arrived at the scene, he and a drug detection dog scanned the outside of the car. The dog alerted to the driver’s side door, through which defendant had exited. Detective Vignes testified that he believed the tip from the informant, the actions l^he had himself witnessed, and the dog’s behavior gave him probable cause to search the car. A search of the interior of the car uncovered a bag of crack cocaine in the driver’s side door handle.

In State v. Lopez, the Louisiana Supreme Court found that a drug detection dog’s sniffing around the exterior of a vehicle following a valid traffic stop did not itself constitute a search and that the dog’s subsequent alert, along with the defendant’s nervous demeanor, gave officers probable cause to search for contraband.

We find that, based on the holding in Lopez, the officers in the instant case were justified in allowing the drug detection dog to inspect Melancon’s car, and that the dog’s alert, along with the surrounding circumstances, was sufficient to support probable cause for a search. Accordingly, we find Melancon’s assignment of error to be without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Welland. The review reveals no errors patent in this case.

Accordingly, based on the foregoing, the defendant’s conviction is affirmed.

AFFIRMED.

      . No written motion to suppress evidence is found in the record.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . 338 So.2d 584 (La.1976).

      . The police report, in part, provides: The informant stated that a black male subject intended to deliver a quantity of crack cocaine to another black male subject in the parking area of the Rainbow Lanes ... within the next ten minutes. The informant stated that the black male requesting the crack cocaine was standing in the parking area of the bowling alley wearing a brown shirt with a tiger design on it and was in a Gray car. The black male delivering the cocaine was going to be driving a white Ford Probe. The informant stated the black male requesting the cocaine stated that he was negotiating the deal for another individual who would have to arrive with the money to make the purchase. (Defense Exhibit 1, p. 1).

      . State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Mercante, 02-712, p. 4 (La.App. 5 Cir. 12/30/02), 836 So.2d 596, 599.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, supra; State v. Williams, 98-1006, p. 9 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, wit denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80.

      . Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990); State v. Smith, 00-1838, p. 1 (La.5/25/01), 785 So.2d 815, 816 (per curiam).

      . Alabama v. White, supra.

      . Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000).

      . Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

      . State v. Raheem, 464 So.2d 293, 296 (La.1985).

      . Vignes testified that the informant did not tell him defendant would be accompanied by three other people.

      . 496 U.S. at 332, 110 S.Ct. at 2417.

      . 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, writ denied, 02-2090 (La.2/21/03), 837 So.2d 627,

      . State v. Nelson, 02-65 at p. 8, 822 So.2d at 803.

      . 00-3230, pp. 3-4 (La.5/24/02), 816 So.2d 1284, 1287,

      . See, State v. Lopez, 00-0562, p. 5 (La.10/30/00), 111 So.2d 90, 93.

      . 00-0562 at p. 6, 772 So.2d at 93

      . See also, State v. Romsky, 01-1067, p. 11 (La.App. 5 Cir. 4/10/02), 817 So.2d 186, 192.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).


source: Caselaw Access Project

author: |,THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Veriniece J. CUNY v. Frank QUINN.
    No. 03-CA-649.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      See also 620 So.2d 1168 and 762 So.2d 261.
    Robert G. Harvey, Sr., Kelly A. Loisel, New Orleans, LA, for Plaintiff/Appellant.
    Patricia S. LeBlanc, Nicole M. Tomba, Metairie, LA, and Sarah Ney Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   |,THOMAS F. DALEY, Judge.

Plaintiff/Appellant, Veriniece Cuny (Cuny), appeals the trial court’s judgment finding in favor of defendant, Frankie Mae Quin (Quin), recognizing defendant’s physical possession of a portion of the alleyway between their properties. We affirm.

This case concerns ownership of a portion of an alleyway in Bonnabel Place Subdivision. The ownership of the alleyways in Bonnabel Place Subdivision has long been the subject of litigation. Plaintiff, Cuny, owns two contiguous lots (the Cuny property) that front Veterans Highway near the intersection with Bonnabel Boulevard. Her parents bought the property in 1952, and sold it to her in 1978. It was vacant until 1980, when she leased it to Mighty Muffler, who built a muffler shop on the property and also enclosed it with a wooden fence, cutting off its access to the alleyway. Cuny’s property backs up to a disputed portion of the alleyway, which runs down the side of defendant, Frankie Mae Quin’s, property. Quin’s parents bought their property in 1952, which fronts Bonnabel Boulevard. |3After their deaths, Frankie Mae Quin became full owner of the property, which is residential.

In 1994, Cuny responded to an advertisement in the Times Picayune from Bon-nabel Properties, who offered to sell portions of the alleyways to adjacent property owners. On January 11, 1994, Cuny purported to purchase from Bonnabel Properties, for $2,496.00, the portion of the alleyway that ran behind her property and along side of the Quin property, a strip of land approximately 12 feet wide by 104 feet long, designated as alleyway 5A-5B-6A-6B. She recorded her purchase in the public records and presented evidence that she has paid taxes on the alleyway since the purchase.

This litigation arose in 1996 when Quin built a fence immediately behind the existing dilapidated fence first erected by Mighty Muffler in 1980. The original 1980 fence had the effect of separating the Cuny property from the alleyway and enclosing the alleyway, along one side, within the Quin property. Cuny filed suit against Quin, styled a Petition for Possession, but sought to be found in possession of the alleyway and to evict Quin. The petition also complained that Quin refused to recognize Cuny’s ownership of the disputed alleyway. Cuny filed a Supplemental Petition alleging possession of the disputed alleyway by virtue of her ownership, i.e. her purchase of the alleyway from Bonna-bel Properties.

Quin filed a Reconventional Demand, alleging that for one year prior to Cuny’s recordation of her purchase, Quin had been in peaceable and continuous possession of the disputed property. The Recon-ventional Demand asked that Quin’s right to possession be recognized and her peaceable possession maintained.

At a summary judgment hearing in these proceedings, Cuny confessed Quin’s possession of the disputed alleyway, converting Cuny’s possessory action to a peti-tory action. The parties agreed that ownership of the property would be litigated at trial.

|4At trial on the merits, Cuny asserted ownership of the alleyway by virtue of her purchase from Bonnabel Properties, whereas Quin claimed ownership by virtue of 30 years acquisitive prescription. The trial court’s judgment found that Cuny failed to bear her burden of proof regarding ownership. The court found that she did not prove that Bonnabel Properties either owned the property in question or that it purported to represent all of the Bonnabel heirs. The judgment was silent as to Quin’s claim of 30 years acquisitive prescription. The final judgment did not abrogate the Summary Judgment entered previously recognizing Quin’s possession of the property.

Cuny appeals. On appeal she argues that the trial court erred in not finding that defendant Quin failed to meet the burden of proof required to prove 30 year acquisitive prescription. She argues that the court erred in not finding that Ms. Cuny had validly purchased the alleyway, had the only recorded title to the property, and that the only title in existence was “good against the world.” Last, she argues that the trial court erred in denying her motion to re-open the record to receive evidence regarding the availability of title insurance to purchasers of the alleyways.

First, this court notes that Quin’s reconventional demand never alleged ownership by virtue of 30 year acquisitive prescription: it simply asked that Quin be maintained in corporeal possession of the property. The parties agreed later, after Cuny confessed to Quin’s possession in the summary judgment proceeding, to litigate the issue of ownership. The issue of 30 years acquisitive prescription was litigated; Quin put on testimony and evidence claiming that her family had possessed the alleyway for more than 30 years prior to Cuny’s disturbance of them possession. The trial court’s Reasons for Judgment do not address 30 year acquisitive prescription, but do state that “Ownership of the alleyway remains in dispute as does the right to convey title.” When a judgment is silent regarding an | ¡jssue that was litigated, it is interpreted as a rejection of that claim. Klein v. BMW of North America, Inc., 97-871 (La.App. 5 Cir. 12/30/97), 705 So.2d 1200. Apparently the trial judge found that Quin did not bear her burden of proof on her claim of 30 years acquisitive prescription.

Cuny argues that the court erred in not finding that she had validly purchased the alleyway, had the only recorded title to the property, and that the only title in existence was “good against the world.”

To obtain a judgment recognizing his ownership of immovable property, the plaintiff in a petitory action must: (1) prove that he acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession of the property; or (2) prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. LSA-C.C.P. art. 3651; Griffin v. Daigle, 1999-1942 (La.App. 1 Cir. 9/22/00), 769 So.2d 720.

Claimants who bring a petitory action are required to prove “title good against the world,” that is, an unbroken chain of record title or that they acquired title by prescription; however, they were not obligated to prove a perfect title to the disputed property. Duck v. Guillory, 1998-1387 (La.App. 3 Cir. 3/3/99), 737 So.2d 91.

Since the trial court found that Quin was in possession of the alleyway, Cuny was required to show title “good against the world.” At trial, Cuny’s evidence of title and ownership consisted of a Cash Sale from Bonnabel Properties dated January 11, 1994. She presented no “chain of title” documents further back than this one, the sale to her from Bonnabel Properties, her immediate vendor. She produced no documents or other evidence purporting to show how Bonnabel Properties acquired the land or the title they purported to sell to her.

| fiCuny’s witnesses consisted of herself and her brother, Ernest Cuny. Their testimony generally concerned the history of the physical possession of the alleyway. Cuny also testified about the circumstances of her purchase of the alleyway from Bonnabel Properties. She said that when she contacted Bonnabel Properties about purchasing the alleyway, Guión Jones, Bonnabel’s President, came to her house with the documents. She testified that Jones told her that he owned the property because “he won his case in court.” Cuny admitted that she did not conduct any independent investigation of Bonnabel Properties’ title to the alleyway. She failed to subpoena Guión Jones at this trial.

Besides her own testimony regarding her family’s various acts of possession of the alleyway since 1952, defendant and plaintiff-in-reconvention, Frankie Mae Quin, called Kevin Heigle (Heigle), a real estate title attorney who was accepted by the court as an expert in real estate title matters. He had approximately 23 years experience in real estate practice. He was very familiar with the circumstances of the alleyways in Bonnabel Place, having dealt with them in title opinions as part of his practice. He testified that the language in the Act of Dedication filed in 1916 by Alfred Bonnabel was unusual from standard dedicatory language. Instead of dedicating the alleyways to public use, he dedicated them to the private use of adjoining landowners. Interpretation of this dedication has created the problems that have plagued the neighborhood for the past 20 years, Heigle testified.

In the course of his practice, Heigle had followed various court cases dealing with the ownership of the Bonnabel alleyways. He felt that, based on the court 17cases and his investigation of the public records, Bonnabel Properties’ claim of ownership of the alleyways was suspect and subject to question. At least one case has held that the ownership of the alleyways in Bonna-bel Place was retained by Bonnabel (and his heirs). Heigle testified that he and other real estate lawyers disagreed with this holding, because the alleyways have never been listed in any of the succession proceedings of Bonnabel and/or his heirs. He also expressed concern that the two appellate opinions dealing with the alleyways were reviews of summary judgments and not of full trials on the merits.

Heigle testified that in 1994, at the time Cuny purported to purchase the alleyway, his investigation of the public records indicated that Bonnabel Properties only represented the interests of 16 out of 36 Bonna-bel heirs extant, and 7 of those interests were conditional upon Bonnabel Properties obtaining the interest of 100% of the heirs. At the time of trial, that number had grown to around 32 of the 36 heirs, but he discovered no provision in those subsequent transfers that would have cured Bonnabel Properties’ incomplete representation of the heirs in 1994. He confirmed that Guión Jones, the president of Bonna-bel Properties, is one of the Bonnabel heirs. Heigle admitted that his information was based on examination of the public records (conveyance and succession records), but that he had not spoken with Guión Jones or any other Bonnabel heirs to confirm his conclusions.

Heigle also offered an opinion on what is meant by “title good against the world.” He stated that this meant a merchantable title, one that was not suggestive of litigation. Heigle testified that the status of the Bonnabel alleyways has and continues to be the subject of various litigations. He testified that Bonnabel Properties has never established a chain of title for the alleyways in the conveyance records from Alfred Bonnabel to Bonnabel Properties. He also stated that none of the succession records of the various Bonnabel heirs, over the years, have listed the alleyways as property owned by the decedents. Heigle was of the opinion that | Sbecause of all the irregularities in title that he found regarding the Bonnabel alleyways, the titles were suggestive of litigation and not good against the world.

Considering the evidence in the record and case law, we agree with the trial court that Ms. Cuny did not bear her burden of proof that her title was “good against the world.” She produced no chain of title showing that Bonnabel Properties’ title was valid. Mr. Heigle’s testimony and evidence showed serious defects in the title, not the least of which was the fact that in 1994 Bonnabel Properties did not represent the interests of all of the Bonnabel heirs, who are the purported owners of the alleyways. Ms. Cuny failed to subpoena Guión Jones, who might have provided crucial evidence to her case. The case law is clear that “title good against the world” means one must produce an unbroken chain of record title back or show ownership through acquisitive prescription, neither of which Ms. Cuny did in this proceeding. To merely produce her document “Cash Sale” from Bonnabel Properties is insufficient to show “title good against the world” against a defendant who is in corporeal possession.

Last, Cuny argues that the trial court erred in denying her Motion to Re Open the record to take further evidence. She argued that Mr. Heigle testified that a title was merchantable if title insurance were available, and that in his opinion and experience, no title insurance company would write title insurance on a Bonnabel alleyway. Shortly after trial was concluded, Ms. Cuny alleges that she saw an advertisement in the newspaper stating that title insurance was available for Bon-nabel alleyways. She moved to introduce this evidence into the record, which the trial court denied.

We find no error. Our review of Mr. Heigle’s testimony shows that the availability of title insurance was but one factor he would consider in determining merchantability of title. It was not a single dispositive factor. After considering this record as a whole, introduction of this newspaper advertisement would not iJiave changed the outcome of this case. Had Ms. Cuny introduced this advertisement at trial, we would still find that she failed to bear her burden of proof.

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

      . See for instance Parish of Jefferson v. Bonnabel Properties, Inc., 620 So.2d 1168 (La. 1993), and Wood v. Bonomolo, 00-61 (La.App. 5 Cir. 5/30/00), 762 So.2d 261.

      . Quin did not appeal the trial court's judgment that found ownership was still in dispute, since her possession was recognized.

      . This court takes judicial notice of Parish of Jefferson v. Bonnabel Properties, Inc., 620 So.2d 1168 (La.1993), wherein the Supreme Court, reviewing a summary judgment, decided the "narrow issue” that under the Louisiana Constitution, parishes may not acquire title to immovable property by acquisitive prescription. That decision held that the Parish of Jefferson did not own the alleyways in Bonnabel Place. It did not decide who did own the alleyways.
      In Wood v. Bonomolo, 00-61 (La.App. 5 Cir. 5/30/00), 762 So.2d 261, this court reversed a partial summary judgment that had found ownership of the alleyways to be vested in the adjacent landowners. Based upon the language in the 1916 Act of Dedication, this court found that ownership of alleyways in the subdivision were not transferred to the public; rather, the ownership was retained by Mr. Bonnabel (and later his heirs). The dedication merely transferred a servitude of use to the individual landowners. This court could not determine who was the owner of each of the alleyways in the entire subdivision, because there may be issues of acquisitive prescription relative to each individual lot owner.


author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Anna GREEN.
    No. 03-KA-410.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Anthony G. Falterman, District Attorney, 23rd Judicial District, Donald D. Can-dell, Assistant District Attorney, Gonzales, LA, for Appellee.
    Arcenious F. Armond, Jr., Gretna, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

Defendant pled guilty to manslaughter, then later sought to have her plea withdrawn. For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

The St. James Parish grand jury returned an indictment on March 1, 2001, charging defendant, Anna Green, with second degree murder in violation of LSA-R.S. 14:30.1, which allegedly occurred on or about January 8, 2001. Green was arraigned on March 12, 2001 and pled not guilty. On July 15, 2002, Green filed a motion and order for change of venue that was denied on that same date. On August 1, 2002, the indictment was amended to charge Green with manslaughter in violation of LSA-R.S. 14:31. On that same date, Green was arraigned and pled guilty to the reduced charge of manslaughter. The trial court ordered a pre-sentence investigation report with a cap of 20 years.

Green filed a motion to withdraw guilty plea on October 23, 2002 that was denied on November 6, 2002. On November 8, 2002, the trial court sentenced | 4 Green to imprisonment at hard labor for 15 years. The trial court issued written reasons for sentence. Defense counsel objected to the sentence and informed the trial court that he would file a motion to reconsider sentence and a motion for appeal. On November 18, 2002, Green filed a motion for appeal that was granted. On November 27, 2002, Green filed a motion to reconsider sentence that was denied on December 10, 2002.

Green admitted during her guilty plea colloquy that, on January 8, 2001, in the Parish of St. James, she committed manslaughter by killing Cardell Clayton while involved in a domestic argument with him. The record reflects that Green stabbed the victim in the left chest.

Green pled guilty to one count of manslaughter. An unqualified guilty plea waives all non-jurisdictional defects in the proceedings prior thereto and precludes review thereof either by appeal or post-conviction relief. A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case.

On appeal, Green argues that the trial court erred by not quashing the bill of indictment and by denying the motion for change of venue. However, we note that Green did not reserve her right to appeal any alleged defects regarding the indictment or the trial court’s ruling on the motion for change of venue. Therefore, we refuse to consider Green’ first two assignments of error.

In her third assignment of error, Green argues that the trial court erred in denying the motion to withdraw guilty plea. She contends that her 15-year sentence was excessive, and that it was her understanding, based on discussions with the prosecutor, that her sentence would be five to six years.

[4On August 1, 2002, the indictment was amended to charge Green with manslaughter. On that same date, Green was arraigned on the amended charge and pled guilty. Green testified that she was 22 years old, that she had completed the tenth grade, that she could read and write the English language, and that she was not under the influence of any medication or drugs.

Green testified that her counsel had advised her of her rights, that she understood she was presumed innocent until proven guilty beyond a reasonable doubt, that the burden was upon the State to prove her guilty, that she had the right to a trial by jury, that she had the right to counsel and that her counsel would continue to represent her throughout the trial, including an appeal, if necessary.

Green further testified that she understood that she had the right to confrontation, that the State had to produce witnesses in court so her counsel could cross-examine them, that she had the privilege against self-incrimination, that she did not have to take the stand and testify, that in the event of a conviction she could have the right to an appeal, that the conviction resulting from her plea could be used to enhance the penalty for a subsequent felony conviction, and that she understood her post-conviction relief rights.

The trial judge advised Green of the elements of manslaughter and the penalty for manslaughter: imprisonment at hard labor for not more than 40 years. The judge told Green that her counsel and the prosecutor had conducted plea bargaining in her case, that they had agreed to a pre-sentence investigation (PSI), that once it was received, she could find out what was on it generally, and that if she wanted to add anything or any letters of recommendation she could do so.

At that point, the prosecutor stated that there should be a 20-year cap on the pre-sentence investigation. Green testified that it had been explained to her what a 20-year cap meant, that she did not intend to appeal any rulings or orders of the court, that she still wanted to plead guilty, that she had not been promised anything |Kby anyone in order to get her to plead guilty other than this plea bargain. Green then stated that she was told that if she plea bargained, she would get “like five or six years.” The trial judge told Green:

That is not a guarantee. That is something that somebody might have told you. But the PSI, with a cap of twenty years, means that it cannot be more than twenty years no matter what. Do you understand that?

Green answered affirmatively. She testified that no one had threatened, coerced, beat her, or done anything else to persuade her to plead guilty. The trial judge did not ask her if she still wished to waive her rights and plead guilty.

She admitted that, on January 8, 2001, she had committed manslaughter by killing Cardell Clayton while involved in a domestic argument with him. Green testified that she had read and understood all of the questions and answers on the form, that her attorney had explained this form to her and the consequence of her guilty plea, and that her signature appeared on the form.

The trial judge then stated that he was convinced Green had been fully advised of her constitutional rights, that she understood the nature of the charge against her, that she understood the penalty to be imposed, that her plea was free and voluntary, that there was a factual basis for the plea, and that Green was, in fact, guilty of the crime charged. Defense counsel stated that his signature appeared on the bottom of the form, and that in signing it, he acknowledged he was present during the questioning of Green, that he informed her of her rights and the consequence of pleading guilty, and that he was satisfied that her guilty plea was voluntary. The trial judge stated he needed Green to initial three places on the form where it described the 20-year cap.

Defense counsel stated on the record that there were protracted negotiations regarding the plea agreement, that the defense wanted a stipulated number of years, |fiand that he understood that the court was not inclined to participate in those discussions. The following exchange then occurred:

THE COURT:
That is correct. I did not. It’s between you and the State. Go ahead. MR. ARMOND: [Defense counsel]:
I understand, Your Honor. Thank you. There have been discussions between the defense and Mr. Marshall for the State, as well as Mr. Kliebert for the State, that we have reviewed the criminal history of this defendant, and lack of criminality, the fact that she has a good job, as well as the facts and circumstances of this case. And that it is our understanding that the pre-sentence investigation should reflect a sentence of approximately five to six years or even less. And that is what has been conveyed to my client, that it is anticipated that the pre-sentence investigation will in fact come down in that neighborhood or below.
THE COURT:
But you have conveyed to her it is the anticipation of you and Mr. Marshall and Mr. Kliebert? You have not involved the Court in that in any way; is that correct?
MR. ARMOND:
That’s correct, Your Honor.
MR. MARSHALL:
And, your Honor, for the record, the State’s position is Ms. Green is pleading to a pre-sentence investigation with a cap of twenty years. And that is the sole agreement that the State has had in this matter. And the State doesn’t deny that we had conversations or discussions with Mr. Armond about his client, but the State’s position is the pre-sentence investigation with a cap of twenty years, and that the sentencing -will be the sole function of the Honorable Judge Peyta-vin. So we just ask that the Honorable Court ask her again has she has [sic] been promised anything by anyone other than to' — in order to get her to plead guilty, other than the plea agreement. I would have her answer no on the record, just to be clear on that.
THE COURT:
Have you been promised anything by anyone in order to get you to plead guilty, other than a pre-sentence investigation with a cap of twenty years?
THE DEFENDANT:
JjNo.
THE COURT:
Did you say no?
THE DEFENDANT:
Yeah.

Following this exchange, the trial judge accepted Green’s guilty plea and the plea bargain. He ordered a pre-sentence investigation with a cap of 20 years and deferred sentencing to a later date. He told Green that it usually took about two months for the PSI to be completed, and that her counsel would tell her if she had anyone who wanted to send in letters or add anything to the PSI, she would have the opportunity to do so.

On October 23, 2002, Green filed a motion to withdraw guilty plea. In that motion, Green stated that she pled guilty under advice of counsel, that she understood the sentencing range would be from five to seven years, that the court ordered a PSI which was done, that the PSI indicated a sentence of 15 to 20 years was appropriate, and that based on the foregoing, she moved to withdraw her guilty plea.

On November 6, 2002, a hearing was held on the motion to withdraw guilty plea. Defense counsel stated that it was the understanding of Green and defense counsel that the appropriate sentencing range was five to seven years, that a PSI would be ordered, that if the PSI came back suggesting any sentence greater than five to seven years, that they would be filing a motion to withdraw the guilty plea and ask that the matter be set for trial. Defense counsel argued that he had seen the PSI, disagreed with it, and was therefore asking the court to allow Green to withdraw the guilty plea and set the matter for trial.

|RThe prosecutor responded that he was in total opposition to the motion, that he had obtained a copy of the transcript of the Boykin process, that the transcript showed that the court went out of its way to make sure Green understood that she was pleading guilty to a PSI with a 20-year cap, that it was stressed to her over and over again, and that she was advised that no promises were made other than the fact she was pleading to a PSI with a 20-year cap.

Defense counsel stated that it was in the transcript that he would be filing a motion to withdraw guilty plea. The prosecutor and the trial judge both stated that they did not see anything in the transcript about defense counsel filing a motion to withdraw guilty plea. Defense counsel then stipulated that the “precise language” was not in the transcript. After hearing arguments of counsel, the trial judge denied the motion, stating that the 20-year cap was honored. Defense counsel noted his objection for the record.

LSA-C.Cr.P. art. 559(A) gives the district court judge the discretion to permit a withdrawal of a guilty plea at any time prior to sentencing. Once the defendant has been sentenced, only guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm when the defendant is induced to enter that plea by a plea agreement which is not fulfilled. Generally, a denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and that the plea was entered into voluntarily.

In State v. Cook, the court stated:

Reasons supporting the withdrawal of a guilty plea would ordinarily include factors bearing on whether the |9guilty plea was voluntarily or intelligently made, such as a breach of a plea bargain, inducement, misleading advice of counsel, strength of the evidence of actual guilt or the like. A mere change of heart or mind by the defendant as to whether he made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. Without fraud, intimidation or incompetence of counsel, a guilty plea is not made less voluntary or informed by the considered advice of counsel.
A guilty plea is also invalid when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the bargain are not satisfied. State v. Holmes, 475 So.2d 1057 (La.1985).

After a review of the record, we find that Green was fully informed of her rights as well as the consequences of her guilty plea. Although defense counsel reported an anticipated sentencing range of between five and seven years, the trial judge elicited Green’s testimony that she understood there was no guarantee. Further, there is no indication that her guilty plea was in any way coerced. The State stressed to Green that the plea bargain was based on a 20-year cap on the PSI, which Green stated that she understood.

While Green may now be dissatisfied with her sentence, that does not provide a basis for withdrawal of a guilty plea. Further, Green benefited substantially from the plea bargain, a factor that should be considered in evaluating a request to withdraw a plea.

Green next argues that her 15-year sentence is excessive because she committed the crime in self-defense, was the victim of domestic violence, had no prior criminal history, has an infant child, and has expressed remorse.

Under LSA-C.Cr.P. art. 881.2(A)(2), a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set Imforth in the record at the time of the plea.” This provision applies both to agreed sentences and to agreed sentence ceilings or “caps.”

In the instant case, when the Green entered a plea of guilty as charged, she signed and initialed a form in conjunction with the plea. That form, in addition to the colloquy between the trial judge and the defendant before the plea, indicate with certainty that the defendant agreed to a sentencing cap of 20 years. Therefore, the sentence of 15 years is within the limits of the agreement. Accordingly, Green is precluded from raising a claim of excessiveness of sentence on appeal, and we find that the trial court correctly denied Green’s motion to reconsider sentence.

Finally, Green has asked this Court to review the record for errors patent.

We note that Green never specifically testified that she waived her rights during the Boykin colloquy. However, she did testify that she understood her rights, that she had read and understood all of the questions and answers on the form, and that her attorney had explained the form to her and the consequence of her guilty plea.

Additionally, the “form” Green signed is not entitled “Waiver of Rights” form, nor does the form indicate that she waived her rights. The questions on the form ask whether Green understands her rights. Green wrote “yes” next to those questions and placed her initials next to them. The form states almost verbatim what the trial judge asked Green during the Boykin colloquy.

Green, however, does not challenge the constitutional infirmity of the plea on these grounds.

In State v. Campbell, the Louisiana Supreme Court stated that, “The appellate court should refrain from employing errors patent review to set aside Inguilty pleas about which defendant makes no complaint and which resulted in disposition of the case favorable to the defendant.”

Accordingly, as per Campbell, supra, we decline review of this issue.

Based on the foregoing, Green’s conviction and sentence are affirmed.

AFFIRMED.

      . State v. Raines, 00-1942, p. 3 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632; State v. Crosby, 338 So.2d 584, 588 (La.1976).

      . State v. Cox, 02-0333, p. 5 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523-524.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . State v. Gross, 95-621 (La.App. 5 Cir. 3/13/96), 673 So.2d 1058, 1059-1060.

      . State v. Dixon, 449 So.2d 463, 464 (La.1984).

      . State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 633.

      . 32,110 (La.App. 2 Cir. 6/16/99), 742 So.2d 912, 919-920 (citations omitted),

      . State v. Boatright, 406 So.2d 163, 165 (La.1981); State v. Batiste, 517 So.2d 371, 372 (La.App. 5 Cir.1987).

      . See, State v. Curtis, 28,309 (La.App.2d Cir.8/21/96), 679 So.2d 512, writ denied, 96-2322 (La.2/7/97), 688 So.2d 496.

      . State v. Lee, 02-529 (La.App. 5 Cir. 10/29/02), 831 So.2d 395, 397 (citing State v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171, 1174).

      . State v. Lee, 02-529 (La.App. 5 Cir. 10/29/02), 831 So.2d 395, 396-397.

      . 01-329 (La. 11/2/01), 799 So.2d 1136.


author: |,SOL GOTHARD, Judge.

text:
    Jerome TURNER v. ASSOCIATES COMMERCIAL CORPORATION, Parish Truck Sales, Inc. and Marc E. Johnson.
    No. 03-CA-0224.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.
    J. Nanine Nyman, New Orleans, LA, for Plaintiff/Appellant (Jerome Turner).
    William E. Wright, Jr., Beverly A. Aloi-sio, Deutseh, Kerrigan and Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee (Marc E. Johnson).
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   |,SOL GOTHARD, Judge.

Plaintiff appeals from the trial judge’s ruling granting summary judgment and dismissing his suit against defendant Marc E. Johnson. For the reasons that follow, we affirm the decision of the trial court.

In November of 1997, Mr. Turner purchased a tractor truck from Parish Sales, Inc. The purchase was financed by Associates Commercial Corporation. The financing agreement provided that Turner was to make 42 payments of $1,228.00, and a final payment of $51,579.36. The agreement further provided that if a payment was missed, the loan would be accelerated and the entire amount of indebtedness would be due.

On December 3, 1998, Associates filed a petition for executory process, alleging that Turner was delinquent in his payments. A Writ of Seizure and Sale was issued.

In August of 1999, Associates filed a Rule to Produce Chattel, requesting an order requiring Turner to produce the truck. The Rule was set for October 1999, but was reset when service was not perfected. Turner was served on November 25, 1999, and the Rule was held on December 21,1999.

|3Shortly before the December hearing, Turner contacted Marc Johnson and asked for representation. At the hearing, Johnson requested a continuance and the matter was reset for February 1, 2000. The trial court informed the parties that Turner should settle the matter with Associates, pay the account, or turn over the truck.

Prior to the February hearing, Johnson contacted Associates. Johnson also asked Turner to provide all documentation to support his claim that he had made payments.

At the hearing on the Rule to Produce Chattel, the trial court found that the writ of seizure was valid and ordered Turner to produce the truck. The truck was sold at a Sheriffs Sale on June 7, 2000.

Mr. Turner instituted this present suit on January 31, 2001, against Parish Truck Sales, Associates, Inc., and Marc Johnson. Specific to this appeal, Turner alleged that Johnson committed legal malpractice in his representation, which caused him to lose the truck. Johnson filed a motion for summary judgment, which was granted by the trial court. This appeal followed.

LSA-C.C.P. art. 966 provides in pertinent part as follows:

. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.

Summary judgments are now favored in the law and the rules should be applied liberally. Breaux v. Schiro, 01-1398 (La.App. 5 Cir. 5/29/02), 821 So.2d 123, 125; writ denied, 02-1784 (La.10/4/02), 826 So.2d 1129.

|4On appeal this Court must review a summary judgment de novo and inquire whether there are genuine issues of material fact and whether the summary judgment should be granted in accordance with article 966. Id. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. LSA-C.C.P. art. 966; Perricone v. East Jefferson General Hospital, 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

Plaintiffs claim against Mr. Johnson alleges that Johnson committed legal malpractice in his representation of plaintiff.

A claim for legal malpractice is stated when the plaintiff alleges there was an attorney-client relationship, the attorney was guilty of negligence in his relationship with the client, and the plaintiff sustained some loss because of the attorney’s conduct. Nelson v. Waldrup, (La.App. 4 Cir.) 565 So.2d 1078, writ denied 569 So.2d 962 (La.1990); Jenkins v. St. Paul Fire and Marine Ins. Co., 422 So.2d 1109 (La.1982). Plaintiff must meet this initial burden of proof before the burden “shifts to the defendant attorney to prove that the client could not have succeeded on'the original claim.” Nelson, at 1079.

Johnson v. Tschirn, 99-0625 (La.App. 4 Cir. 9/29/99), 746 So.2d 629, 631-632, writ denied, 99-3077 (La.01/07/00), 752 So.2d 866.

In this case, the trial court dismissed plaintiffs claim against Johnson, finding that plaintiff failed to prove any negligence on Johnson’s part in his representation of plaintiff.

On appeal, plaintiff alleges that Johnson was negligent in failing to challenge the writ of seizure. Plaintiff alleges that there was insufficient service of the writ of seizure or the underlying petition for execu-tory process and that the writ of seizure had expired prior to the hearing date. Plaintiff further alleges that Johnson failed to present evidence of payment as a defense to prevent the seizure of the truck. Finally, plaintiff argues that Johnson was negligent in failing to preserve his right to appeal.

|sPlaintiff first alleges that the trial court erred in finding that he was properly served prior to the seizure and sale of his truck. He argues that service was insufficient because he was not served with the Petition for Executory Process or the Rule for Seizure and Sale, and was only served with the Rule to Produce Chattel.

Mr. Johnson had no ground to assert failure of service of the petition for execu-tory process since “Citation is not necessary in an executory process.” La. C.C.P. art. 2640. Johnson also had no ground to assert failure of notice of the writ of seizure and sale since it was never executed. La. C.C.P. art. 2721. Instead a Rule to Produce Chattel was directed to plaintiff, and plaintiff was properly served with that Rule. Accordingly, defendant was not negligent in failing to challenge the writ of seizure and sale based on insufficient notice.

Plaintiff next alleges that the trial court erred in finding that writ of seizure was not expired at the time of the Rule to Produce Chattel. He argues that the writ was expired because more than one year had elapsed from its issue when the Rule to Produce Chattel was held, and therefore defendant was negligent in failing to challenge the writ as untimely. Defendant responds that a writ of seizure does not expire with the passage of one year, and the writ was valid at the time of the Rule.

The codal articles pertaining to writ of sale and seizure do not provide for an expiration date. La. C.C.P. art. 2721 et seq. Plaintiff argues that a writ of sale and seizure is analogous to a writ of fieri facias (fifa), La. C.C.P. art. 2293, et seq., which expires one year from the date of issuance. La.C.C.P. art. 2294. The Code of Civil Procedure specifically enumerates those provisions which are applicable both to writs of fifa and writs of seizure and sale in La. C.C.P. art. 2724. The one year time limit for the execution of a writ of fifa is not set forth in art. 2724, and therefore does not apply to a writ of seizure and sale.

| (¡Plaintiff next alleges that Mr. Johnson was negligent in failing to present evidence at the hearing, which would have prevented the seizure of his truekJn his reasons for judgment, the trial judge found that Mr. Johnson was not negligent, because Turner was unable to produce the evidence which Johnson could have used, stating that “[e]ven considering the application of one money order missed by Turner, Turner failed to provide evidence of October or November 1998 payments.” Plaintiff argues that the trial court erred in finding that he was unable to produce any evidence to Johnson that Johnson could have offered which would have prevented the seizure of the truck. Defendant responds that plaintiff had still not produced such evidence even at the summary judgment hearing in the instant case.

The financing agreement between Turner and Associates provided that the entire indebtedness would become immediately due and payable in the event that a scheduled payment was missed. Associates filed for executory process in December of 1998, alleging that Turner had not made payments from September 1998 forward, including the October and November 1998 payments. At the time of the hearing on the rule to show cause, Turner had not provided evidence of these payments. After termination of the attorney client relationship, Turner requested a trace on money orders, which he stated were used to make his payments. At the hearing on the motion to suppress, Turner was still unable to produce evidence that he had made the October and November 1998 payments.

In this argument, plaintiff relies on the case of Chrysler Credit Corp. v. Walker, 488 So.2d 209 (La.App. 4 Cir.1986). A careful reading shows that Walker is inapplicable to the matter at hand. In Walker, plaintiff filed for executory process alleging that defendant had not made a May payment, and then made a judicial admission that the defendant had made payments through May, and therefore the statement in the executory process petition was false. Further, l7although some of defendant’s payments were late, plaintiff accepted the late payments and the note was current at the time of the seizure. In this case, at the time of Rule to Produce Chattel, and even at the summary judgment hearing on this malpractice claim, Turner had still failed to produce evidence of the October or November payment and thus his note was not current.

Accordingly, the trial court was not in error in finding that plaintiff did not produce evidence which Johnson could have used to show proof of payment sufficient to prevent the seizure and sale of the truck.

Plaintiff also argues that Johnson committed malpractice in failing to assert claims for wrongful seizure. After the hearing of December 21,1999, in which the trial court granted defendant a continuance, the sheriff erroneously seized the truck. Shortly thereafter, the error was discovered and the truck was returned to plaintiff. In his opposition to defendant’s motion for summary judgment, plaintiff alleges that Johnson’s failure to assert a claim for damages was negligence. However, plaintiff had one year from the seizure, or until December of 2000, to pursue this claim. Johnson’s representation of plaintiff ended in February of 1999, well before the prescriptive period. Thus, assuming arguendo that plaintiff suffered damages as a result of the seizure, plaintiffs claim for such damages was not lost as a result of Johnson’s conduct.

Finally plaintiff alleges that the trial court erred in failing to find that Johnson committed malpractice by failing to preserve his right to appeal. Defendant responds that the trial court correctly concluded that there were no credible grounds on which to base an appeal.

The grounds which plaintiff alleges would support his appeal are the same grounds that form the basis for his malpractice claims. Because we find that these grounds are without merit, we also find that the trial court was not in error in holding that the appeal would have been baseless.

|sFor the above discussed reasons, the trial court’s ruling granting summary-judgment and dismissing defendant Marc Johnson from this suit is affirmed. Costs are assessed to appellant.

AFFIRMED.


author: 1 «MARION F. EDWARDS, Judge.

text:
    Penny Porche DEHART, Individually and On Behalf of her Minor Child, Wendy Marie Dehart v. BURLINGTON NORTHERN AND SANTA FE RAILROAD CO., Chad D. Fisher, Edward Blondell and St. Charles Parish Government. Regina Dehart Hutchinson and Alfreda Little on Behalf of her Minor Children, Niki Ann Dehart and Tamara Marie Dehart v. Burlington Northern and Santa Fe Railroad Co., Chad D. Fisher, Edward Blondell and St. Charles Parish Government.
    Nos. 03-CA-279, 03-CA-280.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Carolyn A. McNabb, Houma, LA, for Appellant, Penny P. Dehart.
    Timothy C. Ellender, Jr., Houma, LA, for Appellant, Regina Dehart Hutchinson, et al.
    Patrick A. Talley, Jr., Carl E. Hellmers, III, New Orleans, LA, for Second Appellants/Appellee, Burlington National and Santa Fe Railway Company.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   1 «MARION F. EDWARDS, Judge.

Appellants, Penny Porche Dehart, individually and on behalf of her minor child Wendy Marie Dehart, Regina Dehart Hutchinson, and Alfreda Little on behalf of her minor children Niki Ann Dehart and Tamara Marie Dehart (collectively, the De-harts), appeal a verdict and judgment in favor of defendant Burlington Northern and Santa Fe Railway Company (BNSF) finding no liability, and dismissing their suits with prejudice. We affirm.

The suit was one for damages for wrongful death brought by the widow and four children of Rustie Dehart. Mrs. Penny Dehart is the widow, and Ms. Alfreda Little is the mother of Dehart’s children from a prior marriage, including Regina. On May 21, 1998, Mr. Dehart suffered injuries after attempting to negotiate the Lagarde railroad crossing in Boutte, Louisiana. Mr. Dehart was operating a tractor-trailer rig carrying a 70,000-pound load of fill, and attempting to clear the tracks, when the cab of his rig was struck by the BNSF train. The impact caused the trailer and cab to flip, causing catastrophic injuries to which Mr. Dehart later Lsuccumbed. The Deharts claim that the defective design and maintenance of the Lagarde Crossing and the negligent operation of the train were proximate causes of the fatal injury. Mrs. Dehart and Ms. Little filed separate suits for wrongful damages, and the matters were consolidated for trial.

The trial was held over a five-day period in August 2002. At the conclusion of trial, the jury determined that there wa.s no negligence on the part of BNSF with respect to operation of the train on that day and found that BNSF was not negligent in the operation, design or maintenance of the train, the crossing, or its approaches.

On appeal, the Deharts urge that the trial court erred in preventing the jury from hearing relevant evidence on responsibility for maintenance and control of La-garde Crossing and its approaches and in preventing the jury from hearing expert testimony on applicable safe design standards. They also urged that the jury erred in finding that BNSF was not negligent in the design or maintenance of the crossing, nor in the operation of its train.

At trial, it was stipulated that BNSF is the owner of the subject property, including the right of way at the Lagarde crossing. The ownership interest extends thirty-five feet on both sides from the middle of the track.

The crossing is a 70-foot long private driveway providing access from Louisiana Highway 631 in Boutte to the property of Dr. Edmond Jeansonne. Both an east and west approach from Highway 631 converge on the south side of the tracks to form a single roadway, creating a “Y”-shaped design, over the rails to the Jeansonne property on the north side.

Dr. Jeansonne testified that he purchased the property in August of 1997. The land had been in use primarily for cattle grazing and the doctor determined to change the use to a wildlife preserve. To this end, he began digging a lake about six months later. The contractors who excavated the land would be able to sell the fill for profit. J.E. Enterprises, Mr. Dehart’s employer, was one of the independent 15contractors hauling the dirt. Dr. Jeansonne saw no need to notify the railroad of this project, and had no problems himself at the crossing. He did not perform maintenance work on the roadway approaches to the railroad crossing; however, he visited the property three or four times per week, and noticed railroad crews doing certain types of maintenance. On the railroad right of way, they sprayed vegetation, and replaced a number of wooden railroad ties. However, they did not do any labor on the approach to the crossing.

Mr. Sylvester Brooks, a truck driver, followed Mr. Dehart to the property of Dr. Jeansonne to haul fill. When they initially passed over the railroad crossing, neither driver had a problem. As the trucks were being loaded, Mr. Brooks told Mr. Dehart that he was going to exit on the other ramp “because I didn’t think I was going to make it out of there ... The trailer was a thirty-two foot. So it was too long. I knew I wasn’t going to be able to make it ...” Mr. Brooks was standing on top of his vehicle, two to three hundred yards from the tracks, and witnessed the impact. Mr. Dehart approached the tracks, waited, and then went across to the right. He pulled up trying to maneuver himself, going back and forth. This went on for about five minutes. Mr. Brooks heard the train whistle, but there were a lot of trees and he could not see the train until it was too late. According to the witness, Mr. Dehart couldn’t see the train. “In order to come off that ramp the way he was on there you had to watch the left side so the truck don’t roll off and you have to watch the right side so the trailer won’t roll off.” Although Mr. Dehart was maneuvering the track, Mr. Brooks did not know if he was stuck on the tracks. Mr. Brooks thought that the train was going faster than 45 miles per hour.

Conley Martin testified that on the date of the accident, he was an investigating officer for St. Charles Parish. His Investigation disclosed that the train struck the trailer at approximately its mid-point. According to the witness, truck drivers had communicated via CB radio that it was easier to cross the tracks Lon the eastbound side than on the west side, which is where Mr. Dehart attempted to cross. There were no signs on the crossing to this effect, and no obvious defects in the roadway approaches to the crossing. While speaking with the engineer and conductor, there were no signs of intoxication or impairment so as to justify the taking of a drag screen.

The conductor and engineer reported traveling at approximately 45 miles per hour, and slowed prior to impact, indicating the train attempted to brake. There are no signs anywhere on the crossing to alert a driver as to which ramp should be used to exit from the property to the highway. In the officer’s opinion, the curve east of the Lagarde Crossing did not appear to be a contributing factor to the cause of the accident and is not on a public right of way. In the report generated by investigation of the accident, it was stated that the Dehart vehicle failed to yield, while no violations were noted for the train. Some witnesses reported that the trailer was stopped on the tracks, and that when Dehart saw the train, he tried to maneuver the vehicle by moving it back and forth. There was nothing to obscure Dehart’s vision at that point. There was a railroad crossing sign located on both sides of the crossing. The officer concluded that visibility in the curve was approximately one quarter of a mile, and Mr. Dehart could have seen the approaching train and would have been able to yield.

Mr. John Mattingly, a professional land surveyor, was qualified as an expert in civil engineering land surveying. Mr. Mattingly performed a survey of the area at the crossing. Coming from Dr. Jeansonne’s property south across the tracks, the southwest ramp is 75 feet long, and there was a five and one-half foot elevation from the roadway to the top of the rail.

Eric Jones, Mr. Dehart’s employer, testified that he instructed Dehart to pick up fill from the Jeansonne property. That was the first time Mr. Dehart visited the site. He was an excellent worker and had never been involved in an accident.

[7Dr. Ken Heathington, a civil engineer, was qualified as an expert in transportation engineering, traffic engineering, highway design, operations and safety, railroad highway grade crossing design, operations and safety and accident reconstruction. He examined other crossings in the area, and determined that there was a low volume of vehicular traffic, which was a factor in the finding that there were no previous accidents at the site. There was no posted speed limit for drivers. Dr. Heathington found there was a significantly reduced sight distance at the crossing and although there were two cross buck signs, they did not comply with standards set by the American Association of State Highway and Transportation Officials (AASHTO). These were the only traffic control devices at the location. The maximum train speed at the crossing is seventy miles per hour for passenger trains, and sixty for freight trains, and this is the speed he used in sight distance calculations. Relative to sighting, Mr. Dehart would have had to face two visual quadrants; the crossing at its Northeast and Northwest quadrants had a 97.9 % and 98.7% sight deficiencies, respectively, so that the driver could not see an approaching train in time, in either direction, as he crossed. However, sight distance was not a cause of the accident.

In Dr. Heathington’s opinion, the main problem with the crossing was the road surface and grading. The applicable standard is no more that a six-inch drop or three-inch rise in 30 feet from the nearest rail. The grade on which Dehart was traveling violated this standard. There is a six-foot drop to the highway and a short turning radius. The width of the roadway and crossing, and the drop-off, did not leave enough room to pull a tractor all the way over, while attempting a turn, to get the back wheels in place and not go “off track” and hung between the rails. Because of the steep grade, Dehart could not get across the track to turn the truck. He would have been looking down the hill, and to see the train he would have had | sto be looking up and back, about 120 degrees. By lengthening the approach, the grade can be softened.

Jim Scott, qualified as an expert in train operations, testified that an event recorder electronically records the speed and actions of the crew, and that each locomotive should have one. In this case, there was not one that would have been helpful. The whistle activity should have been recorded that day by the lead locomotive, and it is absolutely critical, in the event of an accident, to download information from the recorder to back up the information given by the crew. However, it is not mandatory that the recorder contain information on the whistle or horn. As the engineer approaches a grade crossing, he must blow the whistle until he occupies the crossing. The conductor should have continued to blow the horn, in an emergency signal, to afford further warning to the vehicle on the track, as well as apply the emergency brake. On cross-examination, Mr. Scott testified that he issued his written report after seeing photographs of the crossing, but had not at that time inspected the area. Further, he had not had the benefit of the conductor’s deposition testimony, although after reading it, his opinion did not change. The witness had no information to contradict the testimony of the conductor, that he blew the whistle until 150 feet prior to impact (approximately four seconds before the collision) and then dropped to the floor. He testified that had the conductor continued to blow the whistle for three more seconds before the accident, Mr. Dehart may have had time to step out of the truck. Mr. Scott was not asked to calculate the speed of the train.

Tim Huya, manager of public projects for BNSF in Texas and Louisiana, testified that whether the railroad owns the crossing or it is a right of way, maintenance is the same, although there are no state laws regarding the railroads duty to maintain private crossings. On a private driveway approach, the private landowner maintains the approach up to two feet of the rail. The railroad |9maintains the grounds between the rails, up to two feet outside either the rails or ties. According to the witness, the railroad owns the land within 35 feet of either side, but not the roadway. A truck travels the track about three or four times a week, examining for hazards including those on the right of way. BNSF does not maintain the roadway. The railroad sprays to control vegetation so as not to obstruct vision, and maintains the ballasts, tracks, and rails. Typically, no maintenance is performed on driveways and approaches to private property unless the railroad is notified of a problem. There are no reports of any unsafe conditions on the subject property. Prior to trial, Mr. Huya examined the site itself as well as photographs, and found no problems. After obtaining the trackage rights from Southern Pacific, approximately five months before the accident, BNSF would have inspected the track before it ran the first train. No problems were reported relative to the crossing. BNSF did not design the crossing, but only put in crossing boards between the rails and two feet out.

Edward Blondell, the BNSF engineer, testified the train was traveling at 45 miles per hour. At one-quarter mile before every crossing is a whistle board, and he is required to turn on the bell and blow the whistle. He did this and as the locomotive came around the curve, he saw a truck stopped on the tracks. Within a second or two, he put the train in emergency, continuing to blow the whistle and applying the brakes. The trailer was on the tracks, and the truck started to back up, and then stopped. The truck began to pull ahead again, and the cab cleared the track. The witness continued to blow the whistle up to approximately 150 feet, at which point he laid on the floor. He had the impression that the driver saw him because of the way he began to move the truck. It is a judgment call as to when to stop blowing the whistle and hit the floor, and in this case, the engineer had sounded the warning for a quarter mile.

|inMr. Chad Fisher was a conductor for BNSF. On the day of the accident, he and Mr. Blondell checked the engines and cars, and there were no problems with the brakes. The train was authorized to go 45 miles per horn, and did not travel in excess of that. Prior to the curve, Mr. Blondell had begun blowing the whistle, and as the train came around the curve he saw a truck crossing the tracks. Mr. Blondell had already thrown the train into emergency. At that point, the trailer was on the tracks, backed up, then went forward and stopped. It did not appear to be stuck. Mr. Blondell lay down on the floor three or four seconds before impact. After the accident, Mr. Fisher saw no problems with the track or the road bed, no holes or ruts.

Dr. William Fogarty testified for the defense as an expert in accident reconstruction, human factors, and traffic engineering. In his opinion, Mr. Dehart had an opportunity to avoid the accident. He measured the visibility distance, and factored in the speed of the train, determining that the driver had several opportunities to see the approaching train. Even assuming the driver had some difficulty maneuvering his vehicle as he tried to leave the crossing, he could still have backed up and gotten off the track. When the train was in the “hazardous proximity” of between 750 and 900 feet away, it would have been clearly visible. Once the train is visible and audible, the driver on the track should either back off or get out of the vehicle. At the position Mr. Dehart was in, he would have been able to look to his left and see the train. Mr. Dehart had a duty to look and see what he should have seen, and to have heard the whistle. He should have had his windows down, and his radio off. Dr. Fogarty agreed that Mr. Dehart was grossly inattentive under the circumstances, given the amount of time he had.

There was nothing the train crew could have done, at that point, to avoid the accident. There were no factors that forced the victim to continue to move forward rather than backing off, and it would have been unreasonable on his part to do so.

|uIn the realm of traffic engineering and accident reconstruction, a trap occurs within a period of time over which the driver has no control, and cannot react to avoid a collision. A trap is instantaneous and generally does not exceed four seconds of time. Assuming the truck was not stalled, and that there were no visibility problems noted, Mr. Dehart was not entrapped. If he had been able to use the same approach entering, he should not have had a problem exiting, and the addition of a seventy thousand pound load would not have affected the swift path of the steering capability for angles.

Dr. Fogarty did not find the crossing was excessively steep. The AASHTO standards deal with paved highways. For local dirt roads, the standards are less. Design standards apply to what is designed today, and the “Y” shape of the approach reduces the grade to make it less steep. The grade of the road was not, in his opinion, a cause of the accident and did not violate design standards. Relative to sight distances, the AASHTO standards used by Dr. Heathington apply to major highways at railroad crossings rather than low volume roads such as the one in question. Had the train been placed in emergency 650 feet earlier, it would have stopped at the point of impact.

Mr. Bobby Lilly lives across the highway from the Lagarde crossing. On the day of the accident, he was sitting in his yard and was able to see the crossing, down to the bend in the tracks. Mr. De-hart came onto the ramp with a load, pulling down until his tandem axle got up to the rail, almost to the highway, and then would back up. He did this four or five times, and was there about 15 or 20 minutes. He continued to try to go to the right, and did not attempt the other exit. When the train came around the bend, Mr. Lilly heard the whistle: “It looked like [the conductor] was laying on the horn.” When he first saw the train and heard the horn, the cab of the truck was parked on the track, and had been for 8 to 10 minutes. Had Mr. Dehart looked to his left, he could have seen the train. The | struck did not appear to be stuck. At that point, Mr. Lilly ran. Since the train hit the trailer and not the cab, Mr. Lilly thought the truck must have moved. Mr. Lilly had not seen any other trucks that had a problem crossing.

Mr. Gary Wolf was qualified as an expert in train handling and in the calculation of train speed, braking distances and the actions of the crew. He did not need the event recorder, but had enough information to make the necessary estimates, such as the weight and length of the cars, the type of brake system, the kind of track, and the speed of the train. He calculated the speed by determining that the train could not have seen the truck until it came around the curve, the first place the brakes could have been applied, and the stopping distance was 1660 feet, about 652 feet past the point of impact. Evaluating the curvature of the track, the witness estimated the engineer would have first seen the truck about 1200 to 1300 feet away. Using a mathematical formula, Mr. Wolf determined that the brakes were applied about 1000 feet prior to the point of impact, and were in full emergency at about 900 feet. The engineer probably hesitated three or four seconds before applying the brake. Mr. Wolf found no fault with the actions or timing of the crew, and did not have to rely on their statements in order to make his evaluations. Mr. Lilly’s testimony as to when the whistle began to blow was consistent with the duty of the crew. Crews are advised to get on the floor in emergencies, and the fact that he may not have blown the horn in the final two seconds prior to impact would not have made a difference.

On appeal, the Deharts complain that the trial court erroneously refused admission of certain evidence relative to maintenance and control of the Lagarde crossing and its approaches. They suggest that the trial court selectively prevented them from eliciting all relevant testimony proving that BNF had in fact undertaken maintenance at the site and actively controlled it. They first urge that it was error for the trial judge to exclude the following proffered testimony of Dr. Jeansonne:

haQ. Doctor Jeansonne, Burlington, I think testified earlierfsic] Burlington Railroad Corporation placed some railroad ties on your property?
A. Yes.
Q. Did they call you and ask your permission to do that?
A. No, they were just there one day.
Q. From the time you bought the property to this day has Burlington Railroad Corporation called you and asked your permission to travel from Highway 631 to your property?
A. Never.

The Deharts further complain that the trial court erroneously refused to allow testimony by Dr. Heathington relative to his findings on BNSF’s maintenance of other crossings in the area. Dr. Heathing-ton testified that he examined those locales “to see what kind of emphasis was given to safety at other crossing [sic] in the corridor.” BNSF objected to such evidence on the basis that no foundation had been laid to establish the relevance of such testimony, emphasizing that the Lagarde crossing is a private driveway, unlike the other public crossings in the area. Mr. Huya acknowledged that BNSF maintained private crossings in the same manner as public ones. Under LSA-R.S. 45:323, and as testified to by Mr. Huya, the railroads have a duty to maintain a crossing for a distance of two feet on the outside of each rail of the tracks, together with the necessary headers, when the tracks are laid on or across a public street.

The Deharts also urge the trial court should have permitted testimony from Dr. Jeansonne, on rebuttal, to counter Mr. Huya’s testimony that BNSF had the duty to maintain the crossing only to a distance of two feet on either side of the track. In the case-in-chief, Dr. Jeansonne testified that he believed that the responsibility for approach belonged to the railroad, but that he had no problems with its upkeep or maintenance. Mr. Huya verified that there were no complaints from Dr. Jean-sonne.

In order to determine whether liability exists under the facts of a particular case, our Courts have adopted a duty-risk analysis. Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, | uthe defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. At issue during the trial was the Deharts’ contention that BNSF breached a duty to properly maintain the Lagarde crossing. BNSF admits that it had a duty of maintenance, but that its duty was not breached.

As defined in La. C.E. Art. 401, “relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. We fail to see how Dr. Jeansonne’s opinion of the railroad’s maintenance obligations was relevant to the inquiry of whether BNSF had a duty to maintain the approach, and whether that duty was breached. In the same vein, the proffered testimony quoted above does not constitute evidence of maintenance of the roadway approach that may have been undertaken by BNSF. The testimony was properly excluded.

The Deharts complain that the trial court abused its discretion in preventing the jury from hearing Dr. Heathington’s recommendations for improving the La-garde crossing. The court found the testimony was irrelevant. We agree. Dr. Heathington testified at length as to every perceived deficiency at the site, most of which did not pertain to his opinion of causation. His suggestions for upgrading the crossing would have added nothing material to the issue of duty and breach of duty.

The Deharts assert that BNSF did not supply documentation to support its position that the landowner was responsible for the maintenance and control of the approaches. However, the plaintiffs have the burden of proof, and there is no evidence in the record to suggest that the railroad had a responsibility beyond the statutory requirements. Vegetation was controlled at the site. No problems were |1Breported to BNSF. Although the voluntary assumption of a duty imposes the duty to perform it in a non-negligent manner, nothing in the record indicates that BNSF undertook maintenance of the grounds at the Lagarde crossing beyond what was required by law.

The admission or exclusion of evidence is within the discretion of the trial judge, and his rulings will not be disturbed absent an abuse of that discretion. We see no abuse of discretion in the trial court’s refusal to admit the contested testimony.

Plaintiffs next allege that the trial court committed legal error in its refusal to charge the jury on the “dangerous trap” doctrine. A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. La. C.C.P. Art. 1793(C). A blanket objection does not suffice, but must be accompanied by a statement of the grounds of the objection, otherwise it is waived. The record discloses that the Deharts made only a general objection to the court’s refusal to include the requested charge. Thus, the issue was not preserved for our review.

Finally, the Deharts aver that the jury was manifestly erroneous in its finding that BNSF was not negligent in the design or maintenance of the Lagarde crossing, and that it was not negligent in the operation of its train.

An appellate court may not disturb the conclusions reached by a jury regarding factual matters in the absence of “manifest error” or unless a particular finding of fact was “clearly wrong.” This Court has announced a two-part inquiry for the reversal of the trier of 11fifact’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the factfinder, and (2) the appellate court must also determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Thus, the inquiry is whether the factual findings are reasonable, not whether the trier of fact was right or wrong. If, in light of the record in its entirety, the trial court’s findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact.

On review, we find that there was a basis on which the jury could have reasonably concluded that BNSF was not negligent.

The railroad’s duties regarding the crossing include operating the crossing such that it can be safely traversed by motorists using reasonable care. Although the plaintiffs’ experts testified that there was negligence in both the design of the crossing and the operation of the train, there was also ample evidence that Mr. Dehart was inattentive to the situation. The eyewitnesses to the accident testified that Mr. Dehart was on the tracks between 5 and 20 minutes before the train struck. There was testimony that the vehicle was not stuck, but both the cab and trailer moved back and forth across the tracks, and that when the train rounded the curve, Mr. Dehart was parked, or stopped, on the rail. There was both lay and expert testimony that the train was not speeding, that it blew its horn and whistle and began breaking approximately 900 1000 feet prior to impact. There was lay and expert testimony that there was no problem with visibility at the point of impact. Dr. Fogarty testified that the crossing was not dangerously steep, and both he and Mr. Wolf agreed that the train crew acted reasonably.

Where the testimony of expert witnesses differs, it is the responsibility of the trier of fact to determine which evidence is most credible. In light of the record in its entirety, the jury’s findings of fact had a reasonable basis from the evidence |17admitted at trial, and were not clearly wrong. For the foregoing reasons, the verdict and judgment dismissing BNSF is affirmed.

BNSF filed a Motion For Appeal from a summary judgment dismissing Dr. Jean-sonne from the proceedings. BNSF admits that if the jury verdict is upheld, that appeal is rendered moot. Because we have affirmed the jury, we dismiss the second appeal taken by BNSF.

JURY VERDICT AND JUDGMENT AFFIRMED;APPEAL OF BNSF DISMISSED.

      . Duncan v. Kansas City Southern Railway Co., 2000-0066 (La. 10/30/00), 773 So.2d 670.

      . Rick v. State Department of Transportation and Development, 93-1776 (La.11/14/94), 630 So.2d 1271; Carr v. Union Pacific Railroad Co., 01-909 (La.App. 5 Cir.12/26/01), 803 So.2d 427, writ denied 2002-0565 (La.4/26/2002), 814 So.2d 561; writ denied 2002-0596 (La.4/26/2002), 814 So.2d 563.

      . Higgins v. American Nat. General Ins. Co., 01-193 (La.App. 5 Cir. 9/25/01), 798 So.2d 1078, writ refused 2001-2866 (La.1/25/02), 807 So.2d 248.

      .See Creppel v. Coronation Shipping Co., 572 So.2d 1051, 1053 (La.App. 5 Cir.1990), writ denied, 575 So.2d 390 (La.1991), cert denied, 502 U.S. 812, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991).

      . Duncan v. Kansas City Southern Railway Co., supra, citations omitted.

      . Healy v. National R.R. Corp. (Amtrak), 613 So.2d 1117 (La.App. 5 Cir.1993), writ denied 616 So.2d 709 (La.1993).

        . Tortorich v. Otis Elevator Co., Inc. 02-275 (La.App. 5 Cir. 10/16/02), 831 So.2d 307, citing Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073.