author: MICHAEL E. KIRBY, Judge.

text:
    BANK ONE, N.A. f/k/a The First National Bank of Chicago, as Trustee v. Linda Bourgeois PAYTON and Garfield Payton, Jr.
    No. 2007-CA-0139.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.

      Charles H. Heck Jr., Dean Morris, L.L.P., Monroe, LA, for Plaintiff/Appellee.

      Patrick D. Breeden, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

_[jThis appeal is a reprise of a prior appeal (2005-CA-0744) in this case in which a different panel of this court remanded the matter to the district court for consideration of an exception of res judica-ta. Bank One filed the exception in this court after the lodging of that appeal based upon an alleged compromise pursuant to which the Bank would postpone an impending foreclosure sale in exchange for dismissal of the earlier appeal. The previous panel permitted the Bank to supplement the record with a letter of April 6, 2005 allegedly confirming the compromise and other writings pertaining to the purported agreement of April 6, 2005. In a per curiam on rehearing the earlier panel noted that there was confusion surrounding the alleged compromise because the letter of April 6, 2005 was written by an attorney other than counsel of record in the appellate case.

Following remand, on July 12, 2006 the Bank moved the court to set the exception of res judicata for hearing. The hearing was ultimately held on September 20, 2006. Prior to the hearing date, at defendant Payton’s request, counsel for the Bank was served with a subpoena to appear and testify at the [ ^hearing. By motion filed on September 14, 2006 counsel for the Bank sought to quash the subpoena on the bases that 1) a contradictory hearing must he held before a subpoena can issue upon an attorney to testify about information obtained in the course of his representation; and 2) the information sought from counsel was readily available from other sources, namely the defendant

Payton and the attorney who wrote the letter of April 6, 2005, both of whom were scheduled to testify at the hearing.

At the beginning of the hearing the court heard argument on the motion to quash and granted it finding there was no reason to take an attorney’s testimony in the matter before it. After the hearing of September 20, 2006 the court ruled from the bench and directed counsel for the Bank to prepare a written Judgment for its signature. In oral reasons the court found “it very clear to [her] that this matter was compromised in an ethical way” and thus was res judicata. She stated that she found the testimony of Mr. Person, the attorney who authored the letter of April 6, 2005, to be very believable and the testimony of defendant Payton to be very evasive and incredible. She specifically found that Mr. Payton said things that were “clearly not true.” A written Judgment was signed October 10, 2006 whereby the court granted the Bank’s Motion to Dismiss Appeal/Exception of Res Judicata and dismissed Payton’s Reconventional Demand, and any other claims or actions against Bank One at his cost. By order dated November 6, 2006 Payton was granted a devolutive appeal from the referenced Judgment “on the issue of res _y udicata to include, but not limited to, the court’s ruling on the issue of attorney client privilege, motion to quash, etc. etc. [sic]”.

THE TESTIMONY

The first witness at the hearing was called by the Bank and was the defendant, Mr. Garfield Payton, Jr., whose attorney immediately objected to testimony on the basis that “all we are here for are written documents.” The objection was overruled and made continuing. Mr. Payton testified that he was a party to the foreclosure proceeding; that he had retained attorney Patrick Breeden to represent him; that Mr. Breeden had filed an injunction proceeding and a claim for damages against the Bank which had been denied on January 5, 2005; and, that Mr. Breeden had filed an appeal with this court. Mr. Pay-ton stated he was aware that a foreclosure sale of the property was scheduled for April 7, 2005. When asked if he had consulted attorney Eric Person on March 29, 2005 and signed a retainer agreement with Mr. Person, Mr. Payton denied the assertion. On a follow up question Mr. Payton admitted he signed a representation agreement with Mr. Person at one time but Mr. Person informed Payton that he was not representing Payton. When shown Exhibit one Mr. Payton identified his signature and that of his wife and read the title of the document to be “Representation Agreement,” but he stated he did not recall having seen the document before. Ultimately he acknowledged signing the contract with Mr. Person, but denied it had anything to do with the purpose of the hearing.

| ¿/Testifying further Mr. Payton admitted that the day before the scheduled foreclosure sale he was in Mr. Person’s office; that he wanted Mr. Person’s help and that “in a joking manner” he indicated to Mr. Person that he had fired Mr. Breeden. While Mr. Payton was in Mr. Person’s office, Mr. Person telephoned someone and it seemed to Payton that the Bank’s attorney and Mr. Person “had some business, and there was some joking and things like that.” Although Mr. Payton denied knowing with whom Mr. Person was speaking he did know that some agreement was reached to postpone the foreclosure sale and that the sale was in fact postponed. The witness denied seeing the letter of April 6, 2005 to the Bank’s attorney in which Mr. Person related that his clients had informed him that Mr. Breeden was no longer their attorney and that they would authorize Mr. Person to do whatever necessary to abandon the then pending (earlier) appeal.

Upon examination by Mr. Breeden, Mr. Payton stated that initially he got to Mr. Person’s office through "the auspices of a potential buyer of the house that was being foreclosed upon.

Next, the Bank called attorney Eric Person whereupon Mr. Payton’s attorney objected to Mr. Person testifying relative to the conversation he had with Mr. Payton. The objection was overruled and Mr. Person stated that he first met Mr. Payton when a potential buyer of the property at issue brought Mr. Payton to his law office. The sale fell through, but subsequently Mr. Payton called Mr. Person’s office for an appointment on his own behalf. Mr. Person identified the Representation Agreement signed by Mr. and Mrs. Payton in his office on March |B29, 2005. Mr. Person stated that once the agreement was signed he considered himself Mr. and Mrs. Payton’s attorney.

Mr. Person testified that he called the Bank’s attorney’s office the day before the scheduled foreclosure sale and that Mr. Payton was in his office during the telephone call. He related that during the conversation, with Mr. Payton present, he informed counsel for the Bank that Mr. Payton had retained him and that Mr. Payton had fired Mr. Breeden. Mr. Person testified that Mr. Payton informed him that the reason he discharged Mr. Breeden was that his attorney fees were more than it would have taken to reinstate the loan. He went on to state that Mr. Payton made the same statement to Bank counsel over the speaker telephone during the conversation.

Mr. Person testified unequivocally that he, on Mr. Payton’s behalf, requested that the sale be postponed and in response counsel for the Bank requested that the pending appeal of the damages claim be dismissed as a condition thereof. Mr. Person was specifically asked if Mr. Payton agreed to the condition for postponing the sale and he responded that Mr. Payton agreed to it both while the telephone call was in progress and later in a separate conversation with Mr. Person. In response to Bank counsel’s request Mr. Person sent him a letter confirming their agreement. Mr. Person identified the letter of April 6, 2005 as that letter of confirmation. Continuing, Mr. Person testified that the sale scheduled for the next dáy was in fact cancelled and that was what the Bank was required to do under the agreement. As a result of complaints from the Bank’s counsel, the witness was aware that the | ^appeal had not been dismissed. Mr. Person spoke with Mr. Pay-ton many times to see why the appeal had not been dismissed. Most of the time Mr. Payton said Mr. Breeden was just hardheaded and he (Payton) did not know why the dismissal had not been effected. However, the last time Mr. Person and Mr. Payton spoke, Mr. Payton told him that Mr. Breeden had convinced him to go forward with the appeal.

On cross-examination Mr. Person acknowledged that he did not represent the Paytons in any matter other than the one involving the foreclosure.

Mr. Payton resumed the witness stand in his case in chief. Upon being asked by his attorney why he and his wife signed the contract with Mr. Person, Mr. Payton responded that the reason was related to “Fairbanks Capital, which is now Select Portfolio. They was servicing our loan on the house that we lived in .... ” When asked when he terminated the attorney-client relationship with Mr. Person, Mr. Payton replied that since no funds were exchanged, he considered it terminated “Way before this other time that came up in April.”

ASSIGNMENT OF ERRORS

Appellant’s brief does not contain a separate specification of errors. Instead, he provides a list of nineteen “Issues To Be Reviewed.” We will consider the claims in the order in which they are addressed in the “Argument” portion of appellant’s brief.

_[¡¡Attorney Client Privilege

First, Mr. Payton asserts the court below exceeded its authority when it heard testimony from attorney Person because, he contends, the purpose of the remand was to supplement the record with the letter of April 6, 2005 and any other communications concerning that letter. We disagree. The prior opinion of this court clearly states: “Bank One also filed a motion and order for stay in order to supplement the record for expedited consideration. This court partially granted the motion, solely on the issue of supplementing the record, by ordering that the record be supplemented with a letter, dated April 6, 2005, which allegedly confirmed the compromise, and ‘other written communication relating to an agreement of April 6, 2005.’ ” It is therefore abundantly clear that the record in the case of Bank One, N.A., f/k/a the First National Bank of Chicago as Trustee v. Bourgeois and Payton; 05-0744 (La.App 4 Cir. 5/24/06) at **2, 935 So.2d 710 at 712 was already supplemented by an order of his court prior to remand. In fact the previous panel that considered this matter reviewed the letter at issue: “The supplemented record contains a letter from Mr. Payton’s attorney confirming this phone conversation. The letter confirms that Bank One agreed to delay the foreclosure and states that Mr. Payton will ‘take whatever steps are necessary to abandon the appeal.’ ” Id. at **3, 935 So.2d at 712. Indeed, it is at this point in the opinion of the previous panel that a footnote was inserted on rehearing to the effect that the confusion surrounding the alleged compromise is what prompted the remand “for examination of the alleged compromise.” It is impossible to comprehend how the lstrial court below could have complied with the mandate of the remand order without hearing from the author of the letter allegedly effecting the compromise.

We find no merit to the claim that the trial court exceeded its authority by taking testimony from attorney Person.

Next, appellant complains that his oral motion to quash the subpoena to Mr. Person was denied although it was premised upon the same statute and principles as was the subpoena to the Bank’s counsel which was in fact quashed on the day of the hearing. The statute at issue is La. C.E. art. 508:

Art. 508. Subpoena of lawyer or his representative in civil cases
A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or his representative to appear or testify in any civil or juvenile proceeding, including pretrial discovery, or in an administrative investigation or hearing, where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about a client or former client obtained in the course of representing the client unless, after a contradictory hearing, it has been determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:
(1) The information sought is essential to the successful completion of an ongoing investigation, is essential to the case of the party seeking the information, and is not merely peripheral, cumulative, or speculative.
(2) The purpose of seeking the information is not to harass the attorney or his client.
(3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.
(4) There is no practicable alternative means of obtaining the information.
|flB. Waiver. Failure to object timely to non-compliance with the terms of this Article constitutes a waiver of the procedural protections of this Article, but does not constitute a waiver of any privilege.
C. Binding effect of determination; notice to client. The determination that a lawyer-client privilege is not applicable to the testimony shall not bind the client or former client unless the client or former client was given notice of the time, place, and substance of the hearing and had an opportunity fully to participate in that hearing.
D. Scope. Nothing in this Article is intended to affect the provisions of Code of Civil Procedure Articles 863 and 1452(B).

The trial judge merely stated “I’m not quashing it” but did not give reasons for refusing to quash the subpoena to Mr. Person. However, it did inquire of Mr. Payton’s attorney if he had filed “a Motion to Quash in writing” and whether he represented Mr. Person. Counsel for Mr. Payton acknowledged that he did not file the written Motion to Quash but never directly responded to the question concerning his representation of Mr. Person although the obvious answer was that he did not. We conclude from a fair reading of the record that the Judge believed Mr. Payton had waived its rights by not filing the Motion to Quash and that only Mr. Person or his counsel could invoke the provision of C.E. art. 508.

We do not believe that a Motion to Quash was essential nor indeed the only-procedural device by which to perfect Mr. Payton’s objection to Mr. Person’s testimony. The clear wording of the statute, C.E. art. 508(B), requires only a timely objection to non-compliance with the article. It does not mandate a pretrial Motion to Quash. Since the article does call for a contradictory hearing before the issuance of the subpoena, though, we conclude that it was reasonable for the trial court to have concluded Mr. Payton waived the procedural protections of C.E. art. |105Q8 by waiting until the day of trial to raise the issue. That finding, however, does not end the inquiry, as C.E. art. 508(B) specifically provides that the waiver of those procedural protections “does not constitute a waiver of any privilege.”

The lawyer client privilege may be claimed by the client, the client’s agent or legal representative. La. C.E. art. 506(D). For this reason we do not believe Mr. Person was the only individual who could assert the provisions of La. C.E. art. 508. Mr. Payton through his then current counsel had legal standing to, and was fully competent to, raise the issue on his own behalf. We do note that counsel for Mr. Payton lodged an objection to Mr. Person’s testimony insofar as the testimony might relate to conversations between Mr. Pay-ton and Mr. Person. Thus we turn to an examination of whether the conversations between Mr. Payton and Mr. Person that led up to the writing of the letter of April 6, 2005 are protected from disclosure by the lawyer client privilege.

Under La. C.E. art. 506(B), Mr. Payton has a privilege to prevent disclosure of a confidential communication made for the purpose of facilitating the rendition of professional legal services to him. Insofar as here relevant a confidential communication “is one not intended to be disclosed to anyone except those to whom it is made in furtherance of obtaining or rendering legal services for the client.” La. C.E. art. 506(A)(5). There is no privilege as to a communication which is relevant to an issue of breach of duty by a lawyer to the client or by the client to his lawyer. La. C.E. art. 506(C)(3). Applying these principles to the facts of this ease we conclude that there was no privilege in favor of Mr. Payton to prevent Mr. Person from disclosing the things they talked about on April 6, 2005.

Mr. Payton testified that he was in Mr. Person’s office the day before the scheduled foreclosure sale; that he wanted Mr. Person’s help; that he (“jokingly”) lutold Mr. Person he had fired Mr. Breeden; and that some agreement was reached to postpone the foreclosure sale. Mr. Payton’s communications to Mr. Person through which the Bank was induced to cancel the foreclosure sale could never have been intended to be confidential: of necessity they had to be communicated to the Bank’s attorney to achieve the desired settlement.

In any event, though, we find that the provision of La. C.E. art. 506(C)(3) negates any claim of privilege that Mr. Payton might have. It is abundantly clear from Mr. Payton’s Opposition to Bank One’s Exception of Res Judicata filed in the trial court that he asserts Mr. Person undertook to represent him without authority. In our view, this is quite similar, if not identical, to the situations where a client claims his attorney exceeded the authority granted to the lawyer by the client to settle a case. We find that an allegation of unauthorized representation of a putative client by a lawyer asserts a breach of duty by that lawyer against the putative client. By making that claim against Mr. Person below, Mr. Payton removed the claim of privileged communication insofar as his discussions with Mr. Person were concerned. La. C.E. art. 506(C)(3). We have not found a Louisiana case directly on point, but note that it has been addressed by at least one commentator:

At times the actions of counsel are raised in a collateral fashion. For instance, in defending against an action to enforce a settlement, a party might claim that the attorney exceeded the given settlement authority. Obviously, the privilege on that issue would necessarily be waived.
Edna Selam Epstein, 1 The Attorney Client Privilege and the Work Product Doctrine, p. 556 (American Bar Association 5th ed.2007).

See also, Grant Thornton v. Syracuse Savings Bank, 961 F.2d 1042, 1046 (1992):

lisAn attorney-client privilege may be waived if a party “injects into ... litigation an issue that requires testimony from its attorney or testimony regarding the reasonableness of its attorney’s conduct.” [citations omitted.]

In summary, we conclude that although Mr. Payton had standing to raise the issue of the purported breach of lawyer client privilege, the subject matter about wherein Mr. Person testified was not in fact privileged.

Compromise

We next consider Mr. Payton’s argument that the requisites for a compromise were not met in this case. From his brief we surmise that he makes this assertion on the premise that a compromise not reduced to writing is not enforceable and that a letter from one party setting forth his understanding of the agreement does not constitute an agreement reduced to writing within the meaning of the applicable statute.

The governing statute is La. C.C. art. 3071 which provides:

A transaction or compromise is an agreement between two or more persons, who for preventing or putting an end to a lawsuit, adjust their differences by mutual agreement, in a manner which they agree on....
This contract must be either reduced to writing or recited in open court....

Mr. Payton’s suggestion that the compromise at' issue here was not reduced to writing because it was not signed by all parties is patently incorrect. In Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981) the Louisiana Supreme Court made it abundantly clear that the requirement that such an agreement be in writing and signed by both parties “does not necessarily mean that the agreement must be contained in one document.” Id. at 523. All that is needed is a written offer signed | ]Sby the offeror and a written acceptance signed by the offeree, “even if the offer and acceptance are contained in separate writings. In other words, where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La. C.C. art. 3071 has been perfected.” Id. at 523-524.

The facts of Felder, supra, are remarkably similar to those here. There, the plaintiff was a passenger in a vehicle that was struck by defendant’s truck. Four months post-accident an adjuster for defendant’s insurance carrier met with plaintiff at his home to discuss settling the case. After discussions the adjuster offered plaintiff a sum of money to settle all claims against the defendants. When plaintiff agreed, the adjuster filled out and witnessed a release form which plaintiff signed. No one contemporaneously signed for the defendants. The next day another agent for the insurance company issued a draft to plaintiff and mailed it to him. Plaintiff never presented the draft and subsequently filed suit. In affirming the lower court’s granting of the exception of res judiciata, the Supreme Court noted that since the instrument was not cosigned by a representative of the defendants it could not be said the compromise was signed by both parties to it. However, the court concluded the document was an offer to settle which was accepted when the second agent mailed the draft. When read together the two instruments make up a written agreement outlining the obligations of each party and the acquiescence therein by each party.

Here, as in Felder, supra., Mr. Payton made an offer to the Bank to settle the case, which was transmitted to the Bank’s attorney and accepted by the Bank when it took the steps to and in fact cancelled the foreclosure sale of the property | uat issue. Mr. Payton’s reliance on Coleman v. Academy of the Sacred Heart, 93-2015 (La.App 4 Cir. 3/29/94), 650 So.2d 265 and Southern Nights, Inc. v. Barnett, 2004-0411 (La.App. 4 Cir. 8/18/04), 881 So.2d 1225 is misplaced. In Coleman, supra., the court found that neither the Colemans nor their attorney had signed anything accepting the settlement offer of the defendants. Likewise, in Southern Nights, Inc., supra, the court found that although he plaintiff had submitted letters to defendant offering a specific compromise, the defendant had never signed any document reflecting his consent to the settlement offer.

In the case at bar, however, the contrary is true. Mr. Person as attorney for Mr. Payton communicated to opposing counsel that his clients “will have me take whatever steps are necessary to abandon the appeal” and that counsel for the Bank would delay the foreclosure sale. The record also documents that counsel for the Bank instructed the Civil Sheriff to cancel the sale at issue. The reference on the instructions to the Civil Sheriff is identical to the reference on the communication from Mr. Person to counsel for the Bank. This was as mutual and as bilateral of a settlement as one could imagine.

The crux of Mr. Payton’s objection is the fact that Mr. Person concluded the agreement, when he now claims that Mr. Bree-den was still his lawyer. However, that issue was resolved against him on a credibility determination by the trial judge. We find the record replete with ample evidence to support the trial court’s conclusion that at the time at issue Mr. Pay-ton told Mr. Person he had discharged Mr. Breeden, Mr. Payton engaged Mr. person to represent him and that the settlement and compromise were known to and agreed to by Mr. Payton.

As a part of his effort to defeat the compromise Mr. Payton argues this court must determine the meaning of the documents at issue here and the intent of the l1Bparties solely from within the four corners of the instruments themselves and that parol evidence is not admissible to explain or contradict their terms. He then proceeds to parse the documents as follows:

Relying on a sentence in Mr. Person’s letter of April 6, 2005 that says, “My client, Linda Bourgeois Payton is through my office taking steps to open the succession of her mother,” Mr. Payton asserts that Mr. Person did not represent him, only Linda Payton. He then points out an inconsistency in a sentence in the next paragraph that says “My client s inform me that they are no longer represented by Pat Breeden” (Emphasis added.) The suggestion seems to be that Mr. Person was unsure of whom he represented and that if he did represent Mr. Payton, Mr. Person should have had him sign the letter to signify his consent.

We find no merit to this argument which is clearly fashioned from phrases in the letter snipped out of context. The reference to Linda Bourgeois Payton alone occurs in conjunction with her opening the succession of her mother, for whom Mr. Payton co-signed the note at issue. This work was necessary to cure procedural defects in the foreclosure proceeding as well as to clear the title for a possible subsequent sale of the property. In the very next sentence Mr. Person relates, “They have” authorized him to accept service of the writ, which was necessary to cure the procedural defect in the foreclosure proceeding. This clearly indicates that Mr. Person represents both Mrs. Pay-ton, the heir and Mr. Payton a defendant in the foreclosure proceeding by virtue of his co-signing the note. The remaining references in the letter are to plural clients, thereby including Mr. Payton. The letter when read as a whole, fairly, is not ambiguous or confusing as to whom Mr. Person represents.

| KJParol Evidence:

Mr. Payton contends it was error for the court below to admit parol evidence in resolving the issue of res judicata. He contends that La. C.C. art. 3071’s requirement for a writing is “to avoid swapping a new dispute for an old one” and that by finding Mr. Persons’ testimony credible and Mr. Payton’s evasive the court below simply swapped a new dispute for an old one.

We do not agree with this assessment. We have already explained why the lawyer client privilege did not attach to the communications at issue here and will not repeat that explanation here. When Mr. Payton contended that Mr. Person was not his attorney and that the settlement could not, therefore, have applied to him he opened the door for the admission of extrinsic evidence to determine the proper scope of the settlement agreement. See, Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741; 748-749:

The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or contradict the terms of the instrument, [citations omitted; footnote omitted.] Louisiana courts have, however, crafted a special exception to the extrinsic evidence rule for compromise agreements based upon an in pari materia reading of LSA-C.C. art. 3073’s provision that a compromise extends only to those differences the parties clearly comprehended and LSA-C.C. art. 3079’s provision that an error as to the subject matter in dispute is a ground to rescind the compromise, [citation omitted; footnote omitted.]

|17See also, Childs v. Woods, 2001-1444 (La.App. 1 Cir. 6/21/02) at *5, 822 So.2d 732 at 735: “When the scope of a release is questioned, other evidence, in the record may be reviewed to determine the intent of the parties.” [citations omitted.] See also, Rein v. Luke Edwards, LLC, 2005-754 (La.App. 3 Cir. 2/1/06), 921 So.2d 1158.

Once Mr. Payton questioned Mr. Person’s representation of him and Mr. Person’s authority to make the agreement to dismiss the appeal in exchange for postponing the foreclosure sale, it became proper for the court to hear extrinsic evidence to determine his intent and the meaning of the letter of April 6, 2005.

For the above reasons the Judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Thelma HINES v. Jerome B. HINES, Sr. Jerome B. Hines, Sr. v. Thelma Lawrence Hines. Jerome B. Hines, Sr. v. Thelma Lawrence Hines.
    Nos. 2007-CA-0156, 2007-CA-0157, 2007-CA-0164.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.
    Rita K. Akehurst II, Rita Akehurst & Associates Houston, TX, for Jerome B. Hines, Sr.
    Theon A. Wilson, New Orleans, LA, for Thelma Lawrence Hines.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Thelma Hines and Jerome Hines, Sr. were married on August 20, 1973, and divorced on February 28, 2001. A petition to partition community property was filed, set for hearing, and continued on several occasions before being heard on July 7, 2004. At the July 7, 2004, hearing, Ms. Hines was represented by counsel and Mr. Hines appeared in proper person. At the conclusion of Ms. Hines’ testimony the court rendered judgment. Mr. Hines chose not to testify or present any witnesses.

On September 3, 2004, Mr. Hines filed a petition to annul judgment on the grounds that at the time of the trial he was not mentally stable. More specifically, the judgment should be annulled under La. C.C.P. articles 2001 and 2002. In support of the petition a letter from Mr. Hines’ physician, Dr. Marta L. Cuellar, was attached. The letter confirmed that Mr. Hines suffered from psychosis induced by the medication he was taking for an inflammatory disorder and would not be competent to participate in a trial.

2In response to the petition to annul, Ms. Hines filed an exception of no cause of action and insufficiency of service of process. The insufficiency of service of process was cured prior to the hearing date and thus mooted. Upon hearing arguments for the exception of no cause of action the court sustained the exception. Mr. Hines appeals that ruling.

Although the parties’ arguments contain a lengthy explanation of the facts surrounding the partition of the community property and Mr. Hines’ medical condition, the only issue before this court is whether Mr. Hines properly stated a cause of action in his petition to annul judgment.

This court reviews the lower court’s ruling to sustain an exception of no cause of action de novo. The peremptory exception of no cause of action tests the legal sufficiency of the plaintiffs petition by determining whether the law affords a remedy on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). No evidence may be introduced by either party to support or to controvert the objection of no cause of action. Id. The court is not to look any further than the four corners of the petition. Id.

The petitioner in the instant case has alleged that his mental capacity was diminished at the time he appeared in court for the rendering of the judgment of partition of property. Thus, the judgment should be annulled under La. C.C.P. articles 2001 and 2002. Those codal articles read in pertinent part as follows:

|sArt. 2001 Grounds in General
The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.
⅜ ⅜ ⅝ ⅜ ⅜ ⅜ ⅜ :[j
Art. 2002 — Annulment for vices of form; time for action
A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.

The law clearly affords Mr. Hines the relief he has sought if he is able to establish at trial that he was incompetent at the time of his appearance on July 7, 2006. Therefore, this Court finds that the trial court erred when it sustained Ms. Hines’ exception of no cause of action. Accordingly, the judgment of the trial court is reversed and this matter is remanded for further proceedings.

REVERSED AND REMANDED.


text:
    Floyd WAGAR v. DEPARTMENT OF POLICE.
    No. 2007-CA-0365.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    James B. Mullaly, Assistant City Attorney, Penya Moses-Fields, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.

      (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

| plaintiff, Floyd Wagar, appeals from the Civil Service Commission’s (“the Commission”) dismissal of his appeal following termination of his employment with the New Orleans Police Department (“NOPD”). Plaintiffs employment was terminated for neglect of duty for taking unauthorized leave following Hurricane Katrina. For reasons that follow, we affirm.

Prior to the termination of his employment, plaintiff was a Police Officer II with the NOPD with permanent status. Plaintiff reported for duty to the Fourth Police District on August 28, 2005 at 6:00 p.m., and stayed in his parked police vehicle under the Greater New Orleans Mississippi River Bridge as Hurricane Katrina made landfall in New Orleans on August 29, 2005. At approximately 4:00 p.m. on August 29, 2005, the Captain of the Fourth District allowed his personnel to leave their posts in order to check on their homes and families. It is undisputed that plaintiff did not return to his post until September 14, 2005. Plaintiff was absent without leave for sixteen (16) days. Accordingly to guidelines established by the NOPD command staff following Hurricane Katrina, any officer absent | ¿without permission for more than fourteen (14) days following the hurricane was recommended to be terminated for neglect of duty. Upon his return to New Orleans, plaintiff was placed under emergency suspension for thirty (30) days, and resumed his duties until he was terminated by the NOPD in January 2006.

Following his termination, plaintiff filed an appeal with the Commission. A hearing was held on April 24, 2006. On January 19, 2007, the Commission rendered its decision dismissing plaintiffs appeal, thereby affirming the NOPD’s termination of plaintiffs employment. Plaintiff now appeals the Commission’s dismissal of his appeal.

The facts of this case are not in dispute. On the afternoon of August 29, 2005, a police sergeant drove plaintiff to a location approximately fourteen blocks from plaintiffs home. Plaintiff had to walk the remainder of the way home due to downed power lines and trees. Upon his arrival at his home, plaintiff was advised by his wife that she and an ill friend, Ms. Pele Jones, were concerned about their circumstances and wanted to leave the area. Plaintiffs personal vehicle had been destroyed in the storm by a fallen awning. Ms. Jones had a vehicle but was afraid to drive on the highway, and plaintiffs wife does not drive. Plaintiff drove his wife and Ms. Jones to Texas in Ms. Jones’ vehicle. He relinquished Ms. Jones’ vehicle to her relatives in Texas, and then attempted unsuccessfully to obtain a rental car. He purchased a used vehicle several days later, and notified his supervisor of his circumstances. The vehicle that plaintiff purchased needed repairs and when those repairs were completed, plaintiff brought his wife to 1 «Sulphur, Louisiana to stay with her relatives. Plaintiff returned to New Orleans on September 14, 2005. He testified that he maintained telephone contact with his supervisor throughout this entire period.

In his appeal, plaintiff argues that the Commission committed manifest error in dismissing his appeal because no discipline was warranted in this case, or, if discipline was warranted, the penalty of termination was excessive under the particular circumstances.

The applicable legal precepts in this case are as follows: An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in -writing. The employee may appeal from such disciplinary action to the City Civil Service Commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8 (1974); Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 112-113 (La.1984). The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X § 12(B).

The Commission has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Walters, 454 So.2d at 113. Legal cause for disciplinary action exists whenever an employee’s conduct impairs the efficiency of the public service in which that employee is engaged. Cittadino v. Department of Police, 558 So.2d |41311, 1316 (La.App. 4 Cir.1990). The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service. Id, at 1315.

In reviewing the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” means that there is no rational basis for the action taken by the Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

At his Commission hearing, plaintiff testified that he was aware that the NOPD was put in an emergency activation status as Hurricane Katrina approached the area. He was also aware that this meant he was mandated to report to duty and stay on duty until relieved. He was authorized to leave his post to check on his home and family on the afternoon of August 29, 2005, but he did not report again to duty until September 14, 2005. Sergeant Todd Coleman, who conducted the investigation regarding plaintiffs disciplinary action, testified that plaintiff did not say that he left the New Orleans area with permission; he stated that he left because of extenuating circumstances. Sergeant Coleman determined from his investigation that plaintiff was expected to return to work on August 30, 2005 after being allowed to return home on August 29, 2005 to check on his home and |Kfamily, and that no one in plaintiffs rank authorized him to leave the city. Deputy Superintendent Marlon De-fillo testified that no officer in the NOPD was allowed to leave the city during the first week after Hurricane Katrina because of the crisis situation. Deputy Superintendent Defillo stated that he recommended that plaintiffs employment with the NOPD be terminated at plaintiffs pre-termination hearing. He based this recommendation on guidelines established by the NOPD command staff that officers who were absent without authorization for more than fourteen (14) days were to be recommended for termination.

In dismissing plaintiffs appeal, the Commission noted that the department has rejected arguments by other police officers that compelling personal circumstances prevented them from returning to duty for more than fourteen (14) days. The Commission stated that the police department is a para-military organization that must have broad discretion to impose discipline when police officers are missing from duty during emergencies. In its opinion, the Commission noted that Deputy Superintendent Marlon Defillo testified that the department had adopted a consistent and uniform policy in handing out terminations for violations of the fourteen-day requirement for returning to duty, and no one was excused regardless of the harshness of the consequences.

In the instant case, the evidence presented at the Commission hearing supports the findings of the NOPD and the Commission that plaintiff was absent without leave for sixteen (16) days following Hurricane Katrina. We agree with the Commission’s finding that the NOPD had cause for terminating plaintiffs | (¡employment. The complained of activity in this case, i.e., neglect of duty for taking unauthorized leave following Hurricane Katrina for sixteen (16) days, certainly bore a real and substantial relationship to the efficient operation of the NOPD. The penalty of termination in this case was warranted and not excessive considering the circumstances. The Commission’s denial of plaintiffs appeal was neither arbitrary nor capricious, and was not an abuse of discretion.

Accordingly, the judgment of the Commission is hereby affirmed.

AFFIRMED.


author: MAX N. TOBIAS, JR., Judge.

text:
    Linda HOERNER and Harry Hoerner, M.D. v. BEULAH TITLE and Allstate Insurance Company.
    No. 2007-CA-0588.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.

      James Maher III, New Orleans, LA, for Plaintiffs/Appellants.
    James L. Donovan, Jr., Donovan & Lawler, APLC, Metairie, LA, for Beulah Title and Allstate Insurance Company.
    (Court Composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   MAX N. TOBIAS, JR., Judge.

I,The plaintiffs/appellants, Linda and Harry Hoerner, M.D., appeal from a judgment rendered in favor of the defendants/appellees, Beulah Title and Allstate Insurance Company (hereinafter collectively referred to as “Ms. Title”). After reviewing the record and applicable law, we affirm the judgment.

The Hoerners have owned and resided at 1511 Killdeer Street, New Orleans, for over 25 years. Their neighbor is Ms. Title, whose backyard is directly behind theirs. During Hurricane Katrina, the Hoerners’ backyard brick wall, pool, and landscaping were damaged by trees in Ms. Title’s backyard.

The Hoerners filed suit against Ms. Title and her insurer for the repairs to their property, alleging that Ms. Title was liable under La. C.C. art. 2317.1. Ms. Title argued that the trees were not defective and she is entitled to the defense of force maj-eure.

The matter came to trial on 29 January 2007 in the First City Court for the City of New Orleans. After hearing testimony and reviewing the evidence, the trial | ¡¡court rendered judgment in favor of Ms. Title. Written reason were not given by the court or requested by the Hoerners.

The Hoerners have assigned two errors for review. First, they argue that the trial court erred in finding that Ms. Title’s trees were not defective. In addition, they contend that the trial court erred in applying the defense of force majeure. In response, the defendants contend that the trial court correctly rendered judgment in their favor and that the Hoerners’ claims are extinguished by subrogation.

The Hoerners maintain that, because the trial court did not issue reasons for judgment, this court should review the evidence and the law. We review factual findings under the clearly wrong/manifestly erroneous standard, while conclusions of the law are reviewed de novo. Because the judgment does not indicate the theory upon which it is based, we apply both standards of review.

The testimony from the Hoerners indicates that they have had problems with Ms. Title’s pine trees and other foliage along their brick wall since 1991. Dr. Hoerner testified that Ms. Title allowed him to trim the trees back to the property line every time he sought permission. On many occasions, the Hoerners removed branches from Ms. Title’s trees that were hanging over the brick wall. Ms. Title’s son testified that Ms. Title also had the trees trimmed or permitted them to be trimmed. On one occasion, Ms. Title removed an oak tree from her backyard at the Hoerners’ request.

The Hoerners do not allege that the trees in question are defective through disease or otherwise. The pictures entered into evidence show that the trunks of |sthe trees were blown over by the hurricane; the damage was not caused by branches hanging over the wall. The Hoerners did not present any independent evidence that the trees fell due to lack of maintenance or improper trimming.

The Hoerners filed suit alleging that Ms. Title is strictly liable for the damages they suffered pursuant to La. C.C. art. 2317.1, which states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Under article 2317.1, in order to establish liability for damage caused by a defective thing, the plaintiff must demonstrate that the owner of the thing knew, or should have known, in the exercise of reasonable care of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care. Caples v. USAA Insurance Co., 00-2513, p. 3 (La.App. 1 Cir. 12/28/01), 806 So.2d 148, 150.

The Hoerners have admitted that the trees were healthy. However, they argue that the trees were defective because they were neglected and overgrown, and placed too close to the brick wall. However, the cases cited, by the Hoerners discussing tree maintenance and/or location involve damaged and/or diseased trees. For example, in Brown v. Williams, 36,863, p. 8 (La.App. 2 Cir. 7/31/03), 850 So.2d 1116, 1123, the court held:

j4The defendants acknowledged that during their custody of the tree, a period of more than 25 years, they did not perform any maintenance of the tree whatsoever. They did not take the step of painting over the spot where the limb had broken off ten years earlier and apparently had not even pruned the branches of this large oak tree. Defendants accepted the benefits of the tree, but refused to act to provide minimal care for the tree or to assess the health of the tree, despite the risk of significant harm to their neighbor or themselves if the tree fell due to disease or weather conditions. Based upon the particular circumstances of. this case, we cannot .say the trial court was clearly wrong in finding that the defendants should have known of the tree’s defective condition in the exercise of reasonable care and could have prevented this incident with ordinary maintenance.

The instant case does not involve a total lack of maintenance or diseased trees. Thus, under the facts presented in the matter before us, Brown does not support the Hoerners’ position.

In Greene v. Fox Crossing, Inc., 32,774, pp. 4-5 (La.App. 2 Cir. 3/1/00), 754 So.2d 339, 343, the court stated:

The Greenes countered that the magnitude of the risk and the likelihood of harm posed by the defective tree limb was great. The tree in question was located beside a paved walkway that ran through the common ground. Greene was stuck [sic] by the limb while occupying a swing only two feet from the walkway. The surroundings of the swing were described as being near a playground where children played and people often walked. In the Greenes’ view, even a cursory, periodic inspection by grounds keepers would have identified the dead limb, which could have been removed at negligible cost.

Thus, the court affirmed the jury’s judgment in favor of the plaintiffs. Again, the facts in the instant case are clearly distinguishable from those in Greene because the limbs of Ms. Title’s trees were not dead or diseased; the limbs themselves did not cause the Hoerners’ damages.

| jjBased on the evidence in the record, we do not find that Ms. Title’s trees were defective for lack of maintenance or location. The trial court was presented with conflicting evidence on the issue of maintenance; we cannot say that the trial court’s decision was unreasonable. The complaints of the Hoerners over the years, as depicted in the photographs taken shortly before Hurricane Katrina, primarily concerned the overgrowth of Ms. Title’s trees into the yard. However, as shown by the pictures taken after the storm, the trees themselves were blown over and into the brick wall, causing bricks to break off and damage the pool and other property of the Hoerners. It was not the overgrowth that did the damage.

We also agree that Ms. Title is entitled to the defense of force majeure. The winds of Hurricane Katrina caused trees to fall and damage property regardless of maintenance and/or location all over the Greater New Orleans area. Thus, we do not find that the trial court erred in applying that defense.

Based on the foregoing, we affirm the judgment of the trial court in favor of the defendants and dismissing the petition.

AFFIRMED.

      . Because the issue of subrogation was not an assignment of error raised by the Hoerners, we find that the issue is not before the court on appeal.


author: EDWIN A. LOMBARD, Judge.

text:
    William T. NEWMAN, Jr. v. Paula R. GEORGE.
    No. 2007-CA-0620.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.

      Gerald J. Calogero, Calogero Law Firm, P.L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    James M. McCaffery, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11 Defendant/Appellant, Paula George (Ms. George), appeals from the trial court’s judgment in favor of Plaintiff/Ap-pellee, William T. Newman, Jr. (Mr. Newman), in a suit on open account. For the reasons assigned below, we affirm in part and reverse in part.

RELEVANT FACTS AND PROCEDURAL HISTORY

Ms. George hired one of her tenants, Mr. Newman, who is a carpenter by trade, to perform renovations at several properties she owned, including 2403 St. Charles Avenue, 2405 St. Charles Avenue, and 1510 Carondelet Street in New Orleans, Louisiana. Ms. George agreed to pay Mr. Newman an hourly rate for his work and the work of the helpers he retained. Mr. Newman began the work in November 2000 and continued until the end of April of 2001. During the course of the work, Mr. Newman periodically hired other individuals to assist him. Mr. Newman personally purchased supplies and paid the other carpenters and helpers for their time and then added the amounts to the invoices he submitted to Ms. George. Although Ms. George paid Mr. Newman for some of the work he and his crew performed and some of the supplies Mr. George purchased for the job, Ms. | ..George ultimately fired Mr. Newman and failed to pay him the final outstanding balance he claims she owes him.

Mr. Newman filed suit on open account against Ms. George on April 5, 2004. After Ms. George answered the lawsuit, Mr. Newman filed a motion for summary judgment which the trial court granted. Ms. George then filed a suspensive appeal to this Court. A panel of this Court reversed the trial court’s judgment and remanded the case, finding issues of material fact existed with regard to the invoices. The case then proceeded to trial.

Trial began on January 11, 2007. At trial, Mr. Newman testified as to the terms of the agreement he entered into with Ms. George. According to Mr. Newman, Ms. George agreed to pay him $25.00 for his time, $15.00 per hour for other carpenters, and $8.00 for other helpers. Mr. Newman testified that he kept a record of his hours and the hours of his workers on a calendar and then submitted weekly time sheets and monthly invoices to Ms. George. Five of the invoices were introduced at trial. The final invoice was dated May 4, 2001, indicating a balance due of $12, 688.65, which included a 1% interest charge of $126.88.

Mr. Newman also testified as to the specific work he performed at the various locations at Ms. George’s direction. At 2405 St. Charles Avenue, he installed sheetrock, a new set of attic stairs, and new windows. He also took all the plaster off the walls, removed all the bathroom fixtures, re-framed walls, closed up the floor in the living room, refurbished the windows to make them operable, and repaired the entry door. Ms. George had also evicted a tenant in one of the apartments located on this property and directed Mr. Newman to remove the tenant’s remaining personal items to the street. Upon the death of another tenant in the building, Ms. George directed Mr. Newman to gut the apartment.

At 1510 Carondolet Street, Mr. Newman leveled and stabilized the back porch, opened up and reframed the walls, installed a new floor, shower, and ^bathroom vanity, and installed sheetrock and siding. Additionally, Mr. Newman he moved Ms. George’s belongings from her home in Harahan to her current home on St. Charles Avenue at her direction.

Ms. George also testified at trial. According to Ms. George, she ultimately fired Mr. Newman for hiring unauthorized workers after she and Mr. Newman had discussed letting the extra workers go. She also alleged that the work completed by Mr. Newman and his crew was performed improperly, and that she had to hire someone to correct it. Although Ms. George admitted that she owes Mr. Newman some money, she testified that feels the bill should be adjusted due to the poor workmanship and the cost of the workers that she did not authorize.

Upon the closing of the testimony, the court awarded Mr. Newman $12,688.65 for the amount due on open account, $78.00 for special damages (the cost of filing of a lien), legal interest, and $8,172.16 in attorney’s fees.

Ms. George filed the instant appeal, alleging four assignments of error. First, Ms. George argues the trial court erred by not accepting plaintiffs judicial confession that his accounts were not “accurate” and then dismissing his claim. Second, Ms. George argues the trial court erred in not following the law of the case doctrine which should be applied in this case to uphold the previous ruling of this court-showing the records were not “accurate.” Third, Ms. George argues the trial court erred in not ruling that testimony clearly proves that plaintiffs records are not “accurate and trustworthy,” thus precluding any recovery under La. R.S. 9:2781. Finally, Ms. George argues the trial court erred in awarding legal fees to plaintiff since unauthorized interest was added to the bill. In response, Mr. Newman filed an answer to the appeal, seeking additional attorney’s fees.

STANDARD OF REVIEW

“A reviewing court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong.” State in the Interest of D.J., 06-1491, p.4 (La.App. 4 Cir. 5/16/07), 959 So.2d 543, 546, citing Hanks v. Entergy Corp., 06-477, p.22 (La.12/18/06), 944 So.2d 564, 580. “In order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and (1) find a reasonable factual basis does not exist for the finding, and (2) further determine [that] the record establishes the fact-finder is clearly wrong or manifestly erroneous.” Id.

ASSIGNMENT OF ERROR NUMBER ONE

Ms. George first argues that the trial court erred by not accepting plaintiffs judicial confession that his accounts were not “accurate” and then dismissing his claim. “A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.” La. C.C. art. 1853. “A judicial confession is a party’s explicit admission of an adverse factual element and has the effect of waiving evidence as to the subject matter of the confession from issue.” Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p.6 (La.11/29/05), 917 So.2d 424, 429, citing Cheatham v. City of New Orleans, 378 So.2d 369, 375 (La.1979).

Mr. Newman brings this suit pursuant to the open account statute, La. R.S. 9:2781, which provides a cause of action to recover debts incurred on an open account for services rendered. In proving an open account under the statute, the plaintiff must first prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Rabalais v. Al-Dahir, 563 So.2d 514 (La.App. 4 Cir.1990).

Ms. George noted that Mr. Newman' testified at trial that his records were not accurate and she argues that this admission constitutes a judicial confession. However, a review of Mr. Newman’s entire testimony revealed that he testified that he kept up with the hours he and his employees worked on a calendar in his apartment. Mr. Newman stated he did not, however, keep a log of how much he [ 5paid the other employees, and that he paid them in cash. When asked by counsel for Ms. George, “[s]o your records are not really accurate?” Mr. Newman replied, “[tjhose are your words not mine.” When pressed for a yes or no answer, Mr. Newman replied, “No.” However, in Mr. Newman’s very next answer, he stated, “[ijnsofar as the monies are owed, these are accurate statements.” While the monthly invoice statements may not have contained an overly-detailed summary of the precise number of hours worked and at which property and exactly what work was performed each day, the testimony provided by both Mr. Newman and Ms. George indicated that a substantial amount of work was performed. The testimony provided detailed support for the amounts located on the monthly invoice statements. Ms. George submitted no evidence of any requirement regarding the information that must be kept in the business records in order for them to be considered accurate under the law. We find that Mr. Newman’s statement was not an explicit admission of an adverse fact; hence, the statement is not a judicial confession. Considering the work performed and the overall amount charged, a reasonable factual basis exists for the trial court’s judgment. Accordingly, the trial court was not manifestly erroneous in determining that the monthly invoices were accurate.

ASSIGNMENT OF ERROR NUMBER TWO

Ms. George next argues the trial court erred in not following the law of the case doctrine which should be applied to uphold the previous ruling of this court-showing the records were not “accurate.” Previously, Ms. George appealed the trial court’s grant of summary judgment in favor of Mr. Newman. This Court reversed, finding the affidavit and invoices of Mr. Newman insufficient to substantiate the amount sought. Newman v. George, unpub., 06-0849, p.5 (La.App. 4 Cir. 11/15/06), 943 So.2d 1279. Ms. George argues that this Court’s findings regarding the accuracy of Mr. Newman’s invoices should be applied as the “law of the case.”

| (¡In Bertucci v. Lafayette Ins. Co., 02-0242, p.3 (La.App. 4 Cir. 5/21/03), 851 So.2d 1179, this Court stated that the “law of the case” principle embodies the rule that an appellate court will not reconsider its own rulings of law in the same case. Id. at p. 4, 1182. In Bertucci, this Court was first presented with a supervisory writ taken after the trial court denied an exception of improper venue filed by a purported defendant class member. This Court reversed, finding no named plaintiff had a policy of insurance with any named defendant such that venue could be established in the Parish of St. Bernard. Thereafter, other defendants filed exceptions of improper venue, which the trial court again denied. As the appellant failed to show palpable error in the earlier writ disposition, this Court refused to reconsider its ruling of law in the writ disposition. Id. This Court applied the decision from the earlier writ disposition to the appeal and reversed the decision of the trial court. Id.

In the previous appeal in the instant case, this Court found genuine issues of material fact existed, which precluded summary judgment. However, this Court clearly noted that “Mr. Newman may well be entitled to recover the amount he seeks.” Newman, at p. 5. Nothing in this Court’s earlier judgment precluded Mr. Newman from presenting additional evidence, which includes both documents and testimony, at a trial on the merits. In the affidavit attached to the motion for summary judgment, Mr. Newman relied on the invoices to support his claim. At trial, Mr. Newman testified in detail as to the specific work performed and utilized his testimony to support the invoices and his claim. Unlike Bertucci, this Court is not called on to reconsider its rulings of law from the previous appeal in the instant case. Hence, this Court finds the law of the case doctrine is not applicable to this appeal.

1 ^ASSIGNMENT OF ERROR NUMBER THREE

Ms. George also argues the trial court erred in not ruling that testimony clearly proves that plaintiffs records are not “accurate and trustworthy,” thus precluding any recovery under La. R.S. 9:2781. We addressed the accuracy of the records argument in Assignment of Error One. For the reasons cited above, this Court finds a reasonable factual basis exists for the trial court’s judgment and a review of the record as a whole finds the trial court was not manifestly erroneous in determining that the monthly invoices were accurate and trustworthy.

ASSIGNMENT OF ERROR NUMBER FOUR

Finally, Ms. George argues the trial court erred in awarding legal fees to plaintiff since unauthorized interest was added to the bill. Further, Mr. Newman is now seeking additional attorney’s fees on appeal. As a general rule, attorney fees are not due and owing a successful litigant unless specifically provided for by contract or by statute. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978); Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976); Hughes v. Burguieres, 276 So.2d 267 (La.1973). The open account statute, La. R.S. 9:2781 provides “for reasonable attorney’s fees for the prosecution and collection of such claim ...” La. R.S. 9:2781. In order to recover attorney’s fees under La. R.S. 9:2781, a creditor must first submit a written demand correctly setting forth the amount owed to the debtor. Id. In the event that the amount claimed is not paid within thirty days, the debtor becomes liable for reasonable attorney’s fees for the prosecution and collection of such claim. Id.

In Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, (La.1984), the Supreme Court stated the amount due must be correctly stated in the demand letter. Id. at 1015. Moreover, because the award of attorney’s fees is penal in nature, the Supreme Court concluded that La. R.S. 9:2781 must be strictly construed. Id. Incorrectly adding interest to the principal amount due in the | sdemand letter was enough to disallow a claim for attorney’s fees. Id. at 1016. The Supreme Court noted that the reason for the error in the demand letter is immaterial. Id.; See also, Southern Nights, Inc. v. Barnett, 04-0411, p.4 (La.App. 4 Cir. 8/18/04), 881 So.2d 1225, 1229.

In the instant ease, the demand letter issued by Mr. Newman included a claim for interest, although Mr. Newman later withdrew the claim for interest at the start of the trial. However, Mr. Newman’s subsequent withdrawal of the claim for interest is not sufficient to comply with the requirements of La. R.S. 9:2781. Regardless of the reason for the error, the amount contained in the initial demand letter must be correct in order for recovery of attorney’s fees. In this instance, the demand letter contained an incorrect amount as it included the claim for interest. Hence, no attorney’s fees should have been forthcoming. This Court finds no reasonable factual'basis for the award of attorney’s fees, and the trial court was manifestly erroneous in awarding attorney’s fees. Therefore, this Court reverses that portion of the judgment.

CONCLUSION

Accordingly, for the reasons stated herein, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART.


text:
    Kevin BRADLEY v. DEPARTMENT OF POLICE.
    No. 2007-CA-0794.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.

      James E. Stovall, Covington, LA, for PlaintiffAppellant.
    James B. Mullaly, Assistant City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

|,Plaintiff, Kevin Bradley, Sr., appeals from the Civil Service Commission’s (“the Commission”) dismissal of his appeal following termination of his employment with the New Orleans Police Department (“NOPD”). Plaintiffs employment was terminated for neglect of duty for taking unauthorized leave following .Hurricane Katrina. For reasons that follow, we affirm.

Prior to the termination of his employment, plaintiff was a Police Officer II with the NOPD with permanent status. Plaintiff reported for duty to the Second Police District on August 28, 2005, and remained on duty as Hurricane Katrina made landfall in New Orleans on August 29, 2005. On August 80, 2005,' while plaintiff was still on duty, his wife contacted him and told him that their five-year old son was with her at Memorial Medical Center where she was employed as a neonatal respiratory therapist. Plaintiffs wife told him that she had to evacuate with her patients to Dallas, Texas, and that their son was going to be in the care of one of her co-workers at the hospital because she could not take him with her. Plaintiffs wife asked him to check on their son. When plaintiff arrived at the | ¡¿hospital, he could not locate his son, and later learned that he had been taken to San Antonio, Texas. Plaintiffs wife insisted that plaintiff go to San Antonio to get their son.

On August 31, 2005, plaintiff drove to San Antonio to get his son, and notified a co-worker of his plans. The co-worker was not one of plaintiffs supervisors. Plaintiff retrieved his son in San Antonio, and then brought him to Dallas to be reunited with his mother, When he arrived in Dallas, plaintiff learned that his wife had been laid off from her job, so he took his wife and son to Shreveport, Louisiana where plaintiffs wife’s parents lived. Plaintiff attempted unsuccessfully to reach his superiors by telephone during this time. He reported for duty again on September 17, 2005. Plaintiff was absent without authorization for seventeen (17) days.

Plaintiff was suspended for thirty (SO) days upon his return, and then returned to work until he was terminated by the NOPD following a hearing. Following his termination, plaintiff filed an- appeal with the Commission. A hearing was held on March 9, 2006. On April 30, 2007, the Commission rendered its decision dismissing plaintiffs appeal, thereby affirming the NOPD’s termination of plaintiffs employment. Plaintiff now appeals the Commission’s dismissal of his appeal.

In his appeal, plaintiff argues that the Commission erred in imposing excessive and disparate punishment, and in arbitrarily and capriciously applying punishment guidelines to him.

|oThe applicable legal precepts in this case are as follows: An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing.- The employee may appeal from such disciplinary action to the City Civil Service Commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8 (1974); Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 112-113 (La.1984). The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X § 12(B).

The Commission has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Walters, 454 So.2d at 113. Legal cause for disciplinary action exists whenever an employee’s conduct impairs the efficiency of the public service in which that employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir.1990). The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service. Id., at 1315.

In reviewing the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s |4order unless it is arbitrary, capricious or characterized by an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” means that there is no rational basis for the action taken by the Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

At his Commission hearing, Deputy Superintendent Marlon Defillo testified that according to guidelines established by the command staff of NOPD shortly after Hurricane Katrina, any officer absent without permission for more than fourteen (14) days was to be recommended for termination. Because plaintiff was absent without permission for more than fourteen (14) days, Deputy Superintendent Defillo recommended that plaintiffs employment be terminated. Sergeant Bernell Nevil, Jr., who conducted the investigation regarding plaintiffs disciplinary action, testified that plaintiff told him he did not seek permission from his supervisors to leave New Orleans to go get his child in Texas. Sergeant Nevil determined from his investigation that plaintiff was absent without authorization for a period of seventeen (17) days beginning on August 31, 2007. Plaintiff testified that he left town on August 31, 2007 to secure his family following the storm, but he admitted that he was absent without authorization for seventeen days.

In his brief, plaintiff claims that he had four (4) days of absent without pay (AWP) days available to him, and that the application of those days would have allowed for a suspension rather than termination as his punishment because his unauthorized absence would have been for less than fourteen (14) days. Plaintiff also claims that some other similarly situated officers were allowed to have their |fiAWP days considered, and received only suspensions rather than terminations. The Commission stated in its opinion that, given the nature of the post-Katrina emergency, the possibility that plaintiff would have been allowed to use AWP days is highly speculative. The Commission stated that it would not entertain this possibility.

The record before us contains no evidence that plaintiff had AWP days available to him, or that he would have been allowed to use them during his absence. Although plaintiffs counsel asked for a stipulation at the Commission hearing that plaintiff had four (4) AWP days available to him, the stipulation was not accepted. As a court of record, we cannot consider evidence that is not properly before us.

In the instant case, the evidence presented at the Commission hearing supports the findings of the NOPD and the Commission that plaintiff was absent without leave for more than fourteen (14) days following Hurricane Katrina. We agree with the Commission’s finding that the penalty of termination was correctly applied in this case by the NOPD. The complained of activity in this case, i.e. neglect of duty for taking unauthorized leave following Hurricane Katrina for seventeen (17) days, certainly bore a real and substantial relationship to the efficient operation of the NOPD. The penalty of termination in this case was warranted and not excessive considering the circumstances. The Commission’s denial of plaintiffs appeal was neither arbitrary nor capricious, and was not an abuse of discretion.

| ^Accordingly, the judgment of the Commission is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Kenneth R. HARRIS.
    No. 2006-KA-1295.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

1 ]The defendant, Kenneth R. Harris, appeals his conviction for being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction.

Relevant Facts and Procedural History

On December 23, 2004, New Orleans Police Department (NOPD) Officers Kendrick Bankston and Thomas Felix of the Third District were dispatched in response to a call reporting an armed robbery that occurred in the 200 block of Camp Street. Upon their arrival, the victim provided the officers with a brief description of the robber and the officers drove through the area looking for the perpetrator. At the intersection of Laurel and Josephine Streets, the officers saw the defendant walking down the street in clothes matching the victim’s description of the robber’s clothes. Officer Felix opened the passenger door of the police unit and directed the defendant to approach. Rather than complying with the request, the defendant backed up and retrieved a handgun from his waistband and then ran Raway. Officer Felix pursued the defendant on foot while Officer Bankston attempted to intercept him with the police vehicle.

In the 800 block of Adele Street, Officer Bankston parked and, as he exited the vehicle, heard a gunshot. Following the sound of the gunshot, Offiicer Bankston found his partner, Officer Felix, lying on his back on the ground with the defendant straddling him. Being separated from the two men by a six and one-half foot fence, Officer Bankston immediately called in a signal 108 (police officer’s life in danger). As he did so he heard his partner call to him that there was a gun by his foot. Officer Bankston looked down and saw a weapon. Shortly thereafter, several officers from the Sixth District arrived on the scene in response and assisted Officer Felix in subduing the defendant. The gun was subsequently formally seized.

The defendant was arrested and charged with being a felon in possession of a firearm. On March 1, 2005, he was arraigned and entered a not guilty plea on March 1, 2005. On August 16, 2005, the defendant was tried in front of a twelve-person jury.

Both Officer Bankston and Officer Felix testified at trial. On cross-examination, Officer Bankston conceded that when he and his partner first observed the defendant and decided to conduct and investigatory stop, the defendant was simply walking down the street with a female and there was nothing unusual in his behavior. When the defendant took off running, his female companion did nothing. Officer Bankston further testified that he observed the defendant in possession of the handgun, both when he first pulled it out of his waistband and again while he was fleeing from the officers. Officer Bank-ston admitted that he lost sight of both the defendant and his partner as they ran through |aa driveway in the new St. Thomas development and, accordingly, did not see the defendant discard the weapon.

Officer Felix’s testimony substantially corroborated that of his partner. According to Officer Felix, after he opened the car door to speak with the defendant, the defendant backed up, raised his shirt, and pulled out a weapon. He pursued the defendant on foot on Josephine Street to Annunciation Street and then into a driveway area. When Officer Felix entered the area between two buildings, he quickened his pace in hopes of stopping the defendant from escaping through the driveway but then realized that a fence prevented the defendant from going further. The defendant pointed his gun directly at Officer Felix and Officer Feliz fired his own weapon at the defendant, hitting the building. The defendant then turned around and attempted to climb the fence and, in the process, dropped his weapon onto the ground on the other side. Officer Felix pulled the defendant off the fence and held onto him until other officers arrived to assist him. Officer Felix identified the gun submitted into evidence as the gun he saw the defendant throw over the fence.

Officer Jay Jacquet, stipulated to be an expert in the identification of fingerprints, testified on behalf of the State. Officer Jacquet stated that he compared the fingerprints of the defendant, which he took in court, with fingerprints on the back of an arrest register and another set on the back of a bill of information from case number 445-527 and that the fingerprints obtained from the defendant in court matched those on the back of the arrest register and on the back of the bill of information:

The State also presented the testimony of Suzanne Fourcade, a probation and parole officer for the Louisiana Departmént of Corrections. Ms. Fourcade | testified that she supervised the defendant’s probation in connection with a conviction for possession of cocaine and, as part of her duties she informed the defendant of the conditions 'of his probation, including a prohibition on carrying firearms or dangerous weapons. Ms. Fourcade identified the form the defendant signed indicating he was aware of the conditions.

The State’s final witness, Mary Beyer, a crime scene investigator for the NOPD, identified various crime scene photographs that , she took on the night of the defendant’s arrest, as well as various pieces of physical evidence taken from the scene.

, The defense attempted to present Nike-ma Wright as its first witness, but was not allowed to do so due to the witness’s violation of the sequestration order and, according, the sole witness for the defense was the defendant. He stated that on the night of December 23, 2004 he was walking to the store with Nikema Wright when a police car drove up. Officer Felix exited and came toward him, at which point he turned and ran. With Officer Felix in pursuit on foot, the defendant stated that he ran until he came up against a fence. At that point, Officer Felix pulled him off and hit him in the head with his weapon, and the gun discharged. The defendant was told to stay on the ground, which he did. The defendant stated that he suffered injuries that required stitches and staples. The defendant denied ever being in possession of a weapon. He stated that he ran from the police because he was trying not to go to jail just before Christmas.

The jury returned a verdict of guilty as charged and, on January 17, 2006, the court sentenced the defendant to serve ten years at hard labor without the benefit of probation, parole, or suspension of sentence. The court also imposed a mandatory fine of $1,000.00 but suspended payment.

[ ¡¡Errors Patent

A review of the record reveals no errors patent.

Discussion

In his sole assignment of error on appeal, the defendant argues that he was denied the constitutional right to present witnesses on his own behalf due to the trial court’s sua sponte decision to bar his only witness from testifying due to her alleged violation of the sequestration order.

Pursuant to Article 764 of the Louisiana Code of Criminal Procedure, the exclusion of witnesses is governed by Article 615 of the Louisiana Code of Evidence which provides, in pertinent part:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
* ⅜ #
C. Violation of exclusion order. A
court may impose appropriate sanctions for violations of its exclusion order including contempt, appropriate instructions to the jury, or when such sanctions are insufficient, disqualification of the witness.

La.Code Evid. 615.

The purpose of the sequestration article is to assure that a witness will testify as to his or her own knowledge of events and to prevent testimony of one witness from influencing testimony of another. State v. Draughn, 2005-1825, p. 57 (La.1/17/07), 950 So.2d 583, 621. The trial judge, in his discretion, may determine the | ^disqualification of a witness when a rule of sequestration has been violated. Id. This ruling will not be disturbed absent an abuse of the trial court’s discretion. Id.

In the instant case, the trial transcript shows that when the defense called Nike-ma Wright to testify, and prior to any objection by the State, the trial judge ordered the “the sheriff, and the lawyers” to the bench for a conference. The supplemental transcript of the bench conference reflects that the judge inquired of a deputy whether Ms. Wright “was this witness out there talking to the people who had been sitting in the courtroom?” Upon the deputy’s affirmative response, the judge stated that the sequestration order had been violated. The judge observed that he had told the women in the courtroom to “keep still” but instead they had been going in and out of the courtroom to tell Ms. Wright what was going on, including the specific details of the police officers’ testimony.

The defense counsel argued that the women had been going in and out of the courtroom because they were caring for Ms. Wright’s baby. Counsel also contended that the nature of Ms. Wright’s testimony was “such that it wouldn’t make too much reference to anything that was said prior in here.” The trial judge responded that he would not tolerate violations of a sequestration order. In response, to the defense counsel’s insistence that he had no knowledge of what had communications occurred between the witness and the courtroom observers, the judge stated that he knew “exactly what they are doing.” The judge indicated that he would let the witness testify so long as she did make any reference to the prior witnesses’ testimony but at that point one deputy interjected that he personally heard the women tell Ms. Wright the details of one of the officer’s testimony regarding the fence and the gate. The second deputy also informed the court that he had also heard this. Based on these additional details, the trial judge determined 17that Ms. Wright would not be allowed to testify, noting that he would place additional reasons for his ruling on the record later outside the presence of the jury. The supplemental transcript shows that the judge did so, after another bench conference during which the defendant elected to testify over his counsel’s advice. The court stated:

Let the record reflect that the testimony indicated there was no one present at the scene where the gun was allegedly discharged and there were at least two people who are friends of the defendant — une came in with a baby and waived [sic] to the defendant and they moved around and exchanged waives [sic] ... and the information I have from the sheriffs office is that these two ladies had gone outside during the breaks and have not only told Ms. Wright what the witnesses have testified to but have described the area as what is described in the photographs and that is a violation of the sequestration rule.

First, we note that the defense counsel failed to make the requisite proffer of Ms. Wright’s testimony to preserve the issue. La.Code Evid. art. 103(2); State v. Watson, p. 20, 844 So.2d at 211. Accordingly, without knowledge of the nature of Ms. Wright’s testimony, it is difficult to conclude that the defendant has been materially prejudiced. We can surmise, of course, that Ms. Wright was the woman that the police officers saw with the defendant when they first encountered him walking down the street. However, as noted by the trial judge, there was no indication that Ms. Wright fled the area or followed the defendant when he ran and, accordingly, could only have testified as to the initial approach of the officers, the initial flight of the defendant, and whether she saw him pull a handgun from his waistband when the police first approached. Moreover, the defendant did not indicate in his testimony that Ms. Wright fled with him when he ran from the Ispolice. Accordingly, Ms. Wright was unable to offer testimony pertinent to the issue of whether the defendant discarded the weapon.

Clearly, once Ms. Wright was provided with the details of the testimony of both police officers, including the details about the location where the defendant was apprehended, the prosecutor’s ability to conduct meaningful cross-examination of Ms. Wright would be seriously compromised if she testified that she followed the defendant and witnesses the entire incident. In addition, the defense counsel’s comment about Ms. Wright’s testimony was that it would not “make too much reference” to the testimony of the State’s witnesses which indicates that she was not a witness to the chase and was not present when the defendant allegedly threw down the weapon. Under these circumstances, it does not appear that the defendant’s right to present a defense was seriously impacted by Ms. Wright’s disqualification as a witness as she was not in a position to testify to the facts relevant to his actual guilt or innocence.

Furthermore, any testimony would have been cumulative to that given by the defendant. The defendant’s explanation that he was on probation and did not want to go to jail before Christmas indicates that he was aware that he was in possession of something that would cause him to be immediately arrested. In light of the facts that there is no indication that the defendant was wanted for a probation violation, the police officers did not discover any contraband in his possession, and the defendant discarded the weapon while fleeing the police, it is difficult to conclude that the jury’s decision to reject his testimony that he fled the police for no reason would have been altered by Ms. Wright’s testimony.

Finally, the defendant argues that the trial judge committed legal error by raising the sequestration violation on its motion and then excluding Ms. Wright |3without a specific motion from the State. However, La.Code Evid. art. 615 specifically allows the trial court to impose a sequestration order on its own motion. Moreover, absent a clear legislative prohibition against the trial court doing so, it has the authority to raise the issue of a violation on its own motion and impose the sanction it feels appropriate. Accordingly, the trial court’s decision to exclude Ms. Wright as a witness does not constitute reversible error.

Conclusion

The defendant’s conviction and sentence is affirmed.

AFFIRMED.

      . The defendant was also charged with violating La. R.S. 14:37.2 relative to aggravated assault on a police officer. That charge is not before this Court as the jury found him not guilty on this count.

      . The record at lodging did not contain a complete minute entry of trial, but the record was subsequently supplemented with the entry which reflects defendant's presence at jury selection. The entry also reflects that the trial court ordered sequestration of all witnesses.

      . The defendant testified that he and Ms. Wright were walking from her home to the store; however, he stated that they had not been together prior to eleven p.m.