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

text:
    Heydie K. SCIACCA, M.D. v. Peter Butler IVES, Jr. & Gillian Lindsey Joy Hanson.
    No. 2006-CA-1082.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.

      James D. Bercaw, M. Tereze Matta, King, Leblanc & Bland, P.L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Peter Butler Ives, Jr., New Orleans, LA, in Proper Person/Appellee.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| TThis case arises from an action for recision of lease and eviction brought by Heydie K. Sciacca, M.D. (“Dr. Sciacca”) against Peter Butler Ives, Jr. (“Ives”) and Gillian Lindsey Joy Hansen (“Hanson”), who rented an apartment from Dr. Sciacca at 3219 Prytania Street in New Orleans in August 2005. Dr. Sciacca, Ives and Hanson executed a lease agreement on 31 July 2005 for a term of one year, with occupancy to begin on 1 August 2005. Hurricane Katrina struck New Orleans on 28 August 2005. Athough the apartment was undamaged by the hurricane, the city was closed to residents until 28 September 2005.

Dr. Sciacca asserts that following Hurricane Katrina, Ives and Hanson violated the lease agreement by failing to pay rent for the months of September, October, and November 2005. Dr. Sciacca filed a petition to rescind the lease and to evict Ives and Hanson on 4 November 2005. In her petition, she prayed for rent for the months of October and November 2005 in the amount of $2,700.00, attorneys’ fees in the amount of $675.00, and pre- and post-judgment interest and |2costs. The trial court set a rule to show cause on the eviction proceeding for 14 November 2005. The hearing was ultimately held on 14 March 2006, and Dr. Sciacca and Ives appeared to testify.

The lease agreement was admitted into evidence, and besides the signatures of the parties to the lease (Dr. Sciacca, Ives, and Hanson) and a third party witness, it bore numerous handwritten marks, amendments, and initials. Dr. Sciacca testified that all of the handwritten notations on the lease were present when the lease agreement was executed, except for the handwritten provisions that required the rent to be paid in one check by the “guarantor” and a provision that permitted Ives and Hanson to paint the apartment using only pastel paint. However, Dr. Sciacca testified that she was not seeking to enforce any handwritten provisions on the lease agreement, and that the post-signing amendments to the lease were agreed to by the parties. In particular, Dr. Sciacca maintained that she was not seeking to enforce the “one check” provision. However, Dr. Sciacca does seek to enforce a provision in the lease that renders “the obligations of all Lessees ... in solido.”

Pursuant to the lease agreement, the monthly rental for the apartment was $1,250.00 if paid by the first of the month, and $1,350.00 if paid after the first but before the third of the month. The lease also provided:

Should the Lessee at any time violate any of the conditions or provisions of this lease, or should Lessee abandon the premises (it being agreed that an absence of Lessee from the leased premises for five consecutive days after rentals have become delinquent shall create a conclusive presumption of abandonment), or the Lessee fail to pay the rent or any part thereof, or any other charges arising under this lease promptly as stipulated,.... |sSimilarly, in the event of any such default, Lessor retains the option to cancel the lease and obtain premises in accordance with the provisions of Articles 4701^4705 of the Louisiana Code of Civil Procedure. In the event of such cancellation and eviction, Lessee is obligated to pay any and all rent due and owing through the last day said premises are occupied.

The lease further provides that in the event the lessor had to hire an attorney-at-law to enforce her rights under the lease agreement, the lessee would pay attorneys’ fees of 25% of the amount of rent claimed by the lessor, or $300.00, whichever was greater. Dr. Sciacca testified that Hanson and Ives signed the lease agreement, with Ives being the “guarantor.”

Dr. Sciacca testified that she gave both Hanson and Ives two keys to the front door, as well as keys to the back door. She recounted that after Hurricane Katrina, she entered the apartment with her insurance adjuster to look for any possible damage. When she entered the apartment, only one lock was engaged to the front door. She testified that she locked the apartment after leaving with her insurance adjustor. On 4 October 2005, Dr. Sciacca went to Puerto Rico for a family wedding, returning around 10 October 2005.

Dr. Sciacca issued a “Notice to Vacate” to Hanson and Ives on or about 26 October 2005. The notice, which was entered into evidence, ordered Ives and Hanson to vacate the apartment within five days and was signed by Dr. Sciacca. The notice mentions a number of violations of the lease, including breaking windows, continually disturbing neighbors, keeping a dog on the premises, and failing to pay rent since July 2005.

Ives evacuated New Orleans as Hurricane Katrina approached the city on 27 August 2005. Ives testified that he returned to New Orleans on or around 5 September 2005, but was unable to enter the apartment due to the deadbolt lock on |4the front door for which he had no key. He learned that Hanson had no plans to return to New Orleans following the storm, and she sent him a check for her portion of the October rent, as well as several keys, none of which opened the deadbolt lock. Ives returned to New Orleans several times, and finally, approximately three and one-half weeks later, he broke a window to enter the apartment.

Ives testified that he had attempted to reach Dr. Sciacca, but that she did not return his calls until sometime around 12 October 2005. He claims that she advised him that she intended to charge him for the ruined refrigerator in the apartment, but that she would release him from the lease if he so desired because she wanted to be able to charge a higher rent. Ives testified that he was unsure as to how to proceed with Dr. Sciacca in light of her demands for him to replace the refrigerator, and he found another apartment and moved in the beginning of November 2005. Further, he received a “Notice to Vacate” from Dr. Sciacca dated 25 October 2005, advising him to leave the apartment within five days of delivery of the notice.

Ives testified that when he took possession of the apartment in August, Dr. Sciac-ea only gave him one key to the front door, although there were two locks on the door. Further, when he moved his furniture into the apartment, he had to arrange for Dr. Sciacca to open the gate to access the back of the property, because his furniture would not fit through the front door. He testified that Dr. Sciacca was aware that he did not have a key to the back gate or back door, but that she refused |fito leave the gate open for him. As a consequence, he was unable to move his furniture out of the apartment until late November 2005.

Ives admitted under cross-examination that his personal check written in the amount of $650.00 on 24 July 2005 as his portion of the security deposit was returned to Dr. Sciacca for insufficient funds. Ives asked her on 25 October 2005, via a handwritten note that was entered into evidence, to re-deposit the 24 July 2005 check as his portion of the rent for the month of October, and if she was unwilling to do so, he requested that she return the check. However, Dr. Sciacca advised him that she had already voided the check and would require a new one from him. Ives admitted that he never paid any rent for the month of November, and he never gave Dr. Sciacca another check for the October rent.

The trial court issued judgment on 10 April 2006 in favor of Dr. Sciacca, finding that Ives owed her $90.00 for the month of September and one-half of the rent for October, or $675.00. The court found that because Ives did not have access to the apartment to remove his furniture in the month of November, he did not owe any rent for that month. The trial court further awarded attorneys’ fees in the amount of $191.25, as well as costs.

Dr. Sciacca appealed, asserting that the trial court committed three errors: First, the trial court erred as a matter of law in awarding damages of only one-half of the rent against Ives when the lease provided that the rent obligation was a solidary one with Hanson. Second, she asserts that the trial court erred as a matter of law in refusing to award any rent for the month of November, when it was undisputed that Ives did not return his key to the apartment until 21 November |fi2005, and that Hanson’s personal property remained in the premises as of that date. Third, Dr. Sciacca argues that the trial court erred as a matter of law in computing the attorneys’ fees, when the lease set forth the formula for attorneys’ fees as for either 25% of the amount claimed under the lease, or $300, whichever was greater.

A lease agreement is a synallagmatic contract in which a lessor obligates himself/herself/itself to provide a thing in exchange for rent from the lessee for use of the thing for a certain term. La. C.C. art. 2668. Under a lease agreement, a lessor has three principal obligations:

1) To deliver the thing to the lessee;
2) To maintain the thing in a condition suitable for the purpose of which it was leased; and
3) To protect the lessee’s peaceful possession for the duration of the lease.

La. C.C. art. 2682 (in pertinent part). Correspondingly, a lessee’s principal obligations are:

1) To pay the rent in accordance with the agreed terms;
2) To use the thing as a prudent administrator and in accordance with the purpose for which it was leased; and
3) To return the thing at the end of the lease in a condition that is the same as it was when the thing was delivered to him, except for normal wear and tear or as otherwise provided hereafter.

La. C.C. art. 2683 (in pertinent part). If a lessee fails to pay the rent in the amount and manner agreed upon, a lessor is entitled to dissolve the lease agreement and dispossess the lessee of the property. La. C.C. art. 2704.

First we look to whether the trial court erred in awarding Dr. Sciacca only one-half of the monthly rent for the month of October, when she maintains she received only partial rent, which she refused to accept at the time, ostensibly to protect her legal posture for this case. It is undisputed that Ives did not tender a |7rent check to Dr. Sciacca for the month of October. Instead, he asked her to resubmit a check he had written months earlier to cover his portion of the security deposit, but which had been returned for insufficient funds. Dr. Sciacca had, by her own testimony, already voided that check and rendered it non-negotiable; there is no testimony that Ives ever replaced it with another check or form of payment for the October rent.

It is also undisputed that Dr. Sciac-ca did receive a check from Hanson, which she refused to negotiate because she feared that acceptance of partial rent would subject her to a jurisprudential rule that would diminish her ability to evict Ives and Hanson at some future date. See, e.g., Versailles Arms Apartments v. Pete, 545 So.2d 1193, 1195 (La.App. 4 Cir. 1989). Thus, even though Dr. Sciacca received Hanson’s check for one-half of the rent for October, she did not accept the payment and returned the check to Ives.

The Louisiana Civil Code provides that “an obligation is solidary for the obligors when each obligor is liable for the whole performance.” La. C.C. art. 1794. Dr. Sciacca maintains that under the terms of the lease, the rent obligation is solidary between Hanson and Ives, and the lease agreement supports her assertion. Therefore, she maintains that because she did not accept rent from Hanson, she is now entitled to recover the entire month’s rent from Ives as Hanson’s solidary co-obligor. There is no dispute that Dr. Sciacca received a rent check for October 2005 from Hanson, which she refused to negotiate. However, her refusal to negotiate Hanson’s check renders Ives liable for the entire rent payment for the month of October as her solidary co-obligor. Therefore, the trial court committed [«legal error in failing to find Ives liable for the entire month’s rent, which would be $1,350.00 under the lease agreement.

Next, Dr. Sciacca takes issue with the trial court’s finding that Ives was not liable for any November rent because he was denied access to the apartment to move out the furniture therein. The trial court does not elaborate on its reasoning behind this finding, but given the contradictory testimony in this case, it is clear that the trial court made a credibility determination in favor of Ives. It is axiomatic that an appellate court may not disturb a reasonable factual finding based upon a credibility determination. Stobart v. State through Dept. of Transportation & Dev., 617 So.2d 880, 882 (La.1993). As a court of appeal, we must not disturb any finding of fact that is not clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). In the present case, there is no evidence to directly contradict Ives’ claim that he could not access the back gate to move the furniture other than the testimony of Dr. Sciacca. However, she even admits in her testimony that she was aware that he needed her to open the gate for him, and that she refused to lend him a key or to leave it open without her direct supervision. It is not clear from the testimony of either party the reason for the delay in the two meeting to move out the furniture until late November. What is clear is that by late October, both parties wanted to dissolve the lease, as evidenced by Ives finding another apartment, and Dr. Sciacca delivering Ives and Hanson the “Notice to Vacate.” The record on appeal does not provide sufficient evidence to render the trial court’s finding of fact on this issue unreasonable, clearly wrong, or manifestly erroneous.

|9We affirm the court’s ruling that Ives and Hanson did not owe rent for November 2005, insofar as we affirm the finding that Ives was denied access to the apartment necessary to move his (or Hanson’s) belongings out. As we find Ives liable for the October rent in its full amount as a solidary obligor, we modify the award of back rent to $1,350.00. We also amend the attorneys’ fee award to comport with the terms of the lease agreement. As the lease agreement specifically sets forth the attorneys’ fee award as 25% of the amount sought, or $300.00, whichever is greater, we increase the attorneys’ fee award to $337.50, which is 25% of $1,350.00. Therefore, the judgment in favor of Dr. Sciacca is amended to $1,777.50, plus costs and legal interest from the date of judicial demand.

For the foregoing reasons, the judgment of the trial court is amended in part, affirmed in part, and reversed in part.

AMENDED IN PART; AFFIRMED IN PART; REVERSED IN PART.

      . The lease shows her name as spelled “Hansen”, however, in other pleadings throughout, her name is spelled "Hanson.” For consistency, we elect to spell her name "Hanson.”

      . The written lease between the parties does not specifically state the address of the leased premises; however, the record discloses no dispute as to the location of the precise leased premises.

      . However, Dr. Sciacca specifically did not seek rent for September 2005 in her petition for damages "in light of Hurricane Katrina and Hurricane Rita.”

      . Hanson did not appear at the trial, and it appears that Dr. Sciacca has not elected to proceed against Hanson, even though she has not been formally dismissed from the suit.

      . His testimony is inconsistent as to whether this was in late September or early October. However, we note that the judgment in this matter suggests that the trial court made a factual finding that he took possession of the apartment on 28 September 2005, incurring liability for two days' rent.

      . Also, it is also undisputed that a check written by Ives in the amount of $350.00 for a pet deposit was returned for insufficient funds.

      . Under the rule, a lessor may be estopped from strictly enforcing the terms of the lease agreement pertaining to payment of rent if he or she has “lulled the lessee into a false sense of security” by accepting the rent in a manner other than that originally agreed upon. Id.

      . Although we note that Dr. Sciacca asserted in her petition for damages that she was not seeking rent for the month of September, that portion of the judgment has not been targeted as an issue on appeal, and we incorporate the $90.00 into the judgment amount.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Leslie G. PETTY, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2006-CA-1069.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.

      John A. Womble, Sylvia J. Hall, Frederick A. Miller & Associates, Metairie, LA, for Appellee, State Farm Mutual Automobile Insurance Company.
    Wm. Ryan Acomb, Chauntis T. Jenkins, Porteous, Hainkel & Johnson, New Orleans, LA, for Appellants.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge LEON A. CANNIZZARO Jr.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

| pístate Insurance Company (“Allstate”), the uninsured/underinsured motorist carrier for the plaintiffs, Leslie and Thomas Petty, appeals the summary judgment dismissing the defendants, Kelly Martin (“Martin”) and her insurer, State Farm Mutual Automobile Insurance Company (“State Farm”) with prejudice. For the reasons that follow, we affirm.

This suit arises out of a June 24, 2002, four-car chain reaction collision on Interstate-10 East, just past the Bullard Avenue exit. Martin drove the lead vehicle. The plaintiff, Leslie Petty (“Petty”) drove the next vehicle followed by Walter Veit (“Veit”) who in turn was followed by the fourth vehicle driven by Joseph Beachler (“Beachler”). The following facts are undisputed by the appellant, Allstate.

The lead vehicle driven by Martin struck a box spring mattress left on the roadway by an unknown driver, which became lodged under her vehicle. She came to an abrupt stop. There is some dispute as to exactly where she brought her vehicle to a stop, whether in the left hand lane adjacent to the shoulder or on the shoulder of the roadway. The plaintiff, Petty, in the next vehicle was able to bring her vehicle to a stop in time to avoid colliding with Martin. Veit was likewise able to bring the third vehicle to a stop in time to avoid a collision with Petty. 1 ^However, Beach-ler, the fourth driver collided with the Veit vehicle pushing it into the Petty vehicle which in turn was pushed into the Martin vehicle.

On April 30, 2003, the plaintiffs sued Allstate, their uninsured/underinsured carrier, as well as all the other drivers involved in this accident. They also filed an amended complaint against Allstate for penalties and attorney’s fees resulting from Allstate’s alleged failure to timely tender payments owed under the policy, but this is not an issue in this appeal. The plaintiffs ultimately reached a settlement with Beachler for his policy limits. Thereafter, Martin and her insurer, State Farm, moved for summary judgment dismissal from this suit which motion was granted with prejudice by the trial court without written reasons on June 1, 2006. The judgment was certified to be a final, appealable judgment and this appeal by Allstate followed.

We review summary judgments de novo. Summary judgment must be granted where “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 the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B.

Allstate contends that there are genuine issues of material fact as to whether Martin was negligent in failing to pull her vehicle entirely off the road when she stopped in contravention of La. R.S. 32:141 and in her failure to keep a proper lookout which would have enabled her to see the mattress in time to avoid striking it.

A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, | affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992)

Regardless, there is no genuine issue as to the fact that the second and third vehicles were able to stop in time to avoid the collision. Therefore, as a matter of law, Martin in the lead vehicle and her insurer, State Farm, cannot be held liable for any damages sustained by the plaintiffs. Viator v. Gilbert, 206 So.2d 106, 109 (La.App. 4 Cir.1968). In Viator this Court held that:

When the lead vehicle makes a sudden stop, or one in order to execute an illegal maneuver, but the operator of a second vehicle is able to bring his car to a stop without a collision, the first driver is not liable if a third vehicle collides with the second. [Emphasis added.]

Id.

The facts in this case are even stronger than those in Viator as there was an affirmative finding that the driver of the lead vehicle in Viator was negligent in attempting to make a U-turn in the left lane of the highway during the course of which his car stalled leaving a portion of his vehicle extending into the left lane obstructing traffic. It is difficult to see how Martin’s actions in stopping in the instant case when confronted by the box spring mattress (probably best characterized as a sudden emergency) could ever be compared to the negligence of the lead car in Viator; but it would make no difference under the rule expressed by this Court in Viator.

In Viator this Court also expressed the well-known rule that the driver of the following vehicle is presumed negligent. See La. R.S. 32:81. Additionally, the Lpolice report notes finding no skid marks from Beachler’s vehicle. See Welch v. Thomas, 263 So.2d 427 (La.App. 1 Cir.1972). The police report also notes a statement from a witness, Guy Johnson, that he saw Beach-ler cutting in and out of traffic and traveling at a high rate of speed. Leslie Petty’s deposition shows that Beachler apologized for not seeing them. All of these facts support the conclusion that Beachler’s negligence was the sole cause of the chain accident. Allstate offers no witnesses or experts to show that Martin should have seen the mattress sooner or that she should have taken some other action. Therefore, even in the absence of the foregoing facts and assuming for purposes of argument only that Martin was to some extent negligent as alleged by Allstate by not getting her car completely out of the flow of traffic and in failing to see the mattress sooner, we find nothing in Allstate’s view of the facts so compelling as to cause this Court to abandon the position the Court assumed in Viator where the negligence of the lead driver was much more egregious than the negligence that Allstate alleged occurred in the instant case. This is very different from saying that this Court affirms the granting of the motion for summary judgment based on a finding that it is most unlikely that Allstate would fail to persuade a reasonable fact finder at a trial on the merits. This Court recognizes that that is not the standard of review for summary judgments. Chapeuis v. Cassimano, 568 So.2d 606 (La. App. 4 Cir.1990); Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.1991).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . As Allstate relies upon the police report in making its appellate argument, it can have no objection to references by this Court to that report in spite of the fact that such police reports are not normally self-proving documents.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. John N. NIONS.
    No. 2006-KA-1374.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A LOMBARD).
   TERRI F. LOVE, Judge.

11 STATEMENT OF THE CASE

The State filed a bill of information charging the defendant-appellant, John Nions, with one count of distribution of cocaine, a violation of La. R.S. 40:967(A). He entered a not guilty plea at his arraignment. After counsel waived motions, the appellant proceeded to a trial before a twelve-person jury. After hearing the testimony, the jury returned a verdict of guilty as charged. The court sentenced the appellant to five years at hard labor, of which, three were ordered suspended. The appellant immediately filed a motion for an appeal, which was granted.

FACTS

Detective Nickki Johnson was assigned to the Major Narcotics Unit of the New Orleans Police Department. The unit was targeting street-level narcotics dealers at the time, and Detective Johnson was participating as an undercover officer. She was driving on Lyons Street near Magazine when she saw the defendant standing in front of a store. She signaled to the defendant in a manner designed to determine if he was selling any narcotics. She then pulled her vehicle over and parked. The appellant walked up to the driver’s side of the vehicle. Detective Johnson asked him for two dimes, which she testified was street slang |afor narcotics, either crack cocaine or marijuana. The defendant handed her two pieces of crack cocaine, which were wrapped inside a piece of plastic. The detective gave him money and drove away.

After driving away, Detective Johnson advised the take-down team over the radio of what had transpired. She provided a description of the appellant and his clothing. She subsequently turned over the cocaine that she obtained from the appellant to Detectives Corey Robinson and Yussef Willoughby.

At trial, Detective Johnson identified the appellant as the man who sold her narcotics. She further identified a videotape of the narcotics transaction, which had been made with the equipment in the van that she was driving at the time of the undercover operation. The tape was played for the jury.

On cross-examination, Detective Johnson stated that the appellant was coming out of the store when she first saw him and he did not wave her down. Instead, she signaled to him by making a gesture as if she were smoking to see if he would come over.

Detective Willoughby testified at trial that he participated in the “buy/walk” operation on this day. He explained that in a “buy/walk” operation, after a sale is made to the undercover officer, the take-down team moves in to identify the subject. The take-down officers photograph the subject, obtain his name and information, and then let him go. The police later obtain an arrest warrant for the subject and execute it after the operation has entirely concluded. The detective stated that, for this particular operation, he was in an unmarked vehicle from which he could hear the conversation between the undercover officer and suspected narcotics dealer; his role was described as surveillance and cover for Detective Johnson. He observed the transaction between her and the appellant.

| sDetective Corey Robinson testified that he also was acting in a surveillance capacity on the day of the incident. He was unable to observe the transaction because of his position, however. He later received the evidence from Detective Johnson and maintained custody of it until he turned it over to Central Evidence and Property. The parties stipulated that Criminalist Harry O’Neal would testify that the material placed into evidence tested positive for cocaine.

The defense presented no witnesses.

ERRORS PATENT

A review of the record reveals one error patent. When the court imposed sentence, it ordered that the appellant serve two years of the five-year sentence and suspended the remaining three years. However, the court failed to further order that the first two years be served without the benefit of parole as required by La. R.S. 40:967(B)(4)(b). However, as per La. R.S. 15:301.1A and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with this restriction even in the absence of the trial court’s failure to delineate it. Thus, there is no need for this Court to correct the sentence.

ASSIGNMENT OF ERROR AS TO ENTRAPMENT

The appellant assigns a single error: that the State failed to meet its burden of proof by failing to prove beyond a reasonable doubt that he knowingly and intentionally distributed cocaine and was not entrapped into doing so.

“Entrapment” is an affirmative defense that applies when a law enforcement official originates the idea of the crime and induces another person to engage in conduct constituting the crime, when the other person is not otherwise disposed to do so. The defendant claiming entrapment must prove the defense by a preponderance of the evidence. State v. Brand, 520 So.2d 114, 117 (La.1988); State v. Smith, 97-2221 (La.App. 4 Cir. 4/7/99), 734 So.2d 826, 831, writ denied, 99-1128 (La.10/1/99), 747 So.2d 1138. To adequately support an entrapment defense, the defendant must present exculpatory circumstances that defeat culpability even though the |4state proved all essential elements of the crime beyond a reasonable doubt. State v. Byrd, 568 So.2d 554 (La.1990); State v. Cheatwood, 458 So.2d 907 (La.1984); 584 So.2d 724, State v. St. Amant, 584 So.2d 724 (La.App. 4 Cir.1991). The reviewing court must consider the defendant’s predisposition to commit the crime as well as the conduct of the police officers involved. State v. Batiste, 363 So.2d 639 (La.1978).

State v. Harry, 01-2336, pp. 9-10 (La. App. 4 Cir. 6/26/02), 823 So.2d 987, 995.

In entrapment cases, courts are called upon to draw a line “between the trap for the unwary innocent and the trap for the unwary criminal.” State v. Brand, 520 So.2d 114, 117 (La.1988). “An entrapment defense will not lie if the officers or agents merely furnished a defendant who is predisposed to commit the crime the opportunity to do so.” State v. Moody, 393 So.2d 1212, 1216 (La.1981). State v. Prudhomme, 532 So.2d 234, 240 (La.App. 3 Cir.1988). Allegations of entrapment are reviewed on appeal under the standard for sufficiency of evidence enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970). State v. Long, 97-2434, pp. 10-11 (La.App. 4 Cir. 8/25/99), 744 So.2d 143, 150-51. The relevant inquiry is “whether any rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could conclude that the defendant did not prove that he was entrapped by a preponderance of the evidence.” State v. St. Amant, 584 So.2d 724, 726 (La.App. 4 Cir.1991).

In State v. Weaver, 99-2177 (La.App. 4 Cir. 12/6/00), 775 So.2d 613, the defendant argued that it was clear that an undercover police officer took the lead in inducing him to distribute narcotics because the officer had approached the defendant and asked for a “dime.” Id. at p. 4, 775 So.2d at 616. This Court rejected the defendant’s argument, noting that the undercover police officer testified at trial that the defendant had signaled to him to stop, “thus drawing the officer’s attention to him.” Id. When the officer asked the defendant what was | Rgoing on, the defendant asked him what he was looking for. When the officer indicated that he wanted dimes, the defendant replied that he had only narcotics valued at twenty dollars. As soon as the officer agreed to accept the larger amount, the defendant pulled two pieces of crack from a canister and handed them to the officer, then accepted money in return.

The only difference between Weaver and the instant case is that Detective Johnson made a gesture indicating she was looking for narcotics to smoke; the appellant did not wave her over. However, she did not physically approach him, as the officer did in Weaver. Instead, she parked her vehicle, and the defendant walked over to her. When she asked for narcotics, he immediately produced crack cocaine from his person, gave it to her, and received money in return. Notably, Detective Johnson testified she did not specify whether she wanted cocaine or marijuana; the exact type of narcotics given to her by the appellant was his decision. Furthermore, the videotape of the transaction was played for the jury, and thus the jurors were able to confirm for themselves on a first-hand basis that Detective Johnson did not have to induce the appellant to sell her narcotics.

In any event, the mere fact that a police officer approaches the defendant first does not mean that the subject has been entrapped. For example, in State v. Alford, 99-0299 (La.App. 4 Cir. 6/14/00), 765 So.2d 1120, the police were targeting the defendant for drug sales in the Central Business District. An undercover police officer went to the defendant’s place of employment and inquired as to whether the defendant would sell him fives ounces of cocaine for $4,700.00. The defendant indicated that he did not have the cocaine on site, but could have someone bring it. During this conversation, one of the defendant’s fellow employees, Marquis Davidson, made a phone call. However, after a wait of |fiseveral hours, no cocaine had been delivered. The defendant told the officer to return the following day. When the officer came back, there was another delay, but finally, a vehicle occupied by several persons arrived. Davidson went to the vehicle, obtained the cocaine, and showed it to the officer, who then said he would get the money from his car. As the officer pretended to do so, he signaled to the rest of the narcotics team to move in and arrest all of the subjects.

On appeal, Alford argued that the evidence demonstrated that the undercover officer approached him and persuaded him to obtain the cocaine to sell him, and that he was induced to do so because of the large amount of money offered. The defendant noted that he had no cocaine on his person or within the vicinity when approached and ultimately had some difficulty obtaining it for the officer. In rejecting the defendant’s argument, this Court noted that, even if the defendant were induced to sell narcotics, the State more than proved that he had the predisposition to commit the crime. This Court noted that the defendant readily offered to find the drugs and pursued the matter on the following day. Also, this Court noted that the undercover officer had testified that, during the wait on both days, the defendant had offered to sell marijuana.

Here, Detective Johnson’s sole action that could be remotely considered inducement was her gesture to the appellant, which indicated she was in the market to purchase narcotics. The appellant was clearly predisposed to sell narcotics and initiated the conversation with the officer.

This assignment of error lacks merit.

DECREE

The appellant’s conviction and sentence are affirmed.

AFFIRMED.


author: MAX N. TOBIAS, Jr., Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Eddie TRIPLETT.
    No. 2006-K-1508.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 2007.
    Eddie Triplett, Angola, LA, In Proper Person, Relator.
    (Court Composed of Judge MAX N. TOBIAS, Jr., Judge DAVID S. GORBATY, and Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, Jr., Judge.

CThe relator, Eddie Triplett, seeks review of the trial court’s judgment denying his motion to correct an illegal sentence in light of La. R.S. 15:308, as amended by Louisiana Acts 2006, No. 45. La. R.S. 15:308 declared that Louisiana Acts 2001, No. 403 should be applied retroactively. For the following reasons, we affirm.

On 22 October 1998, a jury found the relator guilty of possession of cocaine, a violation of La. R.S. 40:967. He was subsequently adjudicated a fourth felony offender pursuant to La. R.S. 15:529.1 and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. This court affirmed his conviction and sentence in an unpublished opinion. State v. Triplett, 00-0620, unpub. (La.App. 4 Cir. 1/17/01), 786 So.2d 980, writ denied, 01-0654 (La.1/12/02), 816 So.2d 865.

The gravamen of the dispute is whether the trial court had jurisdiction to review and reduce the relator’s sentence pursuant to La. R.S. 15:308, as amended by Louisiana Act 2006, No. 45.

12In State v. Dick, 06-2223, 06-2226 (La.1/26/07), 951 So.2d 124, the Louisiana Supreme Court held that the exclusive remedy of an offender (such as Mr. Triplett) for relief under La. R.S. 15:308 is before the Louisiana Risk Review Board and not before the district court, because in effect the offender is seeking a commutation of sentence; commutation of a sentence falls exclusively, pursuant to the Louisiana Constitution, to the executive branch of government. Id. at p. 2, 951 So.2d at 126. The Louisiana Risk Review Board falls within the executive branch of government.

The trial court did not err in refusing to grant the relator relief pursuant to La. R.S. 15:308. The judgment sentencing Mr. Triplett to life imprisonment without the benefit of probation, parole, or suspension of sentence was a final, definitive judgment over which the trial court had no jurisdiction to modify under La. R.S. 15:308.

Therefore, we grant the relator’s application for a supervisory writ of review, but affirm the trial court’s judgment denying him relief.

SUPERVISORY WRIT GRANTED; JUDGMENT AFFIRMED.

LOMBARD, J., concurs.

LOMBARD, J.,

concurring.

IT concur in the result. See State v. Dick, 06-2226 (La.1/26/07), 951 So.2d 124.

      . See La. R.S. 15:574.22 and La. R.S. 15:477.22 A.

      . The decision also specifically reversed this court’s decision in State v. Smith, 06-1212, unpub. (La.App. 4 Cir. 9/8/06).


author: WILLIAMS, Judge. Per Curiam

text:
    Charles Marion SAMPOGNARO, Plaintiff-Appellee-Appellant v. Patricia Clotile Wilson SAMPOGNARO, Defendant-Appellant-Appellee.
    No. 41,664-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 2007.
    Opinion Granting Rehearing in Part April 11, 2007.

      Kenneth Rigby, Shreveport, for Appellant-Appellee, Patricia Clotile Wilson Sam-pognaro.
    Robert S. Tew, Robert P. McLeod, Jr., Monroe, for Appellee-Appellant, Charles Marion Sampognaro.
    Before WILLIAMS, CARAWAY and SEXTON (Pro Tempore), JJ.
   WILLIAMS, Judge.

liThe plaintiff, Charles Sampognaro, appeals that part of the trial court judgment ordering him to pay child support of $5,500 per month “inclusive of and less” any payments he may make to third parties for “extraordinary expenses” of the children. The defendant, Patricia Sampognaro, appeals the trial court’s failure to state in the judgment that the list of such expenses is exclusive and that plaintiff must provide defendant with an accounting of such payments. In addition, defendant appeals that part of the judgment ordering that her one-half interest in the co-owned land is subject to a reimbursement of $284,873 to plaintiff. For the following reasons, we amend and affirm as amended.

FACTS

The parties were married in June 1989 and two sons were born of the marriage. Prior to their marriage, the parties executed a matrimonial contract and prenuptial agreement, which established a separation of property regime rather than one of community property. In May 1997, the plaintiff donated to the defendant an undivided one-half ownership interest in a tract of land located on Deborah Drive in Monroe, Louisiana (“Deborah Drive tract”), on which the marital home was built. The parties executed a mortgage and promissory note to obtain a portion of the construction funds. The plaintiff spent additional funds for construction and maintenance of the house and paid the monthly mortgage payments. On February 1, 2003, the parties separated. Plaintiff has exercised the exclusive use of the Deborah Drive property since that time. In July 2004, a judgment of divorce was rendered.

| ¡.Subsequently, the plaintiff filed a petition to partition the Deborah Drive tract seeking reimbursement for funds which he spent with respect to the co-owned land for mortgage payments, property taxes and insurance, maintenance, repairs and construction costs. In April 2005, the trial court held a hearing on the issues of child support and partition. The parties had previously agreed to a “shared custody” plan providing for each parent to have physical custody of the minor children on alternating weeks.

The trial court rendered judgment ordering plaintiff to pay child support of $5,500 per month, inclusive of and less any amounts paid by plaintiff to third parties for “extraordinary expenses of the children, including child care, private school tuition, uniforms, tutoring and summer camps.” In addition, the trial court partitioned the co-owned property by allocating 100% ownership of the Deborah Drive tract to plaintiff, subject to the outstanding mortgage debt, and finding that the value of defendant’s one-half interest in the property was $364,390, subject to the reimbursement amount of $284,873 owed to plaintiff. The judgment ordered plaintiff to pay an equalizing sum of $79,517 to defendant.

Both parties have appealed. Plaintiff contends the child support award of $5,500 per month is excessive in light of the shared custody arrangement. Defendant contends the court erred in awarding plaintiff any reimbursement, in failing to limit direct payments to third parties to those expenses listed in the judgment and failing to require plaintiff to provide an accounting of such payments.

DISCUSSION

| sThe plaintiff contends the trial court erred in ordering him to pay excessive child support of $5,500 per month. Plaintiff argues that the trial court should have applied LSA-R.S. 9:315.9 in calculating the child support obligation because each parent has physical custody of the children for an equal amount of time under their shared custody arrangement.

LSA-R.S. 9:315.19 provides a schedule to be used to determine basic child support. The highest level specified in the schedule is a combined adjusted gross monthly income of $20,000. At that level, for two children, the basic support amount is $2,647. However, LSA-R.S. 9:315.13(B) provides that if the parties’ combined adjusted gross income exceeds the highest specified level, the court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in LSA-C.C. art. 141, but in no event shall the payment be less than the highest amount stated in the schedule.

The overriding factor in determining the amount of support is the best interest of the children. The amount of support should be determined on a case-by-case basis. A parent’s ability to pay and the lifestyle that the children would have enjoyed if the parents had not separated are important considerations. Jones v. Jones, 38,790 (La.App. 2d Cir.6/25/04), 877 So.2d 1061; Reeves v. Reeves, 36,259 (La.App. 2d Cir.7/24/02), 823 So.2d 1023. Pursuant to the express language of LSA-R.S. 9:315.13, the district court must use its discretion in setting the amount of the basic child support obligation when the parties’ monthly income exceeds the highest figure provided in the schedule, and its judgment will not be disturbed absent an 1¿abuse of that discretion. Jones, supra.

In the present case, the plaintiff submitted to the trial court a worksheet purportedly using the child support calculation provided in LSA-R.S. 9:315.9. In his brief, plaintiff argues that the trial court should have used the figures in his worksheet as the basis for setting his child support obligation because of the parties’ shared custody arrangement. Section 315.9 defines shared custody as the parents’ physical custody of the child for an approximately equal amount of time. The statute provides the mathematical calculation for determining the support obligation of each parent using “Obligation Worksheet B” provided in LSA-R.S. 9:315.20. Lea v. Sanders, 04-762, 04-1122 (La.App. 3rd Cir.12/22/04), 890 So.2d 764.

However, we note that even in a shared custody situation, the calculation of the child support obligation is based on the child support schedule set forth in Section 315.19, as reflected in line five of Worksheet B. As the trial court noted, because the parties’ combined monthly income of $37,361 exceeds the highest figure listed in the statutory schedule, the child support amounts in the schedule are not applicable in either a joint or shared custody situation. Rather, pursuant to Section 315.13, the trial court was required to use its discretion to determine the child support obligation based on the best interest of the children and the parents’ circumstances.

The district court heard the testimony of the parties concerning the mother’s monthly living expenses, the children’s standard of living during the marriage and the father’s income. In its written reasons for judgment, the court declined to allocate to plaintiff the entire amount of the children’s | diving expenses as sought by the defendant, noting each parent’s obligation to support their children and defendant’s income. Contrary to plaintiffs contention in his brief, the court specifically considered the shared custody arrangement of the parties in determining the child support award. Based upon this record, we cannot say the trial court abused its discretion in ordering the plaintiff to pay child support of $5,500 per month. The assignment of error lacks merit.

Appeal of Patricia Sampognaro

In two assignments of error, defendant contends the trial court erred in rendering a judgment which failed to specify that the list of extraordinary expenses that plaintiff would pay directly to third parties was exclusive and failed to require plaintiff to provide defendant with an accounting of such payments. After the trial on the issues of child support and partition, the parties were unable to agree on the language to be included in the final written judgment. Consequently, the court held a conference with the parties’ attorneys to assist them in preparing the judgment.

At the conference, the court stated its intent that the monthly child support payment of $5,500 would include those extraordinary expenses normally paid by plaintiff during the marriage and which were described in an exhibit as child care, private school tuition, uniforms, tutoring and summer camps. The court indicated that the plaintiff could pay these expenses directly to the third party providers. However, the court instructed plaintiff to provide defendant with a monthly accounting listing the amount of any such direct payments being deducted from the total child support amount, along with the check for the balance owed. Subsequently, the trial | (¡court signed a judgment ordering plaintiff to pay defendant child support of $5,500 per month “inclusive of and less all direct payments paid during the course of these proceedings or hereafter paid to third parties by petitioner for extraordinary expenses of the children, including child care, private school tuition, uniforms, tutoring and summer camps, said child support payment to be made on the 25th day of each month beginning January 25, 2006.”

After reviewing the record, we conclude that the judgment as written reflects the trial court’s intent that those expenses reasonably related to the care, education and recreational activities of the children may be paid directly to third party providers by the plaintiff and deducted from the child support award of $5,500 per month. However, we shall amend the judgment to require plaintiff to provide defendant with a written accounting in any month such third party payments are made.

Partition

In three assignments of error, the defendant contends the trial court erred in awarding plaintiff a reimbursement of $284,873. Defendant argues that LSA-C.C. art. 806 does not authorize reimbursement of plaintiffs mortgage payments and construction expenses.

Initially, we note that because the parties signed a prenuptial agreement establishing a separation of property regime, the division of property is governed by the Civil Code articles concerning ownership in indivisión, LSA-C.C. arts. 797-818. Ownership of the same thing by two or more persons is ownership in indivisión. The shares of all co-owners are presumed to be equal in the absence of other provisions of law. LSA-C.C. art. 797. A co-owner who because of the thing held in indivisión has | incurred necessary expenses, ordinary maintenance and repair expenses, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners. LSA-C.C. art. 806. Among solidary obli-gors, each is liable for his virile portion. If the obligation arises from a contract, the virile portions are equal in the absence of agreement to the contrary. LSA-C.C. art. 1804.

In the present case, the parties jointly executed a mortgage and promissory note to secure funds for construction of a house on the co-owned land. At trial, the defendant acknowledged that she was responsible for her share of the mortgage debt and that plaintiff had made all of the mortgage payments. As defendant points out in her brief, a mortgage payment is not an expense within the meaning of Article 806, but is a non-possessory right created over property to secure the performance of an obligation. Cahill v. Kerins, 34,522 (La. App. 2d Cir.4/4/01), 784 So.2d 685. However, contrary to defendant’s contention, the inapplicability of Article 806 does not mean that plaintiff cannot recover reimbursement for one-half of the mortgage payments. Pursuant to Article 1804, the defendant, as a co-debtor under the promissory note, was required to reimburse plaintiff for his payment of defendant’s portion of the contract obligation. Thus, the trial court did not err in concluding that plaintiff was entitled to recover one-half of the mortgage payments, or $161,878.

The defendant contends the trial court erred in awarding plaintiff reimbursement of $86,365 in construction expenses. LSA-C.C. art. 804 provides that substantial improvements to the thing held in indivisión may be undertaken only with the consent of all co-owners. When a eo-owner |smakes substantial improvements consistent with the use of the property, though without the consent of his co-owners, the rights of the parties shall be determined by LSA-C.C. art. 496. Under Article 496, when constructions or plantings are made by a possessor in good faith, the owner of the immovable is bound to keep them and at his option to pay the possessor either the cost of materials, their current value or the enhanced value of the immovable.

In her brief, defendant argues that the Article 804 reference to reimbursement under Article 496 is not applicable in this case, since the parties consented to the improvements. However, a reading of the Civil Code articles involving co-ownership and the ownership of improvements demonstrates that reimbursement for a co-owner’s costs of improvements is the general rule. Additionally, in Franklin v. Franklin, 415 So.2d 426 (La.App. 1st Cir.1982), the court stated that an owner in indivisión of an immovable who is in possession thereof, and who constructs improvements thereon, is entitled to be reimbursed the cost of the materials. Thus, under the circumstances of this case, we cannot say that the trial court erred in allowing plaintiff reimbursement of $86,365 in construction costs.

The defendant also contends the trial court erred in failing to find that the reimbursement for property taxes, insurance and maintenance expenses was subject to an offset for plaintiffs exclusive enjoyment of the co-owned property. LSA-C.C. art. 806 provides that if the co-owner who incurred ^necessary or maintenance and repair expenses had the enjoyment of the thing held in indivisión, his reimbursement shall be reduced in proportion to the value of the enjoyment.

In this case, the plaintiff introduced evidence of the amount of his property taxes, insurance costs and maintenance expenses. The record showed that plaintiff enjoyed exclusive occupancy of the marital home for 27 months from February 2003 through April 2005. Plaintiff testified that the value of his use and enjoyment of the home was approximately $2,000 per month.

Plaintiff argues that defendant is not entitled, to an offset under Article 806 because she failed to produce probative evidence of the value of his enjoyment of occupancy. Plaintiff contends that as a dentist, he lacked sufficient expertise to give a rehable estimate of such value. However, we note the plaintiff testified that in addition to his dental practice, plaintiff owned commercial rental property which he leased. Thus, the testimony demonstrates that plaintiffs experience with leasing office space provided a basis for his estimate of the value of his enjoyment of the house. In addition, the record shows that the total taxes, insurance and maintenance costs paid by plaintiff were approximately $31,000 per year, or $2,600 per month. These expenses are consistent with the plaintiffs estimate of the value of his enjoyment of the property.

The evidence presented establishes that a reasonable value of the plaintiffs enjoyment of the co-owned property was $2,000 per month. Thus, pursuant to Article 806, plaintiffs reimbursement for taxes, insurance and maintenance expenses must be reduced by one-half of that amount, or 1 in$27,000 (27 months x $1,000). Applying the offset for the enjoyment value results in a reimbursement to plaintiff of $9,630. Consequently, the total reimbursement to plaintiff is $257,873, with an, equalizing payment of $106,517 due to defendant. We shall amend the judgment accordingly.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to order plaintiff, Charles Sampognaro, to provide defendant, Patricia Sampognaro, with a written accounting in any month direct payments to third parties are deducted from the monthly child support obligation of $5,500. In addition, the judgment is amended to reduce the reimbursement to Charles Sampognaro to the amount of $257,873, and to order him to pay Patricia Sampognaro an equalizing payment of $106,517. In all other respects, the judgment is affirmed. Costs of this appeal are assessed equally to the parties.

AMENDED AND AFFIRMED AS AMENDED.

Per Curiam

on Rehearing.

Before BROWN, WILLIAMS, STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.

PER CURIAM.

pThe rehearing application in this case is granted for the limited purpose of clarifying this court’s opinion as it pertains to the child support award. The “Supplemental Reasons for Judgment” demonstrated the trial court’s intent to provide for an enforceable child support award by requiring the itemization in the judgment of the extraordinary expenses which plaintiff had ordinarily paid directly to third parties. Considering the trial court’s intent, our original opinion indicated that any such expenses must be reasonably related to the itemized list. However, in order to make our opinion more explicit, we hereby further amend that part of the trial court judgment awarding child support as follows:

IT IS ORDERED that there be judgment herein ordering CHARLES MARION SAMPOGNARO, Petitioner, to pay child support in the total amount of Five
Thousand Five Hundred and No/100 ($5,500.00) Dollars per month to PATRICIA CLOTILE WILSON SAMPOGNA-RO inclusive of and less all direct payments paid during the course of these proceedings or hereafter paid to third parties by Petitioner for the following extraordinary expenses of the children: child care, education tuition, school uniforms, tutoring and summer instructional or recreational camps, exclusively. Said child support payments to be made on the 25th day of each month beginning January 25, 2006.

In all other respects, our opinion on original hearing remains in full force and effect and the rehearing application is otherwise denied.

LIMITED REHEARING GRANTED; JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

BROWN, C.J., concurs but would grant rehearing on other issues.

SEXTON, J., concurs, but would grant a rehearing.

      . In resolving co-ownership issues which are not precisely addressed in the specific code articles for co-ownership, courts will refer to the principles in the law regarding ownership, successions, and partnership. Moody v. Arabie, 498 So.2d 1081 (La.1986). Although Article 804 does not directly address this situation where the co-owners have consented to the improvement, reimbursement to the co-owner is analogous to the partnership principle reflected in LSA-C.C. art. 2803, which provides for restoring a partner’s contribution to capital according to the contribution made.


author: DENNIS R. BAGNERIS, Sr., Judge. MURRAY, J.,

text:
    Gerald ETTER v. HIBERNIA CORPORATION, J. Herbert Boydstun, E.R. “Bo” Champbell, Paul Candies, Richard W. Freeman, Jr., Dick H. Hearin, Randall E. Howard, Elton R. King, Sidney W. Lassen, Janee “Gee” Mercadel-tucker, et al.
    No. 2006-CA-0646.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.

      Lee D. Rudy, Schiffrin & Barroway, LLP, Radnor, PA, and Mitchell J. Hoffman, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Gerald Etter.
    Jennifer N. Willis, Cater & Willis, APLC, New Orleans, LA, and Gary J. Gambel, New Orleans, LA, for Appellants, Gary J. Gambel, Carol C. Gambel and William C. Gambel.
    William C. Gambel, Milling Benson Woodward L.L.P., New Orleans, LA, for Appellants, William J. Curry, Jr., Joy Nalty Hodges, Charles L. Gambel, Jr., etc.

      William Savitt, Wachtell, Lipton, Rosen & Katz, New York, NY, and Harry A. Rosenberg, Phelps Dunbar L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, Sr., and Judge LEON A. CANNIZZARO, Jr.).
   DENNIS R. BAGNERIS, Sr., Judge.

liThe issue in this case is whether the trial court properly approved the certification and settlement of a class action brought by a class of purported holders of Hibernia Corporation (“Hibernia”) common stock. Upon finding that the trial court did not abuse its discretion by approving the certification and settlement, we hereby affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On March 6, 2005, Hibernia and Capital One Financial Corporation (“Capital One”) entered into an Agreement and Plan of Merger whereby Capital One would acquire Hibernia’s 155 million outstanding shares in exchange for consideration valued at approximately $33 per share as of the announcement of the merger.

On April 22, 2005, plaintiff, Gerald Et-ter, filed a petition on behalf of a putative class of Hibernia shareholders naming as defendants Hibernia and the individual members of Hibernia’s Board of Directors. The petition alleged that Hibernia’s directors had breached their fiduciary duties owed to Hibernia shareholders by: (1) agreeing to an inadequate merger price; (2) agreeing to an unreasonably high termination fee that would have required Hibernia to pay ^Capital One $220 million in the event the Hibernia board accepted a superior acquisition offer from a third party; and (3) placing their personal financial interests above those of the Hibernia shareholders. The petition sought predominantly injunctive relief. Thereafter, plaintiffs counsel engaged in intensive dialogue with counsel for defendants to negotiate a satisfactory resolution of the action.

On July 7, 2005, the parties filed a Stipulation and Agreement of Compromise, Settlement and Release (the “Settlement Agreement”). The terms of the July 7 Settlement Agreement required Hibernia to disclose additional information in the definitive proxy statement that was mailed to all Hibernia shareholders in advance of the shareholder vote on the proposed merger, including additional information regarding the negotiation of the merger, the financial interests of certain of Hibernia’s officers and directors, and financial projections prepared by Hibernia’s management for its financial advisors. The July 7 Settlement Agreement also required Capital One to reduce the merger’s “termination fee” from $220 million to $200 million, thus encouraging third parties to consider making a higher offer for Hibernia stock. The July 7 Settlement Agreement included a general release of claims relating to the merger and the request for payment of legal fees to plaintiffs counsel.

At that time, the trial court entered a scheduling order granting preliminary certification of the class for settlement purposes and scheduling a hearing for November 30, 2005 to determine whether to certify the class, to assess the fairness of the proposed settlement, and to hear any objections.

On August 3, 2005, Hibernia’s shareholders approved the merger, which was then scheduled to close on September 1, 2005. However, on August 29, 2005, l-just three days-before the merger was scheduled to close, Hurricane Katrina made landfall in New Orleans. As a result of the storm, the merger did not close on September 1, 2005. Instead, Hibernia and Capital One undertook to renegotiate certain terms of the merger to take into account the impact of the hurricane on Hibernia, the potential impact of a further extension of the merger closing date, and the increased risk that Capital One would be assuming by completing the merger.

On September 6, 2005, Hibernia and Capital One entered into Amendment No. 1 of the Agreement and Plan of Merger. The amendment provided that Capital One would acquire Hibernia’s outstanding shares in exchange for consideration valued at approximately $30.49 per share at the time of the announcement of the amended merger agreement. The amended merger agreement also provided that the effects on Hibernia’s business of Hurricane Katrina or any subsequent hurricanes or storms would not be grounds for either party to delay or avoid closing the transaction.

On October 1, 2005, a revised proxy statement was mailed to Hibernia shareholders explaining the terms of the amended merger agreement and scheduling a second shareholder vote for November 14, 2005.

In early November 2005, the trial court adjourned the settlement hearing originally scheduled for November 30, 2005 to January 17, 2006, thereby allowing plaintiffs to conduct additional discovery to confirm the fairness of the July 7 Settlement Agreement in light of the renegotiated terms of the Merger. On November 9, 2005, on a Form 10-Q filed with the Securities and Exchange Commission, defendants notified Hibernia shareholders that the settlement hearing had been rescheduled and would take place on January 17, 2006. On November 14, 2005, the Hibernia shareholders again voted to approve the merger.

14On December 12, 2005, the parties entered into an Amended Stipulation and Agreement of Compromise, Settlement and Release (the “Amended Settlement”), confirming and restating the terms of the July 7 Settlement Agreement in light of the renegotiated terms of the merger. On December 13, 2005, the trial court entered a revised scheduling order that confirmed that the hearing to determine whether to certify the class, to assess the fairness of the settlement, and to hear any objections would be held on January 17, 2006.

On December 30, 2005, appellants, William C. Gambel, Carol C. Gambel and Gary J. Gambel, William J. Curry, Jr., Joy Nalty Hodges, Charles L. Gambel, Jr., individually, and as Trustee of the Testamentary Trust of Lorraine Nalty Gambel, and Frank M. Nalty (hereinafter the “Objectors”) filed objections to the certification of the class and approval of the Amended Settlement. On January 5, 2006, the Objectors served defendants with a subpoena duces tecum demanding information regarding access to safe-deposit boxes at certain Hibernia branch locations. On January 13, 2006, defendants moved to quash the subpoena and/or issue a protective order. The trial court issued a Rule to Show Cause requiring Objectors to explain at the settlement hearing why defendants’ motion should not be granted. At the settlement hearing, the Objectors agreed that their concerns underlying the subpoena were resolved by an agreement by the parties not to release potential claims of Hibernia shareholders demonstrably affected by Hurricane Katrina challenging the process for electing to receive cash or stock in the merger.

On January 17, 2006, the trial court held a full-day settlement hearing. Thereafter, on January 25, 2006, the trial court certified the class and approved the Amended Settlement. Specifically, in its final order and judgment, the trial court | ^determined that the “form and manner of the Notice” was “the best notice practicable under the circumstances”; approved the Amended Settlement as “reasonable and adequate and in the best interests of the Class”; approved the release of defendants and Capital One while specifically carving out “the right of any member of the Class demonstrably affected by Hurricane Katrina and Hurricane Rita to challenge the process for electing to receive cash or stock in the Merger”; and awarded unopposed attorney’s fees and expenses to Et-ter’s counsel.

On appeal, three of the Objectors, Gary J. Gambel, Carol C. Gambel, and William C. Gambel filed an appellate brief (“the G. Gambel brief’) raising the following specifications of error:

The trial court erred when it approved a mandatory, non-opt-out settlement class which forced all class members to waive damage claims, present and future known and unknown, for the payment of no monetary compensation. The court erred in approving the settlement despite the fact that no evidence was presented at the fairness hearing that any of the requisites of class action articles of the Louisiana Code of Civil Procedure had been met. The court also erred in finding that certification of a non-opt-out class was proper. Further, the court erred in approving the form of notice which was clearly calculated not to reach large numbers of putative class members. Finally, the court erred in approving the payment of $850,000.00 in attorney’s fees when the members of the class received no money.

The remaining Objectors, William J. Curry, Jr., Joy Natty Hodges, Charles L. Gambel, Jr., individually, and as Trustee of the Testamentary Trust of Lorraine Natty Gambel, and Frank M. Natty filed an appellate brief (“the W. Curry brief’) raising the following specifications of error: (1) the trial court erred in denying appellants’ Motion for Leave to depose Etter and his counsel; (2) the trial court erred in denying appellants the right and opportunity to take written discovery before the hearing; (3) the trial court erred in entering judgment without a suitable record; (4) the trial court erred in certifying a no-opt-out class; (5) the trial court | fierred in approving the fairness of a “No Payment” settlement; (6) the trial court erred in approving the release of claims of Hibernia shareholders displaced by Hurricane Katrina, or shareholders otherwise adversely affected thereby, because they were unable to access their certificates and tender them in the exchange, and no suitable mechanism was put in place to enable them to obtain and tender replacement certificates; (7) the trial court erred in approving the release of claims respecting the adequacy and the sufficiency of disclosures, particularly in that Hibernia failed to disclose in the proxy solicitation that Etter had agreed to secure the release of all such disclosure-based claims in the “interest of directors” and that it was relying on Etter’s promise; (8) the trial court erred in approving the release of claims of shareholders of the putative class from March 4 to November 14 when Capital One had not yet published its fourth quarter results or its year-end financial; (9) the trial court erred in approving the release of claims.

Before addressing the merits of the appeal, we note that although the W. Curry brief lists nine assignments of error; it fails to brief some of these assignments. Assigned errors that are neither briefed nor argued are considered abandoned on appeal. Uniform Rules, Courts of Appeal, Rule 2-12.4. Accordingly, this opinion will address only those assignments that have been properly briefed by the Objectors.

STANDARD OF REVIEW

The standard of review for certification of class actions is bifurcated. The factual findings are reviewed under the manifest error/clearly wrong standard; the trial court’s discretionary judgment on whether to certify the class or not is reviewed by the abuse of discretion standard. Boudreaux v. State, Dep’t of Transp. and Dev., 96-0137, p. 5 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 119.

^Accordingly, the standard of review in the case sub judiee is whether the trial court abused its discretion in certifying the plaintiffs claims as a class action, and whether the trial court was manifestly erroneous in its factual finding that the evidence submitted was sufficient to satisfy the requisite elements of adequacy of representation, commonality, and numerosity, and an ascertainable or objectively definable class for class certification.

The bifurcated test for the appellate review of factual findings is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). An appellate court may not set aside a trial court’s factual finding unless, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Issue One: Whether the trial court abused its discretion by certifying a non-opt-out class under Article 591 of the Louisiana Code of Civil Procedure.

The first issue we will address is whether the certification of a non-opt out class action in this matter was proper. Objectors argue on appeal that the record below was inadequate to support the trial court’s decision to certify the class. We find no merit to this argument.

The purpose and intent of the class action is to “adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are similarly situated.” Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La.9/9/97), 703 So.2d 542, 544. Louisiana Code of Civil Procedure Articles 591-597 govern the class action procedure. La.C.C.P. article 591 A provides the general rule for certification of a class. One or more | ^members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that join-der of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) The representative parties will fairly and adequately protect the interests of the class; and
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

In addition, La. C.C.P. art. 591 provides in pertinent part:

B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions; |a(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f)The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4)The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

Further, it is well-settled that a “trial court may consider the pleadings, affidavits, depositions, briefs, exhibits and testimony presented at the certification hearing.” Billieson v. City of New Orleans, 729 So.2d 146, 154 (La.App. 4 Cir. 3/3/99). At the hearing on the motion to certify the class, plaintiff states, in pertinent part:

Mr. Rudy
... As to that first issue, class certification, I’m asking at this time ... that you certify this class under Article 591. The representative plaintiff, Mr. Etter, had 6,500 shares of Hibernia stock during the relevant class period. There is nothing about his share ownership that is antagonistic to any other members of the class.
And your Honor, I think he has served as an adequate class representative. In my brief I went through the various factors: numerosity, commonality, typicality, adequacy of representation, as well as the objectiveness of the class definition.
... I’m also asking that the Court find that each of those criteria are satisfied in this litigation. I’m also asking that under 591(B)(1) and (B)(2), that class be certified as a non-opt-out class. These sections apply in litigation which seeks and achieves substantially | ininjunctive or declaratory relief which was the primary objective of this litigation.

Following Plaintiffs request to have the class certified, the court asked the Objectors to address why the class should not be certified. However, Objectors merely argued that the case sought damage relief and that the settlement was unfair rather than giving reasons why the case should not be certified.

In reviewing the verified petition, the briefs and the testimony at the certification hearing, we find that there was sufficient evidence for the trial court to certify this class. Specifically, as of February 25, 2005, there were at least 155 million shares of Hibernia common stock outstanding held by approximately 13, 779 record holders scattered throughout the United States, thus satisfying the numer-osity requirement. Second, the principal issue in the class action petition is that Hibernia directors breached their fiduciary duties to the class by agreeing to the merger. The resolution of whether the directors breached their fiduciary duties will affect all or a significant number of the class members, thus satisfying the commonality requirement. Third, the representative plaintiff was confronted with the same injury as other class members, flowing from the same transaction, the merger, thus satisfying the typicality requirement. Fourth, plaintiff owned 6,500 shares of Hibernia stock during the class period, thus satisfying the adequacy of representation requirement. Fifth, the class was clearly and objectively defined as “all holders of Hibernia stock ... from March 4, 2005 through November 14, 2005,” thus satisfying the objective definition requirement. Accordingly, we find no manifest error in the trial court’s factual findings that the requirements of La. C.C.P. art. 591(A) for certifying the class were met.

Jjjln addressing whether the certification of a non-opt-out class was proper, we will now address whether the action meets at least one of the three types of action under C.C.P. art. 591(B). In the proceedings below, plaintiff sought certification under both C.C.P. art. 591(B)(1) and (B)(2). As stated above, under C.C.P. art. 591 B(l), a class certification is proper where the prosecution of separate actions by or against individual members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

Under C.C.P. art. 591(B)(2), class certification is proper where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole.”

In this case, defendants owed the same duties to all class members. We find that prosecution of separate actions concerning members of this class would, as a practical matter, render inconsistent requirements for Hibernia and its board with respect to the merger. Further, we note that to require opt-outs in this situation would only invite the inconsistent determinations that La. C.C. P. art. 591 B(l) and (2) are designed to avoid. Accordingly, we agree with Defendants that the trial court did not abuse its discretion by certifying this class under La. C.C.P. art. |1⅞591 B(l). Because we find the requirement of La. C.C.P. art. 591 B(l) satisfied, we will not address La. C.C.P. art. 591 B(2).

Issue Two: Whether notice satisfied the requirements of art. 594 of the Louisiana Code of Civil Procedure.

Even though Objectors received notice, they contend that the notice program approved by the trial court was inadequate and did not satisfy the Louisiana class action codal articles. We find no merit in this assignment of error.

Notice of class action settlements in Louisiana are governed by La. C.C.P. art. 594 A(2) which states that “[n]otice shall be given in such manner as the court directs.” In this case, a Scheduling Order was signed on December 13, 2005, ordering the parties to mail the Notice to record holders of Hibernia shares during the class period no less than 30 days prior to the January 17, 2006 settlement hearing. Specifically, the Scheduling Order stated as follows:

No later than thirty (30) days prior to the Settlement Hearing, Hibernia or its sueeessor(s) in interest shall cause the Notice to be mailed to record owners of stock of Hibernia who are members of the Class as shown on the stock records maintained by or on behalf of Hibernia, by first class mail, postage prepaid. Furthermore, Hibernia or its successor(s) in interest shall use reasonable efforts to give notice to beneficial owners of Hibernia stock (i) by mailing, at the expense of the Company or its successor(s) in interest, additional copies of the Notice to any record holder requesting the Notice for the purpose of distribution to any beneficial owners of Hibernia common stock who are entitled to notice, or (ii) at the request of such record holder, by mailing the Notice directly to such beneficial owners at the addresses provided by such record holder.

In accordance with the Scheduling Order, the defendants mailed the Notice to the class on December 14-16, 2005, more than 30 days prior to the scheduled settlement hearing. It is worth noting that the Objectors have not identified a single shareholder who sought to extend the time for objecting or was in any way deprived of his or her right to object to the Amended Settlement terms.

1 iaFollowing the January 17, 2006 hearing, the trial court, in its final order and judgment found that Notice was “the best notice practicable under the circumstances” and “fully complied with each of the requirements of Article 591 of the Louisiana Code of Civil Procedure.... ” After reviewing the record, we too find that the notice program fully satisfied the requirements of the Louisiana class action codal articles and due process.

Issue Three: Whether the trial court erred in the release of claims.

On appeal, Objectors argue that the Amended Settlement provides “a release and extinguishes claims of Hibernia shareholders displaced by Hurricane Katrina, or shareholders otherwise adversely affected thereby, because they were unable to access their certificates and tender replacement certificates in the exchange. We find no merit in this assignment of error. As already noted, the trial court’s Final Order and Settlement expressly states that “the claims to be released shall not include ... the right of any member of the Class demonstrably affected by Hurricane Katrina and Hurricane Rita to challenge the process for electing to receive cash or stock in the Merger.” Further, we find that Objectors have offered no factual or legal justification for this Court to find that the trial court abused its discretion by approving the Settlement as fair, reasonable, and adequate and in the best interest of the class. Accordingly, we find that the Settlement, and the release attendant thereto, was entirely proper.

Issue Four: Whether the trial court abused its discretion in awarding attorneys’fees.

On appeal, Objectors argue for the first time, that the attorneys’ fees awarded by the trial court were unreasonable. A review of the testimony is necessary in determining whether the fees were “fair and reasonable.”

1 uMr. Rudy:

[T]he third thing that our brief has asked the Court approve today is the plaintiffs counsel request of $850,-000.... [I]t is ... undisputed that the fee will be paid by the company, that none of the money going to plaintiffs counsel is coming out of the pockets of shareholders. The deal was structured with shareholders receiving a certain amount of consideration. And that amount of consideration is in no way reduced by the attorney’s fee award.
Second, this fee request is not opposed by defendants. This is an unopposed application for attorney’s fee.
Now, you can imagine I will also represent that I believe defense counsel has asked to represent that the negotiation about the termination fee, about the attorney’s fee took place after all the terms were in place. So there was no possibility of the attorney’s fee affecting the relief that was given to shareholders. We negotiated the proxy enhancements and disclosures with the proxy statement. And only after all the substantive terms were reached and agreed to did we negotiate the attorney’s fee. And that negotiation was as hard fought as the negotiation over the terms of the settlement. We were throwing out larger numbers than $850,000. They were giving back smaller numbers.

The Court:

Mr. Rosenberg doesn’t give up money.

Mr. Rudy:

Mr. Rosenberg and his Client were not inclined, and its perhaps obvious, but defendants are not in the business of giving away money that they don’t think they have to give.
And the negotiations centered on the premise that the benefits that were achieved in this litigation justified a large attorney’s fee award in light of the benefit, amount of effort that it took to secure that benefit, the amount it took after the benefit was agreed to in the confirmatory discovery process, the risk of contingency and litigation.
I can represent to the Court that this was a hard-fought negotiation done at arm’s length after all the terms of negotiation. The benefits achieved — the effort that it took to achieve that benefit is the fact that this money is not being paid by shareholders in any form. The fact that defendants are consenting to the fee award, not opposing the fee awards, all of those facts, I would ask the Court to approve the fee of $850,000 in its entirety for the efforts in this— litigation efforts |1Kthat have certainly taken its turns related to Katrina and otherwise, and we have diligently prosecuted claims for nine months with that back drop.

Mr. William Gambel:

Your honor, while we oppose certification and while we oppose — object to the fairness, we take no position on this issue, (emphasis added)

Because the negotiation of the attorney’s fees took place entirely at arm’s length and only after an agreement had been reached on the substantive terms of the Amended Settlement, and because neither the Defendants nor the Objectors opposed the requested fee, we conclude that the fees were “fair and reasonable” and within the trial court’s discretion.

In conclusion, we hereby affirm the judgment of the trial court, which certified this class and approved the Amended Settlement.

AFFIRMED.

MURRAY, J., concurs and assigns reasons.

MURRAY, J.,

concurring.

|Jn the instant case, the Objectors had standing as class members to object to the terms of the proposed settlement. In their initial notice to the court, the Objectors stated that they opposed the settlement on the grounds that the notice to the parties was inadequate, the terms of the settlement were not beneficial to the class members, and the amount of attorney fees was disproportionate in comparison with the benefits to the class. Although not requesting to opt out of the class, the Objectors additionally argued that the settlement should not be approved because the shareholders had not been given an opportunity to opt out. In my view, the Objectors cannot have it both ways. They had the choice of either requesting to opt out of the class (thereby objecting to the proposed certification as a non-opt out class) or of using their standing as members of the class to oppose the terms of the settlement. The position of the Objectors herein is inherently inconsistent.

Moreover, the trial court did not err by certifying a non-opt out class in the instant, case. The class action petition clearly states: “This is a shareholder class action which seeks injunctive relief with regard to a merger between Hibernia Corporation and Capital One Financial Corporation ...” (Emphasis added). | ¡.Although the Objectors opposed the settlement because it provided for the release of all claims, including damage claims, by the class members, they never asserted any damage claims, nor could they name any potential damage claims when questioned by the trial court about same at the hearing (other than those related to Hurricane Katrina, which are expressly excepted from the settlement). In the absence of some showing that damage claims exist, I cannot say that the trial court abused its discretion by certifying the class or by approving the settlement.

For these reasons, I respectfully concur in the result reached by the majority.

      . Counsel representing Plaintiff Gerald Etter.

      . The amended portions of article 591 more closely track the language of Federal Rule 23(b). The Louisiana Supreme Court has encouraged lower courts to follow Federal Rule 23(b) as a guide when determining if class certification is appropriate. See Banks v. New York Life Ins., Co., 98-0551 (La.12/7/98); 722 So.2d 990, 994.