author: MOORE, J. STEWART, J., BROWN, C.J., STEWART, J. BROWN, C.J.,

text:
    Mike LONG, Plaintiff-Respondent v. Beverly HUTCHINS, Defendant-Respondent.
    No. 40,548-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2005.
    Opinion Granting Rehearing En Banc April 26, 2006.

      Roland V. McKneely, III, Shreveport, for Plaintiff-Respondent.
    Charles W. Strickland, for Defendant-Respondent.
    Tina Vicari Grant, Assistant Attorney General, for Intervenor-Applicant State of Louisiana and Charles C. Foti, Jr.
    Tina V. Grant, Frances J. Pitman, Assistant Attorneys General, for Intervenor-Applicant, State of Louisiana and Charles C. Foti, Jr., on rehearing.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

| í Mike Long was found guilty of constructive contempt of court for violating an injunction in favor of his former paramour and business partner, Beverly Hutchins (now Beverly Drum), and Ms. Drum’s daughter. The district court sentenced him to 120 days in jail with 100 days suspended, pursuant to La. R.S. 13:4611(l)(b). On Long’s application, this court granted a stay order and a writ vacating the conviction and sentence. Subsequently, the State of Louisiana filed an application for rehearing which this court granted, vacating its prior writ ruling and ordering an appeal. For the reasons expressed, we clarify our previous order, vacate the conviction and sentence, and remand.

The matter arose in the course of litigation by Long to obtain corporate documents and personal property that Ms. Drum allegedly would not return to him. On August 6, 2004, by the agreement of the parties, the court rendered judgment enjoining Long from directly or indirectly contacting Ms. Drum or her daughter. On February 11, 2005, Ms. Drum filed the instant rule for contempt, alleging that she had received some 12 e-mails, several cards, a book and a flower arrangement from Long in violation of the injunction.

Ms. Drum’s rule was heard on May 16, 2005. Ms. Drum called Long to testify, but claiming that the matter was criminal in nature, Long asserted his right against self-incrimination. Ms. Drum and her daughter then testified and she rested her case. Long orally moved for judgment of acquittal;' the district court denied this and immediately sentenced Long to 120 days in jail, with 100 suspended. Long objected that he had not been' ^permitted to put on his case. The court called the objection an abuse of process and “nonsense”: “You had an opportunity- to put your witness on. Your witness was called, he took the Fifth Amendment, and you didn’t tell me that he wanted to untake the Fifth Amendment.” tong took the instant writ, which this court later converted to an appeal.

Long correctly argued, both at the contempt rule and in briefs to this court, that this matter is one of criminal contempt. When the object of a proceeding is to punish a person for disobeying a court order, the proceeding is for criminal contempt. State in Int. of R.J.S., 493 So.2d 1199 (La.1986). As we explained in Johnson & Placke v. Norris, 38,300 (La.App. 2 Cir. 5/12/04), 874 So.2d 340, writ denied, 2004-1478 (La.9/24/04), 882 So.2d 1137:

[A] fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a completed act of disobedience such that the contemnor cannot avoid or abbreviate the confinement through later compliance-the defendant is furnished no key and he cam-hot shorten his term by promising not to repeat'the offense.

Criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings. Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Criminal contempt is a crime in every fundamental respect, and the defendant in a criminal contempt proceeding is entitled to basic constitutional protections. Richey v. Richey, 98-1195 (La.App. 3 Cir. 3/10/99), 733 So.2d 618, writ denied, 99-2122 (La.10/29/99), 749 So.2d 639. In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the court delineated these safeguards:

|sDue process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges, and have a reasonable opportunity, to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. (Internal citations omitted.)

The courts of this state have frequently reaffirmed this standard. State v. Austin, 374 So.2d 1252 (La.1979); Richey v. Richey, supra; Robards v. Robards, 01-1100 (La.App. 5 Cir. 1/29/02), 807 So.2d 1111.

A simple review of this record shows that the district court did not permit Long to present a defense. The judgment of contempt is therefore invalid. Richey v. Richey, supra; Robards v. Robards, supra; State v. Anderson, 2004-1567 (La.App. 4 Cir. 3/9/05), 899 So.2d 93; Fellman v. Mercantile Fire & Marine Ins. Co., 116 La. 733, 41 So. 53 (1906) (“[Wjhere the judge has no personal knowledge of the matter imputed as contempt, he should not pass sentence without having afforded the party a full opportunity to present his defense.”). It is of no moment that Long previously- invoked his right against self-incrimination. If he chooses to take the stand, he is subject to cross-examination over matters addressed on direct. State v. Rhodes, 337 So.2d 207 (La.1976).

Moreover, the maximum penalty for contempt is 12 months, La. R.S. 13:4611 (l)(b); this entitles the accused to trial by a jury of six members, all of whom must concur to render a verdict, La. Const, art. 1, § 17; La. C. Cr. P. art. 779 A. The record shows that Long was never advised of this right. Finally, the district court remarked that the evidence “shows” that Long | ¿contacted Ms. Drum and her daughter after the injunction. This does not reflect a finding that every element of the offense was proved beyond a reasonable doubt. Lutke v. Lutke, 33,001 (La.App. 2 Cir. 2/1/00), 750 So.2d 512. The judgment is invalid for these deficiencies as well.

In one of our previous writ rulings, this court stated that the defendant in a criminal contempt proceeding was entitled to the right of prosecution by an appropriate prosecuting authority. Because we find that Long was denied the right to present a defense, never advised of his right to a jury trial, and perhaps convicted on an inadequate burden of proof, we pretermit any consideration of the need for an “appropriate prosecuting authority.” While La. Const, art. 5, § 26(B) appears to require a district attorney or his designated assistant “to have charge of every criminal prosecution,” the Code of Civil Procedure provides that a rule to show cause for contempt may issue “on the court’s own motion or on the motion of a party to the action or proceeding^]” La. C.C.P. art. 225 A. Moreover, jurisprudence recognizes the courts’ independent power to impose submission to their lawful mandates. International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). We are aware of no Louisiana case to hold that contempt cases must be prosecuted by the district attorney or his designated assistant. We therefore clarify our prior ruling to conform to the statement of due process rights enumerated in Bloom v. Illinois, supra, Richey v. Richey, supra, and this opinion.

PREVIOUS ORDER CLARIFIED; JUDGMENT REVERSED, AND CASE REMANDED.

STEWART, J., concurs and assigns written reasons.

BROWN, C.J., dissents with written reasons.

STEWART, J.,

concurring.

hi concur in the majority’s result, as I believe that Mr. Long’s conviction must be reversed. Clearly, Mr. Long was deprived of basic constitutional rights in the criminal contempt proceeding. These deprivations were recognized in our prior writ order. The writ order also recognized that this criminal matter was not instituted by an appropriate prosecuting authority. The majority opinion avoids this issue.

Because the purpose of the contempt proceeding was to punish Mr. Long for disobeying a court order, the proceeding was a criminal contempt proceeding. Richey v. Richey, 98-1195 (La.App. 3d Cir.3/10/99), 733 So.2d 618, writ denied, 99-2122 (La.10/29/99), 749 So.2d 639. The proceeding was clearly penal in nature as Mr. Long was subject to incarceration with no purge clause. Id. Under La. R.S. 13:4611(l)(b), Mr. Long was subject to a “fine of not more than one thousand dollars, or by imprisonment for not more than twelve months, or both.... ” This penalty provision entitled Mr. Long to trial by a jury of six persons. See La. Const, art. I, § 17. Mr. Long was also entitled to all the constitutional protections due a defendant in a criminal trial. Richey, supra. These would include the presumption of innocence, the right to trial by jury or waiver of jury trial, the privilege against self-incrimination, the right to present a defense and testify in one’s own defense, the right to proof of the elements of the crime beyond a ^reasonable doubt, and the right to appeal any conviction.

Because Mr. Long was subject to a strictly criminal proceeding wherein he had the right to a jury trial, he was also entitled to have the matter prosecuted in the appropriate manner by the district attorney. As alluded to by the majority opinion, there is a glaring conflict between La. Const, art. 5, § 26(B), which provides that the district attorney “shall have charge - of every criminal prosecution by the state in his district,” and La. C.C.P. art. 225(A), which prbvides that a rule for contempt may issue “on the court’s own motion or on motion of a party to the action or proceeding.” The majority sidesteps this conflict, which was the reason for granting rehearing, by simply concluding that there is no jurisprudence holding that contempt cases “must be prosecuted by the district attorney or his designated assistant.” However, we should not ignore this inherent constitutional defect created legislatively in order to make contempt proceedings more. convenient for trial judges. Our job is not to provide convenience but to uphold the constitutions and laws of the United States and the State of Louisiana.

Because the district attorney is the party charged with conducting criminal prosecutions in this state, criminal contempt proceedings in which the penalty entitles the defendant to a trial by jury should be brought to the district attorney for prosecution. A criminal proceeding in which the defendant is entitled to a jury trial as well as all [.^constitutional protections requires the constitutionally mandated prosecution by the district attorney and not trial by a private party before a trial judge. . .

Lastly, we granted rehearing after the attorney general responded to our original writ order claiming that it called into question the constitutionality of various state statutes.- While the attorney general is entitled to notice under La. R.S. 13:4448 prior to adjudication of the constitutionality of a statute, nothing in our writ order gave the attorney general standing to intervene in this matter. The attorney general’s intervention in this matter is perplexing in that as lead prosecutor for the state he would seemingly want to defend the constitutional duties of the district attorneys under La. Const, art. 5, § 26(B) to prosecute criminal matters in this state.

For these reasons, I respectfully concur.

BROWN, C.J.,

dissenting,

hThe reason this panel granted a rehearing was to address the question of whether a party in a civil lawsuit, in this case, Beverly Hutchins, could in fact initiate a constructive contempt action which had as its disposition a determinate/unconditional sentence imposed upon the offending party, Mike Long. Constructive contempt can result in either remedial action in which the penalty may be removed or purged by complying with the court’s order; or punishment in which the penalty is unconditional, such as a fine and/or time in jail. The distinction between the two determines the standard of proof and as well as the procedure to be employed by the court.

The penalty imposed in this case was arguably both remedial and punitive. In punitive (criminal) contempt the offender is afforded more .extensive due process rights. In Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), a case initiated by a litigant in a civil action for child support and one in -which the punishment was unconditional, the U.S. Supreme Court found that the due process protections enumerated by Amendments V, VI, and XIV of the U.S. Constitution were applicable. These rights include such fundamental safeguards as a speedy and public trial, by an impartial jury/judge; information as to the nature and cause of the accusation; ability to confront the witnesses against him; compulsory process for obtaining witnesses in his favor; the assistance of counsel for his defense; and, the privilege against self-incrimination. In Young v. United States, 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) and, more recently in International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), the U.S. Supreme Court held that due process in criminal contempt cases did not impose upon the states the requirement that charges be initiated by an independent state prosecutor.

Louisiana Code of Civil Procedure article 224(2) provides that constructive contempt includes the wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court. Article 225 specifically provides Hutchins with standing to move the court to consider whether Long was guilty of contempt as a result of his failure to abide by the prior court order enjoining contact, direct or indirect, with Hutchins or her daughter. In Jackson Avenue Foundation v. Lassair, 03-1759 (La.App. 4th Cir.06/02/04), 876 So.2d 926, the court specifically upheld the right of a litigant to initiate and prove a punitive contempt charge for the violation of an injunction.

Counsel for Long argues that La. C.C.P. art. 225 is in conflict with the Louisiana Constitutional article giving the dis: trict attorney “charge of every criminal prosecution by the state in his district.” (Emphasis added). Contempt resulting in punishment in civil cases has inherently civil purposes and, in fact, provides benefits to a party (or parties) to the action. These eases are litigated as an extension of the underlying civil action without any special prosecutorial powers such as the use of a grand jury to obtain records, procure testimony or grants of immunity. Rather, in civil cases the parties are on an equal footing.

| ^Typically, litigants in small claims, domestic, and landlord-tenant cases obtain orders establishing their rights and file contempt motions for their enforcement. This is not what was envisioned by the term “criminal prosecutions by the state” in La. Const. Art. V, § 26(B). Criminal prosecutions are instituted by the district attorney while contempt proceedings are initiated by the allegedly aggrieved party. This is because the private party has obtained an order benefiting that party. The private party is aware of the violation and can bring it to the court’s attention. In criminal prosecutions “by the state,” the police first investigate, and then the state, through the district attorney, brings the matter to court. Because contempts are fundamentally matters of private interest in a way that criminal prosecutions by the state are not, there is no conflict between the statute and Louisiana’s constitution.

The confusion is exacerbated in that the sanction imposed is typically determined by the evidence adduced at the hearing. Thus, the classification of the proceedings as remedial (civil) or punitive (criminal) is determined at the end of the hearing, rather than at the outset. This method of determining whether the action for contempt is civil or criminal is backwards as the focus is not on the conduct but the punishment imposed.

This is a matter of great importance for the trial courts and there is little jurisprudential guidance. This is the type of case which could qualify for en banc consideration.

On Rehearing

Before BROWN, WILLIAMS, STEWART, GASKINS, CARAWAY, PEATROSS, DREW, MOORE, and LOLLEY, JJ.

STEWART, J.

11 After being found guilty of contempt in connection with a civil proceeding in which an injunction had been issued, Mike Long was sentenced under La. R.S. 13:4611(l)(b) to 120 days in jail with 100 days suspended. On Long’s application for review, this court granted ’a stay order and writ vacating the conviction and sentence. ■ We found that Long had been subject to a criminal contempt proceeding in which he was denied basic constitutional protections. Thereafter, we granted an application for rehearing filed by the State of Louisiana, which argued that our ruling called into question the constitutionality of certain contempt provisions in our law. Our pri- or order was vacated, and an appeal was ordered.

The underlying facts are more thoroughly set forth in our original opinion, Long v. Hutchins, 40,548 (La.App. 2d Cir.12/14/05), 926 So.2d 556, 2005 WL 3417446, in which we determined that this matter was one of criminal contempt and that Long was not afforded basic constitutional protections. He was not allowed to put on a defense after initially invoking the right "against self-incrimination, he was not advised of the right to a jury trial, and he was apparently not givén the benefit of having every element of the crime proven beyond a reasonable doubt. Having found these deficiencies, we pretermitted discussion of whether Long was entitled’ to the right of prosecution by an appropriate prosecuting authority.

The matter is now before the court in an en banc hearing to again | consider the scope of rights to be afforded a party in a civil proceeding subject to contempt punishable under La. R.S. 13:4611(l)(b) and whether Long was deprived of such rights.

La'. R.S. 13:4611(l)(b) provides a maximum penalty of imprisonment for not more than 12 months in jail and/or a fine of not more than $1,000 for disobeying or resisting a restraining order or an injunction. Long was subject to punishment under this provision for violating a restraining order prohibiting him from contacting either Beverly Hutchins (now Beverly Drum), with whom he had been involved in both a personal and business relationship, or her daughter. He was also given a determinate sentence of 120 days, 100 of which were suspended.

In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the United States Supreme Court recognized that “[cjriminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or .both.” Declaring there to be no substantial difference between serious contempts and other serious crimes, the Court held that serious con-tempts are crimes to which the constitutional right to a jury trial applies. Id. The Court further delineated the basic constitutional safeguards applicable in criminal contempt proceedings:

Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed. (Internal citations omitted.)

[sThis standard has been reaffirmed in our own courts. State v. Austin, 374 So.2d 1252 (La.1979); Richey v. Richey, 98-1195 (La.App. 3d Cir.3/10/99), 733 So.2d 618, writ denied, 99-2122 (La.10/29/99), 749 So.2d 639; Robards v. Robards, 01-1100 (La.App. 5th Cir.1/29/02), 807 So.2d 1111.

In differentiating those serious crimes requiring the right to trial by jury from those violations that are petty, the United States Supreme Court determined that the serious crimes are those carrying a sentence of more than six months and that the petty crimes are those carrying a sentence of six months or less. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). The potential maximum penalty involved is the factor which determines the right to a jury trial in any criminal proceeding, including criminal contempts. We are directed that where “the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense.” Bloom v. Illinois, supra.

Our legislature has imposed a maximum penalty under La. R.S. 13:4611(l)(b) of 12 months imprisonment. This categorizes the contempt punishable under that provision as a “serious crime” to which the right to trial by jury attaches. As we noted in our original opinion, the maximum penalty exposure entitles the accused to trial by a jury of six members, all of [¿whom must concur to render a verdict. La. Const, art. I, § 17; La. C.CrJP. art. 779(A).

In Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), the Court explained that punishment in a civil contempt proceeding is for the benefit of the complainant and that imprisonment is remedial in nature if the sentence allows the contem-nor to obtain release upon his compliance with the previously violated court order. On the other hand, punishment in a criminal contempt proceeding is imposed to vindicate the court’s authority and is criminal in nature requiring constitutional protections when imposed for a definite period without conditions or a purge clause. See also Brown v. Taylor, 31,352 (La.App. 2d Cir.2/26/99), 728 So.2d 1058.

Long’s sentence of 120 days with 100 days suspended was a definite sentence imposed without conditions or a purge clause. We note that in Feiock, supra, the court rejected the notion that a suspended sentence or probation is equivalent to either a conditional sentence or purge clause, noting that “if the sentence is a determinate one, then the punishment is criminal in nature, and it may not be imposed unless federal constitutional protections are applied in the contempt proceeding.” Feiock, 108 S.Ct. at 1432.

Long’s determinate sentence was clearly criminal in nature. Moreover, he was exposed to a maximum penalty of 12 months imprisonment thereby meeting the threshold for jury trial eligibility as a constitutional right. The sentence was imposed without Long having been | ^advised of, or provided with, the constitutional safeguards discussed in this opinion and in our original opinion. Due to deficiencies in due process in the lower court proceedings, we reverse the judgment finding Long guilty of contempt and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PEATROSS, J., concurs.

BROWN, C. J., concurs with written reasons.

GASKINS, J., concurs for the reasons assigned by J. BROWN.

CARAWAY, J., concurs for the reasons assigned by J. BROWN.

LOLLEY, J., concurs for the reasons assigned by J. BROWN.

BROWN, C.J.,

concurring.

b The entire court is in agreement that Long should have been allowed to present a defense and testify. The issue came before the court because of the claim by Long that the summary procedure provided for in La. C.C.P. art. 225 as applied has deprived him of the due process that the constitution guarantees. That Long is entitled to present a defense is in accord with summary proceedings; however, that Long must be tried by a jury and that such contempt claims must be instituted by a district attorney is antithetical to summary procedure. This court should not selectively address some but not all of the requirements for trial of a constructive contempt violation.

This “majority” opinion is a constitutional innovation which émasculates the historic power of the trial judge to summarily punish for contempt. Although denying that it is doing so, this view finds Louisiana’s statutory provisions that allow for such summary proceedings, when punitive penalties are imposed for constructive contempt, to be unconstitutional.

Right To A Jury Trial

Mike Long and Beverly Hutchins had been romantically involved and in business together. When the two broke up a lawsuit was filed to obtain business and personal records. Incidental to that action, an injunction issued prohibiting Long from any contact with Ms. Hutchins or her | ¡^daughter. Ms. Hutchins filed a rule for contempt claiming that Long had violated the injunction. The trial court found that Ms. Hutchins proved her allegations and sentenced Long to 120 days, suspending all but 20 days of the sentence.

Louisiana Code of Civil Procedure article 225 provides for a rule to show cause why a party should not be adjudged guilty of contempt. This rule may issued on the court’s own motion or on motion of a party. Louisiana Revised Statute 13:4611 provides the punishment for contempt. For disobeying a restraining order, or preliminary or permanent injunction, the court may impose imprisonment for not more than twelve months and/or order payment of a fine of not more than one thousand dollars. For all cases falling under R.S. 13:4611(l)(b), the “majority” opinion would read in a right to a jury trial because the possible sentence could exceed six months. If the actual sentence imposed was more than six months, I would agree; however, as in this case, when the sentence imposed is less than six months there is not a constitutional right to a jury trial.

Among other things, parties to divorce/domestic actions obtain injunctions against violence and harassment and to prohibit the disposing of community property. Domestic violence has been recognized as widespread and there are compelling reasons to swiftly adjudicate these type of cases. To illustrate the issue and bring some perspective, I note the Cherie Shipp case.

In 1996, Cherie Shipp, a resident of Webster Parish, fled from her abusive husband, Dalton. After receiving many threatening phone calls |afrom Dalton, Cherie then fled to a cousin’s home. When Dalton located her, he beat her with his fists and a telephone he ripped from a wall. Dalton pled guilty to two misdemeanors but imposition of sentence was postponed. Cherie filed an action in the Webster Parish District Court and obtained a temporary restraining order prohibiting Dalton from having any contact with her. Dalton, however, continued to make threatening calls. Unfortunately, Cherie did not file a contempt rule. Four months later Dalton tracked Cherie to the apartment of another of Cherie’s sisters. Cherie, who was on crutches from a car accident, was forcibly seized and taken by Dalton to his house where she was beaten, raped, and shot in the chest with a shotgun. See State v. Shipp, 30,562 (La.App. 2d Cir.04/08/98), 712 So.2d 230; also, see Shipp v. McMahon, 234 F.3d 907 (5th Cir.(La.) 2000), cert denied, 532 U.S. 1052, 121 S.Ct. 2193, 149 L.Ed.2d 1024 (2001), on subsequent appeal, 54 Fed.Appx. 413 (5th Cir.(La.) 2002) (not selected for publication in the Federal Reporter) No. 02-30420) (a civil rights suit against Webster officials).

The summary procedures allowed by C.C.P. art. 225 would have allowed Cherie to bring Dalton back to court for a contempt charge and the court’s intervention at that time might have stopped the escalation of violence. The “majority” view in the present case, by requiring a jury trial, would have delayed any official intervention by a year or more.

| ¿The majority opinion is based solely on a 1968 United States Supreme Court case, Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), in which the court, in fact, considered the actual sentence imposed, not the possible sentence allowed by Illinois law, to find that the defendant was entitled to a jury trial. In Bloom, an Illinois court sentenced an attorney to two years for' attempting to probate a forged testament. The Illinois Supreme Court found that its law allowed for a two-year sentence. Subsequent United States Supreme Court cases have reaffirmed a commitment to the proposition that a criminal contempt is not a crime of the sort that requires the right to a jury trial regardless of the penalty involved.

In 1974, the United States Supreme Court stated in Codispoti v. Pennsylvania, 418 U.S. 506, 512-513, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974):

Since that time, our decisions have established a fixed "dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are , petty crimes. Frank v. United States, 395 U.S. 147, 149-150, 89 S.Ct. 1503, 1505-1506, 23 L.Ed.2d 162 (1969); Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970). Under these cases, we plainly cannot accept petitioners’ argument that a contemnor is entitled to a jury trial simply because a strong possibility exists that he will face a substantial term of imprisonment upon conviction, regardless of the punishment actually imposed. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897. (Emphasis added).

IsThe court in Codispoti cited Bloom v. Illinois, supra. The maximum sentences in both Bloom' and Codispoti could have surpassed and, in fact, did exceed six months. Louisiana’s statute provides a maximum penalty of one year for the violation of an injunction; however, in the case sub judice, Long received only a 20-day jail term.

In 1994 the U.S. Supreme Court again expressed its commitment to the principle that it is the punishment imposed that determines the right to a jury trial. In International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 837-839, 114 S.Ct. 2552, 2562-2563, 129 L.Ed.2d 642 (1994), the court wrote:

The union’s sanctionable conduct did not occur in the court’s presence or - otherwise implicate the court’s' ability to maintain order and adjudicate the proceedings before it. Nor did the union’s contumacy involve simple, affirmative acts, such as the paradigmatic civil con-tempts examined in Gompers. Instead, the Virginia trial court levied contempt fines for widespread, ongoing, out-of-court violations of a complex injunction. In so doing, the court effectively policed petitioners’ compliance with an entire code of conduct that the court itself had imposed. The union’s contumacy lasted many months and spanned a substantial portion of the State. The fines assessed were serious, totaling over $52 million.FN5 Under such circumstances, disinterested factfinding and evenhanded adjudication were essential, and petitioners were entitled to a criminal jury trial.
FN 5[P]etty contempt like other petty criminal offenses may be tried without a jury,” Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974), and the imposition only of serious criminal contempt fines triggers the right to jury trial. Bloom, 391 U.S., at 210, 88 S.Ct., at 1486. The court to date has not specified what magnitude of contempt fine may constitute a serious criminal sanction, although it has held that a fine of $10,000 imposed on a union was insufficient to trigger the Sixth Amendment right to jury trial. See Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975).... We need not answer today the difficult question where the line between Rpetty and serious contempt fines should be drawn, since a $52 million fine unquestionably is a serious contempt sanction.
Our decision concededly imposes some procedural burdens on courts’ ability to sanction widespread, indirect contempts of complex injunctions through noncom-pensatory fines. Our holding, however, leaves unaltered the longstanding authority of judges to adjudicate direct contempts summarily, and to enter broad compensatory awards for all con-tempts through civil proceedings. See, e.g., Sheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). Because the right to trial by jury applies only to serious criminal sanctions, courts still may impose noncompensatory, petty fínes for con-tempts such as the present ones without conducting a jury trial. We also do not disturb a court’s ability to levy, albeit through the criminal contempt process, serious fines like those in this case. (Emphasis added).

The 20-day jail term imposed upon Long is clearly not one which would require a jury trial. Domestic violence has become a national scandal. At a time when strengthened enforcement is needed, the imposition of the rigors of a criminal jury trial for simple violations of restraining orders would strangle and shut down the ability to swiftly interdict violations and coerce compliance with lawful orders of the court.

Right to Prosecution by the District Attorney

Louisiana Constitution Article Five, Section Two provides:

A judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court. Exercise of this authority by a judge of the supreme court or of a court of appeal is subject to review by the whole court. The power to punish for contempt of court shall be limited by law.

Louisiana law allows for summary proceedings for both direct and indirect contempt. Louisiana Code of Civil Procedure article 225(A) specifically provides that a rule to show cause why an offender should not be adjudged guilty of constructive contempt may issue on the court’s own |7motion or on the motion of a party to the action or proceeding and shall state the facts alleged to constitute the contempt. Under this statute, Ms. Hutchins, as a litigant, had standing to move the court to consider whether Long was guilty of contempt as a result of his failure to abide by the prior court order enjoining contact, direct or indirect, with Ms. Hutchins or her daughter. In Jackson Avenue Foundation, Inc. v. Lassair, 03-1759 (La.App. 4th Cir.06/02/04), 876 So.2d 926, the court specifically upheld the right of a litigant to initiate and prove -a punitive contempt charge for the violation of an injunction.

In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796, 107 S.Ct. 2124, 2132, 95 L.Ed.2d 740 (1987), the court observed that the ability to punish disobedience to judicial orders is regarded as essential to ensuring that the judiciary has a means to vindicate its own authority without complete dependence on the whim of other branches of government. “[Cjourts cannot be at the mercy of another branch [of government] in deciding whether such proceedings should be initiated.”

The fact that private parties traditionally and naturally prosecute contempt proceedings is the fundamental difference between criminal cases and contempt proceedings. The Fourteenth Amendment’s Due Process Clause does not impose upon states the requirement that charges be initiated by an independent state prosecutor.

We all agree that remand is proper but we have not given the trial court direction. Whether this type of contempt must be instituted by the |sdistrict attorney and whether a jury trial is required is unclear. I concur in the remand.

      . Neither our prior writ order nor our original opinion held any provision of Louisiana law to be unconstitutional.

      . The issue concerning the appropriate prosecuting authority in a criminal contempt proceeding’will not be addressed in this opinion. This issue was not raised by Long and is not properly before this court for consideration or review.

      . In this case before the original three judge panel, two judges took issue with the preter-mission of the question of who must institute a contempt rule.

      . The trial court needs direction; however, in this case four judges are in agreement while four judges disagree and one simply concurs. This leaves the trial court in a quandary.

      . In addition, under the Domestic Abuse Assistance Statute, La. R.S. 46:2131, et seq., upon good cause shown in an ex parte proceeding, the court may issue a TRO (temporary restraining order) to protect a person who shows immediate and present danger of abuse. La. R.S. 46:2135(A). If the TRO is granted without notice, the matter shall be set for a hearing within 20 days, at which time cause must be shown why a protective order should not be issued. At the hearing, the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B). Further a violation of such an order shall be tried within 10 days of a filing of a motion for contempt by a party or on the court’s own motion. La. R.S. 46:2137.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Thomas ABRIMSON and/or Jim Brown v. ETHEL KIDD REAL ESTATE.
    No. 2004-CA-2085.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2006.
    Irl R. Silverstein, Gretna, Louisiana, for Defendant/Appellee.
    Thomas A. Abrams, Clearwater, Florida, In Proper Person, Plaintiff/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

hThe appellants, Thomas Abrimson a/k/a/ Thomas Anderson a/k/a Thomas Abrams (Thomas Abrams) and Jim Brown a/k/a John Brown (John Brown), appeal the judgment of the trial court ordering the rule for possession in favor of the appellee, Ethel Kidd Real Estate, Inc., and making the judgment executory within thirty days of the judgment.

FACTS AND PROCEDURAL HISTORY

The property involved in this litigation is an apartment located at 632 St. Peter Street. The occupants Thomas Abrams and John Brown were on a monthly lease. On June 4, 1981, Jules Cahn (now the Cahn Trust) issued the original lease to this property to John Pud Brown and Louise G. Brown, the alleged parents of John Brown, neither of whom are a party to this suit, for $300.00 per month with no term. Thomas Abrams began to occupy this apartment with John Brown in 1996. The rent during this time was increased to $425.00 per month. During the time frame at issue, there have been three owners of this property. Michael Winters purchased the property from the Cahn Trust in 2002 and Abdul “Grammi” |2Siddiqui purchased the property from Michael Winters in 2003. At some point the rent was increased to $750.00 per month.

On September 25, 2003, Ethel Kidd Real Estate filed a rule for possession of premises alleging a verbal lease and the nonpayment of rent for the month of September 2003. A notice of the hearing on the rule for possession was set for October 3, 2003. On October 3, 2003, the defendants filed a “SWORN ANSWER TO RULE FOR POSSESSION” along with a petition entitled “EXCEPTIONS”. A hearing was held on that same day on the rule for possession. The trial court denied the defendants’ motion for continuance on the exceptions.

At the hearing the defendants asserted, as a defense to the eviction, that they had paid the September rent. The trial court questioned Thomas Abrams who admitted that he had a check for the September rent but not a cancelled check. It was determined that the plaintiff never tendered the check. The trial court made a factual determination that the lease involved was both unrecorded and was a monthly tenancy. The next issue that the trial court resolved was the timely notice and proper notification of eviction. The defendants claimed that notice was never given. The trial court heard the evidence and concluded that the plaintiff had properly noticed the defendant by tacking the notice on the front door of the building. The trial court finding nothing to defeat the rule for possession issued a judgment in favor of the plaintiff and ordered Thomas Abrams to vacate the premises and rendering a judgment of eviction executory within 30 days of the | oorder. On October 22, 2003, the trial court issued a judgment allowing the defendant to appeal the judgment of eviction. Various writs ensued after this judgment and the matter is now before this Court on appeal on the granting of the rule for possession.

ASSIGNMENT OF ERROR

The appellant asserts numerous errors in the judgment of the trial court mainly arguing that the Louisiana landlord-tenant laws pursuant to La. C.C.P art. 4701 are unconstitutional.

DISCUSSION AND LAW

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing, Rosell v. ESCO, 549 So.2d 840 (La.1989). Questions of law are resolved by determining whether the trial judge was legally correct or legally incorrect. Delacroix Corpora tion v. Perez, 98-2447, p. 4 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, citing Palmer v. Blue Water Marine Catering, Inc., 95-342 (La.App. 5 Cir. 10/18/95), 663 So.2d 780.

The provisions of La. C.C.P 4701 et seq. specifically set out the procedure by which a landlord may seek the eviction of a tenant. Eviction procedure of the Code of Civil Procedure is designed to expedite as quickly as possible ^determination of right of lessor to be restored to possession of premises. Edenborn Partners Ltd. Partnership v. Korndorffer, 94-891 (La.App. 5 Cir. 3/1/95), 652 So.2d 1032. When lessee’s right of occupancy ceases for any reason, lessor is entitled to utilize summary eviction proceedings to obtain possession of the premises. New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 1995-0055 (La. App 4 Cir. 11/ 30/95), 665 So.2d 1186.

In the instant matter the appellants assert that the provisions of La. C.C.P. art. 4703, notice by tacking, is unconstitutional as notice of eviction was never received. In this matter the trial court heard all of the testimony and factually determined that proper notice had been accomplished by tacking. Although the appellants attest that they received no notice the trial court noted that their very appearance in court was proof that they did receive notice. The appellee testified that tacking was the only reasonable means to notify the appellant of the eviction proceeding. A colloquy between the plaintiff and the court ensued.

THE COURT:
Did you notify Mr. Abrams with a 5-day notice before you filed the Rule?
THE PLAINTIFF:
Yes, ma’am I did.
THE COURT:
Did you do that personally; do you know?
THE PLAINTIFF:
Yes, I did.
THE COURT:
You did it personally?
THE PLAINTIFF:
Yes, I did.
THE COURT:
And how did you do that?
THE PLAINTIFF:
I did it by tacking it on to his front door because there was no way of entering into his unit. Neither the previous, nor the new owner |shas keys, because they were never given any. That’s the entrance to his unit.
THE COURT:
Mr. Abram I’m going to accept her testimony.

The very fact that appellants were present in court for the eviction hearing and given the opportunity to be heard is indi-eial that their constitutional rights were not violated. Clearly, the trial court made a credibility call based on the law the facts and the circumstances of this matter. As such its judgment will not be disturbed on appeal.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Although there are two defendants, Thomas Abrams filed documents pro se.

      . The trial court noted that the normal time for making the judgment executory was 48 hours but she agreed to the compromise by the plaintiff to allow the defendant 30 days.

      .We note for the record that the appellant's brief exceeds the page limitation pursuant to The Uniform Rules Courts of Appeal Rule 2-12.2. Therefore, we will not address issues and argument past page 28.


author: DENNIS R. BAGNERIS,'SR., Judge. MURRAY, J.,

text:
    Nathaniel WILLIAMS v. Kevin COOPER and Waste Management of Louisiana, L.L.C. Aisha Pichon v. Kevin Cooper, Waste Management of Louisiana, L.L.C., and Nathaniel Williams.
    Nos. 2005-CA-0654, 2005-CA-0655.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2006.

      Tamara Kluger Jacobson, and Robert G. Harvey,. Sr., New Orleans, LA, for Appel-, lant, Nathaniel Williams.
    Sherry S. Landry, City Attorney, John M. Holahan, Jr., Assistant City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Heather M. Valliant, Assistant City Attorney, Kimlin Lee, Deputy City Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., and Judge MICHAEL E. KIRBY).
   DENNIS R. BAGNERIS,'SR., Judge.

11This appeal involves the review of a two-vehicle accident allegedly caused by a defect in a traffic light. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On Monday, November 13, 2000, at approximately 9:30 a.m., Nathaniel Williams (“Mr. Williams”) was operating his vehicle with his niece Aisha Pichón as his guest passenger when the vehicle they were riding in collided with a garbage truck driven by Kevin Cooper. The collision occurred at the intersection of Carondelet and Jackson Avenue in New Orleans, Louisiana. Mr. Cooper was in the course and scope of his employment with Waste Management at the time of the accident and was driving a garbage truck belonging to his employer. The police report indicates that prior to the collision, Mr. Williams was traveling eastbound on Carondelet while Mr. Cooper was traveling southbound on Jackson Avenue. Both Mr. Williams and Mr. Cooper state in the police report that they had green lights while going through the intersection.

| ?The police officer that investigated the scene of the accident was Regina Barr. In Officer Barr’s deposition, she testified that when she-arrived at the site, the weather was overcast and the roads were wet, and that in her opinion the weather had some effect on the accident. Officer Barr further testified that while she was parked on Jackson Avenue, she noticed that the signal on Jackson changed from green to red with no yellow, but that everything else appeared to be functioning properly with the traffic signal.

Mr. Williams initially filed suit against Mr. Cooper, Waste Management, and its insurer on June 13, 2001. A suit was later filed by Aisha Pichón against the same parties and consolidated into this matter on January 17, 2001. On January 14, 2002, Mr. Williams filed a first supplemental and amending petition adding the City of New Orleans as a defendant to the suit alleging that it was negligent in failing to properly maintain the light fixture at the Caronde-let and Jackson intersection. Thereafter, plaintiff Aisha Pichón also filed a first supplemental and amending petition adding the City of New Orleans as a defendant. The plaintiffs later settled and dismissed their claims against the original defendants, Waste Management and Mr. Cooper. Plaintiff Aisha Pichón also settled her claim with the City of New Orleans prior to trial.

On July 13, 2004, Mr. William allegedly propounded discovery in the form of Request for Admissions to the City of New Orleans via U.S. Mail. The request stated as follows:

REQUEST NO. 1:
|sDo you admit that the traffic signal at the intersection of Jackson and Caron-delet was not properly operating prior to the accident of November 13, 2000.
REQUEST NO. 2:
Do you admit that the City of New Orleans was aware of the malfunctioning traffic signal light prior to the accident of November 13, 2000.
REQUEST NO. 3:
Do you admit that the traffic signal light at the intersection of Jackson and Car-ondelet Street is under the care, custody and control of the City of New Orleans.

At trial, Mr. Williams, by oral motion, moved to deem his unanswered Requests for Admissions to the City of New Orleans as admitted. The trial court deferred a ruling on the issue of the request for admissions.

After a bench trial, the trial court denied Mr. Williams’s claims against the City of New Orleans and dismissed his claims with prejudice. Specifically, in its reasons for judgment, the trial court stated as follows:

Although there is evidence that the traffic signal light was malfunctioning for the Jackson Avenue traffic on November 13.2000, there is no evidence that it caused the accident subject of this litigation.
New Orleans Police Officer Regina Barr indicated in her accident report (Plaintiffs Exhibit A) and testified in her deposition (Plaintiffs Exhibit B) that she observed the traffic light for Carondelet Street [Jackson Avenue] change from green to red with no yellow signal indicator. However, Officer Barr did not determine if' the absence of a yellow light caused or contributed to the accident in question.
The plaintiff, Nathaniel Williams, was the only witness who testified live at trial. He stated he did not see the traffic signal light for the Jackson Avenue traffic.
A plaintiff in a personal injury action has the burden of proving by a preponderance of evidence that his injuries were caused by the accident of which he complains. (Citations omitted). The plaintiff failed to satisfy this burden because it is not proven through the 1 ¿evidence presented that it was more probable than not that this accident was caused by failure to maintain the traffic signal light on Jackson Avenue.

Plaintiff now appeals, arguing that the trial court erred when it: (1) failed to deem unanswered requests for admission as admitted; and (2) found that the malfunctioning traffic signal was not a cause in fact of the motor vehicle accident.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it. is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

| ¡¿DISCUSSION

When the claim against a public entity is based on the condition of property, a plaintiff may proceed under theories of negligence or strict liability. Louisiana Revised Statute 9:2800 governs strict liability claims against a public entity under La. C.C. art. 2317, but limits that liability by requiring proof that the public entity had actual or constructive knowledge of the defect and a reasonable opportunity to remedy the defect, yet failed to do so. Henderson v. Nissan Motor Corp., 2003-606 (La.2/6/04), 869 So.2d 62, 66. The imposition of liability under general negligence principles requires proof that the defendant had actual or constructive knowledge of the risks and failed to take corrective action within a reasonable time. Hardenstein v. Cook Constr., Inc., 96-0829 (La.App. 1 Cir.2/14/97), 691 So.2d 177, 183. Therefore, under either negligence or strict liability, for a plaintiff to succeed in an action against a public entity based on the condition of property for which it allegedly had responsibility, the plaintiff must show that (1) the property causing the damage was in the custody of the public entity; (2) the property was defective due to a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the risk; and (4) the defect was a cause-in-fact of the plaintiffs injury. Toston v. Pardon, 2003-1747 (La.4/23/04), 874 So.2d 791, 798.

I. Unanswered Requests for Admissions

Initially Mr. Williams argues the trial court erred by failing to deem unanswered Requests for Admissions as admitted. We disagree because we find that the record supports the trial court’s decision. Assuming arguendo the trial court erred by failing to deem unanswered Requests for Admissions as admitted, we find that error is not so prejudicial that it would have changed the outcome of |fithe trial because the record fails to establish the defect was a cause-in-fact of Mr. Williams’s injury, as discussed more thoroughly below. Accordingly, even if error had been committed, we find such error to be merely “harmless error” because Mr. Williams failed to establish the element of causation.

II. Causation

Mr. Williams argues the trial court erred by finding the malfunctioning traffic signal was not a cause-in-fact of the motor vehicle accident. We disagree. Mr. Williams was the only witness who testified at trial. At trial, Mr. Williams testified that following the accident, he was unable to check the traffic signals to see if they were operating correctly. Mr. Williams testified that after the accident, he was removed from the car and was lying on the ground until the ambulance brought him to Charity Hospital.

Although Mr. Williams submitted the deposition testimony of Officer Barr to prove that the traffic light was malfunctioning at the time of the accident, we find that her testimony fails to prove that the yellow light’s failure to function caused or contributed to the accident. Specifically, although Officer Barr observed the signal change from green light to a red light as she was sitting in her police car on Jackson Avenue, she never explained whether the cycle that she observed was facing northbound or southbound traffic. Accordingly, we find that her testimony fails to establish whether this malfunctioning faced either driver. Further, Officer Barr testified that she did not notice whether the signal on the Carondelet Street side was functioning properly. For these reasons, we agree with the trial court that Mr. Williams failed to meet his burden of proving that the traffic light caused his accident with Mr. Cooper.

17Accordingly, the judgment of the trial court, which dismissed Mr. Williams’s suit against The City of New Orleans with prejudice, is hereby affirmed.

AFFIRMED.

MURRAY, J., concurs with reasons.

MURRAY, J.,

concurring.

| ^though I agree with the result the majority reaches, I write separately to address two issues.

First, contrary to the majority’s suggestion, the trial court never ruled on whether the Request for admissions should be admitted. I would find the Request for Admissions should have been admitted. Nonetheless, I agree that the fact they were not admitted is harmless error as the trial court failed to find a casual connection between the malfunctioning light and the accident.

Second, a significant fact the majority does not mention regarding the causation issue is that there was no evidence presented that the defendant saw the traffic signal. Given the lack of any evidence establishing the defendant saw the light, the fact the light malfunctioning could not have contributed to the accident.

For these reasons, I respectfully concur.


author: EDWIN A. LOMBARD, Judge.

text:
    PREMIER DODGE, L.L.C. v. Timothy PERRILLOUX, Perrilloux’s Towing, The City of New Orleans, Department of Police, and the St. Tammany Parish Sheriffs Office.
    No. 2005-CA-0554.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2006.
    Warren Horn, Joy Lyu Monahan, Clayton T. Hufft, Heller Draper Hayden Patrick & Horn, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Charles M. Hughes, Jr., Gary L. Hanes, Talley Anthony Hughes & Knight, L.L.C., Mandeville, LA, for Defendanl/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|!Premier Dodge, LLC, Plaintiff — Appellant, appeals the trial court’s grant of the Exception of Improper Venue filed by the Defendant/Appellee, Rodney J. Strain, Jr., in his official capacity as Sheriff of St. Tammany Parish, State of Louisiana. For the reasons below, we reverse and remand to the trial court.

FACTS AND PROCEDURAL HISTORY

On November 15, 2002, an employee of the Plaintiff was in possession of one of the Plaintiffs vehicles. On that evening, the employee discovered that the vehicle was missing and reported it to the 7th District of the New Orleans Police Department. The vehicle was recovered three days after it was stolen and impounded by the St. Tammany Sheriffs Office. The Plaintiff was not notified and did not learn of the whereabouts of the vehicle until six months later. By the time the Plaintiff did learn that the vehicle was in the custody of the St. Tammany Sheriffs office, title to the vehicle had been transferred to Defendant Perrilloux’s Towing Company and the property sold. The Plaintiff attempted to recover the proceeds of the sale unsuccessfully.

| ^Premier Dodge filed suit against the New Orleans Police Department, the St. Tammany Parish Sheriffs Office, Timothy Perrilloux and Perrilloux’s Towing Company for damages stemming from the recovery, storage and sale of the vehicle. Premier Dodge alleged that the cause of action occurred in Orleans Parish and that the defendants were jointly and severally liable.

The St. Tammany Sheriff, Rodney J. Strain, Jr., in his official capacity, filed a Declinatory Exception of Improper Venue alleging that he can only be sued in St. Tammany Parish because the Sheriffs Office is a political subdivision. The trial court agreed and granted the Exception without reasons. Premier Dodge appeals that decision alleging that because there are two political subdivisions being sued, ancillary venue controls and Orleans Parish is a proper venue for the instant suit.

STANDARD OF REVIEW

On appeal, the parties disagree on the standard of review. The appellant argues that this court should review the grant of the Exception of Venue de novo. The appellee, however, argues that the court should review the matter under the clear abuse of discretion standard as used in cases determining motions for change of venue. The instant case does not involve a Motion for Change of Venue and instead involves an Exception of Improper Venue. Therefore, we will review the facts of this case under the de novo standard of review. Crawford v. Blue Cross and Blue Shield of Louisiana, 2000-2026, (La.App. 4 Cir., 12/5/01), 814 So.2d 574, 577. In Crawford, this court determined that venue is a question of law and where the record is complete the court should conduct a de novo review. Id at 577 (citing Bloomer v. Louisiana Workers’ Compensation Corp., 99-0707, (La.App. 1 Cir. 5/12/00), 767 So.2d 712, 714).

VENUE

According to Louisiana Revised Statute 13:5104(B), venue against a political subdivision is proper before the district court where the political subdivision is located or where the cause of action arose. The parties do not dispute that the St. Tammany Sheriff is a political subdivision. Therefore, he clearly falls within the purview of R.S. 13:5104. However, the instant case involves two political subdivisions both of whom fall under R.S. 13:5104. Therefore, the appellant asserts that the concept of ancillary venue should apply.

Ancillary venue applies when there is no common venue for all of the defendants, but there is a common set of facts. Underwood v. Lane Memorial Hosp., 1997-1997 (La.7/8/98) 714 So.2d 715, 719. According to the Louisiana Supreme Court in Underwood, ancillary venue provides judicial economy and efficiency, “even though venue is not proper technically for one claim or one party.” Id.

The appellee claims that venue in Orleans Parish is proper for the New Orleans Police Department, but is not proper for the Sheriff of St. Tammany. The appellee then goes on to say that the parties should be sued in one jurisdiction, but that that jurisdiction is St. Tammany Parish. Therefore, the parties do not disagree that one of the defendants would be subject to ancillary jurisdiction or that both | .political subdivisions should be sued in the same locale. They simply disagree which court should be allowed to exercise jurisdiction.

The Plaintiff has chosen Orleans Parish in which to file its lawsuit. Venue is proper in Orleans Parish under the current jurisprudence. Therefore, the trial court erred when it granted the Defendant’s Exception of Venue.

CONCLUSION

We find under a de novo review of the record that the trial court erred when it granted the appellee’s Declinatory Exception of Improper Venue. Ancillary venue applies and venue is proper in Orleans Parish. Therefore, we reverse and remand this matter for further proceedings consistent with this ruling.

REVERSED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Anthony Joseph THOMAS. State of Louisiana v. Anthony Joseph Thomas a/k/a Anthony Joseph Sagona. State of Louisiana v. Anthony Joseph Thomas a/k/a Anthony Joseph Sagona.
    Nos. 2005-KA-0558 to 2005-KA-0560.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2006.
    Harrietta J. Bridges, La Dept, of Public Safety & Corrections, Baton Rouge, LA, for Plaintiff/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

LOn December 6, 1990 in case number 139-616, Anthony Thomas was charged with violating La. R.S. 14:44.1, second degree kidnapping. He was charged in a separate bill of information with one count of attempted aggravated rape, a violation of La. R.S. 14:27(42); that bill of information was filed in case number 139-617. These cases were consolidated with each other and with case number 139-559. On February 22,1991, prior to the defendant’s arraignment, the court found that the defendant was incompetent to proceed and ordered that he be remanded to Feliciana Forensic Facility. The court maintained its finding that the defendant should remain at Feliciana Forensic Facility in orders dated April 2, 1992 and July 24, 1992.

The records do not indicate when, or if, the trial court subsequently found the defendant competent. However, on August 11, 1992, defense counsel filed a motion to set the matter for jury trial. Counsel appeared for the scheduled trial on August 18th. The defendant was not present, and counsel waived his appearance. The prosecutor stipulated that the members of the sanity commission would testify that the defendant was insane at the time of the offense. The court then found the defendant not guilty by reason of insanity as to both charges. The court further found that the defendant was a danger to himself or others and ordered him remanded to Feliciana Forensic Facility.

On September 16, 1999 the trial court held a contradictory hearing to determine whether the defendant was still dangerous to himself or others or whether he should be conditionally released. The court found that he should be conditionally released to the Harmony Transitional Center and placed him on active probation pursuant to La.C.Cr.P. art. 658 for a maximum term of five years, | {.subject to extension. On June 17, 2003 the court ordered that the defendant be continued in the conditional release program under the supervision of the Office of Probation and Parole — Department of Public Safety and Corrections and the Department of Health and Hospitals. The court amended the conditions of probation to provide that the defendant, instead of residing at the Harmony Center, would five with his mother in Marrero, La.

On September 3, 2003 Lisa Mix, an officer with the Office of Probation and Parole, filed a written motion and order for a hearing to revoke the defendant’s probation. The sole basis for revocation set forth in the motion was “[t]o determine if subject must comply with notification as a Sex Offender.” A hearing was held on October 23, 2003; Ms. Mix was the only witness. She testified that she filed the rule to revoke the defendant’s probation because he failed to register as a sex offender as required under the sex offender laws. She indicated that the issue had arisen because the defendant was seeking to move with his mother to St. Bernard Parish. At the conclusion of the hearing, the court rendered a ruling from the bench that, because the defendant’s offenses occurred in 1990, the registration statutes set forth in Title 15 of the Revised Statutes did not apply. There was no objection to this ruling by the State, nor was a notice of intent to seek writs or a motion for an appeal filed. The defendant’s probation was not revoked.

On June 10, 2004 counsel for the defendant filed a motion for an order removing the defendant’s name from the Louisiana State Police Bureau, Sex Officer and Child Predator Registry. With the motion the defense attached a copy lsof the record from the Louisiana State Police which indicated that the defendant had registered as a sex offender on November 14, 2003. The defendant’s motion was heard on July 13, 2004. Ms. Mix was again the sole witness. When questioned about how the defendant appeared on Louisiana State Police Sex Offender registry, she stated that he was placed on it when he was transferred from the Harmony Transitional Center. According to Ms. Mix’s testimony, the defendant had already registered before the judge had ordered that he did not have to do so. She stated that it was the usual practice of the parish to forward a defendant’s name and information to the State Police when a defendant registered with the sheriffs office. She further speculated that the State Police received an order from the court directing that the defendant’s name be removed from the registry and that she would contact the State Police about it. At the conclusion of the hearing, the court directed that the record show that there is an order granting the relief prayed for by the defendant. On August 5, 2004, the court signed a written order directing the “Louisiana State Police Bureau, Sex Offender and Child Predatory [sic] Registry” to remove any reference to the defendant as had previously been ordered on October 23, 2003. There was no objection to the court’s oral ruling, nor was a motion for new trial or review sought from the court’s order.

On August 12, 2004 a new motion to revoke the defendant’s probation was filed; in it the probation officer alleged that the defendant had stopped taking his medication and recently had been hospitalized. The probation officer requested that the defendant’s probation be extended for one year. By consent of the parties, on September 28, 2004, the court ordered that the defendant’s active supervised probation be extended for one year; the court further ordered the defendant to Rreside at Harmony Transitional Center and cpmply with all treatment recommendations.

On October 5, 2004, counsel for the defendant filed a rule for contempt alleging that the Louisiana State Police had failed to remove the defendant’s name from the Sex Offender and Child Predator Registry. The court set the rule for a hearing on November 16, 2004. According to the minute entry for that date, the court heard oral argument from the parties and deferred a ruling on the contempt issue. Although the record does not include a new motion to revoke probation, the court ordered that the defendant’s probation be revoked and that he be recommitted to the custody of the Eastern Louisiana Mental Health System, Forensic Division, pursuant to La. C.Cr.P. art. 658(B)(4).

On December 1, 2004 the Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information, through its counsel, filed a pleading entitled “Rule for Reconsideration of Court’s Order Directing Defendant’s Removal from the State Sex Offender and Child Predator Registry” with a supporting memorandum. The hearing was held on February 3, 2005 and, after oral argument was made, the court denied the motion to reconsider its prior judgment ordering that the defendant did not have to register as a sex offender. Counsel for the Department of Public Safety and Corrections orally gave notice of intent to seek writs or an appeal; counsel also asked that the court issue a written order directing what the State was supposed to do. The court explained from the bench that the judgment it was rendering was a denial of the motion to reconsider its prior judgment, and that the State should refer back to the original judgment rendered by the court.

|ñOn February 11, 2005, counsel for the State filed a written judgment on its Rule for Reconsideration which the trial court signed on February 15, 2005. On March 14, 2005, counsel for the State filed a “Petition for Appeal” in which the State averred that it was seeking a devolutive appeal from the final judgment rendered on February 3, 2005. On March 15, 2005, the court granted the motion for devolutive appeal and set a return date of April 18, 2005.

DISCUSSION

The review of the records undertaken by this Court shows that these consolidated appeals should be dismissed. In its motion for appeal the appellant states that it is appealing the trial court’s denial of its motion for reconsideration of judgment rendered on February 3, 2005. However, as the Fifth Circuit noted in Reed v. Columbia/HCA Information Service Inc., 99-1315 (La.App. 5 Cir. 4/25/00), 761 So.2d 625, 627, “the Code of Civil Procedure does not provide for a ‘motion for reconsideration’ with respect to any judgment.” Furthermore, the “motion for reconsideration” filed by the appellant in this matter cannot be construed as a motion for new trial because such a pleading must be filed with seven days of the judgment. La. C.C.P. art. 1974.

Here, the first judgment which the appellant sought to have reconsidered was rendered in open court on October 23, 2003 when the trial court denied the motion to revoke the defendant’s probation for failure to register as a sex offender and give notification, holding that the statutory requirements did not apply to him on ex post facto grounds. The August 5, 2004 order directing that the defendant’s name be removed from the sex offender registry was apparently rendered to enforce the October 23, 2003 judgment. The original motion to revoke was filed by the State of Louisiana, Department of Public Safety and Corrections, through |fithe defendant’s probation officer, and the trial court’s ruling became final when the State of Louisiana, Department of Public Safety and Corrections, failed to seek review. Furthermore, even if the appellant’s motion for reconsideration were considered to have been a motion for new trial, denial of a motion for new trial is not an appealable judgment, State ex rel. Dept. of Health Human Resources v. Anderson, 2004-1567 (La.App. 4 Cir. 3/9/05), 899 So.2d 93, and the petition for a devolutive appeal was not filed within delays allowed for filing a writ application.

Considering that the rulings which the appellant seek to have overturned in these appeals were rendered on October 23, 2003 and August 5, 2004 and that no timely motion for a new trial or timely motion for an appeal of either judgment was filed, this Court lacks jurisdiction over this matter. See Falkins v. Jefferson Parish School Bd., 97-26 (La.App. 5 Cir. 5/9/97), 695 So.2d 1005, 1006; Guillot v. Consolidated Freightways, 583 So.2d 113 (La.App. 5 Cir.1991).

Accordingly, these consolidated appeals are dismissed.

APPEAL DISMISSED.

      . The motion also requested that certain other conditions of probation imposed by the probation officer be amended and/or in the alternative that the remainder of the defendant's probation be made inactive. That portion of the motion is not relevant here.


author:
TERRI F. LOVE, Judge.
      CANNIZZARO, J.

text:
    Robert R. REVEL v. Essie CHARAMIE.
    No. 2005-CA-0976.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2006.

      Robert W. Grant, Grant & Barrow, Gretna, Counsel for Plaintiff/Appellant.
    Peter A. Barbee, Metairie, Counsel for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

L Robert R. Revel (Mr. Revel) appeals the trial court’s granting of an exception of lis pendens. We affirm the judgment of the trial court, finding that the requisite elements, which allow for the granting of an exception of lis pendens are applicable to the case sub judice.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 5, 2003, Robbie Lee Bailey Overstreet (“Ms. Bailey”), as one of the co-owners of the property located at 140 Lonnie’s Lane in Venice, Louisiana, obtained a judgment of eviction against Essie Cheramie (“Ms. Cheramie”) and Carol Crosby (“Ms. Crosby”) who lived in a trailer located on the property, which is the subject matter of the instant litigation. Ms. Cheramie and Ms. Crosby | ^appealed the eviction to the Twenty-Fifth Judicial District Court for the Parish of Plaque-mines, which was denied as untimely.

On May 29, 2003, Ms. Cheramie and Ms. Crosby filed a possessory action against Ms. Bailey, asserting that they were disturbed in their peaceable possession by virtue of the rule for eviction filed May 5, 2003. In response, Ms. Bailey filed an exception of res judicata, an answer, and reconventional demand. The trial court granted the exception of res judicata and reserved Ms. Bailey’s right to proceed on the reconventional demand. Ms. Chera-mie and Ms. Crosby filed a motion for new trial, which was granted and the exceptions were reset for hearing. However, the record is absent as to whether there was a ruling on the exceptions.

On May 11, 2004, Ms. Bailey and her co-owners sold the property in question to Robert R. Revel (“Mr.Revel”) for $23,000.00. On November 18, 2004, Mr. Revel filed a petition for possession against Ms. Cheramie, asserting that his peaceable possession of the property was disturbed by virtue of Ms. Cheramie’s refusal to leave the property. In response, Ms. Cheramie filed an exception of lis pendens due to the fact that the possesso-ry action she filed naming Ms. Bailey as defendant was still pending. Ms. Crosby was not named in the exception of lis pendens. On April 21, 2005, the exception of Us pendens was granted in favor of Ms. Cheramie. The trial court granted the exception based on the pending reconven-tional demand in Ms. Cheramie’s possesso-ry action. Mr. Revel’s timely devolutive appeal followed.

|sOn appeal, Mr. Revel avers that the trial court erred in granting the exception of lis pendens because the two actions, i.e., Ms. Cheramie’s possessory action and Mr. Revels petition for possession against Ms. Cheramie, involve different parties and different causes of action. More specifically, Mr. Revel asserts that the action filed by Ms. Cheramie and Ms. Crosby is a posses-sory action of the trailer, not the immovable property, whereas his petition claims a possessory action .of the immovable property. Mr. Revel further avers that there are different parties in each of the suits because Mr. Revel’s action names only Ms. Cheramie, and not Ms. Crosby. Mr. Revel maintains that Ms. Crosby does not live on the property and, therefore, has no interest in these proceedings.

Ms. Cheramie counters that both actions center on her occupation of the land. Moreover, Ms. Cheramie argues that Mr. Revel’s failure to name Ms. Crosby as a defendant in his action does not defeat the exception of lis pendens.

STANDARD OF REVIEW

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. of New York v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4th Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

LIS PENDENS

La. C.C.P. art. 531 governs lis pendens and states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in|4the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

The test for ruling on an exception of lis pendens is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corp., 96-1224, p. 3 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248. The exception of lis pendens has the same requirements as the exception of res judicata and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Id.

The first requirement for granting an exception of lis pendens is that there are two or more suits pending. Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 4 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 406. In the case sub judice, there are two suits pending in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines. Thus, the requirement that there exist two or more pending cases has been met.

The second requirement for granting lis pendens is that the suits involve the same transaction or occurrence. Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, 1060, citing Comment (a) to La. R.S. 13:4231. We find that both actions clearly arise | ¡¡out of the same occurrence, i.e., Ms. Cheramie’s occupation of the property located at 140 Lonnie’s Lane in Venice, Louisiana.

The third requirement for granting lis pendens is that the suits involve the same parties in the same capacities. The “identity of parties” prerequisite for res judicata does not mean that the parties must be the same physical or material parties, so long as they appear in the same quality or capacity. Berrigan v. Deutsch, Kerrigan & Stiles, L.L.P., 01-612, p.6 (La.App. 4 Cir. 1/2/02), 806 So.2d 168, 167. The only requirement is that the parties be the same “in the legal sense of the word.” Id. at p. 6, 806 So.2d at 167.

In the present matter, Mr. Revel, as purchaser of the property, is the legal successor to Ms. Bailey and her co-owners and, therefore, the same party, “in the legal sense of the word.” Accordingly, we find that the “identity of parties” requirement has been met in this case.

Furthermore, we find that the failure to name Ms. Crosby in the second suit does not defeat the exception of lis pen-dens as to Ms. Cheramie. In Building Engineering Services Co., Inc. v. State of Louisiana, 441 So.2d 417, 421 (La.App. 4 Cir.1983), this Court held that res judicata would apply to the issue fully litigated by the common parties of the first and second suits regardless of whether defendants were added or omitted in one of the suits, provided that the parties added or omitted were not “critical to the resolution of issues between the parties in the first suit.” Id. 441 So.2d at 421. “By analogy, the identity of parties requirement for lis pen-dens is also not an absolute requirement, but turns on whether the parties added or omitted would be necessary to reach a judgment on all of the issues asserted against the common parties in both suits.” Fincher v. Insurance Corporation of America, 521 So.2d 488, 490 (La.App. 4 Cir.1988). See also Fire and Cas. Ins. Co. of Connecticut v. Sewerage and Water Bd. of New Orleans, 2001-0898, p. 7 (La.App. 4 Cir. 5/29/02), 820 So.2d 632, 635. Under this rationale, the test for lis pen-dens is satisfied as to thfe common parties in the pending suits, namely Ms. Cheramie and Mr. Revel.

We find that the trial court, in the two different proceedings, were asked to make factual determinations as to issues based on the same occurrence between the same parties in the same capacities within the meaning of La. C.C.P. art. 531. Accordingly, Ms. Cheramie is entitled under the doctrine of lis pendens to have the second suit dismissed.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting the exception of lis pendens in favor of Ms. Chera-mie.

AFFIRMED.

CANNIZZARO, J., dissents with reasons.

CANNIZZARO, J.

Dissents with Reasons.

hi respectfully dissent from the majority opinion. I would reverse the trial court judgment.

Robbie Lee Bailey Overstreet, who at the time owned the property located at 140 Lonnie’s Lane in Venice, Louisiana in indi-visión with others, obtained a judgment of eviction against Essie Cheramie and Carol Crosby, who apparently lived in a trailer they owned on the property. Ms. Chera-mie and Ms. Crosby appealed the judgment of eviction, but the appeal was dismissed as being untimely filed.

Rather than vacating the property at 140 Lonnie’s Lane as they were required to do pursuant to the judgment of eviction, Ms. Cheramie and Ms. Crosby filed a pos-sessory action against Ms. Overstreet. La. Civil Code art. 3440 provides that “[wjhere there is a disturbance of possession, the possessory action is available to a precarious possessor, such as a lessee or a depository, against anyone except the person for whom he possesses.” Paragraph (b) of the Revision Comments — 1982 state that the possessory action is not available to a lessee against a lessor. In the posses-sory action, Ms. Cheramie and Ms. Crosby sought an injunction allowing them to remain on the premises at 140 Lonnie’s Lane during the pendency of the action, and they sought a judgment granting them possession of the property.

lain response to the possessory action, Ms. Overstreet filed an exception of res judicata, based on the judgment of eviction, and exceptions of no right of action, no cause of action, and vagueness. An affirmative defense, asserting that lessees do not have the requisite possession to maintain a possessory action against a lessor, was also raised. Finally, Ms. Over-street filed a reconventional demand against Ms. Cheramie and Ms. Crosby in which she alleged that a preliminary injunction was improperly granted to them without bond by an ex parte order of the court. Ms. Overstreet sought either to have them furnish security for the preliminary injunction or to have the preliminary injunction dissolved. In the reconventional demand she also sought an award of damages for the wrongful issuance of the preliminary injunction.

After a hearing on Ms. Overstreet’s exception of res judicata, the trial court judge ordered that the exception be maintained and that the possessory action be dismissed with prejudice. The preliminary injunction was also dissolved in the judgment. Ms. Overstreet’s right to proceed with her reconventional demand for damages was reserved in the judgment.

After the possessory action was dismissed, Ms. Cheramie and Ms. Crosby filed a motion for a new trial, and the motion was granted. Approximately a month later, the property at issue in the possessory action was sold by Ms. Over-street and the other co-owners of the property to Robert R. Revel.

After he acquired the property, Mr. Revel filed a petition for possession. In the petition he alleged that Ms. Cheramie had refused to vacate the property or to pay rent and had disturbed his peaceable possession of the property. Mr. Revel sought possession of the property as its owner and sought to have Ms. Cheramie evicted. He also sought a preliminary injunction restraining Ms. Cheramie and her |sfamily members, agents, and employees from threatening, harassing, or injuring him.

In response to Mr. Revel’s petition for possession, Ms. Cheramie filed a declinato-ry exception of lis pendens, based on the possessory action that she and Ms. Crosby had filed. The trial court judge granted the exception of lis pendens. In his reasons for judgment, the judge stated that in their possessory action, Ms. Cheramie and Ms. Crosby had asserted “their ownership of a disputed parcel of property.” He further stated that Ms. Overstreet was granted the right to proceed on the recon-ventional demand that was filed. Therefore, the trial court judge concluded that any dispute regarding the property could be resolved in the earlier possessory action.

Mr. Revel is now appealing the decision granting the exception of Us pendens. I think that his appeal has merit. The re-conventional demand filed by Ms. Over-street in response to the possessory action by Ms. Cheramie and Ms. Crosby sought: (1) security to be furnished in connection with the preliminary judgment or, alternatively, dissolution of the preliminary injunction; and (2) damages for the wrongful issuance of the preliminary injunction. The reconventional demand did not seek either a determination regarding the ownership or possession of the property or an eviction, which were the things that Mr. Revel’s petition for possession sought. Additionally, Mr. Revel is not a defendant in the possessory action filed by Ms. Cher-amie and Ms. Crosby. The record does not reflect that he has ever been added to that case as a defendant or that he has ever been served in that case. Just because one of the prior owners of the property was a defendant in the possessory action does mean that Mr. Revel was automatically substituted as a defendant when he acquired the prior owner’s interest in the property.

| ¿For those reasons discussed above, I do not think that the exception of lis pen-dens should have been granted. I would reverse the trial court ruling.

      . Prior to its sale on May 11, 2004, Ms. Bailey co-owned the immovable property with Jean Ann Bailey Cone Duet and Craig S. Bailey.

      . There is some dispute as to whether Ms. Crosby actually lived in the trailer on Ms. Bailey's property or whether she lived on the adjoining property.

      . The matter is entitled Robbie Lee Bailey Overstreet v. Essie Cheramie and Carol Crosby and numbered 49-942, Division A, in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines.

      . The matter is entitled Robert R. Revel v. Essie Cheramie and numbered 51-919, Division B, in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines.

      . Comment (a) to La. R.S 13:4231, in pertinent part, reads:
      The central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. This serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless reliti-gation of the underlying facts and will free the defendant from vexatious litigation; and, by focusing on the transaction or occurrence which would be comparatively easy to determine, this proposal avoids the much more difficult problem of defining what constitutes "cause of action” is avoided. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

      . Ms. Crosby was not named as a defendant in Mr. Revel’s petition for possession.