author: MOORE, J. GASKINS, J.,

text:
    STATE of Louisiana, Applicant v. Thomas G. HEMPHILL, Jr., Respondent.
    No. 41,526-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 17, 2006.
    Rehearing Not Considered Dec. 6, 2006.

      Jack Wright, Jr., Monroe, for Respondent.
    Jerry L. Jones, District Attorney, Madeleine M. Slaughter-Young, Assistant District Attorney, for Applicant.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

liThe state applied for a supervisory writ asking us to review and overturn a district judge’s ruling granting the defendant’s motion to suppress. We granted the writ and placed the matter on the next available docket. The parties waived oral argument and submitted the matter on their briefs in connection with the writ application. Based upon our review of the record, we affirm the district court ruling.

Facts

On April 13, 2005 the Metro Narcotics Unit of Ouachita Parish (“MNU”), received an anonymous tip that the defendant was running a methamphetamine lab in a shed near his mobile home, and that the “cooks” generally started after midnight. There was no description of the suspect and the caller was unknown to the MNU. Two days later, detectives from the MNU went to an area near defendant’s mobile home shortly after midnight. The residence is located next to defendant’s plant nursery business. Detective Randall Pittman and four MNU detectives parked their unmarked vehicle in an agricultural field adjacent to the defendant’s property and walked to the defendant’s property. At least one of the agents had “HAZMAT” certification. Additional agents remained behind in their vehicles. Det. Pittman was in charge of the operation.

Det. Pittman, the only witness for the state at the hearing on the motion to suppress, testified that he did not identify the shed prior to entering the defendant’s yard, but he saw the mobile home and some other structure. He testified that “the shed was very hard to observe ... at that Upoint” due to vegetation and darkness. He saw no lighting, nor smelled anything. Although the property was only partially fenced, Det. Pittman said that the defendant’s property was clearly distinguishable from the agricultural field due to the grass in defendant’s yard.

After crossing onto the defendant’s property, Det. Pittman said that because the wind was from the east, the agents moved between Bayou DeSiard and the plant farm, where the mobile home and shed were located, to the west side of the shed. Det. Pittman, who had 2 h years experience with the Metro Narcotics Unit, testified that he and the other agents detected the odor of ether, but they could not pinpoint the source of the odor which was coming from the general direction of the mobile home and shed. The testimony does not indicate whether they entered the neighboring property whose boundary from the shed was some twenty feet away.

Using night vision equipment, the officers saw a person walking from the mobile home to the shed. Det. Pittman had received no physical description from the anonymous caller to confirm whether the person observed going into the shed was the defendant. He testified that he could not tell whether or not the person was a white male, but he did appear to be a male.

Det. Pittman said that they “zoned-in” on the shed, and as they advanced closer to the shed, he heard “metallic” sounds emanating from the shed and the odor of ether became stronger. He testified that the sounds “could have been a person sharpening mower blades,” and he could not associate them with any particular meth lab operation. Nevertheless, he |,-¡concluded that an active meth lab “cook” was occurring, based on his experience of associating the smell of ether with a methamphetamine cook, and the fact that there was some type of activity taking place in the shed.

At this point, Det. Pittman testified that he decided to “flush” the defendant out of the shed, so he ordered other officers who were “there for Mr. Hemphill” in their vehicles to drive down the defendant’s driveway with “headlights, numerous headlights shining down the driveway,” while he and the other four agents positioned themselves by the door of the shed. “[H]opefully,” said Det. Pittman, “Mr. Hemphill would see that, become scared or whatever the case may be, and try to exit the building.”

Pittman initially testified that the defendant opened the door, but later changed his testimony, stating that he (Pittman) opened the door after he decided that “it was in everybody’s best interest to vacate the shed.” In either case, when the door opened, defendant was standing at or near the doorway with an unlighted flashlight in his right hand. Det. Pittman testified that he “reached in” the shed and pulled the defendant out of the shed by his arm, handcuffed him, and led him away from the building.

When asked whether he was able to see anything within the interior or smell anything within the interior of the shed, Det. Pittman first answered as follows:

“[F]rom the moment I grabbed him, and I did not take a ten second break to look around or anything like that. No. I grabbed Mr. Hemphill and moved him from the doorway of that particular shed.”

|4Pet. Pittman said the defendant was not armed; however, when asked if the defendant could have been within reach of a weapon, he responded that if the defendant had a weapon close to the doorway, he would have been within grabbing distance of it. He stated that he took Mr. Hemphill into custody from the time he opened the door by handcuffing the defendant and led him away from the building. He also testified that he patted down the defendant and discovered a small, metal can that contained what appeared to be marijuana.

According to Det. Pittman, the door of the shed remained open, and “it was at that point very obvious what was going on inside that building.” He stated that, without entering the unlighted shed, he observed various instruments used in the manufacture of methamphetamine inside that were confined to the back left corner of the shed, including a propane tank turned upside down and various cans with tubing sticking out of them. The remainder of the building contained various tools and household items. There was no fire, flame or heat source being utilized at the time, nor were there any lights on in the shed, and defendant’s flashlight was turned off.

Based on these observations and the odors associated with meth lab production, Det. Pittman concluded there was an active meth lab inside the shed. Concerned with the safety of himself, the team, the neighbor’s house some 50 feet from the shed and Mr. Hemphill, he sent Detective Harold Freeman, who was his “certified meth lab guy” with HAZMAT certification “to shut this lab down ... [and] start removing the different components and safely contain the different components that were in there.”

| ¡¡Pet. Pittman testified that after he handcuffed him, he took Mr. Hemphill to his mobile home where Mr. Hemphill gave oral consent to search his property. Det. Pittman described the defendant as very cooperative. He said the defendant told them where there were some narcotics in the trailer.

From the mobile home, the agents recovered two shotguns and an “over and under” .22 cal rifle/20 gauge shotgun, all of which were legally owned firearms. In the safe, they recovered a .22 caliber pistol, two envelopes with metal containers containing suspected marijuana and two bags of marijuana. (They also found an envelope containing marijuana in the defendant’s pocket.) The findings in the safe also included a syringe and a glass vial containing suspected methamphetamine, two tablets of suspected hydrocodone, a blue tablet suspected to be Klonopin, three tablets suspected to be Xanax, a plastic bag with pieces of tablets, and two small bags suspected to contain marijuana, another small plastic bag containing nine suspected Xanax tablets, a prescription bottle of hydrocodone cough syrup, a glass pipe, a set of scales and an envelope with six boxes, each containing pseudoephedrine tablets in the form of “cold and allergy” tablets sold over the counter as Equate Suphedrine and Sudafed and commonly used in the production of methamphetamine.

Among the things confiscated from the shed, the agents found two Mason jars, one containing a clear liquid suspected to be ether and another containing an off-white powder. Det. Pittman testified that they found a can that they suspected contained ether. As to the smell of ether that the ^detectives said they smelled outside the shed, Pittman attributed it to these two containers, although he could not remember if there were any puncture holes in the can. Other items confiscated from the shed included some jugs and containers with hoses running to them, a gallon Ziploc bag containing ammonia nitrate (i.e. fertilizer), a gallon jug of muriatic acid and a jar containing “suspected salt.” Det. Pittman stated that all of these items are associated with the production of methamphetamine. He also testified that the propane tank was turned upside down and occasionally vented a gas.

Det. Pittman stated that the defendant was under arrest when he handcuffed him. He said that he orally advised the defendant of his rights, but he did not obtain a signed confirmation from the defendant that he had been advised of his Miranda rights. He further stated that the defendant willingly gave his consent to search without being under duress.

Contrary to Det. Pittman’s testimony, Hemphill testified that it was he who opened the shed door and not Det. Pittman when the latter reached in and grabbed him. Defendant testified that it was impossible for Pittman or the other detectives to see what was going on in the back corner of the 30-foot-long storage shed because the view to the back of the shed was blocked by some restaurant equipment such as fryers and cookers that Hemphill was storing for a Mend. He testified that the equipment blocked any view of the meth lab from the doorway. There were no lights in the shed and it was dark.

Defendant testified that when he was pulled from the shed doorway, he was placed face-down on the ground and handcuffed. On cross-examination,7 Det. Pittman corroborated defendant’s account that he put Mr. Hemphill on the ground and handcuffed him. Defendant said he was held on the ground for approximately one hour with someone’s knee in his back, and officers told him that he would stay there all night if they had to wait for a judge to authorize a search warrant. He admitted that he knew that he did not have to consent to authorize the search, but he ultimately did give his consent to search the property.

Defendant admitted that the equipment in the corner of the shed was a meth lab. He stated that the fumes that Det. Pittman allegedly smelled were most likely ammonia because he had just mixed ammonia nitrate with lye to make anhydrous ammonia, which he said is the first step in making methamphetamine. This mixture creates vapors, he said. He admitted that he did have two unopened cans of ether in the shed.

Defendant stated that he was not informed of his Miranda rights, or, if he was, he does not recall it. He said that no one read anything from a card to him. He was not asked to sign anything. He described the scene as “chaotic” around him, while someone held him face down to the ground with their knee in his back. He admitted stating to police that “he did not want to stay there all night.”

After the hearing on April 12, 2006, the court took the matter under advisement. It ruled on the motion on May 26, 2006, and found that the warrantless search and seizure were not justified and granted the defendant’s motion to suppress the evidence seized from the unlawful search and arrest of defendant. Specifically, the court concluded that the | Sstate had not presented evidence that would justify the actions that the officers took. In that regard, it found that the warrantless entry onto the defendant’s property was unjustified. It also stated that any exigent circumstances claimed due to the alleged volatility of a meth lab had been “watered down,” inasmuch as the officers waited two days after receiving the anonymous tip to investigate the matter. It further found that, although officers may approach citizens and engage in conversation with them, they may not turn an encounter into a forcible detention unless there is legal justification. The court also believed that the officers’ actions of handcuffing the defendant and then subsequently seeking verbal consent to search did not comply with the requirements of State v. Vigne, 2001-2940 (La.6/21/02), 820 So.2d 533.

The state applied for supervisory writ of review which we granted and later docketed.

Discussion

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const, art. 1, § 5. Warrantless entries into the home for arrest or seizure are invalid in the absence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Fourth [Amendment has drawn a firm line at the entrance to the home, and a police officer therefore needs both probable cause to arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into a private premises. State v. Talbert, 449 So.2d 446 (La.1984); State v. Hathaway, 411 So.2d 1074 (La.1982). Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or was committing a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); La. C. Cr. P. art. 213; State v. Raheem, 464 So.2d 293 (La.1985). Exigent circumstances may arise from the need to prevent the offender’s escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Hathaway, supra.

In this case, the state contends that the MNU agents had probable cause and exigent circumstances existed to justify the detention or arrest of the defendant and search of the shed, and that, subsequent to his arrest, the defendant freely and voluntarily consented to the search of his property. It contends that the officers did not initially obtain a search warrant before searching the shed because they did not have probable cause based simply on the anonymous tip. However, it argues, the information from the anonymous tip describing the location and the suspicious activity was confirmed “upon arrival of the officers” at defendant’s property. Once the activity given by the anonymous tip was confirmed, the agents moved closer |into the shed, where they smelled ether, which they associated with meth lab activity based on their prior police experience with meth labs. Rather than obtain a search warrant, the state contends that the volatility and threat of meth labs to the safety of the occupant of the shed, the officers and the neighbors created exigent circumstances that justified detaining/arresting the defendant without a warrant and searching the shed. Thereafter, it argues, the defendant freely consented to the search of his property after being advised of his rights. He further confessed that he was operating a meth lab. Accordingly, the state contends that the district court had no grounds to grant the motion to suppress the evidence seized and the statement of the defendant.

Analysis

We review a district court’s ruling on a motion to suppress under the manifest error standard for factual determinations as well as credibility and weight determinations while applying a de novo review to findings of law. State ex rel. Thibodeaux v. State, 2001-2501 (La.3/8/02), 811 So.2d 875; State v. Jones, 36,553 (La.App. 2 Cir. 1/29/03), 840 So.2d 7, writ denied, 03-0956 (La.10/3/03), 855 So.2d 309. Because this was a warrantless search and seizure, the state had the burden to show that probable cause and exigent circumstances justified its actions. State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923.

Our review of the facts established by the testimony and evidence in this record raises the following issues: (1) whether the MNU agents entry onto defendant’s property based on the anonymous tip was unlawful; (2) Liwhether the agents had probable cause after approaching the shed and smelling ether; (3) whether the warrant-less seizure of the defendant and search of the shed was justified by exigent circumstances; and, (4) whether the defendant freely consented to the search and was adequately advised of his Miranda rights and waived them.

The Entry Into Defendant’s Yard To See the Shed and Investigate

Det. Pittman testified that he received an anonymous tip that defendant was operating a meth lab in a shed south of his mobile home and generally started his cooks after midnight. Anonymous tips provide the lowest indicia of credibility and do not in themselves constitute probable cause for either a search warrant or arrest warrant to issue. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). This is because agents or police receiving the tip do not know the identity of the informant or his or her relationship to the accused that would indicate the information is credible. An anonymous tip must contain predictive information about the suspect’s future criminal behavior and such behavior must be corroborated in order to establish probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Alabama v. White, supra. Neither reasonable suspicion or probable cause exists by corroborating merely descriptive, non-predictive information. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (1990). In Gates, supra, the United States Supreme Court set forth a “totality of the circumstances” test to determine whether information from an anonymous informant established probable cause.

hgln this case, the anonymous tip provided some information that predicted criminal activity as well as merely descriptive information. The caller stated that Mr. Hemphill ran a meth lab in a shed south of his mobile home and that the methamphetamine “cooks” generally started after midnight. Det. Pittman was able to confirm activity after midnight in the shed and associated that activity with meth production by the smell of what he said was ether, but not before entering the defendant’s backyard and moving near the shed. The state attempted to establish that Det. Pittman corroborated the requisite predictive elements of the tip before entering defendant’s yard by establishing that Det. Pittman saw the mobile home and some kind of other structure “upon arrival of the officers.” However, the testimony of Det. Pittman indicates that he only identified a mobile home and some unidentified structure. These are merely general descriptive facts not predictive of any criminal activity. See Florida v. J.L., supra. The existence of a mobile home residence and a structure in the backyard is commonplace in Louisiana, particularly in outlying areas.

We also observe that a photograph in evidence shows that the property was partially enclosed with a privacy fence. The officers entered the defendant’s property from the unenclosed portion of the yard that appears to be the backyard of the defendant. Det. Pitman testified that the yard was clearly distinguishable from the field by the grass, so he clearly knew he was entering the yard of the defendant.

Although the district court found that the defendant was adversely affected by the agents’ entry into the neighboring property as well as the | ^defendant’s property without a warrant, it did specifically state that it had determined that crossing into the defendant’s yard itself was a violation of the Fourth Amendment. There has been no argument on appeal that the backyard constituted “open fields,” that is, the land outside the curtilage of the home and was therefore excepted from the warrant requirement of the Fourth Amendment since it is entitled to no more protection than public land. Oliver v. U.S., 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). Nor has it been argued that the backyard was within the curtilage and therefore protected.

The “open fields” doctrine was first enunciated by the Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and permits police officers to enter and search a field without a warrant. State actors, therefore, do not need probable cause or a warrant to enter and search an open field. United States v. Pinter, 984 F.2d 376, 379 (10th Cir.), cert. denied, 510 U.S. 900, 114 S.Ct. 273, 126 L.Ed.2d 224 (1993) The Fourth Amendment permits the police to search all over one’s land, so long as the officers do not cross the boundaries of one’s home. United States v. Seidel, 794 F.Supp. 1098, 1105 (S.D.Fla.1992). Probable cause is not an element of the open fields doctrine. Although state actors do need probable cause, they do not need a warrant to seize property from or make an arrest in open fields. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). It is “well-settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant ... assuming that there is probable cause to associate the property with criminal 114activity.” Id. Police are “permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.” U.S. v. Gori, 230 F.3d 44 (2nd Cir.10/18/00).

The curtilage of a home is that “area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” It is considered part of the home itself and is therefore afforded Fourth Amendment protection. Id. To determine whether an area is part of the curtilage, or extension of the residence’s living area, courts look at four factors which indicate how intimately the area is tied to the home itself: (1) the area’s proximity to the home; (2) whether the area is included within an enclosure surrounding the home; (3) whether the area is being used for the intimate activities of the home; and (4) the steps taken by the resident to protect the area from observation by passers-by. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); State v. Raborn, 33,-980 (La.App. 2 Cir. 11/15/00), 771 So.2d 877, writ denied, 00-3414 (La.11/2/01), 800 So.2d 868; United States v. Gorman, 104 F.3d 272 (9th Cir.1996).

The record does not show a plat of the property or a layout of the defendant’s yard. The photographs in evidence show very little that is probative in this regard; however, they do depict that there is a partial privacy fence near the shed and running along the back or side of the property. There is no information regarding the size of the defendant’s property, where his residence is located and where the shed is in relation to 11Khis residence, although the photograph shows that the front of the shed was approximately 10 feet from the side of another structure with metal siding. This was possibly the mobile home or trailer, or perhaps another shed. The photo also shows that there were other items, such as an aluminum boat and some 55 gallon drums near the shed. Det. Pittman said the shed was also obscured from view by vegetation which is not revealed in the photograph. Defendant used the shed for storage of some items and stated that he was also storing some restaurant cookers for a friend. The shed had no porch, but there were concrete stepping stones creating a pathway to the shed door. The defendant also indicated that the neighboring house was closer to the shed than it was to his trailer, indicating that the neighbor’s house was on the side opposite the entry door to the shed. According to the defendant, the shed was approximately 20 feet from the property line and perhaps 50 feet from the neighboring two-story house.

Although the evidence in this record to make a determination on this issue is weak, applying an objective standard, we conclude that the defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation, according to Det. Pittman. It was after midnight when the agents were sneaking furtively around the defendant’s yard, thereby creating the possibility of a violent confrontation. We also note that the state prosecutor was clearly concerned by the entry into the yard because she tried to establish that the MNU agents confirmed predictive elements l1fifrom the anonymous tip before entering the defendant’s property. This was clearly not established, however, and Det. Pittman testified that the yard was clearly distinguishable from the field and other testimony and evidence indicates that there were some steps taken by the defendant toward privacy. Accordingly, we must conclude that the trial court was not clearly wrong in its finding that the defendant was adversely affected by this entry. We further conclude that the state did not carry its burden in showing that the war-rantless entry into the yard was justified by the agent’s corroboration of some of the descriptive information from the anonymous tip.

Probable Cause Based On the Smell of Ether

Even if we were to assume that the warrantless entry into the defendant’s yard was justified, the next issue is whether the agents obtained probable cause to search or arrest the defendant without a warrant. As stated above, the anonymous tip provided some predictive information regarding the defendant’s criminal activities, namely, that the defendant was operating an active meth lab and the meth “cooks” generally began after midnight. The agents arrived at the scene about 12:30 AM. Once in the defendant’s yard, they observed, with night vision equipment, a male walking from the trailer to the shed. Det. Pittman testified that he saw the person make three trips back and forth, ending in the trailer, while the defendant testified he only made one trip from his trailer to the shed. At this point in the investigation, there was at least partial confirmation that there was some activity taking place after midnight, albeit nothing criminal at this point. Detectives positioned themselves to the west of the shed, and Det. |17Pittman said that they smelled a strong odor of ether, but they could not pinpoint the source of the odor. It appeared to be coming from the general direction of the trailer and shed because the wind was from the east. Based upon his experience in drug enforcement, Det. Pittman knew that ether is used in the production of methamphetamine, and his past experience was that this confirmed the existence of an active meth lab. The agents then moved closer to the shed and Det. Pittman said that the smell of ether was stronger and he heard activity in the shed that sounded like what could have been someone sharpening mower blades and he did not associate it with meth lab activity. Nevertheless, he associated the activity in the shed with an operating meth lab because of the odor from the shed and the fact that there was some activity in the shed, although its exact nature was unknown.

Because this information tended to corroborate the predictive information from the anonymous tip, that is, activity after midnight and the odor associated with methamphetamine production, we conclude that the MNU agents had probable cause that would justify obtaining a search warrant to enter the shed. Det. Pittman, however, elected not to obtain a search warrant. Rather, he decided that he would flush out the defendant from the shed and shut down the meth lab. The state contends that his decision was justified based on exigent circumstances.

Exigency, Seizure of Defendant, and “Plain View”

A warrantless search is per se unreasonable unless the police are able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. United States v. Richardson, 208 |F.3d 626 (7th Cir.2000). A police officer’s subjective belief that exigent circumstances exist is insufficient to justify a warrantless search; instead, the test is an objective one. See U.S. v. Richardson, 208 F.3d at 629 (7th Cir.4/3/00); U.S. v. Elder, 352 F.Supp.2d 880 (C.D.Ill.1/19/05). As previously stated, exigent circumstances may arise from the need to prevent the offender’s escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, supra; State v. Hathaway, 411 So.2d 1074 (La.1982).

The district court found that exigent circumstances did not exist to justify the actions of the police. The court believed that exigency based on the concern of police for safety was “watered down,” inasmuch as the agents waited two days before investigating the tip. The state argues that the deputies entered the defendant’s shed to look for the defendant for the purpose of ensuring the safety of Mr. Hemphill, the agents near the shed and the neighbors in the house next door.

According to Det. Pittman, he decided to shut the operation down after he smelled ether and the activity he heard in the shed. He first attempted to lure the defendant out of the shed by sending for the units that were held back, telling them to come down the driveway with all lights. After positioning himself and the other agents by the shed door, Det. Pittman either opened the door himself, or when defendant opened the door, he reached into the shed and pulled the defendant out. On the one hand, he testified that he did not really take time to look into the shed from the 119doorway because he was handling the arrest of the defendant. On the other hand, he testified later that he was able to see and smell ether emanating from the meth lab located in the unlighted shed 30 feet from the door in the back corner. Subsequently officers found two unopened containers of ether and a meth lab set up in the shed. Defendant contends that the officers were smelling anhydrous ammonia, which is used in the meth cooking process, and which the defendant admits he was mixing.

We agree with the district court that the agent’s actions were unjustified on any of the grounds constituting exigency. First, there was no likelihood of escape. Det. Pittman and four other agents were present at or near the shed. Additional officers were waiting “there for Mr. Hemp-hill,” presumably to take Mr. Hemphill into custody or to assist in case Mr. Hemp-hill attempted to escape. Second, once the agents smelled ether and heard activity going on inside, they could have obtained a search warrant provided their intrusion into the yard was justified. If the officers were concerned with safety, they could have moved to a safe distance from the shed and evacuated the neighbors, if they were indeed threatened. Third, the officer’s concern for Mr. Hemphill’s safety is indeed watered down by the two-day delay investigating the tip.

Hence, we conclude that the district court’s determination that exigent circumstances were not present to justify the warrantless arrest of Mr. Hemphill was not plainly wrong.

We also reject the search of the shed based on “plain view” or possibly “plain smell.” A warrantless seizure of an item that comes within |PnpIain view of an officer in a legitimate position to view the item may be reasonable under the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Guiden, 399 So.2d 194 (La.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). The plain view doctrine renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Guiden, supra; State v. Willis, 36,759 (La.App. 2 Cir.4/9/03), 843 So.2d 592, writ denied, State ex rel. Willis v. State, 04-1219 (La.4/1/05), 897 So.2d 593.

In order for the “plain view” doctrine to be applicable to the recovery of evidence in this case, it is necessary for the recovering officers to have a right to be in the position from which the view is obtained. In the instant case, Det. Pittman was at or in the doorway of the shed in the defendant’s yard. We previously determined that the defendant had a heightened expectation of privacy in his yard, particularly at 12:30 AM, and the agents entered the yard prior to confirming the predictive elements contained in the anonymous tip. Accordingly, the plain view exception to the warrant requirement is inapplicable in this case, as the deputies clearly were not lawfully in the place from which the contraband was viewed.

We also find that the “plain view” testimony was tenuous at best. Det. Pittman admitted that he reached in the shed and pulled the defendant |g1out, handcuffed him, and put him on the ground. He initially said that he did not “take a ten-second break” to look around, but instead pulled the defendant away from the shed. The gist of this testimony was that he was not looking into the shed. Yet, he subsequently testified that he observed the meth lab in the back corner of the unlighted shed as he was taking the defendant into custody from the doorway. Accordingly, we believe the trial court correctly did not consider this testimony to be persuasive.

Even if we assume that their surveillance in the defendant’s yard was lawful, we cannot say that the same is true for the entry into the shed. The district court obviously believed that the defendant also had a heightened expectation of privacy-regarding entry into the shed. Based on the record, we cannot say that the district court was clearly wrong.

The Defendant’s Inculpatory Statement

The district court found that the state did not carry its burden of showing that Miranda warnings were adequate such that the consent to search and the inculpatory statements he made were freely and voluntarily given, citing State v. Vigne, supra. Apparently the court believed that the defendant was coerced or pressured. Defendant testified that he was placed on the ground face down for almost an hour and told that he would be there all night unless he consented to a search. The defendant could not recall being given any Miranda warnings, although Det. Pittman said he gave them. Ultimately, the district court was not convinced that defendant’s waiver of his right against making inculpatory statements was freely and intelligently given.

LaThe state contends that the defendant freely consented to allow the state to search his property. Det. Pittman admitted that he put the defendant on the ground, but claimed it was only for a short time. He denies that any threats were made against the defendant, and stated that the defendant was very cooperative. He testified that he orally advised defendant of his Miranda rights, and the defendant orally gave his consent to search his property. Defendant was not asked to sign any forms to that effect.

A trial judge’s ruling on whether or not a consent to search or statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Vigne, supra; State v. Thornton, 351 So.2d 480, 484 (La.1977). Before a confession may be introduced into evidence, the state must establish that the accused was advised of his constitutional rights under Article 1, Section 13 of the Louisiana Constitution and the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Simmons, 443 So.2d 512 (La.1983). In Miranda, the United States Supreme Court recognized the coercive atmosphere created by police custody and established a procedural mechanism to safeguard the exercise of a defendant’s Fifth Amendment rights. Before interrogating a suspect in custody, law enforcement officials must inform the suspect that he has the right to remain silent, that his statements may be used against him at trial, that he has a right to an attorney, and that if he cannot afford an attorney, one will be appointed for him.

|23Even when a defendant has not expressly invoked his rights under Miranda, “[t]he courts must presume that a defendant did not waive his rights.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); State v. Vigne, supra. A waiver is not established by showing that a defendant was given the complete Miranda warnings and thereafter gave an incriminating statement. Id. (Citation omitted). Moreover, it is well-settled that a “heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id.; Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980).

After a review of the record, we find that the evidence (Det. Pittman’s testimony) that the state offered to demonstrate that Det. Pittman adequately advised the defendant of his rights required by Miranda was equivocal at best. More importantly, the state’s evidence that defendant made a knowing and voluntary waiver of those rights is weak and uncorroborated. Although the defendant admitted on cross-examination that he knew he did not have to consent to the search his trailer, which he gave after the agents had already searched the shed, we are not persuaded that the consent was not given without duress or coercion. In fact, the only evidence to that effect was the detective’s testimony that, after the defendant was handcuffed and led away, he was very cooperative. The state failed to introduce any documentary evidence or corroborating testimony from the four other agents present at the scene confirming that defendant was advised of his rights and | s>4made a knowing and voluntary waiver of his rights before consenting to the search or making his statement. Under these circumstances, we find that the trial court did not abuse its discretion when it determined that the state failed to show that the consent to search was freely and intelligently given and the inculpatory statement complied with the dictates of Miranda. Because of its superior position to observe the witnesses and assess their credibility, the district court’s ruling on a motion to suppress is entitled to great weight. State v. Horton, 01-2529 (La.6/21/02), 820 So.2d 556; State v. Jones, supra.

Conclusion

The record in this case does not support overturning the district court’s decision that the state did not carry its burden of showing that the warrantless search and seizure were justified by probable cause and exigency. Nor does the record support overturning the district court’s conclusions regarding whether the defendant was adequately advised of his Miranda rights, and whether his inculpatory statements and consent to search his residence and shed were freely and voluntarily given. Accordingly, it correctly applied the exclusionary rule in this case. For these reasons, we affirm the district court ruling on the defendant’s motion to suppress the evidence seized and the defendant’s incul-patory statements.

We remand this case back to the trial court for further proceedings.

RULING ON MOTION TO SUPPRESS AFFIRMED.

GASKINS, J., concurring in part and dissenting in part.

GASKINS, J.,

concurring in part, and dissenting in part.

1-J agree with the majority that the officers did not have probable cause to enter the property, and that the state failed to carry its burden that the property entered was an “open field.” I do not agree with the majority’s discussion about exigent circumstances, under the supposition that the entry was lawful, since the cooking of methamphetamine is a dangerous activity.

I respectfully concur in part, and dissent in part.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, DREW, MOORE and SEXTON, JJ.

Rehearing not considered, not timely.

      . HAZMAT is a commonly used acronym for hazardous materials.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    DOUBLE-EIGHT OIL AND GAS L.L.C. and Oak Hill Management L.L.C., Plaintiffs-Appellants, v. CARUTHURS PRODUCING CO., INC., Defendant-Appellee.
    No. 41,451-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2006.

      Seabaugh, Benson, Keene & Denny by J. Ransdell Keene, J. Todd Benson, Shreveport, Jones, Odom, Davis & Politz, L.L.P. by J. Marshall Jones, Jr., Shreveport, for Appellants, Oak Hill Management, L.L.C. and Double-Eight Oil and Gas, L.L.C.
    Downer, Hammond & Wilhite, L.L.C. by Philip E. Downer, III, William R. Huguet, Shreveport, for Appellees Caruthers Producing Co., Inc. and C. Dewitt Caruthers.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   GASKINS, J.

11 This case, involving expenses for operating gas wells, arises from what the trial court characterized as a “brother-in-law deal.” The plaintiffs appeal from an adverse trial court judgment denying their claims against the defendants and awarding damages in favor of one of the defendants, Caruthers Producing Co., Inc. (“CPC”). The defendants answered the appeal, seeking attorney fees. We affirm the trial court judgment.

FACTS

On February 15, 2002, Double-Eight Oil and Gas, L.L.C., and Oak Hill Management, L.L.C., filed suit against CPC. The plaintiffs stated that they were the owners of 70 percent of the working interest of two gas wells in Bossier Parish (“Flat River Farms No. 1” and “Mendenhall No. 1”). According to the petition, the defendant took over as operator of the wells in September 2001 without benefit of an executed operating agreement; thereafter, the defendant allegedly took action which caused these two producing wells to become nonproducing. The plaintiffs sought damages for this conduct, as well as a declaratory judgment that they did not owe the defendant for invoices submitted by the defendant on the two wells.

In March 2002, CPC filed an answer and a reconventional demand in which it asserted that the plaintiffs owed it for services and materials on the wells mentioned in the petition and they had refused to pay after demand was made. Specifically, it contended that Oak Hill currently owed $22,478 and Double-Eight owed $134,867.89, and that additional amounts would be incurred over time. CPC also alleged that Double-Eight owed $6,753.99 for services and materials on another well (“Antrim Well”) and refused to pay lathe defendant; additional expenses would also increase over time for this well. CPC requested attorney fees.

In May 2002, the plaintiffs filed a supplemental and amending petition that added C. Dewitt (“Witt”) Caruthers as a defendant. They also complained that when CPC named itself as “operator of record,” it did not request that the owners of the wells execute a “Model Form Operating Agreement” designating CPC as the operator. Furthermore, the plaintiffs claimed that the defendants spent significant sums of money unnecessarily in testing and reworking the wells to obtain data that would benefit the defendants in drilling wells in another area. These actions supposedly resulted in the destruction of the wells at issue here. The plaintiffs requested damages under theories of negligence, conversion, quantum meruit and/or unjust enrichment. They also asserted entitlement to damages and attorney fees under the Louisiana Unfair Trade Practices Act, and requested an accounting of equipment and production proceeds.

A bench trial was held over 17 days in August 2004, January 2005, March 2005, and May 2005. On November 14, 2005, the trial court issued a written opinion in which it dismissed the plaintiffs’ claims against the defendants. It noted at the outset that the catalyst giving rise to the lawsuit was literally a “brother-in-law deal” between Scott Pernici, one of the owners of Double-Eight, and Witt Caruth-ers, one of the defendants, Pernici being married to Caruthers’ sister. The initial contract between the parties involved a section referred to as the McDade Prospect, which is located in south Bossier Parish. The agreement did not require the well operator to use 13AFE’s, which are written authorizations for expenditures whereby the participants agree in advance as to the work to be performed. The participants with a before payout interest were required to bear their ratable share of costs incurred. Since the participants all readily agreed and participated at the outset, the trial court found that they were all bound by the original agreement which did not require an operating agreement or the use of AFE’s. Originally there were seven participants; the well operator was Summit Oil and Gas, a company owned by two of the participants, Vernon Monk and Larry Conly. Monk’s and Conly’s interests were later acquired by CPC. The trial court found that the plaintiffs, more probably than not, knew or should have known of this acquisition and CPC’s assumption of the role of operator. The court also held that it was more probable than not that the plaintiffs knew or should have known, as “hands-on investors,” of the squeeze operations and their extent. Furthermore, the court ruled that CPC acted properly with regard to its fiduciary duty to the plaintiffs.

The trial court found that none of the information obtained by the Bossier Parish squeeze operations could have benefitted the well operations in south Caddo Parish. At any rate, despite the plaintiffs’ complaints that they were to be included in the drilling in south Caddo Parish performed by CPC and other investors, the court held that there was no contractual evidence that they were ever included in that deal.

14As to the allegations of violations of Louisiana’s Unfair Trade Practices Act, the court found no violations because the parties were not competitors, as well as no deceptive acts by the defendants damaging the plaintiffs. However, finding no bad faith by the plaintiffs, the court denied the defendants’ request for attorney fees under La. R.S. 51:1409.

On the defendants’ reconventional demand, the trial court awarded damages in the following amounts: from the McDade Prospect, Double-Eight owed $134,260.08 and Oak Hill owed $21,898.53; from An-trim Trust # 1, Double-Eight owed $4,965.41. Interest from the date of judicial demand was decreed. The court denied CPC’s request for attorney fees under La. R.S. 9:2781.

Judgment was signed January 30, 2006. Costs were assessed against the plaintiffs.

BREACH OF FIDUCIARY DUTY

The plaintiffs contend that the trial court erred in finding that the defendants did not fail in their fiduciary obligations to them.

Law

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In fact, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra. The issue to be resolved by the reviewing court is not whether the trier of |Rfact was right or wrong, but whether the factfinder’s conclusion was a reasonable one in light of the evidence in the record. Stobart, supra.

A fiduciary relationship is defined in terms of a trust, a confidence and the advantage that one party may have over another. The duty imposed on a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests. This definition is made in the context of a business or financial relationship. Riddle v. Simmons, 40,000 (La.App.2d Cir.2/16/06), 922 So.2d 1267, writ denied, 2006-0793 (La.6/2/06), 929 So.2d 1259.

Background

In the summer of 2000, Witt Caruthers and Jeff Thompson, a geologist, presented information to Scott Pernici about a deal to drill gas wells in an area of south Bossier Parish referred to as the McDade Prospect. Believing that the project looked profitable, Scott Pernici put together a group of participants which originally included Double-Eight (owned equally by Scott and his father, Frank Pernici); Richard Pernici, Scott’s brother; Mark Roberts; and Larry Conly and Vernon Monk, the owners of Summit Oil and Gas. Richard Pernici’s interest was eventually acquired by Oak Hill, a company owned by Frank Pernici and his wife. Both Thompson and Witt Caruthers, through their respective companies, received APO rights, or rights to a percentage of revenues after payment of all drilling costs of the wells. Since Double-Eight was the majority owner in the project, Scott Pernici chose Summit as operator of the well. The parties did | ¿not enter into an operating agreement; however, they did enter into a participation agreement in October 2000 which outlined ownership percentages and cost obligations. Also, Summit did not utilize authorization for expenditure (AFE’s) forms; an AFE is a document used in the oil and gas business to get written approval from the working interest owners before work is performed. Instead the parties informally discussed matters and obtained verbal permission. Between February and June of 2001, Summit drilled four wells in the McDade Prospect, only two of which were productive, Flat River Farms No. 1 and Mendenhall No. 1.

In July 2001, Witt Caruthers and Art Walker became owners of CPC by buying out the interest of other members of the Caruthers family, including that of Scott Pernici’s wife, Sheila. In September 2001, CPC bought the interest of Monk and Conly in the McDade Prospect. It became the operator of record of the McDade wells, a position formerly held by Summit, Monk and Conly’s company. (Later, CPC acquired Roberts’ interest in the project.)

In October 2001, squeezes were performed on the two productive McDade wells, Flat River Farms No. 1 and Men-denhall No. 1, because of problems with the wells producing salt water and/or not being able to maintain production. Expert testimony produced at trial established that the wells had no commercially productive reserves. The Mendenhall well was pressure depleted while the Flat River Farms well apparently did not make |7enough gas to pressure deplete. The squeezes were intended to use cement to seal off the flow from the saltwater sand. However, the squeezes were unsuccessful, and it was not possible to rectify the problems with the wells. Ultimately both wells were plugged and abandoned.

In the meantime, CPC had undertaken the drilling of some wells in Caddo Parish which were three to five miles from the McDade Prospect wells and from a different producing reservoir. The plaintiffs complained of their exclusion from this deal and asserted that the squeezes on the McDade wells constituted some sort of experimentation that was designed to somehow benefit the Caddo wells. However, Witt Caruthers testified that Scott Per-nici declined participation in the Caddo wells when the opportunity was offered to him; as a result, Witt Caruthers looked elsewhere for investors. The plaintiffs criticized Witt Caruthers for using information from the McDade wells to encourage interest in the Caddo project. The defendants responded that this was the type of information generally known and shared in the oil and gas industry.

The defendants presented expert testimony that the squeezes performed on the two McDade wells were reasonable, necessary and prudent. Furthermore, the experts testified that they were performed in conformity with industry standards. The plaintiffs presented no expert testimony to refute this evidence. Additionally, all of the expert testimony presented at trial established that the squeezes on the McDade wells could not have produced any information that would have been relevant or useful to the Caddo wells.

| «Based upon the evidence in this record, we find no manifest error by the trial court. To the contrary, the trial court did an excellent job of defining the issues and resolving them. The evidence demonstrated that the defendants acted reasonably and prudently.

Unfair Trade Practices

The plaintiffs also asserted an action under the Louisiana Unfair Trade Practices and Consumer Protection Act. La. R.S. 51:1405(A) declares “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... unlawful.” To be unfair, the conduct must offend established public policy. Fraud, deceit and misrepresentation constitute deceptive practices. United Group of National Paper Distributors, Inc. v. Vinson, 27,739 (La.App.2d Cir.1/25/96), 666 So.2d 1338, writ denied, 96-0714 (La.9/27/96), 679 So.2d 1358. La. R.S. 51:1409 confers a right of private action on “[a]ny person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal” from unlawful trade practices. This language has been held to confer the private right of action on both consumers and business competitors. Monroe Medical Clinic, Inc. v. Hospital Corporation of America, 522 So.2d 1362 (La.App. 2d Cir.1988). Like the trial court, we find that the plaintiffs were not business competitors of the defendants within the meaning of the Unfair Trade Practices Act during the relevant time period. See Davis v. Manpower International, Inc., 623 So.2d 946 (La.App. 4th Cir.1993), writ denied, 629 So.2d 1173 (La.1993); W.A. Offshore Equipment Co., Inc. v. Parmatic Filter Corporation, 767 F.Supp. 125 (E.D.La.1991). Furthermore, we agree with the trial court’s conclusion that there were no unfair or deceptive acts by the defendants causing damage to the plaintiffs.

We affirm the trial court’s ruling that the plaintiffs failed to prove that they were entitled to damages from the defendants.

REIMBURSEMENT

The plaintiffs also argue that the trial court erred in finding that they were liable to CPC for expenses arising from the squeezes and related operations which were incurred while CPC was the operator of the wells.

La. R.S. 31:177 states:

A co-owner of the lessee’s interest in a mineral lease may not independently conduct operations or, except as provided in this article and Article 171, deal with the interest without the consent of his co-owner. He may act to prevent waste, destruction, or termination of the lease and to protect the interest of all, but cannot impose upon his co-owner liability for any costs or expenses except out of production. In so acting he must act in good faith and must deal with the interest of the remaining owner or owners in the manner of a reasonably prudent lessee whose interest is not subject to co-ownership.

Under the Louisiana Mineral Code and the Louisiana Civil Code, there is no requirement that co-owners of a mineral lease have a written operating agreement. The written agreement that was entered into by the McDade participants required those with a BPO interest to pay their “ratable share of actual costs incurred.” The agreement did not require written consent prior to the incurrence of costs for decisions made by the chosen operator. Nor did the parties utilize AFE’s when Summit was the well operator. Instead they conducted business verbally. These practices continued after CPC became the operator.

|inIn order to impose preproduction liability on a co-owner, the operator must have the consent of the lease co-owners to the operations. There was evidence, deemed credible by the trier of fact, that the plaintiffs were aware of and consented to CPC’s activities. Scott and Frank Per-nici admitted knowing and agreeing to certain actions, such as hiring a pumper, trying to drill out a bridge plug, and placing one of the wells on a pump jack. Art Walker, a co-owner of CPC, testified unequivocally that he obtained the Pernicis’ approval for all actions and discussed the costs when asked. According to Walker, when Scott recommended an operation which Walker felt was a long shot, like putting a well on a pump, they complied with Scott’s wishes. Witt Caruthers also confirmed that CPC’s actions were approved by the Pernicis. The telephone records and e-mails admitted into evidence demonstrate that Scott Pernici had substantial communication with Witt Caruth-ers and Walker at all of the relevant times. Historically, Scott was deeply involved on this lease, and the evidence shows that this participation continued even after CPC undertook the disputed operations. It also indicated that Scott spoke for his father.

La. R.S. 31:177 also mandates that the mineral lease co-owner must act in good faith and in a reasonably prudent manner. The experts in oilfield practices presented by the defendants supported the actions taken by the defendants to try to salvage well production. They concluded that the defendants acted reasonably and prudently, and that their actions conformed to accepted industry standards. No experts in oilfield practices testified on behalf of the plaintiffs.

^J^The trial judge is charged with making credibility calls. Here, two permissible views of the evidence existed, and the trial judge’s choice between them cannot be found to be manifestly erroneous or clearly wrong on appeal. The trial court did not err in granting judgment in favor of the defendants, ordering the plaintiffs to pay their ratable share of the costs incurred for the operation of the McDade wells. Nor did it err in awarding payment for the Antrim well expenses which were owed by Double-Eight to CPC and were proven at trial.

ATTORNEY FEES

The defendants answered the appeal, asserting that the trial court erred in not awarding them attorney fees under either the Louisiana Open Account Statute, La. R.S. 9:2781, or the Louisiana Unfair Trade Practices and Consumer Protection Act, La. R.S. 51:1401, et seq.

Unfair Trade Practices

Under La. R.S. 51:1409, the court may award reasonable attorney fees and costs to the defendant in a case brought under the Louisiana Unfair Trade Practices and Consumer Protection Act “[u]pon a finding by the court that an action under this section was groundless and brought in bad faith or for purposes of harassment.” This provision is penal in nature and is subject to reasonably strict construction. The court has discretion in determining whether to award attorney fees under the statute. Bobby and Ray Williams Partnership, L.L.P. v. The Shreveport Louisiana Hayride Co., L.L.C., 38,224 (La.App.2d Cir.4/21/04), 873 So.2d 739, writ denied, 2004-1215 (La.10/8/04), 883 So.2d 1022.

LgThe trial court denied the defendants’ request for attorney fees under La. R.S. 51:1409, finding that the plaintiffs did not act in bad faith. Based upon the record before us, we find no abuse of the trial court’s discretion.

Open Account

As set forth above, CPC paid for services provided to the wells at issue and the Antrim well. In billing the plaintiffs for their ratable share of these costs, CPC allege that they made a request for payment under the Louisiana Open Account Statute. While CPC was entitled to reimbursement for the plaintiffs’ share of the costs, this reimbursement does not fall under that statute.

La. R.S. 9:2781(D) provides that an “ ‘open account’ includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. ‘Open account’ shall include debts incurred for professional services, including but not limited to legal and medical services.... ”

The mere creation of a debt owed to a party does not give him an action on an open account. Inherent in the concept of an open account is that the account is for services or goods rendered. House of Raeford Farms of Louisiana, L.L.C. v. Osei-Tutu, 41,586 (La.App.2d Cir.11/1/06), 2006 WL 3079040. As between these parties, the claim for payment by the defendants is not for purchases or services rendered by the defendants to the plaintiffs, as the open account statute contemplates. The trial court properly denied the defendants’ request for attorney fees under La. R.S. 9:2781.

Jj^CON CLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellants, Double-Eight Oil and Gas, L.L.C., and Oak Hill Management, L.L.C.

AFFIRMED.

      . A squeeze operation is a procedure by which one tries to prevent salt water from invading a producing well by injecting cement into the well and the well is then perforated again in the hope of producing without salt water.

      . Witt Caruthers and his wife owned Black Creek Ventures, LLC, while Thompson and his wife owned Riverside Exploration Company.

      . Double Eight had a 60% before payout (BPO) interest and a 42% after payout (APO) interest; Roberts, 10% BPO and 7% APO; Summit, 20% BPO and 14% APO; Richard Pernici, 10% BPO and 7% APO; Riverside Exploration, 0% BPO and 15% APO; and Black Creek, 0% BPO and 15% APO.


author: SMITH, Chief Justice,

text:
    Dorothy ROSE, Administratrix of the Estate of Kimberly Rose, Deceased v. Dr. N.A. BOLOGNA and Dr. John A. Marascalco.
    No. 2005-IA-01494-SCT.
    Supreme Court of Mississippi.
    Oct. 12, 2006.
    Ellis Turnage, Cleveland, attorney for appellant.
    Denise Wesley, Whitman B. Johnson, III, Jackson, Clinton M. Guenther, Tommie G. Williams, Greenwood, attorneys for appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. In November of 2004, Dorothy Rose, administratrix of the estate of Kimberly Rose, filed suit in the Circuit Court of the Second Judicial District of Bolivar County alleging that the negligence of several healthcare providers, including Doctors N.A. Bologna and John A. Marascalco, resulted in Kimberly Rose’s wrongful death. Drs. Bologna and Marascalco filed separate motions to sever the claims and transfer venue to the respective counties where they allegedly provided negligent care in accordance with Miss.Code Ann. Section 11-11-3(3) (Rev.2004). The circuit court determined venue was not proper in Bolivar County as to Drs. Bologna and Maras-calco. Therefore, the circuit court granted the motions to sever the claims and transferred the severed claims against Drs. Bologna and Marascalco to the counties of proper venues. Aggrieved by the circuit court’s ruling, Rose then filed her petition for an interlocutory appeal, which this Court granted. See M.R.A.P. 5.

FACTS

¶ 2. On March 14, 2002, Kimberly Rose arrived at the Total Health Care Clinic in Bolivar County with symptoms of illness including swelling of her hands and eyes, lower extremity edema, and white patches on her skin. In addition to two followup visits, Kimberly eventually returned to the clinic with complaints of headaches and diarrhea. In the meantime, Dr. Bologna treated Kimberly at his office in Washington County for her dermatological symptoms. Also, after a referral by the Total Health Care Clinic, Kimberly received treatment from Dr. Marascalco at his office in Grenada County.

¶ 3. Kimberly was subsequently examined by a different doctor who eventually diagnosed her illness as scleroderma. Shortly thereafter Kimberly was admitted to the Northwest Mississippi Regional Medical Center due to her illness. Tragically, three days after being admitted to the hospital Kimberly went into cardiac arrest and efforts to resuscitate her were unsuccessful. An autopsy was performed, and the cause of death was determined to be purulent pericarditis secondary to scler-oderma with a contributory cause of bron-chopneumonia.

¶ 4. Dorothy Rose, administratrix of the estate of Kimberly Rose, then filed suit in Bolivar County alleging Total Health Care Clinic, the nurse who treated Kimberly at the Total Health Care Clinic, Dr. Bologna and Dr. Marascalco were negligent in failing to diagnose scleroderma in a timely manner. Pursuant to Miss.Code Ann. Section 11-11-3(3), both Dr. Bologna and Dr. Marascalco filed separate motions to sever the claim and transfer venue to the county where the alleged negligent services were rendered. The circuit court considered the motions and eventually granted both, thus severing the claim and transferring venue as to Drs. Marascalco and Bologna. Rose’s petition for interlocutory appeal was granted and is now presently before this Court.

ANALYSIS

¶ 5. In cases pertaining to a motion for a change of venue, this Court has repeatedly applied the abuse of discretion standard of review. Austin v. Wells, 919 So.2d 961, 963-64 (Miss.2006) (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss.2004); see also Christian v. McDonald, 907 So.2d 286, 287-88 (Miss.2005); Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 12 (Miss.2002); McCain Bldrs., Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001); Donald v. Amoco Prod. Co., 735 So.2d 161, 180 (Miss.1999)). “A trial judge’s ruling on such an application ‘will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not has not been justly and properly exercised under the circumstances of the case.’ ” Hayes, 868 So.2d at 1002 (quoting Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss.2003)).

¶ 6. Today, this Court is presented with a question of proper venue, where the alleged negligent care of multiple doctors, performed in different counties, combined to ultimately cause the death of Kimberly Rose. The doctors allege that the issue of transfer of venue hinges on this Court’s interpretation of the recently amended venue statute, Miss.Code Ann. Section 11-11-3(3) (Rev.2004), which governs the appropriate venue of a medical malpractice action. Section 11-11-3(3) provides in pertinent part:

Notwithstanding subsection (1) of this section, any action against a licensed physician .... for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

This Court has previously stated “[sjtatu-tory interpretation is a matter of law which this Court review de novo.” Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999)).

¶ 7. Rose argues the circuit court erred in granting the doctors’ motion to sever the case and transfer venue as to each doctor to separate counties. Rose claims that M.R.C.P. 20(a) and 82(c) are silent and/or conflict with Miss.Code Ann. Section 11-11-3. Therefore, the rules control as a matter of law.

¶ 8. We conclude that both Rose and the doctors are incorrect. The case at bar is clearly a wrongful death case as noted by Rose in her First Amended Complaint, filed November 22, 2004 wherein in paragraph 1 Rose states: “This civil action seeks monetary damages for defendants’ negligence which caused the November 1, 2002, wrongful death of Kimberly Rose (Rose).” Thus, the arguments and cited statutes and rules upon which both Rose and the doctors rely do not address the dispositive question governing the case sub judice. In our view the case at bar is governed by this Court’s decision in Long v. McKinney, 897 So.2d 160 (Miss.2004), where the Court noted that “Thus, all claims in wrongful death litigation must, by definition, arise out of a distinct, litiga-ble event.” Id. at 173. This is not a Rule 20 permissive joinder case nor a Rule 82(c) case, but instead is a Rule 19 compulsory joinder case and clearly governed by Mississippi Code Ann. Section 11-7-13, which states that “there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned.” The comment to Rule 19 states: “Compulsory joinder is an exception to the general practice of giving the plaintiff the right to decide who shall be parties to a law suit; although a court must take cognizance of this traditional prerogative in exercising its discretion under Rule 19, plaintiffs choice will have to be compromised when significant countervailing considerations make the joinder of particular absentees desirable.” Miss. R. Civ. P. 19 cmt. In Long, the Court concluded, “We can think of no lawsuit brought before our judiciary more qualified for compulsory joinder provided under Rule 19, than a suit for wrongful death. We therefore hold that, in wrongful death litigation, all claims shall be joined in one suit.” Id. at 174. In the majority opinion written by Justice Dickinson, the Court in Long further held that “Consolidation of suits presupposes that there are two suits to consolidate. Because we hold that wrongful death claims must be brought in a single suit, there cannot be two suits to consolidate.” Id.

¶ 9. Our wrongful death statute dates to 1857 and has historically resulted in issues among litigants and attorneys concerning control of the litigation, join-der, and consolidation. For a complete history of the statute see Appendix A to Long. Id. at 179. The confusion yet remains in the case at bar. This Court is ever mindful of our duty or authority not to legislate. The Legislature clearly made major reforms in various statutes during recent sessions which included passing Mississippi Code Ann. Section 11-11-3(3). However, it is equally clear that the wrongful death statute, Section 11-7-13, was not considered concerning events and multiple defendant doctors such as what we have before us now, when these changes in various statutes where made. But for the fact that this is a wrongful death claim, the trial court might very well have been correct in transferring venue. Adhering to the precedent of Long and determining that Section 11-7-13 applies, we conclude that there cannot be three separate lawsuits for the wrongful death of Kimberly Rose proceeding to trial in Bolivar, Washington and Grenada counties. The case was filed in Bolivar County, and venue for a wrongful death claim is proper for Bolivar County. We thus find the trial court erred.

CONCLUSION

¶ 10. For the reasons stated above, we find that the trial court erred in severing and transferring the doctors’ cases to Washington and Grenada Counties. Therefore, we reverse the trial court’s order severing the plaintiffs case against Drs. Bologna and Marascalco and transferring the venue as to those two claims, and we remand this case to the Bolivar County Circuit Court for further proceedings consistent with this opinion.

¶ 11. REVERSED AND REMANDED.

WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Other parties named as defendants in the suit included Dr. William McArthur and John Does 1 through 5. However, these parties have no bearing on the Court’s analysis in the case at bar. Therefore, this Court’s mention of the presence of these parties is limited to this footnote.

      . Dr. Bologna examined Kimberly at his office in Washington County, and Dr. Marascal-co examined Kimberly at his office in Grenada County.


author: GRAVES, Justice,

text:
    Judith C. SMITH v. Kathy Ann KING, Charles Smith, Jr., Margaret Smith Britt and Sheila Smith George.
    No. 2005-IA-01651-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.

      W. Brady Kellems, Brookhaven, Joseph Preston Durr, Hazlehurst, attorneys for appellant.
    Olen C. Bryant, Jr., Hazlehurst, attorney for appellees.
    Before SMITH, C.J., GRAVES and DICKINSON, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. This is an interlocutory appeal pursuant to Rule 5 of the Mississippi Rules of Appellate Procedure from an action in Lincoln County Chancery Court in which Kathy Ann King was appointed conservator of her father, Charles H. Smith, Sr. (Charles) without notice to any other family member, most notably Charles’s wife, Judith C. Smith (Smith). Finding that the conservatorship is invalid, we reverse and remand.

FACTS AND PROCEEDINGS BELOW

¶ 2. King filed a petition for appointment of conservator in Lincoln County Chancery Court Cause No. 2001-452 on September 12, 2001, and there was an order appointing King as conservator on September 20, 2001. King asserts that after she was appointed conservator, Charles attempted to convey land to himself and Smith as joint tenants with right of survivorship. Thereafter, King apparently filed various motions including a Complaint to Set Aside Deed and Transfers and a separate motion for partial summary judgment. Those pleadings were filed in Lincoln County Chancery Court Cause No. 2001-592. Smith apparently responded to King’s filings and also filed Defendant’s Counter-Motion for Partial Summary Judgment.

¶ 3. By Opinion and Order on August 4, 2005, the trial court certified for interlocutory appeal an issue regarding the validity of the underlying conservatorship from trial court cause no. 2001-452 and reserved ruling on the motions for summary judgment in trial court cause no. 2001-592 pending this Court’s disposition of the interlocutory appeal. The trial court order was filed in cause no. 2001-592. Smith designated all portions of 2001-452, as well as certain portions of 2001-592. However, only portions of 2001-592 were filed with this Court, meaning this Court did not receive the record pertaining to the con-servatorship and the issue certified for interlocutory appeal (2001-452) with the exception of a few items attached as exhibits to pleadings in 2001-592. Therefore, this matter is being decided on the limited record before this Court.

DISCUSSION

¶ 4. Smith asserts that the conservator-ship is invalid because notice was not given to the spouse (Smith) or at least one other relative as required by Miss.Code Ann. § 93-13-253. King counters that, as Charles’s daughter and the petitioner in the conservatorship matter, she satisfied the requirement of a relative having notice.

¶ 5. Miss.Code Ann. § 93-13-253 provides in relevant part:

Upon the filing of such petition, the clerk of the court shall set a time and place for hearing and shall cause not less than five (5) days’ notice thereof to be given to the person for whom the conservator is to be appointed, except that the court may, for good cause shown, direct that a shorter notice be given. Such notice shall also be given to the husband or the wife, or a descendant or an ascendant, or next of kin of the person for whom the conservator is to be appointed, provided the person to whom notice is given is a resident of Mississippi, except where such person is himself the petitioner, it being the intention of the legislature to require personal service on the person for whom the conservator is to be appointed and one relative.

Miss.Code Ann. § 93-13-253 (Rev.2004) (approved March 20, 1962) (emphasis added).

¶ 6. This Court has found that Miss. Code Ann. § 93-13-253 requires notice to someone other than the petitioner. In Butler v. Brantley, 865 So.2d 1126 (Miss.2004), this Court found that Brantley, the mother of the person for whom the conservator was to be appointed, failed to meet the requirement of sending notice to the next of kin under Miss.Code Ann. § 93-13-253 by failing to give notice to Butler, the father of the person for whom the conservator was to be appointed. However, the Court further found that the error was cured by Butler being present in the courtroom during the proceeding, thus having submitted himself to the jurisdiction of the court.

¶ 7. In the case sub judice, King apparently gave notice to only Charles, who was the person for whom the conservator was to be appointed. There is no evidence of any other relative being noticed. Pursuant to Butler, we find that King’s claim that she, as petitioner, satisfied the requirement of sending notice to next of kin must fail. Furthermore, this finding is consistent with the language “it being the intention of the legislature to require personal service on the person for whom the conservator is to be appointed and one relative” which indicates that at least three people — the petitioner, the person for whom the conservator is to be appointed, and one relative — will have knowledge of the proceeding.

CONCLUSION

¶ 8. Pursuant to Miss.Code Ann. § 93-13-253 and Butler, 865 So.2d 1126, we find that the conservatorship in this matter is invalid because notice was not provided to Charles spouse or one other relative. Therefore, we reverse the chancellor’s order appointing King as conservator, and we remand this case to the chancery court for further proceedings consistent with this opinion.

¶ 9. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., NOT PARTICIPATING.

      . Charles is now deceased.

      . We note that the trial court actually certified interlocutory appeal "on the limited issue of whether or not the procedural requirements of Miss.Code Ann. § 93-13-281 apply to the establishment of conservatorships, or whether same are governed solely by Miss. Code Ann. § 93-13-253.” However, we find that Miss.Code Ann. § 93-13-253 is disposi-five of this issue and that the discussion of any additional claims is unnecessary. Further, while Smith apparently argued the application of section 281 before the trial court, the argument in her brief before this Court only discusses section 281 "by way of analogy-”