author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Christopher D. MARTIN.
    No. 2007-KA-0791.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, Bonnie Kendrick, Legal Intern, Loyola University College of Law, New Orleans, LA, for Plaintiff/Appellee, State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Christopher D. Martin.
    (Court composed of Judge CHARLES R. JONES, Judge, EDWIN A. LOMBARD, Judge, Leon A. Cannizzaro, Jr.).
   LEON A. CANNIZZARO, JR., Judge.

_JjThe defendant, Christopher Martin, was convicted of attempted simple burglary of an inhabited dwelling. He was sentenced to six years imprisonment. He is now appealing both his conviction and his sentence.

STATEMENT OF THE CASE

Mr. Martin was charged with one count of simple burglary of an inhabited dwelling in November of 2005. He pled not guilty at his arraignment in December of that year. A year later he was tried and found guilty of attempted simple burglary of an inhabited dwelling. After the district court judge received the report of a pre-sentence investigation, Mr. Martin was sentenced to serve six years at hard labor in May of 2007. The sentence was to run concurrently with any other sentence imposed on Mr. Martin.

FACTS

New Orleans Police Department (“NOPD”) Officer Heather Gore testified at the trial. Officer Gore stated that she and her partner received a call regarding a possible residential burglary in progress. They responded to the call by going to 2424 Audubon Street in New Orleans. A man at the corner of Audubon Street and Nelson Street pointed to the back yard of the Audubon Street address and stated | ¡.that there was a black male there. Officer Gore and her partner then drew their guns and proceeded into the back yard. They found a black male in the screened area at the back of the house.

Officer Gore testified that when they saw the black male, they told him that they wanted to see his hands. He then laid down a tool that was in his hand and showed his hands to the officers. The officers put their guns away, handcuffed the suspect, and put him in the back of their police car.

When the suspect was asked why he was at the Audubon Street house, he said that he was “back there using the bathroom.” Nevertheless, Officer Gore testified that the suspect did not have his pants down. She further stated that there was “[njoth-ing unbuttoned, no pants unzipped, no nothing.”

Officer Gore also described the area of the house where the suspect had been found. She described it as a “wooden porch with screen all the way around the porch.” She further testified that instead of walking from the house directly into the back yard of the house, one had to walk through a screened area that was “like a box with screen all the way around.” The screen door to the porch was torn open as if the suspect had tried to “undo the latch on the inside.” Inside the porch, a glass pane in a French door that led into the main part of the house was broken.

Officer Gore testified that after the suspect, who was identified as Mr. Martin, was transported to the police station, he gave a statement to a detective. Officer Gore, however, did not take a statement from Mr. Martin.

NOPD Detective Anthony Edenfield also testified at the trial. He said that he went to the crime scene in a “backup capacity” as a “secondary unit.” He described the crime scene. He stated that he noticed “a back window pane on the back door, the door is like a french [sic] door say where it’s a series of class [sic] |spanes, one was broken.” He described the rear of the house as being enclosed by a screened-in porch. Additionally, Officer Edenfield confirmed that there were tools on the porch when he arrived at the house, but he did not know whether the tools belonged to the owner of the house or whether Mr. Martin had brought them with him.

Detective Edenfield further testified that he was present when an interview of Mr. Martin was conducted, but he did not ask Mr. Martin any questions. He identified an audiotape of the interview, and it was played for the jury. On the tape Mr. Martin stated that he entered the porch at the house on Audubon Street for the purpose of using the bathroom. Detective Edenfield further said that although Mr. Martin said that he had not attended school past the ninth grade, Mr. Martin did not act as if he did not comprehend what was transpiring during the interview that was taped. Further, he did not appear to be under the influence of drugs when he was interviewed.

John Wesley Thomas was also a witness at the trial. Mr. Thomas stated that he lived at 2501 Audubon Street and that on July 14, 2005, he went home to eat lunch. When he was leaving his home to return to work after lunch, Mr. Thomas saw a man walking from Mr. Thomas’ left to his right. The man then reversed the direction in which he was walking. He went around a corner and into the back yard of Mr. Thomas’ neighbor. Mr. Thomas testified that he saw the man again when the police brought him out of the neighbor’s yard, and he was able to identify the man accompanied by the police as the same man who had gone into the neighbor’s back yard.

The crime victim, Penny Nunenmacher, was called as a witness. She described her house as a bungalow on the corner of Audubon and Nelson Streets. |4She said that the house had a “porch that basically is part of my bedroom, it opens off my bedroom and kitchen.” She further stated that “[t]he porch has screen and has wall on the bottom, so it ... opens to two rooms in my house.”

When she arrived home from work on the afternoon of July 14, 2005, Ms. Nunen-macher was approached by policemen. She then observed that on the porch of her house, “[t]he screen on the door was cut above where the latch is.” She further testified that there was a broken pane of glass on the porch. She said that “[t]he bottom door that goes into my bedroom has two french [sic] doors with glass at the bottom and one of the panes of glass was broken out.” In addition to the broken glass on the porch, there was also broken glass in her bedroom. She confirmed that she had left tools in a cabinet on her porch. Finally, she testified that she had not given Mr. Martin permission to enter her porch or to break her window.

The final witness at the trial was Latoya Raymo, an investigator employed by the office of the Orleans Parish District Attorney. She stated that she had retrieved from the NOPD “some tapes and a written confession” that were evidence in the instant case but that she was unable to obtain a screwdriver that had been collected as evidence. The screwdriver had been lost during Hurricane Katrina.

ERRORS PATENT

After a review of the record, we find no errors patent.

DISCUSSION

Mr. Martin has raised two assignments of error. He maintains that the evidence was insufficient to convict him and that the sentence he received was excessive.

| ¡Assignment of Error No. 1: The evidence was insufficient to support the verdict.

The Louisiana Supreme Court, in considering the issue of the sufficiency of evidence necessary to support a criminal conviction, has held that appellate courts in Louisiana are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See, e.g., State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18; State v. Mussall, 523 So.2d 1305, 1309 (La.1988).

In the Jackson case, the United States' Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const, amend. XIV, § 1, creates the following standard of review for federal courts reviewing a state conviction:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [T]he relevant question is whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

443 U.S. at 318-19, 99 S.Ct. 2781 at 2788-89 (footnote omitted) (citation omitted) (emphasis in original).

In the Mussall case, the Louisiana Supreme Court stated that “this court ... recognized that ... the Jackson holding also applies to state direct review of criminal convictions.... ” 523 So.2d at 1309. The Supreme Court also recognized | fithat the Louisiana Constitution has a due process clause “virtually identical to its Fourteenth Amendment model. La. Const., Art. I, § 2.” Id.

The Supreme Court in Mussall held that a review of the record in a criminal case does not require the reviewing court to determine whether the reviewing court believes that the evidence at the trial established guilt beyond a reasonable doubt. The Supreme Court said:

[A] reviewing court must consider the record through the eyes of a hypothetical rational trier of fact who interprets all of the evidence as favorably to the prosecution as any rational fact finder can.... [T]he inquiry requires the reviewing court to ask whether such a hypothetical rational trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt.

523 So.2d at 1309-10 (footnotes omitted).

In State v. Williams, 05-0459 (La.App. 4 Cir. 1/18/06), 925 So.2d 567, this Court articulated the standard of review that is applicable to a claim that the evidence produced at a criminal trial was constitutionally insufficient to support a conviction. This Court stated:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.”

05-0459, p. 13, 925 So.2d at 575, quoting State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657. See also State v. Sykes, 04-0947, 04-1199, pp. 6-7 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 161.

[ 7Mr. Martin contends that he was wrongly convicted of attempted simple burglary, because the porch that he entered was not part of an inhabited dwelling. La. R.S. 14:62.2 provides in relevant part:

Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60 [the article describing aggravated burglary].

La. R.S. 14:27 defines an attempted crime in pertinent part as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

In order to convict a defendant of attempted simple burglary of an inhabited dwelling, the State must prove two elements beyond a reasonable doubt: (1) that the defendant had the specific intent or active desire to commit the crime of simple burglary of an inhabited dwelling, and (2) that he did one act in furtherance of his intent or desire to commit the crime of burglary of an inhabited dwelling. Specific intent is a state of mind that need not be proven as fact but may be inferred from circumstances and the actions of the defendant. See, e.g., State v. Smith, 06-0318, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 218, 221.

| sFrom the facts and circumstances in the instant case, the jury could infer that Mr. Martin had the specific intent to commit the crime of simple burglary of an inhabited dwelling. These facts and circumstances are as follows: (1) that Mr. Martin was found standing on the back porch of Ms. Nunenmacher’s house without her permission; (2) that the screen next to the latch on the door which allowed entrance to the porch had been torn; (3) that one of the glass panes near the handle on the French door that led to Ms. Nunen-macher’s bedroom was broken; and (4) that Mr. Martin was holding some sort of a tool in his hand when confronted by the police. These are specific facts from which a rational trier of fact could conclude that Mr. Martin had a specific intent or active desire to enter into Ms. Nunenmacher’s house with the intention of committing a theft or some felony inside and that he did at least one act in furtherance of his intention or desire to burglarize the house.

The only issue remaining is whether the porch was an “inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons.” A screened-in porch can certainly be considered a structure which is used in whole or in part as a home or place of abode. In State v. Segue, 92-2426 (La.App. 4 Cir. 5/17/94), 637 So.2d 1173, this Court upheld a conviction for the unauthorized entry of an inhabited dwelling where the defendant entered the garage but never entered the dwelling area of the home. In Segue this Court stated that “if a structure is used as a home, a person may not enter any part of that structure without authorization.” 92-2426, p. 4, 637 So.2d at 1176 (emphasis in original.) In State v. Harris, 470 So.2d 601 (La.App. 1 Cir.1985), the Louisiana First Circuit Court of Appeal found that a “carport and utility room were certainly part of the inhabited dwelling.” 470 So.2d at 603.

| ^Finally, in State v. Lawrence, 572 So.2d 276 (La.App. 1 Cir.1990), a case cited by Mr. Martin in support of his argument that the porch of the house on Audubon Street was not part of an inhabited dwelling, the First Circuit found that an enclosed back porch was, in fact, an “inhabited dwelling” for purposes of La. R.S. 14:62.3. The porch in the Lawrence case was fully enclosed underneath the main roof line of the house. There were two entrances from the porch to the rest of the house, and the family who lived there spent a lot of time on the porch.

Mr. Martin argues that because there was no evidence presented at his trial to show that the porch was under the main roof line of the rest of the house, the porch was not part of an inhabited dwelling. We disagree. We do not find that the placement of the roof of the porch is dispositive of whether the porch was or was not a part of the house. In the instant case there was testimony that the porch was completely screened, that the outside door leading to the porch was locked, and that there were doors on the porch leading into a bedroom and into the kitchen of the house. Additionally, there was testimony from the owner of the house that she considered the porch to be a part of her home.

Based on the Lawrence, Harris, and Segue cases, we find that the screened-in porch of the Audubon Street house was a part of an inhabited dwelling. This assignment of error is without merit.

1!(Assignment of Error No. 2: The Court imposed an excessive sentence.

Mr. Martin was sentenced to. serve six years at hard labor for his conviction for attempted simple burglary of an inhabited dwelling, which is the maximum sentence that he could have received. He contends that his sentence is excessive.

The Louisiana Constitution expressly provides that “[n]o law.shall subject any person to cruel, excessive, or unusual punishment.” La. Const, art. 1, 20. Although the United States Constitution does not expressly prohibit excessive punishment, it does prohibit “cruel and unusual punishments.” U.S. Const, amend. VIII.

In State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, the Louisiana Supreme Court set forth the standard to be used in evaluating a claim of an excessive sentence. The Court stated:

Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.

01-2574, pp. 6-7, 839 So.2d at 4 (citations omitted).

In State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977, the Louisiana Supreme Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The Supreme Court further stated that the court is permitted to determine both whether Inthe statutory range of sentences and the sentence of a particular offender is excessive, even if that offender’s sentence is within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Louisiana Supreme Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.

384 So.2d at 358 (citations omitted).

In State v. Soco, 441 So.2d 719 (La.1983), the Supreme Court also stated that “[mjaximum sentences provided by the statutes are reserved for the ‘worst kind of offender.’ ” Id. at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). The Supreme Court further stated:

In order for there to be proper review of the sentence to determine its constitutionality, La. Const, art. 1, § 20, that is, whether the defendant is the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by La. C.Cr.P. 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence.

Id. The Supreme Court has also stated that “[i]f the judge records the factors affecting his sentencing decision, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than the needless infliction of pain and suffering.” State v. Pike, 426 So.2d 1329, 1335 (La.1983).

|12In State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, this Court discussed compliance with La.C.Cr.P. art. 894.1. This Court stated that “[a]n appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed.” 06-0875, p. 18, 947 So.2d 810 at 820. This Court further stated, quoting State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819, that “[t]he articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions.” 06-0875, p. 18, 947 So.2d 810 at 820. Additionally, this Court stated that “[wjhere the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1” Id.

At the sentencing hearing, in the instant case, the district court judge stated that Mr. Martin had an extensive juvenile record as noted in the report of the pre-sentence investigation. The report showed that as a juvenile Mr. Martin had been arrested for being a runaway, the theft of goods under $100.00, and possession of stolen goods under $100.00. He had also been arrested on several for simple burglary of an inhabited dwelling. A number of other arrests resulted in convictions. He was convicted of the distribution of crack cocaine and sentenced to two and a half years in a juvenile facility. He was also convicted of two burglaries of an inhabited dwelling. In one of the burglary cases he was sentenced to three years in a juvenile facility, and in the other he was sentenced to a juvenile life sentence.

| 13As an adult, Mr. Martin was arrested for domestic violence. At the time the presentence investigation report was made, he had been convicted not only in the instant case but also in another unrelated case of attempted burglary of an inhabited dwelling.

The presentence investigation report stated that “[i]t is apparent that Mr. Martin failed to learn his lesson as a juvenile due to his numerous arrest [sic] as an adult.” The report further stated that “[ljeniency is not recommended because of the serious nature of this offense, Mr. Martin’s criminal history, his drug use, and his failure to take responsibility for his actions.”

The district court judge said at the sentencing hearing that Mr. Martin’s extensive juvenile record formed “a large part of the basis for the Court’s sentence.” We find that the district court appropriately followed the sentencing guidelines set forth in La.C.Cr.P. art. 894.1. Mr. Martin had an extensive juvenile record, and the trial court did not abuse its discretion in imposing the sentence that it did. This assignment of error has no merit.

DECREE

Mr. Martin’s conviction and sentence are affirmed. The judgment of the district court is hereby affirmed.

AFFIRMED.

      . La. R.S. 14:62.3 defines the crime of unauthorized entry of an inhabited dwelling as "the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as. a home or place of abode by a person.

      . Article 894.1 sets forth the sentencing guidelines for criminal defendants who have been convicted of a felony or misdemeanor.

      . At the sentencing hearing in the instant case, the district court judge also sentenced Mr. Martin to six years in the unrelated case. The sentence was to run concurrently with the sentence in the instant case.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    DESIRE NARCOTICS REHABILITATION CENTER, INC. v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS, Secretary Frederick P. Cerise, M.D., M.P.H.
    No. 2007-CA-0390.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 2007.

      Edwin M. Shorty, Jr., Michael J. Hall, Tony Dooley, Shorty, Dooley & Hall, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Nancy L. Kelly, Department of Health and Hospitals, Bureau of Legal Services, New Orleans, LA, for DefendanVAppellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| desire Narcotics Rehabilitation Center, Inc. (“DNRC”) filed this devolutive appeal from the trial court’s judgment denying its Petition for Preliminary Injunction against the State of Louisiana Department of Health and Hospitals (“DHH”). For the reasons more fully set forth below, we affirm the trial court’s judgment.

Relevant Facts

DHH is the Louisiana state department that administers, licenses, and regulates substance abuse/addiction treatment faeilities. Since 1975, the State of Louisiana has required substance abuse treatment facilities to maintain a valid license to operate. By law, these licenses must be renewed annually.

For many years, DNRC operated as a licensed substance abuse rehabilitation facility in the heart of the Desire housing project in the City of New Orleans. DNRC’s annual license was set to expire on November 30, 2006. On September 18, 2006, DHH mailed a renewal notice to DNRC, with the applicable annual renewal application for a substance abuse/addiction treatment facility, reminding | aDNRC that its license would expire on November 30, 2006 and that DHH must receive the application and renewal fee in order to process the license renewal application. On November 2, 2006, DHH sent a “Second Notice” to DNRC. Mistakenly attached to this notice was an ESRD (end stage renal disease) application. Additionally, at the request of the owner of DNRC, DHH also sent a license renewal application to the owner’s home address.

On November 27, 2006, DHH received a partially completed ESRD application from DNRC, but neither the necessary substance abuse treatment facility application nor the license renewal fee was attached. Immediately thereafter, DHH returned the incorrectly submitted ESRD application to DNRC with a note informing DNRC that it had submitted the wrong application. Attached to this correspondence was another application for renewal for a substance abuse/addiction facility. DNRC did not respond.

On December 1, 2006, DHH sent DNRC a certified letter informing it that its license had expired for failure to return the application and renewal fee. The letter also stated that DHH would terminate DNRC’s license and close its file unless DNRC submitted the application and fee within 10 calendar days. Twenty days later, having not received the renewal application or fee, DHH sent DNRC a certified letter notifying it that it must cease and desist operations as a substance abuse/addiction facility. The letter was received by DNRC on December 28, 2006. After receiving this letter, DNRC mailed the correct application and $700 renewal fee check on December 29, 2007, almost a month after its license had expired. That same day, DNRC filed a Petition for Injunction seeking to restrain, enjoin and prohibit the State of Louisiana from enforcing the cease and desist order and | ¡¡requesting a temporary restraining order. The district judge denied DNRC’S request for a restraining order.

On January 18, 2007, after a hearing on the injunction, the trial court denied DNRC’s request for a preliminary injunction on the basis that there was “no showing of wrongdoing” on the part of DHH. The trial court found that DHH was acting within the policies and procedures that have been promulgated by the department in the regulation of rehabilitation facilities. The court also denied DNRC’s Motion for New Trial on January 31, 2007. This appeal followed.

Assignments of Error

According to DNRC, the trial court erred in finding that:

1. It had no authority to order the DHH to issue a license or restrain the department from enforcing its cease and desist order;
2. DNRC would be irreparably harmed by the actions of DHH; and
3. DHH violated the due process rights of DNRC by refusing to renew DNRC’s license.

Law and Analysis

DNRC argues that the trial court erred in denying its petition for preliminary injunction and in failing to order DHH to accept DNRC’s late-filed application. Article 3601 of the Louisiana Code of Civil Procedure provides that, “an injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law ...” La.Code Civ. Proc. art. 3601. Generally, in order to obtain a preliminary injunction pursuant to article 3601, a petitioner must show that he will suffer irreparable injury in the absence of the injunction, that he is entitled to the relief sought, and that he can make a prima facie showing that he will prevail on the merits. C. NAPCO, INC. v. The City of New Orleans, 06-0603, p. 6 (La.App. 4 Cir. 3/7/07), 955 So.2d 155, 159.

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits. C. NAPCO, supra, at p. 7, 955 So.2d at 160. The trial judge in a preliminary injunction hearing has great discretion to grant or deny the relief. Id. An appellate court will disturb the trial court judgment only upon a showing that the trial court abused its great discretion. Id., citing, A to Z Paper Co., Inc. v. Carlo Ditto, Inc., 98-1417 (La.App. 4 Cir. 9/9/98), 720 So.2d 703. In the instant case, the trial court found that DNRC did not make a prima facie showing that it was entitled to a preliminary injunction. Thus, the question before this Court is simply whether the trial court abused its vast discretion in finding that DNRC did not present a prima facie case for injunction.

The DHH has promulgated rules governing the providers of substance abuse treatment services, including procedures and protocols pertaining to the application process. Pursuant to statute, all licenses must be renewed annually and the license expires on the last day of the twelfth month after date of issuance unless otherwise renewed. La. Rev.Stat. 40:1058.8. Additionally, all applications for license renewal must be accompanied by a renewal fee. Id. No substance abuse/addiction treatment facility may operate without a valid, current, license. La.Rev.Stat. 40:1058.3(A)(2). The operation of a substance abuse/addiction treatment facility without a valid, current license is a misdemeanor offense punishable by a fine of up to five hundred dollars for each day of violation. See La.Rev.Stat. 40:1058.9.

IsDHH argues that DNRC is not entitled to injunctive relief because there was no improper action taken by DHH to enjoin. We agree. Through its own actions or omissions, DNRC allowed its license to expire by failing to submit the proper application and licensing fee by the required date. DHH even allowed DNRC ten additional days from the receipt of the December 1, 2006 warning letter to submit the proper paperwork and fee. The record shows that DNRC did not submit the correct renewal application or renewal fee until December 29, 2007, a month after its license had expired, and after it had received the cease and desist order. Because it was a violation of § 40:1058.3(A)(2) for DNRC to operate without a license, DHH was within its rights to order DNRC to cease and desist operations. Considering the fact that DNRC failed to comply with the statutes and regulations necessary in order to maintain its license, DNRC would be unable to prevail on the merits at trial, and it was not entitled to an injunction. Moreover, because an injunction is merely a device to preserve the status quo between the parties and to prevent a party from acting, rather than to force a party to act, the trial court did not have the authority, as DNRC argues, to force DHH to accept DNRC’s late-filed application and renewal fee, even if it had been warranted.

DNRC further argues that the trial court erred in failing to find that DNRC was irreparably harmed by DHH’s actions in ordering it to cease and desist operations. Although it is unfortunate that DNRC will have to close its doors and its former clients will be forced to seek treatment at another treatment facility, DHH’s actions did not bring about these circumstances. DNRC’s license expired on the same date every year and DNRC was aware of the procedure for renewing its license. Although DHH gave DNRC ample opportunity to send in the correct renewal application and fee, DNRC failed to do so until after it received the cease | fiand desist order. At that point, its license had been expired for over a month and it was operating in violation of the law. DHH was merely enforcing the law in ordering DNRC to cease operations. DNRC’s own actions, rather than those of DHH, are what caused DNRC to close its doors to the public. Accordingly, this argument is without merit.

DNRC’s assignment of error regarding due process is also without merit. Although Louisiana Revised Statute 40:1058.6 does require the department to provide written notice and a hearing, if requested, when a license has been revoked or denied, such is not the case here. DHH did not revoke or deny DNRC’s license to operate. Rather, DNRC failed to timely renew its license and submit the proper fees, causing its license to expire. By ordering DNRC to cease and desist operations, DHH simply acted within its authority to enforce the statutory regulations. Therefore, a hearing was not warranted and there has been no violation of DNRC’s due process rights.

After a review of the record in light of the relevant law, we agree with the trial court’s finding that DNRC did not make a prima facie case that it is entitled to a preliminary injunction against DHH. DNRC failed to submit an application and required fee for renewal of its license as a substance abuse/addiction treatment facility and allowed its license to expire. DHH followed the policies and procedures promulgated by the department and outlined in the relevant statutes. Based on the foregoing, we find that the trial court did not abuse its vast discretion in denying DNRC’s request for a preliminary injunction. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

      . "Substance abuse/addiction treatment facility” means any facility which presents itself to the public as a provider of services related to the abuse/addiction of controlled dangerous substances, drugs, or inhalants, alcohol, problem and compulsive gambling, or a combination of the above.” La.Rev.Stat. 40:1058.1.1(A)(7).

      . These rules are published in the Louisiana Register, Volume 26, Number 7, July 20, 2000 and its amendment in Louisiana Register, Volume 31, Number 3, March 20, 2005 (also referred to as LAC 48:I.Chapter 74).


author: CHARLES R. JONES, Judge. TOBIAS, J.,

text:
    Parma Matthis HOWARD and Jane Matthis Smith v. ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
    No. 2006-CA-1276.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2007.

      Daniel J. Caruso, John F. Shreves, Shawn L. Holahan, Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Plaintiff/Appellant.
    Dennis H. Tracey III, Catherine E. Stetson, R. Brian Black, Hogan & Hart-son, L.L.P., New York, NY, and Edward H. Bergin Genevieve M. Hartel, Jones Walker Waechter Poitevent Carrere & De-negre, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS JR.).
   CHARLES R. JONES, Judge.

_JjThe Appellants, Parma Matthis Howard and Jane Matthis Smith, seek review of a district court judgment denying their petition for a preliminary injunction against the Administrators of the Tulane Educational Fund d/b/a Tulane University (hereinafter referred to as “Tulane”).

Facts and Procedural History

In 1886, Mrs. Josephine Louise New-comb donated $100,000.00 to Tulane University — an all male institution at the time — in memory of her deceased daughter, H. Sophie Newcomb. In her correspondence of October 11, 1886, to Tulane, Mrs. Newcomb advised that she was donating the aforementioned sum to the university for the establishment of the H. Sophie Newcomb Memorial College. Mrs. Newcomb explained the reason for her donation:

Feeling a deep personal sympathy with the people of New Orleans, and a strong desire to advance the cause of female education in Louisiana, and believing also that I shall find in the Board selected by the benevolent Paul Tulane, the wisest and safest custodian of the fund I propose to give, I hereby donate to your Board the sum of One Hundred Thousand Dollars to be used in establishing the H. Sophie Newcomb Memorial College, in the Tulane University of Lousia-na, for Uthe higher Education of white girls and young women....
I do not mean in this my act of donation to impose upon you restrictions which will allow the intervention of any person or persons to control, regulate, or interfere with your disposition of this fund, which is committed fully and solely to your care and discretion with entire confidence in your fideletyffidelity] and wisdom.

Mrs. Newcomb continued to donate monies to Newcomb College through Tulane until her death on April 7,1901.

In her olographic will, dated May 12, 1898, Mrs. Newcomb specifically stated:

I have implicit confidence that the ‘Administrators of the Tulane Educational Fund’ will continue to use and apply the benefactions, and property, I have bestowed and may give, for the present and future development of this Department of the University Known [sic] as the H. Sophie Newcomb Memorial College which engrosses my thought and purposes, and is endeared to me by such hallowed associations.

Tulane was Mrs. Newcomb’s universal legatee and as such inherited the bulk of her estate, approximately $2,668,409.00, for the development of Newcomb College.

After Mrs. Newcomb’s death, Tulane continued to operate Newcomb College as a separate college within its University for over a 100 years. However, in the aftermath of Hurricane Katrina, the Administrators of the Tulane Educational Fund decided to merge Newcomb College and Tulane College pursuant to Tulane’s post-Katrina renewal plan.

On May 16, 2006, Ms. Howard and Ms. Smith, who aver that they are Mrs. New-comb’s great-great-nieces, sued Tulane to enjoin it from closing and consolidating Newcomb College into a unified New-comb-Tulane College. Ms. Howard and Ms. Smith (hereinafter referred to as “the Nieces”) | .¡sought a preliminary injunction as well as a permanent injunction and a declaratory judgment ordering Tulane to carry out what they allege is a specific condition Mrs. Newcomb placed on her inter vivos donations and testamentary bequest: to maintain H. Sophie Newcomb College as a separate college for women specifically, within Tulane University in memory of H. Sophie Newcomb. In response, Tulane filed an exception of prescription, res judicata, no right of action and no cause of action.

On June 12, 2006, the district court heard the Nieces petition for injunctive relief. Tulane’s exceptions were also to be heard on this date, but were not acted upon by the district court. The district court denied the Nieces’ petition for preliminary injunction. It is from this judgment that the Nieces filed the instant appeal.

Assignments of Error

The Nieces raise four (4) issues on appeal:

1. The district court erred as a matter of law in not carrying out Mrs. New-comb’s intent for Tulane — as her universal legatee — to use the balance of her estate to maintain a women’s higher education college and in not enjoining the Tulane Board from abolishing Newcomb College through its Renewal Plan and Resolutions;
2. The district court erred as a matter of law in ruling that the provision of Mrs. Newcomb’s will did not include “an enforceable conditional obligation” sufficient to support the granting of a preliminary injunction enjoining the implementation of the Tulane Board’s Renewal Plan and Resolutions, that abolish Newcomb College;
3. The district court erred as a matter of fact and law in ruling that the Nieces failed to make a prima facie case that they will suffer | irreparable harm by the Tulane Board’s implementation of the renewal plan; and
4. The district court erred as a matter of fact and law in ruling that the Nieces failed to make a prima facie case that they will prevail on the merits in showing that abolishing Newcomb College violates the express terms of Mrs. Newcomb’s will.

Before addressing the merits of the Nieces petition for injunctive relief, we shall first address the issue of whether the Nieces have a right to bring this action.

The Nieces’ Right of Action

In the instant appeal, the Nieces seek a preliminary injunction against Tulane to enjoin the merger of Newcomb College with Tulane’s other undergraduate colleges pursuant to Tulane’s post-Katrina Renewal Plan. The bringing of this action, however, poses a legal question that has yet to be resolved by Louisiana jurisprudence: can a “non-legatee/would-be heir” file suit for injunctive relief on behalf of a testator/donor? While we note that Tulane — in its reply brief — raised the issue of whether the Nieces had standing to file the instant lawsuit, Tulane did not file an answer to the appeal. Thus, Tulane is not entitled to dismissal of the appeal absent an answer to the appeal. Nevertheless, in the interest of judicial economy, we address the issue of whether the Nieces have a right of action. La.C.C.P. art. 927(B).

“There are two kinds of succession: testate and intestate.” La. C.C. art. 873. Accordingly, there are two kinds of successors: testate successors, who are called legatees, and intestate successors, who are called heirs. La.C.C. art. 876. “Thus, a legatee, as that term is understood, is one entitled to take possession of the estate of the deceased pursuant to the terms of a |fitestament.” In re Succession of Scott, 05-2609, p. 4 (La.App. 1 Cir. 11/3/06), 950 So.2d 846, 848. A testator, therefore, does not have heirs, but may theoretically have would-be heirs.

In the instant case, Tulane points out that Mrs. Newcomb died fully testate leaving the bulk of her estate to Tulane. Tulane contends that the Nieces do not have standing to bring the instant suit against Tulane because neither the Nieces nor their ancestors were Mrs. Newcomb’s legatees. Yet, the Nieces claim that Louisiana law and jurisprudence recognize that they have a right of action. For clarity, we will separately discuss the Nieces right to bring an action on Mrs. Newcomb’s donations inter vivos and her testamentary bequest.

Inter Vivos Donations

In support of their contention that a testator’s collateral relatives and would-be intestate heirs can sue on behalf of the testator/ relative to enforce a condition of an inter vivos donation, the Nieces cite two (2) cases: Frame v. Shreveport Anti-Tuberculosis League, 538 So.2d 684 (La.App. 2 Cir.1989), writ denied, 541 So.2d 896 (La.1989) and Voinche v. Town of Marksville, 124 La. 712, 50 So. 662 (1909).

In Frame, the heirs of a donor sued to revoke the donor’s inter vivos donation of approximately 55 acres of land because the ultimate donee of property — the State— failed to comply with a condition of the donation. The donor made an inter vivos donation to the Shreveport Anti-Tuberculosis League under the condition that the property was to be used as a tuberculosis sanitarium or some other equally charitable purpose. The donation was made |fiwith the stipulation that the donation would be revoked if the property was not used for the intended or an equally charitable purpose.

In Voinche, an heir sued to revoke his relative’s inter vivos donation of immovable property to the town of Marksville. Said property was donated to the town solely for the establishment of a market. Subsequent to the donor’s death, the town failed to operate the store on the property and even allocated a portion of the land to construct a street. Just as in Frame, the donor’s heir sued to revoke the donation pursuant to a reversionary clause contained within the act of donation.

In both Frame and Voinche, the heirs were suing for the revocation of the donations, not for injunctive relief, pursuant to reversionary clauses contained in the acts of donation. Also, it is unknown from reading these cases whether the donors died intestate. If they did, their heirs had a legally recognized right to pursue revocation because if the conditions of said donations were not being fulfilled, the donated properties would return to their relatives’ respective estates.

These cases do not provide a precedent for non-legatee/would-be heirs to sue for injunctive relief on behalf of a donor, who died testate. Furthermore, these cases do not demonstrate that non-legatees/would-be heirs have the right to sue for injunc-tive relief against a donee that is also their relative’s universal legatee.

Moreover, Mrs. Newcomb’s initial letter advising Tulane of her donation stated:

I do not mean in this my act of donation to impose upon you restrictions which will allow the intervention of any person or-persons to control, regulate, or interfere with your disposition of this fund, which is committed fully and solely to your care and discretion with entire confidence in your fidelety and wisdom.

|7Mrs. Newcomb’s words lucidly convey that she did not want anyone to tamper with Tulane’s administration of her donation. She expresses her unconditional trust in Tulane’s ability to manage her donation. Her language is clear and unambiguous. The donation does not contain a reversionary clause. Therefore, given the plain meaning of these words, we find that these terms bar the Nieces from interfering in Tulane’s administration of Mrs. Newcomb’s donations inter vivos. Thus, we do not find that thq Nieces have a right to assert a claim for injunctive relief relative to Mrs. Newcomb’s donations inter vivos.

Mortis Causa Donation

The Nieces cite Braquet v. Administrators of the Tulane Educational Fund, 304 So.2d 720 (La.App. 4 Cir.1974) in support of their position that a decedent’s collateral relatives and would-be intestate heirs may sue on a testator’s behalf to enforce a condition of a will.

In Braquet, the would-be heirs of a testator brought an action to nullify a bequest to the Administrators of Tulanes Educational Fund alleging that Tulane failed to fulfill a testamentary condition. The district court dismissed the action, but set a time limit of eighteen (18) months for Tulane to fulfill the testamentary condition, which mandated the construction of a chapel memorializing the testator’s sister. The relatives appealed.

On appeal, we held that a delay of thirteen (13) years in fulfilling the condition was unreasonable; yet, in light of the testator’s emphatic intent, Tulane was given further opportunity to construct the chapel. The Court modified the trial court’s judgment, allowing Tulane twelve (12) months to begin construction and twenty-four (24) months to complete construction.

I «The facts of this case are distinguishable from the instant case. In Braquet, the collateral heirs filed suit in just over a decade after the testator’s passing because Tulane had not constructed a chapel in fulfillment of the testator’s condition. However, in the instant case, Mrs. New-comb’s dream of educating young women was realized before she passed and Tulane has maintained Newcomb College for over 100 years after her death.

The would-be heirs in Braquet filed a petition to have the legacy to Tulane revoked for nonperformance of the condition attached to its acceptance. The reversion-ary heirs were challenging Tulane’s failure to timely construct a chapel, not because they wanted the chapel to be constructed, rather they wanted the bequest to Tulane nullified in order that they would receive the proceeds from their relative’s estate. If the donation to Tulane would have been nullified, the estate would have devolved under the- laws of intestacy to the heirs because Tulane was the sole legatee of the testator’s will. Despite the relatives’ petition, this Court chose to uphold the testator’s intent and designated a timeline within which Tulane was to construct the chapel.

In the instant case, the Nieces solely seek injunctive relief. They are not pursuing the nullification of the bequest in order that they might procure the assets of Mrs. Newcomb’s estate from Tulane. Furthermore, in Braquet, neither this Court nor the district court acknowledged the right of collateral heirs to bring their suit. Indeed, the district court dismissed the suit and this Court did not address whether the plaintiffs had standing.

Lastly, unlike in Braquet, the district court in this case did not find that Mrs. Newcomb made a conditional bequest. In its reasons for judgment, the district court rationalized:

lflThe Court finds that the provisions of Mrs. Newcomb’s will did not create an enforceable conditional obligation that would support the granting of a preliminary injunction prohibiting Tulane from abolishing Newcomb College as a separate college within Tulane Universisty [sic].

In Mrs. Newcomb’s will, she stated:

I have implicit confidence that the ‘Administrators of the Tulane Educational Fund’ will continue to use and apply the benefactions, and property, I have bestowed and may give, for the present and future development of this Department of the University Known [sic] as the ‘H. Sophie Newcomb Memorial College’ which engrosses my thought and purposes, and is endeared' to me by such hallowed associations.

We agree with the district courts finding that Mrs. Newcomb did not impose a conditional obligation on her bequest. The language contained in Mrs. Newcombs will is more precatory in nature than it is binding. For instance, Mrs. Newcombs use of the word “confidence” in her testament reinforces her use of that word in her initial donation inter vivos to Tulane.

Mrs. Newcombs wording conveys that while she entrusted Tulane with the overseeing the development of Newcomb College, she did not impose any real conditions upon the institution to carry out her wishes. We do not find that the Nieces have a right of action against Tulane relating to Mrs. Newcombs donation mortis causa nor do we find that Mrs. Newcomb made a conditional bequest to Tulane in her testament.

Applicability of the Cy Pres Doctrine

The Nieces aver that they have a right to assert their claim under the Cy Pres doctrine. La. R.S. 9:2331, which sets forth the Cy Pres doctrine, states:

|inIn any case in which circumstances have changed since the execution or probate of a will containing a trust or conditional bequest for charitable, educational or eleemosynary purposes, or since the death of the donor who during his lifetime established a trust or made a conditional donation for any of such purposes, and the change in circumstances is such' as to render impractical, impossible or illegal a literal compliance with the terms thereof, the district court having jurisdiction of the succession of the testator or of the domicile of the donee (and in the parish of Orleans, the civil district court) may, upon petition of a trustee, or of the person or corporation having custody or possession of the property subject to said trust, conditional bequest or donation or of any heir, legatee or donee who in the absence or invalidity of such trust, conditional bequest or donation would have been entitled to any part of the property contained therein, in accordance with the procedure hereinafter set forth, enter a judgment directing that such charitable trust, devise or conditional bequest or donation shall be administered or expended in such manner (either generally or specifically defined) as, in the judgment of said court, will most effectively accomplish as nearly as practicable under existing conditions the general purpose of the trust, will or donation, without regard to and free from any specific restriction, limitation or direction contained therein. [Emphasis added.]

In addition to being applicable to donations mortis causa, the Cy Pres doctrine applies to inter vivos donations made before 1970. Ada C. Pollock-Blundon Ass’n, Inc. v. Nieces of Evans, 273 So.2d 552, 554 (La.App. 1 Cir., 1973).

Because we find that none of Mrs. New-comb’s donations were conditional, this argument has no merit. Furthermore, no courts in Louisiana nor in any other state have held that an heir has the right to sue for injunctive relief pursuant to this doctrine. Therefore, we do not find that the Nieces have standing under the Cy Pres doctrine.

In Furthermore, even if this doctrine could be applied to the case sub judice, the doctrine seemingly lends more support to Tulane’s renewal plan for Newcomb College. Hurricane Katrina was the catalyst that changed the circumstances in which Newcomb College operated and has rendered impractical the operation of a college considering that no female students enrolled for the fall 2006 semester. Consolidating Newcomb College with Tulane’s other colleges, conferring degrees to a larger student population bearing H. Sophie Newcomb’s name and creating the H. Sophie Newcomb Memorial College Institute will “most effectively accomplish as nearly as practicable under existing conditions the general purpose” of Mrs. New-comb’s desire to have a lasting memorial to her daughter and to provide for the education of women.

We find that the Nieces do not have a right to bring this action. Further, Tulane’s argument on appeal relating to the Nieces’ lack of standing may be considered by the district court on Tulane’s exception of no right of action. Therefore, we pre-termit discussion of the other issues raised on appeal and remand.

Decree

For the foregoing reasons, the judgment of the district court is affirmed. In light of Tulane’s exception of no right of action, which was not acted upon by the district court, this matter is hereby remanded to the district court with instructions to grant the exception of no right of action and to dismiss the appellants’ petition for a preliminary injunction. Each party is to bear its own costs.

AFFIRMED.

TOBIAS, J., Dissents and Assigns Reasons.

TOBIAS, J.,

Dissenting.

Iil respectfully dissent. The majority and I have honest, divergent views of the law and the facts from the record in this case

The issues before the court are threefold: (1) whether the plaintiffs are the claimed heirs/collateral relatives of Mrs. Josephine Louise Newcomb (“Mrs. New-comb”), thereby having a right of action to pursue litigation arising out of their late great-great aunt’s original inter vivos donation of $100,000 and olographic will (donation mortis causa); (2) whether Louisiana law recognizes a cause of action to enforce a donation inter vivos or mortis causa based on the donative intent of the donor, and, concomitantly who has the right to seek enforcement of the donor’s intent after the death of the donor; and (3) whether Mrs. Newcomb’s intent in making the donations inter vivos and mortis causa to the Board of Administrators of the Tulane Educational Fund (“Tulane Board”) required the donation to be used solely for the maintenance and development of New-comb College, and more specifically a “college” as that term is commonly understood.

I. Right of Action

To resolve the issue of whether the plaintiffs have a right of action, and therefore, standing to bring the instant suit, the court is required to determine ^whether the plaintiffs are, in fact, Mrs. Newcomb’s heirs or successors, or possess the right of action by some other means or method. The Tulane Board filed an exception of no right of action pursuant to La. C.C.P. art. 927, alleging the plaintiffs lack standing because they failed to establish that they or their ancestors inherited any rights from Mrs. Newcomb to which they succeeded to pursue the instant litigation. In response, the plaintiffs filed sworn affidavits attempting to establish their descent from Mrs. Newcomb and their right of action. The trial court neither considered the Tulane Board’s exception nor ruled upon whether the plaintiffs can seek enforcement of the conditional disposition of Mrs. Newcomb’s donations. The majority addressed the standing issue sua sponte and determined that a would-be intestate heir/collateral relative does not possess a right of action to sue on behalf of a donor and/or testator to seek injunctive relief or to enforce a donation inter vivos or causa mortis. The majority’s ruling, which effectively dismisses the plaintiffs’ case, eliminates the plaintiffs’ opportunity to have a hearing and present evidence on the standing issue as authorized by La. C.C.P. art. 931, and deprives them of the chance to supplement and/or amend their petition to cure any deficiency. See La. C.C.P. art. 934.

The majority ignores the Louisiana’s Supreme Court decision, albeit an 1836 case, in Poydras v. Taylor, 9 La. 488, 1836 WL 868 (1836), where the Court specifically held that a decedent’s heirs succeed to all of the ancestor’s rights, and |ahave a right of action to seek enforcement of a disposition in the will. Thus, Louisiana law recognizes a right of action for an heir, which would include a “would-be” heir, to sue on behalf of an ancestor to enforce a testamentary bequest. By failing to hold a hearing on defendant’s exception of no right of action, the plaintiffs are forever precluded from establishing their heirship and rights as successors to the decedent and, thus, their, right of action to file the instant suit. Consequently, given the ramifications of a complete dismissal of plaintiffs’ case — the closing of a 120-year-old institution — I would remand this matter to the trial court for a hearing on the Tulane Board’s exception of no right of action and afford the plaintiffs the opportunity to amend their petition to more accurately establish their standing rather than this court rule sua sponte,

II. Cause of Action to Enforce a Condition of a Donation

Pretermitting for the moment whether the plaintiffs are, in fact, the “would-be heirs” of Mrs. Newcomb, the next issue is whether Louisiana law recognizes a cause of action to enforce a charge or condition contained in a donation inter vivos and/or mortis causa. To properly answer this question, one must look to the law in effect at the time the donation. Succession of Dowling, 93-1902 (La.App. 4 Cir. 2/25/94), 638 So.2d 846, 855; Succession of Czindula, 99-1686 (La.App. 4 Cir. 1/5/00), 751 So.2d 986. According to La. C.C. art. 1610.1, “[t]he same- causes that authorize an action for the revocation of a donation inter vivos are sufficient to authorize an action for revocation of testamentary dispositions.” Among the causes for which a donation inter vivos may be revoked is the “non-performance” of a condition or charge that has been imposed on the do-nee. La. C.C. arts. 1559(3), 1565-1569. This court has previously held that La. C.C. art. 1610.1 |4permits a donation mor-tis causa to be revoked if the donee has failed to fulfill a condition or charge to which the donation may have been subjected.

Considering jurisprudence constante, where a Louisiana Civil Code article has been derived from a French Civil Code (Code Napoleon) article, interpretation of the latter is highly instructive for, if not determinative of, interpretation of the former. See, e.g., Bartlett v. Calhoun, 412 So.2d 597 (La.1982); Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206 (1919). The derivation of La.C.C. art. 1610.1 is as follows: La.C.C. art. 1710 (1870); La.C.C. art. 1703 (1825); La. Digest bk. III, tit. II, art. 198 (1808); Code Napoléon art. 1046 (1804). For these reasons, the interpretation of La. C.C. art. 1610.1 must be guided by the interpretation of the Code Napoléon art. 1046.

The affidavit of John Randall Trahan was admitted into evidence on this issue. According to Mr. Trahan, under Code Na-poléon art. 1046, the right to revoke a donation mortis causa for nonexecution of a condition or charge belongs, inter alia, to those who would benefit if the donation mortis causa were to be revoked. Because the revocation of a universal donation mortis causa would accrue to the benefit of the intestate successors (heirs), the heirs have the right to revoke such a donation for non-execution of a condition or charge. | ^Concomitantly and by logic, heirs and successors have a right to assure that their predecessor’s wishes expressed in writing by either donation inter vivos or mortis causa are enforced. After all, who else has a bona fide interest?

Under Code Napoléon art. 1046, one who has the right to revoke a donation mortis causa (and by implication a donation inter vivos) for non-execution of a condition or charge also has the right to enforce the obligation or charge. Thus, it follows that where a universal donation mortis causa (and by implication a donation inter vivos) has been subjected to a condition or charge that has not been carried out, Code Napoléon art. 1046 provides an avenue for the heirs to bring suit to enforce that condition or charge. Although Code Napoléon art. 1046 has evolved over the past two centuries, there is no logical or legal reason why the application of La. C.C. art. 1610.1 should not have the same legal effect as its predecessors; that is, the one who has the right to revoke a donation inter vivos and/or mor-tis causa for non-execution of a condition should likewise have the corollary right to enforce it.

The Supreme Court’s ruling in Poydras v. Taylor, supra, supports this interpretation and application of La. C.C. 1610.1, and its predecessor versions. In \ ¡^Poydras, the testator’s heir, who inherited nothing from the decedent, sought injunctive relief in order to maintain the conditions and requirements of the testator’s will, and to have a sale by the defendant voided because the sale violated the terms of the testator’s will. The Supreme Court not only recognized the heir’s right to bring the action, but further recognized an heir’s right to enforce a charge on a testator’s bequest stating “[it] is their duty to see his intentions, as expressed in his last will and testament, [are] faithfully executed and carried into effect.” Poydras v. Taylor, 9 La. 488, 1836 WL 868 *3 (1836). Therefore, in Louisiana a right to revoke a bequest belongs to the heirs who would have inherited the bequeathed property had the bequest not been made or had failed. These same heirs, based on the previously-referenced code articles and the Supreme Court’s pronouncement in Poydras have the right to enforce the conditions of a donation. Accordingly, assuming Mrs. Howard and Mrs. Smith, can establish their right to assert a cause of action, I find that Louisiana law recognizes a cause of action to enforce a charge or condition on a donation.

III. The Donative Intent of Mrs. Newcomb’s Donation

In Louisiana, the intention of the donor (such as a testator) is the single most important guideline in the interpretation of a document making the donation, and when ascertained, must be enforced, when not violative of law. Succession of Blakemore, 43 La. Ann. 845, 9 So. 496 (1891). Moreover, the intention of the donor must be ascertained from the whole document(s) establishing the donation with effect given to every part of the document(s) as the law permits. Succession of Logan, 384 So.2d 830 (La.App. 4 Cir.1980). When interpreting a testament (and |7by implication a document making a donation), Louisiana courts are guided by La. C.C. arts. 1611— 1616. In the case at bar, La. C.C. arts. 1611 and 1612 are particularly relevant. La. ■ C.C. art. 1611 provides, in pertinent part:

The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.

Further, La. C.C. art 1612 provides:

A disposition should be interpreted in a sense in which it can have effect, rather than in one in which it can have none.

“[T]he function of the courts is to carry out the intention of the testator” and to give effect to all language contained in the will if possible. Succession of Bel, 377 So.2d 1380, 1383 (La.App. 4 Cir.1980), citing Succession of Stewart, 301 So.2d 872, 877 (La.1974). See also Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966). In doing so, if the testament (or document) is ambiguous with regard to a particular clause or bequest, other clauses or bequests are considered to reach an interpretation which harmonizes the provisions therein. Succession of Meeks, 609 So.2d 1035 (La.App. 2 Cir.1992). Thus, what is stated in one segment of the document or testament may be called upon to explain what is meant in an unclear part. Succession of Montegut, 430 So.2d 1024 (La.App. 5 Cir.1982). Further, when an ambiguity exists as to the donor’s intent, the court not only may, but rather, must consider “any [and all] competent evidence.” La. C.C. art. 1611(A); see also Succession of Stewart, 301 So.2d 872 (La.1974). This “competent evidence” includes “extrinsic evidence,” which includes acts done by the donor after he/she has made the donation. Succession of Ehrenberg, 21 La. Ann. 280, 1869 WL 4358 (1869); Clark v. Preston, 2 La. Ann. 580, 1847 WL 3169 (1847).

IsRegarding Mrs. Newcomb’s donative intent, in its reasons for judgment, the trial court stated:

A clear reading of Ms. Newcomb’s will shows that she intended for Tulane, as universal legatee, to use the balance of her estate to maintain a women’s higher education college. [Emphasis supplied.]

Having found that the intent of Mrs. Newcomb’s bequest to the Tulane Board was so “clear,” Louisiana law mandates the trial court to implement that intent; that is, the court must ensure that Mrs. New-comb’s donations to the Tulane Board are used to maintain a “women’s higher education college” [emphasis added] — not a “women’s institute.” The trial court’s failure to do so was an incorrect interpretation of the law and at the very least clearly wrong. Moreover, the ruling of the trial court is internally inconsistent. On the one hand, the trial court delineated Mrs. Newcomb’s clear intent to establish a women’s higher education college, yet, on the other, determined that Mrs. New-comb’s donations were not subject to any restrictions or conditional obligations. My reading of the 1886 letter and the 1898 will, both in its entireties, reveals that the condition Mrs. Newcomb placed on her donations, and her sole intent in making them, was that the money be used to maintain a women’s higher education college. Tulane Board’s decision to abandon New-comb College, not only violates, but completely ignores, Mrs. Newcomb’s intent-she wanted her money to be used for the “H. Sophie Newcomb Memorial College” [emphasis supplied]. The donations were clearly conditional — conditioned that the monies go for the use of a college to be known as the “H. Sophie Newcomb Memorial College.”

|9Both the trial court and the majority find that Mrs. Newcomb did not impose a conditional obligation on her bequest, and therefore, no restrictions how the bequest be used. This is inaccurate as a matter of law and fact if not just plain terminologically inexact. Nothing in the nature of Mrs. Newcomb’s donations — cash money— would preclude the finding of a conditional obligation. Regarding a universal legacy, a donor may freely subject that legacy to whatsoever condition(s) he/she may choose, provided that the condition(s) is not contra bonos mores. See La. C.C. art. 1519. As noted above, in such a matter, “[t]he intent of the testator controls.” La. C.C. art. 1611(A).

The trial court and majority’s consideration of extrinsic evidence beyond the four corners of 1886 letter and 1898 testament would have one conclude that the documents are ambiguous. This is incorrect. While the Tulane Board has modified the operation of Newcomb College over the years to conform to the changing times, it has always operated and maintained Newcomb College as a separate entity and coordinate women’s college, strongly suggesting (possibly conclusively) that the Tulane Board recognized a charge upon Mrs. Newcomb’s donations. Moreover, over the years since the establishment of Newcomb College, the Tulane Board and its agents likely sought donations from third parties (including alumnae) for the H. Sophie Newcomb College.

Newcomb College provided its own dean, degrees, diplomas, advisors, graduates, campus, student body, senate, and programs designed for the benefit of women. Moreover, Newcomb College has its own funds, both endowed and functioning as an endowment. In June 2005, all New-comb College endowments |intotaled $41,375,651. Thus, for nearly 120 years, the Tulane Board has understood and accepted the condition Mrs. Newcomb placed on her donation inter vivos, and later upon her donation mortis causa.

The Tulane Board, in support of its position, refers to the 1886 letter wherein she made her initial donation. Specifically, the Tulane Board quotes the following language:

But I do not mean in this my act of donation to impose upon you restrictions which will allow the intervention of any person or persons to control, regulate or interfere with your disposition of this fund, which is committed fully and solely to your care and discretion with entire confidence in your fidelity and wisdom.

The Tulane Board and the majority take this phrase out of context by deleting the preceding language in the same paragraph, thereby suggesting that the quoted language stands alone. However, the entire paragraph reads as follows:

I request that you will see that the tendency of the institution shall be in harmony with fundamental principles of the Christian religion, and to that end, that you will have a Chapel or assembly room in which Christian worship may be observed daily for the benefit of the students. But I desire that the worship and instruction shall not be of a sectarian or denominational character. I further request that-the education given shall look to the practical side of life, as well as to literacy excellence. But I do not mean in this my act of donation to impose upon you restrictions which will allow the intervention of any person or persons to control, regulate or interfere with your disposition of this fund, which is committed fully and solely to your care and discretion with entire confidence in your fidelity and wisdom.

I find the language relied upon so heavily by the trial court and the majority to support their position is actually meant to remove any perceived restriction regarding the building and operation of the chapel, not to remove any restriction on luthe Tulane Board’s use of Mrs. Newcomb’s money solely for the creation and maintenance of a women’s college. Again I note that the 1886 letter also states:

Feeling a deep personal sympathy with the people of New Orleans, and a strong desire to advance the cause of female education in Louisiana, and believing also that I shall find in the Board selected by the benevolent Paul Tulane, the wisest and safest custodian of the fund I propose to give, I hereby donate to your Board the sum of One Hundred Thousand Dollars to be used in establishing the H. Sophie Newcomb' Memorial College in the Tulane University of Louisiana for the higher education of ... girls and young women....” [Emphasis supplied.]

The 1898 testament again refers to the “H. Sophie Newcomb Memorial College.” The foregoing language clearly denotes that Mrs. Newcomb wanted the money to be used for a college.

Additional evidence in the record supports this interpretation. Prior to her death, but after Newcomb College was established, and after having donated a substantial sum to the Tulane Board for the purpose, Mrs. Newcomb became disenchanted with the Tulane Board’s operation of Newcomb College because Newcomb College was not being operated in accordance with her intent and purposes. Consequently, Mrs. Newcomb threatened to cease making additional donations to the Tulane Board and expressed her intention to establish a women’s coordinate college in Georgia. Based on assurances that the Tulane Board would honor her intentions in the future, Mrs. Newcomb did not follow through with her threat and continued to donate to the Tulane Board.

Similarly, in a letter dated 16 May 1910, R.M. Walmsley, President of the Tulane Board, faced with the adoption of a policy governing the use of monies from the Newcomb Fund, acknowledged Mrs. New-comb’s sole object and intent in making her donations and later bequest:

|12[T]o create a memorial for women, in which post-graduate work can be done, and that no portion of the revenues of the fund be should be used beyond the portals of this women’s memorial college, to and within which college should be confined the entire educational outlay. [Emphasis supplied.]

Moreover, in 1987, the Tulane Board passed several resolutions regarding the continued operation of Newcomb College and reaffirmed “the intent to maintain Newcomb College as Tulane’s coordinated college for the liberal arts education of women.” [Emphasis supplied.] In order to preserve and protect the viability of this intent, the Tulane Board created the New-comb Foundation. Collectively, these actions clearly indicate the Tulane Board for over 100 years recognized, understood, and accepted the conditions imposed by Mrs. Newcomb upon her donations inter vivos and mortis causa.

Having determined Mrs. Newcomb’s do-native intent, the trial court erred by not granting the preliminary injunction. The effect of the trial court’s ruling completely frustrates Mrs. Newcomb’s intent by abolishing Newcomb College in toto. However, if Mrs. Newcomb’s intent in donating the money was to maintain a women’s higher education college, her clear “intent” is the condition giving rise to the Tulane Board’s obligation to do just that — maintain a women’s higher education college. Therefore, the finding that Mrs. New-comb’s gifts were unrestricted and without conditions is clearly wrong.

In Louisiana, when a choice exists between two equally reasonable interpretations, one of which will effectuate and the other which will defeat one’s intention, the court must carry out the intention. Carter v. Succession of Carter, 382 So.2d 439, 441 (La.1976). Thus, Mrs. Newcomb’s donations must be interpreted as containing a conditional obligation mandating the maintenance of a women’s higher education college.

|1sIf the Tulane Board honestly believes that it is no longer practical or possible to honor the intent of Mrs. Newcomb’s donations — the continued operation of New-comb College as a separate and viable entity for women’s higher education — our law provides an avenue to be relieved from the obligation. Specifically, the cy pres doctrine, La. R.S. 9:2331, quoted in full by the majority, provides the Tulane Board with a means of petitioning the court for a judgment allowing it to accomplish the general purpose of Mrs. Newcomb’s will via the Tulane Board’s proposed Renewal Plan. That the Tulane Board has not exercised its rights under the cy pres doctrine begs the question as to whether it can actually establish that its continuance of Newcomb College is impractical, impossible, or illegal.

Because I find that Mrs. Newcomb’s donations imposed a condition upon the donations, absent a judgment under the cy pres doctrine declaring the continued operation of Newcomb College impossible or impractical, I find that Newcomb College must continue as a degree-granting college within Tulane University of Louisiana.

Finally, I note that the majority’s opinion sets a very bad precedent that if allowed to stand will discourage future donations to all charitable entities. Charitable giving is good and persons in our society should be encouraged, not discouraged, from make donations whether conditioned or not. That is, if a donor cannot rely upon an interested third party (such as a relative, heir, or one with some financial or other real interest in the charity) to force the charitable institution to honor in perpetuity the conditions of a donation, why would one make a donation |uin the first place? To assume the good faith of a charity that does not want to proceed under the cy pres doctrine to be relieved of the condition of a donation works fine in theory; in practice, I think someone ought to be able to state a cause and right of action to make the charity live up to its obligation when it so graciously accepted the conditional donation in the first place.

For the foregoing reasons, inter alia, I would reverse the trial court’s judgment and remand the ease for further proceedings consistent with herewith.

      . Greenwood Cemetery, Alice Bowman and William Robertson were Mrs. Newcomb’s only other legatees.

      . If the plaintiffs were solicited by the Tulane Board or its agent for a donation to the H. Sophie Newcomb Memorial College ("New-comb College”) for the purpose of operating a "college” and made a donation to Newcomb College for that purpose, they would have standing to assert that their donations were not being used as per the solicitation. That is, a failure of cause, as that term is classically understood under the Louisiana Civil Code, has occurred and the donors are entitled to the return of their donations.

      . The trial court's reasons for judgment do not address the plaintiffs’ right or standing to bring the instant action.

      . At a hearing on an exception of no right of action, evidence is admissible to resolve the exception. Exposition Partner, L.L.P. v. King, LeBlanc & Bland, L.L.P., 03-0580, p. 9 (La. App. 4 Cir. 3/10/04), 869 So.2d 934, 941.

      . Generally, when an exception of no right of action is maintained, the party is given the opportunity to supplement and/or amend the pleadings for purposes of removing the grounds of the pleaded objection. Sanborn v. Oceanic Contractors, Inc., 448 So.2d 91 (La.1984); Mauberret-Laire v. Lavie, 03-0099 (La.App. 4 Cir. 6/11/03), 850 So.2d 1.

      . See footnote 1 above.

      . See Braquet v. Administrators of the Tulane Educational Fund, 304 So.2d 720 (La.App. 4 Cir. 1974). Although the majority discusses this case at length, I find that the majority fails to fully understand all of the implications contained therein. Braquet makes no distinction as to whether the heir will ever receive anything from the decedent-donor; rather, the case stands for the proposition that successors have a right to see that their ancestor’s wishes are carried out as intended.

      . 11 Charles E. Aubiy & Charles Rau, DROIT CIVIL FRANQAIS § 727 (Paul Esmein rev., 6 ed. 1956, in 3 CIVIL LAW TRANSLATIONS 522 (Carlos Lazarus tr. 1969); 2 Gabriel Bau-dry-Lacantinerie & Maurice Colin, DES DONATIONS ENTRE VIFS ET DES TESTAMENTS n° 2803, at 391, in 10 TRAITE THÉORIQUE ET PRATIQUE DE DROIT CIVIL (2D ED. 1905); 6 Théophile Hue, COM-MENTAIRE DU CODE CIVIL n° 401, at 511 (1894); 5 Charles Demolombe, TRAITÉ DES DONATIONS ENTRE-VIFS ET DES TESTAMENTS n° 267, at 231, in 22 COURS DE CODE NAPOLÉON (1876); 15 Francois Laurent, PRINCIPES DE DROIT CIVIL FRAN-QAIS n° 250, at 275-76 (2d ed. 1876); 4 Raymond Troplong, DROIT CIVIL EXP-LIQUÉ: DES DONATIONS ENTRE-VIFS ET DES TESTAMENTS n° 2194, AT 363 (1855).

      . 11 Charles E. Aubry & Charles Rau, DROIT CIVIL FRANQAIS § 727 (Paul Esmein rev., 6 ed. 1956, in 3 CIVIL LAW TRANSLATIONS 522 (Carlos Lazarus tr. 1969); 2 Gabriel Bau-dry-Lacantinerie & Maurice Colin, DES DONATIONS ENTRE VIFS ET DES TESTAMENTS n° 2803, at 391, in 10 TRAITÉ THÉORIQUE ET PRATIQUE DE DROIT CIVIL (2D ED. 1905); 6 Théophile Hue, COM-MENTAIRE DU CODE CIVIL n° 401, at 511 (1894); 5 Charles Demolombe, TRAITÉ DES DONATIONS ENTRE-VIFS ET DES TESTAMENTS n° 267, at 231, in 22 COURS DE CODE NAPOLÉON (1876); 15 Francois Laurent, PRINCIPES DE DROIT CIVIL FRAN-QAIS n° 250, at 275-76 (2d ed. 1876); 4 Raymond Troplong, DROIT CIVIL EXP-LIQUÉ: DES DONATIONS ENTRE-VIFS ET DES TESTAMENTS n° 2194, AT 363 (1855).

      . Frangois Terré & Yves Lequette, DROIT CIVIL: LES SUCCESSIONS — LES LIBERAL-ITÉ n° 424, at 346, n. 4 (3d ed. 1997); 5 Marcel Planiol & George Ripert, TRAITÉ PRATIQUE DE DROIT CIVIL FRANQAIS: DONATIONS ET TESTAMENTS n° 726, at 902, n. 3 (André Trasbot & Yvon Loussouarn rev., 2d ed. 1957); 2 Gabriel Baudry-Lacan-tinerie & Maurice Colin, DES DONATIONS ENTRE VIFS ET DES TESTAMENTS n° 2806, at 392, in 10 TRAITÉ THÉORIQUE ET PRA-TIQUE DE DROIT CIVIL (2D ED. 1905); 6 Théophile Hue, COMMENTAIRE DU CODE CIVIL n° 401, at 511 (1894); 5 Charles Demo-lombe, TRAITÉ DES DONATIONS ENTRE-VIFS ET DES TESTAMENTS n° 268, at 231-32, in 22 COURS DE CODE NAPOLÉON (1876); 15 Frangois Laurent, PRINCIPES DE DROIT CIVIL FRANQAIS n° 248, at 273-74, & (2d ed. 1876).

      .According to the Tulane Board and the majority, no one has the capacity to enforce the terms and conditions of Mrs. Newcomb’s donations other than the Tulane Board. I find that proposition to be incredible if not ludicrous. See and compare footnote 1 above.

      . In both the 11 October 1886 letter making the initial $100,000 donation to the Tulane Board for the "H. Sophie Newcomb Memorial College” and the 12 May 1898 testament making a bequest to the "H. Sophie- New-comb Memorial College,” Mrs. Newcomb expressly and unequivocally made a donation to and for a college. The word "college” is not ambiguous in any way; Mrs. Newcomb’s donations were to and for a college as that term was understood in the ordinary course of communications in the years 1886 and 1898.

      . Contained in the record of the hearing on the preliminary injunction are several letters written by Mrs. Newcomb when she made the initial donation to the Tulane Board in 1886, handwritten minutes of Tulane Board meetings accepting the donation and discussing use of the donated funds, various resolutions passed by the Tulane Board regarding maintaining the separate identity of Newcomb College in keeping with Mrs. Newcomb’s dona-tive intent, et cetera.

      .Were not such donations intended by the solicitations for use by and for that women’s college and for no other entity or purpose?

      . The Tulane Board goes so far as to separate these into paragraphs in its typewritten version of Mrs. Newcomb’s donation. The alleged 'non-restricting” language is contained in one single paragraph and should be read and interpreted accordingly.

      . A university consists, by definition, of more than one college. One cannot have a university with only one college.

      . The majority apparently places emphasis on the fact that no one applied for admission to Newcomb College in 2006. This is true, but only because Newcomb College refused to accept applications to Newcomb College in 2006 and-thereafter.

      . The Tulane Board argues, and the majority agrees, that because Mrs. Newcomb's will does not impose any conditional obligation on her testamentary bequest, the cy pres doctrine does not apply. I disagree for the reasons articulated in detail above. I suggest, however, there are several things the Tulane Board could do to ensure continued operation of the college — i.e., redesign the college's curriculum by eliminating all or most electives; assign regular Tulane faculty as Newcomb teaching staff part-time, paying such staff from both Tulane and Newcomb's separate accounts on a proportional basis; et cetera.


author: ROLAND L. BELSOME, Judge. TOBIAS, J.,

text:
    Myra Maudra MUNSTER, Christen Cook and John Cook v. BILL WATSON FORD, INC., Ford Motor Company and Don Bohn Ford, Inc.
    No. 2007-CA-0294.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.

      R. Glenn Cater, Cater and Associates, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Kevin R. Tully, H. Carter Marshall, Christovich & Kearney, L.L.P., New Orleans, LA, for Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge, ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Plaintiffs-Appellants appeal the trial court’s judgment granting Defendant-Ap-pellee’s exception and dismissing Defendant-Appellee with prejudice. For the reasons that follow, we reverse and remand.

FACTS

Plaintiff-Appellant Myra Maudra Munster purchased a 1995 Ford Windstar van from Bill Watson Ford in New Orleans in September 1995. On July 10, 1998, Ms. Munster lost control of the vehicle and had an accident, in which Ms. Munster’s husband, Peter Munster, and minor daughter, Jennifer Cook, were killed. Myra Munster, Christen Cook and John Cook (hereinafter collectively “Appellants” or “Plaintiffs”) thereafter filed a products liability suit on July 9, 1999, naming as defendants the dealer who sold the vehicle, Bill Watson Ford, Inc., the dealer who serviced the vehicle, Don Bohn Ford, Inc., and the manufacturer, Ford Motor Company.

^PROCEDURAL HISTORY

A scheduling conference was set by the trial court for March 20, 2003. After the conference, proposed deadlines were circulated between the parties. The subsequently agreed-upon deadlines were memorialized in correspondence that was drafted by counsel for Appellants on March 27, 2003, and then signed by all counsel on April 3, 2003. The correspondence included a deadline of all supplemental pleadings to be filed or served on or before May 1, 2003.

In September 2004, counsel for Don Bohn Ford, Inc. filed a Motion to Recognize Stipulated Cutoff and Deadline Dates, which referenced the April 3, 2003 correspondence and the agreed-to dates contained therein. The motion, opposed the setting of any new deadlines. After a hearing on the motion, the trial court signed a judgment dated January 31, 2005, ordering that the April 3, 2003 established deadlines would be enforced by the court. The judgment specifically referenced four deadlines, including the May 1, 2003 deadline for all supplemental pleadings.

On April 29, 2005, counsel for Plaintiffs filed a Motion for Leave to Supplement and Amend the petition for damages. The motion stated that “Defendant, Ford Motor Company, has identified an additional defendant through the course of discovery” and that Plaintiffs wished to add the newly discovered defendant. The order granting Plaintiffs permission to amend their petition was signed by the trial court on May 2, 2005.

|sThe Plaintiffs’ First Supplemental and Amending Petition added Paulstra CRC Corporation (“Paulstra”) as a Defendant. Paulstra was the entity that constructed and designed the motor-mount system that was installed on the Ford Windstar van. When answering the petition, Paulstra excepted, asserting that Plaintiffs had not obtained leave of court and also that the deadline for filing supplemental pleadings had passed. Paulstra’s exception was heard on May 12, 2006, with counsel for Plaintiffs present. On June 2, 2006, the trial court signed a judgment granting Paulstra’s exception to Plaintiffs’ petition, dismissing Paulstra with prejudice from the litigation. This appeal followed.

DISCUSSION

In their sole assignment of error, Appellants assert that the trial court erred in granting Paulstra’s exception. We agree.

Provided that it is not contrary to law, a trial court’s rulings in pretrial matters are generally given great deference absent an abuse of discretion. State v. Fleming, 2002-1700, p. 13 (La.App. 4 Cir. 4/16/03), 846 So.2d 114, 131. Additionally, trial courts enjoy great discretion with regard to modification or enforcement of pre-trial orders. See La. C.C.P. Art. 1551. We find that the |4January 31, 2005 judgment signed by the trial court is fundamentally a pre-trial order, as it merely recognized the cutoff dates from May through September of 2003 regarding supplemental pleadings, witnesses, experts, and discovery, all of which are pre-trial matters.

This broad discretion with respect to pre-trial matters is governed by the principle “that it must be exercised to prevent substantial injustice to the parties who have relied on the pre-trial rulings or agreements and structured the preparation and presentation of their cases accordingly.” McDuffie v. ACandS, Inc., 2000-2779, p. 2 (La.App. 4 Cir. 2/14/01), 781 So.2d 628, 631 Accordingly, a court may modify a pre-trial order to prevent manifest injustice. McDuffie, p. 2, 781 So.2d at 631 (citing La. C.C.P. art. 1551; Austrum v. City of Baton Rouge, 282 So.2d 434 (La.1973)). “In deciding whether to modify a pretrial order, a trial court must be ever mindful of the fact that the objective of our legal system is to render justice between the litigants upon the merits of the controversy rather than to defeat justice upon the basis of technicalities.” McDuffie, supra, 781 So.2d at 631 (citing Naylor v. Louisiana Dept. of Public Highways, 423 So.2d 674, 679 (La.App. 1 Cir. 1982), writ denied, 427 So.2d 439 (La.1983), and writ denied, 429 So.2d 127 (La.1983) and writ denied, 429 So.2d 134 (La.1983)).

In this case, the trial court dismissed with prejudice the non-party defendant that Appellants sought to add to their unprescribed claim, even though the trial court had granted Appellants’ motion for leave to amend their petition. Pursuant to the res judicata doctrine and Louisiana case law, a dismissal with prejudice has the effect of a final judgment of absolute dismissal and constitutes a bar on the same cause of action. La.C.C.P. art. 1673; Dean v. The City of New Orleans, 2005-1347, p. 3 (La.App. 4 Cir. 7/12/06), 936 So.2d 851, 852. A dismissal with prejudice is a severe penalty that should be reserved only for extreme circumstances. Allen v. Smith, 390 So.2d 1300, 1301 (La.1980); L & M Hair Products, Inc. v. State, Dept. of Transp. & Dev., 29,998, p. 5 (La.App. 2 Cir. 12/10/97), 704 So.2d 415, 418-19. Although Appellants did not explicitly assign as error the trial court’s dismissal of Paulstra with prejudice from the litigation, we nonetheless find that this was both |fian abuse of discretion and legal error, and find it appropriate to conduct a de novo review. Evans v. Lungrin, 97-0541, 97-0577, p. 7 (La.2/6/98), 708 So.2d 731, 735.

We find that the facts of this case do not rise to the level of extreme circumstances necessitating the drastic penalty of a dismissal with prejudice. First, the omission of a trial date from the January 31, 2005 order negates the premise that the deadlines carried a high level of urgency. Second, Appellants provided reasons for amending the petition past the deadline to file amended pleadings; namely, that the information regarding Paulstra was not obtained through the course of discovery until that point in time. Third, Appellants submit that the motor-mount system is the very foundation of Appellants’ defective product allegations, and that Paulstra, as the entity that constructed and designed the motor-mount system, is thus an integral party to the litigation. Pursuant to La. Civ.Code art. 2324(B), Paulstra’s alleged liability could be accounted for even if Paulstra is not added as a defendant. Appellants will have then lost the opportunity to recover |7for any responsibility potentially assigned to Paulstra. Finally, we note that the language of Article 1673 reads:

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.

La.C.C.P. art. 1673 (emphasis added). Moreover, the relevant portion of Article 1672, the provision regarding involuntary dismissal, provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

La.C.C.P. art. 1672(B)(emphasis added).

Accordingly, we find that, considering the language of La. C.C.P. arts. 1672(B) and 1673, combined with the particular facts and circumstances of this case, the trial court committed legal error in dismissing Paulstra with prejudice without any consideration of the merits of Appellants’ claims. Moreover, we find that because no prejudice will result from adding Appellants’ viable claim against Paulstra, we reverse the trial court’s dismissal of Paulstra.

CONCLUSION

The judgment granting the exception in favor of Paulstra and dismissing Paulstra with prejudice is hereby reversed and the matter remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

TOBIAS, J., Concurs and Assigns Reasons.

TOBIAS, J.,

Concurring.

hi respectfully concur in order to assign additional reasons in support of the majority’s decision.

Even assuming that the trial court was correct and did not abuse its discretion in dismissing Paulstra CRC Corporation as a party defendant because the late addition of it as a party violated a pretrial order, nothing prevented the plaintiffs/appellants from filing a separate suit against Paulstra and thereafter, as mandated by rules of court, moving for consolidation of the suits for trial. (Judicial economy would warrant such a result.) Whether Paulstra is a joint or solidary obligor, the filing of suit against the remaining defendants interrupted prescription against all potential defendants. See La. C.C. arts. 1793 and 2324 C. The plaintiffs merely chose the more direct method: filing a supplemental and amending petition adding Paulstra. The trial court by its 2005 order granted the supplementation and amendment.

This is not a unique case. Substantially similar things occurred in Dubuclet v. St. Paul Fire and Marine Ins. Co., 94-0708 (La.App. 4 Cir. 12/15/94), 647 So.2d 1344.

      . The January 31, 2005 judgment did not reference a trial date.

      . Paulstra CRC Corporation ("Paulstra”) submits that neither Paulstra nor Don Bohn Ford, Inc. was provided with a copy of Plaintiffs' Motion for Leave of Court and the signed order. The record reflects that Don Bohn Ford, Inc. filed a Motion to Strike the Supplemental and Amending Petition on June 24, 2005, asserting that Plaintiffs did not obtain leave of court or written consent of the parties. The motion also noted the pre-existing deadline of May 1, 2003 to file supplemental pleadings, and attached the January 31, 2005 order to its memorandum in support of the motion to strike. Plaintiffs subsequently filed a second motion for leave, which was granted by the trial court on May 3, 2006.

      . A trial court's determination of whether to allow amendments to pleadings after answers are filed is likewise reviewed on appeal under the abuse of discretion standard. See Gowland v. State, 1998-1413, p. 2 (La.App. 4 Cir. 6/24/98), 716 So.2d 909, 910.

      . La. C.C.P. Art. 1551 provides:
      A.In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following:
      (1) The simplification of the issues, including the elimination of frivolous claims or defenses.
      (2) The necessity or desirability of amendments to the pleadings.
      (3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted.
      (4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence.
      (5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702.
      (6) The control and scheduling of discovery.
      (7) The identification of witnesses, documents, and exhibits.
      (8)Such other matters as may aid in the disposition of the action.
      B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
      C. If a party's attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471(2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.

      ."The trial court also has the discretion to extend discovery deadlines and should do so in cases where it is necessary in order to prevent manifest injustice.” McDuffie, supra, 781 So.2d at 631.

      . The Louisiana Supreme Court has noted that this rule has been observed by many federal courts as well. Allen v. Smith, 390 So.2d 1300, 1301 (La.1980) (citations omitted).

      . See La C.C.P. art 2164; see also Ducombs v. Nobel Ins. Co., 2003-1704, p. 10 (La.App. 4 Cir. 7/21/04), 884 So.2d 596, 602 (noting that "[u]nder La. C.C.P. art. 2164, the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal”).

      . We note that this Court, in Youngblood v. Kambur, 94-2458 (La.App. 4 Cir. 1/19/96), 668 So.2d 459, held that a trial court’s sanction of a dismissal with prejudice for a plaintiff's failure to comply with a pre-trial order was unreasonable, and amended the judgment to a dismissal without prejudice. This Court found that the plaintiff sought "excessive continuances” and displayed "an apparent lack of any intent to comply with discovery requests” and a "lack of any reasonable excuse for failure to comply with the pretrial order.” Youngblood, 668 So.2d at 460-61. However, this Court found that the most severe penalty that should be imposed for this flagrant disregard for any deadlines or mandates in the pretrial order was a dismissal ■without prejudice. While Youngblood also involved an issue regarding whether the plaintiff had a reasonable opportunity to be heard (the judge was ill on the date of the hearing and ordered the parties to present arguments to the court reporter; the judge then based his ruling on the transcript of the hearing and the parties’ briefs), we find that Youngblood is nonetheless instructive, as the actions of the plaintiff in Youngblood are in sharp contrast to Appellants’ request, which was granted, to amend their petition beyond the previously agreed-to deadline for supplemental pleadings.

      . La. Civ.Code art. 2324(B) provides:
      If liability is not solidaiy pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.