author: MARC E. JOHNSON, Judge.

text:
    2800 ASSOCIATES, L.L.C. v. EAGLE EQUITY LIMITED PARTNERSHIP # 3, et al.
    No. 10-CA-687.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      Stephen I. Dwyer, Robert Knights, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant, 2800 Associates, L.L.C.
    Gary J. Rouse, Jason A. Cavignac, Attorneys at Law, New Orleans, LA, David F. Sherman, Attorney at Law, Metairie, LA, for Defendani/Appellee (Eagle Equity Limited Partnership # 3).
    Stewart E. Niles, Jr., Bryan J. Knight, Attorneys at Law, New Orleans, LA, for Defendant/Appellee (Stein Mart, Inc.).
    Panel composed of Judges CLARENCE E. McMANUS, MARC E. JOHNSON, and ROBERT L. LOBRANO, Pro Tempore.
   MARC E. JOHNSON, Judge.

12This appeal arises from a judgment rendered in favor of Plaintiff/Appellant, 2800 Associates, L.L.C., in part, and in favor of Defendants/Appellants, Eagle Equity Limited Partnership #3 (“Eagle”) and Stein Mart, Inc. (“Stein Mart”), in part, from the 24th Judicial District Court, Division “A”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, on September 20, 1965, Lane L. Meltzer acquired from Tri-Color Investments a parcel of land on Veterans Highway in Metairie, Louisiana known as Lot X. The act of sale for this transaction was recorded in the mortgage and conveyance records at COB 622, Folio 219. Lot X included the property at the corner of Whitney Place, which would eventually become Lot X-A and Lot X-B.

On June 10, 1966, Mr. Meltzer, as Lessor, leased a certain parcel of land situated on the Veterans Highway site to Barker’s 413 Corp. (“Barker’s”) as lessee. That lease was recorded at COB 976, Folio 919, and confirmed that Mr. Meltzer |3was to construct a one-story building containing a total area of approximately 66,200 square feet.

On July 8, 1977, and amendment to Barker’s lease was recorded into the public records at COB 976, Folio 925. The amendment to the lease provided, in pertinent part:

2. In the Lease provisions for loading were provided to Lessor on portions of the property cross hatched on the plan annexed hereto as Exhibit B, which shaded portions are in the rear of Lot Z not included within the Lease to Lessee, and Lessee does hereby relieve and release and forever relinquish any rights of, in, and to said portions cross hatched on Exhibit B annexed hereto ...
3. Lessor agrees that Lessor shall not construct any buildings or improvements in the rear forty-one feet (south end of Lot Z), which area is cross hatched on Exhibit A annexed hereto, which forty-one feet may be utilized by Lessee in no expense to Lessor for ingress and egress for loading and unloading purposes only to accommodate the store of Lessee on the leased premised, the Lessor shall have the right likewise to utilize said 41 feet for any purposes whatsoever so long as such uses do not obstruct the ingress and egress of Lessee for such loading and unloading purposes. (Emphasis added).

In 1977, the Jefferson Parish Council, by Ordinance No. 12998, approved and accepted a Plan of Re-subdivision dated July 20, 1977, which was recorded to COB 903, Folio 195, showing the re-subdivision of Lot X into Lot X-A and Lot X-B. On September 5, 1978, a Plan of Survey was prepared by R.L. Shumann. The Plan of Survey was attached to and made a part of an Act of Mortgage by Mr. Meltzer dated September 15, 1978, and recorded in MOB 747, Folio 59. Mr. Shumann made annotation on the 46' servitude shown on the survey which read “8 x 9.5 black building with trash compactor hookup.”

On September 15,1978, Mr. Meltzer and his then wife executed and recorded a servitude of use. The servitude of use, which was recorded at COB 938 provides, in pertinent part: “A non-exclusive servitude for ingress and egress for |4loading and unloading purposes only, over and across the following described property, to wit:” (The property described is the 46' servitude that runs along the rear of Lot X-A.) This servitude extends from the East boundary of Lot X-A to the West boundary of Lot X-A, which is up to the East property line of Lot X-B. Accordingly, Lot X-B is the dominant estate, and Lot X-A is the servient estate.

On June 9, 1992, the 1978 Servitude was acknowledged and re-adopted in a “Servitude of Ingress and Egress and Use” (“the 1992 Servitude”). This servitude was recorded in COP 2708, Folio 39. The 1992 Servitude provides, in pertinent part:

The cost of paving and the building necessary facilities for access, ingress and egress to the loading and parking areas on XB and the cost of maintaining improvements to the strip subject to the 46-foot servitude including any taxes or assessments attributable to any such facilities and/or improvements shall be borne by XB owners.

Subsequent to the signing of the 1992 Servitude, Eagle acquired Lot X-B.

On September 26, 1990, Stein Mart entered into an agreement to sublease a portion of the store leased by Mr. Meltzer to Barker’s, which was recorded in the public records on October 24, 1990 at COB 2375, Folio 189. Stein Mart placed the first of the three freight containers on the 46' servitude in 1996. The last of the three freight containers was placed on the servitude in 1998.

On October 31, 1997, Plaintiff acquired its property via an Act of Cash Sale. In the description of the property acquired, Lot X-A is described, in pertinent part, as a

piece or portion of ground is designed by the LOT NO ‘XA’ on that certain re-subdivision plan of R.L. Shumann, Land Surveryor, dated July 20, 1977, approved by the Jefferson Parish Council by virtue of the ordinance No. 12998, adopted on August 11, 1977, which ordinance is registered on COP 903, folio 195 ...

In addition, the Act of Sale also provided,

TO HAVE AND TO HOLD the above-described Property unto the said Purchaser and Purchaser’s successors, heirs and assigns forever, subject in all respects, however, these matters described on Exhibit A attached hereto and incorporated herein.

The “Exhibit A” referred to in the Act of Sale provides, in pertinent part:

2. Access Servitudes of 46' and 26" across Lot X-A as shown on the survey of R.L. Shumann, dated February 26, 1979, revised March 22, 1979, created by Act of Servitude of Use dated September 15, 1978, registered in COB 938, fojio 375, by Lane Meltzer, et al to Barker’s 413 Corp., ...
8. Servitude of Ingress and Egress and Use dated June 9, 1992, registered in COB 2078, Folio 039 by and between Lane Meltzer, et al between Lots X-A and X-B.

On April 25, 2006, Plaintiff forwarded correspondence to Stein Mart, through its landlord, requesting that it cease and desist its use of the 46' servitude for ingress and egress, loading and unloading, receipt and shipping of merchandise, use of trash compactor and waste removal, storage, use of storage containers, access to storage facilities, and other related activities. On July 11, 2006, Plaintiff filed a Petition against Eagle for specific performance, damages, dissolution and injunctive relief. The Petition was later amended to include Stein Mart as a defendant.

Stein Mart filed an Answer and Reeon-ventional Demand to Plaintiffs petition. Stein Mart prayed for specific performance to allow the use of the trash compactor and freight containers, a declaratory judgment, damages and attorney’s fees.

Plaintiff filed a Motion for Partial Summary Judgment seeking the issuance of a permanent injunction. The trial court denied the motion on April 12, 2007. Eagle and Stein Mart also filed Motions for Summary Judgment or, alternatively, Partial Summary Judgment. Those motions were denied on June 18, 2007.

The trial for this matter was conducted on October 5, 2009, after which the 16trial court took the matter under advisement. The trial court issued it judgment on November 5, 2009, essentially requiring the removal of the freight containers and refusing the removal of any other object. The trial court also denied the request for damages by Plaintiff and Stein Mart’s re-conventional demand.

Plaintiff filed a motion for new trial. The motion was heard on February 4, 2010 and was denied on April 12, 2010. From that judgment, the instant appeal was filed. Prior to the oral arguments with this Court, Eagle and Stein Mart filed Peremptory Exceptions of Prescription seeking to dismiss all of the trespass claims raised by Plaintiff. We will now address the exceptions.

Peremptory Exceptions of Prescription

In their exceptions, Stein Mart and Eagle assert that all of Plaintiffs trespass claims, including any claims for trespass damages, are prescribed and should be summarily dismissed. Stein Mart and Eagle aver that Plaintiffs trespass claims are facially prescribed because Plaintiff had one year from the date it acquired or should have acquired actual knowledge of the damage or one year from the date of Plaintiffs constructive knowledge.

Stein Mart and Eagle argue the trash compactor was present on the 46' servitude long before Plaintiff acquired its property, and the last of the three freight containers was placed on the servitude no later than 1998. Also, Stein Mart and Eagle argue that a representative of Plaintiff testified that both the trash compactor and the freight containers were open and obvious to anyone who viewed the 46' servitude. As such, Stein Mart and Eagle assert Plaintiff had actual and/or constructive knowledge of the trash compact and the freight containers at least eight years prior to filing the action, and the action is facially prescribed.

Additionally, Stein Mart and Eagle assert the trash compactor and freight containers do not constitute “continuing trespasses” that interrupt prescription and cite Hogg v. Chevron USA, Inc., 09-2632 (La.7/6/10); 45 So.3d 991, 1001 as their authority. Stein Mart and Eagle argue it was a one-time act of placing the trash compactor and freight containers on the 46' servitude, which does not constitute a continuing trespass but merely the “continued effect” of the original placement. Thus, Stein Mart and Eagle contend the one year prescriptive period was not interrupted by the placement of the trash compactor and/or freight containers, and Plaintiffs trespass claims have prescribed.

Adversely, Plaintiff asserts Stein Mart and Eagle have conflated the notions of trespass as a tort with trespass as a breach of a pre-existing contract. Plaintiff argues that its Petition alleges a breach of a servitude agreement, which is a contractual breach, not a tort. Plaintiff also argues that Hogg addresses tortious conduct that does not apply to this case. Consequently, Plaintiff avers Stein Mart and Eagle’s Peremptory Exceptions of Prescription should be denied.

We agree with Plaintiffs position that the one-year prescriptive period does not apply to this action. Throughout the Petition, Plaintiff alleges the acts of Stein Mart and Eagle violate a servitude agreement, asks for specific performance, and prays for damages associated with the alleged breach of contract. Accordingly, we deny Stein Mart and Eagle’s Peremptory Exceptions of Prescription.

ASSIGNMENTS OF ERROR

On appeal, Plaintiff alleges the trial court erred by 1) refusing to grant Plaintiffs Motion for New Trial, 2) denying Plaintiffs request to order the removal of the trash compactor from the access servitude, which was contrary to the law and evidence, and 3) denying Plaintiffs request for damages for Defendants’ infringement of the access servitude, which was also contrary to the law and evidence.

In its Answer, Defendant, Stein Mart, alleges the trial court erred in holding the freight/storage containers were a violation of the September 15, 1978 Servitude of Use and the June 8, 1992 Servitude of Ingress and Egress and Use. As a result, Stein Mart prays for this Court to reverse permanent injunction against it from maintaining any freight or storage containers on the 46' servitude situated on Lot X-A. Stein Mart also prays to have the portion of the judgment denying its reconventional demand reversed.

LAW AND ANALYSIS

Denial of Motion for New Trial

Plaintiff avers the trial court abused its discretion when its Motion for New Trial was denied. Consequently, Plaintiff asserts the trial court’s abuse of discretion results from a conclusion reached capriciously, or in an arbitrary manner.

Denial of a motion for new trial is an interlocutory and non-appealable judgment. Smith v. Smith, 08-575, p. 11 (La.App. 5 Cir. 1/12/10); 81 So.3d 453; Roger v. Roger, 99-765, p. 3 (La.App. 5 Cir. 1/12/00); 751 So.2d 354, 356. However, the Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant’s brief that he intended to appeal the merits of the case. Id.; See, e.g., Punctual Abstract Co. Inc. v. U.S. Land Title, 09-91, p. 5 (La.App. 5 Cir. 11/10/09); 28 So.3d 459. It is obvious from Plaintiffs brief that it intended to appeal the merits of judgment rendered on November 5, 2009. We will consider the appeal from this judgment.

Denial of the request to remove the trash compactor

Plaintiff argues that the trial court erred in denying the requested removal of the trash compactor from the access servitude. Plaintiff avers the plan attached to Eagle’s mortgage is not evidence of what the parties under the 1978 or 1992 | ^Servitudes contracted for, or contemplated, in those documents. As a result, Plaintiff argues the only relevant evidence is the language of the servitude agreement itself.

Because the placement of the trash compactor is not a permitted use under the 1992 servitude of ingress and egress, Plaintiff further argues that it is a violation and a trespass that should have been ordered to be removed. Plaintiff avers if the trash compactor was contemplated by the parties of the servitude as being part of a the right of use, it would have been specified, or even alluded to in the working of the 1978 servitude at the time of its creation or in the 1992 revision of the servitude. In the alternative, Plaintiff also argues that even if the trash compactor itself had actually been there since 1978, the filing of its action in 2006 would have interrupted bad faith acquisitive prescription.

Eagle asserts the trial court was correct in denying the removal of the trash compactor because it has been an actual permitted use for unloading the retail store located on Lot X-B since Barker’s took possession in the 1960’s and is clearly recognized in the 46' servitude, which was created when the property was subdivided. Eagle avers the trash compactor was physically in place and in use on the 46' strip of land prior to the creation of the 1992 servitude. Because the trash compactor was on the servitude when Plaintiff purchased Lot X-A, even if it is not considered permissible under the predial servitude, Eagle contends that it is a permissible use as an expanded use of the personal servitude and is susceptible of being acquired through acquisitive prescription.

Stein Mart avers there was ample evidence to support the trial court’s conclusion that the use of the trash compactor was appropriate pursuant to the 1978 and 1992 Servitudes. Stein Mart asserts the parties to the servitudes did contemplate the ongoing use of a trash compactor on Lot X-B, when both of the | l0servitudes at issue were executed after the trash compactor was already in place on Lot X-B and is confirmed in the public records. Stein Mart further asserts the 1992 Servitude granted both a predial and personal servitude, both of which allowed the use of a trash compactor and considered it as a necessity. Additionally, Stein Mart contends that it obtained the right to use the trash compactor through acquisitive prescription.

Generally, a contract, subject to interpretation on the four corners of the instrument without the necessity of extrinsic evidence, is interpreted as a matter of law. New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1438, p. 9 (La.App. 4 Cir. 5/26/10); 40 So.3d 394, 401, citing Bartlett Constr. Co., Inc. v. St. Bernard Parish Council, 99-1186, p. 6 (La. App. 4 Cir. 5/31/00); 763 So.2d 94, 98. The appellate standard of review with regard to contractual interpretations is as follows:

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is whether the trial court was legally correct or legally incorrect.

Id., citing Clinkscales v. Columns Rehabilitation and Retirement Center, 08-1312, p. 3 (La.App. 3 Cir. 4/1/09); 6 So.3d 1033, 1035-1036.

The manifest error standard of review does not allow the appellate court to reweigh the evidence or substitute its own factual findings. Kuebel v. Charuet’s Garden Center, Inc., 09-635, p. 17 (La. App. 5 Cir. 12/29/09); 30 So.3d 885, 895. Where there are two permissible views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or plainly wrong. Id.

When the terms of a contract are susceptible to more than one interpretation, In or there is uncertainty or ambiguity as to its provision, or the intent of the parties cannot be ascertained from the language employed, or fraud is alleged, parole evidence is admissible to clarify the ambiguity, show the intention of the parties, or prove fraud. Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 927 (La.App. 1 Cir.1989), citing Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981). In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. Id.; LSA-C.C. art. 2045. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. Id. at 928; D'Antonio v. Simone, 94-798, p. 6 (La.App. 5 Cir. 3/15/95); 653 So.2d 678, 680.

In its Judgment, the trial court found that the presence of the trash compactor on the 46' servitude situated on Lot X-A is appropriate and consistent with the September 15, 1978 Servitude of Use and the June 8, 1992 Servitude of Ingress and Egress and Use. The trial court concluded the public record indicated that a trash compactor hook-up has been located on the servitude since, at least, September 5, 1978, when the first servitude agreement was executed and recorded. The trial court further found the use of the trash compactor was obviously contemplated by the parties as an accessory right related to loading and unloading and necessary to remove trash from Lot X-B. Ultimately, the trial court concluded the trash compactor does not constitute a trespass, and Plaintiffs request for removal was denied.

After review, we find the 1978 and 1992 Servitudes were ambiguous as to exactly what is considered as a necessary facility for access, ingress and egress and is susceptible to more than one interpretation. Consequently, we find the interpretation of the servitudes at issue in this matter by the trial court contained pertinent factual findings regarding the trash compactor. There is sufficient | ^evidence in the record to support the trial court’s findings. As a result, we do not find that the trial court was manifestly erroneous in making the factual finding that the trash compactor was contemplated by the parties for loading and unloading, was necessary to remove trash from Lot X-B and does not constitute a trespass.

Therefore, we do not find the trial court erred in denying the removal of the trash compactor from the 46' servitude.

Denial of damages

Plaintiff argues the trial court erred by not awarding any damages for the trespassing of the trash compactor. Plaintiff asserts it suffered damages in this matter in the form of lost rental income from the use of the servitude for storage.

It is only after an articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient. Burgard v. Allstate Ins. Co., 04-1394, p. 23 (La.App. 5 Cir. 5/31/05); 904 So.2d 867, 880, citing Baudier v. Cheron, 04-5, p. 12-13 (La.App. 5 Cir. 5/26/04); 876 So.2d 165, 172. Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Id.

Because we previously found the trial court was not manifestly erroneous in finding the trash compactor was necessary for loading and unloading and was not a trespass, we find the trial court did not err in denying Plaintiffs claims for damages for the alleged trespassing of the trash compactor. Accordingly, we will not disturb the trial court’s ruling on this issue.

Removal of the freight/storage containers and permanent injunction

Stein Mart asserts the trial court erred by permanently enjoining it from placing its freight containers on the 46' servitude because it believes the use of the freight containers is appropriate pursuant to the 1992 Servitude. Stein Mart argues 1 i¡jthe freight containers are necessary components of its loading and unloading activities. Additionally, Stein Mart argues that, at minimum, its right to utilize the freight containers is an accessory right necessary for use of the 1992 servitude.

In its Judgment, the trial court ruled that the presence of any freight/storage containers on the 46' servitude situated on Lot X-A is a violation of the September 15, 1978 Servitude of Use and the June 8, 1992 Servitude of Ingress and Egress and Use. Additionally, the trial court permanently enjoined Stein Mart and Eagle from maintaining any freight or storage containers on the 46' servitude situated on Lot XA.

We consider the trial court’s interpretation of the servitudes regarding the freight/storage containers to be a factual finding. As such, we must review the trial court’s factual finding under the manifest error/clearly wrong standard. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, supra. After review of the record, there is sufficient evidence present to support the trial court’s finding that the freight/storage containers are a violation of the 1978 and 1992 servitudes. Consequently, we cannot find the trial court was manifestly erroneous in its ruling and find no error in the trial court’s granting of the permanent injunction in favor of Plaintiff.

Accordingly, we will not disturb the ruling of the trial court on this issue.

Denial of reconventional demand

Stein Mart seeks a reversal of the trial court’s refusal to grant its request for specific performance from Plaintiff, request for damages for the alleged breach and/or anticipatory breach of contract, request for a declaratory judgment, request for all other damages, and request for attorney’s fees.

Based upon our previous findings, we do not find that Stein Mart is entitled to the specific performance, declaratory judgment and damages requested; nor is it 114entitled to attorney’s fees, which can only be bestowed where authorized by statute or contract. See Brier Lake, Inc. v. Jones, 97-2413, p. 16 (La.4/14/98); 710 So.2d 1054, 1061. Therefore, we will not disturb the ruling of the trial court on this issue.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. All parties to this matter are assessed their own costs for this appeal.

AFFIRMED.

LOBRANO, J., Concurs in the Result.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Earl T. CARR, Jr. v. Daniel G. ABEL and XYZ Insurance Co.
    No. 10-CA-835.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Writ Denied June 3, 2011.

      David L. Browne, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Aaron F. Broussard, Daniel G. Abel, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|2In this legal malpractice proceeding, plaintiff appeals from a judgment of the trial court dismissing his original action. Plaintiff also argues that the trial court erred in failing to strike the entire recon-ventional demand filed by defendant. For the reasons stated herein, we affirm.

Earl T. Carr, Jr. filed the instant petition against his former attorney, Daniel G. Abel and Abel’s insurer alleging that he retained Abel to represent him and his company Carr & Associates in underlying litigation filed against Carr in St. Tammany Parish by the Louisiana State Bar Association (“LSBA”). Carr alleged that Abel was negligent in his representation and was therefore liable for damages, penalties and costs.

In the underlying litigation, the LSBA sought an injunction against Carr, an insurance adjuster, on the basis of his alleged unauthorized practice of law. During the course of the proceedings, the trial court granted a temporary restraining order and preliminary injunction in favor of the LSBA |sand against Carr. According to the instant petition, Carr informed Abel that he desired to appeal from this ruling, yet Abel failed to initiate the appeal process in a timely manner. Carr alleged that a timely filing of an appeal would have resulted in a reversal of the trial court’s injunction, and that Abel’s failure to perfect the appeal caused him substantial damage.

In response to Carr’s petition, Abel filed a pleading entitled, Exceptions, Affirmative Defenses, Reconventional Demand, Answer and Notice of La. C.CArt. 863 Violations. Essentially, Abel alleged that after the entry of the preliminary injunction, Carr retained new counsel, Scandurro & Layrisson, L.L.C., and that the trial court subsequently ruled against Carr and granted a permanent injunction in favor of the LSBA. Further, Abel alleged that following the entry of the preliminary injunction against Carr, he took a writ directly to the Louisiana Supreme Court, which denied writs and failed to reverse the lower court’s ruling. According to Abel’s allegations, both the entry of a permanent injunction and the denial of writs by the Supreme Court absolved Abel of any negligence due to his actions in representing Carr in this matter.

In his reconventional demand, Abel named several defendants: Carr, Carr & Associates, the law firm of Scandurro & Layrisson, L.L.C., Jean-Paul Layrisson and their insurers. Abel alleged that both Carr and his current counsel, Layrisson, were aware of the baseless allegations contained in the legal malpractice proceeding filed against Abel. Abel thus sought damages in tort for abuse of process, negligent misrepresentation, negligent misinformation and defamation.

In response to Abel’s pleading, Carr filed a Motion to Strike the pleading in whole or in part on that basis that it was both premature as well 14as immaterial and it contained scandalous and unethical allegations. In addition, defendants-in-recon-vention, Jean-Paul Layrisson and Scan-durro & Layrisson, filed a special Motion to Strike pursuant to La. C.C.P. art. 971. Defendants also filed Exceptions of Prematurity and No Cause of Action to Abel’s pleadings.

Following a hearing in this matter on September 24, 2009, the trial court took note of the fact that the permanent injunction judgment was not yet final as Carr had taken a supervisory writ. The trial court thus stayed all proceedings in this legal malpractice action pending a ruling from the Louisiana Supreme Court in the underlying litigation between the LSBA and Earl Carr.

On May 6, 2010, Daniel Abel filed a Motion to Lift Stay and Dismiss Carr’s Original Action on the basis that the Supreme Court denied Carr’s writ application seeking review of the trial court’s permanent injunction. On May 13, 2010, Jean-Paul Layrisson and the law firm of Scan-durro & Layrisson, L.L.C. filed a similar Motion to Strike as well as a motion to Reset its Exceptions for Hearing.

Following a hearing which was held on June 1, 2010, the trial court lifted the stay and granted Abel’s Motion to Dismiss Carr’s original legal malpractice action. The trial court also granted the Exceptions of Prematurity as to all of Abel’s third party demands against Sandurro & Lay-risson, L.L.C. and Jean-Paul Layrisson and against Earl Carr, Jr. and Carr & Associates, Inc. Finally, the trial court granted in part Carr’s Motion to Strike certain paragraphs of Abel’s reconventional demand. The trial court also certified this judgment as appealable pursuant to La. C.C.P. art. 1915(B). This appeal follows.

|sOn appeal, Carr contends that the trial court erred in granting Abel’s Motion to Dismiss his legal malpractice claims. Carr argues that Abel was negligent in his representation during the preliminary injunction stage of the proceedings, and this negligence caused Carr to suffer economic damages. Carr argues that although the Supreme Court denied writs on the permanent injunction ruling, it did not negate Abel’s acts of malpractice in failing to timely appeal the preliminary injunction nor did it mean Carr did not suffer damages as a result of Abel’s malpractice. Further, Carr alleges he should have been allowed to pursue his claims to recover the amounts paid to Abel for unsatisfactory legal work.

To establish a claim for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship, negligent representation by the attorney, and loss caused by that negligence. Failure to prove any one of these elements is fatal to the claim. Holland v. Hornyak, 07-894 (La.App. 5 Cir. 11/27/07), 971 So.2d 1227, 1231, writ denied, 08-333 (La.4/25/08), 978 So.2d 366; Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 138.

An attorney is liable to his client for the damages caused by the attorney’s negligence in handling the client’s business, providing that the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. Bauer v. Dyer, 00-1778 (La.App. 5 Cir. 2/28/01), 782 So.2d 1133, unit denied, 01-0822 (La.5/25/01), 793 So.2d 162. The proper method of determining whether an attorney’s malpractice is a cause in fact of damage to his client is whether the performance of that act would have prevented the damage. Id.

Ijn his claim for legal malpractice, Carr alleged that Abel was negligent in failing to properly and timely appeal the trial court’s ruling granting a preliminary injunction and this failure caused him to suffer economic damage. However, the record in this case indicates that after the entry of the preliminary injunction, the trial court entered a permanent injunction based on the same evidence presented at the hearing of the preliminary injunction. Although Carr alleges the preliminary injunction was not properly appealed, the entry of the permanent injunction negated any loss that Carr could have suffered as a result of any negligence. Further, the record indicates that the judgment issuing the permanent injunction was affirmed on appeal to the First Circuit, and the Supreme Court denied Carr’s application for supervisory writs. See, Louisiana State Bar Ass’n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292.

As the propriety of the injunction entered against Carr has now become a final judgment, Carr cannot prove his claim for legal malpractice, i.e., that the preliminary injunction would have been reversed on appeal or that Abel’s negligence in failing to properly and timely appeal the injunction caused any loss to Carr. Under these circumstances, the trial court correctly granted Abel’s Motion to Dismiss Carr’s claims for legal malpractice. Further, although Carr contends he is entitled to pursue a claim to recover attorney’s fees paid to Abel, we find that the entry of a final permanent injunction against Carr precludes Carr’s efforts to claim the injunction and damages arising therefrom were due to Abel’s negligence. Accordingly, we find no error in the trial court’s ruling dismissing Carr’s original action for legal malpractice against Abel.

17Carr next contends that the trial court erred in failing to strike the entire pleading filed by Abel in response to the legal malpractice proceedings filed against him as it contained immaterial, impertinent and scandalous allegations. Carr argues that the trial court’s action in striking certain enumerated paragraphs of the pleading pursuant to La. C.C.P. art. 964 was insufficient. Further, Carr contends the trial court erred in failing to granting a special motion to strike Abel’s reeonven-tional demand pursuant to La. C.C.P. art. 971, although this same motion was granted in favor of the Scandurro & Layrisson law firm.

The judgment of the trial court indicates that the Exceptions of Prematurity were granted in favor of all the defendants-in-reconvention. Thus, the claims raised by Abel in his reconventional demand may not proceed until the trial court’s judgment on the underlying legal malpractice proceedings become final. Nevertheless, the trial court also struck portions of Abel’s pleading which were deemed to be immaterial to the claims against Carr. Although both parties filed a special motion to strike pursuant to La. C.C.P. art. 971 as to other allegations of the pleading, the trial court only struck claims as to the Layrisson defendants.

A motion to strike is provided for in La.Code Civ.P. art. 964, which states, “[t]he court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are viewed with disfavor and are infrequently granted. It is disfavored because striking a portion of a pleading is a drastic remedy, and because it is often sought by the mov-ant simply as a dilatory tactic. A motion to strike is only proper if it can be shown that the ^allegations being challenged are so unrelated to a plaintiffs claims as to be unworthy of any consideration and that their presence in the pleading would be prejudicial to the moving party. A motion to strike is not an authorized or proper way to procure the dismissal of a complaint or a cause of action. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, 98, writ denied, 01-2115 (La.7/26/01) 794 So.2d 834 (citations omitted); See also, Miller v. Currier, 97-1194 (La.App. 3 Cir. 4/1/98), 713 So.2d 497, 502.

In addition to the motion to strike authorized by La.C.C.P. art. 964, the Louisiana Legislature enacted La. C.C.P. art. 971 “to screen out meritless claims pursued to chill one’s constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press.” Lee v. Pennington, 02-0381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041, writ denied, 02-2790 (La.1/24/03), 836 So.2d 52.

La. C.C.P. art. 971(A)(1) provides:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

Further, La. C.C.P. art. 971(F)(1)(b) provides:

F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
ls(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

The consideration of a special motion to strike involves issues of law, and the Court of Appeal is required to conduct a de novo review of the trial court’s application of the law to those issues. Savoie v. Page, 09-415 (La.App. 3 Cir. 11/4/09), 23 So.3d 1013, writ denied, 10-096 (La.4/5/10), 31 So.3d 365.

Pursuant to La. C.C.P. art. 971(F)(1)(b), the special motion is applicable to a writing such as the pleading at issue here which is under consideration by a judicial body. Once the party filing a special motion to strike has established that a cause of action against him arises from an act by him in furtherance of the exercise of his constitutional right of petition or free speech in connection with a public issue, the burden then shifts to the plaintiff to demonstrate a probability of success on his claim. Starr v. Boudreaux, 07-652 (La.App. 1 Cir. 12/21/07), 978 So.2d 384.

The pleading filed by Abel contains numerous allegations against Carr and Carr & Associates, as well as against Jean-Paul Layrisson and his lawfirm, Scandurro & Layrisson, L.L.C., including tort claims for defamation, malicious prosecution and abuse of process. In order to defeat a motion to strike urged pursuant to La. C.C.P. art. 971, the burden is on Abel to demonstrate a probability of success on his claim. The record in this case supports the trial court’s findings that Abel was unable to meet his burden with regard to the claims against the Layrisson defendants.

The record in this case contains an affidavit prepared by Earl T. Carr, Jr. stating that “[n]either Jean-Paul Layrisson, or any other attorney or | ^employee of his law firm, Scandurro & Layrisson, L.L.C., drafted or reviewed any portion of the Petition or participated in any way in the dispute between myself and Mr. Abel prior to my filing the Petition with the Court.” As Earl Carr admits on the record that his attorneys were not involved in the drafting of the petition, the probability of success on Abel’s claims in his reconventional demand support the trial court’s granting of the special motion to strike in favor of the Layrisson defendants. However, as the Petition against Abel was personally prepared by Earl Carr, Jr., we find no error in the trial court’s refusal to grant the special motion to strike as to the Carr defendants.

For the reasons assigned herein, we find no error in the trial court’s ruling granting Daniel Abel’s Motion to Dismiss Earl T. Carr, Jr. original claim for legal malpractice. We likewise find no error in the trial court’s ruling on the Motions to Strike. Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Earl T. Carr, Jr.

AFFIRMED


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Ameche JENSEN, wife/of and James Jensen v. The CITY OF NEW ORLEANS by and through the NEW ORLEANS AVIATION BOARD, an Agency of the City of New Orleans and Northwest Airlines, Inc.
    No. 10-CA-917.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      Jerry W. Sullivan, Arthur D. Dupré, Jr., Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Patrick E. Moore, Attorney at Law, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

1^Plaintiffs, husband and wife, filed suit against New Orleans Aviation Board (NOAB) and Northwest Airlines, Inc. (Northwest) for injuries Mrs. Jensen allegedly sustained when she fell at the New Orleans International Airport. Because Northwest was erroneously named as a defendant, Mrs. Jensen amended her petition to substitute Southwest Airlines, Inc. (Southwest) for Northwest. Southwest filed a peremptory exception of prescription alleging that because the amended petition was filed more than one year after the accident, Mrs. Jensen’s claim had prescribed. The trial court granted the exception and dismissed Southwest from the litigation. Because we find that the timely filed suit against NOAB did not interrupt prescription against Southwest, we affirm.

Facts and Procedural Background

Plaintiff/appellant, Mrs. Ameche Jensen, allegedly sustained injuries on October 25, 2008, when she fell on Southwest Airline’s concourse at the New Orleans International Airport in Kenner, Jefferson Parish, Louisiana. Prior to embarking on her flight from Birmingham to New Orleans, Mrs. Jensen, a ^handicapped passenger, informed Southwest that she required wheelchair assistance. Her boarding passes also indicated that such assistance was required.

Wheelchair assistance was provided at each leg of her trip until she arrived at her final destination in Louisiana. Once she deplaned in Louisiana, Mrs. Jensen asserts that neither Southwest nor airport personnel were present at the gate to provide wheelchair assistance nor were any announcements made for passengers who required such assistance. She, thereafter, proceeded to the baggage claim area when she suddenly and without warning fell and sustained injuries. Mrs. Jensen filed suit on October 28, 2009, against NOAB and Northwest in the Civil District Court in Orleans Parish. Northwest filed a declinatory exception of improper venue, alleging that it was a foreign corporation and venue was proper where its primary business office was located — East Baton Rouge Parish — or where its principal place of business was located — Jefferson Parish. Mrs. Jensen amended her petition on December 22, 2009, to substitute Southwest for Northwest, which had been erroneously named as a defendant. The amended petition was also filed in the Civil District Court of Orleans Parish. Southwest filed a declina-tory exception of improper venue on January 27, 2010, adopting the exception and supporting memorandum Northwest had previously filed.

Mrs. Jensen, Southwest, and NOAB entered into a Consent Judgment on February 2, 2010, whereby the exception of improper venue was granted and the case was transferred to the 24th Judicial District Court in Jefferson Parish, Louisiana. Once the case was transferred, Southwest filed a peremptory exception of prescription, arguing that Mrs. Jensen’s tort claim prescribed because the |4amended petition was filed more than one year after the date of the accident. Mrs. Jensen argued, on the other hand, that the timely filed suit against NOAB interrupted prescription against its solidary obligor, Southwest. She argued alternatively that her claim arose from a breach of contract and was therefore subject to a ten-year prescriptive period.

The trial court issued a judgment on July 19, 2010, granting the exception of prescription and dismissing Southwest Airlines from the suit. The judgment was certified as final.

Assignments of Error

Mrs. Jensen appeals the trial court’s judgment, assigning the following errors:
1. The trial court erred when it found that Southwest and NOAB were not solidary obligors; and
2. The trial court erred when it failed to consider her alternative argument that her claim against Southwest was a breach of contract claim subject to ten-year liberative prescription.

Discussion

Second Assignment of Error

Because Mrs. Jensen’s second assignment of error will assist in the resolution of her first assignment of error, it is discussed first.

In her second assignment of error, Mrs. Jensen argues alternatively that her claim resounds in contract and is therefore subject to a ten-year liberative prescriptive period. Southwest disputes, however, that she has a claim for breach of contract in this case.

Our jurisprudence has consistently held that “an action against a common carrier for failure to carry a passenger without physical harm is a tort or quasi offense which prescribes if suit is not brought thereon within one year of the saccident.” Bean v. Texas Inter’l Air lines, Inc., 805 So.2d 558, 554 (La.App. 4 Cir.1975), unit denied, 309 So.2d 347 (La. 1975). The common carrier doctrine applies in all circumstances where a passenger suffers an injury when boarding, traveling aboard, or disembarking a common carrier’s vehicle. Amos v. St. Martin Parish Sch. Bd., 00-808, p. 3 (La.App. 3 Cir. 12/6/00), 773 So.2d 300, 302.

Mrs. Jensen contends that Southwest breached its specific obligation to provide her with wheelchair assistance and her action is therefore one that arises from a breach of contract as opposed to an action in tort. She attempts to distinguish her case from Sizeler v. Employers’ Liability Assurance Co. 102 So.2d 326 (La.App.Orleans 1958) and Flash v. Continental Airlines, Inc., 07-1522, 2008 WL 451061 (W.D.La.1/25/08), (unpublished), cases cited by Southwest, by stating that in those cases, the plaintiffs did not actually suffer from a breach of contract because their injuries occurred while the contract was being performed (ie. they were injured during transportation). It is Mrs. Jensen’s contention, however, that in this case, her contract specifically stated that wheelchair assistance would be provided throughout the entirety of her trip and because it was not, a breach occurred.

Though Sizeler, supra and Flash, supra are factually different, we find that the same principle enunciated in those cases applies here. The contract of carriage between the plaintiffs and the defendants merely determines the duty the defendant owes and does not change the nature of the cause of action or the applicable prescriptive period. Bean, supra. Admittedly, Southwest had a specific duty to provide Mrs. Jensen with wheelchair assistance and failed to do so. That, however, does not change the nature of her cause of action against them. As Southwest points out, to hold otherwise would lengthen the prescriptive period of any tort that might arise in conjunction with an ancillary service contract.

IfiWe, therefore, find that Mrs. Jensen’s claim arises in tort and is subject to a one-year liberative prescriptive period. Mrs. Jensen may overcome prescription, however, by showing that NOAB and Southwest are solidary obligors.

First Assignment of Error

In her first assignment of error, Mrs. Jensen argues that her claim against Southwest has not prescribed because suit was timely filed against NOAB, its soli-dary obligor.

On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Waguespack v. Judge, 04-0137, p. 4 (La.App. 5 Cir. 6/29/04), 877 So.2d 1090, 1092 (citation omitted). However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Id.

In this case, the record is void of any evidence introduced at trial. We must therefore determine the exceptions on the facts alleged in the petition. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

In this case, the amended petition was filed on December 22, 2009, and states that Mrs. Jensen’s accident occurred on or about October 25, 2008. We have already established that Mrs. Jensen’s claim arises in tort. Her cause of action is 17therefore subject to a one-year liberative prescriptive period. However, Mrs. Jensen’s suit against Southwest was filed almost fourteen months after the injury was sustained. Because prescription is evident on the face of the petition, the burden shifts to Mrs. Jensen to show that her claim has not prescribed.

Mrs. Jensen argues that because NOAB and Southwest are solidary obli-gors, the timely filed suit against NOAB interrupted prescription against Southwest. See La. C.C.P. art. 3503. To support her position, she relies on Green v. TACA International Airlines, (La.1974), 304 So.2d 357. In Green, the plaintiff fell when she stepped in or nearby a hole, known as a safety ground installation. On the day of her injury, the yellow paint which usually surrounded the hole had substantially worn away, causing her fall. Although the case involved indemnification between the parties, the Louisiana Supreme Court found both TACA and NOAB jointly liable for her injury. There, the court found that TACA breached its duty of care when it failed to observe that the yellow paint had worn away and by not warning passengers of the risk involved in traversing the area. It also found that NOAB breached its duty of maintenance when it neglected to regularly paint the safety ground installations to make it visible to persons using that area of the terminal.

Mrs. Jensen urges this Court to rely on Green to find NOAB and Southwest soli-dary obligors. Green, however, is markedly different from the facts of the present case. In Green, the Supreme Court found that both TACA and NOAB’s breach involved a defect in the premise — namely the worn away paint on the safety ground installation. Here, no such defect is alleged.

|sMrs. Jensen points to paragraph ten of her petition to show that NOAB and Southwest are solidary obligors. Paragraph ten alleges the following:

1. Negligence in failing to provide wheelchair assistance as requested;
2. Failing to act reasonably under the circumstances to avoid an unreasonable risk of harm to invitees such as Mrs. Jensen;
3. Failing to assist wheelchair passengers in the concourse; and
4. Any and all other acts of negligence or breach of safety standards which may be brought out at trial of this case.

We are unable to say that paragraph ten alleges solidarity between NOAB and Southwest. Obligations are solidary when each obligor is liable for the whole performance. La. C.C. art. 1794. Paragraph ten and the facts contained throughout the petition fail to allege that NOAB and Southwest are independently responsible for the whole performance, namely providing Mrs. Jensen with wheelchair assistance. In fact, other than naming Southwest as a co-defendant, Southwest’s obligation, if any, to Mrs. Jensen is not mentioned anywhere in the petition. We do note however, that Mrs. Jensen alleges in her brief the NOAB “is charged with the duty to assure the safety of passengers moving about the airport as they deplane, board planes, and move from one terminal to another.” This blanket allegation, however, is not supported by any authority.

The petition makes it clear that the obligation owed to Mrs. Jensen by Southwest arose from Southwest’s status as a common carrier. Southwest was obligated to ensure that Mrs. Jensen disembarked the plane without injury. Amos, supra. As Southwest points out, however, NOAB is not a common carrier and was therefore not obligated to provide Mrs. Jensen with such services.

Because Mrs. Jensen has failed to show that NOAB was independently responsible for providing her -with a wheelchair, she did not meet her burden of proving that solidarity existed between NOAB and Southwest. If the plaintiffs Rbasis for claiming interruption of prescription is sol-idary liability between the parties, then the plaintiff bears the burden of proving that solidary relationship. Younger v. Marshall 618 So.2d 866, 869 (La.1993).

Mrs. Jensen also cites Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982) to support her contention that solidarity can exist between Southwest and NOAB even though their respective obligations to her arose for different reasons. Mrs. Jensen’s reliance on Hoefly is inapplicable to this case. In that case, the court discussed the relationship that existed between a tortfeasor and an uninsured motorist carrier. Those facts are not present here.

Conclusion

Mrs. Jensen has failed to meet her burden of proving that NOAB and Southwest are solidary obligors such that the timely filed suit against NOAB in Orleans Parish interrupted prescription against Southwest. We, therefore, find that Mrs. Jensen’s claim against Southwest has prescribed.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED

      . Northwest Airlines was erroneously named in the suit.

      . La. C.C.P. art. 42 provides that the general rule of venue is that an action against "[a] foreign corporation or foreign limited liability company licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.”

      . La. C.C. 3492 provides: Delictual actions are subject to a liberative prescription of one year. The prescription commences to run from the day injury or damage is sustained.

      . Although Mrs. Jensen’s brief states paragraph nine, the allegations contained therein are actually found in paragraph ten of the amended petition. The reference to paragraph nine in her brief refers to the original petition filed in the Civil District Court of Orleans Parish.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Robert WELLS.
    No. 2010-KA-1338.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defen-dani/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE:

Robert Wells was charged with home invasion to which he plead not guilty. Following a preliminary hearing, the district court found no probable cause as to the home invasion charge but it found probable cause for domestic abuse battery. After a judge trial, Mr. Wells was convicted of the lesser charge of unauthorized entry into an inhabited dwelling. He was sentenced to serve three years at hard labor, suspended, and he was placed on two years active probation with fines and fees. The district court denied defendant’s motion to reconsider his sentence.

TRIAL TESTIMONY:

MICHELLE LEE WILSON:

The victim, Michelle Lee Wilson, was called by the state. Once it appeared that she was recanting her report of the alleged offense the State asked for and received permission to treat her as a hostile witness under cross-examination. Her testimony is summarized as follows:

| ¡.On August 4, 2009, defendant entered the home he had shared with her. Defendant had a key and had permission to enter. When defendant entered the house, Wilson and Thomas Anderson were sleeping in the bedroom. Following an argument with defendant, Wilson called 911 and reported the incident (the 911 tape was played in open court). Wilson admitted that the tape reflected she told the 911 operator, “He came into my house and I asked him not to come in, ...” She also admitted telling the 911 operator that the door was locked and that defendant was her “ex”. Wilson denied in her testimony that defendant damaged the front door and the wall when he entered the house claiming that damage occurred when she moved into the house. Wilson identified a photograph of her forearm showing redness and swelling but denied the injuries were sustained during a physical altercation with defendant. Wilson denied that defendant struck, slapped her, or threw her across the room. She stated that all defendant did was push her aside to get to Mr. Anderson. She described Mr. Anderson as her “ex” and defendant as her flaneé. She stated that Mr. Anderson was staying with her because his “lights was off and I was being nice to let him stay there”. She testified that she and defendant lived together; that she saw him that morning; that Anderson had only been there for a short time; and that she did not inform defendant that he was going to stay at the house.

OFFICER LISA LEWIS:

On August 4, 2009, Officer Lisa Lewis responded to a call of a domestic disturbance. Upon arrival she observed defendant in front of the house shirtless, very angry, and very aggressive. He was cursing and shouting that his girlfriend was with another guy. When Lewis approached defendant she smelled alcohol on 13his breath and she handcuffed him for her safety. She interviewed Ms. Wilson during which Wilson told her that she [Wilson] and defendant were involved in a physical altercation whereby defendant kicked open the front door, pulled her out of bed, forced her into the living room, and pushed her to the floor. Wilson told Lewis that defendant did not have permission to enter the house. The door was locked; she heard a bang; and defendant was inside the bedroom. Inside the house, Lewis observed that the front door was “stuck” into the wall; the door lock and door jamb were broken; and blood was on the door. Wilson was crying, distraught, and appeared to have been in an altercation. Officer Lewis observed swelling and scratches on Wilson’s right forearm and neck and observed a hole in the wall which corresponded to the door knob and deadbolt lock, which she opined was caused when the door was forced open. Lewis arrested defendant and conducted a search incident to his arrest; defendant was not in possession of keys to the house.

Lewis further testified she did not observe a physical altercation, did not see anyone force open the front door, and had no knowledge of when the door was pushed open or when the blood stains were spattered on the door. She had no knowledge of when Wilson sustained the injuries to her forearm.

ERRORS PATENT:

A review of the record reveals no errors patent not raised by defendant as an assignment of error. We will address this further in Assignment of Error Number 2.

¡¿DISCUSSION:

ASSIGNMENT OF ERROR NUMBER 1:

By his first assignment of error defendant argues that there was insufficient evidence to support his conviction for unauthorized entry of an inhabited dwelling. Specifically, he asserts that there was no evidence that Ms. Wilson owned or rented the residence. He also asserted that he had authority to enter the home because he and Wilson lived together at the residence, and he had a key to the residence.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d at 1309-1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

l.sA factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Hucka-bay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La. App. 4 Cir. 5/31/00), 765 So.2d 432. The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018.

Conflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La.App. 4 Cir.1989). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact’s determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La.1984).

In the instant case there was ample admissible evidence to support the conviction. Although Wilson, who had been declared a hostile witness, testified that defendant had authority to enter the residence, and the door had been damaged when she moved into the house, her contemporaneous emergency 911 call and the testimony of Officer Lewis belie her trial testimony. After the 911 tape was played in open court, Wilson admitted that she told the 911 operator that the door was locked to keep defendant out of the residence and that she asked him not to come in. She further testified that she was inside the bedroom with Thomas Anderson, and that defendant pushed her out of the way so that he could get to Anderson. Officer Lewis testified that the front door was pushed open; the lock and door jamb were broken; and the door knob was stuck in the wall. Lewis further stated that | fiWilson told her that defendant kicked open the door, pulled her out of her bed, dragged her into the living room and pushed her to the floor. Lewis saw bruises and swelling on Wilson’s neck and forearm. Lewis testified that Wilson explicitly told her that she [Wilson] told defendant to stay out of the house. Lewis’s testimony is consistent with Wilson’s statements made on the 911 tape. Obviously, the trial court rejected Wilson’s trial testimony which contradicted her statements on the 911 call and accepted Officer Lewis’s testimony. See State v. Rankin, 42,412 (La.App.2d Cir 9/19/07) 965 So.2d 946 which recognized that the 2004 amendment to C.E. art. 801(D)(1)(a) made a witness’s prior inconsistent statement in a criminal case non-hearsay. Since they are non-hearsay such statements may be used for their assertive value upon laying the proper foundation. We note that the Court there opined that the amendment appears to have been intended to address cases of domestic violence “which are among the most fertile grounds for non-cooperative non-party witnesses.” 42,412 at 7, 975 So.2d at 950-951. See Beloof and Shapiro, Let The Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements as Substantive Evidence, 11 Colum. J. Gender & LI (2002).

A review of the jurisprudence also supports defendant’s conviction.

In State v. Wilson, 2006-1421 (La.App. 4 Cir. 3/28/07), 956 So.2d 41, this court rejected similar arguments made by the defendant. In Wilson, the defendant was convicted of unauthorized entry into an inhabited dwelling. No evidence was adduced at trial to show that the defendant’s ex-girlfriend either owned or rented the residence. The State did not present a title to the residence or a rental agreement, but the defendant’s ex-girlfriend clearly testified that she and her 17children lived in the residence and that she did not give the defendant permission to enter.

In State v. Nunnery, 2004-1560 (La. App. 4 Cir. 12/8/04), 891 So.2d 67, the defendant, who had done work on the victim’s house, was found inside the house when the victim was not at home. The victim testified that although she had known the defendant for many years and had allowed him to sleep in the house when he was repairing it, she made it clear to him that he could not be in the house when she was not there. This court affirmed his unauthorized entry conviction, finding that the evidence showed he entered the house without the victim’s permission.

In State v. Coleman, 2002-1000 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, the defendant and the victim had engaged in an on-again, off-again relationship wherein they lived together for a time. At the time of the offense they were estranged, but the defendant still had some belongings in the residence. The defendant broke into the residence and raped the victim. The victim denied giving the defendant permission to enter the residence, while the defendant testified that the victim invited him inside, discussed their relationship with him for a few hours, and only became upset when their son came home. There was evidence that the police had escorted defendant from the residence on a prior occasion and that he was told that if he wanted to return to pick up any of his belongings, the police would accompany him. On appeal, this court found that there was sufficient evidence of unauthorized entry to support his La. R.S. 14:62.3 conviction.

In State v. Cojoe, 2000-1856 (La.App. 4 Cir. 3/21/01), 785 So.2d 898, the defendant and the victim had lived in the victim’s house prior to their divorce and again for a time after the divorce. Some of the defendant’s belongings were still in | sthe house. However, a few weeks before the offense the victim threw the defendant out of the house and changed the locks to keep him from entering. The defendant entered the house while the victim was out of town. This court affirmed his unauthorized entry conviction, noting that although the defendant had permission in the past to enter the house, the evidence that the victim subsequently made him leave and that she changed the locks proved that the defendant had no permission to enter on the date of the offense.

In State v. Woods, 526 So.2d 443 (La. App. 4 Cir.1988), the defendant and the victim were still married, but she had moved into another apartment with another man, and the apartment was in her and the other man’s names. This court rejected the defendant’s argument that the victim could not withhold permission for him to enter the apartment because she was using community funds to rent it. This court found that the apartment was not a community dwelling which would have given him a proprietary interest in it.

Here we recall the victim’s 911 call where she stated to the operator, “He came into my house and I asked him not to come in; ” as well as her statement that defendant was her “ex.” (Emphasis added) Additionally she told Officer Lewis that defendant did not have permission to enter the house. The trial judge as the trier of fact obviously weighed the victim’s conflicting statements and credited her contemporaneous 911 call over her trial testimony.

Accordingly, we find the evidence here is sufficient to support Mr. Wells’ conviction. This assignment of error is without merit.

| ^ASSIGNMENT OF ERROR NUMBER 2:

By this assignment of error, defendant claims that the trial court erred in ordering him to pay $800.00 to the “Judicial Expense Fund” instead of to the Criminal District Court Fund.

Defendant did not specifically object to this financial assessment, nor did he specifically allege this ground in his motion for reconsideration of his sentence. Ordinarily, this would preclude review on appeal. See La.C.Cr.P. art. 881.1; C.Cr.P. art. 881.2; State v. Robinson, 98-1606 (La. App. 4 Cir. 8/11/99), 744 So.2d 119. However, since this error is apparent by inspection of the record and is based on the face of statutory law, the error is reviewable as an error patent. See La.C.Cr.P. art. 920(2).

La.C.Cr.P. art. 895.1(B) provides that when a court suspends the imposition or execution of a sentence and places a defendant on probation, it may order, as a condition of probation, “an amount of money to be paid by the defendant to ...” among others, the victim (as compensation in addition to restitution); the indigent defender program for the respective court; a law enforcement agency for reasonable costs incurred in arresting a defendant for distribution of controlled dangerous substances; etc. La.C.Cr.P. art. 895.1(B)(2) provides for payment to “the criminal court fund to defray the costs of operation.” La. R.S. 15:571.11 “sets |inup a scheme” providing for the collection and deposit of “all fines and forfeitures imposed by the district courts.... ” See State v. Craig, 93-2515, p. 5 (La.5/23/94), 637 So.2d 437, 442 (superceded by statute on other grounds), State v. Citizen, 2004-1841 (La.4/1/05), 898 So.2d 325. La. R.S. 15:571.11(D) specifically provides such a scheme for Orleans Parish, and states:

All fines and forfeitures, including forfeitures of criminal bail bonds, imposed in criminal cases and prosecutions by the courts of Orleans Parish and any payments ordered as a condition of probation under Code of Criminal Procedure Art. 895.1(B)(2) shall, upon collection, be paid to the criminal sheriff of Orleans Parish who shall deposit same in a special account, and shall thereafter be divided equally between the district attorney of Orleans Parish and the criminal district court of Orleans Parish in two special accounts, one account to be administered by the judges of the criminal district court of Orleans Parish, and the other account to be administered by the district attorney of Orleans Parish to be used in defraying the expenses of the criminal courts of the parish, extraditions, and such other expenses pertaining to the operation of the criminal court of Orleans Parish and the office of the district attorney of Orleans Parish. Disbursements from the account to the criminal district court and district attorney shall be made on an equal basis. Said accounts shall be annually audited by the director of finance of the city of New Orleans. (Emphasis added.)

La. R.S. 13:1381.4 provides for a Judicial Expense Fund for Orleans Parish Criminal District Court, and provides in pertinent part:

A. (2) In addition to all other fines, costs, or forfeitures lawfully imposed by this Section or any other provision, the court may impose an additional cost against any defendant who has been finally convicted of a misdemeanor, excluding traffic violations, or a felony. The additional costs authorized in this Paragraph shall not exceed two hundred fifty dollars in the case of a misdemean- or nor exceed two thousand dollars in the case of a felony. All such sums collected shall be transmitted to the judicial administrator for further disposition in accordance herewith. (Emphasis added.)

| ^Defendant contends that the trial court was without statutory authority to order him to pay $800.00 to the Judicial Expense Fund, which is provided for by La. R.S. 13:1381.4. Pursuant to La.C.Cr.P. art. 895.1(B)(2) defendant could have been ordered to pay a fine of $800.00 to the Criminal Court Fund, or he could have been ordered to pay costs in the amount of $800.00 to the Judicial Expense Fund pursuant to R.S. 13:1381.4(A)(2). However, defendant correctly notes that the trial court did not assess costs, presumably due to defendant’s indigency status.

In State v. Hall, 99-2887 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, this court reversed the trial court’s order directing the defendant to pay a $1000.00 assessment as a condition of probation to the Judicial Expense Fund and remanded the case for the district court to correct the sentence by ordering that the $1,000.00 assessment imposed as a condition of probation be payable to the Criminal Court Fund in accordance with La.C.Cr.P. art. 895.1(B)(2).

In State v. Rugon, 355 So.2d 876 (La. 1977), an Orleans Parish Criminal District Court judge imposed a special condition on the defendant requiring that he “donate” $200 to the Judicial Administrator to be used for the Appellate Process Support and Court Programs Fund. The State objected on the basis that ordering defendant to pay to this fund was in direct contravention of La. R.S. 15:571.11(D) which, at that time, provided that all fines and forfeitures imposed in criminal cases in Orleans Parish be paid to the Orleans Parish District Attorney. The Louisiana Supreme Court ruled that the “donation” was a fine, subject to the legislative mandate of La. R.S. 15:571.11(D) that it be paid to the Orleans Parish District Attorney. The court annulled the sentence insofar as it ordered that the payment be made to the Judicial Administrator and remanded the case for correction of the sentence by making the fine payable to the District Attorney.

hiJn the instant case, the only statutory authority under which the trial court could require payment of the $800.00 assessment was either (1) La.C.Cr.P. art. 895.1(B)(2), pursuant to which payment of the $800.00 could be required as a fine or condition of probation, with the funds being paid to, among others, the Criminal Court Fund; or (2) La. R.S. 13:1381.4, pursuant to which payment of the $800.00 could be required as costs, with such costs being paid to the judicial administrator, for deposit into the Judicial Expense Fund. The trial court did not assess costs and specifically ordered that defendant pay the $800.00 as a fine. Accordingly, the trial court erred in directing payment of the $800.00 to the Judicial Expense Fund instead of the Criminal Court Fund as provided by that statute.

Therefore, we vacate defendant’s sentence and set it aside insofar as it directs payment of the $800.00 to the Judicial Expense Fund, and remand this case to the trial court for correction of the sentence by requiring the payment to the Criminal Court Fund.

ASSIGNMENT OF ERROR NUMBER 3:

Defendant argues that his sentence is excessive because the trial court failed to adequately consider the sentencing guidelines pursuant to La.C.Cr.P. art. 894.1. Specifically, he asserts that nothing in the record reflected that he had a prior criminal history.

In State v. Smith, 2001-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court set forth the standard for evaluating a claim of excessive sentencing:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although | iaa sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). 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. State v. Bonanno, 384 So.2d 355, 357 (La.1980). 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. State v. Cann, 471 So.2d 701, 703 (La.1985). 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. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0787, p. 1 (La.11/15/02), 831 So.2d 905, 906. See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973; State v. Batiste, 06-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810; State v. Landry, 03-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

Id., p. 7, 839 So.2d at 4.

In State v. Batiste, 2006-0875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810, this Court further stated:

An 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. State v. Landry, supra; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813:
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resen-tencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).
114If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184. (Emphasis added).

06-0875, p. 18, 947 So.2d at 820.

A conviction of unauthorized entry of an inhabited dwelling carries a maximum sentence of six years, with or without hard labor, and the possibility of a one thousand dollar fíne. La. R.S. 14:62.3. Defendant was sentenced to serve three years at hard labor. His sentence was suspended, and defendant was placed on two years active probation with fines and fees. Similar sentences have been upheld by the appellate courts.

In State v. Coleman, 2002-1000 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, the defendant was convicted of unauthorized entry of an inhabited dwelling and received a four year sentence at hard labor.

In State v. Shannon, 2004-1361 (La. App. 5 Cir. 4/26/05), 902 So.2d 519, the defendant was sentenced to two years at hard labor with all but six months suspended for unauthorized entry of an inhabited dwelling.

In State v. Williams, 32,993 (La.App. 2 Cir. 3/1/00), 754 So.2d 418, the defendant’s five year sentence was affirmed even in the absence of a prior criminal record.

We find defendant’s sentence is supported by the violent manner in which he kicked open the victim’s door, grabbed her, pulled her out of her bed, and injured her arm and neck. Furthermore, defendant was charged with home | l5invasion. If convicted, he could have received a sentence of five to twenty-five years at hard labor with at least the first five years served without benefit of parole, probation or suspension of sentence. See La. R.S. 14:62.8.

Based on the facts and jurisprudence, defendant’s sentence is not excessive. This assignment of error is without merit.

CONCLUSION:

For the foregoing reasons we affirm defendant’s conviction; vacate his sentence only insofar as it directs payment of $800.00 to the Judicial Expense Fund; and remand the case with instructions to correct the sentence by ordering that the $800.00 fine imposed be payable to the Criminal Court Fund in accordance with La.C.Cr.P. art. 895.1(B)(2).

CONVICTION AFFIRMED; SENTENCE VACATED IN PART; REMANDED.

      . For a disturbing discussion of the problem of recanting victims in domestic violence cases see: Njeri Mathis Rutledge, Turning a Blind. Eye: Perjury in Domestic Violence Cases, 39 N.M.L.Rev. 149 (2009).

      . There is a discrepancy in the record as to the characterization of the financial assessment as a fine or a fee. The minutes of October 29, 2007, reflect that defendant was ordered to pay fines and fees in the amount of $800.00 to the Judicial Expense Fund. The transcript of defendant’s sentencing reflects that the $800.00 assessment was ordered to be paid as a fine to the Judicial Expense Fund. If the assessment is for additional costs, then the payment should be made to the judicial administrator for deposit in the Judicial Expense Fund. If the assessment is a condition of probation or is a fine, it should be paid to the criminal court fund. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Accordingly we treat the assessment as a fine, not a fee, and the proper recipient should be the Criminal Court Fund.