author: HIGGINBOTHAM, J.

text:
    NORTHSHORE REGIONAL MEDICAL CENTER, L.L.C., d/b/a NorthShore Regional Medical Center v. Edith Ruth DILL, Brian Dill, Atlas Travel Insurance Services Limited, Global Excel Management, Inc.
    No. 2011 CA 2271.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Mark W. Verret, Philip G. Smith, Dax C. Foster, Brett M. Bollinger, Jeffrey E. McDonald, Metairie, LA, for Plaintiff-Appellant, Tenet 100 Medical Center Slidell, L.L.C., formerly known as NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center.
    Robert E. Kerrigan, Jr., Jonathan M. Walsh, New Orleans, LA, for Defendant-Appellee, White Horse Insurance Ireland, Limited.
    Christine Y. Voelkel, Jacques F. Bezou, Covington, LA, for Defendants-Appellees, Edith Ruth Dill and Brian Dill.
    Ernest E. Svenson, New Orleans, LA, for Defendant-Appellee, Global Excel Management, Inc.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

|sIn this appeal, a Louisiana hospital challenges a judgment that dismisses its claims against a nonresident travel-health insurance underwriter for lack of personal jurisdiction. For the following reasons, we amend the judgment and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts surrounding this case are undisputed. Edith Ruth Dill and Brian Dill are citizens of the United Kingdom, from Lancashire, England. The Dills purchased a travel-health insurance policy from a British corporation, Atlas Travel Insurance Services Limited, d/b/a Atlas Direct (“Atlas”), with a coverage period of February 11, 2006, to January 11, 2007. White Horse Insurance Ireland, Ltd. (“White Horse”), an Irish corporation, underwrote the insurance policy, providing worldwide coverage that expressly included the United States. Medical claims made under the policy in North America were administered by a Canadian corporation, Global Excel Management, Inc. (“Global Excel”).

The Dills were vacationing in south Louisiana in mid-November 2006 when Ms. Dill became extremely ill. She was admitted for urgent treatment of a severe medical condition that required emergency surgery and hospitalization for further treatment at NorthShore Regional Medical Center, L.L.C., d/b/a NorthShore Regional Medical Center (“NorthShore”) in Slidell, Louisiana. Ms. Dill remained hospitalized at NorthShore for more than two months, until she was transported via |4air ambulance to a hospital in England on January 24, 2007. The final cost of Ms. Dill’s medical treatment at NorthShore was $1,256,229.08.

In response. to NorthShore’s request, White Horse, through Atlas and/or Global Excel, verified the Dills’ travel-health insurance coverage and initially authorized and remitted a partial payment of $309,498.31, which was sent by Global Excel to NorthShore on behalf of White Horse on February 13, 2007. Because no other payments were made despite written demand, NorthShore filed suit on November 13, 2009, for the balance due on open account for medical services rendered, plus judicial interest, attorney fees, and costs. NorthShore named the Dills, Atlas Travel, and Global Excel as defendants and subsequently, on February 3, 2010, added White Horse as a defendant in a supplemental and amending petition.

The record does not reflect that any defendant has filed an answer. However, White Horse filed a declinatory exception raising the objection of lack of personal jurisdiction in response to NorthShore’s petition. White Horse maintains that it is an “Irish underwriter of an English travel insurance policy issued by an English insurance company to two ... English travelers.” White Horse further asserts that it has absolutely no contact with Louisiana, does not solicit or conduct business, advertise, or underwrite any policies of insurance in Louisiana, and has no employees or offices in Louisiana. Therefore, White Horse argues that the exercise of personal jurisdiction over it is unconstitutional and unsupported by law. In support of its exception, White Horse offers two sworn affidavits of its Finance Director, David Gleeson (“Gleeson”), declaring, in pertinent part, that White Horse (1) is licensed to do business in Ireland, not Louisiana; (2) has a registered office in | ¡¡Dublin, Ireland, not Louisiana; (3) does not underwrite any policies of insurance or insure any risks in Louisiana; (4) does not directly advertise in Louisiana; (5) has no officers, managers, directors, shareholders, or employees-located in Louisiana; (6) does not transact any business in Louisiana; and (7) has had no contact with North-Shore regarding Ms. Dill.

In contrast, NorthShore contends that White Horse authorized. Ms. Dill’s medical care through the North American claims’ administrator, Global Excel, by verifying the insurance coverage and by making a significant partial payment toward Ms. Dill’s medical expenses at NorthShore in Louisiana. NorthShore offers no evidence as to the timing or the form of communication — whether it was by telephone call, fax, or letter — regarding the verification of coverage, but argues that the verification and partial payment constitute sufficient minimum contacts for a finding of personal jurisdiction over White Horse in Louisiana. NorthShore also asserts that White Horse could reasonably foresee or anticipate that it might be subject to a Louisiana court’s jurisdiction, since it was the underwriter of a travel-health insurance policy that was issued with a worldwide coverage area that specifically included travel to the United States.

The trial court heard the exception on May 25, 2011, issued reasons for judgment on June 24, 2011, and signed a judgment on July 20, 2011, sustaining the exception and dismissing NorthShore’s claims against White Horse with prejudice. In written reasons, the trial court relied primarily on federal jurisprudence in its discussion of the constitutional requirements for the exercise of personal jurisdiction over nonresident defendants. Ultimately, the trial court particularly emphasized a federal district court decision, St. Luke’s Episcopal Hosp. v. Louisiana Health Service & Indem. Co., No. H-08-1870, 2009 WL 47125 (S.D Tex.l/6/09), and the cases cited therein, to find that the facts “at best, point to a single contact” by White Horse with Louisiana. Relying on the reasoning set forth in St. Luke’s Episcopal Hosp., the trial court held that the single act of authorizing a partial payment to NorthShore was not a sufficient contact, nor an affirmative act that amounted to a “purposeful availment” of the benefits of conducting activities in Louisiana, so as to subject White Horse to personal jurisdiction in Louisiana. The trial court further found that White Horse’s act of authorizing partial payment to NorthShore was “simply a response to an insured’s [unilateral] decision to travel to Louisiana and seek medical attention while here as a result of illness.”

NorthShore appeals, urging three assignments of error: (1) the trial court erred in determining that there was no constitutional basis for exercising personal jurisdiction over White Horse; (2) alternatively, the trial court erred in prematurely granting White Horse’s exception of lack of personal jurisdiction; and (3) alternatively, a proper jurisdictional analysis for travel insurance policies issued by foreign insurers and underwriters requires new law or a different application of existing law.

MOTION TO STRIKE

In addition to its brief in opposition to NorthShore’s assignments of error, White Horse filed a motion to strike NorthShore’s appellate brief or portions of the brief. White Horse complains that NorthShore’s brief does not cite to record references and raises new arguments in assignments of error two and three for the first time on appeal, in violation of Uniform Rules — Courts of Appeal, Rule 2-12.4 and Rule 1-3, respectively. We find that NorthShore’s failure to cite references in the record by page number is not of such significance that it compels us to strike its brief. Additionally, all of NorthShore’s assignments of error are related to the trial court’s reasons for judgment and the merits of the ultimate legal issue before this 17court — whether a Louisiana state court can properly exercise personal jurisdiction over White Horse under the facts of this case. The sanction permitted to be imposed for a non-conforming brief is left to our discretion. Williams v. Fischer, 439 So.2d 1111, 1112 (La.App. 1st Cir.1983). When reviewing the trial court’s legal analysis or conclusion, we must render any judgment which is just, legal, and proper upon the record on appeal, regardless of whether a particular theory was made, argued, or decided by the trial court. See La. C.C.P. art. 2164. Under the circumstances of this case, we find that striking NorthShore’s brief or portions of the brief would be unreasonably harsh. Accordingly, we deny White Horse’s motion to strike.

LAW AND ANALYSIS

In reviewing a judgment on an exception of lack of personal jurisdiction, the factual findings underlying the judgment are reviewed for manifest error. Bridges v. Mosaic Global Holdings, Inc., 2008-0113 (La.App. 1st Cir.10/24/08), 23 So.3d 305, 314, writ denied, 2008-2783 (La.2/20/09), 1 So.3d 496. However, the application of established rules of law to the facts involves a purely legal question. Id. Thus, appellate courts use a de novo standard of review to determine the legal issue of whether a Louisiana court may exercise personal jurisdiction over a nonresident. Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 2006-1736 (La.4/11/07), 954 So.2d 120, 125; Broussard v. Diamond Aircraft Industries, Inc., 2010-1611 (La.App. 1st Cir.5/3/11), 65 So.3d 187, 189. Based on our review of the record, we find no real dispute as to the facts related to the jurisdictional issue before us, and therefore, we review this purely legal issue de novo.

We begin our analysis by examining Louisiana’s “long-arm” statute, La. R.S. 13:3201, which controls when a Louisiana court may assert personal jurisdiction over a nonresident defendant. Louisiana Revised Statutes 13:3201 was | ^amended in 1987 to extend personal jurisdiction under Louisiana’s long-arm statute to the fullest limits allowed by due process. Southeast Wireless Network, 954 So.2d at 124. Since the 1987 amendment, the sole inquiry into jurisdiction over a nonresident in Louisiana is whether the assertion of personal jurisdiction complies with constitutional due process. Fox v. Board of Sup’rs of Louisiana State University and Agr. and Mech. College, 576 So.2d 978, 983 (La.1991).

The Louisiana long-arm statute, La. R.S. 13:3201, provides for. the exercise of personal jurisdiction over a nonresident defendant as follows:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
' (1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
(6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
(7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
(8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis 19consistent with the constitution of this state and of the Constitution of the United States.

Personal jurisdiction may be asserted as long as due process is not offended. In Bridges, 23 So.3d at 314-15, this court outlined the due process test as it was first enunciated in Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945), stating that due process requires the nonresident defendant to have certain “minimum contacts” with the forum state, such that maintaining a suit against the defendant does not offend traditional notions of fair play and substantial justice. Finding minimum contacts is the first part of what has evolved into a two-part test. See Broussard, 65 So.3d at 190. Once minimum contacts are established, the second part of the due process test involves consideration of the contacts in light of other fairness factors to determine whether it would be reasonable to require the nonresident defendant to defend the lawsuit in the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78, 105 S.Ct. 2174, 2184-85, 85 L.Ed.2d 528 (1985).

The minimum contacts prong of the two-part due process test is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Broussard, 65 So.3d at 190 (quoting A & L Energy, Inc. v. Pegasus Group, 2000-3255 (La.6/29/01), 791 So.2d 1266, 1271, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001) (citations omitted)). However, this purposeful availment must be such that the defendant “should reasonably anticipate being haled into court in the forum state.” Id. The rationale behind the “purposeful availment” requirement is to ensure that the nonresident defendant will not be “haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person.” Id. (Emphasis added.)

| Additionally, in Broussard, 65 So.3d at 191, we recognized the well-established distinction between two types of personal jurisdiction — “general” and “specific” jurisdiction. A state has specific jurisdiction over a defendant when the suit arises out of or is related to the defendant’s contacts with the forum state and the defendant purposefully avails itself of the privilege of conducting activities in the forum state. See Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984). A state has general jurisdiction over a defendant when the defendant is domiciled in the forum state or its activities there are substantial or continuous and systematic, even though the contact with the forum state is not related to the cause of action. Helicopteros, 466 U.S. at 414-16, 104 S.Ct. at 1872. See also Omega Hosp., L.L.C. v. Board of Trustees of State of North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan, No. 08-1575, 2008 WL 4286757, at *3 (E.D.La.9/16/08).

The evidence presented in the record before us reveals that White Horse does not have sufficient minimum contacts to satisfy the requirements for specific jurisdiction, and even less so for general jurisdiction. In fact, White Horse does not have any contacts with Louisiana aside from the alleged communication regarding verification of insurance coverage and the partial payment that was accomplished through the claims administrator, Global Excel. That limited contact/communication, however, was not solicited or initiated by White Horse. Instead, the verification was made solely in response to North-Shore’s initiating an inquiry about Ms. Dill’s health insurance coverage, and was the product of the mere fortuity that NorthShore is located in the state where the Dills unilaterally decided to travel and where Ms. Dill happened to seek medical treatment after becoming ill. Compare Omega Hosp., 2008 WL 4286757, at *4 (quoting | nMoncrief Oil Int’l, Inc. v. OAO Gazprom, 481 F.3d 309, 312 (5th Cir.2007), “[r]andom, fortuitous, or attenuated contacts are not sufficient to establish jurisdiction”).

Insurers are obligated to carry out the insurance contract no matter where treatment is sought; therefore, the fact that White Horse acknowledged (through its claims’ administrator) its obligation to pay pursuant to the insurance plan if Ms. Dill sought treatment at NorthShore is not purposeful availment. See Whittaker v. Medical Mutual of Ohio, 96 F.Supp.2d 1197, 1200 (D.Kansas 2000). To allow the exercise of personal jurisdiction on this slight contact, which was initiated. by a third party, would offend the traditional notions of fair play and substantial justice. See Perez v. Pan Am. Life Ins. Co., 96 F.3d 1442, 1996 WL 511748, at *2 (5th Cir.8/20/96)(unpublished).

NorthShore makes much of the fact that the subject of the verification communication process was coverage under a travel-health insurance policy. Thus, North-Shore argues that all parties contemplated that the Dills would travel and could possibly have a medical claim anywhere in the world where the policy provided coverage, including the United States. However, NorthShore does not provide any legal authority for its contention that White Horse is essentially conducting business or maintaining sufficient contact in whatever forum where the Dills choose to travel and possibly incur medical expenses. The only contact that White Horse is alleged to have had with Louisiana was directly related to the Dills’ unilateral decision to travel to Louisiana. To allow such a contact to satisfy the purposeful availment requirement does not properly focus on the intentional conduct of the defendant, White Horse. See Alaska Regional Hosp. v. Amil Intern. Ins. Co., No. A03-177 CV (JWS), 2003 WL 24085347, at *3 (D.Alaska 11/5/03)(unpublished).

I^The foreseeability that is critical in the due process analysis of minimum contacts is whether the defendant’s intentional conduct and connection with the forum state are such that the defendant should reasonably anticipate being haled into court there. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). NorthShore fails to provide evidence to rebut Gleeson’s affidavits and to establish that White Horse engaged in affirmative or proactive conduct in Louisiana, such as attempting to expand sales to Louisiana or otherwise develop commercial activity in Louisiana. Compare Choice Healthcare, Inc. v. Kaiser Foundation Health Plan of Colo., 615 F.3d 364, 370 (5th Cir.2010). White Horse authorized the partial payment because the insured, Ms. Dill, independently and without encouragement from White Horse, presented to NorthShore for urgent care and extensive medical treatment while visiting Louisiana. Compare Id.

While we agree that White Horse, as a travel-health insurance underwriter, could reasonably anticipate that the Dills would travel to some destination in the United States and possibly need medical treatment while in the United States, there is no reason for White Horse to have reasonably anticipated being sued in Louisiana. White Horse had no reason to think that the terms of the policy it had underwritten would be disputed in whatever forum the Dills happened to be in when one of them needed medical attention. See Hall v. Scott, 416 So.2d 223, 230 (La.App. 1st Cir.), writ granted. 420 So.2d 978 (La.1982) (“the fact that the insured person would foreseeably travel to another state and be involved in litigation ... was not a sufficient contact to satisfy [d]ue [p]rocess requirements on a suit in contract”). See also Alaska Regional Hosp., at *4. A health insurance policy is typically sued upon where the insured resides. Id.

The cause of action in this case arises from the insurers’ failure to pay the full amount that NorthShore charged following its treatment of Ms. Dill. There is [1sno dispute that the insurers tendered a significant partial payment to NorthShore through the claims administrator, Global Excel. However, the weight of federal jurisprudence holds that the act of verifying insurance coverage and of making partial payments by a nonresident insurer is insufficient to confer personal jurisdiction. See Choice Healthcare, 615 F.3d at 369-71 (discussing federal district court decisions refusing to assert personal jurisdiction even when the insurer makes more than one payment or the insurer is aware that the insured is seeking treatment in the forum state). See also St. Luke’s Episcopal Hosp., at *4-7, and Whittaker, 96 F.Supp.2d at 1200.

NorthShore’s cause of action is ultimately based in contract, relying on an insurance policy that the Dills negotiated and executed with Atlas and White Horse in England. The record does not contain evidence of, or even an allegation that, the Dills executed an assignment of benefits to NorthShore. Thus, the coverage dispute is ultimately between the Dills and their insurers, Atlas and White Horse, all of whom are nonresidents of Louisiana. By underwriting the'insurance policy,. White Horse has not purposefully availed itself of the privilege of conducting business or activities in Louisiana, so as to subject itself to suit on open account for medical services rendered to its insured in Louisiana. See Alaska Regional Hosp., at *4-5. We conclude that White Horse has insufficient contacts with Louisiana to allow North-Shore’s suit to continue in this forum. The trial court correctly |i4sustained White Horse’s exception. NorthShore’s first assignment of error is without merit.

We also find no merit in either of NorthShore’s alternative assignments of error. NorthShore contends that the trial court should have allowed more time for NorthShore to amend its petition to cure the jurisdictional defect as to White Horse. The decision to allow a plaintiff to amend its petition is within the discretion of the trial court. See Mentz Const. Services, Inc. v. Poche, 2010-0904 (La.App. 4th Cir.12/22/10), 54 So.3d 1221, 1225. We do not find that the trial court abused its discretion in this regard. NorthShore was given the opportunity, but failed to conduct jurisdictional discovery or to offer any evidence of activity on the part of White Horse to controvert the grounds of the exception at the hearing on the declinatory exception, which had already been continued several times. Thus, NorthShore failed to adequately establish a right to further delay to attempt to remove the grounds of the objection, and this alternative assignment of error is without merit. See Smith Stag, L.L.C. v. Wilson & Meyer Custom Theater Interiors, L.L.C, 2008-1251 (La.App. 4th Cir.2/18/09), 6 So.3d 921, 925; Mitchell v. Terrebonne Parish School Board, 2002-1021 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 534, writ denied, 2003-2275 (La.11/26/03), 860 So.2d 1135.

However, we do find that the trial court’s dismissal of White Horse “with prejudice” was improper. The trial court did not have the authority to issue a judgment that bars NorthShore from bringing its cause of action against White Horse as a separate claim in a proper forum. See A Fuselier Bonding Service, Inc. v. Perez, 2010-1416 (La.App. 3d Cir.4/6/11), 62 So.3d 296, 302. Accordingly, we amend the trial court’s judgment to reflect that North-Shore’s claims against White Horse are dismissed “without prejudice.” See Smith Stag, L.L.C, 6 So.3d at 925 (dismissing the claims without prejudice allows the plaintiff 11sto re-file its suit against the defendant in a proper forum, so as to confer personal jurisdiction).

As for NorthShore’s final alternative assignment of error suggesting that this court apply a new approach to analyzing personal jurisdiction in the context of nonresident insurers marketing travel-health insurance policies, we decline the invitation to overhaul the traditional, well-established framework outlined in this opinion for analyzing personal jurisdiction. NorthShore’s contention that it is necessary to adopt a new approach or new law for personal jurisdiction issues involving travel-health insurers is more properly addressed by the Legislature. This alternative assignment of error is without merit.

CONCLUSION

For all of the assigned reasons, White Horse’s motion to strike portions or the entirety of NorthShore’s brief is denied. The trial court’s judgment sustaining White Horse’s declinatory exception raising the objection of lack of personal jurisdiction and dismissing NorthShore’s claims against White Horse is amended to dismiss NorthShore’s claims “without prejudice,” and is affirmed as amended. All costs of this appeal are assessed to plaintiff/appellant, NorthShore Regional Medical Center, L.L.C. d/b/a NorthShore Regional Medical Center.

MOTION TO STRIKE DENIED; JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

      . Much of the factual background is taken from the allegations in the petition, which are accepted as true in the context of an exception raising the objection of personal jurisdiction, unless contradicted by opposing affidavits. See Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc., 39,065 (La.App.2d Cir. 10/27/04), 887 So.2d 624, 630, writ denied, 2004-2935 (La.2/4/05), 893 So.2d 872.

      . NorthShore's brief indicates that the hospital is currently known as Tenet 100 Medical Center Slidell, L.L.C. However, because the record does not contain evidence of the name change and all pleadings, as well as the judgment, refer to the hospital as NorthShore Regional Medical Center, L.L.C., d/b/a/ North-Shore Regional Medical Center, for clarity and simplicity, we refer to the plaintiff as "NorthShore.”

      . A suit on open account is subject to a prescriptive period of three years. See La. C.C. art. 3494(4).

      . The parties refer to the exception as dilatory rather than declinatory; however, we note that an exception to the jurisdiction of the court is a declinatory exception. See La. C.C.P. arts. 923 and 925(A)(5).

      .The record contains two Gleeson affidavits; one is dated June 18, 2010, arid the other is dated January 18, 2011. ■ Both affidavits were attached as exhibits to White Horse's original and supplemental memoranda filed in the record in support of its exception of. lack of personal jurisdiction.

      . The record is devoid of evidence or allegations that NorthShore’s suit is the result of some tortious act, such as economic loss caused by negligent misrepresentation, committed in Louisiana by White Horse against NorthShore. But even if there was evidence of the tort of negligent misrepresentation, it appears that any cause of action in tort would be prescribed in this case. Even so, several federal cases have held that the mere fact that the nonresident insurer communicated with the healthcare provider in the forum state, and may have committed a tort in the exchange of correspondence, does not show that the insurer purposefully availed itself of the privilege of conducting business in the forum state. See Choice Healthcare, 615 F.3d at 370; Hunt v. Erie Ins. Group, 728 F.2d 1244, 1247-48 (9th Cir.1984). But see Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc., 39,065 (La.App. 2d Cir.10/27/04), 887 So.2d 624, 632, writ denied, 2004-2935 (La:2/4/05), 893 So.2d 872 (where personal jurisdiction was conferred against a nonresident insurer whose agent negligently misrepresented the insured’s insurance coverage to a healthcare provider, thereby causing economic loss). However, we need not resolve the personal jurisdiction issue in the tort context, because the facts of the case sub judice are limited to a cause of action based in contract.

      . We note that although a judgment of dismissal without prejudice does not bar the filing of another suit on the same cause of action, it does terminate the instant suit with respect to White Horse. See La. C.C.P. art. 1673; Batson v. Cherokee Beach and Campgrounds, Inc., 470 So.2d 478, 480 (La.App. 1st Cir.1985).


source: Caselaw Access Project

author: WHIPPLE, J. KUHN, J.,

license: Public Domain

text:
    STATE of Louisiana v. Derrick ODOMS.
    No. 2011 KA 2092.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      James D. Caldwell, Camille A. Morvant, II, Stephen E. Caillouet, Thibodaux, LA, for Appellant, State of Louisiana.

      Lynden J. Burton, New Iberia, LA, for Defendant/Appellee, Derrick Odoms.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   WHIPPLE, J.

| gThis matter is before us on appeal by the State of Louisiana. For the following reasons, we reverse the ruling of the trial judge on the motion to quash, affirm the conviction, vacate the sentence, and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

On September 26, 2007, the defendant, Derrick Odomes, was charged by grand jury indictment with first degree murder, a violation of LSA-R.S. 14:30, for the murder of Hunter Horgan, HI, on or about August 12 or 13, 1992. The defendant entered a plea of not guilty. The State subsequently amended the charge to second degree murder, a violation of LSA-R.S. 14:30.1. On January 20, 2010, the defendant filed a motion to quash the indictment, arguing that “the charges” should be quashed “due to the fact that the possible range of sentence is zero years because the defendant was 14 years old at the time of the alleged murder” and was over twenty-one years old at the time the indictment was filed. After a hearing, the trial judge granted the defendant’s motion to quash to the extent that the trial court ordered that the maximum penalty to which the defendant was subject upon con-vietion was incarceration until his twenty-first birthday, thereby allowing the State to prove its case against the defendant but, in effect, negating punishment as the defendant had already surpassed the age of twenty-one at the time of the ruling.

The State subsequently filed an application for writ of review of the trial court’s ruling with this court, which we denied, noting as follows: “As the | defendant has not been convicted, the extent of his sentencing exposure is not properly before this court. If the defendant is convicted and sentenced, the issue will be ripe for review.” State v. Odomes, 2010 KW 0812 (La.App. 1st Cir.8/17/10) (unpublished).

On August 25, 2011, after a trial by juiy, the defendant was found guilty as charged. The trial court subsequently sentenced the defendant to incarceration until his twenty-first birthday, candidly recognizing that said sentence would have no practical effect since the defendant was already over twenty-one years old at the time of imposition.

The State now appeals, arguing that the trial judge erred in ruling that the maximum penalty upon conviction was incarceration until the age of twenty-one instead of the statutory penalty of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

DISCUSSION

Based on the defendant’s purported date of birth, February 26, 1978, he was fourteen years old at the time he committed the offense. At the time the grand jury indictment was filed on September 26, 2007, the defendant was twenty-nine years old. As noted above, after a trial by jury, the defendant was convicted and sentenced on the charge of second degree murder for the particularly brutal killing of Hunter Morgan, III, an Episcopal priest.

| ¿ASSIGNMENT OF ERROR

In the sole assignment of error, the State argues that the trial court erred in its ruling on the defendant’s motion to quash (and sentencing) because the special jurisdiction of the juvenile court existed only until the defendant turned twenty-one years old. Noting that the penalty for second degree murder is life imprisonment, the State argues that when the defendant turned twenty-one years old, that special consideration ended and the defendant, like any other defendant in his situation, was subject to district court jurisdiction. The State alternatively argues that the court has adequate tools and remedies to fashion an appropriate disposition, including a sentence that would comport with the constitutional prohibition against cruel, excessive, or unusual punishment. The State also argues that there is no ex post facto prohibition against the application of LSA-C.Cr.P. art. 876(B), added by 2008 La. Acts, No. 670, § 2, which provides for a penalty equal to the amount of time to which an individual like the defendant could have been sentenced had he been adjudicated for the offense as a child at the time the offense was committed. The State notes that since the defendant was fourteen years old at the time of the offense, this provision, if applied, would set the maximum sentence at roughly seven years, as the defendant was roughly seven years from attaining the age of twenty-one when he committed the offense.

The State also notes that the defendant was still subject to the jurisdiction of the juvenile court in 1994. Relying on State v. Farris, 95-0570 (La.App. 1st Cir.11/16/95), 666 So.2d 337, the State submits that LSA-Ch.C. art. 857 should be applied retroactively to allow the proper vesting of jurisdiction in the district court. In that regard, the State contends that the defendant was sixteen years old when LSA-Ch.C. art. 857(B) went into effect and the defendant could have been transferred to district court and prosecuted as an adult for the 1992 murder with a penalty of incarceration up to his thirty-first birthday. The State notes that since | fthe defendant was fourteen years old at the time of the offense, if this provision were applied, the maximum sentence to which defendant could be subjected would be set at roughly seventeen years, as the defendant was roughly seventeen years from attaining the age of thirty-one when he committed the offense. Citing State v. Havis, 2003-2490 (La.4/30/04), 874 So.2d 153 (per curiam), and LSA-Ch.C. art. 804(1), the State argues the defendant could have been indicted in district court as an adult after he attained the age of twenty-one without the need for a transfer proceeding.

In response, the defendant argues that the trial court imposed the correct sentence. The defendant contends that based on the law that was in effect at the time of the offense, ■ his range of sentence could only be until he reaches the age of twenty-one. The defendant argues that the ex post facto application of any statute enacted after the date of the offense, as sought by the State, would subject him to increased penalties, in violation of the U.S. Const, art. I, § 10 and La. Const, art.’ I, § 23.

In ruling on the motion to quash, the trial court noted that based on the law in effect at the time of the offense, the possible sentence for the defendant was commitment until his twenty-first birthday. The court noted that there had been several subsequent statutory amendments and enactments, but found that the application of these amendments to the defendant would constitute a prohibited ex post facto application of the law. The court concluded the defendant’s penalty exposure was confinement until the age of twenty-one. However, the trial court also stated that it was not ruling that the sentencing possibility was zero or that the State was not entitled to prosecute the defendant.

When a trial court rules on a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 2002-2698 (La.App. 1st Cir.6/27/03), 861 |fiSo.2d 187, 191, writ denied, 2003-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are. subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501, 504.

A defendant is to be tried and sentenced under the statute that was in effect at the time he committed the crime. State v. Bethley, 452 So.2d 367, 370 (La.App. 1st Cir.1984). Ex post facto laws are prohibited by not only the Louisiana Constitution, but also the United States Constitution. U.S. Const, art. I, §§ 9 & 10; La. Const, art. I, § 23. This prohibition extends to the enforcement of any enactment which changes the punishment to inflict a greater penalty for the crime than that which was authorized at the time it was committed. Thus, legislation which amends a criminal statute to increase the possible maximum penalty for violating the statute cannot be applied to someone convicted of committing a crime prior to the enactment of the legislation. See State v. Robinson, 423 So.2d 1053, 1063 (La.1982).

Although the language of the federal constitution does not define the term ex post facto, the case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798), interpreted that term, and its holding has been applied ever since. The Colder court outlined four categories of ex post facto laws: (1) a law making criminal, and subject to punishment, an- activity that was innocent when originally done; (2) a law aggravating a crime or making it a greater crime than it was when originally committed; (3) a law aggravating a crime’s punishment; and (4) a law altering the rules of evidence to require less or different testimony than was required at the time of the commission of the crime so as to make easier the conviction of the offender. Colder, 3 U.S. at 390; State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735, 742, cert denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001) and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed. _g2d7 148 (2001). In Olivieri, the Louisiana Supreme Court held that in determining whether there has been an ex post facto violation, the analysis should focus on whether the new law redefines criminal conduct or increases the penalty by which the conduct is punished, and not whether the defendant has simply been disadvantaged. Olivieri, 779 So.2d at 744.

At the time the crime at issue was committed, LSA-Ch.C. art. 898(C)(5) provided that the maximum disposition for a child adjudicated a delinquent for a felony was until the child reached the age of twenty-one. However, LSA-Ch.C. art. 857 at that time provided that a child fifteen years of age or older could be transferred to an adult court and subject to an adult trial. Nonetheless, as noted above, the defendant was only fourteen years old when he committed the instant offense. In 1994, ie., after the offense, LSA-Ch.C. art. 857 was amended to provide that fourteen-year-olds could be transferred to adult court and to increase the penalty for a child convicted of certain crimes, including murder, to incarceration until the age of thirty-one.

Also, because the defendant was over the age of twenty-one when arrested, he was no longer a child for purposes of delinquency proceedings conducted in a court exercising original juvenile jurisdiction. See LSA-Ch.C. art. 804(1) (“ ‘Child’ means any person under the age of twenty-one, including an emancipated minor, who commits a delinquent act before attaining seventeen years of age”). Nonetheless, the initiation of criminal prosecution in the district court shall not prejudice the defendant by exposing him to greatly enlarged penalties than otherwise would have been applicable if this case had been initiated as a juvenile delinquency proceeding. See Havis, 874 So.2d at 156. Since the defendant committed the offense when he was fourteen years old, he was subject to secure confinement until his twenty-first birthday, a period of seven years. LSA-Ch.C. art. 898(C)(5) (the previously noted law in effect at the time of the offense). Thus, |swe are constrained to find that the State’s initial argument that the defendant should be subject to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence upon a conviction for a second degree murder offense committed at the age of fourteen is not persuasive and is without authority.

Further, we must reject the State’s argument to apply to the instant case the 1994 amendment to LSA-Ch.C. art. 857 adding subsection (B), which increased the sentencing exposure of a fourteen-year-old to his thirty-first birthday. Instead, we are constrained to find that such an application would constitute an ex post facto violation since it would increase the defendant’s original sentencing exposure by ten years.

However, we find merit to the State’s argument in favor of the application of 2008 La. Acts, No. 670, § 1. ' This legislative act amended LSA-Ch.C. art. 857 by adding subsection (C)(2), as follows:

An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Art. 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed may be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he shall be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed. [Emphasis added.]

Likewise, 2008 La. Acts, No. 670, § 2 amended LSA-C.Cr.P. art. 876 by adding subsection (B):

An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to [Code of Criminal Procedure] Article 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed may be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he may be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for | 8a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed. [Emphasis added.]

As stated above, the maximum amount of confinement the defendant could have been ordered to serve had he been adjudicated for the instant offense as a child at the time the offense was committed was seven years. The above enactments of 2008 La. Acts, No. 670 do not redefine criminal conduct or increase the penalty by which it is punished. They simply allow the courts to impose the term of incarceration that could have been imposed at the time of the offense, had the defendant not avoided prosecution at that time. Thus, the prohibition against ex post facto laws would not prohibit the application of LSA-Ch.C. art. 857(C)(2) and LSA-C.Cr.P. art. 876(B) to the present case. Accordingly, the trial court erred in ruling that the application of these provisions would constitute a violation of the ex post facto laws. Thus, we find merit to this portion of the State’s assignment of error.

DECREE

For the above and foregoing reasons, we reverse that portion of the trial court’s March 11, 2010 ruling, which granted, in part, the defendant’s motion to quash, affirm the conviction, vacate the sentence, and remand for resentencing.

RULING GRANTING, IN PART, DEFENDANTS MOTION TO QUASH REVERSED; CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED FOR RESENTENCING.

KUHN, J., concurs & will assign reasons.

KUHN, J.,

concurring.

|TI concur for the specific purpose of setting forth the circumstances surrounding the tragic murder of Hunter Horgan, III, an Episcopal priest, and the prolonged police investigation that ultimately led to defendant’s indictment and conviction. The majority opinion states in footnote four that “[t]he facts of the offense in this heinous and tragic case are not at issue in this appeal....” However, in my view, knowledge of these circumstances is essential to place the issue raised in this appeal in proper perspective, as well as to understand the reason for the passage of over fifteen years from the commission of the crime to trial.

The murder of Father Horgan, which occurred inside the church hall, was shockingly brutal. He sustained multiple blunt-force injuries to the back of his head, resulting in four to five savage lacerations. At least one of the lacerations from an unidentified blunt object was so ferocious that it caused a depressed skull fracture that pressed bone inward into the brain tissue. Father Horgan also was violently subjected to multiple sharp-force injuries to the right side of his face and neck. One injury at the base of Father Horgan’s neck transected his carotid artery through and through. Either this injury or the head trauma alone would have been sufficient to cause his death. Additionally, the presence of numerous wounds consistent with defensive wounds on Father Horgan’s arm, wrist and hand indicates he was conscious and struggled vainly for his life during the vicious attack. When his body was discovered, one of Father Horgan’s pant pockets was askew with the inside lining sticking out and his wallet was missing.

|2The police immediately began an intensive investigation of the murder, during which latent fingerprints were taken from various locations in the church hall, including a bloody fingerprint from a small table located in close proximity to Father Hor-gan’s body and another from a water faucet in the church hall kitchen near some drops of diluted blood. Despite the efforts of the police, which included following up all of the numerous tips they received and conducting well over two hundred interviews, no suspect was identified for several years.

The police received information in May 1998, that resulted in defendant, who at the time of the murder lived approximately one block from the church hall, becoming a suspect. At that time, he was advised by police officers that he was a suspect in the murder of Father Horgan and was interviewed concerning his involvement. However, defendant thwarted the investigation by blatantly lying to the police, denying any knowledge of or involvement in the murder or even that he had ever been inside the church hall. The police took a set of palm and fingerprints from defendant using the technique common at that time. Although the fingerprint cards were submitted to the Louisiana State Police Crime Laboratory (LSPCL) for comparison, no match was made to the latent fingerprints taken from the crime scene. Since the police had no additional leads, the investigation grew stale.

In 2007, the Lafourche Parish Sheriffs Office working jointly with the Thibodaux Police Department reopened the Horgan investigation. The investigators decided to resubmit the fingerprints taken from the crime scene to the LSPCL, which at that time matched defendant’s left thumbprint to the latent fingerprint lifted from the church hall water faucet during the original 1992 investigation. Additionally, the LSPCL fingerprint analyst requested that the police take “major case prints” from defendant for further comparison, since his fingerprint cards that had been submitted to the laboratory lacked sufficient ridge Isdetail in some areas. Full case prints are obtained by a technique utilizing ink and tape and provide greater ridge detail. After defendant’s full case prints were obtained in June 2007, they were examined by fingerprint analysts at the LSPCL and an additional match was made to the bloody fingerprint found on the tabletop next to Father Horgan’s body.

Thereafter, defendant was indicted on September 26, 2007, for Father Horgan’s murder. At trial, testimony was presented that defendant made threats sometime in the 1990s against an individual he had told about the murder in order to prevent that individual from talking to anyone about what he was told by defendant. Thus, although it took over fifteen years for defendant to be charged with the instant crime, it is clear that the delay was due to affirmative efforts defendant made to avoid responsibility, which included threatening a possible witness and lying to the police.

In conclusion, I agree with the majority’s affirmation of defendant’s conviction and the reversal of the defendant’s motion to quash. I concur herein solely to emphasize that the factual circumstances surrounding the murder and the prolonged police investigation are matters necessary to a full understanding of the issue raised on appeal, as well as being highly pertinent to the trial court upon remand of this matter.

      . We note that the defense brief in this case refers to defendant as "Derrick Odomes,” the grand jury indictment names the defendant as "Derrick Odoms,” and the rest of the record contains both spellings. The spelling of defendant’s last name we have used herein as "Odomes” is consistent with the defendant’s signature on the warning and waiver-of-rights form of the Thibodaux Police Department.

      . The indictment was filed on September 26, 2007. Previously, on October 11, 2007, the defendant filed a motion to quash the indictment on the grounds of jurisdiction, which was denied by the trial court. The subject of the instant appeal is the trial court’s partial grant of the subsequent motion to quash filed by the defendant on January 20, 2010.

      . Moreover, the record consistently indicates this date as his date of birth. In its brief on appeal, the State does not rely on an exact date of birth, but, instead, treats the above date as an approximation. However, although not under oath at the time, the defendant stated at sentencing that his date of birth is February 26, 1978.

      . The facts of the offense in this heinous and tragic case are not at issue for purposes of this appeal and will not be further detailed herein.

      . Both statutes were amended again by 2010 La. Acts, No. 805, § 1 to provide that such adults shall be prosecuted as adults.


author: WILLIAMS, J. CARAWAY, J.,

text:
    Jerry Allen COLEMAN, et ux., Plaintiff-Appellee v. Ruth May Bordelon BOOKER, Defendant-Appellant.
    No. 46,890-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 13, 2012.
    Rehearing Denied Aug. 2, 2012.

      Robert L. Garner, for Appellant.
    William H. Hallack, Jr., West Monroe, LA, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   WILLIAMS, J.

LThe defendant, Ruth May Booker, appeals a judgment in favor of the plaintiffs, Jerry Allen Coleman and Terri Lynn Coleman. The trial court awarded damages of $16,084.73 to the Colemans for repair of a road used as a right of way to access their land. For the following reasons, we affirm in part, reverse in part and render.

FACTS

Ruth May Booker (“Booker”) and Jerry and Terri Coleman (“Coleman”) own adjacent tracts of land in Ouachita Parish. In 1983, Booker and her husband executed a “Right of Way Grant” with Coleman’s ancestor in title for the sum of $25, providing a “right of way for ingress and egress” located within 90 feet of the property line across land presently owned by Booker (the “servient estate”) in favor of land now owned by Coleman (the “dominant estate”). A short time later, Coleman built a road (“old driveway”) across the servient estate to provide access to the dominant estate from Donaldson Road, a public street in Ouachita Parish. The old driveway was used for the next 25 years and any maintenance of the road was done by Coleman.

Then, in the late summer of 2008, Booker’s son, Michael Booker, informed Coleman that Booker wanted to relocate the right-of-way to another area within 90 feet of the property line, as provided in the 1983 servitude instrument. Coleman agreed to the relocation of the access road (“new driveway”) on the condition that the new location not make his use of the servitude less convenient. In July 2008, Booker hired Albo Arnding, a private road builder, to clear the land where the new driveway would be ^located. Anding’s work included clearing stumps, performing the dirt work for the base of the new driveway and installing drainage culverts. After Anding completed this job in October 2008, no further work was done for nine months to allow time for the base to settle and for assessing the adequacy of the drainage. Booker then hired Todd Givens, a builder and rock hauler, to complete construction of the new driveway. Givens built a berm adjacent to the new driveway to improve the drainage and dumped three truckloads of gravel over the surface of the new driveway. Givens then drove a loaded dump truck over the road approximately 30 times to compact the rock.

After completion of the new driveway in July 2009, Coleman complained about the quality of the construction to Booker’s son, who said that no further work would be done. Then, at Coleman’s request, his neighbor, Greg Dumas, leveled the surface of the new driveway using his tractor with a box blade. A short time later, Coleman began using the new driveway to access his land. During the next several months, Ouachita Parish experienced heavier than normal rainfall that caused water to wash over the new driveway.

Subsequently, the plaintiffs, Jerry and Terri Coleman, filed a petition for declaratory judgment, injunctive relief and damages against the defendant, Ruth May Booker, who filed an answer and reconven-tional demand. Plaintiffs sought damages to repair the new driveway or, alternatively, to resume the use of the old driveway. Prior to trial, the parties stipulated that resumed use of the old driveway was not an option |sand the issue before the court was whether the construction of the new driveway was adequate for reasonable use.

Following a trial, the district court issued written reasons for judgment finding that the new driveway was not of the same quality as the old driveway. The court also found that the cost of repair was $21,446.30, assessed plaintiffs with 25% fault in causing damage to the new driveway and reduced the amount of damages by $5,361.57. The court rendered judgment ordering the defendant either to allow plaintiffs to resume use of the old driveway, or pay damages to plaintiffs in the amount of $16,084.73. Plaintiffs then filed a motion for new trial, which was granted for the purpose of amending the judgment to delete the defendant’s' option to allow plaintiffs to resume use of the old driveway rather than pay damages. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in finding that the quality of the new road was not adequate for the plaintiffs’ use. Defendant argues that she is not required to pay damages because she provided an equally convenient location for plaintiffs’ exercise of the servitude of passage.

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. LSA-C.C. art. 646. The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something, or permit something to be done, on his estate. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude by the dominant estate. LSA-C.C. art. 651. Voluntary or ^conventional servitudes are established by juridical act, prescription or destination of the owner. LSA-C.C. art. 654.

The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals or vehicles are permitted to pass through the servient estate. LSA-C.C. art. 705. The owner of the dominant estate has the right to make at his expense all the works that are necessary for the use and preservation of the servitude. LSA-C.C. art. 744. The owner of the servient estate may do nothing to diminish or make more inconvenient the use of the servitude. If the original location has become more burdensome for the owner of the servient estate, or prevents him from making useful improvements, he may provide another “equally convenient location for the exercise of the servitude” that the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate. LSA-C.C. art. 748. The phrase “equally convenient” implies a location which is as suitable for the purpose as its predecessor. Brian v. Bowlus, 399 So.2d 545 (La.1981).

In the present case, the plaintiffs alleged in their petition that a number of deficiencies in the construction of the new driveway made their use of the servitude less convenient and they presented witnesses who opined that the new driveway was inferior in quality to the old driveway. However, the authority cited by plaintiffs does not support their contention that the defendant owed a duty to build them a driveway of a specific quality, which was not made the subject of a prior agreement. Thus, the relevant inquiry in this case is whether the new location designated by |fidefendant for the plaintiffs’ exercise of the servitude is equally convenient to the prior location used, not whether the construction of the new driveway is “equal” to the original 25-year old driveway.

Generally, under Article 651 the owner of the servient estate has a passive obligation, such as to allow the dominant estate owner to pass through his land, unless other duties are imposed by law or by agreement of the parties. 4 A.N. Yian-nopoulos, La. Civ. L. Treatise: Predial Servitudes, Sec. 158 (3d ed.2004). The 1983 juridical act creating the right of way allows ingress and egress across the defendant’s land, but does not require defendant to build a road. To the contrary, the document states that the dominant estate owner “shall have the right to build and maintain a road on said right of way as he deems fit and necessary.” Thus, the trial court’s finding that the new driveway was “not equal” to the old driveway is not determinative of this matter, because defendant did not have an obligation to build a driveway to the exact specifications desired by plaintiffs. Under Article 748, the defendant was required to provide at her expense another equally convenient location for the exercise of the servitude and do nothing to diminish or make plaintiffs’ use more inconvenient.

The record demonstrates that defendant satisfied the relocation requirements of Article 748 by providing an alternate location for the servitude that permitted equal access to plaintiffs’ land and by having a new driveway built at defendant’s expense that plaintiffs were able to use to pass through to their property. The issue of whether any alleged encumbrances made the use of the servitude more inconvenient for the plaintiffs is an issue |fiof fact. Toups v. Abshire, 07-1147 (La.App. 3d Cir.3/5/08), 979 So.2d 616. We shall next discuss this factual issue.

At trial, the plaintiff, Jerry Coleman, testified that after defendant moved the servitude location to run along the defendant’s west property line, defendant installed a fence along the right of way approximately 2-3 feet from the east side of the new driveway, providing a path 20 feet wide from the property line. Coleman stated that the other side of the driveway drops off sharply at various spots. Coleman testified that previously he could access ditches along the old driveway for mowing and maintenance, but that he was unable to perform such maintenance on the new driveway because of the placement of the fence. Coleman stated that there was a wider turn onto the old driveway from Donaldson Road so he could easily enter the. old driveway with a goose-neck horse trailer. He complained that the sharper turn angle of the new driveway made entering from Donaldson Road with a trailer much more difficult. Coleman stated that for a right of way with equal convenience as the prior location, he would need a path 30 feet wide. The co-plaintiff, Terri Coleman, also testified that the very short turn from Donaldson Road and the fence along the east side of the driveway made the new location less convenient.

The defendant’s son, Michael Booker, testified that he supervised the construction of the new driveway. Booker stated that he placed a fence along the east side of the new driveway that was 20 feet from defendant’s west property line. Booker testified that the area of the servitude was cleared of trees and stumps and that the new driveway was built by ^experienced private road builders. He did not think that there was a sharper turn angle from Donaldson Road onto the new driveway. Booker testified that more than $8,000 was spent to build the new driveway.

The evidence presented regarding the relocation of the servitude demonstrates that the .defendant made the plaintiffs’ use of the right of way less convenient by placing a fence along the east side of the new driveway and two T-posts at the Donaldson Road intersection, preventing a wider turning angle. Consequently, we shall order that defendant remove the fence along the length of the new driveway and the T-posts at Donaldson Road, so that plaintiffs will be provided with access to a path of not less than 30 feet in width from defendant’s west property line for the exercise of their servitude. As a result, plaintiffs will have the ability to widen the turning radius where the new servitude location intersects with Donaldson Road. The evidence presented supports a finding that after these changes have been made, the new location will be equally convenient for the plaintiffs’ exercise of the servitude.

After reviewing the record and considering the applicable law, we conclude that the defendant was not obligated to build a specific type of driveway subject to the plaintiffs’ approval. Thus, the trial court erred in holding the defendant liable for the cost of repairing the perceived inadequacies in the construction of the new driveway. The defendant’s duty was to provide an equally convenient location for the plaintiffs’ exercise of their servitude of passage and this will be accomplished with the changes stated above. Accordingly, we shall reverse the trial court’s award of | ^damages for the cost of rebuilding the driveway across the new location of the servitude. We note that pursuant to Article 744, the plaintiffs have the right, at their expense, to make the type of alterations to the driveway reasonably necessary for their use of the servitude.

CONCLUSION

For the foregoing reasons, that part of the trial court’s amended judgment awarding damages of $16,084.73 to the plaintiffs is reversed; it is hereby ORDERED that the defendant, Ruth Booker, shall remove the entire fence installed along the east side of the new servitude location and the two T-posts from the north end of the servitude, such that the plaintiffs shall be provided with a path of not less than 30 feet wide as measured from the defendant’s west property line. The judgment is otherwise affirmed. Costs of this appeal are assessed to the appellees, Jerry A. Coleman and Terri Coleman.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

hi concur in the result. The facts indicate that despite the express description of the location for the servitude in the original 1983 right-of-way grant, the appellees for years utilized an existing driveway lying totally outside that 90-foot grant. The use of that property must be viewed as only a precarious possession by appellees occurring with the permission of the Booker family. La. C.C. art. 3437; Robin v. Finley, 597 So.2d 178 (La.App. 3d Cir.1992). A servitude owned by appellees over the old driveway could not have arisen by estoppel. One can never be divested of his title to realty except in the manner prescribed by law, such as by deed, inheritance, or prescription. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962). One cannot lose or acquire real rights in an immovable through estoppel. Mere silence and delay cannot cause loss of title to property except by the effect of the laws of prescription. Merritt v. Hays, 237 La. 557, 111 So.2d 771 (1959). Appellees did not have a title to the old driveway granting them a servitude, nor had they acquired a predial servitude over that property by acquisitive prescription. Therefore, the appellant owed no obligation under La. C.C. art. 748 to bear any expense of relocation of an existing servitude.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GAS-KINS, CARAWAY and LOLLEY, JJ.

Rehearing denied.


author: HUGHES, J.

text:
    Helen Delahoussaye KELLY v. Thomas Michael KELLY.
    No. 2011 CA 1932.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 2012.

      Jill Craft, Baton Rouge, LA, for Plaintiff/Appellant Helen Delahoussaye Kelly.
    Thomas G. Hessburg, Baton Rouge, LA, for Defendant/Appellee Thomas Michael Kelly.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES, J.

12This is an appeal of a judgment of the Nineteenth Judicial District Court dismissing plaintifflappellant’s claims based on her failure to appear in court on the day of the hearing. For the following reasons, we vacate and remand.

FACTS AND PROCEDURAL HISTORY

Helen Delahoussaye Kelly and Thomas Michael Kelly (Tom) were married and have two children together. The parties divorced on December 17, 2002 and thereafter, Tom was ordered to pay child support in the amount of $1,250.57 per month, plus 79% of all non-reimbursed extraordinary medical expenses, extended care, after-school, care, summer care, and babysitting charges incurred by Helen relating to her education or employment. Tom was further ordered to pay 79% of the costs for tuition, registration, books, and supply fees for the children.

On April 20, 2010 Helen filed a “Rule for Contempt, Arrearages, Attorney’s Fees, and Costs” alleging that Tom had failed to pay his 79% of certain costs, as allegedly ordered by the judgment relative to his child support. In support of her motion, she attached a list describing the charges and setting forth his portion of the expenses. The matter was originally set for trial on December 8, 2010, but was continued to March 17, 2011. Helen did not appear at the trial, but was represented by counsel. Her attorney requested a continuance, stating that Helen had been “bumped” from her return flight from Florida and was unable to appear. Tom’s counsel moved for an involuntary dismissal. The court granted the motion for involuntary dismissal, with prejudice.

laOn June 20, 2011 Helen filed a motion for new trial. At the hearing, counsel for Helen argued that the court abused its discretion in denying the motion for continuance and in granting Tom’s motion for involuntary dismissal. In support of her motion, Helen attached a copy of the flight itinerary, and explained to the court that she was unable to take a later flight and return to Louisiana on March 15 or 16 due to complications from a pre-existing medical condition that required her to seek medical attention in Florida. However, the court was not persuaded by the argument, noting that she did not seek medical attention until March 18, the day after the trial date. Finding no legal basis mandating the grant of a new trial, and declining to use its discretion in favor of Helen, the court denied the motion for new trial. Helen appeals the June 13, 2011 judgment dismissing her claims, as well as the August 9, 2011 judgment denying the new trial. She makes the following assignments of error:

1. The trial court erred in dismissing an action for past due support, thereby affecting the welfare of the minor children, because of the failure of the mother to appear at trial for the circumstances herein discussed.
2. The trial court erred in not granting her motion for new trial on the issue of the arrearages in support accumulated and for which the Appellant is entitled to recover.
3. The trial court erred in modifying the support in this matter by eliminating the requirement for the Appellee to pay his percentage of private schooling and or ordering Appellant to keep the minor children in a private school at her expense without just cause.

|„LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 1672(A)(1) provides that “[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial.” When a plaintiff does fail to appear for trial, the court must determine whether the dismissal is to be with or without prejudice. LSA-C.C.P. art. 1672(A), England v. Baird, 99-2093 (La.App. 1 Cir. 11/3/00), 772 So.2d 905, 907. However, a dismissal for failure to appear is a harsh remedy and the court must also consider a broad range of less severe alternatives prior to deciding on dismissal. England v. Baird, 772 So.2d at 908. If the record does not contain evidence of a plaintiffs act of “willfulness, bad faith, or fault,” a single failure of a plaintiff to appear may not be sufficient support for a dismissal of the plaintiffs claim, with prejudice. Zavala v. St. Joe Brick Works, Inc., 04-0065 (La.App. 1 Cir. 12/17/04), 897 So.2d 703, In re Medical Review Panel, 99-2088 (La.App. 1 Cir. 12/22/00), 775 So.2d 1214, 1218. Moreover, the jurisprudence holds that a party represented by counsel at a proceeding before the court is not considered absent. See LSA-C.C.P. art. 1672, comment (g), Cf LSA-C.C.P. art. 6; Dickens v. Commercial Union Ins. Co., 99-0698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. The presence of the plaintiff in court is not essential in all cases. Spencer v. Children’s Hospital, 432 So.2d 823 (La.5/23/83).

|sTom’s attorney moved for an involuntary dismissal at the hearing based on Helen’s absence, and the trial court granted the motion and dismissed Helen’s claims with prejudice solely on that basis. However, Helen was represented by counsel at the hearing. The family court judge did not specifically address the request for a continuance, but rather stated she had “heard enough” and granted the dismissal. The trial court failed to inquire as to the readiness of Helen’s attorney to proceed with the hearing despite her absence, i.e., the presentation of her case solely through her attorney and other evidence such as Tom’s testimony under cross examination, and also failed to consider other less severe alternatives, such as a contempt of court charge, or a dismissal without prejudice. Additionally, it appears from the record that no prior continuances had been requested by plaintiff, and we are mindful that a dismissal with prejudice may serve to only prejudice the children who may be entitled to arrears in support in this matter. Under these circumstances, we find that the dismissal of Helen’s claims, with prejudice, was an abuse of discretion. Based on this conclusion, we pretermit discussion of the remaining assignment of error.

CONCLUSION

For the reasons assigned herein, the judgment of the Nineteenth Judicial District Court granting the involuntary dismissal with prejudice in favor of Mr. Tom Michael Kelly is vacated, and the matter is remanded for further proceedings. All costs of this appeal are to be borne by defendant/appellee, Mr. Tom Michael Kelly-

JUDGMENT VACATED; REMANDED.

      . The transcript of the March 17, 2011 hearing indicates that the December 3, 2011 trial date was continued due to an illness of the trial judge.

      . The trial court seemed displeased that the medical documentation indicated that the alleged complications were "muscle spasms.”

      . Helen’s attorney raises this assignment of error "out of an abundance of caution” and indicates that the judgment rendered on July 15, 2011 and signed on August 9, 2011 is the subject of a separate appeal. A review of the motion and order for appeal indicates that no language modifying Tom’s child support obligation is included in either the June 13, 2011 judgment dismissing Helen's claims or the August 9, 2011 judgment that denied the motion for new trial. This assignment of error, therefore, raises an issue that is not before us on appeal and will not be addressed herein.

      .Comment (g) to article 1672 states: ”[t]he language in the indirect source of this article referring to the failure of the plaintiff to appear 'either in person or by attorney' has not been retained in this article, as it is unnecessary. Appearance by a party is always either personally or through his counsel of record.” While we recognize that the comment references LSA-C.C.P. art. 7, which was repealed by Acts 1997, No. 578, § 5, Sections 1 to 4 of Act 578 also amended LSA-C.C.P. arts. 6, 925, 1671, 2002, and 5091, as well as LSA-R.S. 13:1704, 34:807, and LSA-Ch.C. arts. 644, and 1024 all as regards personal jurisdiction. Notably, the above-cited case of Dickens, decided after the 1997 repeal of Article 7, continues to hold that a person appears "either in person or by an attorney,” citing now to the amended version of LSA-C.C.P. art. 6.