author: WILLIAMS, J.

text:
    Omeka DOTIE, Plaintiff-Appellee v. SAFEWAY INSURANCE COMPANY OF LOUISIANA and Sharon M. Kissie, Defendant-Appellant.
    No. 46,840-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.

      Tracy L. Oakley, Ruston, LA, for Appellant.
    J. Patrick Hennessy, Shreveport, LA, for Appellee.
    Before WILLIAMS, MOORE and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

| defendants, Sharon M. Kissie, and her insurer, Safeway Insurance Company of Louisiana, appeal a trial court’s judgment, finding that Kissie was solely at fault in causing an automobile collision. Defendants also appeal the trial court’s award of property damages to plaintiff in the amount of $1,825. For the reasons that follow, we amend the judgment of the trial court to reduce the allocation of fault assessed to defendant to 75% and to assess plaintiff, Omeka Dotie, with 25% of the fault in causing this accident. We affirm the trial court’s judgment as amended.

FACTS

On July 1, 2008, at approximately 10:18 p.m., a two-vehicle collision occurred on Legardy Street in Shreveport, Louisiana. Plaintiff, Omeka Dotie, was operating her vehicle when she collided with a vehicle driven by defendant, Sharon M. Kissie. Plaintiff filed a lawsuit against the defendant and her insurer, Safeway Insurance Company of Louisiana (“Safeway”).

The issue of liability was hotly contested at trial. Both vehicles were traveling south on Legardy Street. Defendant testified that she was in the process of executing a right turn into her driveway when she was struck by plaintiffs vehicle. She further testified that the entire front end of her vehicle was in the driveway when the collision occurred.

Plaintiff testified that defendant was initially traveling in front of her; then, without any warning, defendant veered into the left lane and came to a complete stop. Plaintiff stated that the two vehicles collided when defendant suddenly swerved in front of her and attempted to execute a right | ?turn from the left lane.

Janet Dotie, plaintiffs mother, testified that she was a passenger in plaintiffs vehicle at the time of the accident. She stated that the two vehicles were traveling on Legardy when defendant veered into the left lane and came to a complete stop. Plaintiff initially came to a stop, but when defendant did not move, plaintiff proceeded. Dotie testified that defendant suddenly turned in front of plaintiff, causing the collision.

Antonio Bell, plaintiffs brother-in-law, also testified at trial. According to Bell, he was walking to a store when he witnessed “a piece” of the accident. He saw defendant’s vehicle “parked” on the wrong side of the road. Bell testified that defendant attempted to execute a right turn “right in front of’ plaintiff. He also stated that he observed plaintiffs vehicle as it went into a ditch. He stated that he walked up to plaintiffs vehicle and “checked on” plaintiff and her mother; he then walked back to the store.

Shreveport Police Department Corporal John Flores investigated the accident and testified at trial. He testified that defendant’s vehicle sustained damage from the middle of the passenger door to the rear of the vehicle; the entire front end of plaintiffs vehicle was damaged. The officer opined that defendant caused the accident while attempting to execute “a wide turn.”

After hearing the trial testimony, the trial court concluded that defendant was 100% at fault in causing the accident. The court awarded damages to plaintiff as follows: $1,825 for property damage; $3,978 for medical expenses and $5,250 in general damages.

Defendant and her insurer appeal.

^DISCUSSION

Liability

Defendant contends the trial court was manifestly erroneous in concluding that she was at fault in causing the motor vehicle accident. She argues that the physical evidence supports her testimony, and plaintiff was solely at fault. Alternatively, defendant contends the trial court erred in failing to apportion a percentage of the fault in causing the accident to plaintiff. She argues that at least 75% of the fault should have been allocated to plaintiff.

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. The particular facts and circumstances of each individual case determine the extent of the duty and the resulting degree of care necessary to fulfill that duty. Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So.2d 1; Owen v. Smith, 44,493 (La.App.2d Cir.8/19/09), 16 So.3d 1274. A plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Id.; Berry v. State, Dept. Of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412.

In a civil suit, the burden is on the plaintiff to prove the negligence of the defendant by a preponderance of the evidence. Miller v. Leonard, 588 So.2d 79 (La.1991); Owen, supra; Stone v. Bullard, 43,996 (La.App.2d Cir.1/28/09), 2 So.3d 1241. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Cangelosi v. Our Lady of the Lake Regional Med. Ctr., 564 So.2d 654 (La.1989); Owen, supra.

Causation is a question of fact, and is, therefore, subject to the manifest error standard of review. Green v. K-Mart Corp., 2003-2495 (La.5/25/04), 874 So.2d 838; Mart v. Hill, 505 So.2d 1120 (La.1987). Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Dept. Of Transp. & Dev., 617 So.2d 880 (La.1993).

On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216; Owen, supra. A reviewing court must give great weight to factual findings of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only |sto a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id.

Individual drivers have a duty to operate, control and use their automobiles reasonably, and to maintain a proper lookout for hazards which might pose an unreasonable risk of harm. Patrick v. State Farm Mut. Auto. Ins. Co., 42,197 (La.App.2d Cir.5/16/07), 957 So.2d 894, writ denied, 2007-1452 (La.10/12/07), 965 So.2d 400; McElroy v. Wilhite, 39,393 (La.App.2d Cir.5/18/05), 903 So.2d 627. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable having due regard for the speed of such vehicle, and the traffic upon and the condition of the highway. LSA-R.S. 32:81 (A).

In the instant case, the court heard the testimony of several live witnesses. Defendant denied ever leaving the right lane before executing the right turn. However, Cpl. Flores testified that the location of the damage to each vehicle indicated that the accident occurred after the defendant attempted to execute a “wide turn” into her driveway. Plaintiff and her mother both testified that defendant, who was traveling in front of them, veered into the left lane, stopped, and suddenly executed a right turn in front of plaintiffs vehicle. Bell testified that he saw the defendant when she suddenly turned “right in front of’ plaintiffs vehicle.

After the conclusion of the testimony, the court stated:

In listening to the testimony, I am stuck with the impression that the defendant’s vehicle turned in front of the plaintiffs vehicle. That would then negate!,] as far as I am concerned!,] the preference that the following driver was at fault as it is the duty of the stopped vehicle to make sure it is safe to turn which I find did not take | f,place in this instance!.] [T]herefore[,] the defendant is liable for the wreck in my estimation more probable] than not.

After reviewing the record in its entirety, we find that a reasonable factual basis exists for the trial court’s conclusion that plaintiff proved, by a preponderance of the evidence, that defendant executed a sudden right turn in front of plaintiffs vehicle. Plaintiff, her mother and Bell all testified that defendant stopped in the left lane, then made a sudden right turn into plaintiffs lane of travel. Although defendant testified that she executed the right turn from the correct lane of travel, the investigating officer testified that the physical damage to the vehicles was not consistent with defendant’s statement. Cpl. Flores opined that the accident more than likely occurred as the defendant made a wide turn into the driveway.

However, plaintiff and her mother both testified that plaintiffs vehicle was traveling behind the defendant’s vehicle. As the driver of a vehicle, plaintiff had a duty to maintain a proper lookout for hazards which might pose an unreasonable risk of harm, such as a vehicle which, for whatever reason, was occupying the wrong lane of travel. Additionally, as the following motorist, plaintiff had a duty to refrain from following defendant’s vehicle more closely than was reasonable. Had plaintiff been traveling at a more reasonable distance behind defendant’s vehicle, perhaps the collision would have been avoided. Thus, based on the record, we find that both parties were at fault, and the trial court erred in concluding that defendant was 100% at fault in causing the accident.

In assigning percentages of fault attributable to each tort-feasor, a 17court should consider both the nature of each party’s conduct and the extent of the relation between that conduct and the damages suffered. Watson v. State Farm, Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985); Matlock v. City of Shreveport, 45,920 (La.App.2d Cir.3/11/11), 58 So.3d 1131. In Watson, the Louisiana Supreme Court outlined the factors which should be considered in apportioning fault between parties:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id., at 974.

After weighing these factors against the conduct of the respective parties involved in this case, it is clear that defendant was a primary cause of the accident. However, keeping in mind the trial court’s finding that defendant was negligent and that plaintiff was not, we modify the trial court’s finding and hold that plaintiff was 25% at fault in contributing to the accident; the remaining fault (75%) is assessed against defendant.

PropeHy Damages

Defendant also contends the trial court abused its discretion in awarding plaintiff $1,825 for the damage to her vehicle. She argues that plaintiff failed to meet her burden of proving the extent of the damage to the | ^vehicle by a preponderance of the evidence.

“Special damages” are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty. Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App.2d Cir.10/16/03), 859 So.2d 225; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 2001-2582 (La.12/14/01), 804 So.2d 647. Some special damages, such as medical and related expenses, cost to repair or replace damaged property, loss of wages, etc., are easily measured. Id. A plaintiff is required to prove special damages by a preponderance of the evidence, and the district court’s findings in this respect also are subject to a manifest error standard of review. Montgomery v. Kedgy, 44,601 (La.App.2d Cir.8/26/09), 21 So.3d 980, writ denied, 2009-2110 (La.11/25/09), 22 So.3d 167; Johnson v. State, Dept. of Public Safety and Corrections, 95-0003 (La.App. 1st Cir.10/6/95), 671 So.2d 454.

When a car has been damaged beyond repair as the result of an accident, the owner is entitled to the market value of the vehicle before the accident, less salvage value, if any. Neloms, supra; Smith v. English, 586 So.2d 583 (La.App.2d Cir.1991), writ denied, 590 So.2d 80 (La.1991). Testimony by an owner of a car as to its value can be sufficient proof with which to sustain an award. Neloms, supra; Williams v. Louisiana Indemnity Co., 26,887 (La.App.2d Cir.6/21/95), 658 So.2d 739.

In Neloms, supra, the defendant argued that the trial court erred in awarding the plaintiff $1,000 for the damage to her vehicle and in basing its ^valuation of the vehicle on the Kelley Blue Book value submitted by the plaintiff. Citing LSA-C.E. art. 803(17), this court found “no error in the court’s decision to assign at least some weight to the Kelley Blue Book valuation.” Id., at 232; see also, State v. Batiste, 99-1481 (La.App. 1st Cir.3/31/00), 764 So.2d 1038, writ denied, 2000-1648 (La.6/22/01), 794 So.2d 778 (the introduction of the NADA Blue Book into evidence to determine the value of a vehicle was found to be acceptable).

In the instant case, the evidence of the value of and the damage to plaintiffs vehicle consisted of a Kelley Blue Book valuation of the car in excellent condition for retail sale and the testimony of witnesses. Cpl. Flores testified that there was “moderate” damage to plaintiffs vehicle after the accident. He stated that the entire front end of the vehicle was damaged, including the left front quarter panel. Plaintiff testified that she purchased the vehicle in 2007 for $5,200. She stated that, other than having a “scratch” on the side of the vehicle, the vehicle had no other damage prior to the accident. Plaintiff and defendant both testified that during the accident, plaintiffs front bumper became attached to defendant’s vehicle. In addition to the damage to the front bumper, plaintiff also testified that her vehicle suffered damage to the hood and left front quarter panel. After the accident, emergency medical personnel had to pry the door open to get Implaintiff out of the vehicle. She further testified that her front bumper “came off’ when her father and brother attempted to detach her vehicle from defendant’s vehicle. She stated, “I got some tie ties and I tied the bumper up and managed to get the door to open and close, and I continued to drive it for a little while before the motor went out.” According to plaintiff, after the vehicle’s motor “locked,” she sold the vehicle for its salvage value.

After reviewing this record in its entirety, we find no abuse of the trial court’s discretion. Although there was no testimony that the vehicle was a total loss, the evidence clearly established that there was extensive damage to the front end and driver’s side of the vehicle. The competent evidence in the record is consistent with the trial court’s finding that this 1995 Toyota was a total loss. Plaintiff testified that emergency medical personnel had to pry the door open to assist her in exiting the vehicle. The entire front bumper of the vehicle became attached to defendant’s rear bumper during the accident. Efforts to detach the two vehicles resulted in the detachment of plaintiffs entire front bumper. Additionally, plaintiff and Cpl. Flores provided unrefuted testimony that the entire front end of plaintiffs vehicle was damaged in the accident, including the left-quarter panel.

This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, we amend the judgment of the trial court to reduce the allocation of fault assessed to defendant, Sharon M. Kissie, to 75% and to assess plaintiff, Omeka Dotie, with 25% of the fault in causing the accident. The trial court’s judgment is affirmed as amended. InCosts of the appeal are assessed 75% to defendant and 25% to plaintiff.

AMENDED; AFFIRMED AS AMENDED.

      . The vehicle driven by Kissie was owned by Garric Maple. Maple was not made a party to this lawsuit.

        . LSA-C.E. art. 803(17) provides:
      The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Respondent v. Timothy D. WILLIAMS, Defendant-Applicant.
    No. 46,842-KW.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.

      See also, State v. Collins, 87 So.3d 857.

      Murray N. Salinas, Shreveport, LA, for Defendant-Applicant.

      Charles R. Scott, II, District Attorney, Dhu Thompson, Assistant District Attorney, for Plaintiff-Respondent.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

|Rn this writ grant to docket, the applicant, Timothy D. Williams, was charged by bill of information with conspiracy to possess 400 grams or more of cocaine, a violation of La. R.S. 40:967(F)(l)(c) and La. R.S. 14:26. Williams filed a motion to suppress which the trial court denied. He requested reconsideration which the trial court again denied. Williams now seeks review of the trial court’s ruling. For the following reasons, we affirm the trial court’s ruling.

FACTS

On July 21, 2009, Corporal Ben Raymond, of the Shreveport Police Department’s Mid-Level Investigation Unit, was advised by a “highly reliable and trustworthy” confidential informant (hereinafter referred to as “C.I.”) that Timothy Williams (hereinafter referred to as the “defendant”) and Waco Collins were selling large quantities of cocaine and marijuana from Apartment #20-294 in the Stone Vista Apartments located at 541 East Stoner Avenue in Shreveport (hereinafter referred to as the “apartment”). According to the C.I., the apartment used by the defendant to sell and store narcotics and drugs was occupied by his brother and sister-in-law, Deon and Angie Williams, and their children.

The C.I. had seen “numerous” weapons in the apartment on several occasions. Raymond showed the C.I. pictures of the defendant and Collins, and the C.I. positively identified them as “Timothy” and “Waco.” The C.I. also described the defendant’s vehicle as a white Ford Explorer and the location of his home at 650 Easy Street in Shreveport, Louisiana. Raymond 12had previously seen the white Explorer parked at the Easy Street address on more than one occasion during the month of May 2009.

Based on that information, Raymond had the C.I. arrange a purchase on July 21, 2009. The C.I. contacted the defendant and told him they would meet at “the spot.” The C.I. was provided with official, previously photocopied “buy funds” issued by the Shreveport Police Department. He then drove to the apartment while Raymond followed in another vehicle. Another agent had the apartment under surveillance and observed the defendant’s vehicle parked at the complex near building 20 where the apartment was located. The C.I. was observed entering the apartment and, after a few minutes, leaving the apartment. Raymond and the C.I. traveled to a prearranged location where Raymond took possession of the plastic bag containing cocaine. The C.I. was searched and no other drugs or contraband were found. The C.I. informed Raymond that he purchased the ounce of cocaine from the defendant for $1,100.00. While conducting the transaction, the C.I. related that he saw more cocaine in the apartment, approximately 7-8 ounces, and numerous firearms. Deon and Angie Williams and their children were present when the transaction took place.

On July 28, 2009, the C.I. conducted a second transaction, with a procedure similar to the first transaction being followed. The C.I. was given “buy funds” to purchase the cocaine. The C.I. was observed entering and leaving the apartment. At the prearranged meeting location, the C.I. turned over approximately one ounce of cocaine purchased with the buy money provided by Raymond. The C.I. informed Raymond that he had Rheard the defendant stating that he was expecting more narcotics to be delivered to the apartment later that day. The police report states that a search warrant was obtained following this second transaction. However, the record does not contain a copy of that search warrant. Additionally, none of the reports contained in the record provide any information on whether or not the referenced warrant was executed on the apartment.

On September 29, 2009, members of Shreveport Police Department’s narcotics unit or the “MLIU” were conducting surveillance on the apartment because it was believed that there was ongoing drug-related activity at that location. According to Raymond’s testimony during the motion to suppress hearing, after the two initial purchases from the defendant, the C.I. had been unable to make contact for additional purchases. Raymond attempted to use another C.I. in August 2009, to attempt a purchase from the defendant at the apartment. However, that effort also fell short. Because the MLIU had been unable to make further purchases, surveillance was set up on September 29, 2009, on the apartment.

The defendant, Collins, and Timothy Johnson were seen leaving the apartment. The officers conducting the surveillance contacted a patrol officer, Corporal Colvin, and requested that a traffic stop be made on the vehicle once he observed a traffic infraction. The details of the traffic stop were related by Colvin during the suppression hearing for Collins.

^Following the traffic stop, the defendant was arrested for outstanding warrants, and Collins was arrested for an open container violation. Both were transported to the parish jail. When Collins was removed from the patrol car, crack cocaine was found under his shoe outside of the car. This information was related to Raymond, who applied for a search warrant several hours later. The affidavit for the warrant included information about the discovery of the narcotics from Collins’ arrest as well as information based on the two previous buys made by the C.I. The warrant was executed shortly after it was obtained. The search of the apartment led to the seizure of approximately 26.5 ounces of powder cocaine, approximately 31 grams of crack cocaine, a digital scale with powder residue on it, and documents with the defendant’s name on them. Raymond expressed that the documents with the defendant’s name on them showed proof that he had “associations with this apartment.”

Anthony “Deon” Williams (hereinafter referred to as “D. Williams”), the defendant’s brother, and his sister-in-law, Angela “Angie” Williams (hereinafter referred to as “A. Williams”), were in the apartment with their children when the warrant was executed. The couple was interviewed and D. Williams reported that his brother, the defendant, had come to the apartment the day before and left a bag in a closet in the apartment. D. Williams indicated he had not looked in the bag but he suspected it contained drugs. A. Williams also reported that the defendant left the bag in the house and she had seen him taking something from the bag, but she was |fiunable to see the object he removed. A. Williams stated that she did not know what was in the bag.

During the search, two bags containing large quantities of powder and crack cocaine were discovered in a bedroom closet. A digital scale was discovered in the kitchen near the stove, and white powder residue was observed on the stove burners. According to Raymond, this was an indication that someone had been “making crack cocaine from the powder cocaine.”

Subsequent to the search, the defendant was charged by bill of information with conspiracy to possess cocaine (400 grams or more), a violation of La. R.S. 40:967(F)(l)(c) and La. R.S. 14:26; and simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. Waco Collins, a co-defendant, was charged by separate bill of information with conspiracy to possess cocaine (400 grams or more), a violation of La. R.S. 40:967(F)(l)(c) and La. R.S. 14:26, and possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(A)(1).

The defendant and Collins filed motions to suppress the evidence. Collins filed a motion to suppress the evidence seized during a search incident to an arrest following a traffic stop. The trial court denied the motion to suppress and Collins sought writs with this Court. In State v. Collins, supra, this Court granted the writ, reversed the trial court’s ruling and ordered all evidence seized in conjunction with the traffic stop | (-.suppressed. Following the ruling in Collins, the defendant filed a motion to reconsider the trial court’s prior denial of his motion to suppress, and a hearing was held June 27, 2011.

Raymond testified during the hearing on the motion to suppress and related the information regarding the two C.I. purchases, the surveillance of the defendant and the search that led to the discovery of the drugs at the apartment. Following arguments by the state and defense, the trial court ruled on the motion to suppress. The trial court opined that there were several issues involved in the case. The initial question was whether or not the portion of the affidavit pertaining to the stop that was ruled illegal could be separated from the affidavit and still make a showing of probable cause sufficient for issuance of a warrant. The trial court ruled that, based on the two C.I. purchases, there would have been sufficient probable cause to issue the warrant. The trial court concluded there was sufficient information in the affidavit, after excising the information pertaining to the traffic stop, to substantiate probable cause for the issuance of a search warrant. Following this conclusion, the trial court determined that the issue to be decided would be whether or not the delay between the sales and the application for the search warrant (approximately 62 days) would render the information contained in the affidavit stale or untimely.

In reviewing the issue of timeliness on the request for the warrant based on information more than 60 days old, the trial judge found that the information in the warrant supported the theory that the defendant was operating an ongoing enterprise. The trial judge considered the significant 17quantities of cocaine observed in the apartment during the first purchase (an additional seven or eight ounces of cocaine) and that the defendant indicated additional cocaine was expected on the day of the second purchase. Further, the trial judge considered the fact that weapons were observed in the apartment and other adults and children were present during the purchases. The defendant now seeks review of the trial court’s ruling.

DISCUSSION

Pretextual Stop

In this writ grant, the defendant is asserting three assignments of error. In the first assignment of error, he asserts that there was a pretextual traffic stop to look for narcotics, and that the police officer who made the stop testified at the suppression hearing that the probable cause for the stop was an illegal lane change. He contends that since a video of the stop contradicts the officer and shows no probable cause for the stop, all evidence seized as a result of the stop should be suppressed. More specifically, the defendant urges that evidence derived from that pre-textual stop should be suppressed as the stop was illegal and any evidence obtained should be considered fruit of the poisonous tree.

La. C. Cr. P. art. 703(D) provides:

On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

When the appellate court reviews a trial court’s ruling on a motion to suppress, based on findings of fact, great weight is placed upon the trial Rcourt’s ruling on a motion to suppress because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App. 2 Cir. 05/08/96), 674 So.2d 1082, 1084, citing State v. Jackson, 26,138 (La.App. 2 Cir. 08/17/94), 641 So.2d 1081. Accordingly, we review the district court’s ruling on a motion to suppress under the manifest error standard for factual determinations, as well as credibility and weight determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App. 2 Cir. 11/17/06), 942 So.2d 1263, 1271, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441, citing State ex rel. Thibodeaux v. State, 2001-2510 (La.03/08/02), 811 So.2d 875.

A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. White, 39,681 (La.App. 2 Cir. 5/11/05), 903 So.2d 580; State v. Normandin, 32,927 (La.App. 2 Cir. 12/22/99), 750 So.2d 321, writ denied, 00-0202 (La.9/29/00), 769 So.2d 550.

Jurisprudence has established that officers may make an initial traffic stop after observing a traffic infraction even if the purpose of the stop is to investigate for CDS violations. State v. Arnold, 34,194 (La.App. 2 Cir. 12/6/00), 779 So.2d 840; State v. Franklin, 31,068 (La.App. 2 Cir. 09/23/98), 719 So.2d 578, writ denied, 98-2982 (La.03/19/99), 739 So.2d 781, citing Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

|flIn this case, the issue regarding the initial stop of the vehicle in which the defendant was a passenger was fully reviewed by this court in State v. Collins, supra. The defendant is correct in his assertion that evidence derived from the search following the stop should be suppressed. As noted by the defendant in his brief, this court has previously ruled that the evidence obtained as a result of the illegal traffic stop should be suppressed.

The facts of the illegal stop referenced by the defendant are succinctly outlined in State v. Collins, supra. The stop of the vehicle, in which the defendant was a passenger, was based on a traffic stop for a violation that we later learned the reporting/arresting officer did not observe. The patrol officer acted at the behest of the narcotics officers, and based on the narcotics officers’ observation of an alleged violation, a stop of the vehicle was made. As stated previously, all occupants of the vehicle, which included the defendant, Johnson, and Collins, were eventually arrested.

Following the trial court’s denial of Collins’ motion to suppress, this court viewed the dashboard camera recording from the arresting officer’s patrol vehicle, and concluded that the traffic officer would have been unable to actually see the traffic violation which was alleged to be the reason for the initial traffic stop. Following that finding, this Court determined the evidence derived from the illegal stop was inadmissible, and any evidence obtained from the stop should be considered fruit of the poisonous tree. However, this finding is not determinative as to whether the evidence seized from the apartment is admissible.

[ ^Search Warrant

In defendant’s second assignment of error, he suggests that since the evidence gleaned from the traffic stop was listed in an affidavit for the search warrant to search the apartment, all evidence obtained from the apartment should be suppressed under the exclusionary rule as fruits of the poisonous tree. He argues that the warrant, without evidence and information obtained from the traffic stop, does not establish probable case.

In the third assignment of error, the defendant alleges that the search warrant was stale, and that the evidence obtained through it should be suppressed under the exclusionary rule as fruits of the poisonous tree. Since these two assignments relate to the validity of the search warrant, we will discuss them together.

The defendant believes that once the facts surrounding the illegally seized evidence are removed from the warrant affidavit, there would be insufficient facts and/or information contained in the application to justify a warrant being issued. In the alternative, the defendant argues that the information of the prior sales would be “stale” and as such, a warrant should not have been issued.

La. C. Cr. P. art. 162 implements the requirements of the federal and state constitutions regarding the issuance of search warrants:

A. A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
C. A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

_[nThe warrant should be tested in a commonsense and realistic manner without technical requirements of elaborate specificity. State v. Stapleton, 40,772 (La.App. 2 Cir. 3/8/06), 924 So.2d 453; State v. Huffman, 419 So.2d 458 (La.1982).

Probable cause to search exists when the totality of the circumstances allows the conclusion that there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351. A search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Further, the affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. Id.

Probable cause for the issuance of a search warrant does not involve certainties of proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior as understood by persons trained in law enforcement and based on the totality of the circumstances. State v. Shumaker, supra. The affidavit need not eliminate all possible innocent explanations of the described behavior. State v. Loera, 530 So.2d 1271 (La.App. 2 Cir.1988), writ denied., 536 So.2d 1252 (La.1989).

The making of material and intentional misrepresentations to a magistrate involves a fraud upon the courts and will result in the | ^invalidation of the warrant and suppression of the items seized. State v. Byrd, 568 So.2d 554 (La.1990). If the misrepresentations or omissions are inadvertent or negligent, the warrant will be retested for probable cause after supplying that which had been omitted or striking that which had been misrepresented. Id.

A search warrant will withstand an attack of “staleness” if the facts contained in the affidavit have not become so attenuated with the passage of time so as to render those supporting facts nonexistent. Stated another way, “the proof (of probable cause) must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” State v. Thompson, 354 So.2d 513 (La.1978) (internal citations omitted).

A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists. Thus, staleness is only an issue when the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed. State v. Casey, supra.

In State v. Tate, 407 So.2d 1133 (La.1981), which involved the theft of a motorcycle, the court determined that even though two and one-half months elapsed between earlier observations of the affiant at the storage room maintained by the defendant, and the issuance of a search warrant to search the storage room, it did not render the search warrant stale.

Based on the record before this Court, the trial court correctly issued the warrant for the search of 541 East Stoner Street, Apt. 20-294. Based on Lathe previous sales, the ongoing surveillance, as well as the discovery of narcotics following the arrest of Collins, the trial court was provided with sufficient facts within the four corners of the warrant for it to reasonably conclude that there was a nexus between the apartment and the narcotics sales and storage. Further, it was reasonable for the trial court to conclude that evidence could be found in the apartment at the time the warrant was issued and/or executed.

However, the warrant application also contained evidence that should not have been considered when the warrant was issued. The proper remedy for curing this defect is to excise the information pertaining to the illegal arrest and then review the application anew for a probable cause determination. The trial court properly reached this conclusion.

In State v. Culotta, 343 So.2d 977 (La.1976) at p. 982, the supreme court held:

We do not believe that the scope of the constitutional provision was necessarily intended to exclude from the trial evidence otherwise untainted, secured through a search warrant, because part of the showing made in the affidavit used to secure the warrant is based upon evidence illegally obtained from third persons and inadmissible, if objected to at trial, against either them or the accused. (If the sole basis of the affidavit was such illegally-secured evidence, our conclusion might well be different.)

The warrant application detailed the two purchases, as well as the CJ.’s observation of additional narcotics and weapons in the apartment on more than one occasion. These facts, standing alone, sufficiently establish probable cause for the trial court to conclude that there was a fair probability that drugs and or weapons would be found in that apartment.

114The defendant argues that the information contained in the warrant application is “stale,” since the drug transactions occurred more than two months prior to the search warrant being issued. We find that the passage of time, slightly over 60 days, does not render the information based on the two previous independent sales insufficient to support a finding of probable cause. The trial court determined that “an ongoing enterprise” existed based on the totality of the circumstances, which included continued sales and surveillance. This determination is a reasonable conclusion. These facts established a probable continuing nexus between the place, the apartment, sought to be searched and the property sought to be seized, which included narcotics, evidence of drug transactions, weapons, and mail addressed to the defendant.

Affording great weight to the trial court’s determinations, there is nothing in the record to suggest that the trial court erred in its ruling. Accordingly, we find assignments of error two and three merit-less.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s ruling finding the evidence seized pursuant to the warrant, from the apartment located at 541 East Stoner Street, admissible in proceedings against the defendant, Timothy D. Williams.

AFFIRMED.

      . For a detailed statement of the facts and procedural history of that case, please refer to this court’s previous opinion in State v. Collins, 45,979 (La.App.2d Cir.12/22/10), 87 So.3d 857, writ denied, 2011-0168 (La.3/25/11), 61 So.3d 667.

      . Following the trial court’s ruling on the motion to suppress, the court took up the defendant’s motion to quash the bill of information based on the improper joinder of the two charges. The state entered a nolle prose-qui as to Count Two — simple burglary of an inhabited dwelling, and rebilled the defendant in a separate case. The matter is currently pending and scheduled for a status hearing on March 12, 2012.


author: GASKINS, J.

text:
    TOWN OF ST. JOSEPH, Plaintiff-Appellee v. Ivan WEBB, Defendant-Appellant.
    No. 46,923-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.
    Rehearing Denied April 5, 2012.

      Darrell K. Hickman, for Defendant-Appellant.
    Koch & Messer, Baton Rouge, LA, by Karl J. Koch, Rusty M. Messer, Jason B. Thrower, for Plaintiff-Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

| ;The defendant, Ivan Webb, was originally found in violation of a town ordinance by a mayor’s court. He appealed to the district court for a trial de novo. The district court likewise found that the defendant violated the ordinance and fined him $100 per day for the 582 days the violation had continued, or $58,200. The defendant failed to appeal that judgment but subsequently filed a motion to annul judgment, which was denied. The defendant now appeals from the judgment denying his motion to annul judgment. We reverse and reduce the defendant’s fine from $58,200 to $100.

FACTS

In pertinent part, the Code of Ordinances of the Municipality of St. Joseph provides:

Chapter 19
Planning and Development Regulations
Article C. Permit
Section 19.13 Permit required.
No building or other structure shall be built or constructed in the Town of St. Joseph without there first being obtained a permit from the Mayor and Board authorizing or approving the con- • struction of such building or other structure.
Article D. Zoning Ordinance
SECTION VII. ADMINISTRATION AND ENFORCEMENT
A. GENERAL PROVISIONS
3. Violations and Penalties. Any person violating or neglecting or refusing to comply with any provision of this ordinance shall, upon conviction, be fined one hundred dollars ($100) for each offense, and each day a violation is continued shall constitute a separate offense.

|2The defendant’s father owned a tract of land located at Maple Street and 8th Street in St. Joseph. The defendant successfully petitioned the St. Joseph Board of Aldermen to place a mobile home on the property in November 2006. Additionally, the defendant requested that he be allowed to place several more mobile homes on the lot in the future. One of the aldermen disagreed with this request. After discussion, the board voted to allow him to place only one mobile home on the lot.

Thereafter, the defendant placed a second mobile home on the lot without first obtaining a permit for it. An ordinance violation ticket was issued on February 7, 2007. However, it gave the wrong ordinance citation; this was corrected by certified letter dated February 14, 2007. A sworn complaint was executed on March 8, 2007. The defendant’s request before the board of aldermen for a permit for the second mobile home was denied at the regular ■ monthly meeting on March 12, 2007.

Trial before the mayor’s court was held on October 25, 2007. Judge Glynn D. Roberts was appointed by the Louisiana Supreme Court to preside over the case due to a conflict of interest involving the mayor. In oral reasons for judgment, Judge Roberts found the following: (1) there was a valid ordinance on February 14, 2007, the date of the corrected citation; (2) the defendant did not obtain a permit; (3) the defendant thus violated the ordinance; and (4) the sanction for this violation is $100 per day for every day that the trailer is on the property. Written judgment was signed November 9, 2007, ordering the defendant to pay a fine of $100 per day |sfrom February 14, 2007, until such time as the trailer was removed from the lot.

The defendant filed a motion for appeal before the district court, pursuant to La. R.S. 13:1896. On September 18, 2008, trial de novo was conducted before Judge Michael Lancaster in the Sixth Judicial District Court. Testimony was given by May- or Edward Brown and the defendant. The court rendered judgment in favor of the Town, finding that the defendant was in violation of the ordinance. It rendered judgment against the defendant in the amount of $58,200, representing a fine of $100 per day for 582 days, beginning February 14, 2007, through the date of trial. Judgment was signed October 8, 2008.

The defendant filed a motion for appeal from the district court judgment. The minute entry of December 1, 2009, demonstrates that the appeal was dismissed due to the defendant’s failure to pay appeal costs. The Town began efforts to execute the October 8, 2008, judgment. In October 2010, it filed a motion for examination of judgment debtor and a motion for execution by writ of fieri facias. Pursuant to the motion for execution by writ of fieri facias, the court ordered that two lots in St. Joseph, allegedly belonging to the defendant, be seized and sold.

In December 2010, the defendant filed a motion to annul judgment and stay proceedings. He alleged that the judgment was an absolute nullity because it arose from a matter that originated in a mayor’s court and the amount of $58,200 exceeded the jurisdictional limits of the mayor’s court. ^Furthermore, the defendant argued that the ordinance applied in this case does not apply to mobile homes.

In opposition to the motion to annul judgment, the Town asserted that no grounds for a nullity action were stated in the motion, which should have made allegations that the judgment should be annulled for vices of form or substance. The motion to annul was heard and denied on March 28, 2011. On April 13, 2011, the judgment denying the motion to annul was signed.

On May 17, 2011, the defendant filed a motion for suspensive appeal and an alternative motion for devolutive appeal from the April 13, 2011, judgment. The district court granted a devolutive appeal.

On October 18, 2011, the Town filed a motion to dismiss the appeal. It argued that the defendant was actually attempting to seek review of the October 8, 2008, judgment under the guise of an appeal of the April 13, 2011, judgment. This court denied the motion on November 3, 2011.

LAW

On appeal, the defendant contends that the district court judgment is null because (1) the matter originated in a mayor’s court which can impose fines only up to $500 under La. R.S. 33:362 and (2) the district court, acting as an appellate court conducting a trial de novo on appeal, cannot render a more severe punishment than the one being appealed from the mayor’s court.

In order to resolve the issues presented on appeal, we first must review the law pertaining to mayor’s courts.

IsMayor’s courts are courts which have jurisdiction to conduct trials, determine guilt, and impose sentences including fines and imprisonment for breach of municipal ordinances. Sledge v. McGlathery, 324 So.2d 354 (La.1975); State v. Foy, 401 So.2d 948 (La.1981). These courts still exist today pursuant to La. Const. Art. 5, § 20, which allows that “[mjayors’ courts ... existing on the effective date of this [1974] constitution are continued, subject to change by law.”

The jurisdiction of a mayor’s court is set forth in La. R.S. 33:441(A)(1), which states:

[TJhere shall be a mayor’s court in the municipality, with jurisdiction over all violations of municipal ordinances. The mayor may try all breaches of the ordinances and impose fines or imprisonment, or both, provided for the infraction thereof.

This statute contemplates the enforcement of the city ordinances only through criminal proceedings. City of Harahan v. Olson, 250 La. 999, 200 So.2d 874 (1967). However, see and compare City of Broussard v. Watkins, 2003-1383 (La.App. 3d Cir.3/31/04), 869 So.2d 962, wherein the appellate court found that, even though the lower courts had treated it as a criminal matter, a case involving the suspension of an occupational licence due to an ordinance violation was actually a civil matter. In so concluding, |fithe court observed that the violators suffered no loss of liberty, incarceration or fine.

Mayor’s courts are specifically excluded from the definition of “court” and “city court” in the Louisiana Code of Criminal Procedure. However, the term “magistrate” utilized in the Louisiana Code of Criminal Procedure does include a mayor of a mayor’s court. See La. C. Cr. P. art. 931.

La. R.S. 33:362 states that the legislative powers of a municipality shall be vested in and exercised by the board of aldermen and that the board may enact and enforce ordinances by fine not to exceed $500 or by imprisonment not exceeding 60 days, or both.

The procedure for appealing from a mayor’s court decision is provided in La. R.S. 13:1896. In relevant part, it states:

A. Mayor’s courts and justice of the peace courts. (1) In criminal cases, the district courts have appellate jurisdiction ... except as otherwise provided by law, over all appeals from a mayor’s court where a person has been subjected to imprisonment or a forfeiture of rights or property. Appeals from mayor’s courts and justice of the peace courts, as provided for herein, shall be tried de novo. Any forfeiture or penalties collected by the district court on appeal from a conviction of a municipal ordinance shall be distributed and disbursed to the municipality.

Where a trial de novo is provided for on appeal from a judgment of a municipal or other inferior court, the genei’al rule is that the case is to be tried without regard to the decision of the magistrate and as if originally commenced in the appellate court and the latter court necessarily is required to enter its own independent judgment. Town of Sulphur v. Stanley, 207 La. 1075, 22 So.2d 655 (1945). However, on this appeal, the district court is limited to the penalty assessed by the lower court and may not impose a 17more severe sentence. State v. Debose, 235 La. 875, 106 So.2d 294 (1958); City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974); State v. Badeaux, 309 So.2d 337 (La.1975).

Discussion

The mayor’s court clearly had subject matter jurisdiction to institute and adjudicate the violation of the ordinance in this case. Likewise, the district court had jurisdiction to hear the appeal of this matter by trial de novo.

The ordinance language at issue here provides that: “any person violating ... this ordinance shall, upon conviction, be fined ... for each offense, and each day a violation is continued shall constitute a separate offense.” Nothing in the original ticket, the letter correcting the ordinance citation or the sworn complaint indicated that the defendant was charged with more than one offense. Constitutional due process requires that a defendant being prosecuted in a mayor’s court be afforded reasonable notice of the charge against him. See City of Kenner v. Marquis, 98-418 (La.App. 5th Cir.6/4/98), 715 So.2d 85, writ denied, 98-1806 (La.10/16/98), 726 So.2d 907. As the defendant was given notice of only one offense, he may be sentenced for only one offense.

|sThe complaint filed against the defendant alleged that “the accused” violated the ordinance on a specified date. The complaint concludes as follows:

WHEREUPON, AFFIANT charges the ACCUSED with having committed a violation of said Section, and prays that the ACCUSED may be arrested and dealt with according to law[.]

We find that the case before us is a criminal matter. City of Harahan v. Olson, supra. Because it involves prosecution of a criminal offense, we hold that La. C. Cr. P. art. 882(A) is applicable. It states: “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”

In conducting its trial de novo, the district court was required to make its own independent judgment of the matter — as long as it did not impose a more severe penalty than the one imposed by the may- or’s court. However, we find that the district court was restricted to the charging document utilized in the mayor’s court. Based upon our review of the record, we conclude that the complaint from the may- or’s court brought charges only for one violation.

As a result, we find that the imposition of a fine of $58,200 for violations of the ordinance for 582 days constituted an illegal sentence which we may correct at any time. Therefore, we reduce the fine imposed upon the defendant to $100 for a one-day violation of the ordinance at issue.

laCONCLUSION

The judgment of the district court on the motion to annul judgment is reversed. We reduce the defendant’s fine from $58,200 to $100.

REVERSED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, DREW and MOORE, JJ.

Rehearing denied.

STEWART, J., would grant rehearing.

      . The record indicates that the defendant placed the first trailer on the property before he requested the permit.

      . For an interesting and thorough review of the legal oddity which is the mayor’s courts, see State v. Fontenot, 535 So.2d 433 (La.App. 3d Cir.1988). There the third circuit made several keen observations about mayor’s courts, including:
      Is there a body of statutory law which governs mayor’s courts? We find none.... We conclude that except for the statute creating mayor's courts, LSA-R.S. 33:441 (and related Section 442) and the provision of appeals, LSA-R.S. 13:1896, mayor's courts appear to be on their own.
      This remains the state of the law in Louisiana. We note that the vast majority of existing statutes pertaining to mayor’s courts involve either the abolition or establishment of individual courts in various cities, towns and villages throughout the state.

      . While the ordinance contemplates that the offender may be charged each day for the offense, the fact remains that the offender must be given notice of these charges. See and compare State ex rel. Hohn v. Baker, 105 La. 373, 29 So. 940 (1901).
      We pretermit any discussion of whether the mayor’s court would have had subject matter jurisdiction over this matter if the charging document had included multiple offenses which would have exceeded its $500 jurisdictional limit.

      . Even though this fine is now in the posture of being enforced in either civil court, criminal court, or both, pursuant to La. C. Cr. P. art. 886 and 886.1, we still find that we may amend this illegal sentence.


author: DREW, J.

text:
    Marilyn LOFTUS and Lynn Loftus, Plaintiff-Appellant v. Leland KUYPER and Raymond W. Davis Construction, Inc., Defendant-Appellee.
    No. 46,961-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.

      Jack Bailey Law Corporation, Shreveport, LA, by Jack M. Bailey, Jr., Heather R. Ray-Lafitte, for Appellants, Marilyn Loftus & Lynn Loftus.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Sidney Earl Cook, Jr., Elizabeth Mendell Carmody, for Appel-lees, Leland Kuyper and Raymond W. Davis Construction, Inc.
    Casten & Pearce, A.P.L.C., Shreveport, LA, by Marshall Reeves Pearce, for Appel-lees, Jody and Ronny Walker and State Farm Fire & Casualty Co.
    Johnson, Stiltner & Rahman, by Musa Rahman, Baton Rouge, LA, for Interve-nor/Appellee, Louisiana Workers’ Compensation Corporation.
    Voorhies & Labbe, Lafayette, LA, by Mary McCrory Hamilton, for Appellee, Atlantic Casualty Insurance Co.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

| Marilyn Loftus and her husband Lynn Loftus appeal a summary judgment granted in favor of Jody and Ronald Walker.

We affirm.

FACTS

The Walkers were interested in having a home built for them in Shreveport. They entered into a written contract with Raymond W. Davis Construction, Inc. (“RWDC”), to frame the house and to perform the carpentry work. The contract provided that RWDC was to “furnish all the labor, material, tax, and insurance” for the construction of the new residence. Raymond Davis had helped build a home for the Walkers nearly 20 years earlier, and he had performed construction work at their trucking business. Leland Kuyper was one of RWDC’s employees working on the home.

The Walkers entered into verbal contracts with other contractors including Arkla Electric, Grand Cane Plumbing, and Danny Corley Painting. Marilyn Loftus was an employee of Corley Painting.

In order to protect the finished stairs in the home from damage caused by the workers who were building the home, Kuy-per tacked cut-to-size sheets of plywood to the stairs. Marilyn alleged that when she was descending the stairs while working, a sheet of plywood came loose, which caused her to fall down the stairs and become injured.

The Loftuses filed suit against Kuyper, RWDC, and the Walkers, alleging that the Walkers were the general contractors on the project. Louisiana Workers’ Compensation Corporation filed a petition of | gintervention in the suit. In their answer to the original petition, RWDC and Kuy-per admitted that the Walkers were the general contractors. The Loftuses amended their petition to add Ohio Casualty Insurance (the Walkers’ builders’ risk insurer), State Farm (the Walkers’ renter’s insurer), and Atlantic Casualty Insurance (RWDC’s general liability insurer) as defendants.

The Walkers filed a motion for summary judgment contending that they were not liable for Marilyn’s alleged injuries because they did not supervise the employees of RWDC or Corley Painting, and were not involved in the day-to-day supervision or control of the employees. The Walkers offered excerpts from the depositions of Ronald Walker and the Loftuses in support of their motion. When the Walkers and State Farm filed an amended motion for summary judgment, they attached an excerpt from Kuyper’s deposition to their motion.

The Loftuses opposed the motions for summary judgment with the depositions of Ronald Walker and Raymond Davis, the Walkers’ written contract with RWDC, and a flow chart prepared by the Loftuses’ counsel.

The trial court granted the motions for summary judgment, determining that Ron-aid Walker did not supervise or control the employees of either RWDC or Corley Painting. The trial court further noted that:

• because there was no employment relationship between the Walkers and RWDC or Corley Painting, any alleged OSHA violations did not constitute a cause of action;

• although the OSHA regulations and alleged violations could still be offered as evidence of negligence, the alleged OSHA violations were not relevant to the Loftuses’ claims as they were inapplicable to the circumstances of this case.

| ..DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau 07-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, ie., whether there is any genuine issue of material fact, and whether the mov-ant is entitled to judgment as a matter of law. Id.

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 966(C)(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

|/This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. At that point, the party who bears the burden of persuasion at trial, usually the plaintiff, must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, supra.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049.

Duty to supervise

The Loftuses argue on appeal that the Walkers are vicariously liable for the torts of the contractors they hired under a theory of respondeat superior. They also contend that by acting as the general contractor on the project, the Walkers assumed the duty of supervision of the contractors and the project.

Generally, masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed. See La. C.C. art. 2320. The concept established |sby La. C.C. art. 2320 is called “vicarious liability.” However, vicarious liability does not apply when an independent contractor relationship exists. Oliveaux v. St Francis Medical Center, 39,147 (La.App.2d Cir.12/15/04), 889 So.2d 1264, writ denied, 2005-0454 (La.4/29/05), 901 So.2d 1067.

The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 2001-2875 (La.9/4/02), 825 So.2d 1125.

The supreme court has found the following factors to be relevant in determining whether the relationship of principal and independent contractor exists: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ nonexclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Hickman v. Southern Pac. Transport Co., 262 La. 102, 262 So.2d 385 (1972).

The most important inquiry is whether the principal retained the right to control the work. When applying this test, it is not the supervision and control actually exercised that is significant; the important question is whether, from the nature of the relationship, the right to do so exists. 6Hickman, supra; Ledent v. Guaranty Nat. Ins. Co., 31,346 (La.App.2d Cir.12/28/98), 723 So.2d 531.

Noting that the Walkers had separate contracts with RWDC and Corley Painting, the trial court recognized that this case was similar to the situation found in Pilgram v. Williford Roofing & Sheet Metal, Inc., 488 So.2d 269 (La.App. 3d Cir.1986), writ denied, 492 So.2d 1222 (La.1986), where a painter working on a home was injured when a roll of tar paper fell from the home’s roof during a renovation project. The painter sued the roofing company, construction company, and the homeowner. The painter alleged that the homeowner had a contract with the construction company as general contractor for the work being done on his home. The homeowner’s motion for summary judgment was granted.

The homeowner in Pilgram had either contracted with the construction company, and the company then contracted with a painting company and a roofing company, or the homeowner directly contracted with those companies to do the painting and roofing work. The homeowner had alleged in his answer that he had contracted with the painting and roofing companies. However, in a later affidavit, the homeowner stated he had not entered into a contract with the painting company. The court in Pilgram concluded that the issue of whether the painter was the employee of a subcontractor of a general contractor or the employee of an independent contractor of the homeowner may have been an unresolved fact, but it was not a material fact, as the record clearly showed the homeowner was not the 17painter’s employer and had no right of control over the painter’s actions and activities.

McCoy v. Liberty Mut. Life Ins. Co., 42,118 (La.App.2d Cir.5/9/07), 956 So.2d 802, involved the construction of a new home with the homeowner acting as his own contractor. The homeowner hired a heating and air conditioning contractor and a framing contractor. The heating contractor was injured when he fell down handrail-less temporary stairs that had been constructed by the framing contractor. He filed suit against the homeowner and the framing contractor. The defendants filed motions for summary judgment, with the homeowner arguing that he was not liable for the actions of the framing contractor over whom he retained no control. The trial court granted the defendants’ motions for summary judgment. This court affirmed the summary judgment, concluding that the stairs did not present an unreasonable risk of harm to the heating contractor as the condition of the staircase under construction was necessary and served a useful purpose for the construction. Although not critical to the resolution of the case, this court wrote that the framing contractor was an independent contractor with no contractual relationship with the heating contractor.

Raymond Davis was involved in both residential and commercial construction. He had a commercial general contractors license for 15 years, but had only recently obtained a residential general contractors license because he had just learned that one was required for remodelers.

Davis was not the general contractor on the project, but considered himself to be a subcontractor of the Walkers, who had hired him to do the | ^concrete, framing, and trim work. Davis was not sure if he also did the roof. Davis stated that he had been doing concrete, framing, and trim work for 30 years.

According to Davis, he had an open-ended contract with the Walkers on this project, which meant there was nothing definite other than they were going to build a house and change things as the Walkers decided they wanted to make changes. There were many verbal provisions that went along with the written contract, which was just basically something to show the bank when the Walkers borrowed money for the project. Although the contract stated that Davis was to provide all the labor, Davis explained that he could not provide all of it since he did not have a license to completely build the home, and the Walkers were the general contractor for the job. Davis further stated that the other contractors were not supervised by him.

Davis stated that sometimes changes were made by the Walkers weekly. If the Walkers wanted something changed, he would see if it could be done and how much it would cost. Davis explained that what he meant by changes was that the Walkers would change the layout from the blueprints. This is compared to change orders, which involve changes from detailed written contracts. According to Davis, an owner making changes was very common in construction jobs.

Davis testified that in regard to his work, all of his supervision and instruction on the job came from Walker. However, he also stated that he supervised his own employees. Davis added that the Walkers may have |nasked his workers to change something minor, but Ronald or one of his employees would have called him about it.

Ronald conceded that he did not have a job foreman or general contractor who was i’esponsible for all aspects of the job. However, he stated that he hired the contractors to do their jobs and he did not supervise them. Although Ronald went to the construction site on most days, he did not go out there to provide any supervision. His wife seldom went to the site. Ronald was retired from the trucking industry, and construction work and painting had not been part of his business or occupation. Building inspectors ensured that the contractors complied with building codes. Ronald never talked to the contractors about who was in charge of safety on the job site.

Ronald did not know what type of carpenter Kuyper was. RWDC had a total of three carpenters working on the house, and Ronald was unaware of their specific responsibilities. Ronald had nothing to do with supervising the carpenters, who were paid by RWDC.

Leland Kuyper testified that he thought that Ronald was the general contractor, but then he explained that Davis was in charge and would decide what he was going to do each day. If Davis was not on site, then Kuyper would decide what to do. Kuyper stated that Ronald would not decide what was done each day, as he was just the owner.

Davis never supervised Danny Corley or his employees other than to tell Corley the work that he needed to do. Marilyn Lof-tus testified that she was paid by Danny Corley. She also stated that Danny Cor-ley instructed her [10on what to do each day, and that all of her instructions came from Danny Corley. She never received instructions from the Walkers.

The mere absence of a designated licensed general contractor does not automatically lead to the conclusion that the Walkers became general contractor by default, with all legal obligations that flow from that title. The Walkers asked for changes to building plans, but this is not unexpected from homeowners. The Walkers did not have the right to control how the employees of each contractor did their jobs. The Walkers hired each contractor to fulfill a particular duty, and left it up to them to do the job they were hired to complete. There is no genuine issue of material fact regarding whether RWDC was an independent contractor on this construction project. Therefore, the Walkers were not vicariously liable for any damages caused to the Loftuses by the negligence of RWDC’s employees. The motion for summary judgment was properly granted.

OSHA regulations

The Loftuses contend that the Walkers had separate and distinct duties owed to their employees and agents under OSHA regulations, and the violations of these regulations caused harm to Marilyn.

OSHA regulations govern only employers and employees and do not create a private cause of action by a non-employee. Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La.App. 2d Cir.1993), writ denied, 629 So.2d 1170 (La.1993). However, a plaintiff may offer a statute or regulation as evidence of a defendant’s negligence even when that statute or regulation cannot be used to establish negligence per se. Id.

|nThe Loftuses merely cite various OSHA regulations in their brief and provide little in the way of argument on this issue. In any event, the OSHA regulations cited by the Loftuses are not relevant to the Walkers. Any alleged violations of the OSHA regulations are relevant to the liability of RWDC, not the Walkers.

DECREE

At the Loftuses’ costs, the judgment is AFFIRMED.


text:
    YELLOWBIRD INVESTMENTS, L.L.C., Plaintiff-Appellant v. Michael BARBER, Defendant-Appellee.
    No. 46,977-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2012.

      McMichael, Medlin, D’Anna, Wedge-worth & Lafargue, Shreveport, LA, by James C. McMichael, Jr., for Appellant.
    Roland V. McKneely, III, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

[tThe plaintiff, Yellowbird Investments, LLC (‘Yellowbird”), filed a petition to annul a default judgment rendered in favor of Michael Barber (“Barber”), the defendant herein, for damages caused when a rotten tree fell from neighboring property onto Barber’s property. The trial court rendered judgment dismissing Yellow-bird’s annulment action and ordering it to pay costs and attorney fees. Yellowbird now appeals, and Barber answers the appeal. Finding no error, we affirm but award additional attorney fees for the appeal.

FACTS

On March 8, 2010, Barber confirmed a default judgment against Yellowbird for property damages in the amount of $36,250 sustained when a rotten tree located at 3141 Edson in Shreveport fell onto his property located at 3145 Edson. Yellow-bird got notice of the default judgment on March 10, 2010. Months later, Yellowbird learned that Barber had caused the seizure of four pieces of property and that a sheriffs sale was scheduled for early September 2010.

On August 16, 2010, Yellowbird filed a petition to annul the default judgment under La. C.C.P. art. 2004 and to enjoin the sheriffs sale of the seized property. Yel-lowbird asserted that Barber obtained the default judgment by fraud or ill practices and that its enforcement would be inequitable and unjust. Yellowbird’s petition related that Barber had claimed that Yellow-bird, a co-tax sale owner of 3141 Edson, was renting the property to a tenant and was liable for the damages caused by the rotten tree. RHowever, Yellowbird asserted that Barber’s allegations in his petition for damages and testimony at the confirmation hearing were false.

Yellowbird’s petition states that it acquired only an 18% undivided interest in 3141 Edson at a tax sale on June 2, 2006, that it never had custody or control over the property, that it never leased it to a tenant, and that it had no knowledge of the condition of the rotten tree.

In his answer, Barber alleged that Yel-lowbird and its owner Randall Lee Har-ville (“Harville”), acting through Yellow-bird and other business entities in which he is a shareholder or member, routinely buy tax sale properties to lease.

The parties passed on the preliminary injunction hearing and proceeded to a trial of the annulment action on September 10, 2010. Though admitting that the service return from the original suit showed personal service on Yellowbird through its agent, Dianne Harville (“Dianne”), Yellow-bird sought to introduce testimony from both Harvilles to prove that Dianne was not served as indicated by the return. Both Harvilles were prepared to testify about their practice upon being served with a lawsuit to show that lack of service could have been the only explanation for Yellowbird’s failure to respond. Barber objected that such testimony would be an improper expansion of the pleadings. The trial court sustained Barber’s objection and denied Yellowbird’s request for time to amend its pleadings.

Testifying on behalf of Yellowbird, Har-ville explained that Yellowbird is a real estate investment company that bought an 18% tax sale ^interest in 3141 Edson in 2005. Its interest was redeemed in July 2009, after the damage to Barber’s property had occurred. Harville denied that Yel-lowbird ever took possession of the property. He testified that Yellowbird did not rent out 3141 Edson, did not inspect it, and did not insure it. He denied that Yellow-bird was even involved in the rental business. He explained that he and his wife Dianne rent out properties through another real estate investment business, Cody Investments, which has a 47% ownership interest in 3141 Edson from a tax sale in 2003. He further explained that their rental properties are managed by Delhi Properties. However, he denied that Delhi Properties ever managed 3141 Edson on behalf of Yellowbird.

On cross, Harville admitted to having ownership interests in numerous business entities that buy properties at tax sales and “in some cases” taking possession of such properties and renting them out.

After Barber’s brief testimony, which is not of relevance in this appeal, the trial court ruled in favor of Barber and denied Yellowbird’s annulment petition. The trial court found that Yellowbird failed to prove that the default judgment was obtained by any fraud or ill practice. It concluded that Yellowbird presented a factual dispute which does not suffice to annul a default judgment. The trial court noted that this was not a situation where there was a rush to get a default judgment. According to the trial court, Barber did exactly what the law allowed him to do and “didn’t even do it quickly.” Finally, the trial court noted that Yellowbird had two opportunities to respond to the suit, namely, when it was served and when it |4got notice of the default judgment. However, it did nothing to contest the judgment until Barber seized properties to satisfy the judgment.

Judgment dismissing Yellowbird’s claims and awarding Barber attorney fees in the amount of $1,500.00 was signed on October 25, 2010. On October 28, 2010, Yellowbird filed a motion for a new trial. After hearing arguments, the trial court denied Yellowbird’s motion and Barber’s request for additional attorney fees. Yel-lowbird’s appeal followed. Barber has answered the appeal to request additional attorney fees.

DISCUSSION

Yellowbird’s Appeal

In its first assignment of error, Yellow-bird asserts that the trial court erred in not annulling the default judgment, which was based on false testimony and misleading evidence. Yellowbird asserts that it would be inequitable and unconscionable to enforce the default judgment when it had an 18% tax sale interest in 3141 Edson, had never exercised possession over the property, had no knowledge of the condition of the tree, and was not aware that a suit had been filed against it. According to Yellowbird, the presentation of the tax sale deed as proof of its ownership of 3141 Edson was false and misleading evidence that does not establish its custody and control over the property. Yellowbird points out that its interest in 3141 Edson was redeemed.

La. C.C.P. art. 2004(A) states, “A final judgment obtained by fraud or ill practices may be annulled.” The two criteria for determining whether a judgment has been obtained by fraud or ill practice include: (1) whether |athe circumstances under which the judgment was rendered show that the litigant seeking relief was deprived of legal rights, and (2) whether the enforcement of the judgment would be unconscionable or inequitable. Belle Pass Terminal, Inc.v. Jolin, Inc., 2001-0149 (La.10/16/01), 800 So.2d 762; Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983); Payne v. Glass, 41,232 (La.App.2d Cir.8/23/06), 939 So.2d 526.

La. C.C.P. art. 2004 is not limited to cases of actual fraud or intentional wrongdoing. Rather, it encompasses situations in which a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. Kem Search, supra; Lieber v. Caddo Levee Distr. Bd. of Com’rs, 32,551 (La.App.2d Cir.12/8/99), 748 So.2d 587, writ denied, 2000-0561 (La.4/7/00), 759 So.2d 763, cert. denied, 531 U.S. 928, 121 S.Ct. 306, 148 L.Ed.2d 246 (2000). As stated by the supreme court, “Conduct which prevents an opposing party from having an opportunity to appear or to assert a defense constitutes a deprivation of his legal rights.” Kem Search, supra at 1070.

However, a nullity action is neither a substitute for an appeal from default judgment nor a solution to legal rights lost through a party’s negligence or failure to act. Payne v. Glass, supra, citing State, Dept. of Social Services, Office of Family Support in the Interest of Glass v. Robinson, 31,025 (La.App.2d Cir.9/23/98), 718 So.2d 609, writ not considered, 1998-2704 (La.12/18/98), 731 So.2d 277. It is neitherj^unconscionable nor inequitable to enforce a default judgment where the party seeking annulment had a valid defense but failed to timely assert it. An otherwise valid default judgment cannot be set aside merely to provide an opportunity for the party seeking annulment to offer a defense solely because the default judgment is erroneous and such action would be in furtherance of justice. Payne, supra; Robinson, supra.

A nullity action under La. C.C.P. art. 2004 is not a substitute for an appeal from a judgment that may be based on insufficient evidence or a misinterpretation of substantive law. Rather, the action provided by La. C.C.P. art. 2004 is “designed to afford relief against a judgment procured by methods viewed with disdain by the judiciary.” Lieber, supra at 590, citing Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).

A trial court has wide discretion in determining whether a judgment should be annulled because of fraud or ill practice. Kem Search, supra; Burkett v. Property of Douglas, 575 So.2d 888 (La.App. 2d Cir.1991).

We are not persuaded by Yellow-bird’s argument that Barber presented false and misleading evidence to obtain the default judgment and thereby committed an ill practice requiring annulment of the judgment. Review of the confirmation hearing transcript shows that Barber presented the facts as he knew them. He testified that the owner of 3141 Edson abandoned the property in about 2004 when he was incarcerated. Barber had not seen him since that time. He also testified that Yellowbird purchased a tax sale deed to the property. When the trial court asked Barber how he knew who was renting the property, Barber explained that he spoke 17to the person living at the house when the tree fell and learned that he was renting from “Delhi Properties for Yellowbird.” The trial court questioned whether Yellowbird “owned” the property when the tree fell but ultimately accepted the tax sale deed as sufficient evidence on this issue. The transcript shows that the trial court was aware that more than one tax sale purchaser had interests in 3141 Edson and that Yellowbird had purchased a partial interest only. Barber also testified that the tree had been rotten for a number of years and that he had spoken to the original owner about it when he first purchased 3145 Edson in 1997. Barber provided evidence of his damages and evidence indicating that the rotten condition of the tree had been apparent.

To recover damages caused by a defective thing, the plaintiff must prove that the defendant had custody of the thing, that the thing had a defect which presented an unreasonable risk of harm, that the defective condition caused the damage, and that the defendant knew or should have known of the defect. La. C.C. art. 2317; Ladner v. Trinity Group, Ltd., 45,937 (La.App.2d Cir.2/16/11), 57 So.3d 1197, writ denied, 2011-0580 (La.4/29/11), 62 So.3d 115. The evidence presented at the confirmation appears to state a prima facie case of fault under La. C.C. art. 2317. Even so, the failure to present sufficient proof is not an issue for a nullity action; rather, a failure of proof must be raised in a motion for a new trial or an appeal. National Income Realty Trust v. Paddie, 98-2063 (La.7/2/99), 737 So.2d 1270, citing Maraist and Lemmon, 1 Louisiana Civil Law Treatise, [ 8Civil Procedure, § 12.6 (1999). Even a court’s erroneous consideration of the law cannot be construed as an ill practice. Lieber, supra.

Yellowbird’s argument regarding the presentation of false and misleading evidence is unavailing. It is clear that Yel-lowbird’s true complaint concerns the sufficiency of the evidence upon which the default judgment was based and its failure to defend against Barber’s claims. We find no ill practice by Barber in obtaining the default judgment.

Yellowbird’s second assignment of error is that the trial court committed legal error when it refused to grant it leave to amend its petition to include the allegation that it had not been served in the original action. Yellowbird cites Chromaceutical Advanced Technologies, Inc. v. Lundy & Davis, L.L.P., 2008-653 (La.App. 3d Cir.2/4/09), 4 So.3d 227, writ denied, 2009-0428 (La.5/22/09), 9 So.3d 146, in support of its argument. Granting an exception of no cause of action, the trial court dismissed Chromaceutical’s petition to annul a default judgment. The trial court found that the petition failed to state grounds for annulment but merely alleged defenses that could have been asserted at the original trial on the merits. It denied Chroma-ceutical leave to amend its petition. Because Chromaceutical suggested at oral argument and in its brief that it could allege other grounds for annulment relating to lack of service or notice, the third circuit concluded that the trial court erred in denying leave to amend as required by La. C.C.P. art. 934.

lflHere, La. C.C.P. art. 934, which directs that the court “shall order” amendment of the petition, is not at issue. Yellowbird is not alleging lack of service as a separate ground for annulment based on a vice of form under La. C.C.P. art. 2002(A)(2). Instead, it is raising the issue in conjunction with its claim that Barber obtained the default judgment through some ill practice. Yellowbird asserts that the alleged lack of service, rather than its own inattention or neglect, is what prevented it from answering Barber’s suit and asserting its defenses to his claims.

In Payne v. Glass, supra, this court stated:

The absence of a valid and sufficient reason for a party’s failure to defend a suit in which a default judgment has been taken, when defenses could and should have been pleaded, precludes that party from later maintaining an action for nullity of the judgment for fraud or ill practices based on those defenses. [Citations omitted.]

The party seeking annulment must show that it was some fraud or ill practice by the other party that prevented it from asserting any defenses he may have had. Payne, supra; Robinson, supra.

Conduct which prevents a party from having an opportunity to appear or to assert a defense constitutes a deprivation of legal rights. Kem Search, supra. But this conduct is generally attributable to the opposing party, as the court explained:

Thus, when a party fails to defend a suit because of the failure of the opposing party to warn him that a default would be taken, this judgment may be annulled when the parties had an agreement to give notice of any action taken on the suit, or the defaulted party relied on facts which he reasonably believed created such an | ^agreement, and the enforcement of the judgment would be unconscionable and inequitable. [Citations omitted.]

Id., at 1070-1071.

Yellowbird acknowledges that Barber would have had no knowledge of whether service was properly executed. There are no facts showing that Barber did anything to prevent Yellowbird from answering the suit and asserting its defenses. Barber merely relied on the sheriffs return showing that Yellowbird had been served through its agent and proceeded in a “slow and deliberate” manner, as described by the trial court, to obtain the default judgment.

Even if the trial court erred in denying Yellowbird’s request for leave to amend its petition, we find that Yellow-bird’s amendment to allege lack of service would not strengthen its cause for annulment under La. C.C.P. art. 2004. Though the record does not include the sheriffs return, it does show that the parties agree that the sheriffs return indicates that personal service was made on Yellowbird’s agent. By relying on the sheriffs return in the prosecution of his suit against Yel-lowbird, Barber did not deprive Yellowbird of legal rights and did not commit any ill practice that requires annulment of the default judgment.

For these reasons, we find that the trial court did not abuse its discretion in dismissing Yellowbird’s annulment action. Barber’s Anstver

In his answer to the appeal, Barber seeks an increase in the award of attorney fees from $1,500 to $6,107.50, plus an additional amount for appeal. Barber’s counsel filed in the trial court an affidavit of attorney fees ^showing B4.9 hours of work. He asserts that because Yellowbird claimed the tax sale deed did not give it authority to possess or control the property, he researched R. Lee Harville’s connections with many businesses involved in buying and renting out abandoned properties. He also researched court records and discovered numerous lawsuits involving Harville and his companies. Counsel asserts that he had several witnesses ready to testify at trial but that Harville admitted to buying properties at tax sales and renting them out.

La. C.C.P. art. 2004(C) states, “The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.” We recognized that the trial court has much discretion in awarding attorney fees. Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App.2d Cir. 12/8/99), 748 So.2d 594; Allen v. Burnett, 530 So.2d 1294 (La.App. 2d Cir.1988).

Upon reviewing this record, we cannot say that the trial court abused its discretion awarding $1,500 in attorney fees for this matter. Research pertaining to other companies owned by Harville and suits involving those companies was not germane to the ultimate issues in this matter, namely, whether the default judgment was obtained through some fraud or ill practice by Barber and, specifically, whether the evidence offered by Barber concerning Yellowbird’s connection with 3141 Edson was false or misleading. However, we do find that an additional award of attorney fees in the amount of $1,000 is appropriate for appellate work.

I ^CONCLUSION

For the reasons explained in this opinion, we affirm the judgment of the trial court and award $1,000 in additional attorney fees for this appeal. Costs are assessed to the plaintiffiappellant, Yellow-bird Investments, LLC.

AFFIRMED.

      . This case involved a party seeking annulment of a default judgment under La. C.C.P. art. 2002(A)(2), not La. C.C.P. art. 2004 as in the case sub judice.

      . La. C.C.P. art. 934 states, in relevant part,

        "When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.”

      . Pursuant to La. C.C.P. art. 2002(A)(2), a final judgment shall be annulled if it is rendered against a defendant who has not been served with process and who has not waived objection to jurisdiction, or against whom a valid default judgment has not been taken.