author: AMY, Judge.

text:
    Benjamin Brian HULSHOFF v. Jennifer Marie HULSHOFF.
    No. 11-1055.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Randy J. Fuerst, Fuerst Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Benjamin Brian Hulshoff.
    John Green, Jr., Lake Charles, LA, for Defendant/Appellant, Jennifer Marie Hul-shoff.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

| ¶ This case arises from a custody dispute between the parties. As part of their divorce proceeding, the parties entered into a stipulated judgment which addressed custody and visitation with regard to their two minor children. The plaintiff later sought, among other things, a change in custody and a restraining order preventing the defendant from moving to Florida with the children. Despite the existence of a restraining order, the defendant moved to Florida with the children. After a hearing, the trial court found that the stipulated judgment did not permit the defendant to move out of state with the children and that the defendant was in bad faith. The trial court ordered that the children be returned to the State of Louisiana. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Benjamin Brian Hulshoff, and the defendant, Jennifer Marie Hul-shoff, were married in 2004. The parties have two minor children. According to the record, in 2009, after some marital discord, Ben asked Jennifer for a divorce. According to Ben’s testimony, Jennifer did not want to get a lawyer because of the expense, so she drafted the divorce documents, including, as relevant to this case, joint stipulations and an associated stipulated judgment regarding custody and support. On May 11, 2009, Ben filed a petition for divorce under La.Civ.Code art. 102. The stipulated judgment was signed by the court on that date. No appeal of the stipulated judgment was taken.

|2On September 16, 2009, Ben filed an amended petition and rule for modification, seeking, among other requests, to modify the stipulated judgment to reflect that Jennifer could not move out of Louisiana with the children. The trial court issued a restraining order on that date reflecting that the children could not be removed from Calcasieu Parish and setting a hearing on the matter. Jennifer subsequently filed an exception of res judicata asserting that the stipulated judgment permitted her to move out of state with the children.

The record indicates that Jennifer and the children moved to Florida on October 8, 2009, while the restraining order was still pending and without notifying Ben. Ben filed a second amended petition on October 19, 2009, which sought, among other things, nullification of the stipulated judgment, a change in custody, and the return of the children. In response, Jennifer re-urged her exception of res judicata and asserted an exception of no cause of action.

After a hearing on the custody issues, the trial court found that the stipulated judgment was not a nullity, but that it did not provide express written consent for Jennifer to move out of Louisiana with the children. The trial court therefore found that the Louisiana relocation statutes, La. R.S. 9:355.1 et seq., were applicable. After making lengthy findings of fact, the trial court determined that Jennifer was in bad faith in moving to Florida. Accordingly, the trial court entered judgment ordering that the children be returned to Moss Bluff, Louisiana and that Ben and Jennifer have “joint care, custody and control” of the children. Finally, the trial court ordered that Jennifer be named domiciliary parent if she relocated to LMoss Bluff with the children. If Jennifer did not relocate with the children, Ben was to be named domiciliary parent.

Jennifer appeals, asserting as error that:

1) The Trial Court failed to dismiss the suit for return of the children to the State of Louisiana filed by BENJAMIN on October 16, 2010. The issue of her initial relocation was already decided in the Judgment from May 11, 2009. The Trial Court erred in not granting the Exceptions of Res Judicata.
2) The Trial Court erred in applying the terms of the relocation statute, LSA-R.S. 9:355 et seq[.] to this case. The parties had already entered into an agreement regarding relocation of the children, which was contained in the Judgment dated May 11, 2009 and LSA-Art. 9:355.2(B) specifically provides that the Relocation Statute 9:355 et[ ] seq., does not apply when it conflicts with an existing custody order that governs relocation of the child.
3) The Trial Court erred in finding that JENNIFER was in bad faith in relocating the children to Florida.

Discussion

Res Judicata

Jennifer asserts that, because the joint stipulations and the accompanying consent judgment contained a provision permitting her to relocate to Florida with the children, the trial court erred in denying her exception of res judicata.

The doctrine of res judicata is codified in La.R.S. 13:4231, et seq. Essentially, the doctrine states that:

a valid final judgment is conclusive between the parties, and all causes of action arising out of the transaction or occurrence that is the subject of the suit are extinguished and merged into a judgment in favor of the plaintiff, or are extinguished and merged into a judgment in favor of |4the defendant as to preclude subsequent action.

Riche v. Riche, 09-1354, p. 5 (La.App. 3 Cir. 4/7/10), 34 So.3d 1004, 1008. Thus, subsequent relitigation of any issue that was actually litigated and determined is barred, if that determination was essential to the judgment. Id.

However, the doctrine of res judi-cata is not generally applicable to child custody and child support decrees. Granger v. Granger, 11-77 (La.App. 3 Cir. 6/15/11), 69 So.3d 666, writ denied, 11-1882 (La.9/16/11), 69 So.3d 1152. See also Hansel v. Hansel, 00-1914 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, writ denied, 01-3365 (La.3/8/02), 811 So.2d 880; Kleiser v. Kleiser, 619 So.2d 178 (La.App. 3 Cir.1993). Thus we find no error in the trial court’s denial of the exception of res judi-cata.

Applicability of the Relocation Statutes

Jennifer contends that, because an express -written agreement concerning the relocation of the children existed, the trial court erred in applying the Louisiana relocation statutes, La.R.S. 9:355.1 et seq. The relocation statutes provide a framework for the relocation of a child’s residence outside the state, or, if there is no court order addressing custody, more than 150 miles within the state from the non-relocating parent, or, if there is a court order addressing custody, more than 150 miles from the domicile of the primary custodian at the time the decree was rendered. See Gathen v. Gathen, 10-2812 (La.5/10/11), 66 So.3d 1. However, La.R.S. 9:355.2(B) provides that, “[t]o the extent that a provision of this Subpart conflicts with an existing custody order, this Sub-part shall not apply to the terms of that order that governs relocation of the child.” Further, Article 355.2(C)(1) provides that the relocation statutes do not apply when “[t]he parents of a child have entered into an express written agreement for a temporary relocation of that child’s principal residence, regardless of the duration of the temporary relocation.”

Thus, we must first determine whether the stipulated judgment constitutes an |sexisting custody order permitting Jennifer to relocate to Florida with the children. “A consent judgment is a bilateral contract between the parties by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss.” Horrigan v. Horrigan, 10-1377, p. 5 (La.App. 1 Cir. 6/14/11), 70 So.3d 111, 114. See also Lytle v. Commercial Ins. Co. of Newark, N.J., 285 So.2d 289 (La.App. 3 Cir.1973). As a consent judgment is a type of contract between the parties, its interpretation, is governed by the determination of the common intent of the parties. Horrigan, 70 So.3d 111. Thus, “when the words of the contract are clear and explicit and’ lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract.” Id. at 114. See also La.Civ.Code arts. 2045 and 2046.

Although extrinsic evidence is normally inadmissible to explain, expand, or contradict the terms of a contract, where the terms of the agreement are unclear, the court may consider extrinsic evidence to explain the terms of the agreement and to determine the parties’ intent. Prudhomme v. Prudhomme, 06-516 (La.App. 3 Cir. 9/27/06), 941 So.2d 102. The trial court’s finding as to the intent of the parties is a finding of fact subject to the manifest error standard of review. Angelo 6 Son, Inc. v. Rapides Bank & Trust Co. in Alexandria, 95-992 (La.App. 3 Cir. 4/10/96), 671 So.2d 1283, writs denied, 96-1173, 96-1204 (La.6/21/96), 675 So.2d 1083.

Jennifer contends that the stipulated judgment contains an express written agreement permitting her to relocate, along with the children, out of the State of Louisiana. A review of the record reveals that the stipulated judgment provides, in part, that:

|fi[T]he Wife and minor children will be permitted to move in and out of the State of Louisiana after a period not to exceed seven months from the date of this petition is filed or when the property located at 1141 Campfire Road has sold, whichever is sooner. During this period, the Husband will maintain all household expenses including the mortgage payment, utilities, groceries and all other day to day household expenses. During this period, the Husband will pay, to the Wife, $800 monthly for support.

Although Jennifer contends that this provision specifically permits her to “move” out of Louisiana, we find no error in the trial court’s determination that the terms of this provision do not clearly and explicitly permit Jennifer to relocate, with the children, out of the State of Louisiana.

Thus, extrinsic evidence is admissible to consider the intent of the parties and explain the terms of the agreement. Prudhomme, 941 So.2d 102. In its reasons for judgment, the trial court summed up the testimony regarding the intent of the parties, stating:

After hearing all of the evidence, it is clear that the parties do not agree on much of anything. They do not agree on what the pertinent provision of the agreement says or on their intent behind the provision. Ben testified that Jennifer drafted the agreement, including the language about “moving in and out.” He said they never discussed her moving to Florida and never discussed what language “moving in and out” actually meant. His understanding was that the language was there so that she could go back and forth to visit her family in Florida. The testimony indicated that the parties often traveled back to Florida in the past. Ben also explained that the seven month[s] referenced in the agreement had to do with the sale of the house and the amount he was paying her for support, not a move out of state.
Jennifer maintains that the intent when the agreement was drawn up was that she would go to her home town in Florida. She believes the whole agreement is valid and should be complied with and enforced by the Court.
Jennifer alleges that Ben knew she was moving to Florida. The Court makes note of the time line. Jennifer left on October 8, 2010, a Wednesday night that Ben was supposefd] to have visitation with the children. Prior to this date, Jennifer told him she was looking for a job here in the banking industry. She also told him she was looking for a place to live and would be moving into an apartment [that] their son’s teacher helped her line up.
17Jennifer intentionally lied to him leading him to believe that he would have visitation as scheduled on October 8, 2010, even telling Ben that he needed to have them home early because it was a school night. Therefore, when he text[ed] her about his visitation on Wednesday and where to pick them up, she said she would get directions to the apartment for him. They also had the closing on the sale of their house set for that date, which Jennifer did not appear for. Instead, Jennifer had left town with the children without giving Ben any notice as required by the Relocation Statute. Ben received a call from the children’s school the following day because Jennifer had not notified the school the children would be leaving town.
This Court believes that if she was confident the agreement permitted her to leave, why did she need to keep her move on that day a secret from Ben. Although she maintains it was because he had previously obtained a restraining order preventing her from leaving and she thought he would do that again, the Court finds her behavior questionable.
The Court is not convinced that the language “move in and out” meant that Jennifer could actually move the children’s residence in and out of Louisiana. The Court finds it more likely meant she could physically move with the children in and out for travel. It is also completely inconsistent that the agreement would allow her to move with the children to Florida, but somehow contain a provision that provides alternating weekend visitation for Ben and the children. Jennifer even testified that the weekend visitation was only Saturday and Sunday, which makes her position even more implausible.

Thus, the trial court found that the language of the stipulated judgment was not clear and did not provide for relocation of the children to Florida.

Our review of the record supports the trial court’s finding that the language of the stipulated judgment was not intended to permit Jennifer to relocate to Florida with the children. The trial court was in the best position to view the witnesses and make credibility determinations. See Long’s Preferred Products, Inc. v. Minton, 03-1020 (La.App. 3 Cir. 2/18/04), 866 So.2d 1065, writs denied, 04-625, 04-748 (La.4/30/04), 872 So.2d 492, 500. We especially note that Jennifer’s own testimony supports the trial court’s findings that her actions were not consistent with her assertion that the agreement permitted her to relocate.

| ^Furthermore, we find no error in the trial court’s determination that the stipulated judgment (and the accompanying joint stipulations) did not contain a provision permitting Jennifer to relocate to Florida with the children. Therefore, the exceptions to the applicability of the relocation statutes delineated in La.R.S. 9:355.2 are inapplicable because there was no judgment concerning the relocation of the children nor was there an express written agreement concerning the relocation of the children. Accordingly, we find no error in the trial court’s application of the relocation statutes, La.R.S. 9:355.1 et seq.

This assignment of error is without merit.

Bad Faith

Finally, Jennifer contends that the trial judge erred in finding her in bad faith in moving the children to Florida. Based on her assertion that the trial court committed an error of law in finding her in bad faith, Jennifer requests that this court apply the de novo standard of review with regard to this issue.

Louisiana Revised Statutes 9:355.13 provides that a parent seeking relocation must prove that (1) that the proposed relocation is in good faith and (2) that the proposed relocation is in the best interest of the child. “A trial court’s decision in a relocation matter is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion.” Jamagin v. Jamagin, 09-903, p. 2 (La.App. 3 Cir. 12/9/09), 25 So.3d 1028, 1030 (citing Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094). Accordingly, we do not review this issue under the de novo standard, as requested by Jennifer.

The trial court found that Jennifer’s stated reasons for moving to Florida were “not legitimate” and that her move was not in good faith. Specifically, the trial court found that “[t]he testimony indicated that Jennifer chose to move because that is what she wanted to do. There was no benefit to the children, and |9really no clear benefit to her.” A review of the record reveals that Jennifer testified that she moved to Florida because she did not have enough money to stay in Louisiana and to be closer to her family. Jennifer testified that several relatives live near her in Florida, including her mother, her grandmother, and her son from a previous marriage.

In its reasons for ruling, the trial court expressed concern that Ben testified that he told Jennifer that moving to Florida was not in the children’s best interest and that she responded that it was in her best interest. Further, one of Jennifer’s stated reasons for moving was that she could not afford to stay in Lake Charles. However, she conceded that she had enough money to pay for a year’s worth of rent. Moreover, the record indicates that, in addition to these savings, Jennifer was receiving child support from Ben. She also testified that she asked Ben for additional funds and that he refused her request. She also testified that, even if Ben had given her the additional funds, she would have moved as soon as the restraining order was lifted.

Furthermore, Jennifer’s testimony concerning her actions before and after her move to Florida provide additional support for the trial court’s finding that her stated reasons for moving were not sufficient. We note that, as previously discussed, as the finder of fact, it is within the purview of the trial court to make credibility determinations. See Long’s Preferred Prod., Inc., 866 So.2d 1065. Although Jennifer maintained that the stipulated judgment permitted her to move to Florida, when she actually left there was a restraining order in effect which specifically prohibited her from removing the children from Cal-casieu Parish. | inFurther, the trial court found that Jennifer intentionally concealed her move from Ben, and a review of the record supports this finding.

Jennifer testified at the hearing that Ben was aware that she intended to move to Florida. Ben testified that he did begin to suspect that Jennifer intended to move to Florida some three months after the stipulated judgment was entered. Emails and text messages submitted into evidence indicate that, around this time, when Ben asked directly Jennifer whether she intended to move to Florida, Jennifer equivocated. Ben also testified that Jennifer told him that she had been looking for a job in Louisiana and that their son’s teacher had helped her obtain an apartment. Further, although Jennifer asserted that her “position was to return to our home state of Florida,” she also testified that she considered applying for a job in Washington, D.C.

The trial court assigned particular weight to Jennifer’s concealment of her actual move. We note that Jennifer conceded that she told Ben that he could have visitation with his children in the afternoon of October 8, 2009, but that she had already left the state by that morning. According to Jennifer’s testimony, she was aware that there was a restraining order in effect preventing her from removing the children from Calcasieu Parish. She asserted that she was afraid that if she told Ben that she was leaving, Ben would “physically try to stop” her. Further, Jennifer conceded that she did not notify her son’s school of the date of her move, although she asserted that the school was aware that she intended to move at some unspecified future time.

We find no abuse of discretion in the trial court’s finding that Jennifer was not in good faith in relocating to Florida. As discussed above, there is ample support in the record for the trial court’s determination that Jennifer’s reasons for moving to Florida were not sufficient. We note that Jennifer also contends that the Intrial court erred in failing to address the relocation factors listed under La.R.S. 9:355.12. However, because the trial court found that Jennifer did not meet her burden of proof with regard to the good faith element, as required by La.R.S. 9:355.13, there was no reason for the trial court to discuss these factors.

This assignment of error is without merit

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed in all respects. The stay previously issued in Docket No. 11-888 on July 27, 2011 is hereby lifted. Costs of this proceeding are assessed to the defendant, Jennifer Marie Hulshoff.

AFFIRMED.

      . Louisiana Civil Code Article 102 provides:
      Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.
      The motion shall be a rule to show cause filed after all such delays have elapsed.

      . The testimony indicates some confusion about whether Jennifer actually left for Florida on October 7 or October 8, 2010. Whatever the date, the record indicates that Jennifer left the same day that the sale of the parties’ house closed, which was a Wednesday. A series of text messages entered into evidence indicate that Jennifer told Ben that he could take the children to dinner that night.

      . Jennifer also applied for supervisory writs, which were filed on July 19, 2011 under Docket No. 11-888. A ruling was subsequently issued on July 27, 2011, which stated:

        WRIT GRANTED. This court grants this writ application for the limited purpose of ordering the consolidation of the writ application with the appeal, filed on May 27, 2011, to be lodged in this court. If the referenced appeal is withdrawn or dismissed, the relator’s counsel is hereby ordered to notify this court within ten days of such event. Briefing and oral argument will be set according to the rules regarding appeals. Further, we hereby order a stay of the trial court’s ruling of May 16, 2011.

      . Because language of the accompanying judgment mirrors that of the joint stipulations, we need not address the interpretation of the judgment and the joint stipulations separately. Further, although La.R.S. 9:355.2(C) addresses “temporary” reloca-tions, because we find that neither the joint stipulations nor the stipulated judgment contain a provision permitting Jennifer to relocate the children to Florida, we do not address whether that relocation falls within its ambit.

      . Jennifer's Answer, filed on February 18, 2010, indicates that the restraining order was issued on September 16, 2009 and withdrawn on October 27, 2009. The trial court found that Jennifer moved to Florida on October 8, 2009, while the restraining order was still in effect. However, pursuant to an agreement between the parties, Ben did not seek to have Jennifer held in contempt for violation of the restraining order.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Kathy Richmond ZEITOUN, Wife of/and Abdulrahman Zeitoun, v. The CITY OF NEW ORLEANS, C. Ray Nagin, individually and as Mayor of the City of New Orleans, the State of Louisiana, through its State Police, et al.
    No. 2011-CA-0479.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2011.
    Rehearing Denied Jan. 19, 2012.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiffs/Appellants.
    Nolan P. Lambert, Senior Chief Deputy City Attorney for City of New Orleans, James B. Mullaly, Deputy City Attorney for City of New Orleans, Nannette Joli-vette-Brown, City Attorney for City of New Orleans, New Orleans, LA, for Defendants/Appellees, The City of New Orleans and Former Mayor C. Ray Nagin.
    James D. “Buddy” Caldwell, Phyllis E. Glazer, Michael C. Keller, Assistant Attorneys General, Department of Justice Litigation Division, New Orleans, LA, for Defendants/Appellees, State of Louisiana, through the Department of Public Safety and Corrections and Cornel Hubert.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

hThe appellants, Abdulrahman Zeitoun and Kathy Richmond Zeitoun (“Zeitouns”), appeal the judgment of the district court, granting the defendants’, State of Louisiana through the Department of Corrections and Cornel Hubert, the City of New Orleans and Former Mayor C. Ray Nagin, peremptory exceptions of no cause of action and dismissing the matters with prejudice. Based upon the record before this Court, we affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On September 6, 2005, Mr. Zeitoun was arrested on charges of suspicion of looting, La. R.S. 14:62.5, and possession of stolen property, La. R.S. 14:69 on or near the 5000 block of Claiborne Avenue. Mr. Zei-toun alleges that after he was arrested he was taken to a holding area located on St. Charles Avenue and Napoleon Avenue. He was then moved to the Union Passenger Train Station which was known as Camp Greyhound. After three days in “Camp Greyhound” he was transported to Elayn Hunt Correction Center (“Hunt”), which is locate in St. |2Gabriel, in Iberville Parish. Mr. Zeitoun was detained at Hunt until September 29, 2005. After posting a $75,000 bond, he was released.

The appellants’ original petition for damages was filed on August 28, 2006. It named the City of New Orleans (“City”), C. Ray Nagin, the State of Louisiana, and the Louisiana Department of Corrections as defendants. The Zeitouns’ assertions against the defendants are based on accusations of false arrest, imprisonment and the mistreatment of Mr. Zeitoun in the aftermath of Hurricane Katrina and conditions of confinement while incarcerated at Hunt.

Initially, the appellants filed suit against the State through the Department of Corrections but the matter has been corrected to name the Louisiana Department of Public Safety and Corrections (“DPSC”) as the actual party in interest in this lawsuit. On October 31, 2006, the DPSC filed a dilatory exception of improper cumulation of actions pursuant to La. C.C.P. Arts. 463 and 464 and the [speremptory exception of no cause of action pursuant to La.C.C.P. Art. 927(5). On March 23, 2007, oral argument on the exceptions was held. The district court considered the original petition and the first amended petition and granted the DPSC’s exception of no cause of action and dismissed, with prejudice, all claims against the DPSC; the judgment was signed on April 3, 2007. In this judgment the district court did not give the appellants leave to amend. Nevertheless, the appellant filed a second amended petition joining NOPD Officer Donald Lima and Warder Burl Cain. The appellant also incorporated references to all previously dismissed claims. On April 30, 2007, the appellants, by way of a devol-utive appeal, appealed the district court’s judgment. On April 7, 2009, this Court reversed and remanded the matter to give the appellants the opportunity to amend their lawsuit pursuant to La. C.C.P. Art. 934. On March 1, 2010, the DPSC moved for an order mandating the appellants to comply with this Court’s order to amend their petition. Ultimately, the appellant filed their third amended petition to include claims against Cornel Hubert, Warden of Hunt.

On June 1, 2010, the DPCS filed a second exception of no cause of action in response to the appellants’ second and third amended petitions. Appellants then filed a motion for leave to file a fourth amended petition. The appellants followed Lthis filing with a motion for leave to file a fifth amended petition. The district court granted both motions but also ordered that no further supplementations of amendment to the petition be allowed.

On September 17, 2010 Warden Hubert filed his exception of improper cumulation of parties. One month later the City and the State moved jointly to reset the hearings on their exceptions of no cause of action based on the assertion that the appellants’ fourth and fifth amended petitions failed to cure any grounds for the pending exceptions. On December 17, 2010, the district court granted the DPSC’s peremptory exception of no cause of action as well as Warden Hubert’s dilatory exception of improper cumulation. The district court also granted the City’s peremptory exception of no cause of action. It is from these judgments that the appellants appeal.

DISCUSSION:

DPSC AND WARDEN CORNEL HUBERT

Supplemental Amendments

The DPSC asserts that the appellants were given the opportunity to amend their original petition for damages, pursuant to La.C.C.P. Art. 934, and cure defects raised in the DPSC’s first exception of no cause of action. However, after filing their second, third, fourth and fifth amended petitions the appellants failed to provide additional factual allegations against the City and the DPSC to establish any cause of action upon which relief could be granted.

1 sSimply filing a pleading entitled “amended petition” is insufficient to state a cause of action in compliance with La. C.C.P. Art. 934 which states:

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. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

La. C.C.P. Art. 934.

Appellants’ Second Amended Petition:

The second amended petition does not change any of the facts alleged in the original petition but simply joins Warden Burl Cain, the warden of the Louisiana State Penitentiary in Angola and alleged that he was the “Warden” of the temporary jail known as “Camp Greyhound” located at the Union Train Station terminal in New Orleans in the direct aftermath of Hurricane Katrina. They also erroneously assert the Warden Cain was the warden of Hunt. The appellants asserted that the DPSC was vicariously liable for the actions of its employee, Warden Cain.

Appellants’ Third Amended Petition:

The third amended petition does not change the facts alleged in the original petition but simply joins Warden Hubert as the Warden of Hunt. This appeal concerns the ultimate dismissal of Warden Hubert on an exception of improper cumu-lation. The appellants also continue to reference the Department of Corrections and the Louisiana State Police not the DPSC.

Appellants’ Fourth and Fifth Amended Petition:

RThe fourth and fifth amended petitions do not contain any factual allegations pertaining to the DPSC. Appellants once again failed to cure the defect by not specifically naming the DPSC.

In sum the appellants, despite their numerous amended petitions, failed to asserts any facts pertaining to the DPSC. As it did in its original exception, the failure by the appellants to cure this defect was continuously raised by the DPSC. Accordingly, we find that the district court properly granted the DPSC’s exception of no cause of action based on La.C.C.P. Art. 934,

Í2 U.S.C. § 1981

The appellants maintain that they have a viable cause of action against the DPSC under 42 U.S.C. § 1981. We disagree. The DPSC cannot be sued under 42 U.S.C § 1981 as the exclusive remedy for deprivation of constitutional rights, as it relates to appellants’ asserted facts, is under 42 U.S.C. § 1983. Additionally, an essential element of all § 1981 claims is a contractual relationship between the State and the Zeitouns. The Zeitouns have not asserted or pled the existence of a contractual relationship.

17Exceptions of no cause of action present legal questions, and are reviewed under the de novo standard of review. Tuban Petroleum, L.L.C. v. SIARC, Inc., 09-0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522. The pertinent question is whether, when viewed in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Wright v. Louisiana Power & Light, 06-1181, p. 15 (La.3/9/07), 951 So.2d 1058, 1069. This exception is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading. Foti v. Holliday, 09-0093, p. 5 (La.10/30/09), 27 So.3d 813, 817. All well-pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of sufficiency of the petition so as to afford litigants their day in court. Id. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Id., citing Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 119.

In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the United State Supreme Court held, “We hold that the express ‘action of law provided by § 1983 for the ‘deprivation of any rights, privileges, or immunities, secured by the Constitution and laws,’ provides the exclusive federal damages remedy for violation of the rights guaranteed by § 1981 when the claim is against a state actor.” The United States Fifth Circuit Court of Appeals elaborated on this in Oden.

In that case, the 5th Circuit held:

Plaintiffs may plead causes of action under both Title VII and § 1981 against private employers to remedy discrimination in private | ^employment contracts. See Runyon v. McCrary, 427 U.S. 160, 174, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Plaintiffs may also pursue a § 1983 cause of action against persons acting under color of state in order to assert their substantive rights under § 1981.

Oden v. Oktibbeha County, Miss., 246 F.3d 458, 462 (5th Cir.2001).

Based on the above jurisprudence and precedents, 42 U.S.C. § 1981 does not provide a cause of action against the DPSC, which is clearly a state agency. Additionally, 42 U.S.C. § 1983, and not § 1981 is the proper vehicle to state a cause of action for the deprivation of civil rights claims.

The Zeitouns have also failed to clearly plead an essential element of § 1981, a contractual relationship with the state player. In Domino’s Pizza Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006), The United States Supreme Court unanimously held:

Consistent with our prior case law, and as required by the plain text of the statute: Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.

Domino’s Pizza, 126 S.Ct. at 1252. We reiterate that after reviewing the record, appellants’ petition has failed to mention or provide proof that a contractual relationship was impaired by the alleged actions of the DPSC. The Zeitouns merely assert that Mr. Zeitoun was a victim of discrimination as it related to his incarceration.

[NJothing in the text of § 1981 suggests that it was meant to provide an omnibus remedy for all racial injustice. If so, it would not have been limited to situations involving contracts. Trying to make it a cure-all not only goes beyond any expression of congressional intent but would produce satellite § 1981 litigation of immense scope.

Domino’s Pizza, 126 S.Ct. at 1252.

Based on the above applicable jurisprudence we must agree with the district court that the appellants have failed to state a cause of action for which there is any relief pursuant to 42 U.S.C. §§ 1981 or 1983.

Improper Cumulation

The dilatory exception of improper cumulation examines whether multiple claims or multiple parties are properly joined in one lawsuit. La. C.C.P. Art. 463 states in pertinent part, “[t]wo or more parties may be joined in the same suit, either as plaintiffs or as defendants, if: [.. .](2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue ...” La. C.C.P. Art. 463(2). Applicable to the case sub judice is the language, “When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, the action shall be dismissed.” La. C.C.P. Art. 464.

Here, Warden Hubert’s exception of improper cumulation was granted under La. C.C.P. Art. 463 and Art. 464 because the action against Cornel Hubert, the Warden of Elayn Hunt Correctional Center in St. Gabriel, Parish of Iberville, State of Louisiana, was not brought in the proper venue. See La. R.S. 15:1184(F).

The Louisiana Prison Litigation Reform Act (PLRA)

La. R.S. 15:1181, et seq., governs the delictual actions by prisoners. La. R.S. 15:1181(2) defined a “civil action with respect to prison conditions” or “prisoner suit” as follows:

Any civil proceedings with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post-conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.

110The appellants maintain that Warden Hubert is liable, asserting that while at Hunt, Mr. Zeitoun was, “treated with cruelty under the conditions of cruel and unusual punishment.” Appellants also maintain:

The treatment of Mr. Zeitoun at Elayn Hunt Correctional Center, including food, conditions of confinement, and lack of medical care were wrongful, and humiliating and intentional infliction of emotional and physical harm. Defendant, Cornel Hubert, was the warden of this facility, knew of the conditions imposed, and failed and refused to take steps to avoid confinement under conditions of cruel and unusual punishment.

If we accept the allegations as true, they are solely based upon Mr. Zeitoun’s incarceration conditions while at Hunt and fall directly within the definition of a “prisoner suit”, pursuant to the PLRA.

The appellants’ cause of action, against Warden Hubert, arose while he was incarcerated in Hunt. La. R.S. 15:1184(F) dictates that the exclusive venue for prisoner suits shall be the parish where the prison is situated when the cause of action arose. Therefore, we can only conclude that the proper venue for appellants’ matter is in Iberville Parish. The appellants’ claims against Warden Hubert were filed in the wrong venue, and, thus, improperly cumu-lated with appellants’ other claims. The district court properly dismissed the action pursuant to La. C.C.P. Art. 464.

THE CITY OF NEW ORLEANS AND MAYOR C. RAY NAGIN

As noted above, the appellants brought their original petition for damages on August 28, 2006. In that original petition they named the City of New Orleans and then Mayor C. Ray Nagin. On September 29, 2006, the City filed a peremptory exception of no cause of action. Subsequent to this the appellants filed numerous 11T supplements to the original petition for damages. On March 23, 2007, the district court granted the City’s exception of no cause of action and dismissed with prejudice all claims against the City based on the original petition and first amended petition. Nevertheless, the appellants’ filed a second amended petition after the matter was already dismissed. The matter came to this Court and on April 1, 2009, this Court mandated that it be remanded to the district court for consideration of the second amended petition. We note here that the City asserts that the appellants filed the second amended petition but mistakenly entitled it as the third amended petition. With that being said, as it pertains to the City, we will address the issues contained in the third amended petition.

The City maintains that the appellants’ assertions, as contained in the third amended petition, that Mr. Zeitoun’s arrest was motivate by racial animus is unsupported. The appellants also assert causes of action arising out of Mr. Zei-toun’s temporary detention at Camp Greyhound, as well as his incarceration at Hunt.

Cause of action arising out of Mr. Zei-toun’s arrest.

In order to require a public official to respond to allegations that he is liable for an alleged wrongful action of an employee, a petition must allege that the employee’s act was committed while the public official was performing an official duty and that the alleged wrong must have resulted from the wrongful manner in which such official duty was performed.

The appellants assert that Mr. Zeitoun was initially arrested pursuant to the September 6, 2005 Forced Evacuation Order issued by the City of New Orleans by then Mayor C. Ray Nagin pursuant to La. R.S. 29:727. They maintain that Mr. Zeitoun was arrested because of his Middle Eastern Muslim ethnicity/racial 112animus. However, Mr. Zeitoun was arrested on charges of suspicion of looting, (La. R.S. 14:62.5), and possession of stolen property, (La. R.S. 14:69). Clearly, Mr. Zeitoun was arrested on criminal charges, not for violating mandatory evacuation orders.

Based on the record before this Court, we find that the appellants have failed to show the connexity between Mr. Zeitoun’s arrest on criminal charges and the City’s forced evacuation order. The mandatory evacuation order issued by then Mayor C. Ray Nagin pursuant to La. R.S. 29:727, does not have any applicability and cannot support the appellants claims against the former mayor or the City. Therefore, this is a meritless claim and fails on the alleged facts and pleadings.

Vicarious Liability

The appellants also contend that the mayor and the City are liable under the theory of respondeat superior. In Louisiana, the vicarious liability of employers, also known as the doctrine of re-spondeat superior; is based upon La. C.C. Art. 2320, which provides that employers are answerable for the damage occasioned by their employees in the exercise of the functions in which they are employed. Henly v. Phillips Abita Lumber Co., 06-1856, pp. 10-11 (La.App. 1st Cir. 10/3/07), 971 So.2d 1104, 1112-13. Specifically, an employer is hable for its employee’s torts committed if, at the time, the employee was acting within the course and scope of his employment. Timmons v. Silman, 99-3264, p. 4 (La.5/16/00), 761 So.2d 507, 510. The proper test in determining an employer’s vicarious liability thus consists of two elements: (1) course of employment, which refers to time and place; and (2) scope of employment, which examines the employment-related risk of injury. Richard v. Hall, 03-1488, pp. 5-6 (La.4/23/04), 874 So.2d 131, 138.

|iSAn employee is acting within the course and scope of his employment when the employee’s action is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve his employer. Timmons, 99-3264 at p. 4, 761 So.2d at 510, citing Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226-27. The inquiry requires the trier of fact to determine whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared to conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. Richard, 03-1488 at p. 6, 874 So.2d at 138.

In the instant matter, the appellants’ maintain that “the arrest of Mr. Zeitoun was completely illegal and was motivated by racial animus against him and the other two individuals, his tenants, because they were Muslim or associated with Muslims. The appellants also maintain that the initial police report, allegedly prepared by defendant, Donald Lima, was false and an effort to cover up the wrongful circumstances of the arrest. The remaining individuals who participated in the arrest, who are believed to be Louisiana State Troopers, will be made defendants as soon as their identities are discovered.” The appellants go on to allege that “the treatment of Mr. Zeitoun at Napoleon and St. Charles was unnecessary, wrongful, and humiliating and an intentional infliction of emotional and physical harm.”

| uBased on the record, the appellants advance numerous accusations, assertions and innuendos with very little factual support. As New Orleans Police Officer Robert Lima has not been dismissed from this matter, appellants’ assertions are basically premature. The appellants have essentially failed to even clearly establish who actually arrested Mr. Zeitoun. Therefore, the appellants have utterly failed to satisfy their burden to establish a cause of action against former Mayor C. Ray Nagin and the City under the theory of respondeat superior.

CONCLUSION

For the above and foregoing reasons, we affirm the district court’s granting of the defendants’ exceptions of no cause of action and improper cumulation.

AFFIRMED

      . The appellant asserts that the arresting officer was New Orleans Police Department Officer Donald Lima. He was named a defendant in the appellants’ 2nd amended petition.

      . Cornel H. Hubert was the warden of Hunt at the time Mr. Zeitoun was incarcerated after leaving the temporary jail known as Camp Greyhound. The appellant sued Warden Hu- ■ bert both personally and in his professional capacity as Warden of Hunt.

      . In appellants' second amended petition they alleged that Mr. Zeitoun was arrested by the NOPD, not the State Police. Appellants also originally and mistakenly named Warden Burl Cain as a defendant in his personal and official capacity as the Warden of Hunt but amended in their second amended petition and joined Warden Hubert in the third amended petition. The appellants also sued Warden Cain alleging that he was in charge of the temporary jail "Camp Greyhound.” Warden Cain remains in the law suit.

      . The DPSC was created by La. R.S. 36:401 et seq. as an entity with the power to sue and be sued for all actions against the State Police and the Department of Corrections.

      . Art. 463. Cumulation, plural plaintiffs or defendants
      Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
      (1) There is a community of interest between the parties joined;
      (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      (3) All of the actions cumulated are mutually consistent and employ the same form of procedure.

      . Art. 464. Improper cumulation, effect
      When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed.
      When the cumulation is improper for any other reason, the court may: (1) order separate trials of the actions; or (2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiff’s suit.

      . Art. 927. Objections raised by peremptory exception: (5) No cause of action.

      . Zeitoun v. the City of New Orleans, 2008-0782 (La.App. 4 Cir. 4/1/09), 9 So.3d 1025.

      . Art. 934. Effect of sustaining peremptory exception
      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. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

      .The City had similar exceptions.

      . 42 U.S.C. § 1981 states:
      (a) Statement of equal rights
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to full and equal benefits of all laws and proceedings for the security of persons and property as it is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
      (b) "Make and enforce contracts” defined For the purposes of this section, the term "make and enforce contracts" includes the making performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
      (c)Protection against impairment
      The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under the color of State law.

      . 42 U.S.C. § 1983 states:

        Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

      . This excerpt is from the appellants’ third amended petition.

      . Mr. Zeitoun asserts that he was only served food with pork which is against his religious beliefs.

      . Officer Lima was not a named defendant in the appellants’ original, second or third amended petition.


text:
    PROPERTY ONE, INC. v. ZODIAC DEVELOPMENT and Five Korners, L.L.C.
    No. 2011-CA-0786.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2011.
    Rehearing Denied Jan. 19, 2012.

      Patricia S. LeBlanc, Tiffany M. Fleming, LeBlane Butler, LLC, Metairie, LA, for Plaintiff/Appellee.
    Lawrence R. Anderson, Jr., Willie G. Johnson, Jr., Seale Smith Zuber & Bar-nette, Baton Rouge, LA, for Defendants/Appellants.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

hln this contract case, the defendant, Zodiac Development & Five Korners, LLC (Zodiac), appeals the trial court’s award of $19,699.36 plus interest, attorneys’ fees and costs in favor of the plaintiff, Property One, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Zodiac owned Essen Centre, a commercial office building located at 5353 Essen Lane in Baton Rouge. Zodiac contracted with Property One to provide professional property management services and to act as its exclusive leasing agent. The parties entered into a property management and leasing agreement, which was in effect from June 1, 2005 through December 31, 2006. Property One also leased an office in Essen Centre from Zodiac.

During its tenure as property manager, Property One also oversaw construction work and tenant improvements on several suites. The costs of these projects totaled nearly one million dollars. Pursuant to the lease agreements of the [2tenants of these suites, the tenants and/or Zodiac retained architects and contractors to provide construction materials and perform the physical labor. Property One performed the construction management services which consisted of obtaining quotes and bids, accepting contracts on behalf of the owner, participating in weekly construction meetings, conducting site inspections, acting as tenant liaison, protecting the owner’s interests, and performing administrative duties such as file maintenance, coordination, and scheduling.

Article 6 (c) of the property management and leasing agreement stated:

Construction Fee: Tenant Improvement or other construction work performed by Manager, as provided in the Management Agreement to which Schedule A is attached, shall be performed on the basis of actual cost, plus two (2) percent for overhead and profit. Owner is not obligated to have such tenant improvements or other construction work performed by Manager. If Owner has some one (sic) other than manager perform such tenant improvements or other construction work, Owner shall not owe any construction fee to Manager.

Schedule A(b) provides:

Construction Fee: Tenant Improvements or other construction work performed by Manager, as provided in the Management Agreement to which this Schedule “A” is attached, shall be performed on the basis of actual cost, plus two percent (2%) for overhead and profit.

After the construction work was completed, Zodiac failed to pay Property One. When amicable demand failed, Property One filed suit on August 26, 2008. Zodiac filed a reconventional demand on June 17, 2009, asserting a claim for a sum due under Property One’s office lease. A bench trial took place February 8, 2011. On February 28, 2011, the trial court rendered judgement as follows: (1) in favor of Property One and against Zodiac for construction fees in the amount of $19,699.36, together with judicial interest from date of judicial demand until paid; |s(2) in favor of Zodiac and against Property One for rent in the amount of $1,503, together with judicial interest from date of demand until paid, which amounts are to be set-off and reduce the amounts owed by Zodiac to Property One; (3) in favor of Property One and against Zodiac for attorney fees of $15,817.00 and costs of $1,475.00; and (4) denying Zodiac’s request for attorney fees and costs. It is from this judgment that Zodiac now appeals.

DISCUSSION

On appeal, the defendant raises the following specifications of error: 1) the trial court erred in failing to apply the contractual provision that if the owner has someone other than the manager perform tenant improvements, the owner shall not owe any construction fee to the manager, because the undisputed facts show that the owner had third-party contractors, not the manager, perform the tenant improvements at issue; 2) the trial court erred in holding that the manager was entitled to a construction fee because the management agreement provided that the manager was entitled to such a fee only if the manager performed the tenant improvements and the manager did not perform the tenant improvements; 3) the trial court erred in holding that the purported construction management services by the manager fell within the contractual language of performing tenant improvements; 4) the trial court erred in holding that the manager sustained its burden of proof that it performed the tenant improvements; 5) the trial court erred in awarding attorney fees and expenses to the manager; and 6) the trial court erred in not awarding attorney fees and expenses to the owner.

|4A trial court’s interpretation of a contract is a finding of fact subject to the manifest error rule. Paz v. BG Real Estate Services, Inc., 2005-0115, p. 1 (La.App. 4 Cir. 12/14/05), 921 So.2d 186, 187. This Court has announced a two-part test for the reversal of a factfinder’s determinations: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through DOTD, 617 So.2d 880, 881 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Where the court’s findings of fact are reasonable in light of the entirety of the record, an appellate court may not reverse even if convinced that it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 848 (La.1989). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be clearly wrong or manifestly erroneous. Id.

Factual Findings and Contract Interpretation

The trial court found that the services performed by Property One were contemplated by the agreement and in addition to the routine management services which it performed as manager, it met its burden of proving entitlement to the two percent (2%) construction fee provided in the agreement. Property One’s representatives, Sue Tucker and Joyce Chauvin, were on site during each stage of construction work. They testified at length as to the construction oversight and 1 .^management services that they provided during this period of capital improvement. They were the only on-site representative for the defendant owner during this period. Zodiac failed to present any evidence showing that someone other than Property One employees performed the construction oversight and management services at issue. Accordingly, there was nothing manifestly erroneous in the trial court’s factual findings.

Zodiac argues that the trial court misinterpreted article 6(c) of the property management agreement. However, we do not find that to be the case. Property One’s services were construction oversight services, separate from contractors’ labor and/or procurement of goods.

Zodiac further argues that by interpreting Property One’s services as “other construction work” the trial court did not use that term’s plain, ordinary meaning. For this principle, Zodiac cites the first sentence of Louisiana Civil Code Article 2047, but neglects to consider the second sentence: “Words of art and technical terms must be given their technical meaning when the contract involves a technical matter.” Property One’s witnesses testified regarding industry standards, customs, and meanings. The trial court accepted this testimony and made its judgment accordingly. We find nothing clearly wrong or manifestly erroneous in the trial court’s judgment.

Zodiac also argues that the trial court did not construe the agreement as a whole and erred when it referenced other materials in reaching its conclusion that Property One was entitled to the two percent (2%). However, Zodiac has failed to Rshow that this assertion is true. In any case, an ambiguity in the contract language should be construed against Zodiac as the obligor, owing payment in return for receiving Property One’s performance. See La. C.C. art. 2057. Therefore, we find no error in the trial court’s interpretation of the property management agreement.

Zodiac’s Attorneys’ Fees and Expenses

Zodiac contends that the trial court erred in not awarding it the attorney fees and expenses it incurred as landlord, trying to enforce the obligations in the lease when the lease provided for reasonable attorney fees and expenses. Property One never denied that it owed a small amount under the lease, but it asserted the affirmative defense of offset. The trial court found that Property One owed Zodiac $1,503.30 and deducted this amount from what Zodiac owed to Property One under the property management agreement. Because of the nature of the offset, we find no error in the trial court’s refusal to award Zodiac with attorney fees and expenses.

Property One’s Attorneys’ Fees and Expenses

Zodiac also contends that the trial court erred in awarding attorney fees and expenses to Property One. However, Zodiac failed to brief the issue in its appellant brief. According to Rule 2-12.4, Uniform Rules, Courts of Appeal: “[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Accordingly, Zodiac has abandoned this assignment of error.

^CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED


author: MAX N. TOBIAS, JR., Judge.

text:
    POYDRAS CENTER, LLC/OWNER; the Hertz Investment Group, Manager of Poydras Center v. INTRADEL CORPORATION, et al.
    No. 2011-CA-0978.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2011.
    Jacob Kansas, Jacob Kansas, Attorney at Law, Gretna, LA, for Plaintiff/Appellant.
    Michael L. Eckstein, Eckstein Law Firm, APC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

| jThe plaintiff/appellant, Poydras Center, LLC, owner and lessor of the building and parking garage located at 650 Poydras Street in New Orleans, appeals a judgment holding that they could not evict their lessee, Intradel Corporation, from two parking spaces located in the premises. As error, the plaintiff/appellant argues that the trial court erred by (1) failing to grant its request for eviction, (2) incorrectly interpreting the contract of lease, (3) relying upon Intradel Corporation’s arguments of fact regarding an alleged oral modification of the written lease, (4) modifying the term of two of the parking spaces from month-to-month to permanent, and (5) admitting hearsay evidence and preventing it from cross-examining witnesses or submitting testimony. Because all of the assignments of error are essentially one issue, we discuss them as one. For the reasons that follow, we reverse.

By a written contract of lease dated 10 January 2005 (see La. C.C. arts. 2668, et seq.), Intradel Corporation (“Intradel”) leased from Poydras Center, LLC (“Lessor”) suite 2805 and four parking spaces (referred to in the lease as “parking ^permits”) located in the structure known as the Poydras Center at 650 Poydras Street. The initial term of the lease was from 1 March 2005 through 31 December 2010 for the suite and for two of the four parking spaces; the other two-parking spaces had a term of month-to-month (see La. C.C. arts. 2678, 2680, and 2727).

In pertinent part, the lease reads as follows:

This lease may be modified only be [sic] a written agreement signed by Landlord and Tenant. Landlord and tenant expressly agree that there are and shall be no implied warranties of merchantability, habitability, suitability, fitness for a particular purpose or of any other kind arising out of this Lease, all of which are hereby waived by Tenant, and that there are no warranties which extend beyond those expressly set forth in this Lease. 35. LIMITATION OF LIABILITY EXCEPT TO THE EXTENT SPECIFICALLY ADDRESSED HEREIN, TENANT SHALL NOT HAVE THE RIGHT TO AN ABATEMENT OF RENT OR TO TERMINATE THIS LEASE AS A RESULT OF LANDLORD’S DEFAULT AS TO ANY COVENANT OR AGREEMENT CONTAINED IN THIS LEASE OR AS A RESULT OF THE BREACH OF ANY PROMISE OR INDUCEMENT IN CONNECTION HEREWITH, WHETHER IN THIS LEASE OR ELSEWHERE AND TENANT HEREBY WAIVES SUCH REMEDIES OF ABATEMENT OF RENT AND TERMINATION. TENANT HEREBY AGREES THAT TENANT’S REMEDIES FOR DEFAULT HEREUNDER OR IN ANY WAY ARISING IN CONNECTION WITH THIS LEASE INCLUDING ANY BREACH OF ANY PROMISE OR INDUCEMENT OR WARRANTY, EXPRESSED OR IMPLIED, SHALL BE LIMITED TO SUIT FOR DIRECT AND PROXIMATE DAMAGES PROVIDED THAT TENANT HAS GIVEN THE NOTICES AS HEREINAFTER REQUIRED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD TO TENANT FOR ANY DEFAULT BY LANDLORD UNDER THIS LEASE SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING AND THE PROPERTY AND TENANT AGREES TO LOOK J^SOLELY TO LANDLORD’S INTEREST IN THE BUILDING AND THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT AGAINST THE LANDLORD, IT BEING INTENDED THAT THE LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR DIRECT AND PROXIMATE DAMAGES, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS OF THE PROPERTY, BUILDING OR PREMISES (“LANDLORD MORTGAGEES”) NOTICE AND REASONABLE TIME TO CURE ANY ALLEGED DEFAULT BY LANDLORD.
EXHIBIT E
PARKING
This Exhibit is attached to and made a part of the Lease by and between POY-DRAS CENTER, LLC (“Landlord”) and INTRADEL CORPORATION (“Tenant”) for space in the Building located at 650 Poydras Street, Suite 2805, New Orleans, Louisiana 70130.
Landlord shall make available to Tenant at the commencement of the term of this Lease the use of four (4) parking permits (the “Parking Permits”) in the Building parking garage (the “Parking ■Garage”) on an unreserved basis, two (2) of the permits shall be on a month-to-month basis; provided, however, Tenant must notify Landlord in writing within five (5) days of the execution hereof of the number of the Parking Permits which Tenant elects to use. Landlord shall have no obligation to make any Parking Permits available to Tenant other than the number of the Parking Permits which Tenant has so elected to use. With respect to the Spaces which Tenant elects to use, Tenant shall be obligated to pay the rental fee which is from time-to-time charged for such Parking Permits together with all applicable taxes charged by any governmental authority in connection with the rental of such Parking Permits. Tenant shall be obligated to contract directly with the | ¿manager of the Parking Garage for the use of the Parking Permits.
It is hereby agreed and understood that Landlord’s sole obligation hereunder is to make the Parking Permits available to Tenant. Tenant’s right to the use of such Parking Permits shall be subject to compliance with the rules and regulations promulgated from time-to-time by the manager of such Parking Garage, and shall be subject to termination for violation of any such rules or regulations upon notice from such manager. Landlord shall have no liability whatsoever for any property damage, loss or theft and/or personal injury which might occur as a result of or in connection with the use of the Parking Permits by Tenant, its employees, agents, servants, customers, invitees and licensees, and Tenant hereby agrees to indemnify and hold Landlord harmless from and against any and all costs, claims, expenses, and/or causes of action which Landlord may incur in connection with or arising out of Tenant’s use of the Parking Permits.
The failure, for any reason, of Landlord to provide or make available the Parking Permits to Tenant or the inability of Tenant to utilize these Parking Permits shall under no circumstances be deemed a default by Landlord pursuant to the terms of the Lease or give rise to any claim or cause of action by Tenant against Landlord, the same being hereby expressly waived by Tenant. Tenants [sic] sole remedy for such failure shall be the equitable abatement of Tenant’s parking rental fee. [Capitalization, underlining, and boldface in origi-nal1]

We find these pertinent provisions to be clear and unambiguous; we need not look to the parties’ intent by further interpretation. La. C.C. art. 2046.

By letter delivered to Lessor dated 11 January 2005, Intradel elected to use four parking permits. At some point in 2005, two of the parking permits for unreserved spaces were converted to use for specific reserved spaces. And during the term of the lease, the parties communicated in customary manners, including emails.

|aBy a first (written) amendment to the lease dated and signed 8 November 2010, the lease was extended until 31 January 2016, with the Intradel’s option to terminate the lease on 31 January 2014, upon advance written notice.

By a formal written notice to vacate dated 24 February 2011, served by Lessor’s counsel on Intradel through Kerry W. Kirby (its registered agent), Intradel was directed to vacate the two reserved parking spaces effective at midnight on 31 March 2011. See La. C.C.P. arts. 4701 and 4702. No evidence exists in the record on appeal as to the date the 24 February 2011 notice was served on Intradel. By letter dated 25 February 2011, Lessor’s counsel notified Intradel that effective 31 March 2011, it was electing to terminate the two month-to-month parking permits of the four parking permits (those for the two reserved spaces), and that Intradel, after the termination, would have but two parking permits for unreserved spaces for the remainder of the lease term. To this letter is attached a formal notice to vacate of the same date. We assume that this letter and notice was received by Intradel because it is attached to its answer to the rule to show cause for eviction. Intradel protested the eviction in letters. Subsequently, in apparent error, Lessor’s parking garage operator billed Intradel for four parking permits (two reserved, two unreserved), which bill Intradel paid. Lessor by letter of 31 March 2011 acknowledged the error, returned the overpayment of rent for the two parking permits, and attached a new formal notice to vacate. We assume that this letter and notice was received by Intradel because it is also attached to its answer to the rule to show cause for eviction.

Lessor filed its rule to show cause for eviction on 1 April 2011, to which was attached the original lease, the first amendment to the lease, and the 24 February 2011 notice to vacate.

IfiThe rule to show cause for eviction was heard on 27 April 2011. The transcript reflects no evidence of any kind (written or oral) was received by the court and no stipulation of facts of any kind appears in the record on appeal or in the transcript. Only oral argument of counsel to and with the court was had. The court ruled, denying the eviction of Intradel from the two parking permits.

No law permits a rule to show cause for eviction to be determined absent evidence. Although certain matters are undisputed by virtue of the attachments to Lessor’s rule to show cause and to Intradel’s answer to the rule (see La. C.C.P. art. 853), such as what the lease and first amendment to lease provided and the 25 February 2011 and 31 March 2011 letters and notices, we find the trial court erred because the undisputed evidence by virtue of the attachments to the rule and answer to the rule (the lease as amended provides that two of the parking permits were month-to-month only) clearly demonstrate that the provisions of La. C.C.P. art. 4701, et seq. (relative to the procedures and what is required to evict a tenant or occupant) have been complied with. The lease as amended clearly has multiple parts describing the rented premises — suite 2805 with a multi-year term, two parking permits with a coterminous term ending when the lease terminates, and two parking permits that are merely leased by Intradel on a month-to-month basis. An amendment to the lease had to be in writing signed by both parties; the emails between the parties and/or their representatives and agents are not signed by the parties and thus do not constitute amendments to the lease. Many of the 17attachments to Intra-del’s answer are immaterial and irrelevant to the issue of eviction from the two parking permits leased month-to-month.

We note that Intradel argues that if they knew that they were not entitled to have four parking permits during the renewal term of the lease (after 31 December 2010), then they would not have signed the first amendment to the lease. They argue that such constitutes a failure for cause and error as those terms are understood under the Louisiana Civil Code; i.e., but for the right to four parking spaces, they would not have extended the lease for suite 2805 beyond its initial term. We do not address that issue because such goes beyond that which can be entertained on a rule to show cause for eviction. The failure of cause is a matter determined in an ordinary proceeding, not a summary proceeding. La. C.C. art. 2592.

For the foregoing reasons, we reverse the judgment of the trial court that denied Lessor possession of the two parking permits and failed to evict Intradel from those two permits. We render judgment in favor of Poydras Center, LLC, and against Intradel Corporation evicting Intradel Corporation from two parking permits and spaces in the premises bearing the address 650 Poydras Street, New Orleans, Louisiana, known as “Poydras Center.”

REVERSED AND RENDERED.

      . In its opposition to Lessor's brief, Intradel argues that parol evidence is admissible to vary the terms of a written contract of lease to show that subsequent oral agreements modified the written contract. However, Intradel neither offered nor proffered written or oral evidence at the trial of the rule. See La. C.C.P. art. 1636.


author: ROLAND L. BELSOME, Judge.

text:
    MIDLAND FUNDING LLC v. Frankie J. KELLY.
    No. 2011-CA-0659.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2011.

      Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Eaton Group Attorneys, L.L.C., Baton Rouge, LA, for Plaintiff/Ap-pellee.
    Paul Rumage, Law Office of Paul Ru-mage, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

\ .FACTS AND PROCEDURAL HISTORY

Appellee, Midland Funding, LLC, filed suit on June 11, 2008, against Appellant, Frankie J. Kelly, for a balance due on a credit card. Requests for Admission of Fact were also filed with the petition. Appellant was personally served on February 13, 2009.

Appellant did not respond to the petition, and the trial court issued a default judgment on March 31, 2009. Notice of the judgment was mailed on April 2, 2009. A Garnishment Judgment ordering the garnishment of Appellant’s wages was signed by the trial court on July 2, 2009. Appellant did not file a motion for new trial, nor did Appellant appeal the March 31, 2009 judgment.

On April 5, 2010, Appellant filed a Petition for Nullity of Judgment. The petition alleged that the evidence submitted by Appellee at the time of the filing of the default judgment was insufficient to sustain a judgment against Appellant. Appel-lee filed an Exception of No Cause of Action, asserting that Appellant would only have a cause of action to annul the final judgment if the judgment was obtained by fraud or ill practices. On October 25, 2010, after a hearing, the trial 12court granted Appellee’s Exception of No Cause of Action and dismissed Appellant’s Petition for Nullity of Judgment with prejudice.

On November 2, 2010, Appellant filed a Motion For New Trial, requesting leave to amend the Petition for Nullity of Judgment to cure the exception, arguing that a case dated August 11, 2009, from the Northern District of Ohio in which Midland Funding, LLC, was a plaintiff, supported an allegation of fraud and ill practices in obtaining the judgment in the instant case.

The trial court held a hearing on January 14, 2011, at which time the court denied Appellant’s Motion for New Trial. Appellant seeks review of both the October 25, 2010 and January 14, 2011 judgments. STANDARD OF REVIEW

[1,2] The Louisiana Supreme Court has recognized that “[i]n reviewing a decision of the trial court on a petition for nullity, the issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court’s conclusions were reasonable.” Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766 (citing Kem Search v. Sheffield, 434 So.2d 1067 (La.1983)). The grant or denial of a motion for new trial is reviewed under an abuse of discretion standard. Brooks v. Wiley, 2007-1035, p. 3 (La.App. 4 Cir. 6/4/08), 985 So.2d 1269, 1271 (citing Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84). A trial court’s grant or denial of an exception of no Scause of action is reviewed de novo. Tuban Petroleum, L.L.C. v. SIARC, Inc., 2009-0302, p. 3 (La.App. 4 Cir. 4/15/09), 11 So.3d 519, 522.

DISCUSSION

Appellant asserts four assignments of error for our review: 1) the trial court erred in ruling that Appellant failed to state a cause of action; 2) the trial court erred in considering the entire record, rather than only the petition; 3) the trial court erred in denying Appellant the opportunity to amend the petition for nullity to state a cause of action; and 4) the trial court erred in refusing to consider evidence of payment.

Assignments of Error # 1 and # 3

In the Petition for Nullity of Judgment, Appellant challenged the documents and evidence submitted by Midland in support of the default judgment that was granted on March 31, 2009. Specifically, Appellant argued that Midland was not qualified to do business with the Secretary of State; that an affidavit from a Midland employee was flawed because no documents were attached to corroborate the affidavit; that no card member agreement or itemized accounting was attached, nor the assignments from Citibank to Atlantic Credit & Finance, and from Atlantic Credit & Finance to Midland Funding; that that pri-ma facie evidence of attorney’s fees was not submitted; and that a supplemental affidavit of correctness was flawed because the affiant had no first-hand knowledge of Appellant’s account.

On appeal, Appellant first argues that the trial court erred in dismissing the Petition for Nullity of Judgment. A final judgment may be annulled where there is a vice of form or substance. La. C.C.P. art. 2001. A final judgment may be Lannulled for a vice of form only if the judgment was rendered against an incompetent person not represented as required by law; if a judgment was rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken; or if a judgment was rendered by a court which does not have jurisdiction over the subject matter of the suit. La. C.C.P. art. 2002.

A final judgment may be annulled for a vice of substance if the judgment was obtained by fraud or ill practices. La. C.C.P. art. 2004. “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.” Id. A petition for nullity may not be substituted for a defense on the merits. State v. Bailey, 567 So.2d 721, 724 (La.App. 2d Cir.1990). Likewise, it is well-settled that the action provided by La. C.C.P. art. 2004 is not a substitute for an appeal. Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401 (La.1980).

In the absence of a valid reason for a defendant’s failure to defend the original suit in which a default judgment has been taken, a defendant cannot maintain an action for nullity of the judgment based on fraud or ill practices which could have been pleaded in the original suit. Mitchell v. Crane, 485 So.2d 613, 615 (La.App. 4th Cir.1986); Blackburn v. Deason, 447 So.2d 617, 619 (La.App. 4th Cir.1984); Samrow v. Samrow, 428 So.2d 547, 549 (La.App. 4th Cir.1983). Notably, the record in this case does not evidence that Appellant asserted good cause for failure to appear or plead affirmative defenses to the original petition.

15After hearing arguments from both parties, the trial court determined that the allegations made in the Petition for Nullity of Judgment were simply defenses that should have been raised in and answer or an exception to the original petition filed by Midland:

Just to make the record clear, the Exception [of No Cause of Action] on the Petition for Nullity is granted. Upon review of the Petition for Nullity sets forth various ground [sic] thát should have been raised by defendant in her answer and/or exceptions to the original petition. In particularly, [sic] this Court finds that under Louisiana Code of Civil Procedure Articles 2002 and 2004, a party may not establish a cause of action for annulment of a final judgment unless she alleges a technical defect or procedure or form or shows that the judgment was obtained through fraud or ill practices.
Here defendant does not raise issues as to the technical defects to the form of the procedure. Further, Louisiana law is clear that defendant’s failure to timely appear and defend the suit are not grounds for nullity or setting aside the judgment.
Lastly, the court finds that defendant cannot plead fraud or ill practice in an opposition memorandum. Any allegation of fraud and ill practice should have been properly raised in the Petition for Nullity.

We find that the trial court’s conclusions with regard to the dismissal of Appellant’s Petition for Nullity of Judgment were reasonable and therefore decline to disturb that judgment. See Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149, p. 6, 800 So.2d at 766.

[ 6With regard to Appellant’s third assignment of error, we find that the trial court properly denied Appellant’s request to amend the Petition for Nullity of Judgment to add allegations involving Midland Funding LLC v. Brent, 644 F.Supp.2d 961 (N.D.Ohio 2009), a case that was available to Appellant at the time the Petition for Nullity for Judgment was filed. After considering Appellant’s arguments, the trial court found that Appellant simply did not make a showing that the Petition for Nullity of Judgment could be amended to assert allegations that the March 31, 2009 judgment was obtained through fraud or ill practices, and accordingly denied the Motion for New Trial.

At the hearing on the Motion for New Trial, the trial court acknowledged that Appellant not only failed to timely assert defenses, but also failed to timely assert allegations that would support a petition for nullity under either La. C.C.P. art. 2002 or 2004:

Now, it appears to me that you’re reaching with respect to the requirements of 2002 and 2004. And that’s what I have to look at to make a determination of whether or not an amendment can cure this. You’re bringing up defenses that really should have been brought a year or so ago when it was originally filed when she was personally served. I mean, I looked at the record to see whether or not she was personally served. She was personally served with the pleading, and she did nothing.
The action and garnishment is going on right now. She’s being garnished for almost a year, if I’m not mistaken. And now we get a petition for nullity, and everything that you’ve asked and which Judge |7Morial considered on the petition for nullity and the exception appears to me to be defenses that should have been raised when the action was originally filed in which she chose not to bring a defense.

After hearing further argument, the trial court ultimately concluded that Appellant had not established grounds to amend the Petition for Nullity of Judgment pursuant to La. C.C.P. arts. 2002 and 2004:

Respectfully, [counsel], I’m going to have to deny your motion for a new trial. I think your request doesn’t rise to sufficiently satisfy the requirements of being allowed to amend pursuant to [La. C.C.P. art.] 934 and particularly as it relates to Articles 2002 and 2004 and the various issues relative to this case in which are replete in the motions, the memorandums, and the record. That’s my decision.

Considering the record and the reasoning articulated by the trial court, we find no abuse of discretion on the part of the trial court in denying Appellant’s Motion for New Trial. See Brooks v. Wiley, 2007-1035, p. 3, 985 So.2d at 1271.

Based on [counsel’s] representations in your motion, and you have two points that you point to, one being that you just referred to relative to those payments to Atlantic Credit, you mentioned in your motion that because of Hurricane Katrina, Ms. Kelly could not I guess get documentation relative to these payments. But Hurricane Katrina occurred in '05 in New Orleans. I’m not quite sure where she got these Atlantic Credit records, but I’m sure she could have gotten them. It’s a defense she could have made. I mean, I have a problem that this is not fraud or ill practice. She is asserting a defense that she could have asserted back when the matter was originally filed.

Assignment of Error # 2

With regard to Appellant’s second assignment of error, a review of the record does not evidence that Appellant objected to the trial court’s remark that it was examining the entire record. Furthermore, even if it were error for the trial court to consider the entire record, “[t]he determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case.” Thomas v. A.P. Green Indus., Inc., 2005-1064 (La.App. 4 Cir. 5/31/06), 933 So.2d 843, 865 (quoting Emery v. Owens-Corporation, 2000-2144, p. 7 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 449). “And it is defendant’s [the appellant’s] burden to so prove.” Id.; see also La. C.E. article 103(A)(“[e]rror may |snot be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”). We do not find that the trial court’s indication that it would consider the entire record had a substantial effect on the trial court’s ultimate decision to dismiss the Petition of Nullity of Judgment, and that the error, if any, was harmless.

Assignment of Error # 4

With regard to Appellant’s fourth assignment of error, the trial court determined that the alleged evidence of payments to Atlantic Credit was an affirmative defense that Appellant could have pleaded in the original suit. We agree. See La. C.C.P. art. 1005. Therefore, we find that the trial court properly declined to consider the alleged evidence.

DECREE

For the foregoing reasons, the trial court’s October 25, 2010 and January 14, 2011 judgments are hereby affirmed.

AFFIRMED

      . The record indicates the petition was fax filed on March 30, 2010.

      . Midland Funding LLC v. Brent, 644 F.Supp.2d 961 (N.D.Ohio 2009) modified on reconsideration, 308CV1434, 2009 WL 3086560 (N.D.Ohio Sept. 23, 2009).

      .Additionally, the determination of whether there is sufficient proof to support a default judgment is a question of fact and shall not be disturbed on appeal unless it is manifestly erroneous. Mooring Fin. Corp. 401 (K) Profit Sharing Plan v. Mitchell, 2008-1250, p. 4 (La.App. 4 Cir. 6/10/09), 15 So.3d 311, 315.

      . With regard to affirmative defenses, La. C.C.P. art. 1005 provides as follows:
      The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extin-guishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as a peremptory exception or as an incidental demand, or a peremptory exception as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.

      . The trial court further stated:
      But with respect to your petition for nullity and with respect to the exception of no cause of action, we’re looking at the pleadings, your well pleaded complaint, to make an assertation [sic] of whether or not your pleadings will survive what is required under [La. C.C.P. articles] 2002 and 2004 in an action of nullity.... You had quite a bit of time to come in there and argue what you — false, misleading allegations with respect to the patterns and practices of Midland to support your action. And now you want to come back in and amend to try and make your claim.

      . As noted previously herein, Appellant’s debt apparently originated with a Citibank VISA, was assigned to Atlantic Credit & Finance, and then assigned to Midland Funding.

      . The trial court directly addressed this issue at the January 14, 2011 hearing, stating: