text:
    In re Carl V. WILLIAMS.
    No. 2010-B-2759.
    Supreme Court of Louisiana.
    May 10, 2011.

      Charles Bennett Plattsmier, Gregory Lynn Tweed, Baton Rouge, for Applicant.
    The Schiff Law Corporation, Leslie J. Schiff, for Respondent.
   PER CURIAM.

hThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Carl V. Williams, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1987. In 1996, respondent was admonished by the disciplinary board for failing to communicate with a client, failing to promptly return client funds, and failing to cooperate with the ODC. In 2007, respondent was admonished by the board for failing to execute a written contingent fee agreement.

In 1998, respondent was suspended from the practice of law by this court in In re: Williams, 98-0773 (La.4/24/98), 709 So.2d 211. The ODC had filed two counts of formal charges against respondent, alleging he neglected a legal matter, failed to communicate with a client, failed to safeguard client funds, and commingled and converted client funds. Thereafter, the parties filed with this court a petition for consent discipline, proposing that respondent be suspended from the practice of law for one year and one day, with all but three months deferred, followed by a two-year | ^period of supervised probation with conditions. We ultimately accepted the petition for consent discipline and imposed the proposed discipline.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

09-DB-0U

Jo Ann Smith hired respondent to handle a succession matter. On April 16, 2008, Ms. Smith paid respondent $1,959, which according to respondent was intended to represent a flat fee of $1,500 plus court costs of $459. However, respondent’s written contract with Ms. Smith stated that the sum of $1,959 represented an “advance toward fees and costs” [emphasis added] for his handling of the matter. The agreement went on to provide that the balance of attorney’s fees would be paid prior to completion of the proceedings and specified an hourly rate of $125 per hour.

Thereafter, respondent placed the funds paid by Ms. Smith into his operating account. A review of respondent’s bank statements reveals that his account balance was regularly below the amount advanced by Ms. Smith, resulting in a conversion of her funds. In July 2008, Ms. Smith filed a complaint against respondent with the ODC. In December 2008, respondent refunded $1,621.50 to Ms. Smith.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(3) (advance deposit against fees which are to accrue in the future must be placed in the lawyer’s trust account), 1.5(f)(4) (advance deposit for costs and expenses must be placed in the lawyer’s trust account), 1.15(a) (safekeeping property of clients or third persons), 8.4(a) (violation |sof the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

09-DB-OU

In June 2001, Jacqueline Bonnee hired respondent to represent her interests in having her brother removed from her family home either through negotiation or by filing a partition action against him. Although respondent’s fee agreement with Ms. Bonnee called for a fifteen percent contingency fee to be taken from the sale of the property, respondent failed to reduce the contingent fee agreement to writing and failed to obtain Ms. Bonnee’s signature on the agreement. Ms. Bonnee now suffers from Alzheimer’s disease and is unable to independently verify respondent’s assertions concerning the fee agreement. In August 2009, Ms. Bonnee’s daughter filed a complaint on her mother’s behalf with the ODC.

The ODC alleged that respondent’s conduct violated Rule 1.5(c) (a contingent fee agreement shall be in writing) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In June 2009, the ODC filed the formal charges in the Smith matter. In November 2009, the ODC filed the formal charges in the Bonnee matter. Respondent answered both sets of formal charges. With regard to the Smith matter, respondent stated that he erred in drafting the contract with Ms. Smith, and that her initial payment should have been designated as a “retainer fee.” In all other respects, respondent denied any misconduct in the Smith matter. As to the Bonnee matter, respondent admitted that as the result of an oversight, his fee agreement was not 14reduced to writing and signed by Ms. Bonnee. The two matters were then consolidated by order of the disciplinary board before being considered by a hearing committee.

Formal Hearing

The consolidated matters proceeded to a formal hearing on the merits, at which respondent was the only witness to testify. He explained that the $1,959 paid by Ms. Smith was intended to constitute a flat fee of $1,500 and costs of $459. However, he admitted that when he drafted his fee agreement with Ms. Smith, he improperly stated that the $1,959 was an advance payment. He further admitted that, based on the way the agreement was written, the full amount of the payment should have been deposited into his trust account.

As to Ms. Bonnee, respondent testified that he entered into a fee agreement with his client for a fifteen percent contingency fee to be applied to the sales price of the family home. Respondent admitted that he did not reduce the contingency fee agreement to writing and did not obtain Ms. Bonnee’s signature acknowledging her acceptance of the agreement.

Hearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, the hearing committee made the following factual findings:

In the Smith matter, the committee found that respondent entered into a written agreement with Ms. Smith dated April 17, 2008 and titled “Retainer Agreement for Succession/Partition Action.” The committee noted that this agreement did not refer to a true retainer agreement under the Rules of Professional Conduct, but was intended by respondent to refer to a $1,500 minimum or fixed fee, within the meaning |sof Rule 1.5(f)(2), and a $459 advance deposit for costs and expenses, within the meaning of Rule 1.5(f)(4). A minimum or fixed fee may be placed in the lawyer’s operating account when paid by the client. The committee therefore concluded that respondent did not violate the Rules of Professional Conduct by depositing the $1,500 paid by Ms. Smith into his operating account, but did violate Rules 1.5(f)(4), 1.15(a), and 8.4(a) by depositing the $459 advance deposit for costs into his operating account, rather than a client trust account. Furthermore, the committee found that respondent converted the $459 advance deposit to his own use when he caused the balance of his operating account to fall below $459 in May, August, September, and October 2008, thus violating Rule 8.4(c). Respondent timely made a refund to Ms. Smith on December 16, 2008.

In the Bonnee matter, the committee determined respondent failed to reduce a contingency fee agreement to writing, in violation of Rules 1.5(c) and 8.4(a). However, he actually did the work for the client and would be entitled to a fee. The disputed funds are being held in an escrow account and respondent has agreed to submit the fee dispute to mediation or arbitration.

The committee determined that in the Smith and Bonnee matters, respondent knowingly violated duties owed to his client, the public, and the legal profession. The committee found the harm in both matters was only minor. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction is suspension.

In aggravation, the committee recognized respondent’s prior disciplinary offenses and substantial experience in the practice of law. As mitigating factors, the committee found a timely good faith effort to make restitution or to rectify the consequences of the misconduct and remorse.

| (After also considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, with all but three months deferred, followed by a two-year period of probation subject to the following conditions:

1. Respondent shall maintain a client trust account;
2. Respondent shall attend ten additional hours of continuing legal education in the area of law office management;
3. Respondent shall allow a practice monitor appointed by the ODC to periodically inspect and inventory his files and trust account;
4. Respondent shall file an annual registration statement, remain current on his MCLE requirements, and pay all bar dues and disciplinary assessments;
5. Respondent shall provide timely proof of compliance with these conditions to the ODC as they are completed;
6. Respondent shall comply with the Rules of Professional Conduct; and
7. In the event respondent fails to comply with these conditions of probation, the disciplinary board is authorized to modify or extend the probationary period, or recommend to the court that the probation be revoked and the remaining deferred portion of the suspension be made executory.

Both respondent and the ODC filed objections to the hearing committee’s report.

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board determined the hearing committee erred in considering parol evidence to clarify the written contract between respondent and Ms. Smith. According to the board, the contract 17was not ambiguous, and involved an advance deposit of fees to be earned by respondent in the future under Rule 1.5(f)(3). Therefore, respondent was required to deposit Ms. Smith’s funds into his client trust account. In all other respects, the board agreed with the factual findings and legal conclusions of the committee.

The board determined respondent knowingly violated duties owed to his client, the public, and the legal profession. Citing the ABA’s Standards for Imposing Lawyer Sanctions, as well as this court’s prior jurisprudence involving conversion of client funds, the board determined the baseline sanction ranges from suspension to disbarment. The board agreed with the hearing committee’s assessment of aggravating factors, but also recognized a pattern of misconduct. The board agreed with the mitigating factors found by the committee.

Considering respondent’s misconduct in light of the prior jurisprudence of this court, the pattern of misconduct, the history of prior discipline, and the aggravating factors present, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to submit the fee dispute with Ms. Bonnee to the Louisiana State Bar Association’s Fee Dispute Resolution Program. One board member noted he would also recommend respondent attend trust account and ethics classes.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an 1 sindependent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, there is no dispute that respondent deposited $459 in advanced costs into his operating account rather than a client trust account, converted those funds to his own use by allowing the balance of the operating account to drop below $459, and failed to reduce a contingency fee agreement to writing. The only issue to be determined is the proper characterization of the $1,500 fee paid by Ms. Smith. Respondent apparently intended the $1,500 to be a fixed fee or a minimum fee, which would become his property when paid by Ms. Smith. On the other hand, the ODC contends the $1,500 was an advance deposit against fees for future work, which, when paid, still belonged to Ms. Smith and should have been placed in respondent’s trust account.

While respondent’s intentions may-have been good, the fee agreement he drafted and which was signed by Ms. Smith clearly refers to an advance fee. Therefore, pursuant to Rule 1.5(f)(3), respondent was required to deposit the $1,500 paid by Ms. Smith into his client trust account.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and | fldeter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520' (La.1984).

The record supports a finding that respondent knowingly violated duties owed to his client, the public, and the legal profession, causing actual, albeit minimal, harm to his clients. Under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is suspension.

Aggravating factors consist of prior disciplinary offenses, a pattern of misconduct, and substantial experience in the practice of law (admitted 1987). The following mitigating factors are present: a timely good faith effort to make restitution or to rectify the consequences of the misconduct and remorse.

Under the circumstances of this case, we conclude that an actual period of suspension is warranted. We will impose a one-year suspension, deferring all but four months of the suspension on the condition that respondent successfully complete a two-year period of probation governed by the conditions set forth by the hearing committee in its report. We will also order respondent to participate in the fee dispute resolution program in the Bonnee matter. We caution respondent that any failure to comply with the conditions of probation, or any misconduct on his part during the period of probation, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

ImDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral' argument, it is ordered that Carl V. Williams, Louisiana Bar Roll number 18507, be and he hereby is suspended from the practice of law for one year. All but four months of the suspension shall be deferred, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions enumerated by the hearing committee. In addition, respondent is ordered as a condition of probation to submit the fee dispute with Jacqueline Bonnee to the Louisiana State Bar Association’s Fee Dispute Resolution Program. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The formal charges mistakenly referred to Rules 1.5(a)(3) and (4) instead of Rules 1.5(f)(3) and (4). The ODC corrected the typographical error in its pre-hearing memorandum.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cynthia BRIDGES, Secretary, Louisiana Department of Revenue v. HERTZ EQUIPMENT RENTAL CORPORATION.
    No. 2010-C-2328.
    Supreme Court of Louisiana.
    May 20, 2011.
    Antonio Charles Ferachi, Sessions, Fish-man, Nathan & Israel, LLC, Max Nathan, Jr., New Orleans, for Applicant.
    Phelps Dunbar, LLP, Christopher Kent Ralston, Harry Allan Rosenberg, New Orleans, for Respondent.
   PER CURIAM.

We granted the Department of Revenue’s application for a writ of certiorari in this case on December 17, 2010. After hearing oral arguments and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of December 17, 2010 as improvidently granted, and we deny the writ application.

KIMBALL, Chief Justice, dissents.

JOHNSON, Justice, disssents.

WEIMER, Justice, dissents.


text:
    In re Laura Bishop KNOLL.
    No. 11-OB-1061.
    Supreme Court of Louisiana.
    June 1, 2011.
   PER CURIAM.

| t After reviewing the evidence and considering the law, we conclude petitioner, Laura Bishop Knoll, is eligible to be conditionally admitted to the practice of.law in Louisiana, subject to the following conditions:

1. The term of this conditional admission shall be for five years from the date of admission. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

2. During the period of this conditional admission, petitioner shall be monitored by the Lawyers Assistance Program (LAP).

3. Petitioner shall be responsible for ensuring that monthly reports of her progress and participation in LAP are forwarded to the Office of Disciplinary Counsel.

4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the Office of Disciplinary Counsel (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Following receipt of the report from LAP, the Office of Disciplinary Counsel shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|26. Petitioner shall cooperate with LAP and the Office of Disciplinary Counsel, and shall comply with any and all requirements imposed upon her by LAP and the Office of Disciplinary Counsel.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

KNOLL, J., recused.

       Chief Justice Catherine D. Kimball not participating in the opinion; Justice Jeannette Ther-iot Knoll recused.


text:
    In re Oliver J. COUNCE.
    No. 11-OB-1057.
    Supreme Court of Louisiana.
    June 1, 2011.
   PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Oliver J. Counce, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The probationary period shall commence from the date petitioner, the Office of Disciplinary Counsel, and the probation monitor execute a formal probation plan. During the probationary period, petitioner shall comply with all of the terms and conditions of the consent agreement executed by him with the Louisiana Supreme Court Committee on Bar Admissions, and such other conditions as may be imposed upon him by the Office of Disciplinary Counsel. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Jason C. KUCZEK.
    No. 11-OB-1133.
    Supreme Court of Louisiana.
    June 3, 2011.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Jason C. Kuczek, Louisiana Bar Roll number 32046, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeannette Theriot Knoll /s/ Justice, Supreme Court of Louisiana


text:
    In re Michael A. BROUSSARD.
    No. 2011-B-0913.
    Supreme Court of Louisiana.
    June 3, 2011.
   PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in a conflict of interest and failed to properly communicate with a client. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael A. Broussard, Louisiana Bar Roll number 18143, be publicly reprimanded. It is further ordered that respondent attend and successfully complete the Louisiana State Bar Association’s Ethics School within one year of the finality of this court’s judgment.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


author: KLINE, J. KUHN, J., PETTIGREW,

text:
    In the Matter of Gracie Marie MELANCON.
    No. 2010 CU 1463.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.

      Bernadette R. Lee, Edith H. Morris, Suzanne Ecuyer Bayle, New Orleans, LA, for Plaintiff/Appellant.
    Before KUHN, PETTIGREW and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

12In this custody case, the trial court, on its own motion, raised the exception of no cause of action and dismissed a nonpar-ent’s unopposed petition to share custody of a child with the biological mother. Judgment was signed and petitioner appealed. For the following reasons, we recognize and maintain the. no right of action exception and affirm the judgment.

STANDARD OF REVIEW and PERTINENT LAW No Cause of Action

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court subjects the case to a de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. Harper v. Layrisson, 99-0544, p. 5 (La.App. 1 Cir. 4/10/00), 764 So.2d 1061, 1064.

The peremptory exception pleading the objection of no cause of action is a procedural device used to test whether, under the allegations of the petition, the law affords any remedy for the grievance asserted. Id., 00-0544 [99-0544], p. 4, 764 So.2d at 1063.

Every reasonable interpretation must be accorded to the language of the petition in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Id.

The court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Id., 99-0544, p. 5, 764 So.2d at 1063.

A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. 99-0544, p. 5, 764 So.2d at 1063-64.

|sVo Right of Action

The peremptory exception pleading the objection of no right of action challenges whether plaintiff has an actual interest in bringing the action. Mayeaux v. Glover, 08-2031, pp. 4-5 (La.App.1/12/10), 31 So.3d 1090, 1093. Whether a person has a right of action depends on whether the particular plaintiff belongs to the class in whose favor the law extends a remedy. This exception questions whether the plaintiff has an interest in judicially enforcing the right asserted. Id.

Louisiana Civil Code article 132 states as follows:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Louisiana Civil Code article 138 states as follows:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

BACKGROUND

The minor child at issue was conceived by artificial insemination and has only one known biological parent, her mother, Colette Melancon. Since her birth, the child and her biological mother have resided in the home of plaintiff/appellant, Kristine M. Berger. Ms. Melancon’s affidavit was filed with the petition. In her affidavit she avers that she consents to joint custody of the child being awarded to “her and Kristine M. Berger.” A consent judgment to this effect was submitted to the trial court.

The trial court did not sign the consent judgment. Instead, citing Black v. Simms, 08-1465 (La.App. 3 Cir. 6/10/09), 12 So.3d 1140, the trial court raised and maintained on its own motion the exception of no cause of action. The trial court handwrote an order denying the application for a consent judgment. The 14handwritten sentence said “pleadings must allege, and a finding by the Court must be made to conform to the trial court’s statement that an award of sole custody to the parent would cause substantial harm to the child, as per to La. C.C. art. 133.” This was memorialized in a formal judgment.

Ms. Berger appealed. In her appeal she alleges that the trial court erred: (1) in refusing to sign the consent judgment of custody; and (2) in requiring that she allege and prove that sole custody to the parent (with whom petitioner seeks to share custody) would result in substantial harm to the child.

DISCUSSION

While the trial court based its ruling on LSA-C.C. art. 133, Ms. Berger argues, citing LSA-C.C. art. 132, that since there is no dispute between the biological mother and herself regarding the best interest of the child on the award of joint custody, the trial court should have awarded custody in accordance with the mother’s wishes.

Louisiana Civil Code article 132 is inapplicable to Ms. Berger’s circumstance. LSA-C.C. art. 132 discloses causes of action for shared or joint custody only to legal parents. Ms. Berger is not a legal parent.

The focus on an exception of no right of action is on whether the particular plaintiff has a right to bring the suit. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1216-17. Ms. Berger has no right of action under LSA-C.C. art. 132 since she is not a member of the class of persons that has a legal interest in the subject matter of the litigation. Id. Accordingly, we raise and maintain on our own the exception of no right of action as to any claim under LSA-C.C. art. 132.

Louisiana Civil Code Article 133 is specific to an “Award of custody to person other than a parent,” which is the circumstance before us in this case. The language in article 133 presumes a dispute where some person is trying to ^protect a child from substantial harm. Pursuant to LSA-C.C. art. 133, a nonparent is only entitled to custody upon a showing that “an award of joint custody or of sole custody to either parent would result in substantial harm to the child.” McCormic v. Rider, 09-2584, p. 3 (La.2/12/10), 27 So.3d 277, 279.

Consequently, Ms. Berger has failed to allege a cause of action under Article 133 when she failed to allege that “sole custody [by the natural parent] ... would result in substantial harm to the child.” In essence, the law today simply does not permit a parent to share custody with a non-parent without a showing of substantial harm to the child. Accordingly, the trial court did not err in maintaining the exception of no cause of action regarding LSA-C.C. 133.

If the allegations in the petition merely fail to specify the acts that establish a cause of action or right of action, then the court should permit plaintiff an opportunity to amend the petition. See LSA-C.C.P. art. 934; See also Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719 at pp. 10-11, 929 So.2d at 1219. When the grounds of the objection cannot be removed, then plaintiffs need not be given an opportunity to amend. Id. Here, Ms. Berger cannot remove the grounds of the objections raised under LSA-C.C. art. 133 or LSA-C.C. art. 132 because the law provides her with no legal remedy, and she cannot cure the defect by amending the petition.

As the supreme court expressed in Duncan v. U.S.A.A. Insurance Company, 06-363 (La.11/29/06), 950 So.2d 544, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Id., 06-363 at p. 9, 950 So.2d at 550 (citing LSA-R.S. 1:4). When the wording of a section is clear and free of ambiguity, the letter of it shall be not disregarded under the pretext of pursuing its spirit. Id. We, as an ^intermediate court and pursuant to our constitutional duty, must apply the laws of this state as promulgated by the Louisiana legislature and interpreted by the Louisiana Supreme Court. State v. Barclay, 591 So.2d 1178, 1184 (LaApp. 1 Cir. 4/3/92). Accordingly, we affirm the trial court judgment.

DECREE

For the above stated reasons, we maintain the Exception of No Right of Action, raised sua sponte. We also affirm the trial court judgment sustaining the Exception of No Cause of Action. The cost of this appeal is assessed to Kristine M. Berger.

EXCEPTIONS OF NO RIGHT OF ACTION, RAISED SUA SPONTE SUSTAINED; JUDGMENT AFFIRMED.

KUHN, J., dissents & assigns reasons.

PETTIGREW, J., concurs and assigns reasons.

KUHN, J.,

dissenting in part.

| jAlthough the allegations of her petition do not state a cause of action, the trial court erred in failing to allow petitioner an opportunity to amend her petition to state a cause of action under La. C.C. art. 132, or to show whether she has a right of action under La. C.C. art. 133. See La. C.C.P. art. 934. Accordingly, I would remand to allow her to do so.

PETTIGREW,

concurs, and assigns reasons.

|tI am constrained to follow the law as it presently exists in the State of Louisiana. I therefore agree with the majority. I further note that if there is going to be any change of the existing law, it should be addressed by the Louisiana State Legislature.

      . LSA-C.C.P. art. 927(B) provides the following:
      The court may not supply the objection of prescription, which shall be specially pleaded. The nonjoinder of a party, preemption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.

      . This court permitted the appellant to submit additional briefs on issues raised in oral argument that were not briefed. These issues included interpretation of applicable Civil Code articles and the rights of a biological parent who donated sperm. We acknowledge that in her supplemental brief, appellant requested us to remand this matter to the trial court for a hearing on the best interest of the child. We have considered these issues in rendering this decision. LSA-C.C. art. 132 does not contemplate shared custody between parents and non-parents. As discussed within, Art. 133 is also inapplicable. We suggest the appellant’s remedy, if any, lies in the legislative process.

      . We make no comment on whether custody could be shared if a showing of substantial harm were made, as that circumstance is not before us for decision.


author: McClendon, j.

text:
    Michelle Taylor HOOVER v. Tujack Gene HOOVER.
    No. 2010 CA 1245.
    Court of Appeal of Louisiana, First Circuit.
    March 17, 2011.

      Amy Counce, Baton Rouge, LA, for PlaintifftAppellee Michelle Taylor Hoover.
    David Cliburn, Jennifer Stokes, Gonzales, LA, for Defendant/Appellant Tujack Gene Hoover.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

12An ex-husband appeals a trial court judgment partitioning the former community of acquets and gains. The ex-wife answered the appeal. For the reasons that follow, we affirm in part, vacate in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

Michelle Taylor Hoover and Tujack Gene Hoover were married on May 27, 1997. Of the marriage, one child was born on October 9, 1997. The parties physically separated on February 2, 2006, and a petition for divorce was filed by Mrs. Hoover on February 10, 2006. A judgment of divorce was signed on March 19, 2007.

On December 14, 2007, Mr. Hoover filed a Petition for Judicial Partition of Community Property. Trial of the matter was held on October 27, 2009 and October 30, 2009, after which the trial court took the matter under advisement. Oral reasons for judgment were assigned in open court on November 16, 2009. Thereafter, the judgment of partition was signed on February 4, 2010. Following the denial of his motion for new trial, Mr. Hoover appealed the judgment of the trial court, assigning the following specifications of error:

1. The trial court failed to include in the judgment the calculations used to determine the final allocation of assets, liabilities, and reimbursements.
2. The trial court abused its discretion in awarding Mrs. Hoover rental value in the community home of $2,500.00 per month, for a total of $112,500.00.
3. The trial court abused its discretion by failing to assign the income from the community property in Mississippi to Mrs. Hoover and allow Mr. Hoover a credit in reimbursement.

Mrs. Hoover answered the appeal, asserting the following:

1. The trial court erred in determining that the immovable property located at 1982 East Pass Road in Gulfport, Mississippi was community property.
|¾2. The trial court erred in setting the value of the movable equipment owned and operated by Hoover Tree Experts at $224,528.00.
3. The trial court erred in awarding Mr. Hoover $72,166.95 in reimbursement for mortgage payments paid for the immovable property located at 13840 Old Spanish Trail in Boutte, Louisiana.

STANDARD OF REVIEW

An appellate court’s review of facts is governed by the manifest error-clearly wrong standard. Rao v. Rao, 05-0059, p. 6 (La.App. 1 Cir. 11/4/05), 927 So.2d 356, 360, writ denied, 05-2453 (La.3/24/06), 925 So.2d 1232. However, it is well settled that a trial court has broad discretion in adjudicating issues raised in a judicial partition proceeding under LSA-R.S. 9:2801. If the trial court’s valuations of community assets are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be affirmed. Id., 05-0059 at p. 6, 927 So.2d at 360-61.

DISCUSSION

Mr. Hoover’s First Assignment of Error— LSA-R.S. 9:2801

In his first assignment of error, Mr. Hoover asserts that the trial court erred in failing to include in the judgment the calculations used to determine the final allocation of assets, liabilities, and reimbursements as required by LSA-R.S. 9:2801. Initially, we note that Mr. Hoover is not disputing the calculations, but rather the fact that the calculations were not included in the judgment.

The provisions of LSA-R.S. 9:2801 set forth the procedure by which community property is to be partitioned when the spouses are unable to agree on a partition of community property. LSA-R.S. 9:2801 A; Bible v. Bible, 03-2793, p. 4 (La.App. 1 Cir. 9/17/04), 895 So.2d 547, 549-50, writ denied, 05-1081 (La.6/17/05), 904 So.2d 700. Louisiana Revised Statute 9:2801 A(l)(a) provides that within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. Within sixty days of the date of service of the last-filed detailed descriptive list, each party shall | ^either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. LSA-R.S. 9:2801 A(2). At the trial of such traverses, the court must determine the community assets and liabilities, and the valuation of assets is to be determined at the trial on the merits. However, the court, in its discretion, may by ordinary procedure try and determine at one hearing, all issues, including those raised in the traverses. LSA-R.S. 9:2801 A(2); Bible, 03-2793 at pp. 4-5, 895 So.2d at 550.

Further, LSA-R.S. 9:2801 A(4) provides, in pertinent part:

The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d)In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

There is nothing in the statute that requires that the calculations be made part of the partition judgment. What is required is that the assets be valued, liabilities be determined, and claims adjudicated. LSA-R.S. 9:2801 A(4). In this matter, a review of the record clearly shows that the trial court assessed a value for each asset and liability, as explained in its oral reasons for judgment. | ¡¡Further, the trial court provided its own spreadsheet to the parties showing all values and calculations. Thus, this case is factually distinguishable from McElwee v. McElwee, 93-1010 (La. App. 1 Cir. 8/17/94), 649 So.2d 975, cited by Mr. Hoover. This assignment of error lacks merit.

Mr. Hoover’s Second Assignment of Error — Rental Reimbursement

In this assignment of error, Mr. Hoover urges that the trial court erred in assessing Mrs. Hoover rental reimbursement for the former community home in the amount of $2,500.00 per month, for a total of $112,500.00, when no evidence was presented concerning the rental value.

Currently, LSA-R.S. 9:374 C provides:

A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.

Of particular importance in this case is the fact that the parties stipulated prior to trial that Mrs. Hoover would receive a fan-market rental reimbursement for Mr. Hoover’s use of the family home. In the consent judgment signed on September 5, 2006, the parties agreed that Mr. Hoover would have the exclusive use of the former matrimonial domicile, and Mrs. Hoover was “awarded fair market rental reimbursement, with the value of same to be determined at a later date.” Further, the record contains an appraisal, with photographs, of the former community home in St. Amant, which was introduced as a joint exhibit.

[(At trial, when Mrs. Hoover was describing the house, counsel for Mr. Hoover made an objection to Mrs. Hoover testifying about the rental value. The trial court responded by stating it would allow Mrs. Hoover to describe the house for the court, but that it would not allow her to testify as to the fair market rental value. No evidence regarding the rental value of the house was offered or introduced.

In its oral reasons for judgment, the trial court awarded Mrs. Hoover rental value in the community home in the amount of $2,500.00 per month, for a total of $112,500.00. When asked how it determined the rental value, the court responded, “Since there was no evidence, the Court looked at the size of the home and just my judgment.” The court further stated, “What I know of, from $5,000 [sic] home with a pool, I thought $2,500 a month was reasonable.”

Based on the record before us, we are unable to determine whether the trial court’s award of $2,500.00 per month to Mrs. Hoover is in error. The parties stipulated that “fair market rental reimbursement” would be awarded to Mrs. Hoover. Although evidence was presented regarding the appraised value of the home, no evidence was presented to the trial court regarding its rental value. Accordingly, we vacate that part of the judgment awarding Mrs. Hoover rental reimbursement for the former community home in the amount of $2,500.00 per month, for a total of $112,500.00. Further, given that the consent judgment stipulated that Mrs. Hoover would receive fair market rental value, we remand the matter to the trial court for a determination of said rental value of the home and therefore a determination of the appropriate rental reimbursement. See Cryer v. Cryer, 96-2741, p. 9 (La.App. 1 Cir. 12/29/97), 706 So.2d 167, 171-72; Gravois v. Gravois, 03-559, p. 7 (La.App. 5 Cir. 10/15/08), 860 So.2d 90, 94. Mr. Hoover’s Third Assignment of Error — Rental Income from the Mississippi Property

In this assignment of error, Mr. Hoover contends that he is entitled to receive reimbursement credit for his portion of the income generated from immovable property located in Gulfport, Mississippi, which the trial court |7determined was community property. Initially, we note that Mr. Hoover never included this claim in his sworn detailed descriptive list. Thus, the issue was not addressed in the trial court and was raised for the first time on appeal. Well-settled jurisprudence establishes that as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the trial court has not addressed. Council of City of New Orleans v. Washington, 09-1067, p. 3 (La.5/29/09), 9 So.3d 854, 856. See also Uniform Rules-Courts of Appeal, Rule 1-3. Even were we to consider Mr. Hoover’s claim, it is not supported by the record as more fully discussed hereafter. This assignment of error lacks merit.

Mrs. Hoover’s Answer to the Appeal— Classification of the Mississippi Property

In her first assignment of error, Mrs. Hoover maintains that the trial court erred in classifying the Gulfport, Mississippi immovable property as community.

Under Louisiana law, property of married persons is generally characterized as either community or separate. LSA-C.C. art. 2335. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. LSA-C.C. art. 2340. As a matter of public policy and in the interest of fairness, this community presumption is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community. Talbot v. Talbot, 03-0814, p. 12 (La.12/12/03), 864 So.2d 590, 600. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, establishes that the fact or causation sought to be proved is more probable than not. Id.

The spouse seeking to rebut the presumption bears the burden of proving the property is separate in nature. Ross v. Ross, 02-2984, p. 9 (La.10/21/03), 857 So.2d 384, 390. A trial court’s finding regarding the nature of property as being either community or separate is a factual determination subject to the manifest error-clearly wrong standard of review. Id., 02-2984 at p. 18, 857 |s So.2d at 395; Hano v. Latino, 03-0088, p. 5 (La.App. 1 Cir. 11/7/03), 868 So.2d 61, 64, writ denied, 03-3328 (La.2/13/04), 867 So.2d 694.

Mrs. Hoover’s father, Bobby Taylor, testified at trial. He stated that he runs his restaurant equipment business out of the Mississippi property. Mr. Taylor testified that the property was acquired in 1998. He stated that, originally, he had intended to purchase the property, but after suffering a heart attack and going through open heart surgery, he thought it would be easier for his two children, if something happened to him, to put the property in their names as well. Mr. Taylor further testified that neither his daughter, nor his son, made any down payment. Mr. Taylor stated that he paid it all and that he has paid “every single nickel” on the mortgage. He also stated that he has paid all property taxes and insurance on the property. Further, he claims as income on his taxes the rents he receives on the mini warehouses, trailers, and the commercial building on the property. Mr. Taylor testified that in his opinion, the property belongs to him. He told his children when he bought it in 1998, that it was theirs when he died, but until then it was his retirement income. Mr. Taylor also testified that since her divorce, he has given his daughter about $1,500.00 per month for living expenses, which is in no way related to the Mississippi property.

Mrs. Hoover testified that neither she nor Mr. Hoover ever contributed to the down payment for the Mississippi property and further that they never made any mortgage payments on the property. She also testified that they never paid any insurance or property taxes and never received any income from the property during their marriage. Additionally, Mrs. Hoover stated that she and Mr. Hoover never claimed any income from the Mississippi property on their income taxes and that she has no ownership interest in her father’s business. Mrs. Hoover stated that she and Mr. Hoover did not think that they owned the property and that she and Mr. Hoover talked about and knew that if anything happened to her father, the property was for her, her brother, and her mother. |9Mrs. Hoover did admit that since February of 2006, when she and Mr. Hoover separated, her father has helped her out financially.

Mr. Hoover testified and admitted that he did not list the Mississippi property on his financial statement submitted to First American Bank in 2001. Mr. Hoover also acknowledged that he made no mortgage payments on the property, nor did he pay any insurance or property taxes. Further, he admitted that he never claimed any income at any time from the Mississippi property on any of his income tax returns. However, he testified that Mrs. Hoover used money taken from his business to use as a down payment for the property, but he could not specify how much and conceded that he had no documentation in support thereof. He also stated that he thought Mrs. Hoover received income from the property, but he did not know in what amounts, and acknowledged that payments to Mrs. Hoover from her father could have been gifts.

Upon a thorough review of the record in this matter, we find that the trial court was manifestly erroneous in concluding that the Mississippi property was community property. The evidence established that the property was paid for entirely by Mrs. Hoover’s father and that the community received no income from the property. Importantly, Mr. Hoover did not list any interest in the property on his loan application, nor during the marriage was any income from the Mississippi property reported on their tax returns. We find that the evidence presented at trial was sufficient to rebut the presumption of community established in LSA-C.C. art. 2340. Accordingly, we reverse the trial court’s judgment on the Mississippi property, finding that Mrs. Hoover established that it was not community.

Mrs. Hoover’s Second Assignment of Error — The Value of the Movable Equipment

Mrs. Hoover next contends that the trial court erred in valuing the movable equipment owned by Hoover Tree Experts, Mr. Hoover’s unincorporated business entity. The trial court determined the value to be $224,528.00. In arriving at that amount, the trial court considered and rejected Mr. Hoover’s Evaluation in the amount of $77,500.00, as submitted on February 26, 2008, when he filed his sworn detailed descriptive list, as well as his valuation on an October 2008 loan application in the amount of $406,000.00. The trial court found neither valuation credible. In its oral reasons, the trial court stated that it used Mr. Hoover’s income tax return and calculated depreciation to arrive at the $224,528.00 amount.

Mrs. Hoover argues that the trial court should have used the $406,000.00 figure because it was the value given to a bank closest in time to the trial and was the most credible. On the other hand, Mr. Hoover asserts that the trial court was within its discretion in valuing the movable property, although he believed the value to be much less. We find no abuse of discretion in the trial court’s valuation of the Hoover Tree equipment.

Mrs. Hoover’s Third Assignment of Error — Reimbursement for the Boutte Property

In her last assignment of error, Mrs. Hoover is appealing the $72,166.95 reimbursement credit in favor of Mr. Hoover, for mortgage payments he made on the Boutte property. Mrs. Hoover argues that although she is not disputing that the Boutte mortgage is a community debt, the reimbursement credit should not have been allowed because the property has been exclusively used by and for the benefit of Mr. Hoover and Hoover Tree since the termination of the community. Further, Mrs. Hoover contends, because Mr. Hoover did not collect rent from Hoover Tree, the mortgage credit gives him a “windfall” and creates an inequity to Mrs. Hoover. Mrs. Hoover maintains that as a prudent administrator of a community asset, Mr. Hoover should have collected rent from Hoover Tree for its use of the community property.

Louisiana Civil Code art. 2365 provides, in pertinent part:

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

| nWe find nothing in the civil code’s plain language that would allow us to ignore the code’s clear instruction. Further, the 1979 Revision Comments to LSA-C.C. art. 2365 clearly emphasize that “[w]hen the separate property of a spouse is used to satisfy any community obligation, the spouse is entitled upon termination of the community property regime to reimbursement for one-half of the amount or the value that the property had at the time it was used.” Mr. Hoover used his own separate property to satisfy a community obligation and is therefore entitled to a reimbursement. Further, Mrs. Hoover failed to establish any rental value for this undeveloped property where equipment was stored. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, that portion of the trial court’s judgment related to the rental value of the former community home is vacated; that portion of the judgment classifying the immovable property located at 1982 East Pass Road, Gulfport, Mississippi as community is reversed; and this matter is remanded to the trial court for the limited purpose of establishing the fair market rental value of the community home and the proper completion of the community property partition consistent with the law and the views expressed herein. In all other respects, the judgment is affirmed. Costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART; VACATED IN PART; REVERSED IN PART; AND REMANDED.

      . The appraisal, dated January 26, 2009, described the home as ten to twenty years old, in average condition, and maintained, but in need of maintenance and repairs. It is a five-bedroom 4,597-square-foot home on 1.59 acres. The property also includes a pool, hot tub, patio and deck area, a gazebo and large workshop. The property was appraised for $344,000.00.


author: DANIEL L. DYSART, Judge.

text:
    MENDY PROPERTIES, L.C., and Mendy & McElroy, LLC v. ENTERPRISE RENT-A-CAR COMPANY and ABC Insurance Company.
    No. 2010-CA-0987.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.
    Edward Mendy, Lillian Dunn, Mendy & Beekman, PLLC, Philadelphia, PA, for Plaintiffs/Appellants.
    David P. Salley, Susan G. Guillot, Salley Hite & Mercer, LLC, New Orleans, LA, for Defendant/Appellee, Enterprise Leasing Company of New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

L Mendy Properties, LC, and Mendy & McElroy appeal a summary judgment granted in favor of Enterprise Leasing Company of New Orleans. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Enterprise Leasing Company of New Orleans (hereinafter “Enterprise”) entered into a lease agreement with Mendy Properties, LC (hereinafter “Mendy”) to lease a portion of a building located at 4334 Earhart Boulevard in New Orleans. The subject lease commenced on October 1, 2001, and was to terminate on the last day of the sixty-third full calendar month thereafter. The lease also provided that either party could terminate the lease after December 31, 2002, upon not less than ninety days prior written notice. If Enterprise moved to terminate, the termination date would be the date specified in the written notice, and Enterprise would be obligated to pay Mendy three additional month’s rent as a penalty.

Enterprise was permitted to refurbish the exterior and relocate the entrance to the building without Mend/s approval, as long as the changes were consistent 12with Enterprises’ trade dress and standard colors. Additionally, the lease permitted the installation of a satellite dish antenna and other communication devices, provided the roof would not be damaged in the installation. Enterprise was to remove the equipment at the end of the lease, and to repair any damage caused by installation or removal.

However, in a seemingly conflicting provision of the lease, Article 13.1 afforded Enterprise the option of removing non-permanent improvements or leaving them. If left for more than thirty days after termination of the lease, the improvements would become the property of Mendy.

On July 28, 2003, Enterprise mailed a certified letter to Mendy at the address stated in the lease, giving notice of early termination of the lease, effective October 31, 2003. When Enterprise vacated the premises, it exercised its option to leave the satellite dish and carport attached to the building. Thus, according to the lease, thirty days later the property was deemed abandoned and became the property of Mendy.

On August 29, 2005, Hurricane Katrina struck the greater New Orleans area, and the subject building was heavily damaged by wind and flood waters.

On September 1, 2006, Mendy filed suit against Enterprise alleging Enterprise breached the lease by failing to remove or replace fixtures it added to the leased premises when it terminated the lease. The failure to remove or replace fixtures resulted in damage to the building during Hurricane Katrina. Specifically, Mendy alleged that the carport became a projectile, the building sustained more severe wind damage because of the removal of the storm windows, and the satellite |sdish caused the roof to peel back. Based on these allegations, Mendy stated a cause of action for both breach of contract and negligence.

Initially, Enterprise filed an answer generally denying all claims. It later filed a motion for summary judgment arguing that it had properly terminated the lease; it had exercised its option to not remove the carport and satellite dish, and, pursuant to the terms of the lease, had abandoned the property. As such, at the time of Hurricane Katrina, the complained of property was Mendy’s property for which Enterprise had no responsibility.

Mendy opposed the summary judgment for the reasons set forth in its petition. After a hearing on September 25, 2009, wherein the trial court granted summary judgment in favor of Enterprise, a formal judgment was entered on October 12, 2009. This timely appeal followed.

LAW AND ANALYSIS:

“Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La.Code Civ. Proc. Art. 966 A(2)). Motions for summary judgment are reviewed on appeal de novo. The same criteria that govern the trial court’s determination of whether summary judgment is appropriate are used by the reviewing court. Samaha v. Ran, 07-1726, pp. 3^ (La.2/26/08), 977 So.2d 880, 882-883. 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 of material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966 B. The burden of proof remains with the movant. However, if 14the 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 mov-ant’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. La.Code Civ. Proc. Art. 966 C(2).

The determination of whether a fact is material turns on the applicable theory of recovery. Thomas v. North 40 Land Dev., Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174. A fact is material if its existence or non-existence is essential to plaintiffs cause of action under the applicable theory of recovery. Harvey v. Francis, 00-1268, p. 5 (La.App. 4 Cir. 3/21/01), 785 So.2d 893, 897. Thus, not all disputed facts are material for the purposes of summary judgment.

In support of its motion for summary judgment, Enterprise attached an affidavit of Rudolph Diaz, III, Enterprise’s operations manager at the time the motion was filed; a copy of the lease; a copy of the certified termination letter dated July 28, 2003, sent by the operations manager employed on that date; a copy of a letter dated August 5, 2003, from Harry E. Kuh-ner, II, an attorney for Regions |5Bank who had been copied on the termination letter; and, a copy of a letter dated November 5, 2003, transmitting the keys to the property to Mendy.

The affidavit set forth Diaz’s appreciation of the lease and its provisions. He attested that he was qualified to make the affidavit because of his duties concerning real estate, construction and facility management.

The portions of the lease relevant to this appeal are Article 7.4, Article 9.1 and Article 13.1. Article 7.4, entitled “Landlord’s Work and Tenant’s Alterations,” provides in pertinent part:

Tenant shall have the right, at its sole expense, from time to time, to redecorate the Demised Premises and to make such alterations changes and/or installations in such parts thereof as Tenant shall deem expedient or necessary for its purposes; provided; however, that such alterations, changes and/or installations when completed shall neither impair the structural soundness nor diminish the value of the building of which the Demised Premises forms a part.
Anything contained in this Section 7.4.[sie] to the contrary notwithstanding, Tenant shall not make structural changes or changes to the exterior of the Demised Premises without Landlord’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed; however, Tenant shall have the right to refurbish the exterior of and or relocate the entrance of the Demised Premises, without Landlord’s approval, so long as such work is consistent with Tenant’s then current trade dress and standard colors.
As part of Tenant’s communication systems, Landlord hereby permits Tenant to install and hook-up a satellite dish antenna and other communication equipment on the roof of the Demised Premises. The antenna/equipment shall be mounted on a non-penetrating skid which distributes the weight or otherwise installed so that it will not damage the roof system. Tenant shall promptly repair any damage caused by such installation, and, at the end of the term, Tenant | (¡shall remove such equipment and repair any damage caused by its removal.

Article 9.1, entitled “Further Covenants,” provides, in pertinent part:

Tenant and Landlord covenant and agree as follows:

(a) Tenants agrees upon the expiration or termination of this Lease, to remove its goods and effects and those of all persons claiming under it and to yield up peaceably to Landlord the Demised Premises in as-is condition, subject, however, to the provisions of Section 7.2 and 13.1.
Article 13.1, entitled “Fixtures,” states: All equipment and other personal property installed by or at the expense of Tenant and are susceptible of being removed from the Demised Premises, shall remain the property of Tenant and Tenant may, but shall not be obligated to, remove the same or any part thereof within thirty (30) days after the end of the term hereof, and provided that Tenant, at its sole cost and expense, shall make any repairs occasioned by such removal. Any such property which is not so removed shall be deemed abandoned and shall become the property of the Landlord.

The certified letter from the operations supervisor for Enterprise to Edward Men-dy informing Mendy that Enterprise wished to exercise its right to terminate the lease is addressed to the address provided in the lease for communication from tenant to landlord. The letter stated that the termination date would be October 31, 2003. It also explained that a check for $6000, representing the early termination penalty, was enclosed in a copy of the letter to the Civil Sheriff.

|7The letter from the Region’s Bank attorney to Enterprise suggested that in addition to the $6000 penalty fee, the remaining three month’s rent due under the lease should be sent to the Civil Sheriff also.

In response to Enterprise’s motion for summary judgment, Mendy filed a confusing and convoluted opposition, and attached the affidavit of Edward Mendy. Many of the arguments raised in the opposition were new and not related to the allegations contained in the petition, as were the attestations in Mr. Mendy’s affidavit.

Enterprise replied to the opposition and submitted additional support to refute the allegations, new and old, made by Mendy. For example, Mr. Mendy claimed that the termination letter was never received. Enterprise submitted the return receipt.

At the hearing, the trial court repeatedly asked counsel for Mendy about the notice of termination, the cancelled checks for the rent and early termination penalty, and why Mendy waited over eighteen months from the date Enterprise moved out to claim the lease was breached. The court stated that it found it “curious” that this lawsuit was not filed until Hurricane Katrina damaged Mendy’s building. Despite the record evidence, Mendy’s counsel insisted that the lease had not been properly terminated, and as such, the fixtures were still the property of Enterprise, which should be held liable.

Pursuant to La.Code Civ. Proc. art. 966 C(2), Enterprise only needs to prove that there is an absence of factual support for one or more elements essential to Men-dy’s claim. Mendy claims that Enterprise breached the lease by not giving proper notification of early termination. Enterprise has proven that it gave proper notification. Mendy claims that Enterprise did not make the proper payments | ^required for early termination of the lease. Enterprise has proven that it made all necessary payments, and that Mendy negotiated all of the checks. Mendy’s argument that the checks were not sent directly to them, but rather to the civil sheriff, does not negate the fact that proper payments were made, and that Mendy received them. Additionally, our reading of the lease, particularly Article 13.1, satisfies this Court that Enterprise did not breach the lease by abandoning the improvements made to the subject property.

Accordingly, we find that Enterprise successfully negated Mendy’s claims for breach of contract, and that summary judgment was appropriate.

Mendy also alleged in its petition that Enterprise’s negligence in leaving behind the carport and satellite dish caused additional damages to Mendy’s building in the wake of Hurricane Katrina. Because we find that Enterprise did not breach the lease between it and Mendy, and that under the terms of the lease, the complained of items were in fact Mendy’s property, Enterprise cannot have any liability for the damage.

Mendy Properties, LC, argues that should this Court find summary judgment was appropriate against it individually, Mendy & McElroy still has a viable claim in negligence against Enterprise. Because we have found that Enterprise did not breach the lease, it can have no liability for any damage caused by Hurricane Katrina to any tenant of the leased premises. The property that allegedly caused the additional damage was the property of Mendy Properties, LC.

Lastly, Mendy’s claims for gross negligence, intentional fault or strict liability are being raised for the first time on appeal. This Court only reviews issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires ^otherwise. See Uniform Rules — Courts of Appeal, Rule 1-3. We see no reason to review these late-raised allegations.

Accordingly, for the reasons stated above, we affirm the ruling of the trial court.

AFFIRMED

      . Regions Bank held the mortgage on the property, which was in foreclosure at the time Enterprise terminated the lease. We have also discerned from the record that Mendy was in bankruptcy and that a trustee had been appointed.

      . Article 7.2 addresses the obligations of the Tenant to maintain the premises in good order and condition during the term of the lease.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Tony DECLOUES (Declues).
    No. 2010-KA-1247.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

| ?Tony Decloues appeals his conviction and sentence for second degree murder. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On January 10, 2009, June Jones discovered the body of Louise Decloues in the bedroom of Ms. Decloues’ home at 1312 Cambronne Street. The seventy-four year old victim had been stabbed five times. Three of the stab wounds were to her upper chest, one was to her upper abdomen, and the last stab wound went through her wrist. In addition, a plastic bag was tied over her head, causing her to asphyxiate. Upon observing the victim lying on the floor with a bag over her head, Ms. Jones ran from the house and called 911. Detective Randi Gant arrived at the scene, finding the defendant (who resided with his mother at 1312 Cambronne Street) in the backyard. He appeared agitated and tried to leave; he told the detective that he did not know what had happened to his mother and that he had been at the house of a friend, Pershing Matthews, since 2:00 p.m. on the previous day.

|3The defendant was transported to the homicide office, where he was met by Detective Anthony Pardo who read him his rights. The defendant signed a rights of arrestee form and indicated to the detective that he understood his rights. He initially told Detective Pardo that he was at Mr. Matthews’ house. However, after being confronted with the information that Mr. Matthews disputed this assertion, the defendant eventually confessed to stabbing and suffocating his mother. After taping his confession, the defendant showed the detective the dumpster on Dante Street where he had disposed of the murder weapon and the clothing he had worn during the murder. After obtaining a search warrant for the dumpster, the police retrieved a black gym bag, blue lock box, gloves, sweat shirt, sweat pants, a knife, and a small white bag containing newspaper. Everything recovered from the dumpster except the lock box had blood on it that was identified as human blood. No latent prints were found on the recovered knife, and no DNA testing was conducted on any of the evidence. In addition, two pairs of shoes found under the defendant’s bed on Cambronne Street also contained human blood.

Meanwhile, shortly after the defendant was transported to the homicide office, Detective Ryan Aucoin arrived at Cam-bronne Street to conduct the on-scene investigation. He observed the body in the bedroom and blood on the bed. It appeared that the closet and dresser drawers had been rummaged through, a torn shoe box and black purse were on the floor, and crumpled newspaper containing blood was on a chair. Detective Aucoin spoke briefly with the defendant at University Hospital later that evening and found the defendant’s speech to be somewhat slurred.

|4On April 9, 2009, the State charged the defendant with second degree murder. He pleaded not guilty on April 15, 2009. The court conducted a competency hearing on June 16, 2009. He was found competent to proceed to trial. After a hearing, the trial court denied the defendant’s motion to suppress the evidence and statement on July 21, 2009. The defendant was again found competent to proceed to trial and after trial on April 20, 2010, the defendant was found guilty as charged.

At the defendant’s trial, the State presented the testimony of Ms. Jones (who discovered the victim’s body), Doctor Paul McGarry (a forensic pathologist at the Coroner’s Office of Orleans Parish) and the police officers who investigated the crime, Detectives Gant, Pardo, and Aucoin. The defendant’s videotaped confession was played for the jury. Doctor McGarry testified that, had she received timely medical attention, the victim probably would not have died from the stab wounds and that her demise was hastened by the plastic bag tied tightly over her head while she was still alive, causing her to asphyxiate. The doctor surmised that Ms. Decloues died from a combination of asphyxia and the stab wounds. Detective Pardo testified that he did not force, coerce or promise the defendant anything for his confession and, although the defendant stated he had smoked crack cocaine the day before, he did not appear intoxicated during the interview.

The defendant testified in his own defense as follows. At the time of the murder, he was fifty-five and had lived with his mother on Cambronne Street for ten years. They were not close due to his use of crack cocaine since his early twenties. He had five misdemeanor convictions for possession of drug paraphernalia. In January of 2009, he worked sporadically as an auto mechanic and |fidid other odd jobs. On January 7, 2009, he performed some work for a man renovating a house and was paid in cash. With that money, he bought crack cocaine and smoked it. At approximately 9:00 p.m., he returned home to his mother’s house. After showering and eating dinner, he went to his bedroom to watch television. As he was watching television, he started to have some pain in his leg. After taking some Tylenol, he fell asleep until he was awoken suddenly by a nightmare at approximately 2:00 a.m. The gist of the nightmare was that he caught his “woman” in bed with another man. He remembered hitting her on the bed before pulling her to the floor. The defendant also remembered not wanting to look at her bloody face. He then went to the utility room and put the clothes that he was wearing into a black bag. Next thing he knew, he was at a dumpster. At that point he awoke from his dream, after which, he could not go back to sleep. He left the house and went to buy crack cocaine, which he smoked. He returned to the house around 6:30 a.m. on January 8, 2009 to get ready to go to work for Mr. Brown, the auto mechanic.

After he got off of work, he bought more crack cocaine. He and his friend Matthew smoked together until they ran out of crack cocaine and money. The defendant then pawned a saw that he took from the shed behind his mother’s house. With that money, he smoked more crack cocaine with Matthew. The defendant testified that he worked for Mr. Brown on January 9 and 10, 2009, and with the money he earned again bought and smoked crack cocaine.

He got off from work on January 10th at approximately 2:00 p.m. When he went to a convenience store to purchase cigarettes later that afternoon, he noticed |6an ambulance and fire truck further down the road near his mother’s house. Because his leg was bothering him, he called Mr. Brown for a ride. Approximately two hours later, Mr. Brown picked the defendant up and dropped him off at this mother’s house. The defendant ran into the house and towards his mother’s bedroom. He briefly caught a glimpse of her body lying on the floor.

The defendant stated that he had not had slept or eaten since January 7, 2009. He could remember his dream, but he had no recollection of doing anything to his mother or of anything about his statement to the police. He remembered going to the dumpster. He did not remember going to the hospital, but he did remember having his fingernails scraped. The defendant denied ever stealing anything from his mother.

The jury found him guilty as charged on April 20, 2010. He was sentenced on April 26, 2010, to serve life imprisonment at hard labor. His motion for appeal was granted and his motion to reconsider sentence was denied.

Assignment of Error

By his sole assignment of error, the defendant argues that the trial court erred in denying his motion to suppress because he was impaired from days of drug use and sleep deprivation at the time he gave his statement.

Intoxication will render a confession inadmissible when the intoxication is of such a degree as to negate the defendant’s comprehension and render him unconscious of the consequences of what he is saying. State v. Simmons, 443 So.2d 512 (La.1983); State v. Robinson, 384 So.2d 332 (La.1980). Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact and we will not overturn the trial judge’s conclusions on the credibility and weight of the testimony relating to the 17voluntariness of a confession unless they are not supported by the evidence. State v. Rankin, 357 So.2d 803 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977).

The defendant argues that his demeanor during the taped confession and his testimony at trial clearly show that he was impaired at the time he gave his confession. The trial judge reviewed the taped confession during the motion hearing held on July 17, 2009, and, finding it marginal whether the confession was voluntary, continued the matter until July 21, 2009. When the court reconvened on that day, the State presented the testimony of Dr. Charles Vosburg, an expert in forensic psychology. Doctor Vosburg testified that he reviewed the tape of the defendant’s confession and, in his opinion, the poor concentration and disorganized thought exhibited by the defendant, along with the defendant’s hyperactivity, were due to drug abuse. He commented that the tape indicated someone who was coming down from drugs that were recently ingested. However, the defendant was easily calmed when he became upset, his concentration was easily restored, and there was no observable evidence of coercion. Moreover, the defendant spoke with clarity and with specificity during his confession. Accordingly, based upon these observations, Doctor Vosburg opined that the defendant knowingly waived his rights and that the statement was voluntary.

Our review of the taped confession indicates that at the beginning of the interview the detective read the defendant his rights. The defendant appears attentive while those rights were being read, acknowledging each one individually. When asked whether he understood his rights, the defendant gave a definitive yes. The defendant is noticeably fidgety and sometimes had to be asked to speak up, but as Doctor Vosburg observed, he was easily calmed. His answers were responsive to the questions asked by the detective. Significantly, the confession is detailed in |sthe description of how the murder occurred. The defendant explained that he had stayed out all night the night before and when he returned home, he and his mother argued. After retreating to his room to watch television and smoke more crack cocaine, he left the house again. When he returned, he thought he could slip into his mother’s room while she slept and take her credit card from her purse and a phone book that contained the pin number to the credit card. When he entered the room, she was awake and the defendant asked her for some Tylenol. He then went to the kitchen, retrieved a knife, returned to his mother’s room, and approached her. When his mother became vocal, he attacked her. The defendant admitted stabbing her, trying to break her neck, and suffocating her. He stated that the drugs made him deranged. He then explained how he removed all of his clothes and placed them in a black bag along with a glove and the knife that he wrapped in newspaper. The defendant placed the shoes that he was wearing under his bed. Afterwards, when he was looking for her purse, the defendant came across the lock box. He broke into the lock box and found thirty dollars. During the interview, the defendant expressed remorse for his actions.

Moreover, the defendant’s confession coincides with the physical evidence presented at trial. The tape and testimony show that appellant was advised of and understood his rights. Doctor Vosburg’s observations of the defendant’s taped confession appear accurate. The district court viewed the taped confession and heard the testimony of Detective Pardo and Dr. Vos-burg before finding the confession to be voluntary. Because the confession is supported by the evidence, lawe do not find the trial court abused its discretion by denying the motions to suppress the statement and evidence.

Errors Patent

The transcript of the sentencing hearing shows that the defendant’s life sentence was imposed without benefit of probation, parole or suspension of sentence, and the minute entry of sentencing fails to reflect that the district court restricted parole eligibility as required by La.Rev.Stat. 14:30.1. The minute entry reflecting the illegally lenient sentence was sent to the Department of Corrections as evidence of the sentence imposed. However, pursuant to La.Rev.Stat. 15:301.1 A and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the restriction of benefits, even in the absence of the minute entry showing the restrictions.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . On February 1, 2011, the defendant filed a motion for leave and extension of time to file a pro se brief. The motion was granted on February 3, 2011, and the defendant was ordered to submit his brief within thirty days. That time period has expired and the court has not received the brief or a motion for extension of time.

      . The shoes were found when a search warrant was executed at the house on January 11, 2009. Inexplicably, no DNA testing of the blood was done to discover if the blood on the defendant’s shoes was that of his mother.

      . The defendant was at the hospital because a warrant to obtain blood and saliva samples was being executed.

      . The defendant had broken his ankle in an earlier accident, and had also had knee replacement surgery that caused him to walk with a limp.

      . The defendant was clearly aware of the implications of what he had done at the time of the murder as evidenced by his explanation that, before he left the house, he opened the drawers in the chests in their bedrooms to make it look like a burglary. He also noted that he threw the black bag in the dumpster because he realized the evidence inside the bag was incriminating.