text:
    BAYOU FLEET PARTNERSHIP v. PHILLIP FAMILY, LLC.
    No. 11-CA-924.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Anthony J. Staines, Corey P. Parenton, Attorneys at Law, Metairie, LA, for Plaintiff/Appellee.
    Jeffery P. Brothers, David L. Colvin, Travis J. Causey, Ashley J. Becnel, Mark C. Morgan, Attorneys at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡.This is defendant’s second appeal in this litigation involving a contract dispute. In defendant’s first appeal, this Court reversed a summary judgment rendered in favor of plaintiff and remanded the matter for further proceedings. Bayou Fleet Partnership v. Phillip Family, LLC, 07-581 (La.App. 5 Cir. 2/6/2008), 976 So.2d 794. Following a trial on the merits, the trial court rendered judgment in favor of plaintiff, including an award of attorney’s fees. Defendant’s motion for new trial was denied, and defendant now brings the instant appeal.

The facts as stated in our previous opinion are as follows:

In December 1999, the parties entered into a contract entitled Lease Agreement regarding property along Highway 90 in Boutte, Louisiana. The agreement contains a provision referring to an option to purchase. The Defendant paid the Plaintiff a lump sum in the amount of $100,000 at the time the document was executed. The monthly payments were $4,500 per month for sixty months commencing March 1, 2000, and ending February 31, 2005. [sic] Part of the monthly payment was set aside toward the purchase of the property. Under the contract, |sthe remaining balance would be amortized pursuant to a “Schedule of Purchase Option Dates and Amounts.”
In 2004, the Defendant informed the Plaintiff that it intended to fulfill the contract. The Defendant perceived the contract as a bond for deed sale. The Plaintiff considered the contract a lease purchase agreement. It responded with a letter referring to the contract as a lease with an option to purchase.
In February 2005, the Defendant sent a monthly payment. It was returned un-negotiated on March 4, 2005. On March 9, 2005, the Plaintiff attempted to negotiate a new agreement through which a right and/or servitude to fleet its vessels along 465 feet of river frontage of the property would be granted in addition to the purchase of the property at issue. The Defendant did not accept the proposed agreement, but instead arranged for a real estate closing during which it was prepared to pay the balance of the sale price. The Plaintiff did not appear.
On April 22, 2005, the Plaintiff filed a petition for declaratory judgment asking the court to declare that the lease agreement expired at the end of the lease term, and that the option to purchase the property was not exercised by the Defendant within the term. It further requested an order for the Defendant to cease activities on the land, and to immediately vacate the property.

Bayou Fleet Partnership v. Phillip Family, LLC, 07-581, pp. 2-3, 976 So.2d at 795-796.

As indicated by the record of the first appeal, Phillip Family, LLC responded to Bayou Fleet Partnership’s petition for declaratory judgment with an Answer and Reconventional Demand asserting claims of breach of contract, unjust enrichment, detrimental reliance, and in the alternative, breach of bond for deed contract. Thereafter, Bayou Fleet Partnership moved for summary judgment which was granted by the trial court. This Court reversed that judgment, finding issues of fact remained as to whether the parties intended the agreement to be a bond for deed sale or an option to purchase.

On remand, the matter was heard in a bench trial on December 14, 2010 and written judgment was rendered on January 10, 2011 in favor of plaintiff as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that plaintiffs Petition for Declaratory Judgment is granted affirming that the Lease Agreement between Bayou |4Fleet Partnership and Phillip Family, LLC expired on February 28, 2005 and that the option to purchase the property made the subject of the Lease Agreement was never exercised by defendant, Phillip Family, LLC and that defendant, Phillip Family, LLC has no claim or right to or over the property made the subject of the Lease Agreement;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Reconventional Demand of Phillip Family, LLC is denied in which Phillip Family, LLC seeks delivery of title to the property made the subject of the Lease Agreement to Phillip Family, LLC on the basis that the Lease Agreement constituted a contract to sell real property in which the purchase price was to be paid by the buyer to the seller in installments in which the seller after payment of a stipulated sum agreed to deliver title to the buyer which constituted a bond for deed contract, and further, plaintiff in reconvention, Phillip Family, LLC is denied any and all recovery against Bayou Fleet Partnership.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the attorneys’ fees and costs subsequent to March 9, 2007, the date that Bayou Fleet Partnership’s Motion for Summary Judgment regarding attorneys’ fee was denied are granted in favor of Bayou Fleet Partnership in the amount of FORTY-EIGHT THOUSAND FOUR HUNDRED TWENTY-FIVE AND 24/100 DOLLARS ($48,425.24).

By this appeal, Phillip Family, LLC argues that the trial court erred in failing to find the contract between the parties constituted a bond for deed contract pursuant to La. R.S. 9:2941. Phillip Family, LLC further argues that the trial court erred in awarding attorney’s fees and costs to Bayou Fleet Partnership under the terms of the agreement.

Standard of Review

Generally, a contract, subject to interpretation on the four corners of the instrument without the necessity of extrinsic evidence, is interpreted as a matter of law. 2800 Associates, L.L.C. v. Eagle Equity Ltd. P’ship No. 3, 10-687, p. 10 (La. App. 5 Cir. 3/29/11), 64 So.3d 283, 290. However, in the present case, factual findings were necessary to resolve the dispute over conflicting interpretations of the contract, and these findings may only be disturbed if they are found to be | ¿manifestly erroneous. Id. The manifest error standard of review does not allow the appellate court to reweigh the evidence or substitute its own factual findings. Kuebel v. Charvet’s Garden Center, Inc., 09-635, p. 17 (La.App. 5 Cir. 12/29/09); 30 So.3d 885, 895. Where there are two permissible views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or plainly wrong. Id. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. D’Antonio v. Simone, 94-798, p. 6 (La.App. 5 Cir. 3/15/95); 653 So.2d 678, 680. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053.

The Agreement

In its judgment, the trial court determined that the contract between the parties was a contract of lease with an option to purchase rather than a bond for deed. Our review of the record fails to show that this determination is manifestly erroneous.

A lease is a contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay. La. C.C. art. 2668. The essential elements of a lease are the thing, the price, or rent, and consent of the parties. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873 (La.App. 2 Cir. 4/19/06), 927 So.2d 677, writ denied, 06-1170 (La.9/15/06), 936 So.2d 1271.

|fiConversely, a bond for deed is a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer. La. R.S. 9:2941. Phillip Family, LLC argues that the agreement between the parties met the requirements set forth by this statute, and that they intended the contract to be a purchase agreement rather than a lease agreement.

At the trial of this matter, the parties jointly submitted a copy of a document entitled “Lease Agreement” between “Bayou Fleet Partnership (Owner) and Phillip Family, LLC (Tenant), relative to the use of certain property situated in St. Charles Parish, Louisiana ...” The legal description of the property was attached to the document as Exhibit “A”, and the term of the lease was stated as sixty months commencing February 1, 2000 and continuing through January 31, 2005. The document further provided that “[t]enant agrees to pay a monthly rental for the use of the property, the sum of ... $4,500.00.” The document further provided:

For and in consideration for the granting of the following Option to Purchase, Tenant agrees to pay to Owner the sum of ... $100,000.00 at inception or before February 1, 2000. Upon payment of the above consideration, Tenant shall have the option at any time during the term of this agreement to purchase the property pursuant to the Schedule of Purchase Option Dates and Amounts attached to this agreement, as Exhibit “C”, provided that Tenant is not in default under any other terms specified in this agreement.

Exhibit “C” was submitted as part of Joint Exhibit 2 and contained a “Schedule of Purchase Option Dates” with a listing of the monthly rental payments and the amount necessary to purchase the property for each month through February of 2005. The lease agreement was signed on behalf of Tenant Phillip Family LLC by A.J. Phillips.

|7A.J. Phillips testified at trial that he did not read the entire agreement, but that he read the terms regarding the monthly rental payment of $4,500.00 and the $100,000.00 down payment, which he construed to be an agreement to purchase. He stated he did not pay attention to the word “tenant” in the agreement. He also acknowledged that although he believed the monthly payments represented both principal and interest toward purchase of the property, these terms are not contained in the agreement. He stated that he had a verbal agreement with the representative of Bayou Fleet Partnership that the agreement provided for a purchase of the property for a sum of $500,000.00, although he acknowledged that it would have taken almost nine years of monthly rental payments to reach that amount.

Robin Durant, the managing partner of Bayou Fleet Partnership, testified that A.J. Phillips approached him about leasing the subject property in 1999, but that he was not interested in purchasing the property at that time. Mr. Durant stated that Mr. Phillips hoped that he could apply a portion of the rental payments toward the purchase price if he decided at a later time to purchase the property. Mr. Durant stated he agreed to do this and he drafted the lease agreement and included an option to purchase provision. He stated that Mr. Phillips was given time to review the agreement and that he signed it without revision.

Mr. Durant stated that the agreement was never intended to be a purchase agreement, and he never discussed a purchase price of $500,000 with Mr. Phillips. He stated that the $100,000 that Mr. Phillips paid at the outset of the agreement was intended to be for the option to purchase as clearly stated in the agreement. He also stated that the schedule of payments attached to the agreement indicated 18what the purchase price would be on each date if Mr. Phillips exercised his option to purchase on that date during the term of the lease.

Mr. Durant stated that in November of 2004, Mr. Phillips approached him with a request to extend the term of the lease. Mr. Durant denied this request, but stated that if Mr. Phillips wanted to exercise the option to purchase, it must be executed prior to the expiration of the existing lease. At that time, Mr. Phillips indicated his intent to “close it out” before the end of the year, and Bayou Fleet sent Mr. Phillips the payout amount for the option to purchase which had been attached to the lease agreement. Bayou Fleet suggested that Mr. Phillips’ attorney make arrangements for an act of sale before the end of the year, but Bayou Fleet did not receive any information regarding the sale from Mr. Phillips prior to the expiration date on the lease.

Mr. Durant stated he did not hear from Mr. Phillips during this time and assumed he did not have the funds to purchase the property. He further stated that he was out of town sometime during February of 2005, but that he did not receive any messages from Mr. Phillips during this time and Phillips Family LLC did not exercise its option to purchase prior to the expiration date on the lease. The record indicates that in late February, Bayou Fleet received a rental payment in the amount of $4,500.00 for the month of March. Mr. Durant stated that he returned this check to Mr. Phillips and asked to retake possession of the property as the lease had expired.

Mr. Durant stated that Mr. Phillips subsequently asked for additional time to execute the option to purchase. Mr. Durant stated he agreed to this request under 19certain specified conditions. Mr. Phillips declined those conditions and Bayou Fleet then began the process of taking possession of the subject property.

Following trial, the trial court ruled in favor of Bayou Fleet Partnership that the agreement constituted a lease agreement that expired before Phillip Family LLC could exercise its option to purchase. Upon a motion for written reasons of fact and reasons for judgment, the trial court incorporated his oral reasons in part as follows:

All right. Here’s what I find. As far as this contract being a bond for deed, the court finds that no sales price was listed anywhere within the lease. There was no indication that full payment ever had to be made within the five years, as would be in a typical bond for deed, that it would be. made in installments, and the installments would have to be long enough to pay for the total price of the property. That was not done. So there was no indication of full payment and no requirement to fully pay within the wording of the lease. No use of terms such as “sales price.” The use of terms were all “rental payments” and “purchase options.”
The lease, as it’s called a “lease,” as it was signed as a “tenant,” Mr. Phillips signed as a “tenant,” is replete with wording, every time there is a wording it’s “option to purchase,” in paragraph three. “Unless option is exercise,” under paragraph thirteen. Under four, “duration of the lease,” and then “tenant, tenant, tenant, tenant.” So there’s many indications that this agreement could end without a sale ever taking place or the money ever having been paid.
So I do not believe that bond for deed has been proved. I believe that this is a lease agreement with an option to purchase.

Although the record in this case indicates that the parties to this agreement gave conflicting testimony as to their intent in entering into the contract, the trial court reviewed the terms of the agreement and heard the parties’ testimony regarding their intent. The trial court concluded that the agreement was a lease agreement, and it credited the testimony of Mr. Durant with regard to the parties’ linintent over the testimony of Mr. Phillips. Intent is an issue of fact which is to be determined from all of the surrounding circumstances. 2800 Associates, L.L.C. v. Eagle Equity Ltd. P’ship No. 3, 64 So.3d at 290. Further, the fact-finder’s choice between two conflicting views of the evidence cannot be manifestly erroneous. Id.

We have reviewed the entire record in this case, including the written agreement between the parties, all documentation and correspondence, as well as the parties’ testimony regarding the circumstances surrounding the execution of the agreement. The evidence in the record supports a finding that the agreement conveyed the right to use the property in exchange for monthly rent with an option to purchase during the terms of the agreement afforded the Phillip Family, LLC. Notably, the document does not contain a sales price for the property, but rather clearly lists the purchase as an “option.” Although Phillip Family, LLC contends that the parties’ verbal agreement conveyed different terms, we find the record supports the trial court’s factual determinations that the intent of the parties in executing the lease was set forth in the actual terms of the document. We find the trial court was within its discretion in refusing to credit the testimony of Mr. Phillips, who admitted at trial that he did not read the agreement before signing it. Based on the record before us, we are unable to find that the trial court’s decision to interpret the agreement as one of lease rather than of bond for deed is manifestly erroneous. We will therefore not disturb the trial court’s ruling.

Phillip Family, LLC also contends that the trial court erred in awarding Bayou Fleet Partnership attorney’s fees and costs for this litigation when the trial court previously refused to make such an award at the time summary judgment was granted. Phillip Family LLC contends that the issue of attorney’s fees and costs [nwere previously litigated between the parties and cannot be re-litigated based on principles of res judicata.

In order to prevail on a claim of res judicata, a party must prove, among other things, that there was a final judgment on the merits. Schneidau v. Vanderwall, 08-1274 (La.App. 5 Cir. 5/26/09), 17 So.3d 61, 64. Further, a denial of a summary judgment is an interlocutory judgment, to which res judicata does not apply. First Homestead Federal Sav. & Loan Ass’n v. Harrington, 491 So.2d 736, 737-38 (La.App. 5 Cir.1986).

The record in the present case indicates that the issue of attorney’s fees was initially raised by Bayou Fleet Partnership in 2007 by way of motion for summary judgment along with Bayou Fleet’s claims that they were entitled to judgment as a matter of law on the merits of this lawsuit. At that time, the trial court granted summary judgment on the merits of the declaratory judgment but denied judgment as to the claim for attorney’s fees. The judgment regarding attorney’s fees was therefore an interlocutory judgment which was not final and could be reconsidered by the trial court at any time. Further, this Court reversed the trial court’s ruling on the summary judgment as to the merits and remanded the case for a full trial. Under these circumstances, we find that the trial court was not prevented based on principles of res judicata from considering Bayou Fleet Partnership’s claim for attorney’s fees following a full trial.

Further, a review of the agreement between the parties supports the trial court’s determination that an award of attorney’s fees in this matter is warranted. Paragraph 17 of the agreement provides in part that “[i]n the event of litigation to enforce any rights or obligations hereunder, the prevailing party shall be entitled to 112attorney fees plus all costs and expenses.” Although Phillip Family, LLC argues that this paragraph of the lease only applies to failure to pay rent, we find that the provision regarding attorney’s fees applies to this dispute regarding whether the option to purchase could be exercised following the expiration of the lease terms. The present litigation in which Bayou Fleet sought a declaration of its right to retain possession of the property certainly can be interpreted as “enforcing rights of the parties,” and the prevailing party was therefore entitled to attorney’s fees and costs. We find no error in the trial court’s ruling in its award of attorney’s fees and costs to Bayou Fleet Partnership in this case.

Accordingly, for the reasons assigned herein, the judgment of the trial court in favor of Bayou Fleet Partnership and against Phillip Family, LLC is hereby affirmed. All costs of this appeal are assessed against Phillip Family, LLC.

AFFIRMED

      . The agreement was subsequently amended by mutual agreement of the parties to provide the term of the agreement was March 1, 2000 through February 28, 2005.

      . A copy of this letter dated December 7, 2004 is contained in the record.

      . A copy of this letter dated March 4, 2005 is contained in the record.

      . The full text of Paragraph 17 is as follows:
      In the event Tenant violates any conditions of this Agreement, or fails to pay the rent punctually, as stipulated herein, and should such violation continue for a period of five (5) days after written notice has been given to Tenant, then this Agreement may immediately be canceled by Owner, and Tenant agrees to waive all legal notices by vacating the premises and Owner reserves all rights to collect past due installments of rent. In the event of litigation to enforce any rights or obligations hereunder, the prevailing party shall be entitled to attorney fees plus all costs and expenses.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Clayton M. FAUCHEUX, Jr. v. Deidre Schexnayder FAUCHEUX.
    No. 11-CA-939.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Mark A. Marino, Attorney at Law, Des-trehan, LA, for Plaintiff/Appellant.
    Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gPlaintiff/appellant, Clayton Faucheux, Jr., appeals the trial court’s award of final periodic spousal support to defendant, Deidre Schexnayder Faucheux. For the reasons that follow, we affirm.

On February 12, 2010, after almost 30 years of marriage, Mr. Faucheux filed a petition for divorce seeking a divorce from Ms. Faucheux under La. C.C. art. 102. The divorce was granted on January 6, 2011. Prior to the judgment of divorce, Ms. Faucheux filed a motion on incidental matters seeking exclusive use of the family home, interim spousal support, final periodic spousal support, and a temporary restraining order to prevent appellant from disposing of community assets. On January 13, 2011, the parties entered into a consent judgment wherein they agreed Ms. Faucheux would have exclusive use of the family home pending sale or partition and Mr. Faucheux would pay interim spousal support in the amount of $1,500 per month as of November 15, 2010. Additionally, as part of the interim spousal support, Mr. Faucheux was to pay the $1,000 monthly mortgage note on the home. Further, both parties were enjoined from alienating community property.

|sThereafter, on May 6, 2011, Ms. Fau-cheux filed a motion to set final periodic spousal support. After a hearing, the trial court rendered judgment on June 30, 2011 finding that Ms. Faucheux was not at fault for the dissolution of the marriage and was in need of support. As. such, the trial court ordered Mr. Faucheux to pay $1,700 per month in final periodic spousal support beginning July 2011. It is from this judgment that Mr. Faucheux appeals.

On appeal, Mr. Faucheux does not challenge the trial court’s determination that Ms. Faucheux was not at fault for the dissolution of the marriage. Rather, Mr. Faucheux challenges the determination that Ms. Faucheux is in need of support and the amount of final periodic spousal support awarded by the trial court.

Once freedom from fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. Noto v. Noto, 09-1100 (La.App. 5 Cir. 5/11/10), 41 So.3d 1175, 1180. The award for final periodic spousal support is governed by La. C.C. art. 112, which requires the court to consider all relevant factors including: (1) the income and means of the parties; (2) the financial obligations of the parties; (3) the earning capacity of the parties; (4) the effect of custody of children upon a party’s earning capacity; (5) the time necessary for the claimant to acquire appropriate education, training, or employment; (6) the health and age of the parties; (7) the duration of the marriage; and (8) the tax consequences to the parties. Further, under La. C.C. art. 112(C), the amount of final periodic spousal support shall not exceed one-third of the paying spouse’s net income.

Final periodic spousal support is awarded to a former spouse in need and is limited to an amount sufficient for maintenance as opposed to a continuation of an |4accustomed style of living. Dufresne v. Dufresne, 10-963 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 762. Maintenance includes food, shelter, clothing, transportation, medical and drug expenses, utilities, household necessities, and income tax liability generated by spousal support payments. Id.

The trial court is vested with great discretion in determining awards of spousal support, and these determinations will not be disturbed absent a clear abuse of that discretion. Noto, 41 So.3d at 1181.

Mr. Faucheux first argues the final periodic spousal support award impermis-sibly exceeds one-third of his net income in violation of La. C.C. art. 112. However, to make this claim, he adds a $1,000 per month mortgage payment the trial court “presupposes” he will pay to the $1,700 per month support payment he was ordered to pay for a total of $2,700 per month in support. Mr. Faucheux does not argue the $1,700 per month award alone exceeds one-third of his net income.

Prior to the award of final periodic spousal support, the parties entered into a consent judgment wherein they agreed Mr. Faucheux would pay the mortgage as part of interim spousal support. It was further agreed Mr. Faucheux would waive any claim to mortgage reimbursement from December 1, 2010 through June 30, 2011. This award for interim spousal support terminated on June 30, 2011 when the trial court awarded final spousal support. See La. C.C. art. 113.

The trial court’s judgment awarding final periodic spousal support does not order Mr. Faucheux to pay the mortgage. Mr. Faucheux seems to rely on the trial court’s reasons for judgment to support his position that the final spousal support award includes $1,700 per month plus payment of the $1,000 per month mortgage |finote. In its reasons for judgment, the trial court stated that it felt an award of $1,700 per month for final spousal support was appropriate. It further noted that “this presupposes that Mr. Faucheux will continue to pay the mortgage note on the house pending partition of [the] community.”

Appeals lie from final judgments only. La. C.C.P. art. 1841. Appellate courts review the correctness of a judgment rather than the reasons for the underlying judgment. A trial coürt’s reasons for judgment, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which appeals are taken. Noto, 41 So.3d at 1181. Thus, in this case, the trial court’s presupposition that Mr. Faucheux would continue to pay the mortgage in its reasons for judgment forms no part of the judgment.

The judgment of final spousal support only orders Mr. Faucheux to pay $1,700 per month. Mr. Faucheux does not claim this amount exceeds one-third of his net income. There is nothing in the judgment of final periodic spousal support that orders Mr. Faucheux to pay the mortgage in addition to the $1,700 per month. Therefore, we find no merit in Mr. Faueheux’s argument that the final spousal support award totals $2,700 and, thus, exceeds one-third of his net income in violation of La. C.C. art. 112.

Mr. Faucheux next argues the trial court applied the wrong standard in determining the amount of spousal support owed. Specifically, he contends the trial court set the amount of support owed based on Ms. Faucheux’s standard of living to which she was accustomed during the marriage as opposed to the amount necessary for maintenance. It appears Mr. Faucheux bases his argument on the fact the award for final spousal support is $200 more per month than the interim support award.

|fíAs stated above, final periodic spousal support is limited to an amount sufficient for maintenance as opposed to a continuation of an accustomed style of living. Du-fresne, 65 So.3d at 762. Nothing in the record indicates the trial court applied the wrong standard.

Ms. Faucheux testified that during her 30 years of marriage, Mr. Faucheux was the provider while she took care of the home and children, who are now grown. She stated she cooked, cleaned, provided clothes, raised their two children, and cared for her mother-in-law after she was diagnosed with cancer. Ms. Faucheux’s education consists of a high school diploma and one year of college. She had a real estate license at one point during the marriage, but it has since lapsed. When the children were in grammar school, Ms. Fau-cheux worked for a Health Food Store. She later sold timeshares for a period of five years. She also helped in her husband’s successful campaign for councilman. After his election, Ms. Faucheux worked for her cousin’s Farmer’s Market, where she now works earning approximately $600 per month. According to her testimony, the last time Ms. Faucheux worked outside the home other than the Farmer’s Market was in 1998.

Ms. Faucheux testified she is financially dependent on Mr. Faucheux and cannot support herself independently. She stated she drives a 1995 BMW that has 265,000 miles on it. Ms. Faucheux explained the car is unreliable and requires expensive maintenance and repair. She indicated she has tried to buy a new car, which she believes would be cheaper than maintaining and repairing her current car, but Mr. Faucheux will not sign the title over to her. She estimated a new car would cost her approximately $300 per month. Ms. Faucheux also stated her car insurance has increased from $77.00 to $124.82 per month because she lost the multi-car discount.

|7She further testified she no longer has health insurance because she cannot afford to pay the $618.91 per month it would cost to obtain health insurance comparable to the insurance she had during the marriage. Ms. Faucheux stated her monthly prescriptions cost $187.

Ms. Faucheux submitted an income and expense statement indicating that her income was $600 per month and her expenses totaled $8,950.47 per month leaving a deficit of $3,350.47. In addition to the above-discussed expenses for a car, car insurance, health insurance, and prescriptions, Ms. Faucheux’s expense items included, among other things, the mortgage, property maintenance, utilities, food, household supplies and clothing.

Upon review of the record, we cannot say the trial court abused its discretion in finding Ms. Faucheux was in need of final periodic spousal support. Additionally, we cannot say the trial court applied the wrong standard in setting the amount of the spousal support. While we do not review a trial court’s reasons for judgment for correctness, we note that the trial court properly stated the standard for final spousal support was to help provide the necessities of life and not to maintain the spouse in the lifestyle to which she was accustomed during the marriage. The trial court’s award shows he properly considered and applied this standard when he awarded spousal support in the amount of $1,700 per month, which was a little more than half of what Ms. Faucheux indicated her total expenses to be. This amount does not come close to maintaining Ms. Faucheux in the lifestyle to which she was accustomed during the marriage and appears to barely cover Ms. Faucheux’s basic maintenance needs.

Mr. Faucheux further contends the trial court erred in failing to consider Ms. Fau-cheux’s earning capacity in setting the amount of spousal support. He maintains the trial court erred in attributing only $600 per month in income to Ms. JjjFaucheux when the record showed she was capable of earning between $28,000 and $34,000 per year.

The parties’ earning capacity is one of several factors that must be considered in determining the amount of final spousal support owed. See La. C.C. art. 112. However, a spouse is not required to take employment of any nature immediately following divorce. Difficulty in finding employment suitable for the spouse’s age, training and ability is also a proper consideration. Falterman v. Falterman, 98-158 (La.App. 5 Cir. 1/13/99), 726 So.2d 1023, 1026.

During the 30-year marriage, Ms. Fau-eheux worked outside the home on a very limited basis. In the 1990s, she had her real estate license and worked selling timeshares during which time she earned between $28,000 and $34,000 per year. However, her real estate license had since lapsed. Ms. Faueheux testified it would take 90 hours of schooling to reinstate her license and that she does not have the means or transportation to do so. Ms. Faueheux also stated that now was not a good time to be in real estate. The trial court seemed to agree and verbally recognized the dismal state of the real estate market.

Ms. Faueheux repeatedly stated her desire to be self-sufficient. She testified she has prepared a resume and that she submitted her first job application within six months of Mr. Faueheux filing for divorce. Ms. Faueheux indicated that she has applied for several jobs with various airlines and hotels to no avail. At the time of the support hearing, Ms. Faueheux testified she had submitted four applications within the past 30 days.

Ms. Faueheux is 50 years old and has limited education and job experience. Other than helping her cousin at his Farmer’s Market, her last job outside the home was more than 12 years ago. Conversely, Mr. Faueheux consistently earns over $100,000 per year between his job and business endeavors.

| ¡¡Based on these facts, we find the trial court properly considered all relevant factors in determining the amount of final spousal support, including Ms. Fau-cheux’s earning capacity or lack thereof. The record shows Ms. Faueheux is actively seeking employment while Mr. Faueheux enjoys well-paying, stable employment. Ms. Faucheux’s job search is limited by her age, lack of experience and training, and her limited education. Additionally, contrary to Mr. Faucheux’s argument, we find no error in the trial court’s refusal to impute a salary of more than $600 per month to Ms. Faueheux at this time. Considering the fact Ms. Faueheux no.longer holds a real estate license, the time it would take her to renew it, and the state of the real estate job market and economy at this time, it would be improper to impute income based on her prior earnings in real estate more than 12 years ago.

Finally, Mr. Faueheux argues the trial court erred in failing to place a time limit on the support award and failing to consider a rehabilitative award for Ms. Faueheux. While the trial court may restrict final periodic spousal support by a term, it is not required to do so. See Voyles v. Voyles, 04-1667 (La.App. 3 Cir. 5/4/05), 901 So.2d 1204, 1207, writ denied, 05-1270 (La.12/9/05), 916 So.2d 1059.

La. C.C. art. 112 provides that the trial court “shall consider all relevant factors in determining the amount and duration of final support.” (Emphasis added.) Comment (c) to Article 112 explains that the word “duration” in the Article “permits the court to award rehabilitative support and other forms of support that terminate after a set period of time.” As noted in Guillory v. Guillory, 09-988 (La.App. 3 Cir. 2/3/10), 29 So.3d 1288, 1291, awards of final spousal support are typically not restricted by a term even though such restriction is permitted.

110We do not find an award of spousal support needs to be restricted by a term because the award of spousal support is never final. See Smith v. Smith, 08-575 (La.App. 5 Cir. 1/12/10), 31 So.3d 453, 465. An award of final periodic spousal support may be modified if the circumstances of either party materially changes and shall be terminated if it becomes unnecessary. La. C.C. art. 114. Further, the obligation is extinguished if the spouse receiving support remarries or cohabitates in the manner of a married person. La. C.C. art. 115. Thus, we find no error in the trial court’s failure to set a duration for the final periodic spousal support.

After reviewing the record, we find no abuse of the trial court’s discretion in awarding Ms. Faucheux final periodic spousal support in the amount of $1,700 per month. Accordingly, the trial court judgment finding that Ms. Faucheux has insufficient means for her support and awarding her $1,700 per month in final periodic spousal support is affirmed. Costs of this appeal are assessed to plaintiff/appellant, Clayton Faucheux, Jr.

AFFIRMED

      . Ms. Faucheux’s motion also sought exclusive use of one-half of the 2010 tax refunds deposited into Mr. Faucheux’s bank account. The trial court determined this request was not properly before the court and that any rights to tax refunds would be decided in the course of the community property partition proceedings.

      . La. C.C. art. 113 provides that if a claim for final spousal support is pending at the time a judgment of divorce is issued, an award of interim spousal support terminates upon a judgment denying or awarding final spousal support or 180 days from the judgment of divorce, whichever occurs first. In this case, Ms. Faucheux made a claim for final spousal support prior to the judgment of divorce. The judgment of divorce was entered on January 6, 2011. On June 30, 2011, less than 180 days from the judgment of divorce, the trial court awarded final spousal support at which time the award for interim spousal support terminated.


author: JUDE G. GRAVOIS, Judge.

text:
    Carrie HEBERT v. JEFFERSON PARISH HOSPITAL DISTRICT # 1, d/b/a West Jefferson Medical Center.
    No. 11-CA-943.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.
    Maria I. O’Byrne Stephenson, Kathleen D. Lambert, Attorneys at Law, New Orleans, LA, for Plaintifi/Appellant.
    Carl T. Conrad, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12Plaintiff appeals a summary judgment in favor of defendant. On appeal, plaintiff argues that the trial court erred in granting judgment in favor of defendant because the trial court impermissibly made credibility determinations of the witnesses. Plaintiff also argues that the trial court erred in finding that there were no genuine issues of material fact. For the following reasons, we affirm the trial court’s judgment dismissing plaintiffs case.

FACTS

Plaintiff, Carrie Hebert, alleged in her petition for damages that on October 20, 2008, she was a visitor at the West Jefferson Medical Center when she was forcefully hit by a door that closed too fast, catching her sandal underneath, causing her to fall to the ground and sustain injuries.

Following discovery, including the depositions of plaintiff and expert witnesses, defendant, Jefferson Parish Hospital District # 1, d/b/a West Jefferson Medical Center (“WJMC”), filed a motion for summary judgment, arguing that plaintiff would not be able to meet her burdens of proof under LSA-R.S. 9:2800 |sand LSA-C.C. art. 2317 regarding the requisite notice, the existence of a defect in the door, and causation. Plaintiff opposed the motion. Following a hearing, the trial court granted summary judgment in favor of defendant, finding that plaintiff could not bear her burden of proof that defendant had actual or constructive notice of a defect in the door.

ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Bourgeois v. Boomtown, LLC of Delaware, 10-553 (La.App. 5 Cir. 2/15/11), 62 So.3d 166, 169. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Summary judgment procedure is intended to make a just and speedy determination of every action. LSA-C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under LSA-C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual |4support for one or more elements essential to the adverse party’s claim, action or defense, the non-moving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. LSA-C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45.

Plaintiff’s tort claim against the hospital, a public entity, may be pursued under LSA-C.C. art. 2317 and LSA-R.S. 9:2800 strict liability, as well as in negligence pursuant to LSA-C.C. art. 2315. When addressing an action under either theory, the legal analysis is the same. The plaintiff bears the burden of showing that: (1) the public entity had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs injuries. To recover, a plaintiff bears the burden of proving all of these inquiries in the affirmative and failure on any one is fatal to the case. Graff v. Jefferson Parish Hosp. Serv. Dist. No. 2, 09-598 (La.App. 5 Cir. 3/23/10), 39 So.3d 685, 690-91, writ denied, 2010-0907 (La.6/18/10), 38 So.3d 331.

In this case, the trial court found that plaintiff would be unable to bear her burden of proof that the hospital had actual or constructive notice of a defect in the door. Constructive notice as it relates to actions against a public entity is defined as the existence of facts which infer actual knowledge. Constructive notice can be found if the conditions which caused the injury existed for such a period of time |5that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Id., citing Jeansonne v. South Central Bell Telephone Co., 08-568 (La.App. 5 Cir. 1/13/09), 8 So.3d 613.

In support of its motion for summary judgment on this issue, WJMC presented the affidavit of Dennis Lomarco, the maintenance supervisor at WJMC, who attested that prior to this incident, there had been no reported problems with the door or injuries attributable to the door. WJMC also presented plaintiffs deposition testimony to the effect that on the day of the accident, no employee of the hospital told her that the door was closing too fast, or that other people had been injured coming through that door, or that the door had previously been reported to the maintenance department.

Plaintiff supported her opposition to the summary judgment with another portion of her deposition, wherein she claimed that after she fell, she overheard a “lady in the back” say that she “knew something was going to happen with that door.” Plaintiff admitted that the comment was not made directly to her. She also supported her opposition with the deposition testimony of four hospital employees who did or had worked near the door and used it with varying degrees of frequency, as well as the deposition testimony of an employee of Parish Anesthesia who also worked in that area. Although each of these witnesses had conflicting and inconsistent testimony regarding whom it was that helped plaintiff off the floor, their testimony was consistent that none of them recalled any problems or accidents with the door. Also, importantly, none of the employee deponents heard any person make the comment reported by plaintiff or a similar one.

At the hearing on the motion, the trial court found that plaintiffs claim that she overheard an unidentified person make a statement about the door did not | (¡possess the requisite evidentiary value to create an issue of material fact sufficient to defeat WJMC’s motion for summary judgment. Now on appeal, plaintiff characterizes this ruling as a credibility call, impermissible on summary judgment. We disagree.

Even taking as truthful plaintiffs claim that she overheard this statement, the de-clarant is unknown and unidentified. Other witnesses working in the immediate area deny making the statement or hearing anyone else make it. The statement, therefore, cannot be attributed to the hospital and does not create a genuine issue of material fact regarding the hospital’s actual or constructive notice about the door sufficient to overcome defendant’s strong evidentiary support of its motion. Further, plaintiff has offered no support for her assertion in brief that this statement is a hearsay exception under LSA-C.E. art. 801(3) because there is no evidence that this statement, accepting only for argument’s sake that it was in fact heard by plaintiff, came from a hospital employee.

After a de novo review of the record, we find no error in the trial court’s ruling granting summary judgment in favor of defendant, finding that defendant bore its burden of proof on summary judgment that it had no actual or constructive notice of a defect in the door, and that plaintiff failed to meet her burden in opposition to the motion. Plaintiffs assignments of error are without merit.

CONCLUSION

For the reasons stated above, the trial court’s judgment in favor of defendant is affirmed.

AFFIRMED

      . Defendants also denied that the door contained a defect. The trial court did not reach this issue.

      . It is also noted that defendant also supported its motion for summary judgment with evidence to the effect that the door in question was not defective.


author: SEXTON, Judge Pro Tern.

text:
    STATE of Louisiana, Appellee v. Atari WOODS, Appellant.
    No. 46,746-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 28, 2012.
    Rehearing Denied May 10, 2012.
    Louisiana Appellate Project, by James E. Beal, Jonesboro, LA, for Appellant.

      Atari Woods, Pro Se.
    Richard Z. Johnson, Jr., District Attorney, Ron Christopher Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before CARAWAY, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tern.

| defendant, Atari Woods, was found guilty as charged on one count each of possession of a firearm by a convicted felon, possession of a Schedule I controlled dangerous substance (marijuana) with the intent to distribute and possession of a firearm while in possession of a controlled dangerous substance. He was sentenced to 15 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence for possession of a firearm by a convicted felon; and to five years’ imprisonment at hard labor for both the possession of marijuana and the possession of a firearm charges while possessing marijuana. The sentences were ordered to run concurrently. Defendant now appeals. For the reasons stated herein, the convictions and sentences of Defendant are reversed.

FACTS

On May 26, 2010, Defendant was arrested and charged with one count each of the following offenses:

(1) illegal possession of a stolen firearm, in violation of La. R.S. 14:69.1;

(2) possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1;

(3) possession of a Schedule I controlled dangerous substance (marijuana) with the intent to distribute, in violation of La. R.S. 40:966(A)(1); and

(4) possession of a firearm while also in possession of a Schedule I controlled dangerous substance, in violation of La. R.S. 14:95(E).

This case was slated for the petit jury term for March 14, 2011. Jury selection began on March 16, 2011, with Ron C. Stamps and Britney Green, assistant district attorneys, appearing for the state and Charles Kammer, appointed counsel, appearing for Defendant. Twelve jurors and one alternate juror were selected during voir dire. The trial itself began on March 17, 2011.

LThe issues pertinent to this appeal were raised to the trial court the morning of March 17, the morning following voir dire, and before testimony began. Among other issues taken up and addressed by the court that morning, Defense counsel moved to quash the jury and for a mistrial based on his discovery that the assistant district attorneys and public defender from the previous jury trial had engaged in ex parte communication with the prospective jurors for Defendant’s trial.

By way of background, the DeSoto Parish district court utilizes juror recycling, which allows jurors to serve on more than one jury during a given term. First, Mr. Kammer objected to the parish’s policy of recycling jurors after they have been excused for cause or by peremptory challenge. He argued that the practice resulted in an unfair advantage to the state, which has the opportunity to gather additional information from the recycled jurors during each subsequent voir dire in the term. He argued that the recycling of jurors previously questioned or chosen for jury service in that term is unfair and deprived his client of his right to a fair trial.

Second, Mr. Kammer objected to the prosecution’s ex parte communication with the jurors that served on the jury in State v. Brown, Docket No. 10-20953, the trial that concluded the day before selection of the jury in this case. Mr. Kammer informed the judge that, the previous night, after he left the courthouse on the completion of voir dire, he had spoken to the public defender in the Brown trial. He explained to the judge that, because of the juror recycling policy, the Brown jurors were still prospective jurors for the next trial, which was Defendant’s case. The Ispublic defender in Brown advised Mr. Kammer that, at the end of the Brown trial, the trial judge had authorized her and the assistant district attorneys to speak with the Brown jurors. From the record, we glean that the ex parte discussions that ensued were outside of the courtroom (possibly on the benches in the hallway) and without the judge or court officials present. The record does not indicate the substance of those ex parte discussions or which of the Brown jurors agreed to speak with the assistant district attorneys and/or the public defender.

In his motion, Mr. Kammer argued that the assistant district attorneys’ discussions with the Brown jurors constituted an ex parte communication with prospective jurors, which is prohibited and presumptively prejudicial, based on the state supreme court’s ruling in State v. Bates, 508 So.2d 1346 (La.1987) (per curiam), and this court’s decision in State v. Washington, 626 So.2d 841 (La.App. 2d Cir.1993). Mr. Kammer added that, because he was not the public defender in Brown, he did not enjoy the advantage that the state had in speaking with those jurors. As stated, Mr. Kammer made an oral motion to quash the jury and declare a mistrial, based on two grounds found in La. C. Cr. P. art. 775 — (1) that there was a legal defect that would render any judgment reversible as a matter of law; and (2) that there was prejudicial conduct that made it impossible for Defendant to obtain a fair trial.

In response, the state admitted that pretrial contact with prospective jurors was inappropriate because they were still in the venire, but disputed that Bates was applicable. Mr. Stamps argued that, once the jury reached a |4verdict, those persons were no longer jurors and so the parties should be free to speak with them about that case.

Mr. Stamps argued that Bates, in which the district attorney sent pretrial questionnaires to prospective jurors, was distinguishable from the circumstances here, where the prosecutors had a conversation with jurors after a trial concluded and before the voir dire in the next case began. Mr. Stamps refuted Mr. Kammer’s argument of a prosecutorial advantage, pointing out that Mr. Kammer could have asked the public defender in Brown what she learned from the Brown jurors and that Mr. Kammer would have the opportunity to ask questions about prior jury service during voir dire. Mr. Stamps defended the juror recycling practice as acceptable, noting that Orleans Parish, East Baton Rouge Parish and Caddo Parish eourts all recycle jurors.

The judge noted for the record that Defendant was present in the courtroom during the jury selection and trial in the Brown case and ordered that the transcript for the Brown voir dire be made part of this record. The judge further stated that he was not aware of any law prohibiting the recycling of jurors and that it was a common practice in this state. He then denied the motion for mistrial, finding that juror recycling does not negate a defendant’s opportunity to receive a fair trial, nor does it make the verdict reversible as a matter of law.

Specifically regarding the motion for mistrial based on the prosecution’s pretrial contact with the Brown jurors, the judge found that the prosecution did have pretrial communications with the Brown jurors, but | Bhe believed that, because both parties had the opportunity to speak with the Brown jurors and question prospective jurors during the voir dire in Defendant’s case, there was no legal defect that made it impossible for Defendant to receive a fair trial.

Defendant now appeals. Appellate counsel or Defendant has assigned one error and Defendant, pro se, has submitted numerous filings and arguments to this court. Finding merit in the assignment of error urged by appellate counsel for Defendant, which requires reversal of Defendant’s convictions and sentences, our discussion addresses this issue and all remaining issues presented by Defendant are pretermitted.

DISCUSSION

Assignment of Error: The system of jury selection in DeSoto Parish affords an unfair opportunity for pretrial contact, by the state, with members of the jury venire.

First, Defendant challenges, generally, the practice of juror recycling, which allows a juror’s name to remain in the jury venire throughout the two-week term, regardless of whether that juror serves on a jury or is excused. In practice, this policy means that, once called for jury duty, a person remains a prospective juror for the term and may be called to serve on multiple juries within the same two-week term. Defendant argues that the practice of recycling jurors grants the state an advantage by creating the opportunity to question and profile prospective jurors in a prior panel voir dire, outside the presence of the future defendants with cases in that term. According to Defendant, a fair trial requires that jurors must be released for the term once they have served on a jury or been dismissed in voir dire.

| BIt is a regular practice to have jurors sit on more than one jury during the same term; therefore, there was no error by the trial court in allowing the names of the Brown jurors to be retained in the jury pool for the next case. It is well settled that a juror’s prior jury service is insufficient grounds to excuse that juror for cause or to warrant a motion to quash the jury venire. State v. Lee, 637 So.2d 102 (La.1994).

Next, Defendant argues that the law and standards of professional conduct are violated when there is ex paHe communication with a juror who already served on a jury that term because that same juror remains in the jury venire and, therefore, is always a prospective juror. Specifically, Defendant maintains that the trial judge erred in denying a mistrial in his case because the assistant district attorneys’ discussions with the Brown jurors constituted prohibited ex paHe communications with prospective jurors. Citing Bates, supra, Defendant argues that such communication has been found to be presumptively prejudicial and deprives a defendant of the possibility of a fair trial.

In the instant case, the judge authorized the assistant district attorneys and the public defender in the Brown trial to speak with the Brown jurors after the trial. The Brown jurors were not required to speak to counsel, but could if they so desired. The communication took place in the courthouse following the verdict in Brown, although the record does not indicate which jurors participated in the discussion or the substance thereof.

During voir dire, prospective jurors were questioned in 3 panels of 12, with 2 alternates. The 3 panels of jurors included 4 jurors who had|7served on the Brown jury. Mr. Kammer questioned 2 of those jurors regarding their service on the Brown jury and the verdict reached therein. Mr. Kammer peremptorily challenged 3 of the 4 Broim jurors and accepted 1 of them. Mr. Kammer did not exercise all of his peremptory challenges. Recall that the record does not indicate which of the Brown jurors talked with the assistant district attorneys from Brown, so it is not possible to know from this record whether or not the Brown juror who was seated on Defendant’s jury had, in fact, been one of the Brown jurors who was a party to the ex parte communications with the assistant district attorneys. Moreover, it is clear from a review of the voir dire in this case that Mr. Kammer was unaware of the ex parte communications during his questioning of the Brown jurors because he did not ask any of them about contact they may have had with the assistant district attorneys following the verdict in Brown.

In Bates, supra, the supreme court reversed a decision of this court and vacated a conviction because the district attorney sent a letter and questionnaire before trial to all 100 of the jury veniremen for his exclusive use. The supreme court noted that ex parte communication with jurors after a trial has begun is presumptively prejudicial. While obviously critical, the supreme court did not expressly hold that all pretrial ex parte communication is subject to that same presumption. Id. In the wake of the reversal in Bates, however, this court seemingly interpreted and applied Bates as a bright line rule in State v. Washington, supra. In Washington, the district attorney made pretrial remarks to the jury venire seated in the |Rcourtroom, outside the presence of the defendant, defense counsel and the trial judge. On appeal, a panel of this court noted the trial court’s discretion in ruling in such matters, yet held that the Model Rules of Professional Conduct and the standards relating to the prosecutorial function still apply, meaning that ex parte communications with jurors by either party are forbidden and impair the possibility of a fair trial. Id.

Shortly before the decision in Washington, supra, the first circuit distinguished Bates, supra, in State v. Probst, 623 So.2d 79 (La.App. 1st Cir.1993), writ denied 629 So.2d 1167 (La.1993). In Probst, the district attorney addressed the jury venire ex parte prior to trial, informing them that they were dismissed for the day and would return in two days to “determine the guilt of the accused.” The trial court denied the defendant’s motion to dismiss the veni-re or, alternatively, for individual voir dire. The first circuit affirmed that ruling because “voir dire examination was available to defense counsel as a means to explore the potential impact of the District Attorney’s ex parte remarks on the prospective jurors.” State v. Probst, supra. While recognizing that the district attorney violated ethical standards by engaging in the ex parte communication, the court announced the legal issue to be whether or not the jury venire was tainted by the remarks. The first circuit further held that, even if the ex parte communication resulted in presumptive prejudice to the defendant, the jurors’ answers in voir dire overcame that presumption. Id.

In summary, it is not clear following Bates and its progeny whether actual prejudice must be shown in situations where there is pretrial ex parte 1 ¡¡communications with potential jurors, especially in the setting of juror recycling. In the case sub judice, however, we do not reach the question of the applicability and/or interpretation of Bates and its progeny because, here, prejudice must be assumed for several reasons. First, the record does not indicate which of the Brown jurors had a discussion with the assistant district attorneys, nor does the record reflect the substance of those communications. Second, Mr. Kammer was not made aware of the ex parte communications until after voir dire was completed in this case. He was not, therefore, afforded the opportunity to question the former Brown jurors about any possible taint from the communications with the assistant district attorneys. Third, while Mr. Kammer did exercise three peremptory challenges to excuse three of the four Brown jurors, one of them was seated on the instant jury. We do not know whether the juror engaged in the ex parte communication and, if so, whether such communications prejudicially affected his service on the jury in the present case. Under these particular facts, we are constrained to assume prejudice and reverse the convictions and sentences and remand for a new trial.

DECREE

For the foregoing reasons, the convictions and sentences of Atari Woods are reversed and the matter is remanded for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, LOLLEY & SEXTON (Pro Tempore), JJ.

Rehearing denied.