author: COOKS, Judge.

text:
    STATE of Louisiana in the Interest of B.B., B.K.G., & B.G.
    No. 11-252.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.
    Rehearing Denied July 27, 2011.

      Annette Roach, Lake Charles, LA, for Defendant(Mother)/Appellant, R.A.
    William T. Babin, Lafayette, LA, for Appellee, Louisiana Department of Social Services.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

|, This is an appeal from a final judgment of the district court that terminated the parental rights of the appellant mother, R.A., to her children, B.B. (born in 1999), B.K.G. (born in 2006), and B.G. (born in 2007). The judgment was rendered after a trial on the merits on the Petition for Termination of Parental Rights filed by the Louisiana Department of Social Services (hereafter the State). The petition alleged, as grounds for termination, the mother’s noncompliance with her case plan.

The State became involved when it learned that the youngest child, B.G., was taken to the hospital on June 5, 2008, where he was diagnosed with a skull fracture. Neither R.A. nor the child’s live-in father were able to provide a reasonable explanation of how the injury occurred. R.A.’s children were removed from her custody and taken into the State’s custody on June 6, 2008. On June 11, 2008, R.A. stipulated to the continued custody of the children with the State. The children were adjudicated children in need of care on June 24, 2008, without opposition from R.A.

At the trial on the petition for termination, the caseworker testified after the removal of the children from R.A.’s custody, a case plan was formulated which required R.A. to obtain steady employment, obtain treatment for substance abuse, complete the Family Violence Intervention Program (FVIP), and pay child support. The caseworker stated R.A. obtained only sporadic employment and had not held any job for more than a few months. The caseworker also testified that R.A. had not completed substance abuse treatment, because she refused to attend substance abuse education classes. The caseworker also stated R.A. had never attended FVIP meetings. Lastly, she testified R.A. has never paid child support.

The State also alleged in its Petition for Termination of Parental Rights that R.A.’s pattern of repeated incarceration had rendered her unable to care for the needs 12of her children for significant periods of time. The record reflected R.A. was arrested and incarcerated in excess of ten (10) times since the children had been taken into State custody. At the time of the hearing, R.A. was on probation for the felony offense of second degree battery.

R.A. acknowledged at the hearing she had been “arrested” numerous times, “like four or five times.” She confirmed she was on probation until 2015 for aggravated battery for assaulting someone with a knife. She also admitted her children had been previously removed from her custody because one of the children was born drug exposed, although she claimed she was taking Lortab for back pain. Regarding steady employment, R.A. testified she had only worked once, for approximately three months, and claimed she had no other employment because she was on a “high dose of medication” and was “filing for disability and stuff.” She also confirmed she had never paid child support, had not completed substance abuse education classes, and had not attended FVIP meetings.

At the conclusion of the hearing, the trial court continued the hearing, opting not to make a decision regarding the mother’s parental rights until after it was able to review a current evaluation by Dr. Ed Bergeron, a psychologist who evaluated R.A. The trial court also ordered the mother to be randomly drug screened and for Dr. Bergeron to perform another psychological evaluation of R.A.

Only six days after the first hearing concluded, R.A. was arrested on October 27, 2010, for a drug offense and prescription fraud. She was incarcerated for approximately three weeks.

At the second hearing, the caseworker testified R.A. was randomly drug screened approximately one month after the first hearing, and she tested positive for opiates. The caseworker stated that because of the positive drug screen, R.A., at a | ..¡minimum, would have to receive intensive outpatient treatment. The caseworker also testified that due to R.A.’s refusal to attend or cancellation of appointments, FVIP declined to be a provider of services for R.A.

Dr. Bergeron testified he went to the jail on November 4, 2010 to see R.A. for the court-ordered psychological evaluation, but R.A. refused to be evaluated, even though Dr. Bergeron warned that her refusal could lead to her losing parental rights. He testified he scheduled a later date for an evaluation, but R.A. did not show up, nor did she reschedule for a later appointment even though her release from jail occurred weeks before the second hearing. Dr. Bergeron believed R.A.’s refusal to be evaluated indicated problems with her motivation and believed her outlook and prognosis were poor.

R.A. testified at the hearing and disputed Dr. Bergeron’s account of their meeting at the jail, stating she believed it was alright with him if they met after she was released. She also stated Dr. Bergeron did not tell her she could lose her parental rights if she did not submit to the evaluation. R.A. also asserted the positive drug screen was due to her taking of Lortab from an old prescription she had from a prior surgery.

At the conclusion of the hearing, the trial court terminated R.A.’s parental rights. The trial court gave the following oral reasons for her ruling:

I heard all the testimony back in October. [R.A.], at that time, told me that she was very close to completing her case plan, that she was going to get it all done. A few days later, she gets arrested. She’s in jail.
Dr. Bergeron goes there to assist her in completing one of the biggest milestones that I asked be done, and she refuses. And she refuses because her priority was, I want to get out of jail. And then she gets out of jail, and she’s got a positive drug test.
So it tells me that she has not got [sic] the priorities to care for these children. She has not stopped abusing drugs. She can make up a pstory about having a prescription. I see no prescription and no evidence from her doctor that she had a valid prescription. And it’s the exact same thing that those criminal charges that she’s facing now are stemming from.
So this Court finds, by clear and convincing evidence, that, now, having given it another chance and not taken that chance, that, despite all of the efforts of the Department and all the services provided to [R.A.], there is no reasonable expectation of significant improvement in her condition or conduct in the near future.
And, considering the fact that these children have been in care for two-and-a-half years, this Court finds that they are — need a safe, stable, and permanent home.
[R.A.]’s behavior continues to expose her to possible incarceration, as well as indicates that she is using drugs for which she does not have a valid prescription. And the Court is going to order termination of her parental rights.

R.A. appeals the trial court’s judgment, asserting it erred in terminating her parental rights for substantial non-compliance when she had completed several components of the case plan and where the State failed to prove by clear and convincing evidence that there was no reasonable expectation for further improvement in her condition. R.A. also asserts the termination was not in the best interests of the children.

ANALYSIS

In State ex rel. K.G., 02-2886, pp. 4-5 (La.3/18/08), 841 So.2d 759, 762-68, the Louisiana Supreme Court discussed the standard of review in termination of parental rights cases:

An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. J.W., 01-500 (La.App. 4 Cir. 11/14/01), 801 So.2d 1182. In two recent cases, we discussed the concerns regarding the involuntary termination of parental rights by the state, as follows:
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great [ ¿deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent.
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
Title X of the Children’s Code governs the involuntary termination of parental rights. La. Child. Code art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, La. Child. Code art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Child. Code. art. 1039. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Child. Code art. 1035(A). (Cites omitted.)
State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 810-811; see also State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107.

| ,;In balancing the interests of the parent versus the child, the State’s burden in a termination proceeding is first to establish by clear and convincing evidence one of the statutory grounds for involuntary termination of a parent’s rights and then to establish by clear and convincing evidence that termination of parental rights is in the child’s best interest. Id. The trier of fact does not reach the best interest issue unless and until the State establishes a ground for termination. State in the Interest of M.R. v. S.F.H., 09-889 (La.App. 3 Cir. 12/9/09), 25 So.3d 1021, cert. denied, 09-2812 (La.1/14/10), 24 So.3d 878. Additionally, we review the trial court’s findings of fact under a manifest error/clearly wrong standard. Id.

In her first assignment of error, R.A. complains the trial court erred in finding she failed to substantially comply with her case plan and that there was no reasonable expectation of significant improvement in her condition or conduct in the future. We disagree. The evidence presented at both hearings proved by clear and convincing evidence that R.A. failed to substantially comply with her case plan.

Louisiana Children’s Code Article 1015(5) provides that failure to substantially comply with a case plan is a ground for termination of parental rights. Louisiana Children’s Code Article 1036(C) provides that lack of parental compliance with a case plan may be evidenced by one or more of the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the Department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
17(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

Contrary to R.A.’s argument, we find the State proved by clear and convincing evidence that R.A. violated several of the above factors.

The record established R.A., who has a significant history of abusing drugs, refused to attend substance abuse classes. Moreover, she tested positive for opiates in the interim between the first and second hearings, even though her drug use was a key factor in the petition to terminate her parental rights. R.A. also did not attend the FVIP program despite it being a requirement of her case plan. Thus, it is clear that R.A. repeatedly failed to comply with the required program of treatment and rehabilitation services provided in the case plan.

R.A. admitted she has failed to retain steady employment as required by her case plan and justified this failure by stating she could not seek employment because she was on a “high dose of medication” and was “filing for disability and stuff.” Due at least partly to her lack of employment, R.A. did not pay any child support even though it was required of her under the case plan.

R.A., against the explicit orders of the trial court, continued to live with and/or have substantial contact with the man whom she was living with at the time B.G. sustained a skull fracture. The caseworkers testified R.A. admitted to this but stated she would deny it at the hearing “for purposes of this cases.” R.A. also has an established pattern of criminal acts that have led to numerous periods of incarceration. She has been arrested more than ten (10) times since her children were placed in the State’s custody, and by R.A.’s own testimony she has been convicted of four or five crimes. In the short period between the first and second hearing, R.A. |swas arrested for a drug offense and prescription fraud. She is also currently on probation until 2015 for second degree battery. Thus, considering her extensive criminal history, any new charges could result in a significant period of incarceration. Such behavior clearly demonstrates non-compliance with the case plan, namely a lack of substantial improvement in redressing the problems preventing reunification, and the persistence of conditions that led to removal or similar potentially harmful conditions.

Along with proving there was not substantial compliance with the case plan, La. Ch.Code art. 1015(5) also requires the State to prove there is no reasonable expectation of significant improvement in the parent’s conduct in the near future. We find the State met this burden.

Louisiana Children’s Code Article 1036(D) provides certain factors may evidence a lack of any reasonable expectation of improvement. Among them are a pattern of repeated incarceration and substance abuse problems, which serve to render the parent incapable of exercising parental responsibilities. Clearly, the trial court did not manifestly err in finding R.A. exhibited factors which establish she had no reasonable expectation of improvement in the near future.

In her second assignment of error, R.A. contends the trial court erred in ruling that termination of parental rights was in the best interest of the children. Louisiana Children’s Code Article 1037(B) provides that termination of parental rights should only be granted if it is in the best interests of the children. The record supports the trial court’s finding that termination of R.A.’s parental rights in this case was in the best interests of the children.

The caseworker testified that B.G. and B.K.G. have remained together in the same foster care placement for two (2) years. She believed the children were thriving | fland had bonded with their foster parent. Moreover, she testified the children’s foster parent wanted to adopt them.

Regarding B.B., the caseworker stated the State still held out hope to reunite B.B. with his father. If that did not occur, B.B. was currently placed in the home of a foster parent who was willing to maintain B.B. in that home. The caseworker testified B.B. was doing well in this placement and had bonded with the foster parent.

Dr. Bergeron testified it would be detrimental to the children for them to remain in foster care indefinitely, and it could cause them psychological damage. He believed it was in the best interests of the children that they be freed for adoption.

Balancing R.A.’s rights against those of her children and considering the fundamental purpose, focus, and primary concern of termination proceedings as explained by the supreme court, we conclude that the trial court did not commit manifest error in concluding that the best interests of the children require termination of R.A.’s parental rights.

DECREE

For the foregoing reasons, we affirm the trial court judgment in all respects. Costs of these proceedings are assessed to R.A.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE in the Interest of S.M.
    No. 11-271.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Juvenile/Appellant, S.M.
    Walter J. Senette, City of Jeanerette Prosecutor, Jeanerette, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

hThe juvenile, S.M., along with two other juveniles, entered a residence in Jeaner-ette, Louisiana, and while inside, stole firearms. A Petition of Delinquency was filed, charging S.M. with simple burglary, a violation of La.R.S. 14:62; theft of a firearm, a violation of La.R.S. 14:67.15; and possession of stolen firearms, a violation of La. R.S. 14:69.1. S.M. appeared to answer the petition and entered a denial to the charges. An adjudication hearing was held. S.M. admitted to the simple burglary charge. In exchange, the other two charges were dismissed by the State.

A disposition hearing was held, and the trial court placed S.M. in the custody of the Office of Juvenile Justice for two years, on a non-secure basis, with one year suspended. The city court judge ordered that during the non-secure custody, the juvenile be placed in a non-secure group home. S.M.’s attorney filed a motion seeking reconsideration of the disposition, which was denied.

On appeal, S.M. asserts one assignment of error, alleging excessive disposition. However, finding an illegal disposition was imposed, this assignment of error is rendered moot.

ANALYSIS

Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding is entitled to an error patent review, this court has found such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. After reviewing the record, we find the court imposed an illegal disposition. Accordingly, we vacate the disposition and remand the matter to the lower court for a new disposition.

Louisiana Children’s Code Article 901(B) requires a court to impose the least | restrictive disposition possible considering the “circumstances of the case, the needs of the child, and the best interest of society.” See State v. C.K., 05-475 (La.App. 5 Cir. 1/17/06), 922 So.2d 616; see also State in the Interest of A.M., 07-1228 (La.App. 4 Cir. 4/9/08), 983 So.2d 176.

The city court judge erred in failing to order probation since he suspended a portion of the disposition. There are no reported juvenile cases directly on point, so we look to the Criminal Code for guidance. See Johnson v. Escude, 07-801 (La.App. 3 Cir. 12/5/07), 971 So.2d 529. Louisiana Code of Criminal Procedure Article 893, regarding suspending whole or part of a sentence and placing the defendant on probation, uses similar language as Article 897(E) of the Children’s Code. Louisiana Code of Criminal Procedure Article 893 (emphasis added) provides in pertinent part:

When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole.

In State v. Ramirez, 96-302 (La.App. 3 Cir. 11/6/96), 684 So.2d 52, this court found La. Code Crim.P. art. 893 required the trial court to place a defendant on probation when it suspends all or part of a sentence. This court recognized the trial court’s failure to order probation as an error patent, stating in pertinent part:

The second error patent concerns the legality of the sentence imposed by the trial judge. Although a trial court is permitted to suspend imposition of a sentence under La.Code Crim.P. art. 893, when it does so it must place the defendant on probation. Failure to do so results in an illegal sentence. An illegal sentence is correctable at any time, whereas an illegally lenient sentence may be corrected only if raised by the defendant or the State. In State v. Willis, 95-316 (La.App. 3 Cir. 10/4/95); 663 So.2d 392, this court recognized as error patent the illegality of the sentence, even though the defendant only complained |Rabout the excessiveness of the sentence, not its illegality:
Louisiana Code of Criminal Procedure Article 893 allows a trial judge to suspend imposition or execution of a sentence after a first or second conviction for a noncapital felony, but defendant must be placed on probation. The record shows Willis was not placed on probation as required by Louisiana Code of Criminal Procedure Article 893. The mandatory probation requirement of this provision compels that we must vacate Willis’ sentence and remand the case for re-sentencing pursuant to Louisiana Code of Criminal Procedure Article 893. See State v. Fann, 597 So.2d 1230 (La.App. 3 Cir.1992).
In so holding, this court concluded the failure to place the defendant on probation made the sentence illegal and not illegally lenient. In this case neither party complained. However, in recognizing this patent error, we find the sentence imposed in this case, like the one imposed in Willis, to be illegal rather than illegally lenient. The trial judge suspended a portion of the sentence, but did not place defendant on probation as required by statute.
In the case sub judice, the trial judge sentenced defendant to twenty (20) years at hard labor and suspended all but thirteen (13) years of the sentence. The thirteen (13) year sentence was also conditioned on defendant’s reporting within ten (10) days. When suspending the sentence imposed, the trial judge failed to provide for probation as required by La.Code Crim.P. art. 893. Therefore, the sentence must be vacated and the case remanded for resentencing pursuant to La.Code Crim.P. art. 893.

Id. at 54.

In this case, the city court judge referred to probation stating, “If he is released on probation upon completion of that program, it is going to be supervised probation.... ” Imposition of probation in the future is an option for the city court judge since a juvenile’s disposition can be modified at any time pursuant to La.Ch. Code art. 909. However, when the city court judge suspended a portion of S.M.’s disposition, section (E) of Article 897 of the Children’s Code was triggered, requiring the city 14court judge to order probation as part of the current disposition. Thus, finding the city court judge imposed an illegal disposition, we vacate the disposition and remand for a new disposition.

ADJUDICATION AFFIRMED; DISPOSITION VACATED AND REMANDED.


author: MARC E. JOHNSON, Judge.

text:
    CERTIFIED CLEANING & RESTORATION, INC. v. LAFAYETTE INSURANCE COMPANY, Earl J. Doucet, Turf Club Inc., Express Food Deli Inc. d/b/a The Edge Bar and Grill, Gammon Enterprises, LLC and Stephen D. Gammon.
    No. 10-CA-948.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Rehearing Denied Sept. 6, 2011.

      Kevin C. O’Bryon, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.

      Raymond A. Pelleteri, Jr., Alexander R. Saunders, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Mitchell J. Hoffman, Michael R. All-weiss, Serena E. Pollack, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   MARC E. JOHNSON, Judge.

^Defendants, Danna Doucet, Dane Dou-cet, Dianne Doucet Matthews (“Doueets”), and Lafayette Insurance Company, appeal the judgment of the trial court finding them vicariously liable for damages caused by a fire started by Gammon Enterprises while it performed roofing work. For the reasons that follow, we reverse.

FACTS & PROCEDURAL HISTORY

This lawsuit was filed by Certified Cleaning & Restoration, Inc. (“Certified Cleaning”), against various defendants for payment for work it performed on property located at 3400 Hessmer Ave. in Metair-ie. Certified Cleaning alleged it was hired by Express Food Deli, Inc., d/b/a The Edge Bar & Grill (“The Edge”), to make emergency repairs to the premises due to fire and smoke damage caused by roofing work performed by Stephen Gammon and Gammon Enterprises, L.L.C. | .^collectively “Gammon”). Certified Cleaning claimed it had not been fully paid for its services performed between November 22, 2006 and December 4, 2006, which totaled $45,992.59.

The property at issue was owned by Earl Doucet, who had leased the property to Turf Club, Inc. (“Turf Club”) in November 1997. Turf Club then subleased the premises to The Edge in April 2003. In 2006, Mr. Doucet hired Gammon to perform roofing repairs to the building on the property. While performing roofing repairs on November 21, 2006, Gammon accidentally started a fire causing damage to the building. Unfortunately, Gammon’s liability insurance had lapsed at the time of the accident.

Vincent Maenza, Jr., president of The Edge, testified that Mr. Doucet’s son, Dane, came to the property the day of the fire and told him to do whatever was necessary to get the property back into working condition and to get back into business. Mr. Maenza subsequently contacted Certified Cleaning and arranged for Certified Cleaning to clean the fire and smoke damage caused by the fire.

Daniel Haag, owner of Certified Cleaning, testified he entered into a contract with Mr. Maenza to provide cleaning services to the damaged building. Mr. Haag never spoke to any of the Doueets. Mr. Haag further testified he agreed to hold Mr. Maenza personally liable for only $7,000 of the total charges, with the intent to collect the balance from the responsible party or insurance company. Mr. Haag stated the total invoice for Certified Cleaning’s services was $45,992.59, of which only $7,000 had been paid. Certified Cleaning subsequently sued the Doueets and their liability insurer, Lafayette Ins. Co.; Turf Club; The Edge; and Gammon, for 14the recovery of the balance. The Edge filed a cross-claim against the Doueets, Lafayette Ins. Co., and Gammon for damages resulting from the fire including loss income, loss of business, out-of-pocket expenses, and payment of undue rent. Additionally, the Doucets and Lafayette Ins. Co. filed a cross-claim against Gammon for contribution. This lawsuit was consolidated with a subsequent lawsuit filed by Certain Underwriters at Lloyd’s London, (“Underwriters”), The Edge’s insurer, for subrogation, in which it sought to recover money it paid to The Edge as a result of the fire.

Trial was held on June 1, 2009. After taking the matter under advisement, the trial court rendered a judgment on April 30, 2010. The trial court found Gammon caused the fire on the property and, therefore, was liable under La. C.C. art. 2315. The trial court also found Gammon was an employee of Mr. Doucet and not an independent contractor. As such, it found the Doucets vicariously liable for the negligence of Gammon. The trial court also found the Doucets independently liable for the negligence of Mr. Doucet as a property owner/lessor in hiring Gammon, which did not have a contractor’s license or liability insurance. The trial court further found Lafayette Ins. Co. liable under the commercial liability and property policy it issued to Mr. Doucet for the property at issue.

Accordingly, the trial court rendered judgment in favor of Certified Cleaning against The Edge, Gammon, the Doucets, and Lafayette Ins. Co., in solido, in the amount of $45,992.59 plus interests from the date of the invoice. Additionally, the trial court rendered judgment in favor of The Edge against Gammon, the Doucets, and Lafayette Ins. Co., in the amount of $90,680.48, for damages The Edge incurred as a result of the fire. The trial court further rendered judgment in favor |aof Underwriters against Gammon, the Doucets, and Lafayette Ins. Co. for $47,775.17, which was the amount Underwriters paid The Edge for damages related to the fire under the insurance policy it issued to The Edge. The Doucets and Lafayette Ins. Co. appeal the judgment.

ISSUES

Appellants raise the following issues on appeal. Appellants first contend the trial court erred in finding the Doucets vicariously liable for the negligence of Gammon. Specifically, the Doucets maintain the evidence showed Gammon was an independent contractor and not an employee of Mr. Doucet and, thus, they are not liable for Gammon’s negligence under the theory of vicarious liability. Appellants next contend that to the extent the trial court found the Doucets independently liable for negligently hiring Gammon, it erred. And, finally, appellants argue that the mutual waiver clause in the commercial lease between Mr. Doucet and the Turf Club precludes liability of the Doucets.

LAW & ANALYSIS

Vicarious Liability

The concept of vicarious liability is codified in La. C.C. art. 2320, which provides that employers are responsible for the damage caused by their employees in the exercise of the functions for which they are employed. However, vicarious liability does not apply when an independent contractor relationship exists. Angle v. Dow, 08-224, p. 4 (La.App. 5 Cir. 8/19/08), 994 So.2d 46, 48. The distinction between employee and independent contractor status is a factual determination that must be made on a case-by-case basis, which is subject to a manifest error standard of review. Id.; J4H, L.L.C. v. Derouen, 10-319, p. 8 (La.App. 1 Cir. 9/10/10), 49 So.3d 10, 15.

1 fiIn determining whether an independent contractor relationship exists, courts must consider the following factors: (1) whether there is a valid contract between the parties; (2) whether the work being done is of an independent nature, such that the contractor may employ a non-exclusive means in accomplishing it; (3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to control and direction of the principal, except.as to the result of the services rendered; (4) whether there is a specific price for the overall undertaking agreed upon; and (5) whether the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 390-91 (La.1972); Honeycutt v. Deutschmann, 07-211, p. 4 (La.App. 5 Cir. 1/22/08), 976 So.2d 753, 755.

Vicarious liability mandates strict construction. Roberts v. State, Through Louisiana Health and Human Resources Administration, 404 So.2d 1221, 1225 (La.1981). In Roberts, the Louisiana Supreme Court stated that the single most important factor to consider in determining whether a party is an independent contractor or an employee is “the right of an employer to control the work of the employee.” Id.

The trial court applied the Hickman factors and concluded that Gammon was an employee of Mr. Doucet and not an independent contractor. The trial court found that no contract existed between Gammon and Mr. Doucet for the roofing services. It also determined that Mr. Doucet ultimately had the right of control over the project and that Gammon would have had to perform as requested if Mr. Doucet had exerted his authority. The trial court also found work on the roof was not set for a specific time and could be terminated at will by Mr. Doucet. The trial |7court relied on the fact that Gammon did not continue working on the roof after the fire and did not seek payment of the balance remaining.

We find the trial court was manifestly erroneous in its conclusion that Gammon was an employee of Mr. Doucet. The record shows Mr. Doucet and/or Danna Doucet contacted Gammon and asked him for an estimate to repair the roof. Gammon prepared a written proposal in April 2006 outlining the repairs to be made and estimating the repair costs to be $12,000. A few months later, Danna Doucet contacted Gammon and told him that his father, Mr. Doucet, was satisfied with the proposal and that they would like the job to be done as soon as possible. Gammon began the job in November 2006.

A valid and enforceable contract requires capacity, consent, a certain object, and a lawful cause. The court must find there was a meeting of the minds of the parties to constitute the requirement of consent. Arias v. Albe, 04-26, p. 7 (La.App. 5 Cir. 5/26/04), 876 So.2d 179, 182. The record shows all four elements were met. Thus, there was a valid contract between Gammon and Mr. Doucet for the roofing work.

Additionally, the record clearly demonstrates that neither Mr. Doucet nor any of his sons controlled Gammon’s work. Dan-na Doucet testified that he did not give Gammon any directions for the job and did not believe his father did either. Although Danna stated his father had probably given direction to contractors over the years, there was no evidence Mr. Doucet did so in this case. We note that a principal can give direction regarding the result of the services to be rendered without changing the relationship from that of an independent contractor to an employee. See Hickman, supra. Stephen Gammon repeatedly testified that he received no instruction from Mr. Doucet regarding how to do the roof repairs. Mr. Gammon further stated that no one told him or his workers what to do and that he |8alone instructed his workers on what to do. Mr. Gammon explained that he provided the tools and trucks to do the job and even had a trash trailer on site. The record shows Gammon performed the roofing repairs without input from Mr. Doucet, and that Mr. Doucet exercised no control over the methods Gammon used to repair the roof. Given these attendant facts and circumstances, Gammon was an independent contractor, and we find the trial court was manifestly erroneous in concluding Gammon was an employee of Mr. Doucet.

The parties all agree that the fire was caused by the negligence of Gammon. A principal is not liable for the offenses committed by an independent contractor while performing its contractual duties unless (1) the work undertaken by the independent contractor is inherently or intrinsically dangerous, or (2) the person for who the work is performed gives express or implied authorization to an unsafe practice or has the right to or exercises operational control over the method and means of performing the work. Villaronga v. Gelpi Partnership Number 3, 536 So.2d 1307, 1310-11 (La.App. 5th Cir.1988), writs denied, 540 So.2d 327 (La.1989) and 540 So.2d 329 (La.1989). There is nothing in the record to indicate the roofing repairs were inherently or intrinsically dangerous. Additionally, the record does not reflect that the Doucets gave express or implied authorization to an unsafe practice or had the right to exercise operational control over the method and means of performing the work.

Accordingly, we find the trial court erred in finding the Doucets vicariously liable for the negligence of Gammon.

Negligent Hiring

In their appellee briefs, appellees contend that even if this Court reverses the trial court’s finding of vicarious liability, the Doucets are still independently liable for negligent hiring. The judgment shows that the trial court not only found the InDoucets vicariously liable but also found them “independently liable for Earl Doucet’s fault for his failure to act reasonably as a property owner/lessor when he hired Gammon.” In their reply brief, appellants assert the trial court’s imposition of negligence on a theory of negligent hiring was dependent on its erroneous finding of an employer-employee relationship between the Doucets and Gammon. Appellants alternatively argue that even if the judgment is construed to impose liability for the negligent hiring of an independent contractor, the trial court erred because the evidence did not show the Doucets knew or should have known Gammon was irresponsible.

One who hires an irresponsible independent contractor may be independently negligent. Hemphill v. State Farm Ins. Co., 472 So.2d 320, 324 (La.App. 3rd Cir.1985). To determine whether a principal is negligent for hiring an irresponsible independent contractor, the court must consider the principal’s knowledge at the time of the hiring. Perkins v. Gregory Mfg. Co., 95-1396, p. 7 (La.App. 3 Cir. 3/20/96), 671 So.2d 1036, 1040, writ denied, 96-971 (La.5/31/96), 673 So.2d 1039.

In Perkins, Boise Southern Corporation contracted with Kim Johnson Trucking Company to harvest timber on one of its properties. The trucking company then hired the plaintiff as a tree trimmer. The plaintiff was subsequently injured and filed suit against various defendants. Among other assertions, the plaintiff claimed Boise was negligent in hiring the trucking company because it did not investigate the trucking company’s safety procedures and training. After determining the trucking company was an independent contractor, the Third Circuit concluded there was no evidence to support a finding of negligent hiring by Boise. The court noted that Boise had previously contracted "with the trucking 110company with good results and there was nothing in the record to show negligent hiring practices on the part of Boise.

In Hemphill, supra, the court also determined there was insufficient evidence of negligent hiring. In Hemphill, C.L. Harvey hired Robert Cloer to haul oilfield engines. Cloer’s employee, Salter, was driving the truck and trailer when he was involved in a multi-vehicle collision. The evidence showed Salter had consumed alcoholic beverages before driving and had an expired driver’s license. Additionally, Harvey had never met or had prior business dealings with Cloer or Salter.

In the - resulting lawsuit, Harvey was alleged to be the employer of Cloer and Salter and, therefore, vicariously liable for their negligence. Harvey was also alleged to be independently liable for negligently hiring Cloer and Salter. The court first concluded that Cloer was an independent contractor and, therefore, Harvey was not vicariously liable for damages caused by Cloer or Salter. The court then found no independent negligence on behalf of Harvey under the theory of negligent hiring. The court noted that despite the fact Cloer and Salter had been drinking before meeting with Harvey, there was nothing to show that Harvey knew or should have known of Cloer and Salter’s drinking. The court also stated that even though Salter had an expired driver’s license and even if this information had been known to Harvey, such information was insufficient in and of itself to find Harvey independently negligent.

In the present case, we likewise find no evidence of negligent hiring and, thus, conclude the trial court was manifestly erroneous in its determination that the Dou-cets were independently liable. The record shows the Doucets had used Gammon on prior roofing jobs and there was no indication of any problems with the prior work. In fact, Gammon had worked on the roof at issue prior to |nHurricane Katrina in 2005. Again, there was no indication of any mishaps with the work.

According to Danna Doucet, the proposal Mr. Gammon submitted indicated that he was fully insured, and Danna testified that he relied on that information to assume Gammon was insured. Mr. Gammon testified that at the time he submitted the proposal, he was insured but the insurance had lapsed by the time the fire occurred. There was no evidence in the record regarding when Gammon’s insurance lapsed. Mr. Gammon also admitted that at the time of the fire he did not possess a contractor’s license. He explained that he had obtained a temporary contractor’s license after Hurricane Katrina but then did not follow up and obtain the license.

Based on these facts, we find the trial court erred in finding the Doucets negligently hired Gammon. Gammon had performed several roofing jobs for the Dou-cets prior the one at issue without incident. Gammon was insured at the time of the bid for the job and there was no evidence as to when the insurance lapsed. There is no indication that the Doucets knew or should have known Gammon was not insured at the time of hiring. Further, in this case, the mere fact Mr. Gammon did not possess a contractor’s license at the time of the incident is not, in and of itself, sufficient to find the Doucets independently negligent in hiring Gammon. Therefore, we find the trial court erred in finding the Doucets independently liable under the theory of negligent hiring.

Because we find the Doucets are not vicariously liable or liable under the theory of negligent hiring, we need not address the issue of the mutual waiver clause in the lease.

I,^DECREE

For the foregoing reasons, we reverse that portion of the trial court’s April 80, 2010 judgment finding the Doucets vicariously liable and independently liable for negligent hiring. Appellees are to bear the costs of this appeal.

REVERSED

      .Mr. Doucet died after the lawsuit was filed and his heirs, Danna Doucet, Dane Doucet, and Dianne Doucet Matthews, were substituted as parties-defendants.

      . Gammon submitted a proposal for the roofing repairs to Mr. Doucet in April 2006 and performed the repairs in November 2006.

      . All claims against Turf Club were dismissed without prejudice prior to trial.

      . The trial court gave The Edge a credit for the $7,000 it had already paid to Certified Cleaning and ruled The Edge was entitled to indemnity from the Doucets and Lafayette Ins. Co. because of the handwritten agreement between Certified Cleaning and Mr. Maenza that The Edge would only be liable for $7,000 of the charges.

      . Underwriters paid its insurance policy limits of $50,000 minus the deductible owed by The Edge.


author: PICKETT, Judge.

text:
    NATCHITOCHES PARISH POLICE JURY v. NATCHITOCHES SPORTSMAN’S ASSOCIATION.
    No. 11-102.
    Court of Appeal of Louisiana, Third Circuit.
    June 15, 2011.

      Van H. Kyzar, District Attorney, Tenth Judicial District Court, Natchitoches, LA, for Plaintiff-Appellee, Natchitoches Parish Police Jury.
    William Preston Crews, Jr., Attorney at Law, Natchitoches, LA, for Defendant-Appellant, Natchitoches Sportsman’s Association.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

_JjThe defendant, the Natchitoches Sportsman’s Association (NSA), appeals the trial court’s grant of summary judgment in favor of the plaintiff, the Natchi-toches Parish Police Jury (NPPJ), which declared lease agreements between the NSA and the NPPJ null and void.

STATEMENT OF THE CASE

On June 21, 1989, the NPPJ and the Grits Gresham Shooting Club, Inc. (GGSC), entered into a ten-year lease agreement whereby the GGSC leased a twenty-acre tract of land from the NPPJ for the purpose of constructing and running a shooting range. In June 1992, the NSA, allegedly the successor corporation of the GGSC, entered into a fifty-year lease with the NPPJ for the same twenty-acre tract. The term of the lease was extended in order to qualify for certain government grants. In November 2001, the Natchitoches Shooting Range, the NPPJ, and a “Trailer Occupant” entered into an agreement concerning utilities for a trailer and the duties of the occupant of the trailer.

Facing a budget shortfall, the NPPJ filed suit in October 2009 to have these lease agreements terminated because of violations of the agreement by NSA. After NSA filed certain exceptions, the NPPJ amended its petition to delete the original allegations. The amending petition alleged a violation of the statutes governing the lease of public lands in Chapter 10 of Title 41 of the Revised Statutes, La.R.S. 41:1211, et seq. Specifically, La. R.S. 41:1214 requires that in order for public land to be leased to a private entity, the lessor must publicly advertise for bids, and La.R.S. 41:1217 limits the lease of public lands to a term of ten years. As a result of these [2violations, the NPPJ asked for a declaratory judgment that the leases are null and void.

The NPPJ filed a motion for summary judgment, which was heard on August 10, 2010. The trial court rendered judgment in favor of the NPPJ on August 12, 2010, and declared the lease agreements and utilities agreement null, void, and without effect. The NSA now appeals that judgment.

ASSIGNMENTS OF ERROR

The NSA asserts five assignments of error:

1. The trial court was manifestly erroneous in punishing the innocent victim rather than punishing the guilty party who confessed of its crime.
2. The trial court was manifestly erroneous in failing to find that the action by the plaintiff was untimely.
8. The trial court was manifestly erroneous in failing to apply all law applicable to the issue.
4. The trial court was manifestly erroneous in failing to apply equitable, judicial estoppel, or laches.
5. The trial court was manifestly erroneous in failing to interpret the language, meaning, and intent as expressed in various leases — agreements so as to minimize the adverse effects to the innocent party and reward the party who judicially admits wrong doing.

DISCUSSION

An appellate court reviews judgments granting a motion for summary judgment using a de novo standard of review. Gray v. Am. Nat. Prop. & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 889. Where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law,” then summary judgment is appropriate. La.Code Civ.P. art. 966(B).

|aThe NSA’s first, fourth, and fifth assignments of error amount to a request for this court to invoke equitable principles. We are bound to follow the law. Louisiana Civil Code Article 1 states: “The sources of law are legislation and custom.” In the rare situation where neither legislation nor custom provides a legal solution, La.Civ. Code art. 4 requires courts “to proceed according to equity.” In this case, there is sufficient legislation covering this particular situation, and we cannot ignore the primary sources of law to invoke equity. These assignments of error lack merit.

Reviewing the case de novo, we find that the trial court did not err in granting summary judgment. There are no genuine issues of material facts. The leases were entered into without first being advertised for public bid as required by La.R.S. 41:1214. The NSA has not provided any evidence that the leases are exempt from the public advertisement and bid requirements.

In its second assignment of error, the NSA claims that the NPPJ’s action to annul the lease is prescribed. Louisiana Code Civil Procedure Article 2163 allows a party to raise the peremptory exception of prescription for the first time in the appellate court. However, the peremptory exception must be raised in a formal pleading and is not properly raised in oral arguments or by brief. Rapp v. City of New Orleans, 95-1638 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868; Tucker v. La. Dept. of Rev. and Taxation, 96-2740 (La.App. 1 Cir. 2/20/98), 708 So.2d 782. The NSA has not filed a formal pleading raising the exception of prescription either in this court or in the trial court. Therefore, we will not consider this assignment of error.

In its third assignment of error, the NSA argues that the trial court did not properly consider the provisions of La.R.S. 38:2220.3, which requires a party filing |4a civil action to annul a contract with a public entity to file notice with the attorney general. We find that this law is inapplicable in this situation, where the district attorney for the parish has filed the civil action seeking declaratory relief. Louisiana Revised Statutes 38:2220 contemplates that the district attorney, as the attorney for the police jury, has the authority to bring such an action without following the requirements of La.R.S. 38:2220.1 through 2220.4, which apply only to private citizens. This assignment of error lacks merit.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, the Natchitoches Sportsman’s Association.

AFFIRMED.


author: PHYLLIS M. KEATY, Judge. GREMILLION, J.

text:
    Scott Brame MOFFETT v. Lauren Lee MOFFETT.
    No. 10-1364.
    Court of Appeal of Louisiana, Third Circuit.
    June 22, 2011.

      Evelyn M. Oubre, Lake Charles, LA, for Defendant/Appellant Lauren Lee Moffett.
    John Green, AAA Legal Services, Inc., Lake Charles, LA, for Plaintiff/Appellee Scott Brame Moffett.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   PHYLLIS M. KEATY, Judge.

|, Lauren Lee Moffett (Lauren) and her attorney, Evelyn Oubre (Oubre), appeal a judgment in favor of Scott Brame Moffett (Scott) stemming from an evidentiary hearing on sanctions pursuant to La.Code Civ.P. art. 1420(E). The trial court found that Oubre failed to comply with a rule of discovery, which violated La.Code Civ.P. art. 1420(B), subjecting her to sanctions under La.Code Civ.P. art. 1420(D). The trial court cast Lauren with costs, Oubre with attorney fees, prohibited two depositions from being used or distributed, and prohibited either of the deposed persons from being called as witnesses. For the following reasons we affirm the trial court in part, reverse the trial court in part, and amend the judgment accordingly.

FACTS AND PROCEDURAL HISTORY

Lauren and Scott were married in October 1997 and filed for divorce in 2005. They have two minor daughters and have litigated extensively over domestic issues since their separation, as evidenced by over eighty pages of minute entries in the record. On or about June 8, 2009, Lauren allegedly received a call from one of her children who was upset. She drove to Scott’s house to pick up the children and an altercation occurred between them. Lauren then called the police and two officers arrived and took her statement.

Lauren contacted her attorney shortly thereafter, and on June 9, 2009, Oubre issued subpoenas to take the depositions of the two responding officers for the purpose of discovery. Oubre certified that the notices were sent to each officer and to the court reporter. Oubre did not notice Scott or his attorney of record, John Green. Oubre took the depositions of the two officers on June 12, 2009.

|2On or about June 26, 2009, Scott filed a rule for sanctions against Oubre and Lauren. He alleged that Oubre used the “subpoena powers of the Court” to serve the officers with subpoenas and subsequently obtain their depositions, without giving notice to him or his attorney. He further alleged that she took the depositions to gain an unfair advantage in an extremely litigious dispute. Scott claimed that Oubre violated the provisions of La.Code Civ.P. art. 1420 and should be sanctioned accordingly. He requested that Oubre and Lauren be cast with attorney fees and costs.

The hearing on Scott’s rule for sanctions took place on July 18, 2009. At that hearing, Oubre testified that she took the officers’ depositions on June 12, 2009 because she “thought the children [were] in danger” and was hoping to get corroboration from a third party before deciding whether to file for ex parte custody, a change of custody, or nothing at all. She then testified that “[t]here was no litigation[ ]. There was no rule at that time filed to change custody, change visitation.” Oubre also stated that the perpetuation of testimony article was inapplicable to the instant case.

The trial court disagreed. It emphasized Oubre’s filing the subpoenas into the ongoing consolidated lawsuits between the parties, her use of the term “for discovery” on the subpoenas, and stated that she had “used these proceedings to take a deposition | sof somebody without giving notice to the other side. And to argue now that there’s no litigation but yet you use this litigation to get to the clerk to issue the thing — .”

The trial court found that the depositions were not taken in accordance with the law, particularly La. Code Civ.P. art. 1438, which requires reasonable written notice be given to the other party before a deposition is taken. It found that because the depositions were not taken in accordance with the law, sanctions under La. Code Civ.P. art. 1420 were appropriate. In sanctioning Oubre’s actions, the trial court prohibited Lauren or Oubre from calling either officer as a witness in a future, potential hearing; prohibited the depositions from being used in the litigation, given to either therapist or given to a witness; cast Oubre with attorney fees; and cast Lauren with all costs for issuing the subpoenas, filing the discovery requests for the depositions and for “these proceedings.”

Lauren and Oubre jointly appeal, asserting two assignments of error:

1. “The trial court erred in [jfinding the taking of a deposition of a witness to obtain information when there is no pending litigation, and without notification to the opposing party, and with no ill motive or bad faith attached thereto, is a sanction-able action” and;
2. “Even if the action is sanctionable against the attorney, the punishment can not be extended to the client, denying to the client the right to call a witness that has been deposed in violation of law.”

Scott answered the appeal, seeking increased sanctions under La.Code Civ.P. art. 1420 and sanctions for work done on appeal under La.Code Civ.P. art. 863.

DISCUSSION

There are three issues before us. The first is whether Oubre’s actions were sanc-tionable; the second, whether the sanctions imposed by the trial court were proper; and the third, whether Scott is entitled to an increase in sanctions and |4additional sanctions for work done on appeal under La.Code Civ.P. arts. 863 and 1420.

Are the actions of an attorney, who takes a deposition without giving reasonable, written notice to the opposing party, sanctionable?

The trial court sanctioned appellants under La.Code Civ.P. art. 1420. In order to impose sanctions under La.Code Civ.P. art. 1420, a court must hold an evidentiary hearing and find that the discovery request:

(1) was not consistent with the rules of discovery or was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, (2) was interposed for an improper purpose, such as to harass or to cause unnecessary or needless increase in the cost of litigation, or (3) was unreasonable, unduly burdensome, or expensive, given the needs of the case, the discovery already taken in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

Maxie v. McCormick, 95-1105, p. 4 (La.App. 1 Cir. 2/23/96), 669 So.2d 562, 565.

In the instant case, the trial court held an evidentiary hearing and found that Ou-bre’s failure to notice the opposing party of her intent to take depositions violated La. Code Civ.P. art. 1438, one of the rules of discovery. It found that this violation was one enumerated in La.Code Civ.P. art. 1420(B) and, accordingly, that sanctions were appropriate under La.Code Civ.P. art. 1420(D).

Oubre argues on appeal that although she took depositions without giving notice to the other party, there was no litigation pending and she did not act with ill motive or bad faith, making the sanctions imposed against her and her client inappropriate.

We reject Oubre’s assertion that there was no pending litigation between the parties. The subpoenas were issued under the suit existing between Scott and Lauren. Oubre testified that she took the depositions to determine what course of action she |¡;should take; whether she should seek an emergency ex-parte custody order, an order modifying custody, or nothing at all. Subsequent to taking the depositions, but before the hearing on Scott’s rule for sanctions, Oubre filed a rule for contempt and to change custody on behalf of Lauren. In her motion of support, Oubre specifically references the June 8 incidences as grounds for contempt and a change of custody. It is obvious to this court that there was long term, ongoing litigation between Lauren and Scott and that Oubre took the depositions, at least partially in furtherance of that litigation.

Further, we interpret La.Code Civ.P. art. 1420 as allowing for the imposition regardless of whether the violation was done in good faith or not. The trial court did not determine whether Oubre acted in good faith or not, but it did not need to. Although Oubre claims that she acted without ill will or bad faith, that assertion does not preclude her from sanctions under Article 1420. Article 1420 imposes a duty on an attorney signing discovery requests to make reasonable inquiries into the facts and the law. See Murphy v. Boeing Petroleum Servs., 600 So.2d 823 (La.App. 3 Cir.1992). “Subjective good faith will not satisfy the duty of reasonable inquiry.” Murphy, 600 So.2d at 826. Oubre’s argument that she was without ill will of bad faith is without merit.

Finally, a close reading of La.Code Civ.P. art. 1420 and associated jurisprudence clearly suggests that an attorney need only violate one of the three provisions of Subsection (B) to be sanctioned. See Maxie, 669 So.2d 562. It is clear that violating any of the three provisions is an action appropriately giving rise to 1 (¡sanctions. The trial court found that Oubre violated a provision of Article 1420(B) and sanctioned her accordingly.

“A trial court’s factual determination that La.Code Civ.P. art. 1420 was, or was not, violated is reviewed on appeal pursuant to the ‘manifest error’ or ‘clearly wrong’ standard.” Maxie v. McCormick, 669 So.2d at 565. After reviewing the record, we do not find that the trial court committed manifest error in finding that an attorney, who did not notice opposing counsel prior to taking depositions that she admittedly planned on using in on-going litigation between the parties, was not in compliance with La.Code Civ.P. art. 1438 and was therefore subject to sanctions under La.Code Civ.P. art. 1420(D).

Were the sanctions imposed by the trial court appropriate?

The trial court has “considerable discretion as to the type and severity of sanctions to be imposed,” and we review those decisions under the abuse of discretion standard of review. Joyner v. Wear, 27,631, p. 14 (La.App. 2 Cir. 12/6/95), 665 So.2d 634, 642, writ denied, 96-40, 96-42 (La.2/28/96), 668 So.2d 370. In the instant case, the trial court ordered Oubre to pay $1,250 in attorney fees to Scott; cast Lauren with costs for the depositions, filing of the rule, and hearing on the rule; and prohibited Lauren from using or distributing the depositions or from calling either officer as a witness in the on-going litigation.

Louisiana Code of Civil Procedure Article 1420(D) provides:

If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the request, response, or objection, including a reasonable attorney’s fee.

| ./Therefore, the trial court did not abuse its discretion in ordering Oubre to pay attorney fees and Lauren to pay costs.

Further, La.Code Civ.P. art. 1450 allows a deposition that is admissible under the Louisiana Code of Evidence to be used “against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.” No other party was present when the depositions were taken, and no one was given reasonable notice; thus, the depositions could not be used against anyone. The trial court did not abuse its discretion in including that prohibition in its judgment.

In assigning sanctions prohibiting the use of the depositions, the trial court ordered that “[n]o part of the depositions of Officer Timothy Richards and Officer Kevin Jones are to be used at any evidentiary hearing and are not to be provided to any court appointed counselors, nor to any witnesses.” We find that the trial court did not abuse its discretion in including that prohibition in its judgment.

Finally, the trial court imposed a sanction prohibiting Lauren from calling either officer as a witness in these proceedings. We find that this prohibition was an abuse of the trial court’s discretion. Louisiana Code of Civil Procedure Article 1420 permits a court to impose an “appropriate sanction” and gives examples: attorney fees, reasonable expenses, et cet-era. Although that list is illustrative only, we find that, under the facts of this case, prohibiting a party from calling certain persons as witnesses in a potential, but not yet scheduled hearing, is an abuse of the trial court’s discretion.

In the instant case, the only issue before the trial court was whether Oubre should be sanctioned for taking the depositions of two officers without giving notice to the other party. Prohibiting the officers’ testimony is premature and is an abuse of |8the trial court’s broad discretion in imposing sanctions. “A penalty should be tailored not only to punish the violator but also to accomplish some useful end.” Williams v. Tulane Univ. Med. Ctr., 588 So.2d 782, 783 (La.App. 4 Cir.1991). The goal, in imposing sanctions, is to correct litigation abuse. See Joyner, 665 So.2d 634. We can find no instance in which a trial court punished an attorney for violating La.Code Civ.P. art. 1420 by prohibiting their client from calling certain persons as witnesses in potential future hearings.

In casting Oubre and her client with costs and attorney fees and in prohibiting them from using the depositions, the trial court successfully punished Oubre in a manner that is likely to make her mindful of giving proper notice to opposing parties prior to taking depositions in the future. Prematurely prohibiting Lauren from calling either officer as a witness extends beyond the goal of correcting litigation abuse and potentially infringes on her right to present evidence in support of her case. We, therefore, reverse the portion of the judgment prohibiting Lauren from calling either officer as a witness.

Additional Sanctions

In his answer to the appeal, Scott seeks additional sanctions under La. Code Civ.P. art. 1420, for work done on appeal, and under La.Code Civ.P. art. 863, for having to answer a frivolous appeal.

“Article 1420 empowers this court to award sanctions commensurate with the appeal before us based on the findings of the trial court as amplified by the actions of the parties in this court.” Zatzkis v. Zatzkis, 632 So.2d 302, 306 (La.App. 4 Cir.1993), writ denied, 94-160 (La.6/24/94), 640 So.2d 1340. The trial court found that Oubre’s actions were sanctionable under La.Code Civ.P. art. 1420 and ordered her Lto pay $1,250 in attorney fees. She then appealed. After reviewing the record, we agree that her actions were sanctionable. In light of the foregoing, we find an additional sanction for work done on appeal appropriate and award Scott additional attorney fees in the amount of $1,000.

Scott also seeks sanctions under La. Code Civ.P. art. 863. The supreme court made it clear that only a trial court can order sanctions under La.Code Civ.P. art. 863, stating:

[Sanctions under article 863D can only be imposed “after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.” Only a trial court is capable of holding the required art. 863 hearing where evidence may be presented on the sanctions issue. Therefore, on its face, the ability to impose sanctions under art. 863 is limited to the trial court. Moreover, we believe that the authority to impose art. 863 sanctions is limited to the trial court. The court of appeal’s authority to regulate conduct before it is governed by La.Code Civ.P. art. 2164, which provides in pertinent part that “[t]he [appellate] court may award damages for frivolous appeal.” By limiting the court of appeal’s authority to awarding damages solely for frivolous appeals, art. 2164 places a logical limit on the application of art. 863 to matters before the trial court.

Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993) (citations omitted).

Scott argues that this appeal is frivolous. Louisiana law is clear that “appeals are favored and appellate courts are therefore reluctant to impose damages for frivolous appeal[s].” Harris v. Gaylord Bag Co., 26,335, p. 4 (La.App. 2 Cir. 12/7/94), 647 So.2d 542, 544. “An appeal will not be deemed frivolous unless it appears that it was taken solely for delay, serious legal questions are not raised or counsel does not seriously believe in the position of law she advocates.” Id. We do not find that this appeal is frivolous, and that is the only instance in which we can impose sanctions under La.Code Civ.P. art. 863. Accordingly, Scott’s request for sanctions under that article is denied.

ImDECREE

We find that the trial court did not commit manifest error when it found that Evelyn Oubre took the depositions of two police officers without providing notice to opposing counsel and that her behavior was sanctionable under La.Code Civ.P. art. 1420. We find no abuse of discretion in the sanctions imposed by the trial court insofar as costs, fees, and prohibition against using the depositions are concerned. We find that the trial court abused its discretion in imposing a sanction that prohibited Lauren Moffett from calling either officer as a witness at trial, and we reverse that portion of the judgment. We find that additional sanctions pursuant to La.Code Civ.P. art. 1420 for work done on appeal are appropriate, and we award Scott Moffett an additional $1,000 in attorney fees. Sanctions pursuant to La.Code Civ.P. art. 863 are inappropriate. We amend the judgment accordingly. Costs are cast to Evelyn Oubre.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED IN PART. SANCTIONS FOR FRIVOLOUS APPEAL DENIED.

GREMILLION, J.

dissents in part.

Having found no abuse of the trial court’s discretion, he would affirm the trial court’s ruling in its entirety.

      . Scott’s rule for sanctions was filed on the same day as a rule for contempt and to change custody filed by Lauren.

      . Although custody issues were not set before the trial court at the time the depositions were taken, on June 26, 2009, Lauren filed a rule for contempt and a rule to change custody. In her motion, the events of June 8, 2009 are set forth in detail as evidence to support a finding of contempt and change of custody.

      .Louisiana Code of Civil Procedure Article 1430 sets forth specific instances and procedures for taking a deposition when litigation is not pending in the courts.

      . The issue of whether depositions taken absent pending litigation would have any bearing on the appropriateness of sanctions under Article 1420 is beyond the scope of this opinion and is not addressed herein.


author: KEATY, Judge. GREMILLION, J.

text:
    Lauren Lee MOFFETT v. Scott Brame MOFFETT.
    No. 10-1365.
    Court of Appeal of Louisiana, Third Circuit.
    June 22, 2011.
    Evelyn M. Oubre, Attorney at Law, Lake Charles, LA, for Defendani/Appel-lant, Lauren Lee Moffett.
    John Green, AAA Legal Services, Inc., Lake Charles, LA, for Plaintiff/Appellee, Scott Brame Moffett.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

I For the reasons set forth in the companion case in this consolidated matter, Scott Brame Moffett v. Lauren Lee Moffett, 10-1364 (La.App. 3 Cir. 6/22/11), 67 So.3d 1287, we find that the trial court did not commit manifest error when it found that Evelyn Oubre took the depositions of two police officers without providing notice to opposing counsel and that her behavior was sanctionable under La.Code Civ.P. art. 1420. We find no abuse of discretion in the sanctions imposed by the trial court insofar as costs, fees, and prohibition against using the depositions are concerned. We find that the trial court abused its discretion in imposing a sanction that prohibited Lauren Moffett from calling either officer as a witness at trial, and we reverse that portion of the judgment. We find that additional sanctions pursuant to La.Code Civ.P. art. 1420 for work done on appeal are appropriate, and we award Scott Moffett an additional $1,000 in attorney fees in the companion case only. Sanctions pursuant to La.Code Civ.P. art. 863 are inappropriate. We amend the judgment accordingly. Costs are cast to Evelyn Oubre.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED IN PART. SANCTIONS FOR FRIVOLOUS APPEAL DENIED.

GREMILLION, J.

dissents in part.

Having found no abuse of the trial court’s discretion, he would affirm the trial court’s ruling in its entirety.


author: CLARENCE E. McMANUS, Judge.

text:
    Willie GREEN, Jr. and his Spouse, Betty Townsend Green v. Jessie Lee HOLMES, Mable Holmes, Alice Kizzie Elson Holmes, Widow of Manuel Holmes, and Michael Black.
    No. 10-CA-880.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2011.

      Maria D. Calvo, Grant & Barrow, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Brad J. Gegenheimer, Attorney at Law, Gretna, LA, for Defendants/Appellees.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

12PIaintiffs appeal from two trial court rulings, the first denying their motion to vacate the settlement agreement, and the second granting defendants’ motion to enforce settlement, and ordering plaintiffs to comply with the terms of the Consent Judgment entered into between the parties. For the reasons that follow, we affirm the decision of the trial court. In addition, defendants filed a motion to dismiss the appeal, which was referred to the merits for consideration. We deny the motion to dismiss.

This case arises out of a boundary dispute between plaintiffs, Willie Green, Jr. and his spouse, Betty Townsend Green, and defendants Jessie Lee Holmes, Mable Holmes and Michael Black. The parties each own adjoining properties. Both parties claim ownership of a portion of the land that runs alongside each of their properties, either by title or by acquisitive prescription.

Trial commenced on July 14, 2009, and the plaintiffs presented their case. After the plaintiffs rested, the defendants called one witness and then a recess was taken. When trial recommenced, counsel for the plaintiffs stated that a settlement agreement had been reached between the parties. The agreement, which was read | ¿¡into the record, provided that defendants would purchase the two lots adjoining their property from plaintiffs for $7,500.00; that plaintiffs would arrange for survey rods to be placed identifying the comers of the transferred lots and plaintiffs remaining property, the cost of which was to be shared equally by plaintiffs and defendants; and that defendants would place a fence along the property line between the transferred plots and plaintiffs’ remaining property at their expense.

After the consent agreement was read into the record, each party was questioned as to whether they had heard the terms and conditions and whether they were in agreement with same. Each party responded that they heard the terms and conditions and were in agreement with them. The Consent Judgment was reduced to writing and rendered by the Court on July 20, 2009. The attorneys for both plaintiffs and defendants placed their signatures on the judgment, indicating that it had been “Approved as to Form and Content.”

On July 28, 2009, the plaintiffs filed a motion to vacate the Consent Judgment, alleging that their consent to the judgment was not valid as it was obtained under fraud and/or duress. The motion to vacate was denied by the trial court on August 18, 2009. Plaintiffs filed a timely motion for appeal from that judgment and were granted a devolutive appeal.

On September 25, 2009, the defendants filed a motion to enforce the settlement agreement. Defendants also alleged that plaintiffs breached their duty of good faith and fair dealings, and therefore should be assessed with attorney fees and costs. That matter was heard on May 26, 2010, and on June 14, 2010, the trial court granted defendants’ motion to enforce the settlement agreement. Plaintiffs filed a timely motion from that judgment and were granted a suspensive appeal.

J^MOTION TO DISMISS APPEAL

On December 22, 2010, defendants filed a motion to dismiss appeal in this court, citing LSA-C.C.P. art. 2085. The motion was referred to the merits of the appeal by order of this Court on January 7, 2011. After consideration, we deny the motion to dismiss.

LSA-C.C.P. art. 2085 provides in part that “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.”

Defendants argue that plaintiffs consented in the judgment against them, and therefore cannot appeal from that judgment. In support of their contention, they cite Guidry v. Sothern, 98-1152 (La.App. 1 Cir. 5/14/99), 734 So.2d 928. In the Gui-dry case, the court found that a motion to vacate was not the appropriate remedy for a party seeking to set aside a final judgment and that the only remedy available is an action in nullity pursuant to LSA-C.C.P. art. 2001, et seq. See also Johnson v. Cain, 08-0936 (La.App. 1 Cir. 11/14/08), 999 So.2d 51, writ denied, 09-0295 (La.4/3/09), 6 So.3d 773.

In this case, the plaintiffs allege that the consent judgment was obtained by fraud and/or duress. A final judgment obtained by fraud or ill practices is not an absolute nullity; the nullity must be properly decreed within the time prescribed. LSA-C.C.P. art. 2004. The party seeking vacation of a relatively null judgment must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits. However, a direct action can be brought by filing a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered. Mooring Financial Corp. 401(K) Profit Sharing Plan v. Mitchell, 08-1250 (La.App. 4 Cir. 6/10/09), 15 So.3d 311, 318; Smith v. LeBlanc, 06-0041 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 71-72.

| sHere, the plaintiffs’ action for nullity was brought by a Motion to Vacate the Consent Judgment, and service was requested on defendants’ counsel of record. Defendants did not object to the motion, and did in fact appear and defend the consent judgment. To the extent that this procedure may not have been in accordance with the requirements of LSA-C.C.P. art. 2004, because no objection was made to the procedure employed, any error in this regard is considered waived. See Russland Enterprises, Inc. v. City of Gretna, 98-676 (La.App. 5 Cir. 1/26/99), 727 So.2d 1223, 1226, writ denied, 99-0980 (La.5/28/99), 743 So.2d 669.

Having received judgments that first denied their request to annul the consent judgment on the basis of fraud and/or duress and second ordered enforcement of that consent judgment, the plaintiffs are entitled to appeal from those judgments. Accordingly, we deny the motion to dismiss the appeal.

MERITS OF THE APPEAL

In this appeal, plaintiffs allege that the trial' court erred in failing to vacate the Consent Judgment of July 20, 2009. They allege that the trial court erred in failing to vacate the Consent Judgment on the grounds that defendants breached the consent agreement by failing to timely tender payment and also that plaintiffs consent was obtained by fraud and/or duress. They also challenge the trial court’s ruling enforcing that Consent Judgment.

A judgment is a solemn adjudication of a court, settling the rights of the parties, as disclosed by the record, and which passes on the matters presented for determination. Peeler v. Dural, 06-936 (La.App. 5 Cir. 4/11/07), 958 So.2d 31, 34. Whether a judgment results from the assent of the parties or is the result of a judicial determination after a trial on the merits, it is accorded sanctity under the law. Id. at page 35.

IrA Consent Judgment is a bilateral contract wherein the parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing the hope of gain against the fear of loss. As such, it should be governed by the same rules of construction that apply to contracts. Nelson v. Nelson, 08-85 (La.App. 5 Cir. 6/19/08), 985 So.2d 1285, 1290.

Consent may be vitiated by error, fraud or duress. LSA-C.C. art. 1948. A settlement can be set aside when there was error as to the person or matter in dispute, fraud, or violence in the execution of the agreement, or where the agreement is against public policy. Millet v. Millet, 04-406 (La.App. 5 Cir. 10/26/04), 888 So.2d 291, 293-4.

At the hearing on the motion to vacate, Betty Green testified that shortly after the agreement was reached, she called counsel and informed him that she did not believe that her consent to the settlement agreement was freely and voluntarily given. She stated that she agreed to the settlement because both the trial court and her attorney told her she had to settle, and that she felt that she was not allowed to question either her attorney or the trial judge. She also stated that she informed her counsel that she wanted to go to trial. On cross examination, Betty Green admitted she agreed in open court, and that she signed the consent judgment. She also admitted that she was not threatened in any way to sign the agreement.

Reverend Green testified that during the trial of this matter, settlement negotiations occurred on three occasions. During each session, he was told that he had to settle, and also on each occasion he made it clear that he wanted to go to trial. On cross examination, Reverend Green also admitted that he agreed in open court, and that he signed the consent judgment. He further admitted that he was not threatened in any way to sign the agreement.

|7The trial court denied the motion to vacate the Consent Judgment, stating that:

The Court finds it is a valid consent. The Court questioned the parties the morning of trial whether or not they had agreed freely and voluntarily to the stipulations made by [defense counsel]. At that time they both said under oath that they agreed, and that it was their wishes to go ahead and settle. The Court finds it was a valid consent judgment.

The standard of review to be utilized by this Court is as follows:

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-elearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. (Citations omitted.)

Nelson, supra at 1289, citing Hall v. Folger Coffee Company, 03-1734 (La.4/14/04), 874 So.2d 90, 106.

After careful review, we cannot say that the district court was clearly wrong or manifestly erroneous in its determination that both Reverend Green and Betty Green freely and voluntarily consented to the settlement agreement at issue. Accordingly, we find no error in the trial court’s denial of the motion to vacate the Consent Judgment rendered on August 18, 2009, and no error in the trial court’s grant of the motion to enforce the Consent Judgment rendered on June 14, 2010.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against the appellant.

MOTION TO DISMISS DENIED; AFFIRMED

      . Plaintiffs also named as defendants Kizzie B. Ellison, improperly identified as Alice Kiz-zie Elson Holmes, and Manuel Holmes, Parents of Jessie Lee Holmes and Mable Holmes. Both parties are deceased.

      . The trial judge that presided over the trial, and therefore the entry of the consent judgment into the record, was the same judge that presided over the motion to vacate the consent judgment.


text:
    Desiree FARRAR (on behalf of her minor children, Emilia and Dora) v. CERTIFIED COATINGS OF CALIFORNIA, INC.; Fred R. Cagle (individual/representative capacity); Scott Soldis (individual/representative capacity); John P. Wright (individual/representative capacity); Dan Martin (individually/representative capacity); State of Louisiana Department of Transportation and Development; Greg Carter (individual/representative capacity); Harness Manufacturer (unknown); (unknown) Liability Insurer of Defendant Certified Coatings; (unknown) Liability Insurer of (unknown) Defendant Harness Manufacturer.
    No. 10-CA-421.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Stephen M. Smith, Attorney at Law, New Orleans, LA, Elton Heron, Attorney at Law, Geismar, LA, for PlaintiffAppel-lant.
    Frank A. Piccolo, Joseph E. Lee III, Preis & Roy, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    James D. “Buddy” Caldwell, Attorney General, Lance S. Guest, Assistant Attorney General, Department of Justice — Litigation Division, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

LThis is an appeal by plaintiff from the trial court’s granting of defendants’ exception of improper service and denial of plaintiffs motion to set aside order of dismissal based on abandonment. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

On April 16, 2004, Lester Irula died when he fell from the Crescent City Connection bridge over the Mississippi River while working for defendant, Certified Coatings of California, Inc. On April 15, 2005, Desiree Farrar (“plaintiff’), on behalf of Irula’s two minor children, filed a petition for damages in the Twenty-Fourth Judicial District Court, against Certified Coatings of California, Inc., the State of Louisiana, through the Department of Transportation and Development, Crescent City Connection Division, and their insurers (collectively referred to as “defendants”). That matter was designated as Desiree Farrar v. Certified Coatings of California, Inc., District Court No. 619-825, Div. L. Plaintiff withheld service of this petition on the defendants.

Also on April 15, 2005, plaintiff filed an identical lawsuit, in the Civil District Court for the Parish of Orleans. On August 11, 2005, defendants filed an exception of improper venue in the Orleans Parish case, arguing the proper venue is Jefferson Parish because the accident occurred in Jefferson Parish.

While the exception of venue was still pending, Hurricane Katrina struck the area in August 2005. On September 19, 2008, the Orleans Parish court granted the exception of venue and executed an order of transfer, transferring the case to the Twenty-Fourth Judicial District Court in Jefferson Parish. This matter was designated as Desiree Farrar v. Certified Coatings of California, Inc., District Court No. 666-747, Div. L. The two cases were not consolidated in the Twenty-Fourth Judicial District Court.

On April 24, 2009, defendants filed a peremptory exception of prescription in case no. 666-747. The trial court granted the exception of prescription by written judgment on August 17, 2009, dismissing the claims of plaintiff, with prejudice. Plaintiff appealed and on appeal, this Court affirmed the trial court’s granting of the exception. Farrar v. Certified Coatings of California, Inc., 09-920 (La.App. 5 Cir. 3/23/10) 38 So.3d 940. The plaintiff did not file an application for writs with the Louisiana Supreme Court.

In case no. 619-325, originally filed in Jefferson Parish, plaintiff requested service on the defendants for the first time on August 12, 2009. There was no other activity in this case between the date of filing of the petition, April 15, 2005, and August 12, 2009, when service of the petition was requested. On August 31, 2009, defendants filed an exception of insufficient service of process because more than ninety days had elapsed between the filing of the petition and request of | ^service on defendants. On September 30, 2009, defendants also filed an ex parte motion to dismiss for abandonment asserting that there had been no steps taken between April 15, 2005 and July 31, 2009, which is more than three years, so the matter was abandoned. On September 30, 2009, the trial court signed an ex parte order dismissing the action as abandoned.

On October 14, 2009, plaintiff filed a motion to set aside order of dismissal arguing the trial court incorrectly granted the ex parte order of dismissal on September 30, 2009. On December 8, 2009, the trial court held a hearing on the defendants’ peremptory exception of improper service and the plaintiffs’ motion to set aside order of dismissal based on abandonment. The trial court granted the exception of improper service and denied the motion to set aside order of dismissal in open court. A written judgment was signed by the trial court on January 6, 2010. The trial court granted the exception of improper service because plaintiffs did not request service within ninety days of filing of the petition, as required by LSA-C.C. art. 1201(C). The trial court found the five year abandonment period for cases delayed by Hurricane Katrina, pursuant to LSA-C.C.P. art. 561(A)(2) did not apply. The trial court applied the three year abandonment period of LSA-C.C.P. art. 561(A)(1) and found this matter to be abandoned because the plaintiffs did not take a step in the prosecution of this case for over three years, between April 15, 2005 and August 12, 2009.

Plaintiff now appeals the trial court’s granting of the exception of improper service and the denial of the motion to set aside order of dismissal. In response, defendant, the State of Louisiana, filed an exception of res judicata in this Court. For the following reasons, we deny defendant’s exception of res judicata and affirm the trial court’s judgment granting the exception of improper service and denying the motion to set aside order of dismissal.

| ^PEREMPTORY EXCEPTION OF RES JUDICATA

Defendant, the State of Louisiana, files this exception of res judicata asserting that the petition and appeal in this case should be barred because the trial court granted an exception of prescription and dismissed all claims by plaintiff in case no. 666-747 and this Court affirmed that dismissal on appeal. The State contends case no. 666-747 involves the same issues, same parties, and is the same cause of action as case no. 619-325, currently before this Court on appeal, therefore is it barred by res judicata.

The petition in this case, case no. 619-325, is identical to the petition in case no. 666-747, originally filed in Orleans Parish and transferred to Jefferson Parish. Once the petition was transferred to Jefferson Parish, the two lawsuits were not consolidated and they were each assigned to different divisions. The basis for the exception of prescription filed in case no. 666-747 was whether or not the plaintiff had requested service on defendants within one year of the filing of the suit originally in Orleans Parish. The trial court granted the exception of prescription finding the plaintiffs did fail to serve defendants within one year of filing the petition. The appeal to this Court from that judgment specifically addressed the timeliness of service of the petition in case no. 666-747. The case currently before this Court on appeal addresses the petition filed in case no. 619-325. While there are issues to be determined regarding timeliness of service of the petition in case no. 619-325, these issues are not barred by res judicata based on any judgment regarding service of the petition in case no. 666-747. Although the cases involve the same issues, same parties, and is the same cause of action, the decisions previously made by the trial court or this Court regarding procedural issues in case no. 666-747, do not bar this appeal concerning procedural issues in case no. 619-325. Accordingly, the peremptory exception of res judicata is denied.

\ .DISCUSSION

On appeal, the plaintiff argues this lawsuit should not be considered abandoned. She asserts she is entitled to a five year abandonment period pursuant to LSA-C.C.P. art. 561(A)(2), rather than a general three year period of abandonment provided for in LSA-C.C.P. art. 561(A)(1), because Hurricane Katrina caused the delay in prosecuting this case. The lawsuit was filed April 15, 2005, therefore, the plaintiff contends this matter would not be deemed abandoned until April 15, 2010.

La. C.C.P. art. 561 provides, in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years, unless it is a succession proceeding:

Plaintiffs suit was filed April 15, 2005 and service of the petition was not requested at that time. No other filings or steps were taken in this case until more than four years later, on August 12, 2009, when plaintiff did request service of the petition on defendants.

The plaintiff contends the delay in prosecuting this case was a direct result of Hurricane Katrina. She asserts both her attorneys were forced to relocate from New Orleans. One returned in December 2007 and the other continues to reside outside of New Orleans. Plaintiff presents the affidavits of her two attorneys which stated Hurricane Katrina caused their homes to be destroyed, caused a | sdisruption in their personal and professional lives, and caused them to be unable to locate plaintiff until December 2007.

In its ruling denying plaintiffs motion to set aside, the trial court pointed out that the Jefferson Parish court system was open in October 2005. LSA-C.C.P. art. 561(A)(2) provides that the failure to take a step in the prosecution or defense of a case must be a direct result of Hurricane Katrina. We find the plaintiff has failed to prove the delay of over three years is directly related to Hurricane Katrina. The courts of Jefferson Parish were open and, even considering that plaintiffs attorneys could not locate her until December 2007, she had no other cause for delay in taking a step in the prosecution of her case before April 16, 2008. Further, while there were no steps taken in case no. 619-325, originally filed in the Twenty-Fourth Judicial District Court, the plaintiff continued to pursue the case filed in Orleans Parish Civil District Court. On March 20, 2007, the plaintiff filed a Second Supplemental and Amending Petition. The plaintiff then filed oppositions to defendants’ exceptions on April 4, 2007 and November 29, 2007. Additionally, the plaintiff participated in a hearing on April .13, 2007. The plaintiff actively opposed the change of venue from Orleans Parish to Jefferson Parish, but at the same time chose not to proceed with the Jefferson Parish ease until July or August 2009. Hurricane Katrina was not the cause for any delay in pursuing the Jefferson Parish case, just as she pursued the case originally filed in Orleans Parish.

Therefore, we agree with the trial court and find the special provisions of LSA-C.C.P. art. 561(A)(2), which provide for a five year abandonment period, do not apply in this case because the plaintiff has not proven that the failure to take a step in the prosecution of this particular lawsuit was caused by or a direct result of Hurricane Katrina. We find the general three year abandonment period of LSA-C.C.P. art. 561(A)(1) applies. Therefore, we find the trial court correctly | dismissed this suit as abandoned and correctly denied plaintiffs motion to set aside order of dismissal.

Plaintiff also argues on appeal that the trial court confused the issue of abandonment with a dismissal for improper service. Plaintiff argues the trial court dismissed this matter without prejudice for improper service under LSA-C.C.P. art. 1201(C) not under LSA-C.C.P. art. 561, with prejudice. At the hearing on December 8, 2009, the trial court addressed both the motion filed by plaintiff and the exception filed by defendants. Following the hearing, the trial court denied the motion to set aside order of dismissal, maintaining the original order of dismissal as abandoned, and granted defendants’ exception of improper service. Although the trial court did discuss the two issues together when ruling from the bench, the trial court’s judgment indicates a separate ruling on the motion and the exception. Thus, we find no merit to plaintiffs argument on appeal. The trial court found the matter had been properly dismissed as abandoned pursuant to LSA-C.C.P. art. 561, and found the plaintiff had not properly served defendants, pursuant to LSA-C.C.P. art. 1201(C). Therefore, we find the trial court properly ruled on both issues without confusion and we affirm the trial court’s judgment.

We also find the trial court correctly granted defendants’ exception of improper service. When the plaintiff filed her petition in the Twenty-Fourth Judicial District Court in this case, she specifically requested that service be withheld on all defendants. LSA-C.C.P. art. 1201(C) provides that service of the citation shall be requested on all named defendants within ninety days of commencement of the action. Plaintiff did not request service on defendants until more than three years after filing the petition, which is clearly past the ninety days provided for by the statute. Therefore, we find the trial court correctly granted defendants exception of improper service.

1 ^Accordingly, the judgment of the trial court denying plaintiffs motion to set aside order of dismissal and granting defendants’ exception of improper service is affirmed.

AFFIRMED; EXCEPTION DENIED