author: JAMES F. McKAY, III, Judge.

text:
    STATE of Louisiana v. Sean FRANKLIN.
    No. 2010-KA-0792.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 2011.
    Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Brad Scott, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Louisiana for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge, JAMES F. McKAY III, Judge, ROLAND L. BELSOME).
   JAMES F. McKAY, III, Judge.

^STATEMENT OF CASE

By a bill of information filed on January 22, 2004, the defendant was charged with possession of cocaine. On the day of his scheduled arraignment, he tested positive for drugs and supplied a false sample; the defendant was held in contempt of court, and he was sentenced to serve thirty days in parish prison. The defendant was arraigned on March 8, 2004, and he entered a not guilty plea. He tested positive for drugs again on November 18, 2004; he was placed in contempt of court; and he was ordered to pay a $500.00 fine. On January 24, 2005, the district court found probable cause and denied the motion to suppress the evidence. The defendant’s trial on March 7, 2005, ended in a mistrial. On March 29, 2005, the defense filed a motion to quash on the grounds of double jeopardy. The motion was denied by the district court on April 20, 2005. The defense noted its intent to appeal, but later informed the court that it would not appeal. Defendant’s trial that was scheduled for August 31, 2005, did not occur because of Hurricane Katrina. He failed to appear for pretrial conferences that were scheduled on April 13, 2006, May 16, 2006, and August 2, 2006. On August 2nd, the defendant’s bond was forfeited, and an alias capias was issued for his arrest. He was arrested on January | ¾5, 2010. On February 5, 2010, the defense filed a motion to quash that was granted on March 12, 2010. The State appeals this ruling.

STATEMENT OF FACT

The facts of this case are unknown and irrelevant to the issue presented.

DISCUSSION

In its appeal, the State argues that the district court erred in granting the defendant’s motion to quash because proof of service appears in the record in satisfaction of La.C.Cr.P. art. 579. The defendant’s motion to quash was based on his argument that the State failed to bring him to trial within the time limitations set forth in La.C.Cr.P. art. 578.

As per Article 578, the State had.two years from the institution of prosecution in which to bring the defendant to trial. Here, prosecution was instituted on January 22, 2004. The defendant’s trial that was timely held on March 7, 2005 ended in a mistrial. Pursuant to La.C.Cr.P. art 582, the State had until March 7, 2006 to commence trial after the mistrial was declared. Hurricane Katrina interrupted the defendant’s proceedings on August 29, 2005. La.C.Cr.P. art. 579(2); State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, writ denied, 2007-1339 (La.1/7/08), 973 So.2d 733 (finding Hurricane Katrina was a cause beyond the control of the state for purposes of La.C.Cr.P. art. 579). The interruption caused by the hurricane ended on June 5, 2006, and the time limitation established by La.C.Cr.P. art. 578 began to run anew. State v. Hamilton, 2007-0582 (La.App. 4 Cir. 11/28/07), 973 So.2d 110. Thus, at this point, the State had until June 5, 2008, to bring the defendant to trial.

The State’s argument on appeal is that the defendant’s failure to appear for the pretrial hearing scheduled for August 2, 2006 again interrupted the two year |stime period established by La.C.Cr.P. art. 578, citing La.C.Cr.P. art. 579. Article 579 provides in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

The State admits that no subpoenas are contained in the record. However, as proof that the defendant received actual notice, the State relies on the minute entry of August 2, 2006 and the fact that counsel appeared at all of the scheduled hearings. The minute entry of August 2, 2006 reflects that the defendant failed to appear; a capias was issued for his arrest; and a bond forfeiture hearing occurred; the evidence introduced by the State at the hearing included the bond and a subpoena to the defendant. The district court granted the motion for bond forfeiture. The State argues that because judgments of bond forfeiture enjoy a presumption that the evidence upon which they are based is sufficient, this presumption proves that the defendant received actual notice of the pretrial hearing. As such, the State contends that the two-year time limitation began to run anew upon the defendant’s arrest on January 5, 2010. We disagree.

As the defendant correctly points out in his brief, service on his attorney does not affirmatively prove that he received actual notice as required by La.C.Cr.P. art. 579. The State’s remaining argument also appears unpersuasive when compared to the case law.

| .¡Whenever a defendant moves to quash the charge against him due to a violation of the time limits of article 578, the State bears the burden of showing that an interruption under article 579 occurred. See State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284; State v. Bobo, 2003-2362 (La.4/30/04), 872 So.2d 1052; State v. Taylor, 439 So.2d 410 (La.1983); State v. Mattox, 96-1406 and 96-2370 (La.App. 4 Cir. 12/10/97), 704 So.2d 380.

In State v. McCord, 98-2924 (La.App. 4 Cir. 2/3/99), 727 So.2d 1262, the State argued that the defendant’s failure to appear for his arraignment provided a sufficient interruption of the time limit to commence trial. Similar to this case, the trial court had issued a capias for the defendant’s arrest when he failed to appear for his arraignment, and the State relied upon the issuance of the capias to show an interruption in the time limit. The trial court accepted the State’s argument and refused to quash the bill. In a writ of review, this Court reversed the trial court’s decision, noting that although the State argued that the defendant did not appear for arraignment in September 1990, it presented no evidence to show that the defendant was notified of this arraignment date. La. C.Cr.P. art. 579 requires that the State show proof of actual notice to appear. Here, the State presented no such proof. McCord, p. 3, 727 So.2d at 1264.

In the case at hand, the only evidence of any notice to the defendant is the August 2nd minute entry reflecting that a subpoena to defendant was filed into evidence at the bond forfeiture hearing. However, the record does not contain any subpoenas or certified mail return receipts which would indicate that the 1 .^defendant actually received notice of the scheduled pretrial hearing on August 2, 2006, the date the court ordered the defendant’s recognizance bond forfeited. Also, at the motion to quash hearing, the State made no attempt to delay a ruling on the motion so that it might locate the missing subpoena. In light of the total absence in the record of any evidence that the defendant received the subpoena noted in the minute entry of August 2, 2006, the State failed to meet its burden of showing an interruption of the prescriptive period. Thus, the trial court did not commit error when it quashed the bill of information.

CONCLUSION

For the above and forgoing reasons we affirm the trial court’s ruling granting the defendant’s motion to quash.

AFFIRMED.

      . At the motion to quash hearing, the district court indicated that it would not have issued a capias unless the defendant received service.

      . In his brief, the defendant cites the case of State v. McCreary, 619 So.2d 755 (La.App. 4 Cir. 1993), for the premise that service regarding bond forfeiture hearings is different from Article 579 service because at bond forfeiture hearings, the State does not have to prove that the defendant actually received the notice attempted on him. However, McCreary concerns only whether the defendant received notice of the bond forfeiture hearing.

      .Under La.C.Cr.P. art. 735, types of service, subpoenas are to be served by "domiciliary service, personal service, or United States mail as provided in Paragraph B.” Domiciliary and personal service require delivery by the sheriff to the addressee or to someone of appropriate age and discretion residing at the addressee's dwelling. Under Paragraph B, subpoenas may be sent by certified mail with return receipt requested or by first class mail. Section three of Paragraph B sets out the requirements; it states:
      Service by mail shall be considered personal service if the certified return receipt or the return form is signed by the addressee. Service by mail shall be considered domiciliary service if the certified return receipt or the return form is signed by anyone other than the addressee.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge. BELSOME, J.,

license: Public Domain

text:
    Lillie M. COTTON and Clarence Williams v. Robert L. WILLIAMS d/b/a Robert L. Williams Construction.
    No. 2010-CA-1382.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 2011.

      M.H. Gertler Louis L., Gertler Leola M., Anderson Gertler, Law Firm, Orleans, Louisiana, for Plaintiff/Appellant, Clarence Williams.
    Richard E. King, Cherrell R. Simms, Galloway Johnson Tompkins Burr & Smith, New Orleans, Louisiana, for Defendant/Appellee, Assurance Company of America.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

liThe plaintiff, Clarence Williams, appeals the trial court’s maintaining of an exception of prescription filed by the defendant, Assurance Company of America. We affirm.

FACTS AND PROCEDURAL HISTORY

On April 26, 2006, Clarence Williams entered into a contract with Robert Williams, d/b/a Robert Williams Construction, for repair work on his home on Annette Street in New Orleans. Assurance Company of America issued a builder’s risk policy, effective March 31, 2006, to Robert Williams Construction for the construction of a new home located at 4826 Annette Street. This policy was cancelled on April 12, 2006, at the request of the insured. Assurance never received any premium for this policy.

It appears that the work done on the property on Annette Street was not satisfactory and was never completed. Therefore, Clarence Williams filed a | petition for rescission of contract, restitution and attorneys’ fees against Robert Williams Construction on July 29, 2008. On March 5, 2010, the plaintiff filed a supplemental and amending petition naming Assurance as a defendant. Assurance filed exceptions of prescription and no right of action. The trial court denied the exception of no cause of action but granted the exception of prescription. It is from the granting of this exception that Clarence Williams now appeals.

DISCUSSION

On appeal, the plaintiff raises the following assignment of error: the trial court erred by granting Assurance’s exception of prescription because Assurance and Robert Williams Construction are solidary ob-ligors.

“[A] trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 2006-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231. Furthermore, a plaintiff bears the burden of proving that a solidary relationship exists to interrupt or suspend prescription. See Younger v. Marshall Industries, Inc., 618 So.2d 866 (La.1993).

In the instant case, Assurance issued a builder’s risk policy to Robert Williams Construction for the construction of a new home at 4826 Annette Street. The policy had an effective date of March 31, 2006 to March 31, 2007 but was |scancelled by the insured on April 12, 2006. The plaintiff was not a party to the contract nor was he named as an additional insured.

By Louisiana statute, the standard prescription period for damages to immovable property is one year from the date the owner knew or should have known about the damage, unless extended by law or contract. La. C.C. art. 3493. In the instant case, any alleged property damages would have had to occur within the effective dates of the policy or at the very latest, March 31, 2007. However, the original petition against Robert Williams Construction was not filed until July 29, 2008. Being that the plaintiff was not a party to the contract nor a third party beneficiary, his claim against Assurance is prescribed on its face.

Once it is proven that the prescriptive period elapsed between the time the tort occurred and the filing of suit, the burden shifts to the plaintiff to prove an interruption or suspension of prescription. Strata v. Patin, 545 So.2d 1180, 1189 (La. App. 4 Cir. 6/8/89). The appellant asserts solidary liability in attempt to defeat prescription. However, there are two problems with the plaintiffs assertion. First, the policy at issue is a first-party property policy and does not provide coverage for the liability of Williams Construction. Second, the plaintiffs cannot prove that a solidary relationship existed between the defendants because Assurance was not the insurer during the time period of the alleged damages. Even if the defendants were solidary obligors, the lawsuit filed on March 5, 2010 adding Assurance was untimely because any claims against it had already prescribed at the time the | ¿original petition was filed on July 29, 2008, thus prescription could not be interrupted.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s maintaining of the defendant’s exception of prescription.

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

hi concur in the result reached by the majority, but write separately to further discuss the cancellation of the builder’s risk policy. The trial court found, and the majority agreed, that the builder’s risk policy was cancelled by the insured, Robert Williams, on April 12, 2006. The plaintiff, who was neither a party to the contract nor named as an insured, did not enter into an agreement with Robert Williams until April 26, 2006. Accordingly, no solidary liability can exist if Assurance was not the insurer during the time period of alleged damages.

The record contains a document entitled “Cancellation Request/Policy Release,” dated April 12, 2006, and signed and dated by both the insured, Robert Williams, and the insurance agent that same date. This written notice by the insured was sufficient to constitute valid cancellation of the policy. See Forston v. Williams, 518 So.2d 14 (La.App. 4th Cir.1987)(holding that insured’s signature on “Policy Change Request” form was sufficient to effect cancellation); Erdey v. Progressive Security Insurance Company, 2009-1115 (La.App. 1 Cir. 12/23/09), 31 So.3d 417 (holding that insured’s verbal request via telephone to cancel policy was sufficient to effect cancellation under La. R.S. 22:885). Furthermore, as the | {¡majority acknowledges, no premium was ever received by Assurance for the policy.

This case presents an extremely troubling set of circumstances. Although the plaintiff was not listed as an insured on the policy, the certificate of insurance Robert Williams displayed to the plaintiff listed the plaintiffs address. While the builder’s risk policy would not have provided liability coverage, the plaintiff homeowner acted responsibly by confirming that Robert Williams had what the plaintiff had reason to believe was a valid insurance policy at the time he entered into the agreement on April 26, 2006. Under the limitations of our current case law and statutory scheme, we are bound by the legally correct determination reached by the majority.

      . Lillis M. Cotton also filed suit against Robert Williams Construction. Her suit has been settled.

      . This Court also acknowledged that an insurer is required to give an insured notice before canceling a policy in order to allow the insured an opportunity to obtain alternate coverage. Forston, 518 So.2d at 16; see also 2 Couch on Insurance § 32:3 (3rd Ed.2010).

      . See also Gandy v. United Services Auto. Association, 97-1095 (La.App. 5 Cir. 10/14/98), 721 So.2d 34 (holding that either some kind of written notice or surrender of the policy by the insurer effects cancellation).


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

text:
    Kenneth H. LOBELL v. Cindy Ann ROSENBERG.
    No. 2010-CA-0983.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 2011.

      Matthew L. Pepper, Charles Rice, The Woodlands, TX, for PlaintifRAppellant.
    James Derbes, New Orleans, LA, for 2025 Canal Street, L.L.C.
    Harry Rosenberg, Phelps Dunbar LLP, New Orleans, LA, for The Rosenbergs.
    Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME.
   MAX N. TOBIAS, JR., Judge.

|tThe plaintiff, Kenneth Lobell, appeals from a judgment of the trial court that granted a declinatory exception of lack of personal jurisdiction filed by defendant, Craig Rosenberg. We also note that the trial court granted a peremptory exception of no cause of action in favor of defendants, Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, and Carla Rosenberg Waggoner, but the plaintiff did not assign this as an error or discuss the issue. For the reasons that follow, we reverse the judgment of the trial court and remand the matter for further proceedings.

This proceeding centers around the lease of a 44,000 square foot office building located on Canal Street in New Orleans, Louisiana. The lease of the premises dates back to January 1957. The individual defendants (hereinafter, “Rosenberg Heirs” inherited their interests in the property from Simon Rosenberg and Herman H. Rosenberg.)

|2Mr. Lobell decided to assume the lease obligations of the tenant from one of his business partners in 1997. The property is now owned by 2025 Canal St., L.L.C., a Louisiana limited liability company, to which the Rosenberg Heirs transferred their interests after the lawsuit began.

Mr. Lobell contends that after he assumed the lease, he performed over $1,100,000 in improvements to the property over the course of his tenancy. In order to make those improvements, Mr. Lobell took out several loans that were made specifically for improving the property; the lending institutions that made the loans were made additional insureds on the plaintiffs casualty policy for the premises. This insurance coverage was in fact a condition precedent in order to get the improvement loans for the premises. All of this was agreed to and ratified by the Rosenberg Heirs.

In the two years following Hurricane Katrina, Mr. Lobell alleges that he suggested to the defendants that, due to depressed economic conditions in the city and in order for all parties to be able to recoup their investment, they might consider a sale of the building and release of the lease. Although the defendants had never notified Mr. Lobell of any breach of the lease contract, as required by the lease, he avers that the defendants “deliberately misled” him through a series of friendly e-mails over the course of a year representing that they were interested in working out a deal, without acknowledging his right to recoup his million dollar plus investment in the property upon the sale of the premises. The defendants then sent Mr. Lobell a letter of default on the lease on or about 28 December 2007, | ¡.which he did not receive until 15 January 2008. Mr. Lobell claims that he responded, tendering all past due rent as the lease provided a 30-day cure provision. He also offered a complete explanation as to the other allegations of breach claimed by the defendants.

Mr. Lobell further alleges that the defendants refused to accept the rents without valid reason and took possession of the property, making it impossible for him to cure under the 30-day provision of the lease. Further, they made demand for the insurance proceeds paid by the insurer for the casualty to the improvements, which he had used to pay back the bank and repair the perimeter damage to the premises acknowledged by the insurance claim. Accordingly, Mr. Lobell contends that he was wrongfully evicted and now seeks damages therefor, breach of contract, and loss of his investment in the property.

Finally, Mr. Lobell argues that after suit was filed, the Rosenberg Heirs formed 2025 Canal St., L.L.C. and “allegedly” transferred all their interest to it “in a vain attempt to avoid individual and personal liability for their actions.”

The defendants agree that, as a result of Hurricane Katrina, the property was severely damaged. They claim that Mr. Lo-bell, as the tenant, had obligations to maintain insurance coverage in favor of the landlord for damage to the premises, and concomitantly, had obligations to restore the structures after its damage from Hurricane Katrina. They allege that Mr. Lo-bell received approximately $2.2 million in insurance proceeds. After using a portion of the insurance proceeds to pay his personal obligations, Mr. Lobell pocketed most of the money; he used |4about $400,000 to make repairs to the building, although estimates provided by Mr. Lo-bell’s insurer placed that cost at approximately $3.1 million.

The defendants maintain that besides failing to properly spend the insurance proceeds for the purpose for which they are intended, Mr. Lobell also failed to (a) pay rent, (b) pay property taxes, (c) secure the building despite repeated demands by the landlord, and (d) keep the building and improvements in good order and condition. Subsequently, the city of New Orleans issued a notice indicating that the property could be condemned.

In response to the lawsuit, Craig Rosenberg filed a declinatory exception of lack of personal jurisdiction, while he, Ricky Rosenberg, Harry Rosenberg, and Carla Rosenberg Waggoner filed peremptory exceptions of no cause of action consistent with La. C.C.P. arts. 925 and 927. After briefing and argument, the trial court maintained the exceptions and rendered judgment on 18 March 2010. Mr. Lobell erroneously filed a notice of intent for supervisory writs on 29 March 2010. We recognized the procedural error and converted his writ application into an appeal.

This court reviews a trial court’s dismissal of a claim of lack of personal jurisdiction de novo. See Walker v. Super 8 Motels, Inc., 04-2206, p. 4 (La. 4 Cir. 12/7/05), 921 So.2d 988, 986. The party seeking to invoke personal jurisdiction bears the burden of establishing such jurisdiction exists. This burden is satisfied | supon a prima facie showing that jurisdiction is appropriate, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La.1991).

Our authority to exercise jurisdiction over a non-resident defendant is authorized by the Louisiana Long-arm Statute, La. R.S. 13:3201. This authority is limited by the due process requirements of the Fourteenth Amendment. U.S.C.A. Const. Amend. 14; La. R.S. 13:3201. The due process test was first established by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Two prongs of the due process test must be satisfied before personal jurisdiction can be exercised. Id. First, the nonresident defendant must have “minimum contacts” with the forum state; and second, the exercise of personal jurisdiction in the forum state must not violate the basic notions of “fair play and substantial justice.” When applying the test the quality and nature of the activity must be considered. See id.

In order for a plaintiff to satisfy its burden of proving minimum contacts with the forum state, he must show that the defendant purposefully availed itself of the laws and protections of the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Once the plaintiff demonstrates that minimum contacts with the forum state exists, “ ‘a presumption of reasonableness of jurisdiction arises’ and ‘the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.’ ” Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126, p. 6 (La.4/13/99), 731 So.2d 881, 886, citing de Reyes, supra, 586 So.2d at 107 (La.1991).

In general, a question of personal jurisdiction is a factual determination that must be weighed on a case by case basis. No clear-cut rules or a set jurisdictional formula exist that can be applied in determining whether personal jurisdiction conforms to the notion of “fair play and substantial justice.” See Burger King, supra.

La. R.S. 13:3201 provides in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
[7B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States. [Emphasis supplied.]

In its answer to the petition and second amended petition, 2025 Canal St., L.L.C., stated:

It is admitted that on March 28, 2008, when the Petition was filed, Cindy Rosenberg was an owner and lessor of the premises located at 2025 Canal St., New Orleans, Louisiana 70119 (hereinafter “the Property”). The remaining owners and lessors of the property at that time were Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, Lenore Rosenberg Bramlett, Ann Rosenberg Silbermann, Carla Rosenberg Waggoner, Paige Rosenberg Hirsch-kopf, Rosalie Rosenberg Samuelson, and Larry Rosenberg. All owners-lessors transferred the entirety of their respective interests to defendant, 2025 Canal St., L.L.C., by instruments filed for the record in the Conveyance Office, Orleans Parish, on May 30, 2008. At the time of the filing of this Answer, the owner of the Property is 2025 Canal St., L.L.C. [Emphasis supplied.]

Thus, at all pertinent times, the defendants admit that they owned an interest in the subject property, and as lessors, were transacting business in this state. We do not find that the exercise of personal jurisdiction over the out-of-state heirs violates the basic notions of fair play and substantial justice. Therefore, the court erred when it granted the declinato-ry exception of lack of personal jurisdiction in favor of Craig Rosenberg.

We note that Mr. Lobell did not address the exception of no cause of action that was granted in favor of Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, and Carla Rosenberg Waggoner. Although it was a part of the judgment from which Lobell appealed, no party addressed the issue in their briefs. We note that, pursuant to La. C.C.P. art. 927 B, the failure to disclose a cause of action or a right |sor interest in the plaintiff to institute a suit may be noticed by either the trial or appellate court on its own motion. In this matter, it is the reverse: we are noticing the presence of a cause of action; this is permitted by La. C.C.P. arts. 2129 and 2164, the latter of which mandates the appellate court “render any judgment which is just, legal, and proper upon the record on appeal.” Finally, Mr. Lobell appealed from the entire judgment signed by the trial court on 18 March 2010. Consequently, we are addressing the issue by relying on the arguments made before the trial court and without further briefing from the parties.

In the trial court, the Rosenberg Heirs argued that Mr. Lobell did not have a cause of action against them individually because they had all transferred their respective interest in the property to 2025 Canal St., L.L.C. They further argue that the petition fails to state material facts sufficient to withstand an exception of no cause of action. Thus, they argue that Mr. Lobell’s only cause of action exists against the limited liability company. In return, Mr. Lobell maintained that (a) the limited liability company was formed after suit was filed and was done solely to insulate the Rosenberg Heirs from personal liability, and (b) he had asserted individual causes of action against the Rosenberg Heirs long before the existence of the limited liability company. We agree with Mr. Lobell.

We cannot say why the Rosenberg Heirs formed the limited liability company. However, it was done after the lawsuit was filed, and the Rosenberg Heirs admit that they were the joint owners and lessors of the property when this litigation began. The limited liability company is a necessary party to the lawsuit; it has intervened and is thus a party to the litigation.

No written reasons were issued by the trial court when it granted the exception of no cause of action. Thus, we cannot know why the trial court granted | ¿the exception. The trial court must permit Mr. Lobell the opportunity to amend his petition to state a cause of action within a reasonable period of time if the grounds for the exception may be removed. See La. C.C.P. art. 934.

Based on the foregoing, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

REVERSED: REMANDED.

BELSOME, J., concurs with reasons.

BELSOME, J., concurs with reasons.

hi concur in the result reached by the majority, but write separately to acknowledge the peculiar fact pattern in this case. The petition was filed on March 28, 2008, and 2025 Canal St., L.L.C. was not formed until May 80, 2008. On June 25, 2008, 2025 Canal St., L.L.C., intervened in the lawsuit. As the majority notes, Appellant asserted causes of action against the Rosenberg heirs individually before the formation of the limited liability company. With respect to exceptions of no cause of action, the Louisiana Supreme Court has held that “pleadings must be construed reasonably so as to afford litigants their day in court, to arrive at the truth, and to do substantial justice.” Kuebler v. Martin, 578 So.2d 113, 114 (La.l991)(citing La. C.C.P. art. 865; Teachers’ Retirement System v. Louisiana State Employees’ Retirement System, 456 So.2d 594 (La.1984); Haskins v. Clary, 346 So.2d 193 (La.1977); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975)). Thus, “[w]hen it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence.” Kuebler, 578 So.2d at 114 (citing Teachers’ Retirement System v. Louisiana State Employees’ Retirement System, supra; Benson v. St. Paul Fire and Marine Insurance Co., 363 So.2d 711 (La.1978)). Accordingly, I agree with the ^majority’s determination to reverse and remand the trial court’s sustaining of the exception of no cause of action.

With regard to the jurisdiction issue, as the majority recognizes, personal jurisdiction may be established over a non-resident who has an interest in immovable property in Louisiana pursuant to La. R.S. 13:3201. The plaintiff plainly demonstrated that Craig Rosenberg, as an individual with an admitted ownership interest in immovable property in Louisiana at the time suit was filed, had minimum contacts with Louisiana. See id. Accordingly, the first prong of the due process inquiry was met.

Turning to the question of whether jurisdiction in this case comports with traditional notions of fair play and substantial justice, the Louisiana Supreme Court has recognized that the burden shifts to the litigant opposing jurisdiction once minimum contacts have been established, de Reyes v. Marine Mgmt. & Consulting, Ltd., 586 So.2d 103, 106 (La.1991). Thus, “the burden of proof and persuasion shifts to the defendant opposing jurisdiction to present ‘a compelling case that the presence of some other considerations would render jurisdiction unreasonable.’ ” Id. (quoting Burger King Corporation v. Rudzewicz, 471 U.S. 462, 477 105 S.Ct. 2174, 2185, 85 L.Ed.2d 528 (1985)). Craig Rosenberg’s assertion that his ownership interest in the subject property at the time the lawsuit was filed was subsequently converted into a “fractional ownership interest in the limited liability company” is insufficient to overcome the presumption that personal jurisdiction is reasonable pursuant to his minimum contacts with Louisiana. Likewise, Craig Rosenberg’s assertion that he does not maintain a bank account, routinely travel to, or conduct business in Louisiana is also insufficient to establish a “compelling case” that would render jurisdiction unreasonable. See id.

      . We note that exceptions of lack of personal jurisdiction and no cause of action were also filed on behalf of defendants, Lenore Rosenberg Bramblett and Rosalie Rosenberg Samuelson, which were set for hearing in March 2010. However, the record before us does not contain a judgment on those exceptions.

      . The Rosenberg Heirs consist of Cindy Ann Rosenberg, Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, Lenore Rosenberg Bramlett, Ann Rosenberg Silbermann, Carla Rosenberg Waggoner, Paige Rosenberg Hirschkopf, Rosalie Rosenberg Samuelson, and Larry Rosenberg.

      . The judgment was final and therefore ap-pealable. La. C.C.P. arts.1911 and 1915.

      . This court has for the most part ceased granting writs of certiorari, the traditional method for addressing writ applications in a fashion similar to an appeal. We do not address here the appropriateness of so doing.


author: JAMES F. McKAY III Judge. MURRAY, J.,

text:
    Yolande BURST and Bernard E. Burst, Jr. v. Darren SCHMOLKE.
    No. 2010-CA-1036.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 2011.

      D. Douglas Howard, Jr., Jonathan C. Pedersen, Lacy M. Smith, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Marc L. Frischhertz, Lloyd N. Frisch-hertz, Jr., Frischhertz & Associates, L.L.C., New Orleans, Louisiana, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III Judge.

hBy way of background, this matter has its origins in a tragic family event, the death of a young mother on September 5, 2005. At the time of the accident L.S., the minor child of Tara Burst Schmolke and Darren Schmolke, was seventeen months old. After Tara’s death, Darren and Yo-lande Burst and Bernard E. Burst, Jr., Tara’s parents (L.S.’s grandparents), shared in the daily responsibilities of caring for L.S. In fact, they lived together for a substantial period of time. As time went on the relationship between the Bursts and Darren Schmolke deteriorated. On April 30, 2008, the Bursts filed a petition for grandparent visitation pursuant to La. R.S. 9:344. A consent judgment was entered into on July 8, 2008, which granted the maternal grandparents visitation rights. Over time the trial court, due to various changes in circumstances, modified the consent judgment. Ultimately, after tumultuous and prolonged legal battles between the parties and changes in Darren Schmolke’s family situation, the matter came to a head on August 4, 2010, when Darren Schmolke, his new wife, Amber, and L.S. moved to Mooresville, the County of Oredell, State of North Carolina, therein establishing a residency. We |¡>note here that notwithstanding numerous modifications by the trial court, the July 2008 consent judgment has remained in full force and effect throughout this entire litigation.

Pertinent to this appeal, on February 11, 2010, Darren Schmolke filed a petition for declaratory judgment in the Orleans Parish Civil District Court, requesting that the trial court declare that it lacks jurisdiction to adjudicate his rights and the Bursts’ rights with regard to visitations with L.S. Darren Schmolke was clearly seeking a determination by the trial court as to which state, Louisiana or North Carolina, had exclusive jurisdiction over the matter. Germane to this issue is the fact that the trial court had modified the consent judgment on September 18, 2009, to accommodate the Schmolke’s move to North Carolina, a significant change in circumstances. Again it became necessary for the Bursts’ family visitations with L.S. to be modified. However, the Bursts continued to have the right to reasonable visitation rights with L.S. during this transitional period.

After carefully reviewing the record in this matter, it is this Court’s position that despite both parties’ efforts to relitigate the entire juridical history of this case each and every time they come to court, this Court will only address the pertinent and instant issues, as established in the record before us. All other matters are surplusage and not material to the appeal before this Court. For this purpose {ad hoc), we must admonish both parties that the best interest of a small child is at the base of this entire litigation not the individual parties personal needs. One wrong does not justify another, injuria non exu-sat injuria.

| ¡¡The Bursts raise numerous assignments of error. As many are repetitive and related, we summarily address some of them, fully consider others, and preter-mit the rest.

In assignment of error IV the Bursts assert that the Consent Judgment provided that Orleans Parish shall retain jurisdiction over this matter should the Schmolke’s move to another state. The record does not reflect that there is a ruling on this issue, therefore the matter is not properly before this court. This assignment of error is without merit.

In assignment of error VI, the Bursts essentially assert that the trial court erred when it failed to communicate with the North Carolina Court. Regarding communication between the courts, La. R.S. 13:1810, states in pertinent parts: (A) A court of this state may communicate with a court in another state concerning a proceeding arising under this Act. (Emphasis added). We And no motion, rule or petition to recognize a judgment of a foreign jurisdiction in the record before this Court. Any communication between the courts is purely discretionary. This assignment of error lacks any reasonable foundation or merit.

In assignment of error VIII the Bursts assert that the trial court erred in excluding pleadings from a prior matter in a foreign jurisdiction, North Carolina. We find no motion, rule or petition to recognize a judgment of a foreign jurisdiction in the record before this Court. This assignment lacks merit.

The Bursts assert in assignment of error IX that the trial court erred in determining that the September 2009 judgment supersedes the July 2008 consent | judgment. As previously stated the consent judgment has continually been modified by the trial court at the behest of all parties. This assignment is superfluous, redundant and lacks merit.

We will first consider the issue of the Bursts’ rule for contempt against Darren Schmolke for his alleged violation of a court determined visitation date scheduled for February 12, 2010, in North Carolina. Secondly, we will address Darren Schmolke’s petition for declaratory judgment which was filed on February 11, 2010.

RULE FOR CONTEMPT

The Bursts assert in assignment of error VIII that the trial court erred in failing to hold Darren Schmolke in contempt of court for denying them a scheduled visitation.

Pursuant to a prior modification of the July 2008 consent judgment and in recognition of the Sehmolkes’ move to North Carolina in August of 2010, the trial court modified the visitation schedule. We again reiterate that although the relevant consent judgment has been modified numerous times throughout this litigation, the substance of the judgment has not been significantly altered. The Bursts continued to have the right to reasonable visitation rights with L.S. during this transitional period, although the details and current situation are not within the privity of this Court as we are a court of record.

The impetus for the Bursts’ rule for contempt is that on October 21, 2009, the Bursts advised Darren Schmolke that they planned to visit L.S. during the | ^weekend of February 12, 2010, which was just one of many pre-determined visitation dates that the Bursts chose to exercise over a six month period. On January, 22, 2010, Mr. Schmolke emailed the Bursts advising them that this was not a convenient time for the requested visitation date because of various factors: his daughter was coming to North Carolina for a visit; his wife, Amber, had that weekend off of work; L.S. was off of school; and finally, he wished to take a short vacation with family to celebrate his birthday and bond as a family. Darren Schmolke offered the Bursts the following weekend as a makeup visitation. The alternate date proved to be unacceptable to the Bursts. Nevertheless, the record indicates that they were given a make-up visitation date.

The Bursts filed a rule for contempt against Darren Schmolke on February 12, 2010, one day after Darren Schmolke had filed his petition for declaratory judgment with the trial court. On March 28, 2010, the trial court heard the Bursts’ rule for contempt and Darren Schmolke’s petition for declaratory judgment. After hearing all of the allegations and arguments from both sides, the trial court found that Darren Schmolke’s actions did not rise to the level of contemptuous behavior and ordered make-up visitation for the Bursts.

Contempt of court is defined in La. Code Civ. Pro. art. 221 as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” There are two types of contempt. A direct contempt is defined in La.Code Civ. Pro. art. 222 as “one committed in the immediate view and presence of the court and of which it |fihas personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” A constructive contempt of court is defined in La.Code Civ. Pro. art. 224 as “any contempt other than a direct one.” Although a district court has discretion to determine whether to find a person guilty of constructive contempt of court, a finding that a person willfully disobeyed a court order in violation of La. C.C.Pro. art. 224(2) must be based on a finding that the accused violated an order of the court “intentionally, knowingly, and purposefully, without justifiable excuse.” Lang v. Asten, Inc., 2005-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454. Moreover, an appellate court should reverse the trial court’s decision only when it finds an abuse of discretion. Baker v. Baker, 42,182, p. 6 (La.App. 2 Cir.6/20/07), 960 So.2d 1264, 1268; Rogers v. Dickens, 2006-0898 (La App. 1 Cir. 2/9/07), 959 So.2d 940.

Based upon the record before this Court, we do not find any abuse in the trial court’s vast discretion in its ruling concerning the Bursts’ rule for contempt against Darren Schmolke. As such, we affirm the trial court’s ruling.

PETITION FOR DECLARATORY JUDGMENT

In our analysis of this issue we aggregate the Bursts’ assignments of errors I, II, III, and VII. The Bursts essentially assert that the trial court erred in concluding that they did not have legal custody of L.S., in finding that the Bursts are not persons acting as parents pursuant to the UCCJEA and PKPA, and in finding that the Schmolke’s were residents of North Carolina at the time of the March 25, 2010 hearing.

|7In his petition for declaratory judgment, Darren Schmolke asserted that the trial court, here in Louisiana, no longer had jurisdiction over the underlying matter, he cited as authority to the Uniform Child Custody Jurisdiction and Enforcement Act(UCCJEA).

As noted above, on February 11, 2010, Darren Schmolke filed a petition for declaratory judgment, arguing that pursuant to the UCCJEA, he and his family were residents of North Carolina and that the Louisiana district court no longer had jurisdiction over the case subjudice.

Louisiana Code of Civil Procedure article 1871 provides in relevant part that “[cjourts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Louisiana Code of Civil Procedure article 1876 provides that “[t]he court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

In this ease, the issue was whether or not the Civil District Court should retain jurisdiction over the case sub judice in light of the Schmolke family’s move to North Carolina on August 4, 2009. A full hearing on the merits of the case was had and the trial court clearly made a factual determination that the Schmolkes do indeed reside in North Carolina. However, the trial court’s judgment is fatally | Ssilent as to whether or not Darren Schmolke established a domiciliary residence sufficient to relieve the trial court of its subject matter jurisdiction. While inherent in its reasons for judgment, the trial court failed to reduce this factual finding that the Schmolkes reside in North Carolina to judgment.

' In the April 6, 2010 judgment, the trial court essentially ignored the petition for declaratory judgment, instead choosing to stay all proceedings “until the North Carolina Court accepts or declines to exercise jurisdiction.” This action has created an untenable stalemate. The trial court inappropriately refrained from granting Darren Schmolke’s petition for declaratory judgment, which would have terminated the uncertainty of all parties thereby paving the way for the courts of North Carolina to inherit the jurisdiction of all matters pertinent to the 2008 consent judgment, in particularly the Bursts’ reasonable visitation rights. As such we pre-termit any discussion of the Bursts’ assignment of error X in which they assert that they were denied visitation on their birthdays and make-up dates.

Nevertheless, based on the pugnacious relationship between all parties, it is improbable that a change in jurisdiction, at this juncture, will terminate the litigious nature of this case.

The Bursts’ assignments of error I, II, III, and VII essentially assert that the trial court erred in failing to find that they had legal custody of L.S., and erred in determining that the Bursts were not persons acting as parents.

The plethora of comparable case law establishes that grandparent visitation rights pursuant to La. R.S. 9:344 do not trump the constitutionally protected | ¡¡fundamental right to privacy in child rearing. The preeminent case in this area is Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Barry v. McDaniel, 2005-2455, p. 10 (La. App. 1 Cir. 3/24/06), 934 So.2d 69, our esteemed colleagues in the First Circuit, referencing Troxel, stated: •

[T]he Troxel court placed particular emphasis upon parents’ constitutionally protected fundamental right to make decisions concerning their children, the presumption that parents act in the best interest of their children, and the failure of Washington statute, or court to give some “material” or “special” weight to the parents’ own determination on the issue of visitation.

Clearly, “any rights to visitations by non-parents are ancillary to that of a fit parent”. Id. p. 10, 934 So.2d at 76.

Arguably, the statute specifically contains the language “visitations,” not custody, which is usually based upon the determination that the parent is in some way unfit. As good as the Bursts’ intentions may be, and as honorable as their desire for L.S to remain an integral member of the entire Burst family, their rights are ancillary to that of the father, Darren Schmolke.

Specifically, in assignment of error I the Bursts aver that based on the language of the August 2008 Consent Judgment, they have periods of “physical custody” of L.S. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control of a child. Shaffer v. Shaffer, 00-1251, p. 3 (La.App. 1st Cir.9/13/00), 808 |10So.2d 354, 356. The Bursts have neither. The language “physical custody” in the consent judgment does not confer custody, nor can it be reasonably interpreted to be any type of legal custody. The language “physical custody” clearly does not comport with either the spirit of the law or letter of the law. This assignment is without merit.

The above analysis relating to the visitation rights of grandparents issue is essentially from an academic perspective. First and foremost, this is not a granting of visitation but the enforcement of a consent judgment whereby all parties collectively agreed that the Bursts would have visitation with L.S. which would be protected in our sister state, North Carolina, by the full faith and credit clause pursuant to U.S.C.A. Const. Art. IV § 1. Secondly, the trial court’s rationale, in its reasons for judgment, is correct. The trial court based its analysis upon La. R.S. 13:1802(13) which defines “a person acting as a parent” as follows:

(a) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right to legal custody under the laws of this state.
§ 1814. Exclusive, continuing jurisdiction
A. Except as otherwise provided in R.S. 13:1816, a court of this state which has made a child custody determination consistent with R.S. 13:1813 or 1815 has exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
In(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
B. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this Section may modify that determination only if it has jurisdiction to make an initial determination under R.S. 13:1813.

The Bursts in their answer to Darren Schmolke’s petition for declaratory judgment asserted that the trial court had continuing jurisdiction over the matter and invoked the UCCJEA and 28 U.S.C. § 1738(d), the Parent Kidnapping Prevention Act (“PKPA”) which provides:

(d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this subsection continues as long as the requirements of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

The trial court, in its well-founded reasons for judgment stated:

Subsection (c)(1) of the statute mandates that this court have jurisdiction over the status for PKPA to even apply. The UCCJA provided that the court could retain jurisdiction if “the child and at least one contestant, have a significant connection with this state.” However, that language was not included when Louisiana adopted the UCCJEA. Therefore, any case relied upon by the Bursts, subsequent to the adoption of the UCCJEA, has no application to this matter. Furthermore, the PKPA does not confer subject matter jurisdiction upon a court. It simply provides that a sister state must give full faith and credit to a custody decree rendered in another state until which time the rendering state no longer has jurisdiction.
In order for the Bursts to take advantage of LSA-R.S. 13:1814, they must be “a person acting as a parent.” The Bursts have neither been awarded legal custody of — [“L.S.”], nor have they had physical custody for “six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding.” Therefore, this court 11?finds that the Bursts simply do not fit the definition of “a person acting as a parent.”
The second part of LSA-R.S. 13:1814 addresses the issue of residency. The court must determine if either Mr. Schmolke or L.S. are Louisiana residents. Mr. Schmolke testified that he has no intention of ever moving back to Louisiana. He and his wife, Amber, have contracted to purchase a home in North Carolina. L.S. is currently enrolled in school in North Carolina. Mr. Schmolke testified that he recently obtained a North Carolina driver’s license. However, he is still registered to vote in Louisiana. The Bursts countered, claiming Mr. Schmolke continues to operate a business in Louisiana and his daughter currently lives in Louisiana. This court believes that Mr. Schmolke and L.S. reside in North Carolina. Mr. Schmolke recently refilled a similar suit in North Carolina. Therefore, this court is going to stay all proceedings until the North Carolina Court accepts or declines to exercise jurisdiction.

It is well settled that with regard to the standard of review of a declaratory judgment action that “[o]n appeal, the scope of appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or refusing to render a declaratory judgment.” Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery Marketplace, 2002-2337, pp. 4-5 (La.App. 4 Cir. 5/7/03) 847 So.2d 674, 677 (quoting In re Peter, 98-0701, p. 4-5 (La.App. 4 Cir. 12/23/98), 735 So.2d 665, 667). See also Miller v. Seven C’s Properties, L.L.C., 2001-543 (La.App. 3 Cir. 11/21/01), 800 So.2d 406; Ricard v. State, 544 So.2d 1310 (La.App. 4 Cir.1989). Moreover, the Louisiana Supreme Court has held that “[tjrial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.” Edgar Benjamin Fontaine Testamentary Trust, p. 5, 847 So.2d at 677-78 (quoting Louisiana Supreme Court Committee on Bar Admissions v. Roberts, 2000-2517, p. 3 (La.2/21/01), 779 So.2d 726, 728).

Based on the above and forgoing, we find that the trial court did not abuse its discretion in denying the Burst’s rule for contempt against Mr. Schmolke.

11sWe also find no error in the trial court’s factual determination that Darren Schmolke and his family reside in our sister state, North Carolina. However, we do find that the trial court erred in failing to rule on the issue of continuing jurisdiction. The actions or inactions of the trial court have brought these proceeding to a halt. Neither Louisiana nor North Carolina can proceed without either a ruling of retention of jurisdiction or relinquishing of jurisdiction. Furthermore, this Court granted a request to supplement the record with information from the North Carolina court. Despite attempts to have Mr. Schmolke’s attorney satisfactorily comply with this order pursuant to Local Rule 24 of the Court of Appeal, Fourth Circuit, we were unable to access the information. As such, we forward the information, a CD, on to the trial court as the information is now a part of the record for its review. Accordingly, we remand the matter to the trial court for the sole purpose to make a decision on the jurisdictional issue. In all other aspects we affirm the judgment of the trial court.

AFFIRMED AND REMANDED IN PART.

MURRAY, J., dissents and Assigns Reasons.

MURRAY, J.,

Dissents and Assigns Reasons.

|TIn my view, the instant appeal presents a simple issue. Before the trial court considered any of the various issues raised by the parties, it was required to determine whether it had jurisdiction to do so. Whether that jurisdiction existed is clearly determined by the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act [“UCCJEA”] as adopted and enacted by Louisiana in La. R.S. 13:1801 et seq. Contrary to the assumption of the majority, that Act is not limited to disputes among parents or “persons acting as parents,” but applies to all disputes regarding child custody and/or visitation except for those specifically excluded. To that end, the “Definitions” provision of the Act states, in pertinent part:

(3) “Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.
(4) “Child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under Subpart C of this Part. 12Thus, a dispute regarding grandparent visitation rights, such as the instant one, qualifies as a “child custody proceeding” under the express terms of the Act.

The Act further provides: “If a question of existence or exercise of jurisdiction under this Act is raised in a child custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.” La. R.S. 13:1807. In the instant case, the parties do not dispute that the Orleans Parish Civil District Court had original jurisdiction, pursuant to La. R.S. 13:1813, to enter the consent judgment in 2008, when the child and Mr. Schmolke still lived in Louisiana. However, on February 11, 2010, Mr. Schmolke filed a Petition for Declaratory Judgment in that court asserting that it no longer had jurisdiction over this matter because he and his child had become legal residents of North Carolina, having moved there in August, 2009. As the majority notes, at the March 25, 2010 hearing, the district court made a factual finding, as indicated in the Reasons for Judgment, that “Mr. Schmolke and L.S. reside in North Carolina.” In doing so the district court referenced La. R.S. 13:1814, which governs continuing jurisdiction, and noted Mr. Schmolke’s testimony that he had no intention of ever moving back to Louisiana. Despite these findings, however, the district court did not rule on the Petition for Declaratory Judgment regarding jurisdiction. Instead, the court denied the Bursts’ Rule for Contempt and then stayed all further proceedings “until the North Carolina Court accepts or declines jurisdiction.”

The district court’s failure to rule on the objection to its subject matter jurisdiction asserted in the Petition for Declaratory Judgment prior to deciding any of the other issues raised was legal error. La. C.C.P. art. 2 defines subject matter jurisdiction as “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the | ¡¡amount in dispute, or the value of the right asserted.” La. C.C.P. art. 3 further provides:

The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.

As recognized by the district court, continuing jurisdiction under the UCCJA is governed by La. R.S. 13:1814, which provides, in pertinent part:

A .... [A] court of this state which has made a child custody determination consistent with R.S. 13:1813 ... has exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

La.Rev.Stat. Ann. 13:1814 (West 2010) (Emphasis added). Because, as the majority finds, neither of the Bursts qualify as a “person acting as a parent” under La. R.S. 13:1802, once the district court had determined that Mr. Schmolke and L.S. resided in North Carolina, it was required to further conclude that it no longer had jurisdiction under La. R.S. 13:1814. Lacking that jurisdiction, the district court had no authority to decide any of the other matters raised, including the Rule for Contempt filed by the Bursts.

Accordingly, on the basis of the record, I would grant Mr. Schmolke’s Petition for Declaratory Judgment, hold that the district court lacked subject matter jurisdiction, and vacate the district court’s judgment as being null and void on that Lground. This disposition would necessarily pretermit all the other issues raised by the parties on appeal.

For these reasons I respectfully dissent from the majority’s partial affirmation and remand of this matter.

      . Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter referred to as the UCCJEA) found in Louisiana Revised Statute 13:1801-1842, which sets forth specific rules regarding the recognition, modification, and enforcement of child custody determinations. This statute applies to international cases as well as domestic cases. The purpose of the UCCJEA is to "provide clearer standards for which States can exercise original jurisdiction over a child custody determination.”

      . The State of Louisiana adopted the UCCJEA in 2006, with an effective date of August 16, 2007. The UCCJA as adopted by Louisiana in Act 513 of 1978 was the first act adopted by all states to address multi-state custody disputes. This act was superseded by the UC-CJEA.

      . We have excluded the name of the child and replaced it with L.S. in this redaction of the trial court’s reasons for judgment.

      . La. R.S. 13:1803 provides that the Act does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

      . Nor do they dispute that the same court had jurisdiction to modify the consent judgment in September, 2009.

      . The statute provides, in .pertinent part: "(13)Person acting as a parent means a person, other than a parent, who: (a) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (b) Has been awarded legal custody by a court or claims a right to legal custody under the laws of this state.”


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana In the Interest of W.H.
    No. 2010-CA-1418.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 2011.

      Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellant, W.H.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hThe juvenile judge adjudicated W.H., a child under seventeen years of age, delinquent for violations of attempted unauthorized entry of a dwelling and of aggravated assault. At the disposition hearing, the juvenile judge committed W.H. to the custody of the Department of Public Safety and Corrections for these felony-grade delinquent acts. W.H. appeals to us. See La. Ch.C. ARTS. 330 B and 337. W.H. assigns two errors: (1) that the evidence is insufficient to support a finding beyond a reasonable doubt that he committed the delinquent acts, and (2) that the juvenile judge erred in denying his pretrial motion to suppress an out-of-court identification.

Because we conclude from a review of the facts and the law that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that W.H. committed the delinquent acts, we determine that the evidence is sufficient for the adjudications. We also conclude that the juvenile court did not abuse its discretion in denying the motion to suppress the identification. Accordingly, we affirm the 12adjudication and disposition. We explain our conclusions in detail in the following Parts.

I

In this Part we explain why we conclude that the juvenile-court judge was not clearly wrong in finding beyond a reasonable doubt that W.H. committed the delinquent acts of attempted unauthorized entry of a dwelling and aggravated assault. In a delinquency-adjudication proceeding, the state must prove all essential elements of the delinquent acts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); La. Ch.C. art. 883.

In Louisiana, the child is constitutionally entitled to appellate review of his adjudication under the manifestly erroneous-clearly wrong standard. See La. Const. ART. 5, § 5, 10, 18 and 19; see also State in the Interest of Batiste, 367 So.2d 784, 789 (La.1979). This is a broader standard than the minimum standard mandated by the federal constitution and memorialized in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State in the Interest of D.R., 10-0405, pp. 12-13 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 934.

The manifest error-clearly wrong standard is well-known. Nolan v. Mabray, 10-373, pp. 9-10 (La.11/30/2010), 51 So.3d 665, 672. We do not disturb a fact-[finder’s-j findings if, after a review of the entire record, we conclude that the findings are reasonable and not clearly wrong. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Especially on matters of credibility, an appellate court affords great deference to a fact-finder’s findings. Id. If, however, “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face,” we might well find manifest error despite a purported credibility determination by the fact-finder. Id. at 845.

In this case, we specially note at the outset that there are no documents or objective evidence. The judge as trier of fact accepted as credible the uncontrovert-ed testimony of the only witnesses: the victim, Luis Ibañez, and an investigating officer, Tamara Woods. Thus, our review is principally directed to determining whether there is sufficient evidence as to each essential element of each of the delinquent acts charged and to determining whether testimony of the witnesses is internally inconsistent or implausible on its face.

A

We first review the charge of attempted unauthorized entry of an inhabited dwelling. “Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” La. R.S. 14:62.3 A. “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward accomplishing his object is guilty of an attempt to commit the offense intended.” |4 La. R.S. 14:27 A. And “it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.” Id. Additionally, “any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime attempted or intended was actually perpetrated by such person in pursuance of such attempt.” La. R.S. 14:27 C; see also La. C.Cr.P. ART. 814(43); see also State v. Little, 01-2218, p. 1 (La.3/28/02), 814 So.2d 547, 548.

The uncontroverted testimony of Mr. Ibañez was that he was at home on the evening of June 22, 2010 when W.H. knocked at his door. W.H. first asked permission to enter the home, which permission Mr. Ibañez refused. W.H. then began to insist on entering the home so that he could smoke marijuana. Mr. Iba-ñez continued to repeatedly refuse entry. W.H. then threatened Mr. Ibañez that he would return and “do something” to Mr. Ibañez. W.H. left the home and returned with a gun, which Mr. Ibañez saw in W.H.’s pants.

On the porch of Mr. Ibañez’s home, W.H. pointed the gun in Mr. Ibañez’s face and demanded to be let into the home. At that point Mr. Ibañez yielded to W.H.’s demand and W.H. entered the home. Once inside the home W.H. was asked by Mr. Ibañez to at least give him the bullets for the gun. W.H. replied, “you’re f-crazy,” and subsequently left Mr. Ibañez’s home. At that point Mr. Ibañez telephoned the police.

Not long after, the police arrested W.H. around the corner from Mr. Ibañez’s home and brought him to Mr. Ibañez, who identified him. He also identified W.H. as the perpetrator during the trial.

|BWe discern no internal inconsistency or implausibility in Mr. Ibañez’s testimony. We cannot find that the judge was clearly wrong in finding beyond a reasonable doubt that each element of attempted unauthorized entry of an inhabited dwelling had been proven. That finding is reasonable.

B

We now review the charge of aggravated assault. Assault is defined as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. One definition of a battery is “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. “Aggravated assault is an assault committed with a dangerous weapon.” La. R.S. 14:37 A. On this charge too there was only the uncontroverted testimony of Mr. Ibañez, which the judge, as trier of fact, accepted as credible.

As we noted earlier, when leaving Mr. Ibañez’s home the first time, W.H. said that he would come back to “do something” to Mr. Ibañez. Upon his return, W.H. put the gun in Mr. Ibañez’s face and “put the clip back.” When he was leaving the second time, W.H., according to Mr. Ibañez, said he wanted to come back and kill him. A reasonable inference for the juvenile-court judge to draw from W.H.’s actions was that W.H. intentionally placed Mr. Ibañez in reasonable apprehension that W.H. intended to use force or violence upon him.

The only point that W.H. raises is that there is no corroboration that a gun was used as none was found by the police or that what may have appeared to be a gun was a non-dangerous toy. Of course, recovery or production of the gun is not | ^essential to a finding beyond a reasonable doubt that W.H. committed an assault with a dangerous weapon. See State v. McNeal, 785 So.2d 957, 970 (2001). What is essential is that a dangerous weapon was used and a “dangerous weapon” includes any “instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2 A(3). As a matter of law, a gun, or firearm, is a dangerous weapon. See State v. Bonier, 367 So.2d 824 (La.1979).

The defense raises the issue that the gun used could be either a toy or an inoperable gun. “The use of an inherently harmless object in a manner that creates circumstances likely to produce death or great bodily harm results in the inherently harmless object being a dangerous weapon within the provisions of La. R.S. 14:2(3) and 14:64.” State v. Levi, 259 La. 591, 250 So.2d 751, 754 (La.1971). In order to find that a toy pistol is a dangerous weapon within the provisions of La. R.S. 14:2(3) and 14:64, the trier of fact must consider the manner in which the defendant used the toy pistol and the effect this use had upon the victim. See Louisiana v. Green, 409 So.2d 563, 565 (La.1982). When considering the first prong, the manner of use, of this two-prong test, the court must decide if “the interaction between the offender and the victim created a highly charged atmosphere.” State v. Kemp, 39, 358, p. 9 (La.App. 2 Cir. 3/11/05), 896 So.2d 349, 357. When considering the second prong, the effect of use, the court must decide if there was a danger of serious bodily harm resulting from the victim’s fear for his life. Id.

|7W.H. argues that a gun was never recovered by the police, and it is therefore possible that it was a toy or inoperable gun so as to be incapable of causing death or great bodily harm, without which he could not be adjudicated delinquent of the charge of aggravated assault. This contention is without merit. The record reflects that W.H. twice pointed the pistol in Mr. Ibañez’s face, and Mr. Ibañez testified that he believed that he was going to be shot. Additionally, contrary to W.H.’s suggestion that the gun could have been a toy, we note that the record contains testimony that he “put the clip back” on the weapon. Therefore, the facts support our conclusion that even if this was a toy or inoperable gun, the manner in which it was used and the effect that it had on Mr. Ibañez was enough to classify it as a dangerous weapon within the language of La. R.S. 14:2(3) and 14:64.

II

In this Part we address the juvenile-court judge’s ruling on the motion to suppress an out-of-court identification of W.H. by Mr. Ibañez.

To prevail on a motion to suppress challenging an out-of-court identification, a defendant has to establish that the identification procedure was suggestive and that there was a substantial likelihood of misidentification. State v. Broadway, 96-2659, p. 13 (La.10/19/99), 753 So.2d 801, 812. In this case, the investigating officers elected to conduct what is known as a one-on-one show up identification. An identification procedure is unduly suggestive if it focuses attention on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Although show up identification procedures are not generally favored in the law, |8they are nonetheless permissible when justified by the circumstances. State v. Woodberry, 95-2402, p. 5 (La.App. 4 Cir. 12/27/96), 686 So.2d 984, 988. However, even a suggestive, out-of-court identification is admissible so long as it is reliable under the totality of the circumstances. State v. Guy, 95-0899, pp. 9-10 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, 523. The identification must have some indicia of unreliability to support suppression. “Even if the identification procedure is found to be suggestive, this alone does not violate due process. Rather, it is the likelihood of misidentification that violates due process, not the mere existence of suggestiveness.” State v. Raines, 00-1941, p. 4 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 639.

The factors set forth in the United States Supreme Court case, Manson v. Braithewaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), are used to determine whether a suggestive procedure presents a substantial likelihood of mis-identification under the totality of the circumstances. Broadway, 96-2659, p. 14, 753 So.2d at 812. These factors include: the witness’ opportunity to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. 2243. In addition to adult criminal matters, this analysis is likewise applicable to juvenile delinquency adjudications. See State in the Interest of C.J., 10-1350, p. 2 (La.App. 4 Cir. 2/9/11), 60 So.3d 46, 2011 WL 565629.

The juvenile-court judge here did not err in denying W.H.’s motion to suppress identification. First, the evidence suggests that W.H. was known to the 19victim. In fact, this evidence formed the basis of the judge’s ruling in denying W.H.’s motion to suppress identification. In denying the motion, the judge stated that the ruling was “[bjased on the testimony presented today, given the totality of the circumstances, which indicates from the testimony of the victim that he did, in fact, know or had prior knowledge of or was familiar with the defendant.” Also, during the incident in question, the altercation between the victim and W.H. was prolonged — W.H. left the victim’s home after the first encounter and returned a second time, forcing himself inside to continue the argument.

W.H. attempts to establish that the identification was unreliable because his clothing at the time of the identification did not match the description given by Mr. Ibañez. W.H. also suggests that the identification was mistaken because Mr. Ibañez did not readily admit that he failed to immediately identify W.H. as his attacker. Mr. Ibañez testified that he first told officers that W.H. was not the perpetrator. However, at the adjudication hearing, Mr. Ibañez explained that he did not immediately identify W.H. as the perpetrator because he was close to the police cruiser in which W.H. was seated, the window of the cruiser was down, and he was scared. Nonetheless, these inconsistencies fail to demonstrate sufficient indicia of unreliability to outweigh the fact that Mr. Ibañez and W.H. were familiar with one another. W.H. has not otherwise pointed to any countervailing evidence to suggest that Mr. Ibañez was mistaken or that his identification, even if it was suggestive, was unreliable.

A trial court’s determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Offray, 00-0959, p. 5 (La.App. 4 Cir. 9/26/01), 797 | in So.2d 764, 769. The juvenile-court judge’s decision to admit the identification evidence in this case was reasonable and not an abuse of discretion.

CONCLUSION

Accordingly, we find that there was sufficient evidence to support W.H.’s delinquency adjudication for the offense of attempted unauthorized entry into an inhabited dwelling. Notwithstanding W.H.’s suggestion that the pistol used during commission of the offense may have been a toy gun, we find that the evidence was sufficient to support W.H.’s delinquency adjudication for the offense of aggravated assault. Finally, we find no abuse of discretion by the court below in finding that Mr. Ibañez’s identification of W.H. was admissible. W.H.’s disposition and adjudications of delinquency are affirmed.

DECREE

We affirm W.H.’s adjudications for the offenses of attempted unauthorized entry into an inhabited dwelling and aggravated assault.

AFFIRMED.

      . See La Ch.C. art. 804(1).

      . See La. Ch.C. arts. 804(5) and 897 D. Execution of the commitment was suspended and the child was placed on active probation. See La. Ch.C. arts. 897 A(3) and 901 D. The juvenile court denied the Office of Juvenile Justice’s request that disposition be deferred. See La. Ch.C. art. 896.

      .We have also conducted a review for errors patent and have not identified any. See La. Ch.C. art. 803 and La.C.Cr.P. art. 920(2).

      . The Jackson sufficiency-of-evidence standard is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt” Jackson, 443 U.S. at 307, 319, 99 S.Ct. 2781 (1979). This standard tests the evidence against a hypothetical rational trier of fact and all evidence, whether admissible or not, is considered. See State v. Jackson, 09-2406 (La. 1/19/11), 55 So.3d 767, 771 ("To the extent that Jackson announced an objective standard for reviewing the sufficiency of the evidence from the perspective of a hypothetical rational, pro-prosecution trier of fact, the decision 'does not require scrutiny of the reasoning process actually used by the factfinder — if known,’ ” (quoting Jackson, 443 U.S. at 319, n. 13, 99 S.Ct. 2781)). We note that because of our disposition of W.H.’s second assignment of error, we need not address whether inadmissible evidence must be considered in a sufficiency-of-evidence review under the manifestly erroneous standard.