author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Neyland Trivel TURNER, Jr., Appellant.
    No. 46,683-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Rehearing Denied Jan. 19, 2012.

      Louis Granderson Scott, for Appellant.
    Neyland Trivel Turner, Jr., Pro Se.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Madeleine M. Slaughter-Young, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| defendant, Neyland Turner, pled guilty to two counts of distribution of marijuana, two counts of possession of marijuana with intent to distribute, possession of a firearm by a convicted felon, possession of alprazolam (Xanax) and possession of ben-zylpiperazine (Ecstasy). He was sentenced to 12 years at hard labor for each count of distribution of marijuana, 12 years at hard labor for each count of possession of marijuana with intent to distribute, 12 years at hard labor for possession of a firearm by a convicted felon and five years each for the charges of possession of al-prazolam and benzylpiperazine. The sentences were ordered to run concurrently. Defendant reserved the right to appeal any pretrial motions, including a motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). Defendant now appeals. For the reasons stated herein, two of the sentences imposed are amended to reflect that they are to be served without benefit of probation, parole or suspension of sentence. In all other respects, Defendant’s convictions and sentences are affirmed.

FACTS

Defendant, Neyland Turner, was stopped for a traffic violation in Monroe, Louisiana, on December 22, 2009. While he was stopped, the officer observed marijuana in plain view in the vehicle Defendant was driving. Defendant was arrested at that time. Defendant was also the subject of an ongoing narcotics investigation at the time of his arrest. A search warrant was issued the night of his arrest for the residence and curtilage of the address from which he was apparently operating his drug business. Pursuant to the warrant, a search of the residence and a vehicle 12parked in front of the residence resulted in the seizure of more marijuana, a firearm and two illegal drugs, Xanax and Ecstasy. In addition, Defendant had previously been convicted of aggravated battery (a felony) and his parole had been revoked. He had also been convicted of attempted possession of marijuana. On the current offense, Defendant was charged by bill of information with two counts of distribution of marijuana, two counts of possession of marijuana with intent to distribute, one count of possession of a firearm by a convicted felon, one count of possession of a controlled dangerous substance, alprazolam, and one count of possession of a controlled dangerous substance, benzylpiperazine.

At the preliminary examination on April 7, 2010, the following facts were gleaned from the testimony of the State’s only witness, Officer Casey Baker of the Monroe Police Department. Officer Baker testified that, on December 22, 2009, he witnessed Defendant make a “left of center violation” on Owl Street and initiated a traffic stop. Officer Brandon Waggoner was with Officer Baker.

Defendant appeared very nervous. The officers asked for his registration and insurance, and he walked around his car three times before he decided to open the passenger door. Officer Waggoner stood next to Defendant on the passenger’s side of the vehicle and Officer Baker stood by the driver’s side door and shone his flashlight into the vehicle because it was very dark. Officer Baker testified that he did so for officer safety reasons and to assist Defendant in locating the paperwork in the glove box.

| ^Officer Baker further testified that the window was open and he looked down and saw in plain view a clear plastic bag of what appeared to be marijuana in the door handle of the driver’s side door. Officer Baker then told Officer Waggoner to arrest Defendant and to read him his Miranda rights and Officer Baker reached in and retrieved the bag of marijuana. After Defendant was read his Miranda warning, Officer Baker asked him if there was any more marijuana in the vehicle. Defendant replied that there was some in the back seat in a bag. Officer Baker retrieved a camouflage backpack in the back seat area of the vehicle that contained several different sized bags of marijuana. The total weight of the marijuana was just over 12 ½ ounces and it was bagged in 28 bags. This material was tested and confirmed to be marijuana.

A search was done of Defendant’s person which revealed $393 from his pocket in small denominations of fives, tens and twenties. Fifty dollars of that money was prerecorded Monroe Police Department buy money that was part of an investigation being conducted by Corporal Scotty Sadler.

Defendant was subsequently transported to Ouachita Correctional Center (“OCC”) and another search of his person was conducted. A guard at OCC located $2,228 in small denominations. That same night, Corporal Sadler obtained a search warrant for a residence at 3620 Curry Street, where police had observed Defendant. A search of the residence yielded a large amount of marijuana, a gun and other items of contraband. When questioned about the address, Officer Baker responded, “It’s not my case. I don’t have the report. I think it was 3620 Curry.” He further | ¿testified that he was trying to go from memory and stated that Corporal Sadler had the case and that, “He wrote the search warrant based off his investigation that was already ongoing.”

At that point in the preliminary examination, the defense attorney objected to Officer Baker’s testifying as to Corporal Sadler’s report, but the district attorney argued that hearsay is admissible at a preliminary examination. Officer Baker stated that Corporal Sadler was in Utah and unavailable to testify; the evidence was admitted over objection.

In response to further questioning, Officer Baker testified that the current investigation of Defendant was connected to the investigation being performed by Corporal Sadler prior to the stop on December 22, 2009. Officer Baker further testified that, according to the report he was reviewing while testifying, Corporal Sadler had observed a confidential informant and Defendant making a hand-to-hand drug transaction on December 16, 2009, at the front door of the Powell Street recreation center in Monroe. The report then revealed that the following day, December 17, 2009, Corporal Sadler had observed Defendant retrieve a backpack from his maroon 1999 GMC Denali bearing license plate number TBD 950. Defendant then sold marijuana to a confidential informant who paid for the drug with buy money marked by the police department.

Officer Baker then testified that the report reflected that Corporal Sadler and another officer had observed Defendant leaving the residence at 3620 Curry Street in the same GMC Denali that had been described earlier. Also, on December 22, 2009, the day of the instant traffic stop, Corporal | ¡jSadler and the other officer had observed Defendant, with the camouflage backpack, leaving the 3620 Curry Street address. Defendant drove to the Powell Street recreation center and, thereafter, was involved in the traffic stop which yielded the 28 bags of marijuana. Although Officers Baker and Waggoner made the traffic stop, the officers of the Specialized Neighborhood Action Program (“SNAP”) team arrived soon thereafter.

Officer Baker was then questioned about the search warrant that was issued for 3620 Curry Street. He testified that the search warrant was the end result of Corporal Sadler’s ongoing investigation. He stated that, with Defendant in custody from the traffic stop and the charges resulting from that stop, the police “knew that his house was secure and the evidence was not in grave jeopardy of being destroyed.” A canine search outside the residence at 3620 Curry Street indicated the presence of drugs and the search warrant was executed at 10:00 p.m., December 22, 2009, while Defendant was being detained on the charges pursuant to the traffic stop.

The officers executing the warrant gained access to the residence with keys taken from Defendant following his arrest. Once inside, officers observed “a pair of scissors, a set of digital scales, loose marijuana scattered about the room, and several empty boxes of sandwich bags.” A monitoring system had been set up in the residence, which was described as a TV screen divided into four different smaller screens that monitored activity outside of the residence from four different cameras. One of the cameras was pointed at a Honda Accord or Civic sitting in the front yard. One of Defendant’s keys unlocked the Honda and it was searched. Inside the | (¡vehicle was 4 1/2 pounds of suspected marijuana and a .22 caliber Smith and Wesson pistol with six live rounds in it. The marijuana was packaged in seven large bags.

A continued search of the residence revealed more marijuana and 150 Ecstasy tablets. The officers also located false bottomed cans, one of which contained a Xa-nax bar. The officers also found an envelope containing Xanax and a bag containing two yellow tablets which were later determined to be Ecstasy. Officer Baker also testified that a piece of mail had been found at the Curry Street address bearing Defendant’s name.

On cross-examination, Officer Baker identified photographs taken by him of items removed from the GMC Denali after the traffic stop of Defendant on December 22, 2009. Officer Baker testified that the photographs were taken with a telephone camera issued to the Monroe Police Department officers. One of the photographs showed the camouflage backpack located in the back seat of Defendant’s Denali. The date stamped on the photo was “1-13-2003.” Officer Baker stated he did not know that the camera printed the dates when pictures were taken with the phone; however, he testified that items removed from Defendant’s vehicle that day were photographed. Officer Baker testified that, if any of the photographs had been printed, they would be in Corporal Sadler’s case file.

Following the completion of testimony from Officer Baker, the district attorney indicated that the State would not be introducing evidence 17on Counts 3 and 4 of the bill of information. The trial judge found probable cause for Counts 1, 2, 5, 6, 7, 8 and 9 set forth in the bill of information.

On June 21, 2010, a hearing was held on a motion to suppress evidence filed by Defendant. In his written motion to suppress, Defendant sought the exclusion of all property seized on the ground that it was seized without the benefit of a valid search warrant. At the hearing, Defendant further argued that the evidence seized from the Curry Street residence and the Honda vehicle on the Curry Street premises should be suppressed because he did not have care, custody or control of those premises or the vehicle. He further sought suppression of the marijuana found in the vehicle during the traffic stop. Finally, Defendant challenged the introduction of photographs bearing an incorrect date stamp.

The State called Officer Baker as its first witness. Officer Baker testified that Defendant was being followed as part of an ongoing investigation. Officer Baker stated that he observed Defendant cross the centerline and that was the justification for the traffic stop. He reiterated all of the evidence regarding the stop, the fact that the marijuana was in plain view and the fact that, after Defendant was Mirandized, he had advised the officers that there was more marijuana in the back seat of his vehicle. Officer Baker stated that, after the traffic stop and arrest of Defendant, he accompanied Corporal Sadler to 3620 Curry Street. Officer Baker also testified that a pat down search of Defendant yielded a ring of keys, house keys and vehicle keys, which he turned over to Corporal Sadler.

IsOfficer Baker further explained that, as he approached Defendant’s vehicle at the traffic stop, he noticed an odor of burning marijuana coming from inside the vehicle and that the driver’s window was open. Thus, he was able to look down and see the bagged marijuana located on the armrest of the door. He stated that he did not ask for permission to search the vehicle once he noticed the marijuana. Rather, he asked the other officer present to read Defendant his Miranda warning and then Officer Baker reached inside the car and recovered the marijuana that was in plain view.

Officer Baker also testified that Defendant did not provide consent to search the Denali and the backpack on the back seat was closed, there was never a search warrant issued to search the Denali and the vehicle was never towed and no inventory search done. The marijuana in the backpack was discovered because Officer Baker asked if there was more marijuana in the car and Defendant advised him that there was more marijuana in the backpack. Officer Baker testified that he was looking for contraband, not a weapon.

Officer Baker further testified that the keys taken from Defendant were confiscated pursuant to a search incident to arrest before he was transported to OCC. He stated that someone on the SNAP team drove the GMC Denali to 3620 Curry Street instead of having the vehicle towed. The GMC Denali was subsequently released to an individual connected to Defendant.

After the search warrant arrived at the Curry Street address, the officers used one of the keys taken from Defendant to open the door to the |9residence. Officer Baker testified that he helped search the residence pursuant to the warrant. He testified that he recovered a .22 caliber pistol with six live rounds under the driver’s seat of the 1985 Honda, a WD40 can with a false bottom that contained 30 tablets of suspected Ecstasy from the computer table in the living room and another can with a false bottom that did not contain anything. Officer Baker stated that he had entered the Honda pursuant to the search warrant and believed he obtained access to it with one of the keys that had been taken from Defendant.

During questioning, Officer Baker examined the search warrant and was asked what area it covered, and he stated, “The residence and curtilage located at 50-For some reason the search warrant says 503 South 24th.” He noted that there was a typographical error and that the signed affidavit established that there was probable cause to make a search of a residence located at 3620 Curry Street. The search warrant actually described the residence and stated it “is the seventh house on the south side of the roadway as one east on Curry St. from Cairo Street. There is a wooden sign |inon the front porch leading up to the front door. The sign reads in [sic ] 3620 Curry in black writing.”

Corporal Sadler testified next. Corporal Sadler related that, on December 22, 2009, Defendant was under surveillance by his team because a reliable confidential informant was supposed to conduct a buy from him that day. Corporal Sadler testified that he had observed Defendant leave the house on Curry Street and go to the Powell Street recreation center where the sale took place. After the transaction, the confidential informant told Corporal Sadler that Defendant had marijuana in the backpack he was carrying. Defendant left the Powell Street recreation center and Officers Baker and Waggoner were to follow him and keep him under observation. The officers subsequently called Corporal Sad-ler and informed him that Defendant had just committed a traffic violation. Corporal Sadler instructed them to make the stop. Corporal Sadler further testified that he received the set of keys from Officers Baker and Waggoner, but he could not remember exactly when they were given to him.

According to Corporal Sadler, Defendant denied any knowledge about the house on Curry Street, even though Corporal Sadler had seen him there earlier in the day. Corporal Sadler explained in his testimony that he conducted a canine sniff of the exterior of the house some time between the traffic stop and the time the search warrant was issued and that the dog had alerted. Corporal Sadler also explained that there was a typographical error on the search warrant because the warrant had the residence to be searched as 503 South 24th Street; but, in the same paragraph, the correct address of |n3620 Curry Street was listed, and the exact location of the house to be searched was described correctly as the house located on Curry Street.

Corporal Sadler was asked why he believed the address on Curry Street was Defendant’s address, and he stated that he had seen Defendant at the residence earlier in the day. He also testified that a card was found in the southeast bedroom bearing Defendant’s name. In addition, although the house on Curry Street did not appear to have anyone living there, Corporal Sadler testified that a search of Defendant’s name in the police department computer revealed that the Curry Street address was one of the addresses that was identified with Defendant.

Regarding the Honda vehicle parked in the driveway, Corporal Sadler testified that it was registered to Defendant and the registration was found in the glove box of the vehicle.

Corporal Sadler next testified that he took certain pictures at the Curry Street address with his own camera and that the date on the pictures was incorrect. He testified that the batteries in his camera often run down, and that each time he changes the battery, the camera resets the date to January 1, 2003; therefore, the pictures are dated January 13, 2003, because he had changed his battery 13 days before.

At the conclusion of the hearing, the trial judge denied the motion to suppress the evidence. The judge found that Defendant had conceded that the law is clear that a typographical or a non-substantive error in the warrant does not make the warrant defective if the warrant is substantively correct, and he found the warrant to be substantively correct. He further found that 112Pefendant had control or custody of the home and the car located at 3620 Curry Street. He found that the warrant provided that the curtilage could be searched and that would include a vehicle.

The trial judge also denied the motion to suppress the photographs bearing incorrect date stamps. The trial judge stated that the explanation given by Corporal Sadler was reasonable, and that, when the batteries are changed in digital cameras, some reset to the original date. The judge did not believe the incorrect date would cause a jury any confusion and he denied the motion to suppress on that basis.

Finally, the trial judge denied the motion to suppress the evidence seized during the traffic stop and found that there had been testimony given that showed that the stop was not pretextual.

The matter proceeded to trial by jury; however, in the third day of trial, Defendant indicated his desire to accept a plea bargain that had been previously offered by the State whereby he would plead guilty to two counts of distribution of marijuana, two counts of possession of marijuana with intent to distribute, one count of possession of a firearm by a convicted felon, one count of possession of a controlled dangerous substance, alprazolam, and one count of possession of a controlled dangerous substance, benzylpiperazine. In exchange for the guilty plea, the State agreed not to multi-bill Defendant and that any sentences imposed by the trial judge would be served concurrently. Defendant reserved the right to appeal the denial of the motion to suppress under Crosby, supra.

| ]30n September 15, 2010, the trial judge accepted Defendant’s guilty plea on the seven counts against him. A presentence investigation report was ordered. On November 18, 2010, the trial judge sentenced Defendant to 12 years at hard labor for each count of distribution of marijuana; 12 years at hard labor for each count of possession of marijuana with intent to distribute; 12 years at hard labor for possession of a firearm by a convicted felon; 5 years at hard labor for possession of alprazolam; and 5 years at hard labor for possession of benzylpiperazine, with credit for time served. The sentences were to be served concurrently with each other and with any other time Defendant might be required to serve.

Defendant filed the instant appeal seeking review of the judgment denying his motion to suppress evidence seized during the traffic stop and the evidence seized inside the residence and Honda vehicle located at 3620 Curry Street.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred by finding that the State of Louisiana established sufficient probable cause to hold defendant for trial.

Pro Se Assignment of Error Number Two (verbatim): The District Court improperly found the State of Louisiana (Parish of Ouachita) carried its burden of proof in the preliminary examination was sufficient.

For clarity and brevity, the assignments of error filed by Defendant’s appellate counsel and by Defendant, pro se, are addressed together where possible in this opinion.

Defendant first argues that the trial court erred in finding sufficient probable cause to hold Defendant for trial when it introduced only the]_ytestimony of Officer Baker, who made the traffic stop and who had no independent knowledge of other crimes for which Defendant was charged. At the time of the preliminary examination, when the district attorney attempted to establish facts relevant to the other charges that were based on circumstances outside the traffic stop, including the two sales of marijuana in mid-December 2009, the defense attorney objected to the use of Officer Baker’s testimony. The district attorney replied that hearsay could be used to establish probable cause. The trial court agreed and allowed Officer Baker to testify regarding the traffic stop, the search of the Curry Street residence and the search of the vehicle in the driveway. Defendant argues that, while hearsay may be admissible during a preliminary examination, it cannot substitute for a witness who totally lacks any knowledge of the events to which he is testifying. We are, therefore, not persuaded by Defendant’s arguments.

Any issue concerning probable cause to charge a defendant with an offense at the preliminary examination is moot after conviction. La. C. Cr. P. arts. 296, 298. An evidentiary shortfall to establish probable cause at the preliminary examination entitles the defendant only to relief from custody or bail and does not prevent the state from proceeding against him. A conditioned plea at the preliminary examination may be utilized only to secure review of such fundamental errors as would mandate reversal after trial on the merits. See State v. Daniels, 25,833 (La.App.2d Cir.3/30/94), 634 So.2d 962.

11fiIn Daniels, supra, the defendant pled guilty to a charge of possession of a controlled dangerous substance and reserved his challenge to rulings on the preliminary examination and a motion to suppress. On appeal, the defendant’s first assignment of error asserted that, at the preliminary examination, the trial court erred in finding probable cause to charge him with the offense. This court found that, even if that position proved tenable, the issue was moot. No preliminary examination shall be held invalid because of an error that does not substantially prejudice the defendant. Since an evidentiary shortfall at that stage of the proceedings only entitles a defendant to release from custody or bail and does not prevent the state from proceeding against him, there could be no showing of prejudice. Daniels, supra.

In the case sub judice, we conclude, therefore, that any issue concerning probable cause is moot after Defendant’s conviction. Defendant has not made any allegations of fundamental errors that would have mandated a reversal of the conviction. Assignment of Error Number Two (verbatim): The trial court committed error in denying defendant’s motion to suppress regarding the use of defective camera equipment to preserve the evidence.

Pro Se Assignment of Error Number One (verbatim): How admissible is defective equipment usage of law enforcement officers preserving evidence versus inadmissible evidence?

Defendant next argues that the trial court erred in refusing to suppress the evidence of 41 photographs taken of items seized or viewed as evidence after entry into the Curry Street residence and the Honda vehicle parked in the driveway. Defendant argues that he requested permission to have the |ir,camera with which the pictures were taken examined by an expert because the printed photographs were marked with an improper date by the camera. Defendant claims the inspection was essential and the refusal to allow the inspection was error.

This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 06-2976 (La.3/9/07), 949 So.2d 441, citing State ex rel. Thibodeaux v. State, 01-2510 (La.3/08/02), 811 So.2d 875. In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Young, 39,546 (La.App.2d Cir.3/02/05), 895 So.2d 753, citing State v. Sherman, 04-1019 (La.10/29/04), 886 So.2d 1116. Great weight is placed on the trial court’s ruling on a motion to suppress in regard to the findings of fact because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.5/08/96), 674 So.2d 1082, citing State v. Jackson, 26,138 (La.App.2d Cir.8/17/94), 641 So.2d 1081.

As previously stated, Defendant complains about photographs that were taken at the scene of the Curry Street residence where evidence of the crime was seized on December 22, 2010, but which bore date stamps of January 13, 2003. Corporal Sadler explained in his testimony at the motion to suppress that the problem was caused by his replacement of the batteries | l7in his camera 13 days prior to December 22, 2010. The trial court found Corporal Sadler’s explanation to be plausible and we agree. In addition, we find that the introduction of the photographs would neither have affected the determination of guilt, nor resulted in reversible error had they been introduced to the jury. The trial court’s judgment is entitled to great weight; therefore, we find these assignments of error to be without merit.

Assignment of Error Number Three (verbatim): The trial court committed error in allowing a search warrant to be valid when the address listed was incorrect.

Pro Se Assignment of Error Number Three (verbatim): How can a(6) six month investigation (informant motivated) render an invalidated search warrant? Shows unenforceable!

In assignments of error number 3, Defendant argues that the address listed on the search warrant was not correct; and, therefore, all of the evidence seized from the residence at 3620 Curry Street and from the Honda vehicle located in the curtilage of the residence should have been suppressed. Defendant submits that the jurisprudence and the statute authorizing the issuance of a search warrant prescribes that the listing of the wrong address is manifest error and that the evidence seized pursuant to such a warrant is fruit of the poisonous tree.

The State counters by emphasizing Corporal Sadler’s testimony during the hearing on the motion to suppress wherein he explained that the listing of “502 South 24th Street” on the search warrant was a typographical error and that the South 24th Street address was listed on a previous search warrant saved on his computer, The address was mistakenly not changed to the Curry Street address when the Curry Street warrant was printed, 118Corporal Sadler pointed out that the instant search warrant contains a description of the residence to be searched as a white color wood frame house with white trim and that it was the seventh house on the south side of the roadway on Curry Street. He further testified that the house located at 503 South 24th Street is yellow.

The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. State v. Korman, 379 So.2d 1061 (La.1980); State v. Petta, 354 So.2d 563 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977). Hence, “a minor error in a portion of the description of the premises to be searched does not invalidate the search.” Korman, supra. If, however, police officers knowingly search an entirely different premises than that described in the warrant, the evidence seized will be suppressed because the warrant did not particularly describe the place to be searched. State v. Manzella, 392 So.2d 403 (La.1980).

In this case, the warrant described the house to be searched in enough detail that the police were able to locate the property with reasonable certainty. In fact, Corporal Sadler had been conducting an investigation into Defendant’s activity and had personally witnessed Defendant leaving the premises on the day of his arrest carrying the camouflage backpack from that house on his way to meet the confidential informant at the Powell Street recreation center to make the drug buy. Moreover, Corporal Sadler was present at the search of the premises. His testimony, explaining that the |iaaddress of 24th Street was left over from a warrant issued in a previous case, was plausible. We find no error in the denial of the motion to suppress because the warrant happened to contain a typographical error. These assignments of error are without merit.

Assignment of Error Number Four (verbatim): The trial court erred in failing to suppress evidence discovered and seized by an officer making a traffic (stop) relying on the information from an officer not present.

Pro Se Assignment of Error Number Four (verbatim): Unconstitutional (unappropriate) vehicle stop; be looked upon as fruitful? No subpoena, no summons, no ticket given for alleged traffic violation.

Defendant next argues that the trial judge erred in failing to suppress evidence discovered and seized by Officer Baker because Officer Baker relied on a request by Corporal Sadler to make the stop of Defendant based on information Corporal Sadler had received from the confidential informant. Defendant claims the traffic stop was a pretense stop and argues that the evidence seized pursuant to the traffic stop should have been suppressed because Officer Baker had no reason to search the vehicle. Further, Defendant argues that Officer Baker searched the vehicle without permission from Defendant, and that his alleged statement that there was more marijuana in the back of the vehicle did not constitute consent to search the vehicle. For these reasons, Defendant claims the trial judge erred in denying the motion to suppress the evidence seized in the traffic stop. Again, we are not persuaded by Defendant’s arguments.

If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Mapp v. Ohio, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961). Warrantless searches and 12nseizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred; the standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. State v. Mitchell, 10-334 (La.App. 5th Cir.10/26/10), 52 So.3d 155.

The automobile exception to the warrant requirement does not have an independent exigency requirement; and, if probable cause exists for the search of the vehicle, that is sufficient. Mitchell, supra. The exigency is supplied by the inherent mobility of the vehicle and the citizen’s lesser expectation of privacy. Id. Given probable cause to search, either seizing and holding a car before presenting the probable cause issue to a magistrate or immediately searching the vehicle without a warrant, are reasonable under the Fourth Amendment and the Louisiana State Constitution. Id. Probable cause means a fair probability that contraband will be found. Id. Whether probable cause exists for a search must be judged by the probabilities and practical considerations of everyday life on which average people, particularly average police officers, can be expected to act. Id.

Here, the search of Defendant’s vehicle clearly occurred after he was stopped for a traffic violation witnessed by Officer Baker. Both Officer Baker and Corporal Sad-ler testified that Officer Baker called Corporal Sadler and reported that Defendant had just committed a traffic violation and asked if he should make the traffic stop. Since Corporal Sadler had 12ibeen investigating Defendant for weeks, he told Officer Baker, who was on the investigating team, to make the traffic stop.

Officer Baker stopped Defendant for crossing the center line and, in fact, signed an affidavit of probable cause for arrest without a warrant stating that Defendant had been arrested for “Left of Center” and possession of a controlled dangerous substance with intent to distribute. We find no pretextual basis for the traffic stop by Officer Baker.

We now turn to the events following the valid stop. Officer Baker testified that Defendant was acting in a very peculiar way and that he appeared nervous. When he was asked to retrieve his registration, Defendant circled his vehicle three times before deciding to open the passenger door to reach the glove box. Officer Baker was shining his flashlight into the car to make sure Defendant was not going to retrieve a weapon, and he happened to look down and see, in plain view, a plastic baggie of marijuana on the door handle of the driver’s side door. The presence of the marijuana in plain view gave Officer Baker probable cause to conduct a war-rantless search of Defendant’s vehicle. Officer Baker then placed Defendant under arrest and had Officer Waggoner read him his Miranda rights. Thereafter, Officer Baker asked Defendant if there was any more marijuana in the vehicle, and Defendant told him there was some in the back seat. At that point, Defendant no longer had an expectation of privacy in the back of his car, and the discovery of the marijuana in the camouflage backpack and its subsequent seizure were reasonable.

|22For the foregoing reasons, we find these assignments of error to be without merit.

Assignment of Error Number Five (verbatim): The trial court committed error in failing to suppress evidence seized in a residence not owned or leased to defendant.

Assignment of Error Number Six (verbatim): The trial court committed error in failing to suppress evidence seized from an abandoned vehicle not belonging to defendant.

Defendant also argues that the trial judge erred in refusing to suppress evidence seized in the residence at 3620 Curry Street and from the Honda vehicle located in the driveway of that residence because he was not in possession of the premises and had not lived there for more than two years. He argues that, although both Officer Baker and Corporal Sadler testified that mail addressed to Defendant was located in the residence, that evidence was not introduced or shown to the judge. Further, both officers stated that they gained access to the residence with keys from a key ring acquired during the search of Defendant incident to his arrest and prior to the issuance of the search warrant. Defendant complains that the keys to the residence were not introduced into evidence and the officers could not remember how the keys got from Officer Baker to Corporal Sadler.

Defendant further asserts that, although Corporal Sadler testified that he had been conducting an investigation of him and testified that he had recently seen him leaving the premises, Corporal Sadler listed the wrong address on the warrant. For these reasons, Defendant claims the officers | ^entered the residence and the vehicle in the driveway without a valid search warrant; and, therefore, all of the evidence seized therein should have been suppressed. We disagree.

La. C. Cr. P. art. 162 provides that a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. Section C of the article provides that a search warrant shall particularly describe the person or place to be searched, the persons or things to be seized and the lawful purpose or reason for the search or seizure.

We conclude that Corporal Sadler obtained a valid warrant to search the residence at 3620 Curry Street and its curti-lage where the Honda vehicle was located. Despite Defendant’s protestations to the contrary, ample evidence proving he was in possession of the home was provided at the hearing on the motion to suppress. Corporal Sadler personally observed Defendant leaving the residence on the day of his arrest, carrying the camouflage backpack, on his way to his meeting with the confidential informant at the Powell Street recreation center. Corporal Sadler had probable cause to seek the issuance of the search warrant on that particular address. Further, although Defendant denied ownership of the Honda in which more than four pounds of marijuana were found, as well as the .22 caliber Smith and Wesson pistol, a search of the vehicle yielded a registration document indicating that Defendant was the owner of the vehicle. Moreover, one of the cameras outside the residence was trained onj^the Honda and it formed part of the live feed to the monitor located inside the residence. We conclude that the trial judge properly denied the motion to suppress the evidence found in the residence and in the vehicle located at 3620 Curry Street.

Error Patent Review

Our review of this record for errors patent revealed that the trial judge failed to impose a sentence without benefit of probation, parole or suspension of sentence for two of the crimes and failed to impose certain mandatory fines.

Sentences without benefits:

When a district court fails to order statutorily mandated service of sentence without benefits, the sentence will automatically be served without benefits for the required time period. See State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. The reviewing court may order that the sentence be served at hard labor without benefit of probation, parole or suspension of sentence. La. R.S. 15:301.1.

In this case, the 12-year sentence for possession of a firearm by a convicted felon and the 5-year sentence for possession of benzylpiperazine must be served, without benefits; however, the trial judge failed to so specify. At the guilty plea hearing, Defendant was informed that whatever sentence would eventually be imposed for the possession of the firearm would have to be served without benefits. He chose to plead guilty with full knowledge of this fact. The 12-year sentence for possession of a firearm by a convicted felon is, therefore, amended to reflect that the sentence imposed [ 2Bis to be without benefits. In addition, the 5-year sentence for possession of benzylpiperazine is also amended to reflect that it is be served without benefit of probation, parole or suspension of sentence. Since this sentence is to run concurrently with the 12-year term for possession of a firearm by a convicted felon, the 5-year term without benefits will be served at the same time as the 12-year sentence.

Failure to impose mandatory fines:

The trial judge failed to impose certain mandatory fines; however, when a trial court does not impose a fine in a situation where the statute authorizes a fine of “not more than” an amount, it impliedly imposes a fine of $0 and is not an error patent. State v. Francois, 06-788 (La.App. 3d Cir.12/13/06), 945 So.2d 865. In addition, since the State did not object to the failure to impose fines at sentencing, or on appeal, we will refrain from amending Defendant’s sentence or remanding for resentencing. See State v. Wright, 43,633 (La.App.2d Cir.10/22/08), 997 So.2d 133.

DECREE

For the foregoing reasons, the convictions of Defendant are affirmed. The 12-year sentence for possession of a firearm by a convicted felon and the 5-year sentence for possession of benzylpiperazine are amended to reflect that they must be served without benefit of probation, parole or suspension of sentence. In all other respects, the sentences of Defendant are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AMENDED AND, AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY & SEXTON, JJ.

Rehearing denied.

      . There is some confusion with regard to who actually took these pictures and with which camera they were taken. From testimony given at the hearing on the motion to suppress, Corporal Sadler used his own camera to take pictures of the evidence, and it is the camera with the date posting problem.

      . Defense counsel agreed to set aside some pro se motions to suppress filed by Defendant and to argue only the motion that defense counsel had filed.

      . The warrant actually states as follows:
      Considering the affidavit in support hereof, ... the Court finding hereby the affiant Cpl. Sadler ... that the facts recited in the affidavit establish to the Court’s satisfaction that there is probable cause to make the search of the residence located at 3620 Curry St. Monroe, La 71202.
      You are hereby authorized to seize and search forthwith the following described: The resident and cartilage [sic] located at 503 South 24th St. Monroe, La. The residence is described as a white in color wood framed house with white trim. The residence is the seventh house on the south side of the roadway as one east on Curry St. from Cairo St. There is a white wooden sign on the front porch leading up to the front door. The sign reads in [sic ] 3620 Curry in black writing.

      . Even if pretextual, a traffic stop is valid if the officer actually observes a traffic violation. See Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

      . No argument is made explaining why Defendant should not be deemed to be the owner of the Honda vehicle. Again, the registration found in the glove compartment listed him as being the owner of the vehicle.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Jo Ann Boggs BARNES, Plaintiff-Appellant v. Julia Corpier Barnes CLOUD and Clyde A. Barnes, III, Defendants-Appellees.
    No. 46,685-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Wiener, Weiss & Madison, Shreveport, LA, by M. Allyn Stroud, for Appellant, Jo Ann Boggs Barnes.
    Michael R. Delesdernier, Metairie, LA, Rickey K. Swift, Michael C. Bowers, for Appellee, Julia Barnes Cloud.
    Kitchens, Benton, Kitchens & Black, Minden, LA, by Clinton C. Black, for Ap-pellee, Clyde A. Barnes.
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

| iThis is an appeal from a final judgment that awarded reimbursement to plaintiff, Jo Ann Boggs Barnes, for amounts she paid for improvements and expenses while living in a home owned by her son and former daughter-in-law, and another judgment ordering her to vacate the disputed property. Jo Ann Barnes has appealed the trial court’s determination that defendants, Julia Barnes Cloud and Clyde A. Barnes, III, were entitled to an offset for rent, and she seeks reimbursement for her wrongful eviction from the property together with the right of retention until paid in full. Julia Cloud raised several additional issues in her brief; however, she dismissed the appeal she filed and did not file an answer to Mrs. Barnes’s appeal so the only issues before this court are those asserted by Mrs. Barnes. For the reasons set forth below, we affirm in part, amend in part and as amended, affirm.

Facts

On November 2, 1993, plaintiff, Jo Ann Boggs Barnes, and her husband, Clyde Barnes, Jr., bought Lot 96 in A Quiet Place In The Woods Subdivision Unit No. 5 in Caddo Parish, Louisiana. They paid $3,000 for the lot. The Barnes obtained a loan from Premier Bank in January 1994. The amount financed was $41,797.78. The collateral for the loan was a rental house the Barnes owned on Holiday Street in Shreveport, Louisiana. They built a house on the lot. Jo Ann Barnes testified that the cost was approximately $50,000. After the house was built, on June 27, 1994, Jo Ann and Clyde executed a deed transferring the property to their son, Clyde |2A. Barnes III (“Tony”), and daughter-in-law, Julia Barnes (now Cloud), for the sum of $1,500. According to the testimony of Jo Ann Barnes and her son, the price was not paid and the property was transferred “in trust” to protect it from possible financial issues arising from Clyde Barnes’ alcohol and gambling addictions. In 1998, Clyde Barnes died. According to Mrs. Barnes and her son, Tony, there was no intention to permanently transfer the property, and Jo Ann Barnes has continuously lived in the house, paid the property taxes, maintained the property and made beneficial improvements since the transfer. In 2004, Tony and Julia divorced. In the divorce proceedings, Julia sought to have lot 96 included in the division of community property.

In August 2008, Jo Ann Barnes filed the instant suit against Tony and Julia. Mrs. Barnes requested that the court either transfer the property back to her or to allow her full use and/or usufruct. She alternatively requested reimbursement from the defendants of $116,468 she paid for property taxes and improvements. Mrs. Barnes alleges that she was entitled to retain possession of the property until she was reimbursed.

Julia filed exceptions of prescription and no right of action. She also argued that the instant suit was barred by res judicata. Mrs. Barnes filed a notice of lis pendens specifically identifying the Caddo Parish property.

In April 2009, the trial court overruled Julia’s exception of prescription at that time but reserved her right to raise it at trial on the merits. The trial court also ordered that should the property be sold, the amount of $116,468 was to be deposited into the registry of the court and |3the notice of lis pendens cancelled. In May 2009, the trial court denied a rule to evict Mrs. Barnes filed by Julia, finding that Mrs. Barnes was entitled to remain in the house until she was reimbursed.

In June 2009, Julia filed an answer and a reconventional demand in which she sought at least $75,000 in fair market rental value for a 15-year period and $67,500 for filing a frivolous action against her which resulted in the loss of a court-ordered sale of the property for $67,500. Julia also requested that Mrs. Barnes be evicted.

In response, Mrs. Barnes then filed a pleading entitled “Exceptions, answer and first supplemental and amending petition.” She dropped her demand to set aside the sale and transfer the property back to her; instead, she replaced it with a request that the court recognize her right to dwell in the house as a condition of a “trust agreement.” Mrs. Barnes also alleged that Julia unlawfully tried to evict her and interfered in a contract between Mrs. Barnes and the prospective purchaser that would have allowed her to stay in the house until the legal issues were resolved; she also requested mental anguish damages.

At trial, testimony was given by Mrs. Barnes, Tony and Julia. The trial court gave oral reasons for judgment in which it awarded Mrs. Barnes $58,211.50 in reimbursement but assessed her with rent in the amount of $32,400. After the offset for rent, Mrs. Barnes was to receive $25,811.50.

14A motion for new trial was filed by-Mrs. Barnes in which she sought additional damages and reconsideration of the rental payments that had been assessed against her. The motion was denied in part and granted in part; additional damages of $953.82 were awarded. On that same day, Julia’s motion to evict Mrs. Barnes was granted, and judgment was rendered which ordered Mrs. Barnes to vacate the premises and deliver the property to Julia on November 30, 2010. A petition of mandamus filed by defendants was granted ordering that the notice of lis pendens be cancelled from the mortgage records.

Both Mrs. Barnes and Julia Cloud filed motions for devolutive appeals. However, Julia subsequently dismissed her appeal.

Discussion

While the parties and the trial court have treated this action as one between possessor (Mrs. Barnes) and owners (defendants), it is more properly analyzed under the rules applicable to personal servi-tudes. Regardless of whether Mrs. Barnes had a usufruct, right of use or right of habitation, all of which, while real rights, are personal servitudes, the Civil Code provisions on usufruct govern the parties’ relative rights and responsibilities. See, C.C. arts. 577-585, 631, 636, and 645.

Mrs. Barnes has appealed that part of the trial court’s ruling awarding defendants an offset for rent in the amount of $32,400. A usufructuary does |finot pay rent to the naked owner; instead, one who enjoys the right of usufruct, as “charges of the enjoyment” of this right, has the responsibility of paying for ordinary maintenance and repairs, as well as periodic charges such as property taxes. See, La. C.C. arts. 577, 584; Succession of Crain, 450 So.2d 1374 (La.App. 1st Cir.1984).

Furthermore, the testimony in this case reveals that the parties themselves did not contemplate imposing such an additional obligation on Mrs. Barnes. We therefore amend the trial court’s judgment to delete the offset awarded to defendants for “rent.”

Mrs. Barnes’s second assignment of error is that the trial court erred by evicting her from the property before she was fully reimbursed. La. C.C. art. 627 provides that upon termination of the usu-fruct, the usufructuary has the right to retain possession of the property until reimbursed for all expenses and advances for which she has recourse against the owners or their heirs. While defendants did not appeal from the reimbursement award, we note that the only amounts for which Mrs. Barnes was awarded reimbursement, nonpayment of which can be used to detain the property until reimbursed, are those which meet the narrow parameters of La. C.C. arts. 579 (extraordinary repairs) and 585 (extraordinary charges).

La. C.C. art. 578 defines extraordinary repairs as those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct, with all others being classified as ordinary repairs. Nothing on the list of items for which Mrs. Barnes was granted reimbursement by the trial court qualifies as an extraordinary repair. Paving assessments are ^extraordinary charges payable by the usufructuary but recoverable from the naked owners at the end of the usufruct. Comment (b) to La. C.C. art. 585. Mrs. Barnes was granted reimbursement for her payments for a parish paving lien totaling $7,621. To come within the scope of La. C.C. arts. 585 and 627, this assessment, however, must have arisen during the usufruct. An examination of the exhibits shows that the paving charges were incurred during the usufruct, and therefore are extraordinary charges recoverable from the naked owners at the termination of the usufruct. The record, however, reflects that defendants paid Mrs. Barnes $11,453.82 of the amount they owe her, which is more than the amounts she paid for the parish paving lien. Therefore, the trial court’s determination that Mrs. Barnes has no right of retention in this case will be upheld.

In summary, the trial court awarded Mrs. Barnes $58,211.50 on her reimbursement claim in its September 22, 2010, judgment, and an additional $953.82 in its judgment on her motion for new trial, for a total reimbursement award of $59,165.32. We note again that no appeal was taken from this award. Deducting the amount defendants have paid to Mrs. Barnes, $11,453.82, the remainder due to Mrs. Barnes on her reimbursement claim is $47,711.50.

Conclusion

For the reasons set forth above, we amend the judgment of the trial court as follows:

The amount of offset awarded to defendants, Julia Corpier Barnes Cloud and Clyde A. Barnes, III, is deleted. Defendants hereby owe plaintiff |7the sum of $47,711.50, the amount outstanding on her reimbursement claim. In all other regards, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants.

AFFIRMED IN PART, AMENDED IN PART, and AS AMENDED, AFFIRMED.

      . With the finance charge the total payments would be $61,164.

      . Although the trial court's judgment awards defendants rental offset for 36 months, the parties have calculated the offset amount to be $47,700 (36 months from filing of petition plus 17 additional months). While this may have been what the trial judge intended to award, neither party filed a motion to amend the judgment, which specifically states that, "defendants are entitled to an offset of rent for three (3) years."

      . While all three parties have testified that Mrs. Barnes was living on the property in a usufruct-type situation, there was no testimony or evidence whatsoever as to the parties’ intent as to the terms or duration of this arrangement. We note that Julia testified that in 1999, she took Mrs. Barnes to the Caddo Parish Tax Assessor’s Office to document Mrs. Barnes' status as usufructuary so that Mrs. Barnes could benefit from the available homestead exemption.


author: GASKINS, J.

text:
    Joanna SKULICH, Plaintiff-Appellant v. Willie D. FULLER, Jr. and David McFarlen and their Insurer; American Transport; Sean Hill and John Hill and their Insurer; Government Employees Insurance Company; and the City of Bossier City, Defendants-Appellees.
    No. 46,733-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Susan E. Hamm, for Appellant.

      Gregory S. Barkley, Assistant Attorney General, Louisiana Department of Justice, for Appellee Department of Transportation and Development.
    Willie D. Fuller, Jr., In proper person.
    David McFarlen, In proper person.
    Before GASKINS, MOORE and CARAWAY, JJ.
   GASKINS, J.

|,In this two-vehicle automobile accident case, the plaintiff, a passenger in one of the cars, alleged that a factor contributing to the collision was the design and maintenance of the highway where the accident occurred. She appeals from a trial court ruling which granted summary judgment in favor of the State of Louisiana, through the Department of Transportation and Development (DOTD), and dismissed it from the suit. We affirm the trial court judgment.

FACTS

The accident at issue occurred at or near the T-shaped intersection of U.S. Hwy. 71 (also known as Barksdale Boulevard) and Boone Street in Bossier City, Louisiana. Barksdale Boulevard runs north-south, while Boone Street runs east-west. Boone Street is perpendicular to Barksdale Boulevard and essentially “deadends” across from the parking lot of Cascio’s Grocery Store, which is located on the west side of Barksdale Boulevard. The traffic on Boone Street is controlled by a stop light facing only the drivers on Boone Street, who may turn left or right onto Barksdale Boulevard or go straight into the Cascio parking lot. There are streets on either side of Cascio’s Grocery Store which run perpendicular to Barks-dale Boulevard. Both of these streets, Rome and Módica, are on the west side of Barksdale Boulevard, and each one forms a T-shaped intersection with Barksdale Boulevard, which is controlled by a stop light.

On June 28, 2004, a 1995 Ford Crown Victoria taxi cab driven by Willie D. Ford, Jr., pulled out of the parking lot of Cas-cio’s Grocery Store in an eastbound direction across Barksdale Boulevard toward Boone Street. | ¡¡Mr. Ford’s cab was struck on the passenger side by a car driven by Sean Hill, who was traveling north on Barksdale Boulevard.

The plaintiff, Joanna Skulich, was a paying passenger in Mr. Ford’s cab. On June 28, 2005, she filed suit against a number of defendants, including DOTD, seeking damages for injuries she sustained as a result of the accident. The only issue before this court in the instant appeal is the plaintiffs claim against DOTD. She alleged that it was negligent and failed to maintain the highway in a reasonably safe condition; specifically, she contended that DOTD failed to provide appropriate signs and traffic signals.

On January 25, 2007, DOTD filed a motion for summary judgment, arguing that the plaintiff had failed to come forward with any proof to support her allegations of fault on the part of DOTD and there were no genuine issues of material fact; therefore it was entitled to summary judgment as a matter of law. After a hearing in April 2007, the trial court denied the motion as premature. However, following additional discovery, on October 26, 2010, DOTD reurged the motion for summary judgment. A hearing was held on December 13, 2010; the trial court granted summary judgment in favor of DOTD, dismissing the plaintiffs claim against that defendant.

The plaintiff appealed.

J^LAW

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45, 454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Palmer, supra-.

Generally, the party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, it is not necessary to refute every element of the claim. In that case, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Then, the burden shifts to the adverse party to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2).

14Liability of DOTD

DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. La. R.S. 48:21(A); Netecke v. State ex rel. DOTD, 98-1182 (La.10/19/99), 747 So.2d 489. This duty, however, does not render DOTD the guarantor for the safety of all the motoring public. The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Netecke, supra. DOTD cannot be held responsible for all injuries on the state’s highways that result from careless driving. Netecke, supra.

La. R.S. 9:2800(C) states, in pertinent part:

[N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

Louisiana law allows a plaintiff to proceed against a public entity, such as the State through DOTD, under a theory of negligence based on La. R.S. 9:2800. The plaintiff must prove that: (1) the thing that caused her damages was in DOTD’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) DOTD possessed actual or constructive notice of the defect, and failed to take corrective measures to remedy the defect within a reasonable period of time; and (4) the defect was a cause in fact of the plaintiffs injuries. Woods v. State ex rel Louisiana Department of Transportation and Development (DOTD), 43,787 (La.App.2d Cir.12/3/08), 999 So.2d 113; Critton v. State, Department of Transportation and Development, 43,328 (La.App.2d Cir.6/4/08), 986 So.2d 207, writ denied, 2008-1493 (La.10/3/08), 992 So.2d 1019; Kelly v. City of Bossier City, 41,705 (La.App.2d Cir.12/13/06), 945 So.2d 229. Constructive notice shall mean the existence of facts which infer actual knowledge. La. R.S. 9:2800(D). The plaintiffs failure to establish any one of these criteria is fatal to his or her claim. Woods, supra; Critton, supra; Netecke, supra.

It is well settled that compliance with the provisions of the Manual on Uniform Traffic Control Devices (MUTCD), which is mandated by La. R.S. 32:235, is prima facie proof of DOTD’s absence of fault when an injured motorist attempts to predicate DOTD’s liability on improper signalization or road marking. La. R.S. 32:235(E); Jacques v. State ex rel. Transportation and Development, 2003-2226 (La.App. 1st Cir.9/17/04), 905 So.2d 294, writ denied, 2004-3013 (La.2/18/05), 896 So.2d 36. Prima facie proof is sufficient only if not rebutted or contradicted. Donavan v. Jones, 26,883 (La.App.2d Cir.6/21/95), 658 So.2d 755, writs denied, 95-1786, 95-1891 (La.11/3/95), 661 So.2d 1379.

Evidence

In its motion for summary judgment, DOTD argued that the plaintiff had presented no evidence of any negligence or liability by DOTD; furthermore, it asserted that she had also failed to show violation of any duty owed to her by DOTD. In support of its motion, DOTD submitted affidavits from two of its employees, Carla Roberts and Robert Taylor, both | fiof whom worked in DOTD District # 4, which included the accident site. In her affidavit, Ms. Roberts states that she was an assistant traffic engineer for District # 4. She stated that she had personal knowledge of issues with signage and/or signalization at the accident site. According to her, all traffic signage/signalization there was in compliance with MUTCD.

At the time he executed his affidavit, Mr. Taylor was the maintenance engineer for that district; at the time of the accident, he was an assistant maintenance engineer for District #4. As such, he had personal knowledge of the issues, complaints, construction and maintenance projects concerning the accident site. In his affidavit, Mr. Taylor stated that at the time of the accident that there was no record of any DOTD repairs, maintenance or construction projects near the site. Additionally, there were no records of any complaints as to any alleged deficiencies or defects at the site on or about the time of the accident or at least 180 days before the accident. Therefore, he stated, DOTD did not know and could not have known of any alleged defective condition at the site.

In support of its motion for summary judgment, DOTD also submitted excerpts from the plaintiffs deposition; they show that she did not know what caused the auto accident.

In opposition to DOTD’s motion for summary judgment, the plaintiff submitted an affidavit and a supplemental affidavit from Olin K. Dart, Jr., Ph.D., P.E., a consulting engineer with experience in civil engineering and traffic engineering. Dr. Olin found nothing wrong with the traffic signal controls at the accident site. In fact, in his original affidavit, he noted that | improvements made pursuant to a 1997 state project provided better signal visibility at the site and coordinated signals along Barksdale Boulevard. However, he opined that traffic should not be allowed to exit the Cascio parking lot onto Barksdale Boulevard at its intersection with Boone Street because it created a “serious hazard making the highway unreasonably dangerous.” He further opined that “[t]his condition was most probably a contributing cause of the subject crash.” In his supplemental affidavit, Dr. Dart stated that the intersection of Barksdale with Rome/Boone Streets was “properly designed and signalized except for the open access” on the east side of the Cascio parking lot. He then stated that eliminating vehicle movement from the parking lot into the intersection would have more probably than not prevented the accident.

In his affidavits, Dr. Dart suggested several methods for forcing traffic leaving the Cascio parking lot to exit by way of Rome Street or Módica Street, which had signal lights at their intersections with Barksdale Boulevard. They included replacing the rollover curb along Barksdale Boulevard with a six-inch high barrier curb, extending the concrete island at Rome Street and Barksdale Boulevard all the way to Módica Street, or the installation of a “DO NOT ENTER” sign supplemented with delinea-tors to block the driver’s path from the parking lot onto Barksdale Boulevard.

In her original opposition to DOTD’s motion for summary judgment, the plaintiff submitted excerpts from the deposition of Mr. Ford, the driver |8of the taxi in which the plaintiff was riding at the time of the accident; he blamed the collision on the other driver, Mr. Hill, allegedly running a red light.

Discussion

In support of its motion for summary judgment, DOTD pointed out in Ms. Roberts’ affidavit that it was in compliance with MUTCD. Once the DOTD supported its motion with this evidence, the burden shifted to the plaintiff to bring forth evidence showing that there was a genuine issue of material fact as to whether DOTD had a duty to do more. The plaintiffs expert failed to rebut or contradict DOTD’s evidence in his affidavits. Nowhere does the plaintiffs expert assert that DOTD was in violation of any standard, state or federal. He merely made a conclusory statement that the parking lot egress and ingress was unreasonably dangerous. Affidavits that are devoid of specific underlying facts to support a conclusion of ultimate “fact” are not legally sufficient to defeat summary judgment. Lewis v. Four Corners Volunteer Fire Department, 2008-0354 (La.App. 1st Cir.9/26/08), 994 So.2d 696. The evidence presented by the plaintiff failed to demonstrate that the area of Barksdale Boulevard where the accident occurred was unreasonably dangerous requiring additional safety measures, such as the placement of more traffic devices or signage.

Upon our de novo review, we conclude that summary judgment in favor of DOTD is appropriate. Finding no error in the trial court’s granting |9of DOTD’s motion for summary judgment and its dismissal of DOTD from the instant suit, we affirm.

CONCLUSION

The trial court ruling granting DOTD’s motion for summary judgment and dismissing DOTD from this lawsuit is affirmed. Costs of this appeal are assessed against the plaintiff/appellant, Joanna Sku-lich.

AFFIRMED.

      . In December, 2010, the trial court also granted a motion for summary judgment in favor of another defendant, the City of Bossier City, dismissing it from the suit. No appeal was taken from that judgment.

      . The other portions of Dr. Dart's affidavits address the possible negligence of the drivers.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STURDY BUILT HOMES, L.L.C. v. CARL E. WOODWARD L.L.C., d/b/a Woodward Design+Build; Travelers Casualty & Surety Company of America n/k/a the Travelers Companies, Inc.; Ed Jorgensen; and Lane Louque.
    No. 2011-CA-0881.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      James M. Garner, Martha Y. Curtis, Ryan 0. Luminais, Matthew C. Clark, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., Gladstone N. Jones, III, Lynn E. Swanson, H.S. Bartlett III, Jones Swanson Huddell & Garrison, L.L.C., New Orleans, LA, for Plaintiff/Appellant Sturdy Built Homes, LLC.
    H. Bruce Shreves, Daniel J. Caruso, Denise C. Puente, Susan F. Clade, Simon Peragine Smith & Redfearn, L.L.P., Kenneth M. Carter, Kenneth M. Carter, APLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   DENNIS R. BAGNERIS, SR., Judge.

| ,This is a suit arising out of a construction project involving the construction of 460 apartments in New Orleans, Louisiana. Plaintiff, Sturdy Built Homes, LLC, (“Sturdy Built”) entered into a subcontract agreement with defendant Carl E. Woodward, LLC d/b/a/ Woodward Design + Build (“CEW”) to provide labor, materials to fabricate and install wall panels, beams and floor trusses. Upon the subcontract agreement being placed in default, Sturdy Built filed suit against defendants CEW, Ed Jorgensen, Lane Louque, and Travelers Casualty & Surety Company of America seeking damages for breach of the subcontract, unjust enrichment, tortious interference with the contract, and bad faith breach of contract. Defendants filed an exception of prematurity based on an arbitration provision contained in the subcontract agreement, which the trial court granted. After review of the record in light of the applicable law and arguments of the parties, we hereby affirm the ruling of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On December 29, 2008, CEW, as general contractor, entered into a contract with C.J. Peete I, LLC c/o McCormack Baron Salazar, Inc., as Owner, to construct the 460 new apartments at the site of the former C.J. Peete Housing Project in New Orleans. Thereafter, on March 31, 2009, CEW entered into a contract entitled “Subcontract Agreement” with Sturdy Built to provide labor, materials to fabricate and install wall panels, beams and floor trusses on the project. This Subcontract Agreement contains a “Disputes” section, which provides:

Any controversy or claim arising out of or related to this Agreement or breach thereof shall be settled as follows:
|2A. Mediation shall be tried, utilizing a mutual [sic] agreeable mediator. Cost of the mediation shall be paid in equal parts by Contractor and Subcontractor. If the dispute is not resolved within 45 days of initial request for mediation then either party may proceed to file an arbitration demand.
B. If mediation fails, then by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. By agreement of both parties, in lieu of arbitration, the parties may select the judicial process. In such event suit shall be filed in State of Louisiana in the Parish in which the Project is located.

On October 28, 2009, CEW notified Sturdy Built that it was terminating the Subcontract Agreement with respect to a portion of the project, specifically Blocks G and H, “for cause.” Following an unsuccessful mediation, on August 25, 2010, CEW filed an arbitration demand with the American Arbitration Association against Sturdy Built, seeking damages as a result of Sturdy Built’s failure to properly perform. On August 26, 2010, Sturdy Built filed this lawsuit seeking damages for breach of the subcontract, unjust enrichment, tortious interference with the contract, and bad faith breach of contract.

On November 24, 2010, Defendants filed a dilatory exception of prematurity and an alternative motion to stay Sturdy Built’s claims during the pendency of arbitration between CEW and Sturdy Built, arguing that the subcontract agreement mandates that any disputes are to be resolved by arbitration. At the hearing, Sturdy Built argued that the subcontract must be read together with the overall project construction contract to permit litigation of its claims. Specifically, Sturdy Built argues that the construction contract, which was entered into by CEW and C.J. Peete I, LLC c/o McCormack Baron Salazar, Inc., provides that, “[n]o claim, dispute, or other matter in question between the parties to this agreement arising |sout of the Construction contract, or the breach thereof, shall be submitted to arbitration.”

Following a hearing, the trial court granted defendants’ exception of prematurity and provided the following well-written reasons for judgment, in pertinent part:

Although the disputes section of the Construction Contract between CEW and the Project Owner provides that no issue shall be submitted to arbitration, it states that the parties further agree that no dispute between the Owner and the Contractor may be litigated unless and until the parties have first submitted the dispute to non-binding mediation pursuant to the Construction Industry Mediation Rules of the American Arbitration Association. Const. Cont. at Section 4.5. Louisiana Law provides that separate agreements as part of the same transaction are to be construed together as consistently as possible. See Neal v. Hardee’s Food, 918 F.2d 84, 37, (5th Cir.1990). As such, if the court were to read the Construction Contract together with the subcontract it is clear that both the Construction Contract and the subcontract seek to avoid litigation of matters. Even so, these were separate agreements, executed by different parties, entered into at different times, for different purposes and were not part of the same transaction. Id. Holding, “Under principles of contract law, separate agreements executed contemporaneously, by the same parties, for the same purpose, and as part of the same transaction, are to be construed together.” Thus, this Court finds that Plaintiff was not a party nor a third party beneficiary to the Construction Contract and cannot use the Construction Contract to avoid the terms of the subcontract that provide for arbitration. Furthermore, Louisiana Law provides that when the words of the contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. Art. 2046. The arbitration clause contained in the subcontract agreement is clear and explicit. Sturdy Built had the opportunity to and did in fact request numerous changes to the subcontract agreement; however, they made no changes to the arbitration provision contained therein. Plaintiff Sturdy Built did not attempt to modify or delete the Arbitration Clause contained in the subcontract even though they requested and received other changes to Uprovisions of the subcontract. Plaintiff knowingly and voluntarily entered into the arbitration agreement. As such, this Court finds that a valid arbitration agreement does exist.
After determining whether a valid arbitration agreement exist, the court must next decide whether the Plaintiffs claims fall within the scope of that agreement. The Arbitration clause contained in the subcontract provides, “any controversy or claim arising out of or related to this agreement or breach thereof shall be settled as follows.... ” See Subcontract Agreement at Section 24. This language is broad and Plaintiffs claims fall within the scope of the arbitration agreement. Louisiana courts have recognized a strong presumption in favor of arbitration and any doubt as to whether a controversy is arbitrable should be resolved in favor of arbitration. Moore v. Automotive Protection Corp., 97-0623, p. 2 (La.App. 4 Cir. 5/21/97), 695 So.2d 550, 551. As such, this Court finds that the broad language of this Arbitration Clause encompasses the Plaintiffs claims.
Finally, as to the exception of Prematurity, this Court must address Plaintiffs assertion that certain parties to the litigation were non-signatories to the arbitration agreement and as such cannot be made to arbitrate their claims. Pursuant to the theory of equitable estoppel, which would permit arbitration, a non-signatory to a contract with an arbitration clause can compel arbitration when the action is intertwined with, and dependent upon, that contract. Grigson v. Creative Artist [Artists ] Agency, L.L.C., 210 F.3d 524, 528 (5th Cir.2000) cert. den., 531 U.S. 1013, 121 S.Ct. 570 [148 L.Ed.2d 488] (2000). See also, Regions Bank v. Weber, [53] So.3d [1284], 2010 WL 5121074 (La.App. 4th Cir.), 2010-1169 (La.App. 4th Cir.12/15/10). Here, given the relatedness of the claims collectively asserted against Defendants, the arbitration agreement can be invoked by all Defendants, including the non-signatory Defendants. Id. at 527. The claims against the non-signatories are intertwined with and dependent upon the subcontract, and therefore they must also be sent to arbitration.

Sturdy Built now appeals the trial court’s judgment, which granted defendants’ dilatory exception of prematurity as well as the trial court’s denial of Sturdy Built’s motions for new trial. On appeal, Sturdy Built assigns the following [.¡assignments of error: (1) the trial court erred when it failed to interpret the General Contract as “trumping” the Subcontract; (2) the trial court erred in not first determining whether the General Contract/Subcontract system could not be interpreted on its face without resorting to secondary methods of interpretation; (3) the trial court erred when it found the alleged arbitration agreement extended to non-party Jorgensen; and (4) the trial court erred when it found that Sturdy Built’s verified allegations of intentional torts against Jorgensen are subject to the alleged arbitration agreement.

DISCUSSION

The determination as to whether to stay proceedings or to compel arbitration is a question of law. Saavedra v. Dealmaker Developments, LLC, 08-1239, p. 6 (La.App. 4 Cir. 3/18/09), 8 So.3d 758, 762. The standard of appellate review on questions of law is to determine whether the trial court was legally correct or incorrect. Id. The threshold inquiry a court must decide is whether the parties agreed to arbitrate their dispute, which is a twofold inquiry: (1) whether there is a valid arbitration agreement, and (2) whether the dispute in question falls within the scope of that agreement. Id. at p. 7, 8 So.3d at 763 citing Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 388. The question of whether the parties have submitted a particular dispute to arbitration — arbitrability—is generally one for the court to decide and, under the FAA, any doubt concerning the scope of which disputes are arbitrable should be resolved in favor of arbitration. Id.

The Louisiana statutory provisions for arbitration include La. R.S. 9:4201, which states:

IfiA provision in any -written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

La. R.S. 9:4202 provides:

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance -with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

In this case, Section 24 of the Subcontract Agreement between CEW and Sturdy Built clearly and unambiguously requires mediation and then arbitration of all disputes between CEW and Sturdy Built. As previously noted, Section 24 states:

Any controversy or claim arising out of or related to this Agreement or breach thereof shall be settled as follows:
A. Mediation shall be tried, utilizing a mutual [sic] agreeable mediator. Cost of the mediation shall be paid in equal parts by Contractor and Subcontractor. If the dispute is not resolved within 45 days of initial request for mediation then either party may proceed to file an arbitration demand.
B. If mediation fails, then by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. By agreement of both parties, in lieu of arbitration, the parties may select the judicial process. In such event suit shall be filed in State of Louisiana in the Parish in which the Project is located.

|7We, like the trial court, find no merit in Sturdy Built’s argument that the subcontract must be read together with the overall project construction contract. Not only was the overall project construction contract a separate agreement, executed by different parties, but Sturdy Built was neither a party nor a third party beneficiary to that contract. Under the clear language of the subcontract and under applicable Louisiana law, the trial court correctly ruled that Sturdy Built and CEW must proceed to arbitration.

The next issue to address is whether the trial court correctly ruled that Sturdy Built’s claims are subject to arbitration. On appeal, Sturdy Built claims that defendant Jorgensen cannot be compelled to

arbitrate since he was not a party to the arbitration agreement and because its claims against him are based in tort. Sturdy Built cites to an Alabama Supreme Court case, Ex parte Discount Foods, Inc., 711 So.2d 992 (Ala.1998) for the proposition that arbitration agreements between companies, no matter how broad, cannot be construed so broadly as to encompass intentional torts; however, as defendants correctly point out, this case is not binding on this Court and there is a substantial body of law holding otherwise.

Specifically, defendants cite to a Fifth Circuit case, Grigson v. Creative Artists Agency, LLC, for the proposition that a non-signatory to a contract with an arbitration clause can be compelled to arbitrate under an equitable estoppel theory, including when the action is intertwined with, and dependent upon, that contract. 210 F.3d 524 (5th Cir.2000). In Grigson, the issue is whether the trial court had abused its discretion by applying the doctrine of equitable estoppel to compel the arbitration of an action centered on a claim of tortious interference with a contract, where the contract contained an arbitration clause. The action was brought by signatories to the contract against non-signatories. The Fifth Circuit affirmed the | ¿trial court’s ruling and held “because this action is intertwined with, and dependent upon, that contract, its arbitration agreement should be given effect.” Grigson, 210 F.3d at 525. This Court has also applied the doctrine of equitable estoppel to compel a non-signatory defendant to an arbitration agreement to arbitrate with a signatory plaintiff. See Regions Bank v. Weber, 2010-1169, p. 11 (La.App. 4 Cir. 12/15/2010), 53 So.3d 1284, 1291. As stated in Grigson, “[t]he linchpin for equitable estoppel is equity-fairness. For the case at hand, to not apply this intertwined-claim basis to compel arbitration would fly in the face of fairness.” 210 F.3d at 528. We, like the Court in Grigson, do not And that the trial court abused its discretion in applying the equitable estoppel doctrine to find that the claims against defendants are so intertwined with and dependent upon the subcontract that they must be sent to arbitration as well.

Accordingly, we hereby affirm the judgment of the trial court.

AFFIRMED


author: SAUNDERS, J. AMY, J.,

text:
    Leah LASSEIGNE v. GERALD E. LANDRY, L.L.C., et al.
    No. 11-584.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 2011.

      Joseph Todd Puhekker, John T. Ortego & Associates, Lafayette, LA, for Defendants/Appellees, State Farm Fire & Casualty Co., Gerald E. Landry, L.L.C., Sug-arena Fuel Base.
    Peter Brian Derouen, Skinner Law Firm, L.L.C., Lafayette, LA, for Plaintiff Appellant, Leah Lasseigne.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, J.

Ijn this premises liability case, the Plaintiff failed to comply with discovery requests and disobeyed court-ordered discovery. Subsequently, the trial court entered a judgment of involuntary dismissal with prejudice against the Plaintiff. The issue in this case is whether the trial court abused its discretion in dismissing Plaintiffs case against the Defendants. For the reasons discussed herein, we set aside the trial court’s judgment and remand for an evidentiary hearing consistent with this opinion.

FACTS & PROCEDURAL HISTORY

The incident which gave rise to this case occurred in New Iberia, Louisiana on March 31, 2009, at the Sugarena Fuel Base convenience store. Leah Lasseigne, the Plaintiff (hereinafter “Lasseigne”), while delivering newspapers, stopped at the store and allegedly slipped and fell on the recently mopped floor. Lasseigne states that she suffered a mild concussion and injuries to her back, knees, and hip that still cause her pain. Lasseigne hired an attorney, Carl S. Jolivette (hereinafter “Jolivette”), on March 31, 2010, and filed suit the same day. Named Defendants were Gerald Landry, L.L.C., doing business as Sugarena Fuel Base, and ABC Insurance Company,' later identified as State Farm Fire and Casualty Company (hereinafter “Defendants”).

The Defendants mailed initial discovery requests to Jolivette on May 4, 2010. Having not timely received Lasseigne’s answers to interrogatories, Defendants mailed Jolivette a reminder letter regarding the overdue discovery responses on June 9, 2010. Defendants mailed another letter, dated July 1, 2010, that scheduled a discovery conference for July 7, 2010. Defendants’ counsel granted Jolivette an additional fifteen days to respond to the discovery requests. However, again, Joli-vette failed to respond to the requests. Subsequently, on July 28, 2010, 12Defendants mailed another letter setting a second discovery conference for July 23, 2010. At this conference, it was agreed that Defendants would receive their discovery requests on July 28, 2010.

•Jolivette again failed to meet the July 28, 2010 deadline. That day, Defendants filed a Motion to Compel Responses to Discovery. The trial court held a hearing on this motion on September 8, 2010. While counsel for the Defendants was in attendance, neither Lasseigne nor her attorney made an appearance. The trial court granted the Motion to Compel Responses to Discovery and ordered Lass-eigne to supply answers by October 4, 2010, and to pay the Defendants $500.00 in attorney’s fees. The Judgment states that if Lasseigne were to fail to timely respond, the trial court would “entertain a motion to dismiss all of [P]laintiffs claims against [m]over and/or other sanctions.”

Lasseigne failed to meet the court-ordered discovery deadline. Defendants subsequently filed a Motion to Dismiss all of her claims. The trial court entered an Involuntary Judgment of Dismissal which dismissed Lasseigne’s claims with prejudice.

Jolivette passed away on November 29, 2010, thirteen days after the judgment of dismissal was entered, due to a rare blood condition. Until the attorney conducting the inventory of Jolivette’s files contacted her, Lasseigne was unaware that her case had been dismissed. Lasseigne now appeals.

ASSIGNMENTS OF ERROR

1. The Trial Court failed to consider all evidence available to it when considering what sanctions to assess the Plaintiff for the delinquent discovery responses for which she had no knowledge of [sic].
2. The Trial Court failed to take the testimony of the Plaintiff to determine if the failure to respond to the Defendants’ discovery requests [was] “willful.”
3. The failure of the Trial Court to conduct an evidentiary hearing prior to dismissing the Plaintiffs suit, with prejudice, for the failure to timely respond to the Defendants’ discovery requests.

JjLAW AND ANALYSIS

The issue in this case is whether the trial court erred by dismissing Lass-eigne’s case against the Defendants. “The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion.” Hutchinson v. Westport Ins. Corp., 04-1592, p. 2 (La.11/8/04), 886 So.2d 438, 440 (citations omitted). After reviewing the record, we vacate the trial court’s judgment and remand for an evidentiary hearing consistent with this opinion.

ASSIGNMENTS OF ERROR NOS. ONE, TWO AND THREE

First, Lasseigne argues that the trial court erred by failing to consider all evidence available when deciding what sanctions to assess for delinquent discovery responses that she had no knowledge of. Second, she contends that the trial court erred by failing to take Lasseigne’s testimony to determine if the failure to respond to the Defendants’ discovery requests was “willful.” Third, Lasseigne argues that the trial court erred by failing to conduct an evidentiary hearing prior to dismissing her suit, with prejudice, for the failure to timely respond to the Defendants’ discovery requests. We find that each of these assignments of error can be resolved in the same discussion.

The sanctions available against a party for failure to comply with discovery orders are enumerated below:

A.If a party or an officer, director, or managing agent of a party or a person designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
[4(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Subparagraphs (1), (2), and (3) of this Paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.
B. Absent exceptional circumstances, a court may not impose sanctions under this Article on a person or party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
C. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

La.Code Civ.P. art. 1471.

The laws governing sanctions available for failure to comply with discovery are elaborated upon in the case of Horton v. McCary, 93-2315, pp. 9-11 (La.4/11/94), 635 So.2d 199, 203:

There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery. MTU of North America, Inc. v. Raven Marine, Inc., 475 So.2d 1063 (La.1985). Refusal to comply with court ordered discovery is a serious matter. See Chilcutt v. U.S., 4 F.3d 1313 (5th Cir.1993). Trial judges must have severe sanctions available to deter litigants from flouting discovery orders. National Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harvard L.Rev. 1033 (1978).
The Louisiana rule, like Federal Rule 37, allows the trial court to sanction a disobedient party with dismissal or a default judgment. Both dismissal and default are draconian penalties which should be applied only in extreme circumstances. Barnhill v. U.S., 11 F.3d 1860 (7th Cir.1993); Allen v. Smith, 390 So.2d 1300 (La.1980). Because the sanctions of dismissal or default involve property rights, those | .^sanctions are generally reserved for the most culpable conduct. See Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909); and Société Internationale Pour Participations Industrielles et Commercials, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958).
Federal district courts consider four factors before granting a default judgment: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Batson v. Neal Spelce Associates, Inc., 765 F.2d 511 (5th Cir.1985); U.S. for Use of MCO Const. v. Shipco General, 814 F.2d 1011 (5th Cir.1987).
Dismissal and default are generally reserved for those cases in which the client, as well as the attorney, is at fault. Compare Allen v. Smith, 390 So.2d 1300 (La.1980). The record must support “a finding that the failure was due to ... willfulness, bad faith, or fault.” [Id.] at 1302 (emphasis added).

Using the standards given above to determine whether the trial court’s dismissal with prejudice was appropriate, we must apply the factors enumerated in Horton. Here, Lasseigne explains in her brief that neither her failure to comply with discovery requests nor her disobedience of court-ordered discovery was willful. She further explains that Jolivette’s illness and death were the major causes of her case failing to go forward. However, the record lacks further evidence with which to evaluate any of the Horton factors. Therefore, we remand this case for an evidentiary hearing consistent with Horton.

We must also keep in mind the nature of the sanction imposed. Dismissal with prejudice is a harsh measure to be taken, especially upon a plaintiff who appears to be without fault or intention in her noncompliance. Id. Here, while both noncompliance with discovery requests and disobedience of court-ordered discovery occurred, question remains over whether no sanctions or less drastic sanctions would be appropriate.

| (¡Thus, we vacate the judgment of dismissal with prejudice and remand this case for an evidentiary hearing consistent with Horton. Thereupon, the trial court is to render a judgment based on the evidence adduced at the hearing.

CONCLUSION

Due to lack of evidence in the record, we set aside the trial court’s judgment and remand for an evidentiary hearing in accordance with Horton, 635 So.2d 199, in order to determine the appropriate sanctions under La.Code Civ.P. art. 1471, if any. All costs are assessed equally between the parties.

REVERSED AND REMANDED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

hln my opinion, an affirmation is warranted since this matter must be resolved solely with regard to the record before the court. Reference to this record demonstrates that the plaintiff, through her attorney, failed to comply with a discovery order issued by the trial court and that she and her attorney further failed to appear at the hearing on the motion to dismiss. The trial court could have permissibly considered the disregard for the court-ordered discovery apparent from the record and could have attributed that to the plaintiff, insofar as she was served through her attorney. Based on these facts from the record, I do not see that the trial court’s ruling runs afoul of either La.Code Civ.P. art. 1471 or Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199. Although the plaintiff now alleges certain facts, I do not find that the trial court either erred or abused its discretion as those facts were not before it at the time of its ruling.

For these reasons, I respectfully dissent.