text:
    Delores THOMAS, Plaintiff-Appellee v. TRI-STATE FOODS, L.P. and/or Southeast Foods, Inc. of Mississippi, d/b/a County Market, Defendant-Appellee.
    No. 45,689-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Henry M. Bernstein, Baton Rouge, LA, for Appellant, Cochran Construction Co., Inc.

      Ayres, Warren, Shelton & Williams, L.L.C., Shreveport, LA, by Lee Ayres, Mark E. Posey, Sarah E. Smith, for Appel-lee, Southeast Foods, Inc., dba County Market.
    Law Offices of Ronald F. Lattier, Shreveport, LA, by Ronald F. Lattier, Curtis R. Joseph, Jr., for Appellee, LLC Delores Thomas.
    Before PEATROSS, DREW & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Cochran Construction Company (“Cochran”), appeals a judgment of the trial court in favor of Plaintiff, Delores Thomas, for injuries sustained while Ms. Thomas was shopping at a County Market store and a light fixture fell and struck her on the head. The trial court found Cochran to be 100 percent at fault for Ms. Thomas’ injuries. Also before us is an Exception of Prescription filed by Cochran as an original matter in this court and referred by the court to the merits of the appeal. For the reasons stated herein, we find that the claim of Ms. Thomas against Cochran has prescribed; and, therefore, we sustain the Exception of Prescription, dismiss with prejudice the action against Cochran and vacate the judgment of the trial court in favor of Ms. Thomas.

FACTS

On June 2, 2004, Ms. Thomas was shopping at a County Market grocery store in Shreveport when a metal light fixture fell from the ceiling and struck her on the head. The store was undergoing construction in the produce area which entailed the demolition of a wall near where the light fixture fell. On June 1, 2005, Ms. Thomas filed suit against the grocery store, seeking general and special damages for her injuries. County Market filed an answer generally denying any wrongdoing. By way of amended answer, County Market alleged that Cochran Construction Company was liable for any damages because Cochran had been hired by County Market to perform the demolition. Thus, on November 23, 2005, Ms. Thomas requested leave to file an amended petition adding Cochran as a defendant. |2The court granted leave and Cochran was added as a defendant by Supplemental and Amending Petition on November 25, 2005, 18 months after the accident. In the amended petition, Ms. Thomas alleged that Cochran negligently installed the light fixture and that Cochran’s negligence caused her injuries.

Cochran responded with an Exception of Prescription in which it argued that Ms. Thomas’ claim against Cochran was filed more than a year after the accident. Ms. Thomas opposed the exception, arguing that her petition related back to the timely filing of the original lawsuit against the store because the store and Cochran were solidary obligors. The minutes of court reflect that the parties agreed to refer the exception to the merits of the case. The matter proceeded to trial in 2009; and, as previously stated, the court found Cochran to be 100 percent liable for Ms. Thomas’ injuries. The record does not contain a ruling by the trial judge on Cochran’s Exception of Prescription; and, therefore, the exception will be considered by this court as having been tacitly overruled. Ms. Thomas did not take a protective appeal of the judgment dismissing County Market from the suit, and the judgment finding no liability on the part of County Market is now final.

Cochran now appeals the judgment in favor of Ms. Thomas and, as stated, has re-urged the Exception of Prescription in this court.

^DISCUSSION

Exception of Prescription

As previously stated, suit was timely filed against County Market, but not against Cochran. Cochran argues that Ms. Thomas’ claim against it has prescribed because (1) the judgment finding no fault on the part of the store (and finding Cochran 100 percent liable) is now final since none of the other parties appealed (Ms. Thomas failed to take a protective appeal); and therefore, (2) the lawsuit against Cochran was untimely because Ms. Thomas did not timely file suit against any obligor who has any fault for her injuries.

Opposing the exception, Ms. Thomas argues that County Market and Cochran are solidary obligors; and, thus, prescription was interrupted with the timely filing against County Market.

Delictual actions are subject to a liberative prescriptive period of one year, which commences to run from the date the injury is sustained. La. C.C. art. 3492. Under article 3462, prescription is interrupted by the commencement of suit against the obligor in a court of competent jurisdiction and venue. Further, the interruption of prescription by suit against one solidary obligor is effective as to all soli-dary obligors. La. C.C. arts. 1799 and 3503. A suit timely filed against one defendant, however, does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to the plaintiff since no joint or solidary obligation would exist. Levingston v. City of Shreveport, 44,000 (La.App.2d Cir.2/25/09), 4 So.3d 942, writ denied, 1409—0673 (La.5/15/09), 8 So.3d 586. In the similar case of Adams v. Dupree, 94-2353 (LaApp. 4th Cir.10/12/95), 663 So.2d 433, writ denied, 95-2750 (La.1/26/96), 666 So.2d 676, our brethren in the fourth circuit explained:

Initially, we observe that prescriptive statutes are strictly construed, and where there are two permissible constructions, that which maintains the action should be adopted. It is well settled that suit against one joint tortfeasor will interrupt prescription as to other joint tortfeasors. La.C.C. art. 2324(C). The same rule applies with respect to solidary obligors. La.C.C. arts. 1799, 3503. It is equally clear that if, after trial, it is determined that there is no in solido obligation, prescription may be successfully asserted by the untimely sued defendant who is cast in judgment. (Internal citations omitted.)

In the case sub judice, because the timely sued defendant, County Market, was not found to be liable for the accident and no appeal was taken from that judgment, prescription against Cochran was not interrupted and Ms. Thomas’ suit against it has prescribed, unless some other basis exists to revive the suit, such as an avenue for relation back under La. C.C.P. art. 1153. See Renfroe v. State, Dept. of Transp. and Development, 01-1646 (La.2/26/02), 809 So.2d 947.

In that regard, La. C.C.P. art. 1153 provides for the relation back of pleadings: La. C.C.P. art. 1153 attempts to strike a balance between a plaintiffs right to proceed against the correct defendant and the defendant’s right to be free from stale and prescribed claims. Levingston, supra, New plaintiffs and | .^defendants may be added by amended pleadings if the applicable criteria are met. Article 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of the filing of the original petition:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Ray v. Alexandria Mall, Through St. Paul Property & Liability Ins., 434 So.2d 1083 (La.1983).

Cochran is a wholly new and unrelated defendant. Further, it is not disputed that Cochran did not have notice of the suit until after expiration of the prescriptive period. The criteria of article 1153 and Ray, supra, are not met in this case. The claim of Ms. Thomas against Cochran has prescribed.

DECREE

For the foregoing reasons, the Exception of Prescription filed by Cochran Construction Company is sustained and the claim of Delores Thomas against Cochran Construction Company is dismissed with prejudice. The judgment in favor of Delores Thomas and against Cochran | ^Construction Company is vacated. Costs of appeal are assessed to Delores Thomas.

EXCEPTION OF PRESCRIPTION SUSTAINED, JUDGMENT VACATED.

      . Originally named as defendants were TriState Foods, L.P. and/or Southeast Foods, Inc. of Mississippi, d/b/a County Market.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Robert Michael ATKINS, Plaintiff-Appellee v. SIX C PROPERTIES, L.L.C., Defendant-Appellant.
    No. 45,682-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Martin Law Firm by Dale P. Martin, Broussard, Louisiana, for Appellant.
    Kelly & Townsend, LLC by T. Taylor Townsend, Natchitoches, Louisiana, for Appellee.
    Michael L. Glass, Esq., Alexandria, Louisiana, for Whitetails of Louisiana, Inc.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   CARAWAY, J.

hThe plaintiff owns a 10-acre rural tract of land completely surrounded by the property of defendant. When the defendant erected an 8-foot fence surrounding plaintiffs property, plaintiff instituted suit seeking to have the fence declared a nuisance and requiring its removal. The trial judge ruled in favor of plaintiff on the issue of nuisance and ordered the fence removed. This appeal by defendant ensued. For the following reasons, we reverse the trial court’s finding of nuisance. Nevertheless, we remand the case since the trial court’s ruling did not completely adjudicate the landowners’ boundary and access issues also raised by the evidence.

Facts

In 2002, Robert Michael Atkins (“Atkins”) purchased an approximately 10-acre rural tract of land in Winn Parish, described as the South Half of the North Half of the Northwest Quarter of the Northwest Quarter of Section 11, Township 11 North, Range 1 West. The land not only had sentimental value to Atkins as family property, but also served as a recreational tract for deer and wild hog hunting. All of the property surrounding Atkins’ tract of land is owned by Six C Properties, L.L.C. (“Six C”), which owned between 30,000 and 40,000 acres of land. Atkins had access to his property by a private road owned by Six C located on Six C property near the eastern end of the Atkins property.

Approximately four years after Atkins purchased the tract, Six C erected an 8-foot fence to surround 27,000 acres of its land including the Atkins tract. The fence completely surrounded the entirety of Atkins’ property, but had two gates on the eastern side of Atkins’ 12property along the road. When conflict over this fence arose, Atkins obtained the following survey:

The survey indicated that the Six C fence encroached on a portion of the eastern side of the Atkins tract. The survey also reflected that the access road was located a short distance from the western boundary of Atkins’ tract and thus required Atkins to traverse Six C property in order to gain access to the road. On August 2, 2007, Atkins instituted a petition for possession, damages, treble damages, termination of nuisance and trespass. Atkins prayed for judgment recognizing his right to possess that portion of the tract Isover which the fence allegedly encroached and damages for removal of trees thereon by Six C, alleging that “he and his ancestors in title have had possession of the immovable property in question for more than thirty (30) years.” Six C filed a reconventional demand seeking the fair market value of trees removed, cut, destroyed or damaged “on the property of the Answering Defendant” or from that portion of its property between the Atkins tract and the road, treble damages under La. R.S. 3:4278.1 and attorney’s fees.

Prior to trial, the parties stipulated to Atkins’ ownership of the tract, Six C’s ownership of the entirety of the property surrounding the tract and that Atkins’ tract was surrounded completely by the 8-foot fence with a gate at the front of the property. At trial, Atkins’ surveyor testified to the correctness of the survey. He testified that part of the Six C fence encroached on the Atkins tract.

Atkins testified that he purchased the tract in 2002 because he wanted to keep it in his family and for hunting because it was a “hot spot” for deer. Atkins’ grandfather bought the tract in the forties or fifties and it had sentimental value to Atkins. Atkins had spent some of his childhood on the tract with his uncle and had visited the property on an annual basis. Atkins testified that the hunting was good on the property because it was an old ridge, and there was a good food source for the deer. He stated, however, that the property lost its hunting value since the erection of the fence because of the lack of access by the deer to the property. According to Atkins, there’s “no hunting to it.” The deer enter the tract through the gates, |4which were “half the time” closed but could not figure out how to get out through the gates. Atkins identified two photographs which depicted dead deer which had been trapped inside his property and killed by coyotes. Atkins stated that it would be impossible to hunt deer with dogs on the 10-acre tract.

Atkins also testified that the fence forced him to travel thirteen miles to get to his property on the west side instead of two-and-one-half miles from the east. He claimed that this was because the “main outside” fence “cut me off from the old ridge road that I used to go to the property on.” Atkins testified that he only learned of the fence after its construction.

Atkins testified that when he was a teenager he had a conversation with his uncle regarding the “rear” boundary of the tract of land. He recalled that his uncle told him that a timber company began cutting trees “off the back and moved the line to the front.” Atkins testified that his survey moved the eastern boundary back to “where it was when [he was] a kid,” but that for fifty years the property line for this piece of property was basically where the fence was placed by Six C.

An expert forester, Mike Albritton, testified for Atkins regarding the market value of the timber on Atkins’ lot. In his opinion, Albritton estimated that the value of the timber removed from one-quarter acres of Atkins’ land was $500.00.

Steve Gleason, a forester for Six C, was called to testify by both parties. Gleason testified that no survey of the property was done before Six C erected the fence and that the best use of the Six C property was for | r,forestry. Gleason testified that the Six C property had been used by timber leasing companies over the years and that the property had been used for timber production in excess of forty or fifty years. Gleason testified that part of his duties as forester was consideration of wildlife on the property. Gleason stated that hogs had damaged Six C’s property. Gleason also testified that the fence was put up due to liability concerns, trespass and timber management. Gleason knew of many occasions of trespass on the property which raised fire concerns. Gleason agreed that the fence around the Atkins property made it virtually useless for deer hunting. He also admitted that he would not lease the property for deer hunting. Gleason estimated that the value of the fifty stumps removed by Atkins from the front of his property that belonged to Six C was in the $500.00 range.

Finally, Terry Carr, who worked for one of the Six C owners, testified that he managed the wildlife on Six C’s property and took care of the roads. Carr discussed a “game pen” covering 1200 acres of Six C’s property for which Six C has obtained a deer farm permit. The 1200 acres did not involve the area around the Atkins property. Carr testified that Six C obtained a permit for the deer with the Louisiana Wildlife and Fisheries Commission which inspects the operations. The Louisiana Department of Agriculture issued the permits for the fencing of the 1200 acres.

After hearing all of the testimony and considering the evidence presented by both sides, the trial court adopted the survey submitted by Atkins and ruled that Six C’s fence encroached on the eastern side of Atkins’ property and disturbed his possession of the land. The judgment [ firecognized Atkins’ right to continued possession of the eastern end of the tract and ordered Six C to assert any adverse claim of ownership by filing a petitory action within 60 days of judgment. Atkins was awarded $500.00 in damages for Six C’s removal of timber from the western end of Atkins’ property. The court awarded Six C $500.00 in damages against Atkins for trees removed from that portion of its property near the access road on the west. The court denied Six C’s treble damage claim. Six C appealed only that portion of the judgment which declared the fence a continuing nuisance and ordered its removal.

Relevant to the nuisance claim, the trial court judgment provides as follows:

The fence erected by Six C Properties, L.L.C., is a continuing nuisance, [under La. C.C. art. 667] and Six C Properties, L.L.C., shall remove said fence from around the property of Mr. Atkins within sixty (60) days of this Judgment becoming executory.

In oral reasons, the court stated as follows:

Now, the only other issue in this case is whether or not the erection of this fence is legal under ... Civil Code Articles 667 and following. It’s a basic rule of law in this state that a land owner can do as he wishes with his property so long as it doesn’t cause damage to his neighbor. This is a fact specific ruling I’m making on the circumstances that exists here in this case. This is a land lock piece of land that has been fenced up by the owner of the adjacent property.
⅜ * *
I believe the sole only reason that this fence was put up was to prevent Mr. Atkins from being able to hunt any more and that’s what I believe. I believe that to be a fact and in light of that and in light of the circumstances here, I am going to declare that the fence is a continuing nuisance and I’m gonna order the removal of that fence from around the property of Mr. Atkins, the entirety of it.

1 tDiscussion

Title IV of Book II (Things and the Different Modifications of Ownership) of the Louisiana Civil Code addresses predial servitudes which are defined as a charge on a servient estate for the benefit of a dominant estate where the two estates belong to different owners. La. C.C. art. 646. Predial servitudes may be natural, legal and voluntary or conventional. La. C.C. art. 654. Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. La. C.C. art. 659.

Specifically, Chapter 3 of the title on predial servitudes addresses legal servi-tudes, with Section 1 of that chapter addressing limitations of ownership. Included within Section 1 are La. C.C. arts. 667 and 668 which read in relevant part:

Article 667. Limitations on use of property
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
Article 668. Inconvenience to neighbor Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.

Obligations of vicinage imposed by Articles 667 and 668 are legal servi-tudes imposed on the owner of property. As a general rule, the [^landowner is free to exercise his rights of ownership in any manner he sees fit. He may even use his property in ways which occasion some inconvenience to his neighbor. However, his extensive rights do not allow him to do real damage to his neighbor. Rodrigue v. Copeland, 475 So.2d 1071 (La.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1262, 89 L.Ed.2d 572 (1986). In determining whether a work or activity occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. This analysis requires consideration of factors such as the character of the neighborhood, the degree of intrusion and the effect of the activity on the health and safety of the neighbors. Id.

The prohibitions contained in Articles 667 and 668 are not limited to physical invasion of neighboring property. The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage. Rodrigue v. Copeland, supra. The law of nuisance in Louisiana, in accord with the general rule throughout the United States, is based on common sense and reason. So long as a person does not violate any statute he has a right to use his property as he sees fit limited only by the prohibition against abuse of the privilege by undue interference with the rights of his neighbor. Woods v. Turbeville, 168 So.2d 915 (La.App. 2d Cir.1964).

|9If there is a substantial interference with the rights of a plaintiff to the peaceful use of his premises and to such rest and quiet as may be expected in such a neighborhood, and if the interference is not temporary but obviously will continue unless prevented by judicial process, a right to injunctive relief exists. Fos v. Thomassie, 26 So.2d 402 (La.App.Orleans 1946). See also, Diefenthal v. Longue Vue Management Corp., 561 So.2d 44 (La.1990); Rodrigue v. Copeland, supra.

Section 2 of the chapter on legal servi-tudes governs common enclosures. In that section, La. C.C. arts. 684 and 685 read as follows:

Article 684. Enclosures
A landowner has the right to enclose his land.
Article 685. Common Fences
A fence on a boundary is presumed to be common unless there is proof to the contrary.
When adjoining lands are enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences by which the respective lands are separated.
When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances.

In an early ruling, the court held that the owner of a lot had the right to build an 18 to 20-foot fence on his own lot. Parle v. D’Arcy, 28 La. Ann. 424, 1876 WL 8566 (1876).

In this dispute, the trial court’s ruling rests upon the finding of a nuisance under Civil Code Article 667. That article provides a legal predial servitude regulating the use and enjoyment of neighboring properties. Additionally, however, our law for legal servitudes addresses the neighboring owners’ rights to construct a fence on their common boundary | inwith or without joint expenditures by both owners. La. C.C. art. 685. With the exception of the portions of Six C’s fence that may have encroached on Atkins’ tract or involved Atkins’ access rights to the road, Six C constructed a fence along the two owners’ common boundaries. That right for a boundary fence being specifically insured as a legal servitude of which neither of the adjacent owners may complain, the construction of such fence cannot also be held a nuisance under the more general pronouncement of Article 667. Thus, the trial court erred in ordering the removal of the entirety of the fence.

Additionally, we reject Atkins’ contention that the height of the fence is unreasonable and that Six C may be required to lower it to allow for the access of deer. This argument is also answered by the clear implications of the Civil Code provisions. The owner of land “may raise his house as high as he pleases” even though “it should occasion some inconvenience to his neighbor.” La. C.C. art. 668. Likewise, the code requires a property owner to obtain a conventional predial servitude of view “to prevent the raising of constructions on the [neighboring] servient estate that would obstruct the view.” La. C.C. art. 701. In the absence of the neighbors’ contracting for such servitude, a tall construction on the adjacent tract does not create a nuisance.

Our determination that Six C may maintain its boundary fences adjoining Atkins’ property does not, however, completely resolve the controversy between the parties as shown by the evidence presented to the trial court. The trial court correctly expressed its concern that the Atkins |nproperty appeared landlocked or totally enclosed by the fence and away from an access road because of the property’s location. Indeed, the survey map shown above depicts the nearest road as located in Section 10 and not contiguous to the 9.98-acre tract in Section 11 identified in the survey. While this case was tried as a nuisance claim and a real action involving these adjoining owners’ boundaries, all issues pertaining to their four common boundaries comprising each side of this rectangular tract have not been resolved by the judgment, and even more significant, the judgment leaves Atkins’ tract an enclosed estate. Under La. C.C.P. art. 3693, the boundary action which these parties effectively litigated called for the court to fix their disputed boundaries and, in the process, also address the issue of an enclosed estate.

The rights of landowners of enclosed estates are governed also by our law for legal servitudes which provides:

Article 689. Enclosed Estate; right of passage
The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.
Article 690. Extent of Passage
The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.

The trial court’s judgment reflects that two encroachments, one by each party, exist respectively on the west and east ends of the property |12affecting narrow strips of land. These encroachments, however, may well amount to sufficient adverse possession to affect the ownership of these tracts, as Atkins’ testimony admitted that the adverse possessory actions by the parties and their ancestors-in-title had existed for over fifty years.

The trial court’s judgment required Six C to bring a petitory action in accordance with La. C.C.P. art. 3662(2) within 60 days of the finality of the present judgment because of its encroachment on the east side of Atkins’ property. Inconsistently, the judgment made no such requirement for Atkins’ encroachment extending to the road on the west side. This inconsistency and the inconclusiveness of the ruling regarding ownership and the fixing of the east and west boundaries apparently resulted from the trial court’s acceptance of the survey carte blanche. Such acceptance makes the Atkins tract an enclosed estate, ignoring Atkins’ occupancy and possession that had apparently extended to the private road, which is a visible boundary on the west side of his property. That road appears located in Section 10 beyond Atkins’ western boundary called for by the governmental description for his property along the section line between Sections 10 and 11. Nevertheless, the undisputed testimony concerning Atkins’ adverse possession into Section 10 to the road does not appear to have been considered.

For these disputes between adjacent landowners, the court shall fix the boundary according to the ownership of the parties; if neither party | ^proves ownership, the boundary shall be fixed according to limits established by possession. La. C.C. art. 792. Although the findings of a surveyor are important for the evidentiary considerations in the boundary action, “the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.” La. C.C.P. art. 3693. Therefore, should the adjacent owners’ possessions exhibited within existing visible bounds be at variance with their common boundary identified by the descriptions in their titles, the actual corporeal possession and any change in ownership resulting from adverse possession may prevail over a surveyor’s determination of that common boundary. La. C.C. art. 794.

In conclusion, because of the above error in the judgment regarding the issue of nuisance, we reverse the judgment’s order for the removal of Six C’s fence around the Atkins property. The fence shall remain insofar as it extends along the common boundaries that are undisputed on the north and south sides of the Atkins tract. However, because of the inconclusiveness of the trial court’s judgment for the boundary disputes on the east and west sides of the property and for the issue of Atkins’ access to his property, the case is remanded for further proceedings for those determinations. The existence of any private road(s), or conventional predial servitudes of passage, extending to the Atkins tract as the dominant estate should be determined so as to address and alleviate the issue of an enclosed estate. The court should also consider the propriety of any fence impediment pertaining to such road as imposed by the owners of the 14servient estate. La. C.C. art. 705; Cf., Kaffie v. Pioneer Bank & Trust Co., 184 So.2d 595 (La.App. 2d Cir.1965); Clause v. Broussard, 146 So.2d 828 (La.App. 3d Cir.1962), writ denied, 243 La. 1004, 149 So.2d 763 (1963).

Conclusion

For the foregoing reasons, the judgment of the trial court ordering the removal of Six C’s fence on the grounds of nuisance is reversed. The case is remanded for a determination of the boundary disputes on the east and west sides of the property and Atkins’ access to his property. Costs of appeal shall be borne equally by the parties.

JUDGMENT REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      . La. C.C.P. art. 3693 provides:
      After considering the evidence, including the testimony and exhibits of a surveyor or other expert appointed by the court or by a party, the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.

      . Six C’s placement of its fence along the road was arguably a tacit recognition of Atkins’ existing possession of his tract to the road, and if Atkins’ ownership is found to extend to the road, the placement of such fence on Atkins’ side of the road was arguably improper.


author: PEATROSS, J.

text:
    Charlotte AMOS and Norman Artez Amos, individually and as Natural Tutor of Charlita Thomas v. Police Officer Kristopher L. WALKER, The Town of Jonesboro and Louisiana Municipal Risk Management, Defendants-Appellees.
    No. 45,679-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      John L. Dorsey, Counsel for Appellants.
    Stamey & Miller, LLC, Natchitoches, LA, by Joseph B. Stamey, Counsel for Appellees.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

hln this tort suit, Plaintiffs, Charlotte Amos and Norman Artez Amos, individually and on behalf of Charlita Thomas (collectively referred to as “Ms. Amos”), brought suit against Officer Kristopher L. Walker and the Town of Jonesboro (collectively referred to as “Officer Walker”), alleging damages sustained as a result of an automobile collision occurring on August 24, 2003. Ms. Amos alleged that the accident was caused as a result of the sole fault and negligence of Officer Walker. A trial solely on the issue of liability took place in September 2009. Determining that the vehicle accident was caused solely by the fault and negligence of Ms. Amos, the trial judge rendered a judgment in favor of Officer Walker, dismissing Ms. Amos’ claims. Ms. Amos now appeals. For the reasons stated herein, we affirm.

FACTS

On August 24, 2003, an automobile accident occurred between Charlotte Amos and Officer Kristopher L. Walker in Jonesboro, Louisiana. Ms. Amos was traveling East on LA Hwy 4 in her 1998 Plymouth van with Charlita Thomas riding as a passenger. Officer Walker was also traveling East on LA Hwy 4 in his police cruiser and was in the process of responding to an emergency dispatch after receiving a “fight in progress” call. Officer Walker had activated his emergency lights and was continuing eastward until he came up behind Ms. Amos’ vehicle in a “no passing zone.” Officer Walker hesitated for a short time to judge whether or not it |2was safe to pass Ms. Amos’ vehicle. Determining it was safe, Officer Walker began to pass Ms. Amos’ vehicle by advancing in the left lane. As Officer Walker was attempting to pass, Ms. Amos turned left toward a driveway of the post office and the two vehicles collided. Later, it was discovered that the post office driveway into which Ms. Amos was attempting to turn was an “Exit Only” drive.

Officer Michael Linton was the officer assigned to investigate the accident. Officer Linton testified that, after investigating the scene, he went to Jackson Parish Hospital where he questioned Ms. Amos about the collision. Officer Linton testified that Ms. Amos told him that she had observed Officer Walker’s vehicle approaching from behind with the emergency-lights activated, but she assumed that, when she signaled to make a left turn into the post office, Officer Walker would proceed to pass her on the right.

As previously stated, Ms. Amos filed a Petition for Damages alleging that the accident occurred solely as a result of the fault and negligence of Officer Walker. In response, Officer Walker argued that Ms. Amos was entirely at fault for the accident because she failed to yield to an oncoming emergency vehicle. Due to multiple delays and continuances, trial of the matter did not begin until September 15, 2009. The trial judge elected to try solely the issue of liability and the trial ended after two days, at which point the trial judge took the matter under advisement. Approximately four months later on January 14, 2010, the trial court rendered a judgment in favor of Officer Walker, thereby dismissing Ms. Amos’ claims.

|3In his reasons for judgment, the trial judge stated that Ms. Amos was entirely at fault and liable for the accident because she failed to yield to Officer Walker’s oncoming emergency vehicle as required by La. R.S. 32:125, infra. The trial judge further indicated that Officer Walker’s actions fell within the purview of exceptions set forth in La. R.S. 32:24, infra. Since there was no evidence that Officer Walker had acted with gross negligence or reckless disregard for the safety of others, he was entirely free from fault and liability for damages resulting from the collision. This appeal ensued.

DISCUSSION

On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Sto-bart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Sto-bart, supra. The appellate court must not reweigh the evidence or substitute its |4own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

Where the fact finder’s conclusions are based on determinations regarding the credibility of a witness, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the fact finder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). With regard to decisions of law, a trial court’s ruling is subject to de novo review. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90.

In her first and second assignments of error, Ms. Amos asserts that the trial judge erred in failing to find that Officer Walker’s conduct rose to the level of “gross negligence” and that he breached the statutory duty he owed to Ms. Amos under the emergency vehicle statute. See La. R.S. 32:24. Ms. Amos contends that Officer Walker’s attempt to pass her vehicle in a “no passing zone” constituted reckless disregard for her safety and gross negligence. Ms. Amos points to subsection (D) of La. R.S. 32:24, which states that the statute is not intended to relieve the emergency responder of [san authorized vehicle from the duty to drive with due regard for the safety of all persons.

Officer Walker argues that the accident was caused by the sole fault and negligence of Ms. Amos due to her failure to yield to an oncoming emergency vehicle in the process of responding to a call. See La. R.S. 32:125. Officer Walker also contends that his actions fell within the purview of the exceptions listed in La. R.S. 32:24; and, therefore, he is immune from fault and liability in this case since he did not act with gross negligence or reckless disregard for the safety of others. We agree.

La. R.S. 32:24 provides the following with regard to emergency vehicles:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1)Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C.The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
IfiD. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

The Louisiana Supreme Court explained in Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175, that La. R.S. 32:24(D) sets forth two standards of care for an emergency vehicle driver, depending on the circumstances of the case. If, and only if, an emergency vehicle driver’s actions fit into subsections (A), (B) and (C) of the statute, will an emergency vehicle driver be held liable only for his or her actions which constitute reckless disregard for the safety of others. Lenard, supra. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections (A), (B) and (C) of the statute, such driver’s actions will be gauged by a standard of “due care.” Lenard, supra.

The failure of “due care” is synonymous with ordinary negligence. Lenard, supra. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. Lenard, supra. “Reckless disregard” is, in effect, “gross negligence.” Lenard, supra. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Lenard, supra, citing Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110 and 93-3112 (La.7/5/94), 639 So.2d 216.

Gross negligence has also been termed the “entire absence of care” and the “utter disregard of prudence, amounting to complete neglect of the rights of others.” Rabalais v. Nash, 06-0999 (La.3/9/07), 952 So.2d 653 (internal citations omitted). Gross negligence, therefore, has a well-defined |7legal meaning distinctly separate from ordinary negligence. Lenard, supra. In summary, “reckless disregard” or “gross negligence” is the standard to be applied if the emergency vehicle driver’s actions fall under subsections (A), (B) and (C) of La. R.S. 32:24. Lenard, supra. Otherwise, the standard is ordinary negligence. Lenard, supra.

Simply because an individual happens to be an emergency vehicle driver, however, does not automatically relieve him from liability for ordinary negligence. Lenard, supra. Subsection (D) of La. R.S. 32:24 provides that the provisions set forth in the statute do “not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons[.]” A breach of this duty will result in a finding of actionable negligence on the part of the driver. Pope v. Prunty, 37,395 (La.App.2d Cir.8/20/03), 852 So.2d 1213, writ denied, 03-2496 (La.11/26/03), 860 So.2d 1137; Butcher v. City of Monroe, 31,932 (La.App.2d Cir.5/5/99), 737 So.2d 189, writ denied, 99-1608 (La.9/17/99), 747 So.2d 566; United Bilt Homes, Inc. v. Schmitt, 29,837 (La.App.2d Cir.9/24/97), 699 So.2d 1167.

La. R.S. 32:125 addresses the duty of other motorists to yield to emergency vehicles:

A. Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
|8B. When any vehicle making use of any visual signals as authorized by law, including the display of alternately flashing amber or yellow warning lights is parked on or near the highway, the driver of every other vehicle shall:
(1) When driving on an interstate highway or other highway with two or more lanes traveling in the same direction, yield the right-of-way by making a lane change into a lane not adjacent to the parked vehicle, if possible with due regard to safety and traffic conditions. If a lane change is not possible, the driver shall slow to a reasonably safe speed.
(2) Maintain a safe speed for road conditions, if unable or unsafe to change lanes, or driving on a two-lane road or highway.
C. This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
D. Any person who violates the provisions of this Section shall, upon conviction, be subject to a fine not to exceed two hundred dollars.

The duty to yield the right of way to an emergency vehicle arises only when a motorist observes or hears, or under the circumstances should have observed or heard, the audible and/or visual warnings of such vehicle. Slone v. Greber, 43,471 (La.App.2d Cir.8/13/08), 989 So.2d 273; Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App.2d Cir.10/16/03), 859 So.2d 225; Pope v. Prunty, supra. The burden of proving negligence of the non-yielding motorist rests on the party asserting it. Slone v. Greber, supra; Neloms v. Empire Fire & Marine Ins. Co., supra; Pope v. Prunty, supra.

A left turn is generally a dangerous maneuver that must not be undertaken until the turning motorist ascertains that the turn can be made in safety. Bruce v. State Farm Ins. Co., 37,704 (La.App.2d Cir.10/29/03), 859 So.2d 296; Ditcharo v. Allstate Ins. Co., 99-1873 (La.App. 4th Cir. 911/8/00), 772 So.2d 928; Thomas v. Champion Ins. Co., 603 So.2d 765 (La.App. 3d Cir.1992). Louisiana courts have consistently held that a motorist is negligent when he or she fails to adhere to his/her duty to yield to an oncoming emergency vehicle by attempting to make a left turn into the path of that vehicle, thus resulting in a collision. See La. R.S. 32:125; Rabalais, supra; Jackson v. Town of Grambling, 29,198 (La.App.2d Cir.2/26/97), 690 So.2d 942; Smith v. Commercial Union Ins. Co., 609 So.2d 1024 (La.App. 2d Cir. 1992), writ denied, 612 So.2d 86 (La.1993); Mullins v. Travelers Ins. Co., 324 So.2d 613 (La.App. 2d Cir.1975).

In the case sub judice, Officer Walker’s actions fell within the purview of the exceptions listed in La. R.S. 32:24. He was in the process of responding to an emergency call, his emergency lights were activated and he cautiously approached Ms. Amos’ vehicle in order to determine that it was safe to pass before doing so, thus driving with due regard for her safety. See La. R.S. 32:24. Since Officer Walker’s actions fell within subsections (A), (B) and (C) of La. R.S. 32:24, he will only be held liable for his actions which constituted gross negligence or reckless disregard for the safety of others. Rabalais, supra; Le-ñará, supra. None of Officer Walker’s actions, however, rose to the level of gross negligence or reckless disregard for the safety of others. Accordingly, the trial judge did not err in finding that Officer Walker was entirely free from fault and liability with regard to the collision in this case.

Additionally, it was Ms. Amos’ failure to adhere to her duty to yield to Officer Walker’s oncoming emergency vehicle in accordance with La. | mR.S. 32:125 that caused the collision. In spite of seeing Officer Walker advancing toward her vehicle from behind with his emergency lights activated, Ms. Amos did not yield to Officer Walker’s vehicle by pulling to the right of the highway. Instead, Ms. Amos attempted to turn left, causing a collision between the two vehicles. Furthermore, Ms. Amos was attempting to turn into an “Exit Only” driveway.

Thus, we find Ms. Amos’ first and second assignments of error to be without merit.

In Ms. Amos’ third assignment of error, she complains that the trial judge erred in failing to apportion fault pursuant to La. C.C. art. 2323. The trial judge stated in his reasons for judgment that the accident “was solely caused by the negligence of Mrs. Amos[.]” Since the trial judge indicated in his ruling that Ms. Amos was entirely responsible and, thus totally liable for the accident, there was no percentage of fault which could have been apportioned to Officer Walker or to any other party or nonparty to this case.

This assignment of error is, therefore, without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Officer Walker and dismissing the claims of Ms. Amos is affirmed. Costs of this appeal are assessed to Charlotte Amos and Norman Artez Amos.

AFFIRMED.

      . Officer Walker testified that he had both the siren and the emergency lights activated. Ms. Amos claims that she never heard Officer Walker’s siren, although she admits that she did see the emergency lights activated on his police cruiser.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Decameo Marquis REYNOLDS, Appellant.
    No. 45,674-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, Cary T. Brown, Clifford Royce Strider, III, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and CARAWAY, JJ.
   GASKINS, J.

liThe defendant, Decameo Marquis Reynolds, entered a plea of guilty to two counts of second degree murder, reserving his right under State v. CrosbY, 338 So.2d 584 (La.1976), to appeal the trial court’s denial of his motion to suppress a confession made to law enforcement officers. The defendant was sentenced to serve two concurrent life sentences without benefit of parole, probation, or suspension of sentence. On appeal, the defendant argues that statements made to law enforcement officers were elicited after he invoked his right to remain silent and his right to counsel. For the following reasons, we affirm the convictions and sentences.

FACTS

In the early morning hours of June 7, 2007, the defendant went to a mobile home in Lincoln Parish to buy “some cigars and some weed.” The occupants of the dwelling, Willie Perry and Sharon Ann Newman, told the defendant to leave. The defendant and Perry got into a scuffle and Newman came outside with a pistol. The defendant went to a nearby car. Perry and Newman went back into the residence and went to bed. The defendant armed himself with a .32 caliber gun, entered the residence, and shot both Perry and Newman in the head while they were in bed. The victims died of their wounds.

The defendant was developed as a suspect in the killings. The next day, law enforcement officers located the defendant at his father’s house in Jackson Parish. The defendant was told that the officers wanted to question him about the murders. The defendant was not placed under arrest at that 1 ¡.point and went willingly with the law enforcement officers who transported him back to Lincoln Parish.

At the courthouse, the defendant’s handcuffs were removed and he was placed in a room that was used for interviews and for file storage. The defendant was given his Miranda warnings several times. He eventually waived his rights and gave a statement admitting the murders. He was charged by grand jury indictment with two counts of first degree murder. The defendant filed a motion to suppress his statements, claiming they were not voluntarily given and were obtained through continued interrogation after the defendant asserted his right to remain silent and his right to counsel.

A hearing on the motion to suppress was held on September 11, 2009. In an oral ruling on January 7, 2010, the trial court denied the motion to suppress. On January 12, 2010, the defendant entered a plea of guilty to the amended charge of two counts of second degree murder, reserving his right to appeal the trial court’s ruling on the motion to suppress under State v. Crosby, supra. The defendant was sentenced to serve two concurrent sentences of life imprisonment without benefits. The defendant appealed the denial of his motion to suppress.

MOTION TO SUPPRESS

On appeal, the defendant argues that the trial court erred in denying his motion to suppress statements made to law enforcement officers after he stated that he did not want to talk to them and invoked his rights as |senumerated in the waiver form provided by law enforcement officers. This argument is without merit.

Legal Principles

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Rod-dy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Franklin, 35,268 (La.App.2d Cir.12/19/01), 803 So.2d 1057, writ denied, 2002-0352 (La.2/7/03), 836 So.2d 85; State v. Roddy, supra.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, supra. See La. C. Cr. P. art. 703.

Although promises or inducements will void a defendant’s confession, a mild exhortation to tell the truth, or an indication that if the defendant cooperates the officer will “do what he can” or “things will go easier,” will not negate the voluntary nature of a confession. State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 1999-0331 (La.7/2/99), 747 So.2d 8. Appeals to a defendant’s emotions |4and/or religious beliefs typically do not render an ensuing confession involuntary. State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). See also State v. Murray, 546 So.2d 944 (La.App. 3d Cir. 1989); State v. Welch, 448 So.2d 705 (La.App. 1st Cir.1984), writ denied, 450 So.2d 952 (La.1984).

The exercise of the right to silence by an accused does not act as a complete bar to all further questioning. However, the police must “scrupulously honor” the right to cut off questioning by the person in custody. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Loyd, 425 So.2d 710 (La.1982). The question of whether an accused’s rights are “scrupulously honored” is a factual issue which depends upon the totality of the circumstances involved under the particular facts of each case. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). The factors to be considered are who initiates the further questioning; the time delay between the original request and subsequent interroga^ tion; whether Miranda warnings were given before each separate interrogation; whether waiver of rights forms were signed; and whether pressures were asserted on the accused by police between the time he invoked his rights and the subsequent interrogation. State v. Brooks, supra; State v. Hamilton, 94-696 (La.App. 5th Cir.12/14/94), 648 So.2d 939.

Invocation of the right to counsel during custodial interrogation has greater protection than the invocation of the right to remain silent, as police 15may not thereafter question the defendant unless he initiates further contact. See State v. Taylor, 2001-1638 (La.1/14/03), 838 So.2d 729, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004). When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). When an accused invokes his Miranda right to counsel, the admissibility of a subsequent confession or incriminating statement is determined by a two-step inquiry: (1) did the accused initiate further conversation or communication; and (2) was the purported waiver of counsel knowing and intelligent under the totality of the circumstances. State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997); State v. Abadie, 612 So.2d 1 (La.1993), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993); State v. Williams, 42,312 (La.App.2d Cir.8/15/07), 965 So.2d 541, writ denied, 2007-2158 (La.4/18/08), 978 So.2d 347.

In proving an intelligent waiver of the rights to silence, protection against self-incrimination and counsel, the state need not show that a | (¡defendant was aware of the full evidentiary significance of his statements. See State v. Mitchell, 421 So.2d 851 (La.1982).

The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Thibodeaux, 1998-1673 (La.9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000); State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006); State v. Dailey, 607 So.2d 904 (La.App. 2d Cir.1992). Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, supra. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra; State v. Allen, 40,972 (La.App.2d Cir.5/17/06), 930 So.2d 1122, writ denied, 2008-0507 (La.11/26/08), 997 So.2d 543. In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record. State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753; State v. Sherman, 2004-1019 (La.10/29/04), 886 So.2d 1116.

Discussion

At the hearing on the motion to suppress, the officers who were present during the questioning of the defendant testified. George Webb, an 17investigator with the Lincoln Parish Sheriffs Office, stated that the interview of the defendant began at 4:10 p.m. on June 8, 2007. The defendant was advised of his Miranda rights. The defendant was 22 years old and had completed three semesters of college. The defendant signed the rights form and agreed to answer questions without a lawyer being present.

According to Webb, Kenneth Wesley of the Lincoln Parish Sheriffs Office did the majority of the questioning of the defendant. Webb testified that the defendant was not forced, threatened, coerced or intimidated. No promises were made to the defendant. The initial part of the interview was not recorded. The defendant made no inculpatory statements at that time. For some reason, the defendant was uncomfortable with Webb being in the room. As Webb left the room, he turned on his voice recorder and placed it on top of a file cabinet in the room. Webb then stood outside the room.

A transcript of the conversation between Wesley and the defendant shows that the defendant initially denied involvement in the murders. Wesley asked the defendant whether he would rather face the electric chair or spend life in prison. The defendant said he would rather go to the electric chair. Wesley mentioned suspicions that the defendant was involved in another offense involving the rape and murder of a child. Wesley told the defendant that he would not make it out of Angola. The defendant stated, “I am through talking.” The interview was terminated.

Wesley told Webb that he and Stephen Williams, also of the Lincoln Parish Sheriffs Office, could go back into the room and talk to the defendant. The defendant stated to Webb and Williams that he had been |8informed of his Miranda rights, that he understood them, and “I’m gonna take em.” The interview was concluded.

While talking with the officers, the defendant asked to see his mother. Williams stayed in the unsecured file room with the defendant while Webb and Wesley went to get the defendant’s mother. While they were in the room together, the defendant initiated a conversation with Williams and asked him what he thought. Williams, who knew that the defendant had told his father that he committed the murders, told the defendant that he had put his father in a bad position because the defendant’s father might have to testify against him. The defendant asked for Wesley and said that he wanted to tell Wesley what happened.

Webb and Wesley were about two blocks from the courthouse when they were contacted and returned to the courthouse. Webb and Wesley went back into the room with the defendant. The defendant was again administered his Miranda rights and signed a form stating that he understood his rights and waived them. The defendant gave a statement confessing to the murders.

At the hearing on the motion to suppress, Wesley acknowledged that he had prayer with the defendant before the interviews. Wesley testified that he did not think his statements to the defendant regarding the electric chair, not making it out of Angola, and possibly being involved in another offense involving a child were threatening or intimidating.

|9In denying the motion to suppress, the trial court made this finding:

In the case at hand, the evidence is uncontradicted that after the defendant invoked his rights, the first interview ceased and the recorder was turned off. Webb and Wesley, at Reynold’s [sic] request, went to get his mother to bring her to Reynolds. At that point, Reynolds initiated a conversation with Williams and then he decided that he wanted to give a statement and he so told Williams. Webb and Wesley were notified and returned to the interview room where Reynolds was again Miran-dized and at that time gave a free and voluntary confession detailing his involvement in this particular crime. Accordingly, for the reasons hereinabove stated, the motion to suppress will be DENIED.

The trial court did not err in making this finding. At the hearing on the motion to suppress, the state established that the defendant was brought in for questioning regarding the murder investigation. He was advised as to why he was there and was properly advised of his Miranda rights. The defendant understood those rights and signed a waiver of rights form before talking to officers.

The record shows that the defendant voluntarily waived his rights and agreed to talk to the officers. When he later chose to exercise his rights, the officers scrupulously honored the defendant’s choice and ceased questioning. The fact that one of the officers remained in the room with the defendant while the others went to get the defendant’s mother was necessitated by security reasons. The record shows that it was the defendant who reinitiated contact with the officers. The defendant asked Williams what he thought. The defendant then asked for Wesley because he wanted to tell him what happened. He was again informed of his rights under Miranda and chose to waive those rights and confess to the murders. There is no showing that any statements made to the defendant during questioning were threatening, 1 incoercive, or intimidating. No promises were made to the defendant. This record shows that the confession made by the defendant was free and voluntary. Accordingly, we affirm the trial court decision to deny the defendant’s motion to suppress his statements.

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Deeameo Marquis Reynolds.

AFFIRMED.


author: WALLER, Chief Justice,

text:
    Shirley Ann James HANSHAW v. Larry HANSHAW.
    No. 2005-CT-01680-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.
    Rehearing Denied March 17, 2011.

      Stewart Guernsey, Clarksdale, attorney for appellant.
    Thomas H. Freeland, IV, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. Following the chancery court’s equitable division of the Hanshaws’ property, Shirley was held in contempt for failure to leave the marital home by the court-ordered deadline. The Court of Appeals reversed and rendered judgment in Shirley’s favor, and we granted certiorari. Although the court denied Shirley notice and a hearing, the record shows that she did not follow chancery court orders. Therefore, we vacate the Court of Appeals’ decision, reverse the chancellor’s contempt finding and subsequent denial of Shirley’s motion to reconsider, and remand the case to the chancery court for contempt proceedings consistent with this opinion.

FACTS AND PROCEEDINGS BELOW

¶ 2. The chancery court ordered the equitable division of assets and liabilities in the Hanshaws’ extremely contentious divorce. The court ordered the marital home to be sold by September 21, 2004. Shirley and Larry located a buyer and scheduled the closing for September 80, 2004. Later, Shirley rescheduled the closing for October 5, 2004.

¶ 3. Although Shirley had arranged for a company to move her belongings, she can-celled its services a day before closing. Thus, on October 4, 2004, counsel for both parties appeared before the court to express their concern that Shirley’s failure to vacate the home could prevent the scheduled sale. On October 5, 2004, the chancellor ordered Shirley to vacate the home by 2:00 p.m. on the scheduled closing day. If she failed to comply, she would pay Larry a $500-per-hour penalty for each hour she remained at the home, and she would be held in contempt. Shirley did not vacate the home as ordered.

¶ 4. On October 6, 2004, Larry filed a contempt motion, and the court ruled on the motion the next day. Because Shirley did not leave the home as ordered, the court imposed a $12,000 fine. Shirley paid the fine to Larry from her share of the proceeds from the sale of their home.

¶ 5. The chancellor later denied Shirley’s Rule 59 motion to reconsider the contempt finding. See M.R.C.P. 59. Shirley had argued that she should not be held in contempt because she did not receive notice and a hearing. The chancellor determined that Shirley’s general appearance before the court during a hearing on one of Larry’s motions had waived any jurisdictional deficiencies.

¶ 6. The Court of Appeals held that the chancellor erred in finding that Shirley had waived proper notice of the contempt action. Hanshaw, 55 So.3d at 173-74. Then, the Court of Appeals reversed the chancellor’s decision, rendered judgment in Shirley’s favor, and taxed all costs of the appeal to Larry. Id.

ISSUES

¶ 7. We rephrase and review the following issues raised by both parties.

I. Whether the trial court had jurisdiction to enter a contempt order against Shirley Hanshaw when she did not receive service of process consistent with Mississippi Rule of Civil Procedure 81.

II. Whether the trial court erred by assessing a $500-per-hour contempt penalty against Shirley Hanshaw.

DISCUSSION

I. Jurisdiction and notice

¶ 8. We review a chancellor’s denial of a Rule 59 motion under an abuse-of-discretion standard. Brooks v. Roberts, 882 So.2d 229, 233 (Miss.2004). On appeal, the movant prevails by showing that the denied Rule 59 motion would have “corrected] a clear error of law....” Id.

¶ 9. Because contempt proceedings are distinct actions, they require notice consistent with Mississippi Rule of Civil Procedure 81(d). M.R.C.P. 81(d); Shavers v. Shavers, 982 So.2d 397, 402 (Miss.2008); Isom v. Jernigan, 840 So.2d 104, 106 (Miss.2003); Dennis v. Dennis, 824 So.2d 604 (Miss.2002). A chancery court’s continuing jurisdiction to enforce a judgment does not waive the requirement for a Rule 81 summons in contempt actions. Vincent v. Griffin, 872 So.2d 676, 677 (Miss.2004). Where a party does not waive proper notice of a contempt action, we have reversed the contempt finding and remanded the matter to the chancery court. Id. at 679; Weeks v. Weeks, 556 So.2d 348, 350 (Miss.1990).

¶ 10. The Court, of Appeals properly relied on this Court’s opinions in Isom and Dennis to reverse the chancellor’s contempt finding. Hanshaw, 55 So.3d at 173-75. Here, the record does not indicate that Shirley received proper notice of the October 4 proceeding which led to her contempt citation. While counsel for both parties appeared before the court on October 4, Rule 81 requires that a summons be personally served on Shirley before the contempt proceeding. M.R.C.P. 81(d). Further, the record does not indicate that a Rule 81 summons was ever issued after Larry filed his October 6 contempt motion or before the court’s October 7 order holding Shirley in contempt. Because Shirley did not receive proper notice or an opportunity to defend against the charges in a contempt hearing, we reverse the chancellor’s contempt finding and subsequent denial of Shirley’s motion to reconsider. Shavers, 982 So.2d at 402; Brooks, 882 So.2d at 233.

¶ 11. But we also find that the Court of Appeals erred by rendering judgment in Shirley’s favor. While the record is limited, Shirley clearly did not comply with the chancery court’s orders to vacate the marital home. The chancellor had entered at least two valid orders that required Shirley to leave the marital home by specific dates. She did not comply with either order. Because Shirley did not follow unambiguous court orders, we remand this case to the chancery court for contempt proceedings properly noticed pursuant to Rule 81(d)(2). Vincent, 872 So.2d at 679.

II. Contempt penalty

¶ 12. With contempt matters, we defer to the chancellor’s discretion. Dennis, 824 So.2d at 608. When reviewing a chancellor’s contempt finding, we first determine whether the contempt is civil or criminal. Id. (citation omitted).

¶ 13. Civil contempt orders enforce a private party’s rights or compel compliance with a court’s order. Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1994). Hence, the contemnor pays any resulting penalty to the injured party. Id. We have allowed a chancellor wide discretion in “exerting his coercive powers to enforce his decrees.” Matthews v. Matthews, 227 Miss. 358, 86 So.2d 462 (1956). See also Miss.Code Ann. § 9-5-87 (Rev.2002). But because civil contempt vindicates a private party’s rights, the imposed sanction should not exceed the injured party’s damages and expenses. Wyssbrod v. Wittjen, 798 So.2d 352, 368 (Miss.2001). And generally, the court may award the prevailing party attorney’s fees. Ladner v. Logan, 857 So.2d 764, 773 (Miss.2003). See Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 466 (Miss.2009) (citation omitted) (“[W]here a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney fees and expenses should be awarded to the wronged party.”). We apply a manifest-error standard of review to civil-contempt orders. Purvis, 657 So.2d at 797.

¶ 14. Conversely, constructive criminal contempt punishes a party for noncompliant conduct outside the court’s presence. Moulds v. Bradley, 791 So.2d 220, 224-25 (Miss.2001). Along with proper notice and a hearing, criminal-contempt actions require additional procedural safeguards and a heightened burden of proof. In re Williamson, 838 So.2d 226, 237-38 (Miss.2002). The contemnor must pay constructive criminal-contempt fines to the court, rather than to an injured party. Common Cause of Miss. v. Smith, 548 So.2d 412, 416 (Miss.1989).

¶ 15. Shirley contends that the contempt finding was necessarily criminal. She argues that since the order finding her in contempt was entered after her contemptuous acts were completed, there was no way for her to purge herself of contempt. Further, if the chancellor imposed criminal contempt, the court exceeded Mississippi Code Section 9-1-17, which allows a $100 fine per contempt event. But Shirley also argues that remand is now “futile” since she has “purged herself beyond cavil” of any contempt.

¶ 16. While disputed, the record shows that the chancellor intended to impose civil contempt. The primary purpose of the prospective penalty was to compel Shirley’s compliance with the court’s earlier judgment, which had required the home to be sold by September 21, 2004. Alternately, the penalty attempted to compel her to move by the rescheduled closing date of October 5, 2004. The contempt finding also enforced Larry’s right to his portion of the proceeds from the sale. Finally, the court ordered Shirley to pay the fine to Larry, which further supports that the contempt was civil.

¶ 17. Here, the chancellor distributed the sanction to Larry without a finding on the damages, expenses, and attorney’s fees that Larry had incurred because of Shirley’s delay in leaving the home. Therefore, we find that the chancellor committed manifest error in not making this necessary finding for a civil-contempt citation. Purvis, 657 So.2d at 797.

¶ 18. We further find that Shirley has not “purged” herself of a civil-contempt finding simply because the time for her performance has passed. See Common Cause, 548 So.2d at 415 (citation omitted) (civil contemnor purges contempt finding by paying costs and expenses and complying with terms of court’s order). On remand, any potential civil-contempt sanction should appropriately measure Larry’s damages and attorney’s fees. Corporate Mgmt., Inc., 23 So.3d at 466. Likewise, in any future constructive criminal-contempt proceeding, the court should allow Shirley the appropriate procedural safeguards. In re Williamson, 838 So.2d 226 at 237-38. We leave the calculation of an appropriate penalty for a constructive criminal contempt finding to the chancellor’s discretion. Miss.Code Ann. § 9-1-17 (Rev. 2002).

CONCLUSION

¶ 19. We reverse the decision of the Court of Appeals rendering judgment in Shirley’s favor. We also reverse the chancellor’s contempt finding and subsequent denial of Shirley’s motion to reconsider and remand this case to the chancery court for contempt proceedings consistent with this opinion.

¶ 20. REVERSED AND REMANDED.

CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . The Court of Appeals’ opinion includes additional facts that are omitted here for brevity. Hanshaw v. Hanshaw, 55 So.3d 170 (Miss.Ct.App.2009).

      . The record does not show where the court approved a different deadline for the sale. Therefore, we assume that the closing deadline should have been September 21, 2004.

      . Shirley cites no relevant authority to support her related contentions that the contempt finding unjustly enriched Larry and that the amount of the sanction contributed to her "impoverishment by divorce.” We have no obligation to consider an assignment of error unsupported by reasons or authority. M.R.A.P. 28(a)(6); Hoops v. State, 681 So.2d 521, 535 (Miss.1996).