author: PAUL A. BONIN, Judge.

text:
    INNOCENCE PROJECT NEW ORLEANS v. The NEW ORLEANS POLICE DEPARTMENT, Ronal Serpas, et al.
    No. 2013-CA-0921.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2013.

      Richard Davis, Innocence Project New Orleans, New Orleans, LA, for Plaintiff/Appellee.
    Sharonda R. Williams, City Attorney, Churita H. Hansell, Deputy City Attorney, Kimlin S. Lee, Deputy City Attorney, Isa-ka Rachell Williams, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET.
   PAUL A. BONIN, Judge.

_]/The Innocence Project of New Orleans, a non-profit law firm which seeks to exonerate wrongfully convicted persons, submitted a public records request to the New Orleans Police Department through its records custodian, Superintendent Roñal Serpas. The records sought by the Innocence Project pertained to the police investigation and arrest of Bennie Brown, whose felony conviction became final in 1993. Superintendent Serpas, however, did not respond to this request within the statutorily-required three-day period. Following the informal, but documented efforts of the Innocence Project to obtain compliance over the next several months, including a threat to institute future legal proceedings, an assistant city attorney finally informed the Innocence Project by letter that Superintendent Serpas would not produce the records because the superintendent claimed that the records sought were statutorily exempt from production.

The Innocence Project then filed a petition for a writ of mandamus, which also sought attorney’s fees, the costs of litigation, and statutory penalties for Superintendent Serpas’ arbitrary, capricious, and unreasonable failure to timely |2respond to their public records request. After a hearing on the writ at which the superintendent qua custodian did not testify, the trial judge made the writ peremptory, ordering production of the public records. As the Innocence Project was the prevailing party, the trial judge awarded attorney’s fees and costs as required by Public Records Law. The trial judge further ordered Superintendent Serpas to pay penalties in an amount permissible under Public Records Law.

Superintendent Serpas reports that he furnished the public records as ordered by the trial court’s judgment, and does not appeal the issuance of the writ of mandamus. He does appeal the awards granted by the trial court. He does not appeal, however, the amounts of the attorneys’ fees, costs, and penalties. In brief, the Innocence Project also requests that we assess additional sums against the superintendent for filing a frivolous appeal.

Upon our de novo review of the trial court’s awards for costs of litigation and attorneys’ fees, we find that such awards were correctly rendered to the Innocence Project as the prevailing party. We have also reviewed the trial court’s award of penalties under an abuse-of-discretion standard, and find that the trial judge did not abuse his discretion in awarding penalties against the superintendent for his unexplained disregard of the statutory delays in notifying the Innocence Project of the basis of his refusal to produce the requested records. In light of the purposes and objectives of Public Records Law, such unexplained disregard is arbitrary, capricious, and unreasonable; and is deserving of sanctioning by the judiciary.

|sWe do not consider the merits of the Innocence Project’s request for additional sanctions stemming from the filing of what it characterizes as a frivolous appeal by the superintendent because the Innocence Project did not answer the superintendent’s appeal as required by La. C.C.P. art. 2133.

We explain our decision in greater detail below.

I

We begin our explanation with the reminder that the fundamental law of our state guarantees the right to “examine public documents.” La. Const, art. XII, § 3. The right to examine such documents may only be denied “in cases established by law.” Id. “Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” La. R.S. 44:31 A. Here, the custodian of the records of the New Orleans Police Department is Superintendent Serpas.

Because it is essential to the operation of democratic government that the people are aware of all exceptions, exemptions or limitations to the laws pertaining to public records, any such barrier to access not provided for in the Public Records Law itself or the state constitution is without effect. See La. R.S. 44:4.1 A. “The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.” La. R.S. 44:31 B(3) (emphasis added).

Ordinarily, if the public record is immediately available, it shall be produced immediately; if it is not available because it is in active use at the time of the request, then the custodian is required to make it available for the full exercise of |4the requester’s right under Public Records Law within three days, exclusive of Saturdays, Sundays, and legal public holidays. See La. R.S. 44:33 B(l). If a custodian challenges whether the requested material is a public record, the custodian shall also within that same three day period of the receipt of the request, exclusive of Saturdays, Sundays, and legal public holidays, “notify in writing the person making such request of his determination and the reasons therefor.” La. R.S. 44:32 D (emphasis added). “Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from' inspection, copying, or reproduction.” Id.

Here, the custodian, Superintendent Serpas, did not act within the three-day statutory period with respect to the public records request. He neither produced the records, nor notified the Innocence Project of his basis in law for not producing the records.

If the requester has been denied the right to inspect or copy a record “by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian,” the requester may institute proceedings for the issuance of a writ of mandamus, along with the award of attorney’s fees, costs, and damages. La. R.S. 44:35 A; see also La. C.C.P. art. 3863 (“writ of mandamus may be directed to a public official to compel the performance of a ministerial duty required by law”).

|BNotably, at the summary hearing on the petition for the writ of mandamus, “the burden is on the custodian to sustain his action.” La. R.S. 44:35 B. The trial judge determines the matter de novo, that is, without any deference to the custodian’s decision or the basis for that decision. See id. If the court finds that the custodian improperly withheld public records from the requester seeking disclosure, the court shall make the writ of mandamus peremptory. See La. C.C.P. art. 3866; see also La. R.S. 44:35 B.

The requester who prevails in such a suit “shall be awarded reasonable attorney’s fees and other costs of litigation.” La. R.S. 44:35 D (emphasis added). Additionally, if the court finds that the custodian unreasonably or arbitrarily failed to respond to,the request within the three-day statutory period, “it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of failure to give notification.” La. R.S. 44:35 E(l).

Here, the trial judge awarded attorney’s fees and the costs of litigation to the Innocence Project as the prevailing party. He also imposed a civil penalty of $5,000. Superintendent Serpas does not challenge the amount of the fees, costs, and penalties. He challenges the awards themselves. In Part II, we consider the award of attorney’s fees and the costs of litigation. We will address the award of civil penalties in Part III.

JiP

In its written request, the Innocence Project sought to inspect and copy all of the police department’s documents and material regarding the department’s investigation and arrest of Bennie Brown for February 10, 1991 burglary and aggravated rape charges assigned NOPD item number B-13855-91. In its written request, but without any obligation on its part, the Innocence Project informed the custodian that Mr. Brown’s conviction had “been affirmed on direct appeal and is final; [sic] making the records open to public inspection.” The Innocence Project also, in its request, helpfully referenced Lemmon v. Connick, 590 So.2d 574, 575 (La.1991) (per curiam), as well as Harrison v. Norris, 569 So.2d 585, 592 (La.App. 2nd Cir.1990), which the Lemmon decision approvingly cites. Applying the holdings and rationales of those decisions, there is no doubt that Bennie Brown’s conviction became final on October 15, 1993 when the Louisiana Supreme Court denied writ application after we affirmed his, conviction. See State v. Brown, 625 So.2d 1062, 1062 (La.1993); see also State v. Brown, 620 So.2d 508 (La.App. 4th Cir.1993). Thus, Mr. Brown’s conviction had been final for almost twenty years prior to the Innocence Project submitting its request to Superintendent Serpas.

Ultimately, the writ of mandamus was made peremptory, and the requested records were produced. Superintendent Serpas has not assigned as error the |7issuance of the writ of mandamus, and the Innocence Project, the requester, clearly prevailed in its suit. Thus, as we already indicated, the trial court was required to award reasonable attorney’s fees and other costs of litigation to the Innocence Project. See La. R.S. 44:35 D. Thus, under these circumstances, an award of attorney’s fees and costs of litigation is not discretionary. We review the granting of the award, but not the amount of the award, de novo because it is a question of law. We find that the trial judge was correct in granting the award of attorney’s fees .and costs of the litigation.

Superintendent Serpas now argues that he acted in “good faith” in refusing to produce the public records, and, on that account, should not be assessed attorney’s fees and the costs of litigation. Oddly, he relies upon an earlier holding by this Court in which we reversed the trial court for failing to make such an award. See Ferguson v. Stephens, 623 So.2d 711, 718 (La.App. 4th Cir.1993). He does point out that, in that case, we left open, in dicta, “the possibility” that exceptional circumstances might warrant such consideration. Id. at 716. The statute, however, does not provide for such an exception, and, in light of the need to protect the public’s right to access public records, we see no justification to judicially create such an exception. See Heath v. City of Alexandria, 09-28, p. 8 (La.App. 3 Cir. 5/6/09), 11 So.3d 569, 574.

_km

We now turn to consider Superintendent Serpas’ complaint regarding the imposition of civil penalties upon him. If a trial court finds that the custodian unreasonably or arbitrarily failed to respond to a public records request within the three-. day statutory period, “it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.” La. R.S. 44:35 E(l) (emphasis added). Thus, an award of civil penalties under Public Records Law is discretionary with the trial judge, and we will review the award under an abuse-of-discretion standard. See Ott v. Clarkson, 03-1287, p. 4 (La.App. 4 Cir. 12/10/03), 863 So.2d 663, 666.

A

On November 20, 2012, the Innocence Project submitted its written public records request. Having received no response whatsoever to its request from the custodian of the records, the Innocence Project, without any obligation on its part, left messages via telephone on January 22, 2013, and February 4, 2013. Again, there was no response. The Innocence Project next emailed a copy of the request on February 4, 2013. Still receiving no response, the Innocence Project, again, without any obligation on its part, directly contacted the city attorney’s office by letter on February 13, 2013.

Finally, on February 18, 2013, sixty-five days after receiving the public records request, an assistant city attorney for the City of New Orleans, apparently |9on behalf of the custodian, informed the Innocence Project for the first time in writing that “the records requested will not be made available for your review” with the exception of the initial police report under that item number. The written notification identified La. R.S. 44:3 A(l) as the basis for the contention that the requested records were exempt, but actually quoted La. R.S. 44:3 A(4)(a). Based upon the custodian’s argument in the trial court along with his written argument before us, we understand that the custodian admitted that the requested records would be public and producible under La. R.S. 44:3 A(l) in accordance with the Louisiana Supreme Court’s decision in Lemmon v. Connick, 590 So.2d 574. The custodian, thus, was claiming a different exemption under § 3 A(4)(a).

Section 3 of Public Records Law exempts certain types of records of police departments from disclosure. See La. R.S. 44:3 A. One exemption from disclosure protects “[t]he records of the arrest of a person, other than the report of the officer or officers investigating a complaint, until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction.” La. R.S. 44:3 A(4)(a) (emphasis added). “However, the initial report of the officer or officers investigating a complaint, but not ... any follow-up or subsequent report or investigation, ... shall be a public record.” Id.

Superintendent Serpas’ then-argument, it seems, was that police reports which supplemented an initial investigative report remained exempt from disclosure, even in cases such as this one where there was a final judgment of conviction. In support of his argument, the superintendent relied upon two of our Indecisions which concerned whether a defendant in an ongoing prosecution was entitled to a supplemental police report as a public record. These decisions are patently not authoritative for the superintendent’s position. The only other support for the superintendent’s then-stated interpretation was a district court decision which held that a supplemental report was not a public record in a case in which there was no final judgment of conviction because the arrestee had died; while this matter was before the trial court, we reversed the district court’s decision in that matter. See Brown v. Serpas, 12-1308 (La.App. 4 Cir. 3/20/13), 112 So.3d 385, writ denied, 13-0880 (La.6/21/13), 118 So.3d 416. As we explained, the exception excluding supplemental police reports from being public records is temporal in nature, such that “once it is clear that no further litigation is forthcoming relative to the records requested, the exception ceases to exist and the records become subject to disclosure.” Id., 12-1308 at p. 7, 112 So.3d at 389.

Superintendent Serpas’ then-argument did not seem to consider that “whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right of access.” Landis v. Moreau, 00-1157, p. 4 (La.2/21/01), 779 So.2d 691, 694. Nor did his argument seem to consider that Public Records Law has been interpreted “to allow defendants full access to district attorney’s files and supplemental police reports for purposes of postconviction relief.” State v. Chapman, 97-0967, p. 6 (La.9/3/97), 699 So.2d 504, 507 (emphasis added). And, finally, the superintendent | „did not credit the Fifth Circuit’s holding that “[rjeading La. R.S. 44:3 A(4)(a) we find all subsequent police reports can be disclosed because [that defendant’s] conviction [was] final.” Trenticosta v. Mamoulides, 633 So.2d 786, 789 (La.App. 4th Cir.1994).

B

The trigger for a discretionary award of civil penalties is the failure of the custodian to properly respond to a requester within the three-day statutory period. The trial judge must also find that the custodian’s failure to respond to the requester was unreasonable or arbitrary. See La. R.S. 44:35 E(l); see also Dwyer v. Early, 02-1545 at p. 3, 842 So.2d 1124, 1126 (La.App. 4 Cir.2003) (citing Hunter v. Pennington, 98-1821, p. 4 (La.App. 4 Cir. 1/20/99), 726 So.2d 1082, 1084). Neither the superintendent, nor his counsel offered any explanation for his lack of response to the request either within the statutory period, or in the days and weeks following. Especially in light of the ongoing attempts by the Innocence Project to obtain some feedback from the superintendent, and to avoid unnecessary and costly legal action, it is clear that Superintendent Serpas simply ignored the request, and thereby subjected himself to the possibility of penalties.

A custodian is personally liable for the payment of a civil penalty. See La. R.S. 44:35 E(2). Clearly, this is to discourage public records custodians from ignoring a request, thereby forcing a requester to engage in costly and time-consuming litigation when the production of public records is designed to be swift and economical.

The penalties may not exceed “one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to |12give notification.” La. R.S. 44:35 E(l). There were at least fifty qualifying days between the receipt of the request and the date on which the custodian, through the assistant city attorney, gave notification of the basis for his refusal to produce the public records. Thus, the amount of the penalties does not exceed that which is allowable by law.

The superintendent complains that the trial judge did not give written reasons explaining his decision. But written reasons for judgment are not required unless requested by party not later than ten days after the mailing of notice of judgment, see La. C.C.P. art.1917, and Superintendent Serpas did not make such a request.

We cannot discern any abuse of discretion by the trial judge in awarding penalties in an allowable amount, and, accordingly, defer to his judgment in this regard which is based upon a correct application of governing legal principles.

IY

We now briefly address why we cannot consider the Innocence Project’s argument in brief that Superintendent Serpas’ appeal is frivolous and, on that account, we ought to award damages. Because the Innocence Project did not answer the appeal of Superintendent Serpas, we have no jurisdiction to determine whether his appeal is frivolous and deserving of sanctioning.

We “may award damages, including attorney fees, for frivolous appeal.” La. C.C.P. art. 2164. “Although La. C.C.P. art. 2164 provides for damages for frivolous appeals, such damages are not proper where the party does not appeal or answer the appeal pursuant to La. C.C.P. art. 2133.” Legaux v. Orleans Levee Bd., 99-2453, p. 5-6 (La.App. 4 Cir. 5/17/00), 769 So.2d 19, 22. “An appellee shall not be obliged to answer the appeal unless he desires to have the judgment 11smodifled, revised, or reversed in part or unless he demands damages against the appellant.” La. C.C.P. art. 2133 (emphasis added). Thus, the Innocence Project’s failure to answer or file an appeal precludes as procedurally barred a review of their request for damages for a frivolous appeal. See Carroll v. Department of Police, 06-0726, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 674, 677.

CONCLUSION

The trial judge was legally correct in awarding attorney’s fees and the costs of litigation to the Innocence Project as a requester who prevailed in the suit. The trial judge did not abuse his discretion in imposing civil penalties in the amount of $5,000 upon the custodian. The Innocence Project is procedurally barred from seeking damages for a frivolous appeal because it did not answer the custodian’s appeal.

DECREE

The April 10, 2013 judgment in favor of the Innocence Project of New Orleans, and against Roñal Serpas is affirmed in all respects. Roñal Serpas is taxed with all costs of this appeal. See La. C.C.P. art. 2164.

AFFIRMED.

      . In die event that any record contains material which is not a public record, the custodian may separate the nonpublic record, and still make the public record available. See La. R.S. 44:32 B.

      . This subsection also provides diat, if the requester only prevails in part, "the court may in its discretion award him reasonable attorney's fees or an appropriate portion thereof.” (emphasis added).

      .This subsection also provides for the discretionary award of actual damages under certain circumstances. Here, the Innocence Project did not claim any actual damages.

      . Lemmon v. Connick expressly disapproved of our inconsistent holding in Bizal v. Connick, 489 So.2d 343 (La.App. 4th Cir.1986).

      . After the trial judge ordered the records produced, the custodian’s counsel requested for the first time that they be redacted with respect to the certain private information concerning the victim. The Innocence Project agreed to the in camera inspection and determination by the trial judge.

      . The attorney's fee award was $3,000 and the costs of litigation award was $607. As we have mentioned, there was no objection to the amounts. Thus, we need not evaluate them.

      . Superintendent Serpas did not argue to the trial court that his "good faith" relieved him of the obligation of paying the attorney’s fees and the costs of litigation.

      . The decisions were State v. Burnes, 516 So.2d 375, 375-376 (La.App. 4th Cir.1987) and State v. Baker, 582 So.2d 1320, 1329-1330 (La.App. 4th Cir.1991).


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of S.J.
    No. 2013-CA-1025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2013.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

b The juvenile, S.J., appeals the judgment of the Juvenile Court for the Parish of Orleans adjudicating him delinquent after finding he committed the offense of unauthorized use of a movable. S.J. argues that the juvenile court erred in limiting the defense’s cross-examination of the owner of the vehicle and that the State of Louisiana (“State”) failed to establish all of the elements of the offense of unauthorized use of a movable. For the reasons that follow, we affirm the decision of Juvenile Court.

BACKGROUND

The State filed a delinquency petition charging S.J. with the unauthorized use of a movable, a violation of La. R.S. 14:68. The movable was a vehicle owned by Reginald Fortenberry.

At the adjudication hearing, the State called Mr. Fortenberry to testify. Mr. Fortenberry stated that he knew S.J., who is the brother of his daughter’s boyfriend. Mr. Fortenberry testified that he lived close to S.J. and had known him through his daughter for some period of time. Mr. Fortenberry testified that he did not give permission to S.J. to operate his vehicle. He further testified that his vehicle was damaged while in S.J.’s possession, sustaining damages between $1700 and $1800 |2Of that amount, he paid a $250 deductible, with the remaining amount paid by his automobile insurance company.

The only other witness to be called at the hearing was Priantae Green, the daughter of Ronald Fortenberry. Ms. Green testified that she had known S.J. for about three years and that S.J. is the brother of her child’s father. Ms. Green testified that on February 1, 2013, she saw S.J. as he was getting off the school bus and offered to give him a ride in her father’s truck. After a few blocks, Ms. Green stated that she pulled over at a friend’s house to use the restroom. When she exited her friend’s home, she saw S.J. driving the vehicle away but she was unable to stop him. S.J. was unable to stop the vehicle on his own and ran into a parked car after making a left turn onto Jeff Davis Parkway. Thereafter, Ms. Green was able to get into the vehicle and put in it in park. She testified that she did not give S.J. permission to drive her father’s truck.

In addition to this testimony, the juvenile court accepted the stipulation that, if the police officer was called to testify, he would state that the police report reflected Ms. Green’s statement that she left the keys in the vehicle when she stopped at her friend’s house to use the restroom.

At the close of the testimony, the juvenile court adjudicated S.J. delinquent and ordered a pre-disposition investigation report. At the disposition hearing, the juvenile court committed S.J. to the Department of Safety and Corrections for one year, suspended the commitment, and placed S.J. on active probation for six months. S.J. timely filed this appeal.

STANDARD OF REVIEW

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. |3La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State ex rel. C.B., 09-1114, p. 6 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 528, citing, State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir.1993). As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 08-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. State in the Interest of T.E., 00-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 10-0405, p. 5 (La.App. 4 Cir. 10/18/10), 50 So.3d 927, 930. (Emphasis supplied). Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in Interest of K.G., 11-1559, p. 4 (La.App. 4 Cir. 3/21/12), 88 So.3d 1205, 1207, citing State in the Interest of Batiste, 367 So.2d 784 (La.1979); State in the Interest of S.S., 557 So.2d 407 (La.App. 4th Cir.1990); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571. In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

DISCUSSION

We note, at the outset, that this Court recently adopted the practice of conducting a review of juvenile delinquency matters for errors patent. State in the Interest of A.H, 10-1673, p. 9 (La.App. 4 Cir. 4/20/11), 65 So.3d 679, 685 (“conducting an error patent review in juvenile delinquency proceedings is warranted”). We have, thus, reviewed this matter and found no patent errors in the record.

We now turn to S.J.’s assignments of errors, addressing his second assignment of error first. In that assignment of error, S.J. argues that the State failed to establish the elements of the offense. Specifically, S.J. maintains that the State did not prove that he had the intent to “joyride” when Ms. Green’s testimony established he did not know how to drive.

La. R.S. 14:68 provides that the unauthorized use of a movable belonging to another is “the intentional taking or use of a movable which belongs to another either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently.” La. R.S. 14:68(A).

iWe note that our jurisprudence reflects that La. R.S. 14:68 “must reasonably be construed to require the existence of fraudulent intent. The State may produce direct or circumstantial evidence of fraudulent intent in unauthorized use cases. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. Though intent is a question of fact, it may be inferred from the circumstances of the transaction.” State v. Williamson, 10-466, p. 12 (La.App. 5 Cir. 12/13/11), 81 So.3d 156, 164, citing State v. Anderson, 07-0752, p. 6 (La.App. 5 Cir. 2/6/08), 979 So.2d 566, 570.

In adjudicating S.J. delinquent, the juvenile court clearly accepted the testimony of the two State witnesses: Ms. Green, who witnessed S.J.’s use of the vehicle without having given him permission, and Mr. For-tenberry, the vehicle owner, who did not give S.J. permission to drive his vehicle. Under the circumstances of this case, we find no manifest error in the trial court’s reliance on the testimony of the State’s two witness, nor on its implicit finding that S.J.’s intent can be inferred from the circumstances of this case.

Based on the record before us, we conclude that the juvenile court, as the rational trier of fact, found after examining both the facts and law that the essential elements of the charged offense was proven beyond a reasonable doubt.

In this first assignment of error, S.J. avers that the juvenile court erred in limiting the defense cross-examination of Mr. Fortenberry to show bias. During the trial, counsel for S.J. attempted to cross-examine Mr. Fortenberry to determine whether the insurance company conditioned payment for the damages to Mr. Fortenberry’s vehicle on his and/or Ms. Green’s testifying against S.J. The State objected to the line of questioning which was sustained by the trial court on the basis of relevance. The juvenile court judge found that the information as to | ¿whether the insurance company wanted Mr. Fortenberry to testify was not relevant, as he had been issued a subpoena by the court.

The record reflects that S.J.’s counsel did not preserve any error on the trial judge’s part for our review. See State v. Green, 10-0791, p. 24 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 588 (“in order to preserve the right to appeal a trial court ruling that excludes evidence, the defendant must make the substance of the evidence known to the trial court”). The failure to make any offer of proof of Mr. Fortenberry’s testimony prevents our review of the matter on direct appeal. See La. C.E. art. 103(A)(2) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.”)

Article 103(A)(2) was explained in State v. Batiste, 96-1010 (La.App. 5 Cir. 1/27/98), 708 So.2d 764, 769:

La.C.E. art. 103(A) states that error may not be predicated upon a ruling which admits or excludes evidence, unless a substantial right of the party is affected. Sec. A(2) of the same article provides that error may not be predicated upon a ruling excluding evidence unless the substance of the evidence was made known to the court by counsel. In criminal cases, as well as civil cases, a party has a legal right, when evidence has been excluded, to make an offer of proof of what counsel expects to prove, outside of the presence of the jury. (Citations omitted).

In State v. Lobato, 603 So.2d 739, 748 (La.1992), the Louisiana Supreme Court held that, where the defendant did not make known the substance of the excluded evidence for the purpose of consideration by the trial and appellate courts, the defendant did not preserve the alleged error for review on appeal.

17Here, defense counsel did not even attempt an offer of proof, or even a limited offer, either of which might have triggered a remand for additional evidence. See, e.g., State v. Brooks, 98-1151 (La.App. 1 Cir. 4/15/99), 734 So.2d 1232, 1241. Accordingly, the issue was not properly preserved and will not be addressed.

CONCLUSION

For the foregoing reasons, the judgment of the juvenile court adjudicating S.J. delinquent is hereby affirmed.

AFFIRMED.

      . It is well-settled that when issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992).


author: WILLIAMS, J.

text:
    SUCCESSION OF Thomas A. HARRISON.
    No. 48-432-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 8, 2013.
    Rehearing Denied Jan. 9, 2014.

      Ron C. Stamps, Shreveport, Britney A. Green, Mansfield, for Appellant, Henry L. Himes.
    Samuel L. Jenkins, Jr., for Appellee, Susan C. Speed.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

Ijn this action against defendant to compel the return of succession property, plaintiff, Henry L. Himes, appeals a district court’s sustention of exceptions of no right of action and prescription/peremption filed by defendant, Susan Speed. For the following reasons, we reverse and remand for further proceedings.

FACTS

Plaintiff, Henry L. Himes, was born on October 31, 1941, to Sallie Himes; no father was named on his birth certificate. On June 21,1950, the decedent, Thomas A. Harrison, signed an affidavit which stated:

STATE OF LOUISIANA PARISH OF CADDO
Before, me, the undersigned authority, personally came and appeared Thomas A. Harrison, who upon oath deposes and says: That he is the father of the minor child Henry Lavelle Himes, whose mother is Sallie Himes, residing at 916 Palestine Street, Shreveport, Louisiana, which said child was born on the 31st day of October, 1941 and I have supported said child since its birth.

The document was notarized by C.H. Mes-ser; however, it was not signed by two witnesses.

On January 1, 2011, the decedent died intestate. At the time of the decedent’s death, Himes was 69 years old. On April 11, 2011, Himes filed a petition for possession, alleging, inter alia, “[The decedent] had one (1) child born out of wedlock, namely Henry Himes, petitioner herein.” The petition also alleged that the estate was “relatively free from debt,” administration was unnecessary and Himes “desire[d] to accept this succession purely, simply and unconditionally.”

ls>On April 26, 2011, the district court signed an ex parte judgment of possession, declaring Himes to be “the sole heir of the decedent” and as such, the sole owner of the decedent’s property, including two parcels of immovable property and two vehicles. The judgment also provided:

IT IS FURTHER ADJUDGED AND DECREED that all banks, trust companies, and other persons, partnerships, corporations or depositories, having on deposit or in their possession or under their control any monies, credits, stocks, dividends, bonds or other things of value, depending upon or belonging to the succession of the [decedent] are hereby required to deliver them unto HENRY HIMES.

Himes was placed in possession of the decedent’s estate.

Subsequently, Himes discovered that prior to the decedent’s death, defendant, Susan Speed (the decedent’s great niece), had removed approximately $85,000 from the decedent’s Capital One Bank account. He further discovered that Speed had also taken possession of other items owned by the decedent, including a cash box (which contained an unspecified amount of cash, documents and an antique handgun), funds which had been issued to the decedent by the Veterans Administration, a battery-powered wheelchair, a riding lawnmower and the two automobiles described in the judgment of possession (a 1996 Chevrolet Lumina and a 1998 Ford LTD).

On June 21, 2011, Himes filed a “Motion to Compel Turnover of Succession Property,” alleging that he was the sole surviving heir of the decedent. Himes requested a temporary restraining order to enjoin Speed, Capital One Bank, and all financial institutions with accounts in Speed’s name, from “dispensing funds or removing funds from any account without |3further order from th[e] court.” A hearing was conducted on July 6, 2011, during which counsel for Speed argued that the decedent donated the $85,000 to Speed approximately one year before he died.

The following day, the court issued an interim order, directing Speed to immediately deposit a cashier’s check in the amount of $85,000 into the registry of the court. The court also ordered Speed to turn over to Himes specific items in her possession, including the cash box and its contents, the riding lawnmower and the 1996 Chevrolet Lumina.

On January 5, 2012, Speed filed peremptory exceptions of no right of action and prescription/peremption, arguing that Himes was born out of wedlock and the decedent never formally acknowledged him, by authentic act, as his son. Consequently, according to Speed, Himes was required by law to prove filiation. Additionally, she argued that Himes failed to prove filiation within one year of the decedent’s death; therefore, his claims were barred by prescription/peremption.

Following a hearing, the district court sustained the • exceptions of no right of action and prescription. Himes now appeals.

DISCUSSION

Himes contends the district court erred in sustaining Speed’s exceptions. He argues that he presented clear and convincing evidence that the decedent informally acknowledged him as his son prior to his death.

Only a person having a real and actual interest to assert may bring an action. LSA-C.C.P. art. 681; Wagoner v. Chevron USA Inc., 45,507 (La.App.2d Cir.8/18/10), 55 So.3d 12, writ denied, 2010-2773 (La.3/2/12), 83 So.3d 1032; Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 2010-0707 (La.5/28/10), 36 So.3d 254. An exception of no right of action is a peremptory exception, the function of which is “to have the plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” LSA-C.C.P. art. 923; Wagoner, supra.

When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to institute the suit. Harry T. Lemmon & Frank L. Maraist, 1 Louisiana Civil Law Treatise, Civil Procedure § 6.7, 121 (West 1999). The objection is urged through the peremptory exception of no right of action raised by the defendant or noticed by the court on its own motion, in either the trial or appellate court. Id.; LSA-C.C.P. arts. 927 and 2163.

If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence, but the plaintiff should be permitted to amend to state a right of action if he or she can do so. Gisclair v. Louisiana Tax Com’n, 2010-0563 (La.9/24/10), 44 So.3d 272, citing Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La.7/1/08), 986 So.2d 47; Lemmon & Maraist, supra.. If the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce |fievidence to controvert any objections. Gisclair, supra; Lemmon & Maraist, supra.

The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; Wagoner, supra. The exception presents a question of law, requiring a de novo review by appellate courts. Wagoner, supra; Skannal, supra.

A man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who acknowledges the child is the father. LSA-C.C. art. 196. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. LSA-C.C. art. 1833(A).

LSA-C.C. art. 197 provides:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence. For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the |fiexpiration of the peremptive period. LSA-C.C. art. 3458; Borel v. Young, 2007-0419 (La.11/27/07), 989 So.2d 42; Thomas v. Roberts, 47,411 (La.App.2d Cir.9/26/12), 106 So.3d 557. Where a statute creates a right of action and fixes the time in which to commence the action, the time so fixed is an integral part of the right created and is peremptive or substantive, as opposed to prescriptive or procedural. Upon expiration of the peremptive period, the right is extinguished. Thomas v. Roberts, supra; Houston Industries, Inc. v. Fitch, 32,654 (La.App.2d Cir.2/1/00), 752 So.2d 974, writ denied, 2000-0643 (La.4/20/00), 760 So.2d 351.

From 1980 until 2005, Louisiana law permitted the “informal acknowledgment” of an illegitimate child. For example, former LSA-C.C. art. 209 provided that proof of “paternal descent” could be made “[b]y all kinds of private writings, in which the father may have acknowledged the ‘bastard’ as his child, or may have called him so;” or “[w]hen the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such[.]”

However, the passage of Acts 2005, No. 192, resulted in the enactment of the current LSA-C.C. art. 197, which became effective on June 29, 2005, and replaced former LSA-C.C. art. 209. Thus, pursuant to the law as it exists today (and at the time of the decedent’s death), there are two ways for a child born outside of marriage to prove the existence of a parent-child relationship: (1) formal acknowledgment by the father, either by authentic act or by signing the child’s birth certificate; and (2) the institution of a legal proceeding to prove filiation. See LSA-C.C. arts. 196 and 197. [7During the proceedings to prove filiation, the child is permitted to introduce evidence, such as blood tests and evidence of informal acknowledgment.

In the instant case, Himes did not file any pleadings specifically captioned as a petition to establish filiation. As stated above, the decedent died on January 1, 2011; Himes filed the judgment of possession on April 11, 2011, alleging that he was the “surviving sole heir of the decedent, Thomas A. Harrison”; he was judicially declared to be the decedent’s sole heir and was placed in possession of the decedent’s property on April 26, 2011.

Subsequently, Himes instituted proceedings to compel the turnover of succession property, during which he introduced multiple documents into evidence to prove that he was informally acknowledged by the decedent. The evidence included the above referenced affidavit, in which the decedent attested that he was Himes’ father. Himes also introduced other documents, including correspondence from the Social Security Administration and the Department of Veterans Affairs, which established that Himes received a portion of the decedent’s disability benefits. Additionally, the documents from the Department of Veterans Affairs show that the decedent listed Himes as the beneficiary of his disability benefits and that Himes, in fact, received those benefits dating from 1950 until he graduated from high ^school in 1960.

As stated above, on June 21, 2011, Himes filed a motion to compel turnover of succession property, alleging that he was the decedent’s sole heir. During these proceedings, Himes introduced evidence to establish filiation. Although the exceptions were filed January 5, 2012, days after the peremptive period for proving filiation had expired, the proceedings were initiated when Himes filed the motion to compel— June 21, 2011.

Thus, within a year of his father’s death, Himes filed a civil demand by filing the motion to compel, which initiated the proof of filiation. It is well settled in Louisiana that courts look beyond the caption, style and form of pleadings to determine from the substance of the pleadings the nature of the proceeding. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980); Murrell v. Murrell, 42,070 (La.App.2d Cir.4/25/07), 956 So.2d 697.

Accordingly, we find that Himes instituted a civil proceeding within one year of his father’s death, during which he presented clear and convincing evidence to establish filiation: Thus, under the facts of this case, we find that the district court erred in sustaining defendant’s exceptions of no right of action and prescription/peremption.

CONCLUSION

For the foregoing reasons, the district court’s judgment, sustaining the exceptions of no right of action and prescription/peremption, is reversed; we remand this matter to the district court for further proceedings. Costs of this appeal are assessed to defendant, Susan Speed.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, MOORE, LOLLEY and PITMAN, JJ.

Rehearing denied.

      . Speed denied having possession of the Ford LTD.

      . Comment (c) to LSA-C.C. art. 197 provides: Under this Article, all relevant evidence is admissible to prove paternity. Examples of such relevant evidence include blood tests, an informal acknowledgment, and the cohabitation of the mother and father at the time of conception. See former Civil Code Article 209, Comment (b) (rev. 1981).


author: KEATY, Judge. AMY, J.,

text:
    SUCCESSION OF Sandra Jean DEAL.
    No. 13-200.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 13, 2013.
    Lewis H. Pitman, Jr., Pitman Brous-sard, New Iberia, Louisiana, for Appellee, Succession of Sandra Jean Deal.
    Frank E. Barber, Attorney at Law, New Iberia, Louisiana, for Appellant, Carolyn Deal.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

li Carolyn D. Deal (Carolyn) appeals from a judgment of eviction. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Carolyn is a surviving half-sibling of Sandra Jean Deal (Sandra or the Decedent), who died intestate on February 13, 2011. The Decedent was also survived by her parents, Clarence Davis and Anna Belle Deal (Anna); however, she was never married, and she had no descendants.

On April 7, 2011, Anna was confirmed as administratrix of the Succession of Sandra Jean Deal (the Succession). In that capacity, Anna filed a detailed descriptive list in September of 2011. Among the assets listed was the immovable property located at 2104 Cherry Palm Circle in New Iberia, Louisiana (the home), upon which sat the home where Sandra resided at the time of her death. Anna also filed a petition for authority to execute a real estate listing agreement for the home wherein she alleged that it was necessary to sell the home in order to pay the debts and expenses of the Succession. The trial court signed an order on September 26, 2011, authorizing Anna to execute the listing agreement. Thereafter, Carolyn filed a motion for new trial/reconsideration of the September 26, 2011 order along with an opposition to the descriptive list. The trial court signed an order setting a rule to show cause on Carolyn’s motion. According to the court minutes dated October 21, 2011, when the matter came for hearing, however, the trial court granted the motion for new trial and postponed trial on the merits to be refixed by later motion.

|? On April 4, 2012, Anna, in her capacity as Succession administratrix, filed a rule to evict Carolyn from the home. She alleged therein that Carolyn had refused to vacate and surrender the premises despite having been provided with a letter dated September 15, 2011, terminating her continued occupancy of the home and ordering her to surrender its possession by September 30, 2011. The letter also indicated that her failure to vacate would result in the filing of an eviction proceeding against her. Anna also alleged that the Succession lacked sufficient funds necessitating sale of the home. The rule for eviction was set for April 16, 2012. Three days before the scheduled hearing, Carolyn filed an answer to the rule for eviction in which she denied the facts alleged therein. At the start of the eviction hearing, Carolyn’s counsel filed a petition to disqualify and remove Anna as the administrator of the Succession as well as a reconventional demand wherein she challenged Anna’s authority and ability to represent the fiduciary interests of the heirs of the Succession. Following the conclusion of the hearing, the trial court granted the rule for eviction in open court. Later that day, Carolyn filed, and the trial court granted, a motion for suspensive appeal from the judgment of eviction. The written judgment of eviction was not signed until February 11, 2013.

Carolyn assigns two errors on appeal. First, she asserts that the trial court erred in finding that the Succession was the owner of the home and that the adminis-tratrix had authority to evict her. Second, she asserts that the judgment of eviction was prematurely rendered because of the pendency of three outstanding motions.

^DISCUSSION

[Louisiana Code of Civil Procedure Article] 3191 ... provides, in part, that a succession representative is “a fiduciary with respect to the succession” and “shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law.” (Emphasis added.) Further, the succession representative “shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.” LSA-C.C.P. art. 3191. Since “the succession” is “the transmission of the estate of the deceased to his successors,” as defined in LSA-C.C. art. 871, then, logically, it follows that part of the succession representative’s fiduciary duty is to transmit property contained in the deceased’s estate to his heirs. (Emphasis added.)

Matthews v. Horrell, 06-1973, p. 18 (La.App. 1 Cir. 11/7/07), 977 So.2d 62, 75 (footnote omitted).

In Coon v. Miller, 175 So.2d 385 (La.App. 2 Cir.1965), the second circuit set aside and reversed a judgment ordering the defendant, surviving spouse of the decedent, to vacate the family home in which she had been living prior to decedent’s death, in conjunction with an action for eviction filed by the administrator of the decedent’s succession. Prior to filing the eviction, the administrator obtained a default judgment against the defendant in the amount of $1,920 for rent of the home accruing since the decedent’s death. After noting that defendant, “as surviving widow in community with the deceased,” was the owner of an undivided one-half interest in the home, the court concluded that “a co-owner cannot be divested of possession by an action of eviction.” Id. at 386-87. The court reiterated that “the rights of co-owners to possession of property [are] equal and coextensive,” and that “[a] co-owner deprived of the possession and benefit of property has a remedy by a suit for partition.” Id. (citing Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955); Moreira v. Schwan, 113 La. 643, 37 So. 542 (1904); and Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4 Cir.1964)). Upon the administrator’s application for certiorari or writ of review in Coon, the supreme court refused the writ, stating: “On the facts found by the Court of Appeal the result is correct.” Coon v. Miller, 247 La. 1089, 176 So.2d 145 (1965).

More recently, in Matthews, the provisional administratrix of the succession of Edward Horrell, Sr. (the succession) filed a rule to evict against Walter Horrell and his wife, Edna, (collectively referred to as Walter) alleging that they were occupying a house in Covington, Louisiana (the property) that was owned by the succession. Walter was one of five of Edward Horrell’s (the decedent’s) adult children. According to a detailed descriptive list filed shortly after decedent’s death, he died owning certain separate immovable properties, including the property located in Covington. Walter, who happens to be an attorney, responded to the rule to evict by filing exceptions and an answer, wherein he denied that he was an occupant of the property, instead asserting that he was a legal possessor with an ownership interest in the property. He asserted that because he had a real right in the property “that could only be resolved through an ordinary proceeding and not a summary ... proceeding such as the action for eviction.” Id. at 71. ^Walter also contended that the rule for eviction was premature. Following a hearing, the trial court granted the rule and signed a judgment of eviction. According to the oral reasons for judgment, the trial court determined that good cause to evict Walter existed because of his failure to cooperate in the appraisal of the property and the movable property thereon, coupled with the “extremely pro-tractive nature” of the litigation. Id.

Walter appealed, and the first circuit reversed, holding that because the provisional administratrix failed to prove that the purpose of Walter’s occupancy of the property as an owner thereof had ceased, he was not subject to being evicted. In so doing, the court found that the provisional administratrix was mistaken in her claim that the succession owned the property. Matthews, 977 So.2d 62. To the contrary, the court reasoned that, despite “the succession representative’s fiduciary duty is to transmit property contained in the deceased’s estate to his heirs,” the succession representative in that case “seeks to do the opposite; i.e., to divest succession property from the decedent’s heir who has a one-fifth ownership interest therein.” Id. at 75. Relying on Coon, the court affirmed the notion that “a co-owner cannot be divested of possession by an action of eviction.” Id. at 76 (quoting Coon, 175 So.2d at 387). Finally, the Matthews court concluded that the Louisiana Code of Civil Procedure dictated that “questions regarding the ownership of immovable property or the right to possession of immovable property were not intended by the legislature to be litigated in eviction proceedings.” Matthews, 977 So.2d at 77. As a result, the first circuit reversed the judgment ordering Walter’s eviction and remanded the matter to the trial court with instructions that the suit be dismissed.

|F,In the instant case, the administratrix concedes that Carolyn is a naked owner of the home. Because Carolyn possesses the home as an owner, we conclude that the trial court erred in granting the adminis-tratrix’s motion to evict her in a summary proceeding because she has a real right in the property that must be challenged via an ordinary proceeding. Accordingly, the judgment of eviction is reversed, and we need not address Carolyn’s claim that the eviction was rendered prematurely.

DECREE

For the forgoing reasons, the judgment of the trial court ordering that Carolyn Deal be evicted from the immovable property located at 2104 Cherry Palm Circle in New Iberia, Louisiana is reversed. All costs of this proceeding are assessed against the Succession administratrix personally. See La.Code Civ.P. art. 3191.

REVERSED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

hi respectfully disagree that a reversal is required in this case. Rather, I find the jurisprudence on this point fact specific and dependent upon circumstances not present here. In my opinion, this matter must be resolved by application of La.Civ. Code art. 938(B), which states that: “If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate.” The record indicates that the ad-ministratrix in this case demonstrated to the trial court’s satisfaction that the liabilities of the succession exceeded its assets. Thus, it seems to me that a motion for eviction, within the confines of the succession, was within the administratrix’s authority.

Accordingly, I would affirm the trial court’s ruling.

      . In addition to Carolyn, the Decedent was survived by half-siblings Lávenme Raby and Todd Davis.

      . No transcript was made of the eviction hearing.

      . In Juneau, the supreme court recognized the "the co-owner who takes possession of the common property does not have to account to his coproprietor, because the right of occupancy is vested in him by virtue of his ownership.” Juneau, 82 So.2d at 696.

      . To the extent our holding in Simpson v. Colvin, 138 So.2d 438 (La.App. 3 Cir.1962) conflicts with the law as later espoused by the Louisiana Supreme Court in Coon, 176 So.2d 145, it is overruled.

      . The succession has been the subject of protracted litigation since Edward Horrell’s death in 1993. This appeal will only discuss those facts relevant to the issues presented in this appeal. See In re Succession of Horrell, 11-194, 11-195 (La.App. 4 Cir. 11/30/11), 79 So.3d 1162; In re Succession of Horrell, 07-1533 (La.App. 4 Cir. 10/1/08), 993 So.2d 354; Matthews v. Horrell, 06-1973 (La.App. 1 Cir. 11/7/07), 977 So.2d 62; Succession of Horrell, 97-2115 (La.App. 4 Cir. 3/25/98), 709 So.2d 1069; and Succession of Horrell, 95-1598, 95-1599 (La.App. 4 Cir. 9/11/96), 680 So.2d 725, for a more extensive discussion of the facts of that litigation.


author: MADELEINE M. LANDRIEU, Judge.

text:
    In re INTERDICTION OF Velma Agnes Buras PARNELL.
    No. 2013-CA-1201.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 2013.
    Steven M. Gonzalez, New Orleans, LA, for Appellant.
    Keary L. Everitt, Marie G. Everitt, Ev-eritt Pratt & Latham, L.L.C., New Orleans, LA, for Appellee.
    (Court composed of Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu).
   MADELEINE M. LANDRIEU, Judge.

| j Barbara Jean Parnell and Patti Jayne Parnell appeal the district court’s judgment that ordered the limited interdiction of their mother, Velma Agnes Buras Parnell, and appointed their sister, Sheryl Lynn Parnell Boraski, as curatrix and their brother, Dr. Melvin Lloyd Parnell, Jr. as under-curator of the interdict. For the reasons that follow, we vacate the judgment and remand the matter to the district court.

FACTS AND PROCEEDINGS BELOW

Ms. Boraski instituted this action on October 17, 2012 by filing a petition in civil district court seeking limited interdiction of her then 89-year-old mother, who allegedly is incapable of making financial and/or medical decisions for herself. The petitioner prayed that she be appointed cura-trix of her mother and that her brother, Dr. Melvin Parnell, be appointed under curator. The record reflects that Velma Parnell and her longtime attorney, Bernard Bagert, were served with the petition, as were Ms. Boraski’s two sisters, Barbara and Patti Parnell. Neither sister appeared or intervened in the trial court. Mr. Bagert did not file an answer |2on behalf of Velma Parnell. However, he appeared in court on a motion hearing and stated on the record that he was representing Velma Parnell in this interdiction suit.

On March 26, 2013 the district court issued an Order appointing Dr. Sidney K. Smith, III, a specialist in geriatric psychiatry, to examine Velma Parnell and to “submit a report under oath to this court as to the defendant’s mental condition.” In this report dated May 6, 2013, Dr. Smith explains the components of his evaluation of Velma Parnell and the basis for his conclusion that Mrs. Parnell is unable to manage her affairs and would benefit from a guardian. On May 30, 2013, the district court rendered judgment ordering that, considering the pleadings and the report of Dr. Smith, Velma Parnell “is interdicted, on a limited basis, and declared to be afflicted with an infirmity that prevents her from consistently making reasonable decisions regarding the care of her person and property.” The judgment further provides that the defendant’s interdiction “is limited to her medical and financial decisions.” Finally, in the judgment the district court appoints Ms. Boraski as cura-trix of her mother and Dr. Melvin Parnell as under-curator, and orders that a notary public take an inventory of the property of the interdict and that the clerk of court record the judgment in the conveyance records.

|thereafter, Ms. Boraski filed a “Detailed Descriptive List” of the property of Velma Parnell and was issued letters of curatorship. On July 10, 2013, attorneys for Barbara Parnell and Patti Parnell enrolled as counsel of record, and subsequently filed a timely motion for appeal of district court’s May 30, 2013 judgment.

ISSUE

The appellants raise only one issue: that it was legally improper for the trial court to have rendered a judgment of interdiction without first conducting a contradictory hearing. In response to this assignment of error, the appellee asserts that a hearing was not required in this case because there was no opposition, noting that the appellants neither intervened in the proceedings nor filed anything in the trial court to oppose the interdiction, and did not file a motion for new trial.

DISCUSSION

We first note that the appellants, despite the fact that they are not parties nor have they intervened in this action, have standing to file this appeal pursuant to Louisiana Code of Civil Procedure article 2086, which provides: “a person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.”

The appellants’ contention that a contradictory hearing is required before a judgment of interdiction may be issued is well-founded. Louisiana Code of Civil Procedure article states:

An interdiction proceeding shall be heard summarily and by preference. The defendant has a right to be present at the hearing and |4the court shall not conduct the hearing in his absence, unless the court determines that good cause exists to do so. The defendant has the right to present evidence, to testify, to cross-examine witnesses, and to otherwise participate at the hearing. If the defendant is unable to come to the courthouse for the hearing, the judge may hold the hearing where the defendant is located. The hearing may be closed for good cause. The court may call witnesses not called by the parties and may require the presence of a proposed curator.

The use of the word “shall,” as well as the entire context of the above-quoted article, clearly indicates that the trial court is required to conduct a hearing before rendering a judgment of interdiction. Longstanding jurisprudence concurs in this view:

Because interdiction is such a harsh remedy, it may be declared only after a contradictory trial, at which the defendant is given the opportunity to cross examine the adverse witnesses. Stafford v. Stafford, 1 Mart.(n.s.) 551, 552-53 (1823); LSA-C.C. art. 393; LSA-C.C.P. art. 4547.

Julius Cohen Jeweler, Inc. v. Succession of Jumonville, 506 So.2d 535, 539 (La.App. 1st Cir.1987).

The appellee cites one case in support of her argument that we should affirm the judgment of interdiction. In that case, Johnson v. Morris, 431 So.2d 429, 431-32 (La.App. 4th Cir.1983), this court indicated that a judgment should not be overturned due to a procedural error that did not affect the merits, if the record clearly indicates that the trial court’s judgment was correct and that justice has been done. The case before us is clearly distinguishable from Johnson v. Morris, which did not concern an interdiction. As we have previously noted:

Interdiction is a harsh remedy. A judgment of interdiction amounts to civil death, it is a declaration that the interdict is incapable of caring | Tor herself or her estate. Doll v. Doll, 156 So.2d 275 (La.App. 4th Cir.1963).

Interdiction of Haggerty, 519 So.2d 868, 869 (La.App. 4th Cir.1988). In view of the special nature of an interdiction proceeding, which has its own set of rules carved out in the Code of Civil procedure, we conclude that strict compliance with these articles is warranted. Therefore, we hold that the trial court’s failure to conduct a hearing prior to rendering its judgment of interdiction is a legal error mandating that the judgment be vacated. In so holding, we do not address the merits of the judgment.

DECREE

Accordingly, for the reasons stated, we vacate the judgment of the trial court and remand the matter for a contradictory hearing in accordance with Article 4547 of the Code of Civil Procedure.

VACATED AND REMANDED.

      . The hearing, held on January 3, 2013, concerned a rule for contempt by which Ms. Boraski sought to have her two sisters, Barbara Parnell and Patti Parnell, held in contempt for failing to comply with subpoenas to appear for their depositions. The transcript reflects that Mr. Bagert informed the court that he was representing the defendant, Yei-ma Parnell, on the interdiction, and he was representing Barbara and Patti Parnell for purposes of the contempt rule only.

      . The report is not in the form of an affidavit.

      . In Johnson v. Morris the appellate court found that the trial court had erred by considering an exception of prescription filed in the trial court by the defendant after the defendant had been cast in judgment but before the appeal had been filed. Finding the error to be harmless, however, the appellate court affirmed the granting of the exception.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Curtis WILLIAMS.
    No. 2013-KA-0271.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney Donald G. Cassels, III, Assistant District Attorney Parish of Orleans, New Orleans, LA, for Appellee/ State of Louisiana.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/ Appellant.
    (Court Composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|, This is an appeal from a resentencing. The State of Louisiana charged the defendant, Curtis F. Williams, with one count each of attempted second degree murder, a violation of La. R.S. 14:(27)80.1, and home invasion, a violation of La. R.S. 14:62.8. The State subsequently amended the home invasion charge to aggravated burglary, a violation of La. R.S. 14:60. Following a trial, the jury convicted Williams of both counts.. The trial court sentenced Williams to forty-nine years for count one and twenty-nine years for count two, with the sentences to run consecutively.

On original appeal, this Court affirmed both convictions, but vacated the original sentences and remanded for resentencing. State v. Williams, 2011-0414 (La.App. 4 Cir. 2/29/12), 85 So.3d 759. This Court held that the terms of the original sentences were not constitutionally excessive. Id., 2011-0414, p. 30, 85 So.3d at 777. However, the Court vacated the sentences because the record reflected that the trial court gave no reasons for imposing the sentences consecutively. Id., 2011-0414, p. 29, 85 So.3d at 777, citing State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577.

IgThe trial court resentenced Williams on December 10, 2012, imposing the same sentences to run consecutively, and assigned reasons therefore. This appeal followed.

The underlying facts are set forth in the Court’s opinion at Williams, supra, 2011-0414, pp. 2-15, 85 So.3d at 762-769.

At the December 10, 2012 resentencing hearing, several people testified in Williams’ favor. Eddie Savant, Williams’ only brother, testified that Williams had never been in trouble before and the instant prosecution was the only time Williams had been to court.

Giselle Anderson, Williams’ eldest sister, testified that Williams had never been in trouble before and is a hard worker. She also testified that he took care of his children and this prosecution was devastating to the entire family. Anderson also testified that Williams is bipolar and schizophrenic. She also asserted that the victim had stabbed Williams in the past, leaving scars.

Williams’ mother, Verna Williams, testified that Williams went to her house every day to care for her and her husband because she had suffered a stroke and has thyroid trouble. She also testified that Williams was bipolar and a schizophrenic.

The record reveals no errors patent in the resentencing.

Though Williams has raised three assignments of error in this appeal, collectively his arguments assert only one error — that the trial court’s sentencing him to serve his two sentences consecutively resulted in an excessive sentence.

Louisiana Constitution of 1974, Art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” A sentence is unconstitutionally excessive when it imposes punishment grossly dispropor-tionatejjto the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Smith, 2001-2574, p. 6 (La.1/14/03) 839 So.2d 1, 4. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 2000-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462. In performing such a review, the appellate court “must consider the punishment and crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” Bonanno, 384 So.2d at 358.

Regarding whether sentences are served concurrently or consecutively, La.C.Cr.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Although Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, a trial judge has discretion to impose consecutive sentences on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49. This Court has repeatedly held that in executing this discretion by imposing consecutive, |4rather than concurrent, sentences, the trial court must articulate particular justification for such sentencing, “beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1.” State v. Jefferson, 2004-1960 p. 39 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, 604, citing State v. Dempsey, 2002-1867 p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, citing, State v. Pittman, 604 So.2d 172 (La.App. 4th Cir.1992), citing State v. Messer, 408 So.2d 1354 (La.1982). However, in Messer, the Court merely noted that, “[a]s a general rule, the imposition of consecutive rather than concurrent sentences for crimes arising from a single course of conduct requires particular justification.” 408 So.2d at 1357, citing State v. Franks, 373 So.2d 1307 (La.1979)(imposition of consecutive sentences requires particular justification), and State v. Cox, 369 So.2d 118 (La.1979)(trial court did not specify reasons for issuing consecutive sentences). No mention was made of C.C.P. art. 894.1. The Messer Court specifically found, “[i]n this case, the trial court adequately complied with La.C.Cr.P. art. 894.1 by stating the factual basis and individual considerations which led to his determination of the appropriate sentences and the manner in which they were to be served.” 408 So.2d at 1357. Accordingly, this analysis considers whether the trial court provided additional reasons to justify consecutive sentencing.

On original appeal in this case, this Court noted that at the original sentencing, the prosecution asked the court to impose the maximum sentences pursuant to La.C.Cr.P. art. 893.3(E)(1)(a) and (b) due to the use of a gun during the commission of the offenses. Williams, 2011-0414, p. 27, 85 So.3d at 776. The State also noted that had the victim’s hand not deflected the bullet, she could have been killed. Id., 2011-0414, p. 28, 85 So.3d at 776. Defense counsel asserted a Isminimum sentence should be imposed, arguing Williams had no prior convictions. Id. In issuing the original sentence, the trial court recounted the facts of the case, including the fact that Williams shot his son’s mother in front of him. Id. The trial judge also stated that she would have issued a lesser sentence had Williams pled guilty only because she would not have been fully aware of the circumstances of the case. Id.

On original appeal, this Court remanded the case for the trial court to provide reasons for mandating that the two sentences imposed be served consecutively, rather than concurrently. When resen-tencing Williams, the trial court specified that it had originally issued consecutive sentences due to the presence of the child (Williams’ son) during the shooting, which led to the child having to testify against his own father at trial. The trial court reiterated that fact as the reason for reissuing consecutive sentences. The trial court also reasoned severe sentences were necessary due to the severity of the crime. In doing so, the trial court emphasized that Williams knew of the child’s presence in the home due to an earlier visit to the home during the day the assault occurred. The trial court reasoned that, had Williams not known of the boy’s presence, it might consider a different sentence. The trial court expressed concern about the impact on the child, particularly worrying that the boy would feel responsible for his father’s incarceration. The trial court was also concerned that the boy would have to deal with this entire incident for the rest of his life, and expressed hope that he would not end up as a criminal defendant or in a life of crime as a result. The trial court also noted that the mother was disfigured as a result of the shooting and that her life had changed forever. According to the trial court, “[e]very time she looks at her face she will remember that she was shot by Mr. Williams.” Based on these | fitwo factors, the trial court found the maximum penalty for attempted second degree murder — fifty years — to be sufficient punishment “for him to pay his debt to society and for the actions he set into motion.” The trial court dismissed the resentencing hearing testimony of psychological issues as something that should have been raised at trial. In issuing the forty-nine year sentence for count one and the twenty-nine year sentence for count two, to be served consecutively, and without benefit of probation, parole or suspension of sentence, the trial court specified its intent that Williams serve a total of seventy-eight years in prison for his crimes.

The additional reasons the trial court gave in re-imposing the same sentence: 1) the child was detrimentally impacted by watching his father shoot his mother and having to testify against his father; and 2) the impact of permanent disfigurement on Ms. Johnson; are clearly supported by the testimony of both the victim and her son. Ms. Johnson testified at the trial that she had been through six reconstructive surgeries on her mouth and face, and expected more surgeries. The child testified that he was awakened by his mother’s screaming and ran to the kitchen, where he saw his father hitting his mother with a gun. The extent of the victim impact in this case clearly influenced the trial court’s sentencing decision. Moreover, Ms. Johnson’s testimony about incidents in 2006 and 2007 showed a history of violence between her and the defendant. According to Ms. Johnson, Williams had pointed a gun and beat her in front of their son during the 2006 incident.

Based upon our review of the record, we find the trial court did not abuse its discretion in ordering Williams to serve his sentences for attempted second degree 17murder and aggravated burglary consecutively. Accordingly, the sentences imposed by the trial court upon Williams on remand are affirmed.

AFFIRMED.


author: PITMAN, J.

text:
    Clemmie JOHNSON, Plaintiff-Appellee v. EUROPEAN MOTORS-ALI (Owner), Defendant-Appellant.
    No. 48,513-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Ali Moghimi, d/b/a European Motors, pro se.
    Clemmie Johnson, pro se.
    Before STEWART, PITMAN & GARRETT, JJ.
   PITMAN, J.

1 ]Appellee, Clemmie Johnson, was awarded a money judgment against Appellant, European Motors-Ali (Owner) (“Mr. Moghimi”). In the process of having the judicial mortgage cancelled, Mr. Moghimi filed several motions, including a rule to show cause and for damages, motions for written reasons, a motion to continue, a motion to compel discovery, a motion for contempt and two motions for new trial. Mr. Moghimi appeals the trial judge’s denials of his motions. For the following reasons, we affirm.

FACTS

Mr. Moghimi owns European Motors, a business that sells and installs car parts and also sells used cars. European Motors sold Mr. Johnson a motor and installed it in his car. After this installation, Mr. Johnson’s car no longer worked properly. Mr. Johnson filed suit against Mr. Moghi-mi, both of whom appeared pro se. The trial judge awarded Mr. Johnson $8,400 in damages — $8,400 for vehicle repairs, $2,500 for loss of use and $2,500 for mental anguish. Court costs were assessed to Mr. Moghimi. Mr. Moghimi filed an untimely appeal, and the appeal was dismissed. Johnson v. European Motors, 44,315 (La.App.2d Cir.3/24/09) (unpub. writ order).

On August 16, 2012, Mr. Moghimi filed a petition and rule requesting that Mr. Johnson show cause why the judicial mortgage should not be cancelled and why Mr. Johnson should not have to pay damages, costs and attorney fees for his refusal to cancel the judgment. In this petition, |2Mr. Moghimi alleged that he paid the judgment in full, but that the judicial mortgage had not been cancelled. This matter was set for a hearing on October 11, 2012.

At the October 11 hearing, the trial judge addressed and denied a motion to continue filed by Mr. Moghimi under an incorrect docket number. The trial judge then addressed Mr. Moghimi’s motion to compel discovery. Mr. Johnson acknowledged that the judgment had been paid in full. The trial judge did not award damages to Mr. Moghimi and ordered Mr. Johnson to file a motion of dismissal within ten days. The trial judge explained if Mr. Johnson did not timely file the motion, she would grant Mr. Moghimi’s motion for damages and also award court costs. That same day, Mr. Johnson filed a motion of dismissal, alleging that the judgment was paid in full. The trial judge signed an order on October 12, 2012, dismissing the action.

On October 11, 2012, Mr. Moghimi filed a motion for written reasons and notice of judgment requesting that the judge provide written reasons for the decision orally rendered in court that day. The trial judge filed a •written ruling on October 19, 2012.

On October 18, 2012, Mr. Moghimi filed a motion for new trial, arguing that the trial court’s judgment was made contrary to the laws and evidence. In a memorandum in support of the motion, Mr. Moghi-mi alleged that he was not allowed to prove damages, that he should have been awarded damages and that Mr. Johnson had not cancelled the mortgage.

|3On October 25, 2012, a hearing was held to determine if Mr. Johnson complied with the court’s order to file a motion of dismissal. The trial judge stated that both a motion to dismiss and a request for cancellation were filed into the record. Noting that Mr. Johnson complied with the court’s order, the trial judge denied and dismissed Mr. Moghimi’s petition and rule. The trial judge cast the costs of filing the petition and rule upon Mr. Johnson. The trial judge also filed a written ruling.

On October 25, 2012, Mr. Moghimi filed a motion and order of appeal, alleging that the trial judge’s denials of his motion for continuance, motion to compel, rule for damages and costs, motion for written reasons and motion for new trial caused him irreparable harm, i.e., that he was unable to refinance his home mortgage and to obtain business loans.

On November 2, 2012, Mr. Moghimi filed a rule for contempt, arguing that, although Mr. Johnson filled out the proper paperwork to cancel the mortgage, he refused to record the cancellation and is, therefore, in contempt of the court’s October 11 order.

At a hearing on December 12, 2012, the trial judge addressed Mr. Moghimi’s motion for new trial and rule for contempt. During this hearing, Mr. Johnson explained the steps he took to cancel the mortgage, i.e., he went to the clerk of court’s office, he received help in the clerk’s office with filling out paperwork, he had the paperwork notarized and he mailed the paperwork to the clerk of court’s office for filing. The trial judge |,<denied both motions. On December 17, 2012, Mr. Moghimi filed a motion for written reasons and written findings of fact and written judgment. The trial judge filed written reasons for judgment on December 27, 2012, explaining that Mr. Moghimi did not prove that the court’s judgment was contrary to law and evidence and did not prove that Mr. Johnson failed to act in accordance with the court’s order.

A cancellation certificate and recording page were both filed into the record and certify that the judicial mortgage was can-celled on December 12, 2012.

On December 17, 2012, Mr. Moghimi filed a motion for new trial, alleging newly discovered evidence, i.e., that Mr. Johnson cannot read. The trial judge denied Mr. Moghimi’s motion on December 21, 2012.

On December 17, 2012, Mr. Moghimi filed a motion and order for devolutive appeal, appealing the trial judge’s December 12, 2012 judgment.

DISCUSSION

Petition and Rule, Damages and Costs

Mr. Moghimi argues that the trial judge erred in denying his petition and rule filed August 16, 2012, and in denying him the right to prove damages and costs. Mr. Moghimi contends that he is entitled to damages for the negative impact on his credit and should be awarded costs and expenses for his efforts to have Mr. Johnson cancel the mortgage. He explains that he was unable to refinance the mortgage on his home and obtain business loans. He further argues that the trial judge erred in refusing to allow him to introduce evidence of damages, e.g., a “turn down Isletter” from the mortgage company, and in allowing Mr. Johnson ten days to cancel the mortgage. Mr. Moghimi also alleges that he incurred approximately $800 in costs — sending certified letters, filing motions and requesting subpoenas for a deposition — -when attempting to have Mr. Johnson cancel the mortgage.

The cancellation of a judicial mortgage is governed by La. C.C. arts. 8387 and 3366 and La. R.S. 9:5169. Article 3337 states: “The recorder shall cancel a mortgage or privilege from his records in the manner prescribed by law.” Article 3366 states:

A. The recorder of mortgages shall cancel, in whole or in part and in the manner prescribed by law, the recordation of a mortgage or privilege upon receipt of a written request for cancellation in a form prescribed by law and that:
(1) Identifies the mortgage or privilege by reference to the place in the records where it is recorded; and
(2) Is signed by the person requesting the cancellation.
B. The effect of recordation of the instrument ceases upon cancellation by the recorder pursuant to the provisions of this Article.

La. R.S. 9:5169 states:

A. If a mortgage or privilege does not secure a note or other written obligation that is paraphed for identification with it, the request for cancellation shall have attached to it an act executed before a notary public or duly acknowledged before a notary public with or without witnesses or any act that is otherwise self-proving under the provisions of Code of Evidence Article 902(1), (2), (3), or (8), signed by the obligee of record of the mortgage or privilege that acknowledges the satisfaction or extinction of the secured obligation, releases or acknowledges the extinction of the mortgage or privilege, or directs the recorder to cancel its recordation.
B. A request for cancellation by an assignee must also provide the name of the mortgagor or obligor of the privilege as it appears in the recorded instrument and registry number or other appropriate recordation information of the instrument.

|fiThe trial court did not err in denying Mr. Moghimi’s petition and rule. The trial court considered Mr. Moghimi’s requests and ordered Mr. Johnson to file a motion of dismissal in which he acknowledged that the judgment had been paid in full. The trial court stated that, if Mr. Johnson did not comply with the order, it would grant Mr. Moghimi’s request for damages and court costs. The trial court was satisfied with Mr. Johnson’s compliance with her order and, therefore, dismissed Mr. Moghimi’s request for damages.

Mr. Moghimi prevailed in his request to have the judicial mortgage can-celled, as evidenced by the cancellation certificate and recording page that were filed into the record on December 12, 2012. Therefore, the only relief Mr. Moghimi might be entitled to is damages and costs, and Mr. Moghimi has not provided any legal authority that he is entitled to damages. Mr. Moghimi asserts that he is entitled to costs, attorney fees and any damages pursuant to La. R.S. 9:5557. La. R.S. 9:5557 applies to collateral mortgages. The judicial mortgage at issue in this case is not a collateral mortgage; therefore, Mr. Moghimi is not entitled to damages, costs and attorney fees pursuant to this statute.

Mr. Moghimi alleges damages of being unable to refinance his home or get a business loan. The trial judge allowed Mr. Moghimi to introduce a letter from a mortgage company denying his loan application because of the outstanding judgment. This letter was dated January 2, 2012, which was approximately seven months before Mr. Moghimi filed' his petition and rule requesting that Mr. Johnson cancel the mortgage. The damages alleged did |7not result from any action or inaction of Mr. Johnson. These alleged damages are the result of Mr. Moghimi not requesting that the judgment be cancelled until approximately four years after the judgment was paid. Accordingly, the trial judge did not err in denying damages.

It is within the trial judge’s discretion to render judgment for costs against any party as it may consider equitable. La. C.C.P. art. 1920. The trial court’s assessment of costs should only be reversed upon a showing of abuse of discretion. Johnson v. Hendrix Mfg. Co., Inc., 475 So.2d 103 (La.App. 2d Cir.1985) (citing Succession of Batton v. Prince, 384 So.2d 506 (La.App. 2d Cir.1980)). The trial judge cast the costs of filing the petition and rule upon Mr. Johnson, who also paid the costs to have the judicial mortgage cancelled. The trial judge assessed costs to Mr. Moghimi for the additional motions he filed that were denied. The trial judge did not abuse her discretion in assessing some costs to Mr. Johnson and other costs to Mr. Moghimi.

Accordingly, this assignment of error is without merit.

Motion to Compel

Mr- Moghimi argues that the trial judge erred in denying his motion to compel filed October 8, 2012. Mr. Moghimi contends that Mr. Johnson’s refusal to respond to letters, interrogatories and subpoenas and to cancel the mortgage were acts of negligence or malice and bad faith. Therefore, Mr. Moghimi argues that he is entitled to a substantial award of damages and to the costs of the proceeding.

18Mr. Moghimi argues that the only way to prove that he paid the judgment was for Mr. Johnson to admit that the judgment was paid in full. At the October 11, 2012 hearing, Mr. Johnson did admit that the judgment was paid in full and also filed a motion of dismissal in which he stated that the judgment had been paid in full. Therefore, Mr. Moghimi’s attempts at additional discovery were unnecessary, and the trial court did not err in denying his request to compel discovery. Further, Mr. Moghimi has not proved that he is entitled to damages, and the trial judge did not err in assessing costs to Mr. Moghimi. See La. C.C.P. art. 1920, supra.

Accordingly, this assignment of error is without merit.

Motion for Continuance

Mr. Moghimi argues that the trial judge erred in denying his motion for continuance filed October 8, 2012, as he met both the discretionary and peremptory grounds for a continuance. He asserts that he demonstrated good cause because there were no previous continuances and Mr. Johnson failed to submit to discovery. He also argues that, because he exercised due diligence in attempting to obtain evidence, the trial judge erred in denying his motion to continue.

La. C.C.P. art 1602 sets forth the peremptory grounds for granting a motion to continue, stating:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

|flLa. C.C.P. art. 1601 sets forth the discretionary grounds for a motion to continue, stating that a “continuance may be granted in any case if there is good ground therefor.” The denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Newsome v. Homer Memorial Med. Ctr., 10-0564 (La.4/9/10), 32 So.3d 800; Hargrove v. Goods, 41,817 (La.App.2d Cir.2/28/07), 953 So.2d 968.

Mr. Moghimi did not demonstrate that he was entitled to a continuance. He requested that the hearing be continued so he could depose Mr. Johnson regarding the payment of the judgment. Such a deposition was unnecessary because Mr. Johnson acknowledged at the hearing and in a motion of dismissal that the judgment had been paid in full. Additionally, the trial judge did not abuse her discretion in determining that Mr. Moghimi did not demonstrate good cause for a continuance.

Accordingly, this assignment is without merit.

Motion for New Trial (I)

Mr. Moghimi argues that the trial court erred in denying his motion for new trial filed on October 18, 2012. Mr. Mogh-imi reiterates that the trial court erred in assessing court costs to him and in not awarding him damages.

La. C.C.P. art. 1972 sets forth the peremptory grounds for granting a motion for new trial and states:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, |inhave obtained before or during the trial.
(3)When the jury was bribed or has behaved improperly so that impartial justice has not been done.

La. C.C.P. art. 1973 sets forth the discretionary grounds for granting a motion for new trial: “A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” Although a trial judge has much discretion in determining if a new trial is warranted, an appellate court may set aside the ruling of the trial judge in a case of manifest abuse of that discretion. Pollock v. Talco Midstream Assets, Ltd., 46,302 (La.App.2d Cir.5/18/11), 70 So.3d 835, writ denied, 11-1295 (La.9/23/11), 69 So.3d 1166, citing Lamb v. Lamb, 430 So.2d 51 (La.1983); Hardy v. Kidder, 292 So.2d 575 (La.1973); Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896 (La.App.2d Cir.10/4/00), 768 So.2d 812.

Mr. Moghimi did not meet either the discretionary or peremptory grounds for a new trial. As discussed, supra, the casting of costs is within the discretion of the trial judge. La. C.C.P. art. 1920. The trial judge assessed costs of the petition and rule to Mr. Johnson, who also paid the costs to have the judicial mortgage can-celled. The trial judge cast costs associated with additional motions filed by Mr. Moghimi to Mr. Moghimi. The trial court did not abuse its discretion in assessing some costs to Mr. Moghimi, while assessing the costs associated with cancelling the judgment to Mr. Johnson. Furthermore, Mr. Moghimi did not demonstrate that he was entitled to damages. Therefore, the trial court did not err or abuse its discretion in denying Mr. Moghimi’s motion for new trial.

Accordingly, this assignment of error lacks merit.

| uRule for Contempt

Mr. Moghimi argues that the trial judge erred in denying his rule for contempt filed on November 2, 2012. Mr. Moghimi alleges that Mr. Johnson did not cancel the mortgage within ten days as ordered by the trial court and should have been held in contempt.

At the October 11 hearing, the trial court ordered Mr. Johnson to file a motion of dismissal within ten days of the order. Mr. Johnson timely complied with this order by filing a motion to dismiss on October 11. The trial court did not order Mr. Johnson to file a request for cancellation or for the judicial mortgage to be cancelled within ten days of the order. Therefore, the trial court did not err by not holding Mr. Johnson in contempt.

Accordingly, this assignment of error lacks merit.

Written Reasons for Judgment

Mr. Moghimi alleges that the written reasons for judgment filed by the trial judge on October 25, 2012, contain errors and should be redacted. Mr. Moghimi contends that the written ruling incorrectly states that he filed a motion for continuance at the commencement of the October 11 hearing and argues that he filed the motion prior to the hearing. Mr. Moghimi alleges that the written ruling erroneously states that “the Defendant” acted in accordance with the court order and timely filed a motion of dismissal. Mr. Moghimi also contends that the written reasons incorrectly state that the request for cancellation was filed with the clerk of court’s office.

112Mr. Moghimi’s allegations are unfounded. Although he alleges that he filed the motion to continue prior to the hearing, he filed the motion under an incorrect docket number. The motion was admitted into the record of the correct docket number during the October 11 hearing. Mr. Moghimi is also mistaken in his argument that the trial court erred in stating that “the Defendant” acted in accordance with the court order. During this proceeding, the trial court referred to Mr. Moghimi as “the Petitioner” and Mr. Johnson as “the Defendant.” As discussed, supra, Mr. Johnson did comply with the court’s order and timely filed a motion of dismissal. A request for cancellation was filed into the record prior to the October 25 hearing.

Therefore, this assignment of error lacks merit.

Motion for New Trial (II)

Mr. Moghimi argues that the trial judge erred in denying without a hearing his motion for new trial based upon newly discovered evidence filed December 12, 2012. Mr. Moghimi states that he was entitled to a new trial based on discovering that Mr. Johnson cannot read or write.

A trial judge may deny a motion for new trial ex parte without a contradictory hearing. Sonnier v. Liberty Mut. Ins. Co., 258 La. 813, 248 So.2d 299 (1971); Coen v. Harris, 312 So.2d 359 (La.App. 2d Cir.1975). Mr. Moghimi’s assertion that Mr. Johnson cannot read is not a peremptory ground for a motion for new trial set forth in La. C.C.P. art. 1972. The trial court did not abuse its discretion in denying Mr. Moghimi’s motion for new trial pursuant to La. C.C.P. art. 1973. See Pollock, supra.

| ^Therefore, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s rulings denying the motions of Appellant, European Motors — Ali (Owner), and ordering Appellee, Clemmie Johnson, to dismiss the mortgage are affirmed. Costs of appeal are assessed to Appellant, European Motors — Ali (Owner).

AFFIRMED.

      . Ali Moghimi is the owner of European Motors.

      . In the written ruling, the trial judge assessed costs unto "the Defendant.” In her written rulings, the trial judge refers to Mr. Moghimi as "the Petitioner” and Mr. Johnson as "the Defendant.” The transcript from the October 25, 2012 hearing confirms that costs were assessed to Mr. Johnson.