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

text:
    Charles WELLS v. ST. AUGUSTINE HIGH SCHOOL INC., Mike Biagas d/b/a Majic Productions CEI, Inc.
    No. 2014-CA-0234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2014.

      Mark J. Graffagnini, Kristen Schorp, Graffagnini + Associátes, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Sidney Wallis Degan, III, Travis Louis Bourgeois, Jena W. Smith, Degan Blanchard & Nash, New Orleans, LA, for Appel-lee.
    Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO.
   MAX N. TOBIAS, JR., Judge.

| jThe plaintiff, Charles Wells, was injured when he fell from a stage being built on the premises of St. Augustine High School Inc. (“St. Augustine”). Summary judgment was granted to St. Augustine relieving it of any liability for Mr. Wells’ fall. Mr. Wells has appealed, arguing that genuine issues of material fact exist, thereby rendering the summary judgment invalid. After reviewing the record and appli- ■ cable case law, we affirm the judgment by the trial court.

First held in 2009, the Edwin Hampton Music Festival (“Hamp Fest”) is St. Augustine’s largest non-profit fundraiser. To “produce” the 2011 event, St. Augustine called upon alumnus Kenny Chenier as the festival producer. As producer, Mr. Che-nier’s sole responsibility was to be the liaison with the artists who were scheduled to perform at the festival. In addition, St. Augustine hired another alumnus, Mike Biagas, d/b/a Magic Productions, to build the stage and physical structures for the event. Mr. Biagas confirmed that Mr. Chenier had no responsibility regarding the stage and its set-up. St. Augustine turned over all responsibility for building the stage and setting up the equipment to Magic Productions per written contract. Every witness admits that St. Augustine neither Lbuilt the stage nor had any control over it or the railings that allegedly caused Wells to fall.

In April 2011, Magic Productions entered into a formal written contract with St. Augustine for the production of Hamp Fest and to provide staging, sound, and lighting for the 30 September 2011 festival. The contract included a list of equipment and production services to be provided by Magic Productions, namely, a “1-32 X 32 X 4 mobile stage” and a “1-12 X 32 stage extension.” The contract also explicitly provided:

Magic Productions shall at all times maintain control of the means, methods and personnel needed to fulfill its obligations for this event.

Mr. Biagas testified that, ultimately, when it came to the staging for the production, the “buck stops” with him.

Magic Productions subcontracted with Cypress Events Inc. (“CEI”) to supply and install the mobile stage, pursuant to its contract with St. Augustine. Keith Williams, the owner of CEI testified that CEI is a production company that provides services including any type of staging, lighting, and audio power for events. This includes providing and building stages. Williams testified that the only thing CEI was hired to do was to install the mobile stage. However, CEI may also have assisted in the building of a “stage extension,” from which Mr. Wells allegedly fell. Mr. Williams testified that Magic Productions was ultimately responsible for all construction.

Magic Productions also hired Corporate Lighting and Visual, Inc. to provide audio, video, and lighting equipment and the necessary labor for the event. Mr. Wells was employed by Corporate Lighting. Mr. Wells alleges that, while installing lights and electrical cables on the stage, he leaned against a railing that |sgave way, and he fell approximately five feet onto the asphalt parking lot thereby sustaining multiple injuries.

In St. Augustine’s La. C.C.P. art. 1442 deposition,'Suzanne Davidson, Director of Operations, stated that St. Augustine had no communications with either Magic Productions or CEI regarding how to set up the stage. St. Augustine also asserted that it had no direct communications with CEI or Corporate Lighting, and did not pay any money to them directly.

Mr. Biagas, on behalf of Magic Productions, testified that it hired CEI to provide and set up the mobile stage. He stated that CEI owned the mobile stage which was used, and he did not assist in the extension to the mobile stage where Mr. Wells fell. He testified that St. Augustine was “never” asked to supervise the building of the stage, and was not on-site to direct the building of the stage.

CEI, through Mr. Williams, testified that CEI - builds stages, delivered the “SC250” mobile stage at issue, and installed it for the Hamp Fest. Mr. Williams testified that Magic Productions was responsible for the “stage extension,” and that CEI did not build that portion of the stage, from which Mr. Wells fell. He further testified that Mr. Biagas was in charge of supervision and overseeing all construction insofar as the staging and that CEI never took any instructions from St. Augustine.

Mr. Wells himself testified that no employee of St. Augustine set up the stage or railing where he fell.

Thus, while there is a dispute as to whether Magic Productions or CEI built and/or had control over the stage, the stage extension, and the allegedly defective railing, no evidence exists that St. Augustine had control over the instrumentality that caused Mr. Wells’ injuries.

|4St. Augustine moved for summary judgment, stating that it contracted with Mr. Biagas, on behalf of Magic Productions, as an independent contractor to produce the event, including installation of the stage; it did not retain any operational control over the construction. St. Augustine argued that because the co-defendants and Mr. Wells have admitted that it did not build and/or supervise the construction of the stage where the accident occurred, St. Augustine could not be held liable as a matter of law for the plaintiffs alleged injuries. Mr. Wells opposed the motion and filed a cross-motion for summary judgment against St. Augustine. The basis of the cross-motion was Mr. Wells’ assertion of the existence of a joint venture between St. Augustine and Magic Productions. St. Augustine opposed Mr. Wells’ motion.

On 26 November 2014, the trial court granted St. Augustine’s motion for summary judgment, and denied Mr. Wells’ cross-motion. The lower court also provided reasons for judgment. With respect to St. Augustine’s motion, the trial court wrote:

[Tjthe court granted this motion because defendant has established that there are no material issues of fact in dispute as to the independent contractor status of defendant, Mr. Biagas, d/b/a Majic [sic] Productions and defendant, St. Augustine High School, Inc., or that Mr. Che-nier, on behalf of the St. Augustine High School exercised garde over the construction of the stage.

In addition, the trial court denied Mr. Wells’ cross-motion. The trial court stated: “the court finds that plaintiff was unable to establish that any of the elements necessary for a joint venture were present.”

Mr. Wells devolutively appealed the judgment in favor of St. Augustine. Since the denial of Mr. Wells’ cross-motion is an interlocutory order, no appeal of ¡¡¡that ruling lies in the instant matter. Mr. Wells has listed three assignments of error for our review. They are:

1.Whether the trial court erred by failing to consider whether Title 28, part CXV, Section 1501 of the Louisiana Administrative Code imposed an independent duty on appellee to inspect the safety of the stage and safety railing from which appellant fell, as a matter of law.
2. Whether the trial court erred in determining whether genuine issues of material fact existed with regard to whether appellant maintained garde and whether the Court should impose a duty on St. Augustine, as a matter of law, to keep the stage and safety railing from which appellant fell in safe condition, regardless of whether an independent contractor relationship existed as a matter of fact; or, alternatively, whether a material fact issue exists regarding the independent contractor relationship on the issues of “control” and “independence.”
3. Whether the trial court erred by substituting its own factual findings regarding the type of relationship between appellant and Biagas-as joint venturers or independent contractors-when that question should have been submitted to the jury.

We review a judgment on a motion for summary judgment de novo, using the same standard that the trial court uses in originally deciding the motion. Jones v. Buck Kreihs Marine Repair, L.L.C., 13-0083, p. 1 (La.App. 4 Cir. 8/21/13), 122 So.3d 1181, 1183, writ denied, 13-2260 (La. 12/2/13), 126 So.3d 1285.

Turning to Mr. Wells’ first assignment of error, we find it to be without merit. We find nothing in the law indicating that La. Admin.Code, tit. 28, pt. CXV applies to private educational institutions, such as St. Augustine.

As provided by La. Admin. Code, tit. 28, pt. I, § 301:

| (¡The Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools and special schools under its jurisdiction and shall have budgetary responsibility of all funds appropriated or allocated by the state for those schools, all as provided by law.

Further, as provided by La. Admin. Code, tit. 28, pt. CXV, § 101:

A. Policies passed by the Board of Elementary and Secondary Education (BESE) govern the operation of public elementary, middle, and secondary schools. Bulletin 7⅛1 — Louisiana Handbook for School Administrators, contains policies for the administration of public schools. [Emphasis supplied.]

Thus, as provided by BESE, the Louisiana Handbook for School Administrators cannot create a non-delegable duty on the part of St. Augustine, a private school.

In Mr. Wells’ second assignment of error, he asserts that St. Augustine maintained garde of the stage being built on its property. He contends that the trial court erred because it did not address the issue of garde or whether St. Augustine and Magic Productions shared a relationship of control over the stage. If one can answer “yes,” to the question of whether shared garde existed, then strict liability pursuant to La. C.C. art. 2317 would apply. However, even if evidence was present from which the trier of fact could find shared garde existed, La. C.C. art. 2317 would be applied to determine liability.

Article 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

Article 2317.1 provides, in pertinent part, the modification:

|7The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, the plaintiff must prove three elements: (1) the defendant either owned or had care, custody, or control of the thing in question; (2) the thing was a cause-in-fact of the plaintiffs injuries; (3) the thing presented an unreasonable risk of harm. Gallina v. Hero Lands Co., 03-0331, pp. 4-5 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 762, citing Baker v. Murphy Oil USA, Inc., 01-1299, p. 5 (La.App. 4 Cir. 4/10/02), 816 So.2d 329, 332. In addition, pursuant to article 2317.1, the plaintiff must prove: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise such reasonable care. Gailey v. Barnett, 12-0830, p. 5 (La.App. 4 Cir. 12/5/12), 106 So.3d 625, 628, writ denied, 12-2761 (La.2/22/13), 108 So.3d 770.

In this instance, the parties agree that St. Augustine owned the property upon which the stage was being built. However, the courts have recognized the reality that custody or garde is a broader concept than ownership, and custody or garde may be shared by multiple parties. To determine whether custody or garde is shared, the courts look to the parties’ actions and relationships to the thing causing injury. The test for determining custody or garde is two-fold: (1) whether the person bears such a relationship as to have the right of direction or control over the thing, and (2) what, if any, kind of benefit the person derives from the thing. Galli-na, 08-0331, at p. 5, 859 So.2d at 762, citing Dupree v. City of New Orleans, 99-3651, p. 7 (La.8/31/00) 765 So.2d 1002, 1009.

|sIn Morgan v. Bell, 10-0278, p. 3 (La.App. 4 Cir. 7/28/10), 44 So.3d 851, 853, we .stated:

The Supreme Court enumerated several factors for courts to consider in determining independent contractor status in Morales v. Davis Bros. Construction Co., 94-0902 p. 8 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302, 1305: 1) whether there is a valid contract between the parties; 2) whether the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; 3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal; 4) whether there is a specific price for the overall undertaking; and 5) whether a specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.

The defendants all agree that St. Augustine did not have the right of direction or control over the stage. This right was assigned by St. Augustine to Mr. Biagas d/b/a Magic Productions via a written contract, which, in turn, may have assigned the right of direction and control of the stage to CEI. Clearly, Magic Productions and CEI are pointing at each other as to which entity built and/or is responsible for the unsecured railing. However, both entities agree that St. Augustine is free from liability.

The contract itself specified that Magic Productions would “at all times maintain control of the means, methods and personnel needed to fulfill its obligations for this event.” Magic Productions was responsible for doing the work according to its own methods and without any control or direction from St. Augustine. The specific price of $25,000 was paid by St. Augustine to Magic Productions. Finally, the parties knew that Magic Productions had to complete its work by 30 September 2011, the date of Hamp Fest.

|gFurther, no evidence exists that St. Augustine knew or should have known of the defective railing or that it failed to exercise reasonable care. These responsibilities were assumed by Magic Productions and/or CEI.

It is undisputed that when the stage was being built, no one from St. Augustine was on site supervising the construction. In fact, the reason St. Augustine assigned the work to Magic Productions is that St. Augustine did not have the ability or expertise to do the job. Even Mr. Wells admitted in his deposition that, before the accident, he had no interaction with St. Augustine and that no St. Augustine representatives were present on site or had anything to do with installation of the safety railing. The mere fact that St. Augustine owns the property upon which the stage was being built is not enough to impose liability on it. We find this assignment of error to be without merit.

Finally, Mr. Wells alleges that the trial court erred by substituting its own factual findings regarding the type of relationship that existed between St. Augustine and Mr. Biagas, on behalf of Magic Productions — a joint venture or independent contractor — when that question should have been submitted to the jury. Again, we find this assignment of error to be merit-less.

The contract that existed between St. Augustine and Magic Productions explicitly states that: “Magic Productions shall at all times control the means, methods, and personnel needed to fulfill its obligations . for this event.” In order to fulfill its obligations, it hired CEI to provide and build the stage. ' Magic Productions also hired Corporate Lighting, Mr. Wells’ employer. As for an alleged joint venture between St. Augustine and Magic Productions, we find that the requisite elements are not present to defeat the summary judgment granted in St. Augustine’s favor.

11flMr. Wells filed a cross-motion for summary judgment arguing that no issue of material fact existed to disprove a joint venture between St. Augustine and Magic Productions. He now, however, argues that the existence of a joint venture is a question of fact and that the trial court erroneously substituted its own factual findings concerning the relationship between the two parties. The trial court found that Mr. Wells did not prove all the elements of a joint venture; however, Mr. Wells put the issue squarely before the trial court.

A joint venture, like a partnership, is a juridical person, distinct from its partners, created by an agreement between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. Broadmoor, LLC v. Ernest N. Mortal New Orleans Exhibition Hall Authority,. 04-0211, 04-0212, pp. 18-19 (La.3/18/04), 867 So.2d 651, 663. “Joint ventures arise only where the parties intended the relationship to exist, and they are ultimately predicated upon contract either express or implied.” Id., p. 19, 867 So.2d at 663.

No evidence exists that St. Augustine and Magic Productions intended to enter into a joint venture. We do not find that the parties shared a mutual risk for their common profit or commercial benefit. Magic Productions was paid the amount specified in the contract. The fact that Mr. Biagas may have charged St. Augustine less because he is an alumnus does not mean that the parties combined their efforts and/or resources. In addition, the contract fails to indicate that Magic Productions could incur any risk should Hamp Fest fail to be a success. Magic Productions was to receive $25,000 regardless of the outcome.

|nWe find that, regardless of the relationship between St. Augustine and Magic Productions, the contract clearly gave Magic Productions “control over the means, method, and personnel” to complete the contract. At no time did St. Augustine exercise any control over the construction of the stage, the extension, and/or the railings. For these reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Mr. Wells did not seek writs from this court concerning the denial of his cross-motion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Maritza HYDE and Andrew Hyde, Individually and on Behalf of Escohyde, Inc. d/b/a Pepperone Cafe v. CASH CONTROL SYSTEMS, L.L.C.
    No. 2014-CA-0258.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2014.

      Leon H. Edmond, IV, Law Office of Leon Edmond, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Alan J. Yacoubian, Neal John Favret, Johnson Johnson Barrios & Yacoubian, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

1 ;The defendant, Cash Control Systems, L.L.C. (“CCS”), appeals the 13 December 2013 judgment rendered by the First City Court of the City of New Orleans in favor of the plaintiffs, Maritza Hyde and Andrew Hyde, individually, and on behalf of Escoh-yde, Incorporated d/b/a Pepperoni’s Café (collectively hereinafter, “the Hydes”), denying the relief sought by CCS in its petition to annul judgment. For the following reasons, we affirm.

La. C.C.P. art. 2004 A provides that “[a] final judgment obtained by fraud or ill practices may be annulled.” This appeal presents the issue of whether an attorney’s failure to give notice to counsel for the opposing party of his intent to confirm a judgment against the opposing counsel’s client constituted an ill practice as contemplated by article 2004. At the time the judgment was rendered, counsel for the opposing party had not formally enrolled as counsel of record in the litigation, filed a formal request for extension of time on behalf of his client, or made any appearance of record in the proceedings. After considering the law and evidence submitted at the hearing on CCS’s petition to annul the judgment, the trial judge determined that, under the facts and circumstances presented, that the factions of the plaintiffs’ attorney did not constitute an ill practice under the provisions of La. C.C.P. art. 2004. We agree.

Facts and Procedural History

This litigation originated as a breach of contract action involving the sale and installation of certain computer systems filed by the Hydes against CCS. On 31 December 2010, the Hydes entered into a written contract with CCS whereby CCS agreed to install a computer system at Pepperoni’s Café. The Hydes purchased the computer system for purposes of assisting them in the day-to-day operations of the restaurant. After paying to CCS the contract price of $9,678.11, CCS installed the system. According to the Hydes, the computer system never properly fúnctioned in the capacity, or for the purposes, for which it was purchased.

The Hydes contend that, after months of repeatedly requesting CCS to remedy the computer system’s shortcomings to no avail, they retained an attorney, Mr. Leon H. Edmond, IV (“Mr. Edmond”), to assist them. Mr. Edmond sent a letter to CCS through its sole member, Melvin J. Ziegler, Jr., dated 15 December 2011, requesting a refund of the purchase price in exchange for the return of the system. The record reflects that this letter was received by Mr. Ziegler on behalf of CCS on 19 December 2011. It is undisputed that CCS did not respond to the letter.

Three months later, on 15 March 2012, having received no response from CCS, Mr. Edmond filed suit for breach of contract against CCS on behalf of the |aHydes in the First City Court. The record reflects that personal service of the petition was made upon CCS through Melvin Ziegler, its sole member, on 21 May 2012. In response, CCS obtained counsel, Mr. Neal J. Favret (“Mr. Favret”), who, on 5 June 2012, conducted a telephone conference with Mr. Edmond. In that conference, Mr. Edmond agreed to grant CCS an informal extension of time within which to file responsive pleadings and to refrain from taking any action adverse to the interests of CCS without providing advance notice to Mr. Favret in order to allow him the opportunity to protect CCS’s interests. The agreement was memorialized in a letter drafted by Mr. Favret and sent by facsimile transmittal that same date to Mr. Edmond. This is the only written communication emanating from CCS to the Hydes, through counsel, contained and/or referenced in the record.

After the passage of áix weeks, on 18 July 2012, counsel for the parties had a telephone conference wherein it was agreed that the parties would meet during the week of 30 July 2012 to discuss possible resolution of the matter. Following the telephone conference, Mr. Edmond followed up with an email dated 18 July 2012 directed to Mr. Favret confirming the parties’ agreement to meet. The record is devoid of any response, written or otherwise, by Mr. Favret to the email. Consequently, no potential dates were provided and no meeting between the parties ever occurred.

|4On 2 August 2012, Mr. Edmond sent a letter by facsimile transmission to Mr. Favret reminding of their previous agreement to schedule a meeting with his client; the letter stated in pertinent part:

I hate to be a bother; but, my client was forced to file a petition to attempt to get your client’s attention as he did not respond to the letter that I sent to him certified on December 15, 2012 and he received on December 19, 2012. Now he has been served and is acting as if he just needs the chance to speak when he has had the chance since December 19th. I have opened the door for him to convey his side of the story and he has not accepted my invitation.

The letter further conveyed Mr. Edmond’s desire to schedule a status conference in order to obtain discovery deadlines and an agreeable trial date. It is undisputed that Mr. Edmond received no response to the letter from either Mr. Favret or CCS.

When Mr. Edmond attempted to file a motion on behalf of the Hydes to set the matter for trial, he was prohibited from doing so because no answer or other pleading had been filed on behalf of CCS. Consequently, having received no response to any attempts to move the matter forward, on 19 September 2012, Mr. Edmond facsimile transmitted a letter to Mr. Favret revoking the informal extension of time previously granted to CCS and included the following:

This withdrawal has become necessary due to your client’s non-responsive attitude that has been the tone and theme of this case. I await any response that you may have in this matter.

| .^Notwithstanding receipt of this letter, CCS failed to file an answer or other responsive pleading and failed to respond in any manner thereto. Thus, after the passage of twenty-seven days, on 16 October 2012, counsel for the Hydes proceeded, procuring a judgment against CCS. The record contains a certificate filed by the clerk certifying that on the same day the judgment was obtained, a notice of judgment was mailed by the court to CCS at the address upon which service of the original petition had been perfected pursuant to La. C.C.P. art. 1918 C, D.

Despite having been served with the notice of judgment in or about October 2012, no action was taken by or on behalf of CCS until exactly one year later, on 16 October 2013, when CCS filed the petition to annul judgment, which was denied on 13 December 2013. It is from this judgment that CCS timely appealed.

On appeal, Mr. Favret argues that the judgment Mr. Edmond procured constituted an “ill practice” as contemplated by La. C.C.P. art. 2004, because it was obtained without Mr. Edmond providing prior notice to him of his intention to obtain the judgment against CCS. Accordingly, CCS argues that the trial court erred in denying its petition to annul judgment.

| fiStandard of Review

“Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer.” Power Marketing Direct, Inc. v. Foster, 05-2023, p. 11 (La.9/6/06), 938 So.2d 662, 670; Duckworth Properties, L.L. C. v. Williams, 10-0244, p. 2 (La.App. 4 Cir.' 11/24/10), 52 So.3d 287, 289. Our courts examine each case from an equitable viewpoint to “ascertain whether allowing the judgment to stand would be inequitable or unconscionable,” considering the practice by which the party was able to obtain the judgment. Duckworth Properties, p. 2, 52 So.3d at 289.

Law and Discussion

As noted above, a final judgment obtained by fraud or ill practices may be annulled. La. C.C.P. art. 2004 A. As a preliminary matter, we note that an action for nullity is not properly filed as a summary proceeding as was done by CCS in this case. The law requires that an action for nullity pursuant to La. C.C.P. art. 2004 must be brought in a direct action, rather than a summary proceeding. See Gazebo, Inc. v. City of New Orleans, 97-2769, pp. 7-8 (La.App. 4 Cir. 3/23/98), 710 So.2d 354, 358. Summary proceedings may be used only in those matters in |7which the law permits them to be used. La. C.C.P. art. 2592. No authority in law exists to bring an action to annul a judgment for fraud or ill practices in a summary proceeding. Thus, the party praying for the nullity of judgment alleging fraud or ill practices pursuant to article 2004 must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits. Knight v. Sears, Roebuck & Co., 566 So.2d 135, 137 (La.App. 1st Cir.1990); see La. C.C.P. art. 1201.

While CCS’s pleading filed in the instant case was captioned “Petition for Nullity of Judgment,” CCS set the matter for contradictory hearing as a motion to show cause. At the hearing, both sides argued and offered evidence on the merits and the trial judge, thereafter, summarily decided the case on its merits. An action for nullity is an ordinary proceeding and should not be summarily determined on a motion (rule), as was done in the instant case. See Ezzell v. Miranne, 13-349, p. 8 (La.App. 5 Cir. 12/30/18), 131 So.3d 1093, 1098.

Nevertheless, a dilatory exception asserting the unauthorized use of summary proceedings to attack the judgment would have been the proper procedure for contesting CCS’s filing of its petition to annul and setting it for contradictory hearing. However, a dilatory exception to a rule to show cause must be filed prior to the time assigned for trial of the rule or it is deemed waived. La. C.C.P. arts. 926, 928 and 2593. Here, the Hydes made no objection to the form of the proceeding in the trial court and, thus, waived any right to object to the improper summary proceeding.

|sIn determining whether a judgment has been obtained by actionable fraud or ill practices, it must be shown that: “(1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable.” Duckworth Properties, p. 2, 52 So.3d at 289, quoting Johnson v. Jones-Joumet, 320 So.2d 533, 537 (La. 1975). La. C.C.P. art. 2004 is not limited to cases-.of actual fraud or intentional wrongdoing, but is sufficiently broad to include situations where:

[A] judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.

Russell v. Illinois Cent. Gulf R.R., 96-2649 (La.1/10/97), 686 So.2d 817, 819, quoting Kem Search, Inc. v. Sheffield, 434 So.2d 1067,1070 (La.1983).

In the case at bar, counsel for CCS argues that, while Mr. Edmond’s 19 September 2012 letter withdrew the previously granted extension of time within which CCS had to file responsive pleadings, the letter (1) made no reference to his withdrawing the prior agreement to notify counsel prior to taking any actions adverse to CCS, and (2) was devoid of any notice of his intention to obtain the judgment against CCS. According to CCS, the failure of Mr. Edmond to give notice to its counsel prior to obtaining a judgment against constituted an ill practice, which effectively deprived CCS of its legal right to assert defenses to the Hydes’s claim for breach of contract. CCS further contends the trial court’s refusal to annul the judgment was erroneous because its enforcement would be both unconscionable and inequitable. To support its position, CCS cites Kem Search, supra, and Russell, supra, where the failure of counsel to give notice prior to ^taking a default and confirming the default was the decisive factor in annulling the judgments on the ground that such failure to give notice constituted an ill practice.

CCS’s reliance on Kem Search and Russell is misplaced, however, because this case sub judice differs factually: in both of the cases, the Louisiana Supreme Court determined that it was an ill practice for an attorney to obtain a default and confirm the default without attempting to notify the opposing attorney when the opposing attorney had actively participated in the litigation proceedings and the defendants were actively attempting to defend their rights. Kem Search, 434 So.2d at 1070; Russell, pp. 2-3, 686 So.2d at 819. To the contrary, under the facts and circumstances presented here, we find that CCS was not actively participating in or attempting to defend or protect its rights in this litigation at all.

The evidence establishes that as early as 19 December 2011, approximately ten months prior to obtaining the judgment, the Hydes, individually, and then |;pthrough their attorney, Mr. Edmond, attempted to get CCS, individually, and then through its attorney, Mr. Favret, to respond to their complaints of dissatisfaction with the computer system it installed, all to no avail. When the Hydes’s certified letter directed to the owner of CCS requesting relief went ignored, after three months, the Hydes filed suit in March 2012. Though CCS retained counsel, who did contact the Hydes’s counsel in June 2012 and obtained an informal extension of time, in addition to an agreement that no adverse action would be taken against CCS without prior notice, the communication from that point forward remained virtually one-sided. Emails and letters to Mr. Favret from Mr. Edmond fell on deaf ears, yielding no response. In yet another ill-fated attempt to move the matter forward, the Hydes’s counsel sought to set the case for trial and obtain discovery deadlines, but was unable to do so because CCS counsel had failed to file an answer in the matter or to otherwise make an appearance in the lawsuit. Finally, on 19 September 2012 — having received no response from CCS’s attorney for two months — counsel for the Hydes faxed a letter to CCS’s attorney revoking the previously granted informal extension of time within which to respond to the lawsuit. Though Mr. Edmond did not expressly revoke his former agreement not to take any adverse action against CCS without first giving CCS notice of his intention to do so, once the extension of time was revoked, pursuant to La. C.C.P. art. 4903, CCS had ten days within which to formally appear and file an answer or other responsive or appropriate pleading. Instead, counsel for CCS took no action whatsoever nor participated further. Consequently, a judgment was obtained on [^behalf of the Hydes twenty-seven days after the motion for extension had been withdrawn.

At the hearing on CCS’s petition to annul judgment, the trial judge noted that CCS “could have filed an extension of time and [the Hydes] wouldn’t have been able to come in and take a default. But you literally did nothing in the record.” [Emphasis supplied.] A recitation of the proceedings, in part, is telling:

THE COURT:
The withdrawal of the extension, how much time lapsed between the time you get the letter, because isn’t it — what is the date?
MR. FAVRET:
September 19th.
THE COURT:
September 19th?
MR. FAVRET:
And in less than 30 days later, he takes a default judgment. He had to have applied with Your Honor to get the hearing.
THE COURT:
Well, you only have 15 days to answer. So you almost got doubled [sic] the amount of time, right, after he withdrew the extension on September 19? MR. FAVRET:
That is true, Your Honor.
THE COURT:
And the default isn’t taken until almost 30 days later.
MR. FAVRET:
Less than 30 days later. It was actually — the hearing was taken — so I would submit that—
THE COURT:
hi>So you still got — even after he withdrew it, he still gave you 15 days, is that correct?
MR. FAVRET:
He did, Your Honor.
THE COURT:
Okay.
MR. FAVRET:
Nevertheless, he had an - agreement with counsel that he would notify counsel prior to taking any adverse actions. That did not happen. That was not withdrawn. The extension of time was withdrawn. We had two agreements in that letter of June 5th, Your Honor, one that he would give us an extension of time and—
THE COURT:
I guess I’m not understanding. If you don’t have an extension, what do you think happens?
MR. FAVRET:
I thought that because of the agreement—
THE COURT:
What do you think the significance of not having an extension is? There is no extension of time to answer. So to you, what is the significance of that?
MR. FAVRET:
The significance of that is that he could file a default judgment. However, Your Honor, we specifically attempted to guard against that by saying, counsel, please let us know you agreed not to take part in any adverse action—
THE COURT:
You would guard against that by enrolling in the record. It is free to file a motion for extension of time.
MR. FAVRET:
I understand that, Your Honor, I do. THE COURT:
It is free to file a motion to enroll.
MR. FAVRET:
|1SI understand completely.
THE COURT:
I would not have let them proceeded [sic] if either one of those things were in the record, but they weren’t.
MR. FAVRET:
I completely understand, Judge. And the Louisiana Supreme Court’s quoting in Chemsearch [sic] clearly says that they could have taken other more prudent steps. But the fact that they did not still does not negate the fact—
THE COURT:
But that still doesn’t mean that it rises to the leve [sic] of fraud or ill practice.
MR. FAVRET:
Your Honor—
THE COURT:
It could not be nice, but that is not ill practice.
MR. FAVRET:
Your Honor, I completely understand. THE COURT:
There’s a line between not nice and ill practice.
MR. FAVRET:
I completely understand. And I’m not here saying that he intentionally defrauded us. I’m not saying that the court intentionally did anything wrong. What I’m saying is exactly that Chem-search [sic] says, which is these actions, even if they innocently deprive a litigant of the chance to set forth these defenses — even if they could have done something more prudent, Your Honor, the agreement was that they would notify us prior to doing exactly what happened.
THE COURT:
The only reason you’re in here now is because they filed a judgment debtor rule. Even after your client gets served with a notice of judgment, nothing happens.
MR. FAVRET:
And curiously, Judge, the only notice that we have of the judgment was when counsel calls us 84 days after the appeal delays have run to notify us that there was a |udefault judgment taken. We couldn’t appeal this. We had to file a petition to annul.
THE COURT:
Because you didn’t enroll, it wouldn’t have gone to you. It went to where the original service was. MR. FAVRET:
I understand that, Judge. We had an agreement in place between counsel. And the fact that he did not notify us knowing that we represented Cash Control Systems — judge, we had conversations in June, in July, in August and in September. There were communications between counsel.
THE COURT:
And so how long do you think he should wait for you to get involved?

Based upon a thorough review of the record before us, and after consideration of the facts presented and applying the law to those facts, unlike Kem Search, supra, and Russell, supra, we find no evidence that CCS was unfairly deprived of an opportunity to present its defenses in this case. To the contrary, we find that CCS simply chose not to take any action to protect the potential loss of its rights. Though counsel for CCS wrote one letter and participated in two phone calls over a period of four months, we cannot say and do not find that CCS or its attorney was actively participating in the litigation proceedings or was actively involved in attempting to protect CCS’s rights and/or defenses. Accordingly, we do not find that the Hydes’s attorney employed fraud or ill practices to obtain the | ^judgment against CCS or that enforcement of the judgment would be either unconscionable or inequitable under the circumstances presented in this case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

LOBRANO, J.,

dissents with reasons.

hi respectfully dissent from the majority’s decision to affirm the trial court judgment.

As noted by the majority, the issue in this appeal is whether an attorney’s failure to give notice to counsel for the opposing party of his intent to confirm a judgment against the opposing counsel’s client constituted an ill practice as contemplated by La. C.C.P. article 2004. A letter dated June 5, 2012 from defendant’s attorney to plaintiffs’ attorney included the following paragraph:

This will confirm our telephone conversation this morning wherein we advised of our firm’s representation of Cash Control Systems, LLC in connection with the above-captioned litigation. In addition, this will confirm your agreement to grant us an extension of time within which to file responsive pleadings on behalf of our principal. Finally, this will confirm your agreement to refrain from taking any action adverse to the interests of Cash Control Systems, LLC, or any other defendant without contacting us in advance in order to allow us the opportunity to protect their interests.

By letter dated September 19, 2012, plaintiffs’ attorney stated the following to defendant’s attorney:

I have written this letter to advise you that I hereby withdraw the extension of time within which to file responsive pleadings that I have granted in the case referenced above. This withdrawal" has become necessary due to your client’s non-responsive attitude 12that has been the tone and theme of this case. I await any response that you may have in this matter.

Significantly, the September 19, 2012 letter did not state that the plaintiffs’ attorney was withdrawing the agreement noted in the June 5, 2012 letter to notify defendant’s attorney prior to taking action adverse to the interests of the defendant. Furthermore, the September 19, 2012 letter did not inform the defendant’s attorney of plaintiffs’ attorney’s intent to obtain a default judgment against the defendant, and there is no indication elsewhere in the record that plaintiffs’ attorney informed defendant’s attorney in advance that he was obtaining a default judgment. In his memorandum in opposition to defendant’s petition to annul judgment, plaintiffs’ attorney admitted that he agreed to refrain from taking any action adverse to defendant without prior notice.

Considering the above-referenced correspondence and the admission of plaintiffs’ attorney in the above-referenced memorandum, it is my opinion that the plaintiffs’ attorney’s action in obtaining a default judgment against the defendant without giving prior notice to defendant’s attorney constituted an ill practice. For that reason, I would reverse the trial court’s judgment denying the defendant’s petition to annul judgment, and I would render judgment granting the petition to annul judgment.

      . Unlike judgments in district court where a default is entered and the default confirmed two or more days later, no default (erroneously referred to as a preliminary default) is required in a city court. La. C.C.P. art. 4904 A.; cf. La. C.C.P. art. 1701, etseq.

      . A copy of the contract is not contained in the record on appeal.

      . See La. G.C.P. art. 1266 B(l); R.S. 12:1308; La. R.S. 12:1311.

      .It is unclear from the record who initiated this telephone conference.

      . See City of New Orleans, First City Court, Rule 10, § 4(c).

      . La. C.C.P. art. 4903 provides that in matters pending in parish and city courts, ‘‘[t]he defendant shall answer within ten days of the service of citation.”

      . La. C.C.P. art. 1913 provides, in pertinent part:
      C. Notice of the signing of a default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.
      D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of judgment was mailed.
      According to the record, service of the breach of contract petition filed by the Hydes was made personally upon CCS through its sole member, Melvin J. Ziegler, Jr., at his address in Kenner, Louisiana. The record further confirms that, because no answer or exceptions had been filed into the record and no formal appearance by Mr. Favret (or any other lawyer) on behalf of CCS had been entered, in accordance with La. C.C.P. art. 1913C, the clerk mailed the notice of the signing of the judgment to Mr. Ziegler at this same Kenner address.

      . A "direct action” means that the party praying for the nullity of judgment must bring his action by means of a petition and the adverse party must be cited to appear. Lowe's Home Const., L.L.C. v. Lips, p. 5 (La.App. 5 Cir. 1/25/11), 61 So.3d 12, 16. The action for nullity need not be filed in a new proceeding with a different number, but rather, can be filed in the same case which produced the offending judgment. Gazebo, Inc. v. City of New Orleans, 97-2769, p. 7 (La.App. 4 Cir. 3/23/98), 710 So.2d 354, 358.

      . The Official Revision Comment (d) to La. C.C.P. art. 2004 states: No specific provision has been made regarding the manner of asserting the grounds of nullity in the above article. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. (Citations omitted).

      .Those matters in which summary proceedings may be used are set forth in La. C.C.P. art. 2592.

      . In Kem Search, a suit on an open account, a judgment confirming a default was entered in favor of the seller. The buyer filed a petition to annul the judgment, which was denied by the trial court. The appellate court affirmed. On writs, agreeing that the defendant could have more prudently protected his rights by filing responsive pleadings to the petition, the Court concluded that the enforcement of the judgment was nevertheless unconscionable because the defendant failed to act due to his mistaken and not unreasonable impression that the plaintiff would give him an opportunity to file pleadings if his settlement overtures were rejected. A "mis-communication between the parties” resulted in a deprivation of the buyer’s legal rights. Kem Search, 434 So.2d at 1071. The Court further observed that the Kem Search attorney’s confirmation of the default without giving prior notice constituted an ill practice under the circumstances of the case, i.e., where the defendant was actively involved in attempting to protect his rights in the litigation, and thus, entitled the defendant to have the judgment annulled. Id. at 1072.

      . In Russell, the Court held that it was an ill practice for the plaintiff's attorney to confirm a default without attempting to notify the opposing attorney when the opposing attorney had participated in the litigation proceedings and inadvertently failed to file an answer to the plaintiff's second amended petition. The case involved a petitory action, wherein litigants intend to assert their respective rights to the property involved. The Court held that “[ujnder these circumstances, we find the action of the Plaintiff’s attorney in this case does constitute an ill practice under La.Code Civ.P. art. 2004.” Russell, p. 2, 686 So.2d at 819 [Emphasis supplied]. Thus, the Court found it was an ill practice for an attorney to obtain a judgment without attempting to notify the opposing attorney when the opposing attorney had participated in litigation proceedings and the defendants were actively attempting to defend their rights. Id.

      . The record reflects that a telephone conference between counsel took place on 18 July 2012; it is unclear which party initiated that conference.

      . Pursuant to La. C.C.P. art. 4903, the actual delay for filing an answer in First City Court is within ten days of the service of citation.

      . The record confirms that a notice of the judgment was mailed by the clerk to Mr. Ziegler on 16 October 2012 in accordance with La. C.C.P. art. 1913(C); notice of judgment was sent by the court to CCS at the address where personal service of the petition had been made. No action — not a phone call or a letter — was taken by CCS or its counsel until one year to the date later on 16. October 2013, the date the petition to annul judgment was filed.

      . Counsel for CCS would have this court believe that counsel for both parties participated in those communications that took place in June, July, August and September, but the record belies his assertion. The only communications that took place between the parties occurred in June and July. Thereafter, the communication was one-sided being originated by the Hydes's attorney.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of T.S.
    No. 2014-CA-0403.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee, State of Louisiana.
    Tenee Felix, Louisiana Center for Children’s Rights, New Orleans, LA, for Appellant, T.S.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|;The juvenile, T.S., appeals, arguing that the evidence adduced at trial is insufficient to support her adjudication as a delinquent for illegally carrying a dangerous weapon onto school property in violation of La.Rev.Stat. 14:95.2. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the juvenile court.

Relevant Facts and Procedural History

On November 1, 2012, during an altercation with other students in the hallway of Crescent Leadership Academy, T.S. attempted to pull a knife out of her wrist cast but it fell to the ground and was retrieved by Leonard Kelly, a school employee. T.S. was subsequently arrested and on April 15.2013, charged by petition with one count of illegally carrying a weapon by a student in violation of La.Rev.Stat. 14:95.2.

After a hearing on January 9, 2014, T.S. was found guilty as charged and adjudicated a delinquent. After a disposition hearing on February 13, 2014, the juvenile court committed T.S. to the Department of Public Safety and Corrections for a period of time not to exceed six months, then suspended the commitment and |2placed T.S. on active probation under the supervision of the Office of Juvenile Justice for a period of six months.

This appeal was timely filed.

Applicable Law

La.Rev.Stat. 14:95.2(A) provides in pertinent part: Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property ... is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one’s person, at any time while on a school campus....

Standard of Review

Although the State’s burden of proof in a juvenile proceeding is the same as in a criminal proceeding, delinquency proceedings are civil in nature and our scope of review extends to both law and facts. State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979). As such, however, “a factual finding made by a trial court in a juvenile proceeding may not be disturbed unless the record evidence as a whole does not furnish a basis for it, it or is clearly wrong.” State in the Interest of R.W., 13-1197, pp. 3-4 (La.App. 4 Cir. 4/9/14), 140 So.3d 189, 191 (quoting State in the Interest of J.J, 13-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250); see also In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47, 61 (“an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong”); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (“if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently”). Thus, even where there are two permissible views of the evidence, the fact finder’s choice cannot be clearly wrong and an appellate court may not |ssubstitute its opinion for that of the juvenile court judge “who is in the unique position to see and hear witness as they testify.” In re A.J.F., 764 So.2d at 62.

Because juvenile proceedings are civil in nature, sufficiency of the evidence claims are reviewed under both the “rational fact-finder” standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and the “clearly wrong/manifest error” standard of Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). See State in the Interest of Baptiste, 367 So.2d 784, 788 (La.1979).

Discussion

On appeal, counsel for T.S. argues that the evidence is insufficient to support the adjudication under La.Rev.Stat. 14:95.2 because the State failed to show that T.S. used the knife in such a way that death or great bodily harm was likely. Specifically, counsel points out that La.Rev.Stat. 14:95.2 provides that it is unlawful for a student to possess any firearm or dangerous weapon at school and, in turn, La.Rev. Stat. 14:95.2(3) defines a dangerous weapon as an instrumentality that “in the manner used, is calculated or likely to produce death or great bodily harm.” Thus, counsel argues that because the knife is not a firearm, the State was obligated to show that T.S. “ ‘used’ the knife in such a way that death or great bodily harm was likely.” In addition, counsel argues that an adjudication in this case “poses a real threat to anyone who has ever carried a pocketknife ... in their booksack from home to school” and that the legislature did not intend to “criminalize the carrying of a normal every day implements or school supplies to school.”

Counsel’s argument is clever but not persuasive in this case. The evidence adduced at the delinquency hearing is as follows. Mr. Kelly testified that that he observed T.S. and six other girls “fussing at each other” in the school hallway. He |4saw one of the girls “trying to attack” T.S. and, in response, saw T.S. “just pulling out the knife” which fell to the ground. Mr. Kelly picked it up and turned it over to other school personnel. Mr. Kelly confirmed that the incident occurred on school premises and that T.S. was a student.

On cross-examination, Mr. Kelly indicated that the other girls were surrounding and pushing towards T.S. and he was rushing over to help her when she withdrew the folded pocketknife from her wrist cast. He stated that the blade of the knife was never exposed because it fell immediately to the ground and T.S. did not attempt to open the blade or attack anyone with the knife.

Office Abram Pedesclaux, the School Resource Officer of the Fifth District, New Orleans Police Department (NOPD) also testified. Officer Pedesclaux was called to the school after the incident where he arrested T.S., and received the pocket knife from the school social worker. He identified the pocket knife (marked as State’s Exhibit 1) as the item he recovered in relation to this case. He stated that in previous investigations he had seen knives similar to the one recovered in this incident used to inflict serious injury.

No witnesses testified for the defense.

Although pocket knives have many innocent uses, they are not in the category of “standard school supplies.” The juvenile in this case was not carrying the knife in a school backpack with other school supplies but, rather, concealed the knife within her wrist cast. She did not take the knife out of a backpack in the course of a normal school day but, rather, withdrew it from her wrist cast in the midst of a confrontation with other students. Therefore, even accepting arguendo | ¡¿hat a pocketknife is not a dangerous weapon per se for purposes of La. 14:95.2(A), the circumstances of this case clearly indicate that the juvenile intended to use it as one. Accordingly, viewing the viewing under both the “rational fact-finder” standard of Jackson v. Virginia and the “clearly wrong/manifest error” standard of Rosell v. ESCO, we find the evidence sufficient to support the delinquency adjudication in this case.

Conclusion

The judgment of the juvenile court is affirmed.

AFFIRMED.

      . In accordance with the custom of this court, we the juvenile is referred to only by her initials.

      . Notably, pocket knives are on the standard list of items that cannot be carried onto an airplane since 9/11.


author: DANIEL L. DYSART, Judge. BONIN, J., TOBIAS, J., BAGNERIS, J.,

text:
    Marian CUNNINGHAM, Lisa Amoss, and Robert Amoss, et al. v. Frank MARULLO and Arthur Morrell, In his Official Capacity as Clerk of the Criminal Court for the City of New Orleans.
    No. 2014-CA-0931.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2014.

      Lance C. McCardle, Jason W. Burge, Alysson L. Mills, Fishman Haygood Phelps, Walmsley Willis & Swanson, L.L.P., Vincent J. Booth, Booth & Booth, APLC, New Orleans, LA, for Plaintiff/Appellant.
    James E. Boren, Baton Rouge, Rachel I. Conner, John Adcock, Leonard L. Leven-son, Weigand & Levenson, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

|,On August 25, 2014, Marian Cunningham, Lisa Amoss and Robert Amoss, three New Orleans residents and registered voters (“Appellants”), filed a Petition Objecting to Candidacy (“Petition”), challenging the qualifications of Frank Marullo to seek reelection to the office of judge of the Orleans Parish Criminal District Court. Appellants challenged Judge Marullo’s qualifications on two bases. First, Appellants alleged that Judge Marullo, having reached the age of 74, is no longer eligible to hold the office of judge pursuant to Article V, 23(B) of the 1974 Louisiana Constitution. Second, and alternatively, Appellants maintained that, to the extent Judge Marullo is subject to the provisions of the 1921 Louisiana Constitution, he must retire under Article VII, § 8(B) given that he will reach the age of 75 prior to the commencement of the term of the office for which he seeks reelection. Article VII, § 8(b) provided for the retirement of all judges when they attained the age of 75, with the exception of then-sitting judges, who were 12permitted to serve until the age of 80, unless they had served for 20 years, in which case, they were required to retire.

After a hearing on August 29, 2014, the district court denied the Petition and found Judge Marullo qualified to seek reelection. In its Reasons for Judgment, the district court found that “because Judge 'Marullo’s rights under the 1921 Constitution — were vested with the 1974 Constitution he is eligible to run again because he has not yet reached the age of seventy-five.” The district court’s findings are largely based on the Louisiana Supreme Court decision of Giepert v. Wingerter, 531 So.2d 754 (La.1988).

Appellants havé timely appealed the district court’s ruling. We affirm the district court’s ruling and set forth the following reasons.

BACKGROUND

The pertinent facts are not in dispute and were stipulated by the parties: •

• Judge Marullo was born on December 31, 1939, is currently 74 years old, and will turn 75 years old on December 31, 2014.
• Judge Marullo was appointed to the Orleans Parish Criminal District Court on September 16,1974, by then Governor Edwin W.' 'Edwards and has served continuously in that position through this date, having last been elected in 2008;
• Judge Marullo’s current term will expire on December 31, 2014;
h* Judge Marullo most recently qualified for reelection on August 20, 2014 for the election tó take place on November 4, 2014 (and if required, a runoff on December 6, 2014).

DISCUSSION

The issue in this appeal is whether Judge Marullo is properly qualified as a candidate for judge of the Orleans Parish Criminal District Court for the November 2014 election. We agree with Judge Ma-rullo that the issue is resolved not by looking to the terms of a judge’s retirement, but by considering the qualifications for the office Sought. We first note that, under the Louisiana Election Code, “[a] person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” La. R.S. 18:451 (emphasis added).

We next nóte that the limited qualifications to be a candidate for the office of a district court judge are set forth in Article V, § 24 of the 1974 Louisiana Constitution, which provides:

(A) A judge of the ... district court ... shall have been domiciled in the respective district, circuit, or parish for one year preceding election and shall have been admitted to the practice of law in the state for at least the number of years specified as follows:
(2) For a district court ... — eight years.

Accordingly, there are only two specific requirements for seeking the office of district court judge; namely, a judge must have one year of domicile in the parish in which he serves, and he must have been admitted to the practice of law Lfor eight years. There is no dispute that Judge Marullo meets both of these requirements, and Appellants make no issue of these facts. In fact, any person qualified under Article V, § 24 may run for judge of a district court regardless of his or her age; whether an elected judge must retire at a certain age is an altogether separate issue. If Judge Marullo had not been a sitting judge but simply a lawyer admitted to the practice of law for at least eight years, he clearly would have qualified as a candidate for the November 2014 election.

We disagree with Appellants’ contention that “the trial court erred as a matter of law when it ruled that Louisiana law does not impose an age requirement in order for candidates to be eligible to run for the office of judge.” Appellants cite no statutory authority for this position but rely on an “entire body of jurisprudence that interprets judicial eligibility requirements as to age in the context of deciding whether candidates are eligible to run for judicial office.”

There can be no dispute that there is no statutorily or constitutionally mandated minimum or maximum age limitation ' for a candidate to run for the office of district court judge. Indeed, as Justice Dennis’ concurrence in Williams v. Rag-land, 567 So.2d 63, 67 (La.1990)(Dennis, J., concUrring) recognizes, “the Louisiana Constitution clearly does not require that a person comply with either a minimum or maximum age limit in order to run for a judicial office.” Accordingly, Judge Ma-rullo’s having attained the age of 74 does not disqualify him from running for judge.

However, the inquiry does not end ■ there. This suit seeks to disqualify Judge Marullo as a judicial candidate on the grounds that, prospectively, he does not ^possess the qualifications to hold that office. Appellants argue that because Judge Marullo will reach the mandatory retirement age (under either the 1921 or the 1974 versions of the Louisiana Constitution) prior to the time he would take office, if reelected, he “is prohibited by law from serving as a judge as of the commencement of the upcoming term. Accordingly, he should not be a candidate for that office.”

A historical review of the mandatory retirement age for judges was summarized by the Geipert Court: In the 1921 Constitution, Article VII, § 8 initially provided for a judicial retirement age of 75. In a 1936 amendment, the mandatory retirement age for judges was raised to 80. Finally, in 1960, a constitutional amendment lowered the age to 75. The 1960 amendment did not except judges then in office from its scope, but it did permit sitting judges to continue to serve until age 80 or until they had achieved 20 years of service, whichever came first. See La. Const., Article VII, § 8 (1921) (as amended in 1960). No further changes were made in judicial retirement age prior to the adoption of the 1974 Constitution.

Giepert, 531 So.2d at 756. Thus, while the 1921 Constitution provided a mandatory retirement age of 75, the 1974 Constitution amended that age to 70. Appellants cannot seriously dispute that the provisions of the 1921 Constitution apply to Judge Ma-rullo, nor that the applicable mandatory retirement age for Judge Marullo is 75. This issue was resolved by the Louisiana Supreme Court in Giepert, which held that a judge sitting at the time of the adoption of the 1974 Constitution had certain rights provided-by the 1921 Constitution, including “the Ifiright to serve until age 75, or until age 80 if he needed additional years to achieve 20 years vested retirement service.” Id.

Having concluded that the mandatory retirement age for Judge Marullo is 75, we now turn to the issue of whether Judge Marullo’s reaching the age of 75 prior to the commencement of the judicial term disqualifies him at this time from running for reelection. Appellants suggest that under La. R.S. 18:942, Judge Marullo is “prohibited by law from becoming a candidate for one or more of the offices for which he is qualified.” Appellants reason that, because Judge Marullo “will be prohibited” from serving as a judge (because he will have then reached the mandatory retirement age and be subject to immediate removal on the date he takes office), this Court should find him ineligible to run in the first place.

Appellants’ contention is misplaced. While the applicable mandatory retirement age is 75, there is no specific statutory procedure for the manner in which a sitting judge who attains the mandatory retirement age must retire. That is, when a judge reaches the age for mandatory retirement, he is not automatically considered to have retired; he must either formally retire or be forced to retire by the Louisiana Supreme Court. This is clearly illustrated by the Louisiana Supreme Court case of In re Wingerter, 621 So.2d 1098 (La.1993), following the 1988 Giepert decision. In accordance with Giepert, Judge Wingerter was allowed to |7continue to serve as a city court judge until he reached the age of 75, or until he had 20 years of service. Although it is unclear when the action to retire Judge Wingerter was filed, the 1993 decision makes clear that Judge Wingerter did not, on his own, seek to retire. Rather, the Judiciary Commission of Louisiana, arguing that Judge Wingerter had reached the age of 75 with 20 years of service, sought to compel his retirement by the Louisiana Supreme Court. Adopting the Judiciary Commission’s recommendations, the Court held that a judge’s willful retention of office beyond his mandatory retirement age is grounds for removal by this court. Id., 621 So.2d at 1100. See also State ex rel. Williams v. Cage, 196 La. 341, 350-51, 199 So. 209, 211-12 (La.1940) (rejecting the argument that “the retirement of a judge at the age of 80 years, being compulsory, should be compared with removal or suspension from office,” the Supreme Court noted that “[r]etirement is more like a resignation than like any other cause of a vacancy in office, even when the retirement is compulsory”).

We likewise reject Appellants’ contention that, although La. R.S. 18:451 requires a candidate to “possess the qualifications for the office he seeks at the time he qualifies for that office,” “subsequent conditions” should be considered in determining whether a candidate properly qualifies to run for a particular office. We find both cases on which Appellants rely to be distinguishable from the instant matter.

In Montelepre v. Edwards, 359 So.2d 1311,1314 (La.App. 4 Cir.1978), this Court, in interpreting La. R.S. 18:451, held that a “candidate must meet the | squalifications for the office at the time he qualifies to run as a candidate, except, of course, as otherwise provided by law.” The Court reasoned:

... [T]he operative word here is “qualifies,” and that, in the context of this section, as well as in the context of elections generally, “qualifies” is normally understood to mean “qualifies to become a candidate.” One does not “qualify” when one is elected; rather, one “assumes office” or “takes office.” By using the term “qualifies,” the legislature is still referring to a candidate or his candidacy, as opposed to his capacity as a duly elected official. In summary, then, we feel that the legislative intent, as indicated by the title of the section, by the specific language of the first sentence, and by the use of the term “qualifies” in the last sentence, is that the candidate must meet the qualifications for the office at the time he qualifies to run as a candidate, except, of course, as otherwise provided by law.

Id. at 1314. The Court then held that an additional “subsequent condition” could be considered, which is La. R.S. 13:2492’s requirement that the judges of the Municipal Court of New Orleans “shall not be less than thirty years of age.” La. R.S. 13:2492 A. The Montelepre Court interpreted this provision as follows:

As the petitioner, on the day he qualifies to be a candidate for the office, will fulfill the requirements for being a judge because he will be thirty years of age on the day the duly elected candidate assumes the office, he meets the qualifications to be a candidate under R.S. 18:451. Put another way, one of the qualifications to be a candidate for office is whether, at the time one becomes a candidate by filing to run for office, it can be determined that one will possess the requirements, if any, for assuming the office. Here, it can be determined on the day Montelepre qualifies as a candidate that he will meet the requirement for assumption of the office he will be thirty years old on or before the date the office is to be assumed.

yd. at 1314-15.

It is clear that the Montelepre Court found the requirement that those seeking the office of municipal court judge be 30 years old at the time they assume their positions to be a qualification “otherwise provided by law” within the meaning of La. R.S. 18:451. ' No comparable provision applies to the instant matter. As we previously noted, there is no minimum (or maximum) age limit for candidacy for the office of district court judge. That mandatory retirement may follow a candidate’s election has no bearing on the issue before this Court. We reiterate that the only constitutional requirements for qualifying for the office- of district court judge are those set forth in Article V, 24 of the Constitution.

Similarly, in Stockstill v. Rousselle, 94-1609-1611 (LaApp. 4 Cir. 8/16/94), 641 So.2d 724, this Court considered whether an amendment to the Home Rule Charter of Plaquemines Parish, establishing term limits for' parish council members, approved by the voters prior to, but effective after, three council members qualified to run for reelection, disqualified their candidacies. The specific amendment to the Charter provided that a “person who has been elected to serve as a Parish Council Member for one and one-half or more consecutive terms shall not be eligible to be elected ... for the succeeding term.” All three of the candidates were serving in their second consecutive term.

Like the Montelepre Court, the Stocks-till Court found the charter amendment to “satisf[y] the ‘except as otherwise provided by law* effect of LSA-R.S. 18:451 and [to] render[ ] each of the defendant-incumbents ineligible to be elected as Parish Council Member.” Id., 94-1609-1611 641 So.2d at 727. The Court noted that, “at the time of assumption of the office of Parish Council Member ... the | indefendants-incumbents will not meet the requirements for assuming the office.” Id.

Again, unlike the instant matter, the charter amendment in Stockstill provided an additional qualification for seeking the office of Parish Council Member. Indeed, the amendment specifically stated that a council member, having served one and one-half or more consecutive terms, “shall not be eligible to be elected.” There is no similar provision which applies to this case, nor applicable additional requirement for qualifying for the office of district court judge. That is, the qualification to run for district court judge is in no way tied to the mandatory retirement age.

The appellants in Stockstill argued that the candidates were ineligible to run for parish council under La. R.S. 18:492(3) and (4). Curiously, in the instant matter, Appellants rely solely on subsection (4) and have not advanced the argument that, under subsection (3), Judge Marullo “does not meet the qualifications for the office he seeks in the primary election.” We view this as a concession on Appellants’ part that Judge Marullo does, indeed, meet the qualifications for the office of district court judge.

We recognize the inherent quagmire presented by this matter, insofar as Judge Marullo may be retired by the Supreme Court immediately after taking office. However, as a judiciary, we are tasked with the job of interpreting the laws as they stand; “[i]t is not our function as a court of appeal to legislate.” New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-0873, h,p. 10 (La.App. 4 Cir. 12/18/13), 131 So.3d 412, 419, writ denied, 14-0142 (La.3/21/14), 135 So.3d 623, citing Simmons v. Louisiana Dept, of Public Safety and Corrections, 07-0572 (La.App. 4 Cir. 12/12/07), 975 So.2d 1, 3. See also, Hamilton v. Royal International Petroleum Corp., 05-846, p. 10 (La.2/22/06), 934 So.2d 25, 33 (“[c]ourts are not free to rewrite laws to effect a purpose that is not otherwise expressed”).

As a final note, the district court, in its Reasons for Judgment, commented on a proposed constitutional amendment which, if approved by the electorate in the November 4, 2014 election, will eliminate the mandatory requirement age for judges. Appellants submit that the trial court erred in giving any consideration to the effect that the passage of that amendment would have on this matter. We agree that the proposed constitutional amendment is not at issue in this case. Our jurisprudence clearly indicates that “courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies.” Balluff v. Riverside Indoor Soccer II, L.L.C., 07-780, p. 4 (La.App. 5 Cir. 3/11/08), 982 So.2d 199, 201, citing CITGO Petroleum Co. v. Louisiana Public Service Com’n, 04-0914 (La.3/2/05), 898 So.2d 291; Baxter v. Scott, 03-2013 (La.11/14/2003), 860 So.2d 535. As we held in Munch v. Backer, 04-1136, p. 5 (La.App. 4 Cir. 12/5/07), 972 So.2d 1249, 1252, we “cannot engage in rendering advisory opinions or otherwise issue an opinion based on prediction.”

CONCLUSION

Based on the foregoing, the trial court’s judgment is affirmed.

AFFIRMED.

BAGNERIS, J., dissents with reasons.

TOBIAS, J., concurs in the result.

BONIN, J., concurs with additional reasons.

BONIN, J.,

concurs with additional reasons.

Ill concur in the majority opinion and offer additional reasons in support of our judgment affirming Judge Reese’s decision. I especially want to highlight three other considerations which support our conclusion that neither the current constitution nor the 1921 constitution contain or contained an age requirement — minimum or maximum — for the office of district judge. And, consequently, there is no minimum or maximum age requirement.

First, it is clear from the Louisiana constitution that the drafters well-knew how to provide for age limitations as a qualification for office in the other two branches: legislators (see La. Const, art. 3, § 4 (“[A]t the time of qualification as a candidate has attained the age of eighteen years....”)), and statewide elective office (see La. Const, art. 4, § 2 (“[B]y the date of his qualification as a candidate, shall have attained the age of twenty-five years.... ”)).

Second, the well-known “historical practice” of the Louisiana Supreme Court in appointing lawyers, including but not limited to retired judges, who are over the ages of seventy or seventy-five to fill vacancies in judicial offices pending elections demonstrates that the Court does not understand age to be a qualification for the office of district judge. The constitution restricts appointment to a vacancy | ato “a person meeting the qualifications for the' office, other than domicile....” La. Const, art. 5, § 22(B). The constitution provides only four qualifications for the office of district judge: domicile of one year preceding election, La. Const, art. 5, § 24(A); admission to the practice of law for eight years, La. Const, art. 5, § 24(A)(2); no practice of law following assumption of office, La. Const, art. 5, § 24(B), and no unpardoned felony conviction, La. Const, art. 1, § 10(B). Because there is no age requirement for qualification for the office, the appointment by the Supreme Court of persons to vacant judgeships which persons if judges would be beyond mandatory retirement age does not violate the constitutional provision that such persons meet “the qualifications for the office, other than domicile.”

Third, a judge, who while serving under the 1921 constitution and had reached the mandatory retirement age of eighty, was not ipso facto disqualified from continuing in office. See State ex rel. Williams v. Cage, 196 La. 341, 199 So. 209 (La.1940). There Judge Cage was challenged for continuing in office by someone who had received a commission from the governor to replace him. In the contest over whether there was a vacancy in the office of judge, the Louisiana Supreme Court over seventy years ago explained that “[t]he theory of the appellant seems to be that when a judge reaches the age of 80 years he immediately becomes disqualified or incapacitated to discharge the duties of his office. But that is not the case.” Cage, 196 La. at 351, 199 So. at 212 (emphasis added). I understand this case to mean that age in itself is not a qualification for the office of judge.

TOBIAS, J.,

concurs in the result.

hi respectfully concur. Our decision herein is based almost entirely on the 1921 Louisiana Constitution and the meaning of “judicial service rights” in article V, § 23(A) of the 1974 Louisiana Constitution as interpreted by the Louisiana Supreme Court in In re Levy, 427 So.2d 844 (La. 1983); Giepert v. Wingerter, 531 So.2d 754 (La.1988); In re Wingerter, 621 So.2d 1098 (La.1993); and Williams v. Ragland, 567 So.2d 63 (La.1990).

Because the trial court quoted in part my comments as a delegate to Louisiana’s 1973 Constitutional Convention, I note the following:

The Louisiana Supreme Court has not interpreted the concept of “judicial service rights” as envisioned by me as the primary drafter/proponent of § 23 in the 1974 constitution and as understood by the members of the Committee on the Judiciary of the 1973 Constitutional Convention and by most delegates. I understood and intended “judicial service rights” to mean that once a judge was one hundred percent vested in the retirement system, i.e., was entitled to one hundred percent of his retirement benefits and was seventy years of age or older, he was required to retire. The intent of the age seventy retirement provision was to create a pool of retired judges that the Supreme Court could assign around the state to expedite the handling of crowded dockets so that no new judgeship would have 12to be created for a judicial district until such time as it was very clear that an additional judge was needed.

I am, however, bound to follow the Supreme Court’s jurisprudence and I do so herein. The issue of qualification from office has been split from the concept of being able to serve. Judge Marullo is qualified to run for the district judgeship seat for which he has qualified. Whether he will be able to serve on or after 31 December 2014 is not before us and I express no opinion thereon.

BAGNERIS, J.,

dissents with reasons.

liThe majority’s opinion differentiates between eligibility requirements to run for office and qualifications to serve in office. I see no such distinction. The purpose of eligibility requirements to run for office is to determine those with the requisite qualifications to serve in office. This Court recognized that purpose in Montelepre v. Edwards, 359 So.2d 1311, 1314 (La.App. 4th Cir.1978) in its finding that “one of the qualifications to be a candidate for office is whether, at the time one becomes a candidate by filing to run for office, it can be determined that one will possess the requirements, if any, for assuming the office.”

The 1921 Constitution which applies to Judge Marullo provides in part that “every judge shall retire upon reaching the age of seventy-five years.” Although a proposed constitutional amendment may do away with age requirements to serve as judge, this Court can only rule on the facts and the law as they now stand. There is no doubt that at present, Judge Marullo, who turns seventy-five years old on December 31, 2014, is prohibited from serving a new term which begins on January 1, 2015. Because Judge Marullo is unable to serve under present law, he is not eligible to run for re-election.

I would reverse the judgment of the trial court; therefore, I respectfully dissent.

      . Frank Marullo has continuously served as a judge in Orleans Parish Criminal District Court since 1974; accordingly, he will hereafter be referred to as “Judge Marullo.”

      . Article VII, § 8(b) provided a mandatory retirement age of 75 forjudges.

      . Article VII, 8(b) of the 1921 Louisiana Constitution was continued as a statute by Const. Art. XIV, § 16(A)(5) and is now set forth in La. R.S. 11:1352, which provides that "[e]very judge shall retire upon reaching the age of seventy years.” La. R.S. 11:1352 A(l). It further provides that "any judge over the age of seventy years in office on December 31, 1974, may remain in the service until he has served for twenty years or until he has attained the age of eighty years, whichever shall occur first, and he shall then retire.” La. R.S. 11:1352 A(2).

      . Under La. R.S. 18:1409, in an action objecting to candidacy, “a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs” within 24 hours after the rendition of the judgment. Here, the Motion for Appeal was filed on August 29, 2014, the same date as the judgment,

      . As the district court recognized, Judge Ma-rullo is currently the longest-sitting judge in the State of Louisiana.

      . Prior to 2008, a district court judge was required to have been admitted to the practice of law for five years and to have been domiciled in the respective district, circuit or parish for 2 years preceding the election.

      . Judge Marullo has served as an Orleans Parish Criminal Court District Judge for nearly 40 years.

      . The statute provides, in pertinent part:
      A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:

      (3) The defendant does not meet the qualifications for the office he seeks in the primary election.
      (4) The defendant is prohibited by law from becoming a candidate for one or more of the offices for which he qualified.

      . Here, the Court is referring to the provision of La. R.S. 18:451, which states that "[e]xcept as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.”

      . The Court was not required to give retroactive effect to the charter amendment “as it was approved by the electorate ... some 11 days before any appellee filed qualification papers. Only if the amendment had been adopted subsequent to [the] qualifying date would its implementation be retroactive.” Id. (emphasis supplied).

      . See, e.g., N.L.R.B. v. Noel Canning, — U.S. -. 134 S.Ct. 2550. 2562. 189 L.Ed.2d 538 (2014).

      . I note with specificity that the 1974 La. Const, art. XIV, § 35 says that the proposed new constitution became effective "at twelve o'clock midnight on December 31, 1974.” The Louisiana Supreme Court has said that the new constitution became effective on 1 January 1975, which is a different date. See Succession of Clivens, 426 So.2d 585, 588 (La. 1982); Harlaux v. Harlaux, 426 So.2d 602, 603 (La. 1983); Malone v. Shyne, 06-2190, p. 14 n. 5 (La.9/13/06), 937 So.2d 343, 353; Williams v. Ragland, 567 So.2d 63, 64 (La. 1990); cf., State v. Smalls, 09-2695, p. 4 (La. 10/19/10), 48 So.3d 212, 215. In almost all cases this would be a meaningless or irrelevant distinction. In this case, one could rationally argue that because Judge Marullo’s seventy-fifth birthday is on 31 December 2014, the date difference is meaningful.