author: ROBERT A. CHAISSON, Judge.

text:
    SUCCESSION OF Yolande MILLS, Widow of Dr. Milton B. Mary, Sr. Milton Mary, Jr. v. Yolande Mary VULEVICH and Soniat Realty, Inc.
    Nos. 13-CA-598, 13-CA-599.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Gregory J. St. Angelo, José Carlos Mén-dez, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Kurt C. Garcia, Attorney at Law, Ken-ner, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

IgMilton B. Mary, Jr. appeals from a judgment in his favor, and against his sister, Yolande Mary Vulevich, in these consolidated cases arising out of the parties’ mother’s succession. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The succession of Yolande Mills, widow of Dr. Milton B. Mary, Sr., was opened on January 29, 2004, by her daughter, Yo-lande Mary Vulevich, the testamentary executrix. The decedent had three children, namely Yolande, Milton, and Sharon. Sharon predeceased her mother, and therefore her children, the Heartfields, were named legatees in her stead. Various actions were taken in regard to appraisals and payment of taxes, and a detailed descriptive list was filed on January 7, 2005. That descriptive list was traversed by the Heartfield legatees, and a special master was appointed on July 29, 2005. One month later, Hurricane Katrina struck. Almost a year after the hurricane, on August 15, 2006, the special master filed his recommendations with the court.

Ip, On April 27, 2007, Mr. Mary filed a motion for an accounting, and also to remove Ms. Vulevich as executrix. Over the next 20 months, Ms. Vulevich filed three accountings, the first of which was objected to by the Heartfields, and the second and third of which were objected to by Mr. Mary. She also filed, inter alia, a tableau of distribution on November 18, 2008. Then, on December 18, 2008, Mr. Mary filed a separate action against Ms. Vule-vich alleging that she had not administered the succession properly, and that her dereliction of her duties as executrix had caused injury to his share of the succession. This suit was consolidated with the succession action.

After three more years of litigation, during which Mr. Mary and the Heartfíelds again attempted to remove Ms. Vulevich as executrix and to contest her accountings, a judgment of possession was finally entered on July 16, 2012. That judgment resolved all issues as to the Heartfield legatees, and reserved the issues involving Mr. Mary’s claims for a subsequent trial.

The trial was held on November 5, 2012, and resulted in a December 21, 2012 judgment in Mr. Mary’s favor of $187,419. That judgment was subsequently amended on a motion for a new trial to $159,367 due to an error of calculation in the original judgment. The judgment consists of three elements of damages. The first was for diminution in the value of two immovable properties due to the executrix’s neglect during the pendency of the succession, in the amounts of $11,500 and $51,000, respectively. The second was for the loss of proceeds which should have accrued to Mr. Mary from a trust which Ms. Vulevich failed to establish with him as income beneficiary, totaling $88,670. The third was for $8,197, representing Mr. Mary’s share of the executrix’s fee of $38,575. Mr. Mary now appeals the judgment.

J4DISCUSSION

We first address the two immovable properties, namely 2008-2010 South Scott St. and 3908 Canal St. These two rental properties were left to Mr. Mary in the will. He contends that the measure of his damages regarding these two properties is the cost of returning them to their pre-Katrina condition. In 2004, when the succession was opened, both properties had tenants. When Hurricane. Katrina struck, both properties suffered flood damage, but neither had ever been insured for such damage. The Canal Street property consisted of two second story apartments, and a potential first floor commercial space. The upstairs apartments were able to be rented after the hurricane, but the commercial space remained vacant. Sometime in 2010, the tenants complained of odors from the ground floor. Therefore, the ground floor was gutted and cleaned, and the upstairs tenants remained.

The South Scott Street property was not refurbished and remained unrented through the time of trial. Ms. Vulevich testified that this property was on raised piers and did not have more than a few inches of water over the floors. A roof problem developed over the post-hurricane years which Ms. Vulevich failed to repair for about two years.

Ms. Vulevich testified at a hearing on June 1, 2011, that her situation in regard to both properties was that most of the damage was caused by the flood for which neither property was insured. There were thus no funds for these particular repairs unless she took money from other sources in the succession. She further testified that she was reluctant to use such funds because she feared that had she done so, the other legatees would have accused her of mismanaging the succession. She admitted, however, that she had managed to fund repairs on several properties that were left to her in the will.

| BMr. Mary called as witnesses several experts in construction who testified as to the costs of returning both properties to their pre-Katrina condition. One contractor gave an estimate of $800,300, while the second was $920,000. On the other hand, the report of the CPA firm that did accounts of the succession from 2004 through 2012, showed appraised values for the properties in 2007 and again in 2012. The South Scott Street property declined in value from $112,000 to $61,000, a loss of $51,000. The Canal Street property similarly went from $188,500 to $177,000, a loss of $11,500. The trial judge found that these declines in values were attributable to Ms. Vulevieh’s neglect and awarded Mr. Mary these amounts.

In Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70, the Court noted that special damages are those which have a ready market value which can be determined with relative certainty, while general damages are those which are inherently speculative and cannot be fixed with mathematical certainty. Language in that case has also been interpreted as meaning that the standard of review on appeal of both special and general damages is whether the fact finder abused its much discretion. See Dufrene v. Gautreau Family, LLC, 07-467 c/w 547 (La.App. 5 Cir. 2/22/08), 980 So.2d 68. The Gautreau court nonetheless cited Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029, for the proposition that in reviewing special damage awards the appellate court must determine on the record as a whole first, whether there is a factual basis for the finding, and second, whether the finding is clearly wrong. This proposition is actually the manifest error standard, albeit in this case given a different name. Other courts, however, have simply held that the proper standard of review for general damages is abuse of discretion, while that for special damages is manifest | fierror. See Joseph v. Archdiocese of New Orleans, 10-659 (La.App. 4 Cir. 11/10/10), 52 So.3d 203.

In the present case, the above amounts for loss of value are clearly special damages. Using the test enunciated in Gautreau, supra, there is clearly a factual basis in the record for using the difference in the appraised values of the properties in 2007 and 2012 as the measure of damages, and these differentials are not clearly wrong, based as they are on professional appraisals. We also note that the appraisals obviously took into account the deterioration of the buildings over the years, and the loss of value was reflected in the 2012 numbers.

Mr. Mary asserts that he was entitled instead to the cost to place the buildings in the condition they were in when the succession was opened in 2004. He did not offer any evidence to establish what the values of the properties were in 2004, or indeed what they were prior to August, 2007, the date shown for the first appraisal by Ms. Vulevich’s CPA firm. Also, the trial judge noted in his reasons for judgment that the properties suffered flood damage for which there had never been any insurance, and ruled that Ms. Vulevieh was not derelict in not procuring such insurance, because the properties had never been so insured by her parents. He also observed that due to the lack of flood insurance, there were no funds available to completely refurbish the properties. He did find, however, that due to Ms. Vule-vich’s neglect in not gutting the Canal Street property timely, and in similarly not repairing the roof of the South Scott Street property, both properties lost value. He therefore awarded Mr. Mary this diminution in value. We deem this result to be supported by the record as a whole, and not clearly wrong, and we therefore affirm this item of damages.

A related factual issue is raised in regard to lost rents for the South Scott Street property. Mr. Mary contends that the inability to rent the property was due |7to the neglect of Ms. Vulevieh, and that he should therefore be awarded the amount of lost rent during the period of delay. Again, the trial judge pointed out that because there was no flood insurance, there were no funds available to place that property in a condition to be rented. Therefore, the inability to rent these properties was not due to the neglect of Ms. Vulevieh. There was ample evidence of record to support this finding, and the finding is not clearly wrong. We must therefore affirm it. Rabalais v. Nash, 06-999 (La.3/9/07), 952 So.2d 653.

Mr. Mary next alleges as error the trial court’s failure to award him the lost investment income that he would have earned had the two properties been put into his possession sooner. In rejecting this item, the trial judge noted that the delay in closing the succession was due to the actions of all of the parties, including Mr. Mary, and therefore he was not entitled to recover damages due to his own activities. We also point out that the judgment provides that interest is due from date of demand, so that Mr. Mary will in fact receive some compensation for the period of delay in obtaining his inheritance.

The next issue concerns Ms. Vule-vieh’s executrix’s fees. Mr. Mary argues that Ms. Vulevich should have been ordered to return to the succession the entire $38,575 that she was paid. However, Mr. Mary’s share of the executrix’s fee was established by his expert CPA as being $8,197. That is the amount awarded to him in the judgment. The remainder of the fee was presumably charged to the Heartfield legatees and to Ms. Vulevich herself. Had the entire amount been ordered returned, Mr. Mary’s share would still have only been $8,197, the amount that he was awarded in the judgment. We therefore reject this argument as well.

The final issue concerns attorney fees. Mr. Mary asserts that the attorney fees charged to the succession were more properly expended on behalf of Ms. Vule-vich personally, and should not have been considered a succession obligation. | RThe trial judge, who had handled the case since its inception, stated in his reasons for judgment that “all parties had a part in the extensive legal fees and delays in these proceedings.” The record discloses that most of the legal activity in the case was directed either to contesting Ms. Vule-vich’s accounting, or attempting to have her removed as executrix. The legal fees occasioned by those proceedings were clearly related to Ms. Vulevich’s duties as executrix, and were properly charged to the succession. We find no manifest error in the trial judge’s conclusions regarding the attorney fees.

CONCLUSION

For the foregoing reasons, the judgment of the district court is hereby affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Shelly E. GOUTIERREZ v. ST. PAUL INSURANCE COMPANY, Kenner Police Department, William D. Campbell, and State Farm Mutual Automobile Insurance Company. Julia Goutierrez. v. St. Paul Insurance Company, Kenner Police Department, William D. Campbell, and State Farm Mutual Automobile Insurance Company.
    Nos. 13-CA-614, 13-CA-615.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Andrew A. Lemmon, Irma L. Netting, Attorneys at Law, Hahnville, Louisiana, For Plaintiff/Appellant.
    Brian D. Katz, Attorney at Law, New Orleans, Louisiana, for PlaintiffiAppellant.
    Patricia S. Leblanc, Deborah A. Villio, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

Is Julia Goutierrez appeals from a summary judgment dismissing her claims against the City of Kenner, Officer William D. Campbell, and St. Paul Fire and Marine Insurance Co. in this automobile accident case involving a high speed police chase. For the following reasons, we vacate the judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

The incident giving rise to this suit began on September 20, 2008, at about 8:00 p.m., when two men beat up and robbed a pizza delivery man, and stole his vehicle. There was no indication that weapons were involved in this robbery. The victim reported the matter to the Kenner police department and a bulletin was issued for the vehicle, a blue Chevrolet Cobalt. At 8:52 p.m., Officer William Campbell, who was in his marked police unit, spotted the Cobalt traveling north on the airport access road, which runs between Airline Drive and 1-10. Pursuant to | instructions from Kenner dispatch, Officer Campbell waited for a backup unit before attempting to make a stop. After a second police unit, driven by Officer Paul Lalla, arrived on the scene, the dispatcher instructed Officer Campbell to turn on his siren and flashing lights. Officer Campbell said that as soon as his siren and lights went on, the Cobalt sped away and merged onto I — 10 going east. Officers Campbell and Lalla followed in pursuit of the Cobalt. Various police logs established that approximately 36 seconds elapsed between the time the chase began and the time an accident occurred involving the fleeing suspects, the two police units, the Goutierrezes’ car, and a second car driven by Jessica Sciambra. Other logs showed that at one point in the chase, Officer Campbell’s police unit was traveling over 90 miles per hour. Precisely how the accident occurred is disputed by the parties.

The Louisiana State Police arrived at the scene and conducted the initial investigation. According to the State Police report, Mrs. Goutierrez was driving east in the center lane of the three-lane highway, followed a few car lengths behind by Ms. Sciambra, and then by Officer Campbell. At the time it was dark and raining. The suspects were originally in the left lane and being followed in that lane by Officer Lalla. The suspects veered into the center lane and struck Mrs. Goutierrez’s vehicle in the rear, then lost control and spun around back into the left lane where they were struck head-on by Officer Lalla. These two vehicles ended up against the left rail of the roadway. After the first impact, Mrs. Goutierrez’s vehicle slowed down and Ms. Sciambra moved into the right lane to avoid hitting it. Officer Campbell also attempted to move into the right lane, but as he moved to the right, the right side of his unit sideswiped the left side of Ms. Sciambra’s vehicle and then collided with Mrs. Goutierrez’s vehicle. These three vehicles all hended up on the right shoulder of the roadway. The suspects fled on foot, but were soon apprehended and arrested after a brief scuffle.

The State Police report was for the most part corroborated by Ms. Sciambra, except in one particular concerning the use of sirens and lights by Officers Campbell and Lalla. Ms. Sciambra testified in deposition that she was sure that she saw emergency lights before the crash, but she was not certain about hearing sirens.

On this same point, both Mr. and Mrs. Goutierrez stated in deposition that they heard no sirens and saw no emergency lights. They also gave recitations of the facts of the accident which were dramatically different from those which appeared in the State Police report. Mr. Goutierrez, riding in the front passenger seat, said that the suspect’s vehicle passed him and his wife on the right, followed by a speeding police unit. It appeared to him that both of these vehicles were moving into the center lane when the suspect’s vehicle spun out of control and was struck by the police unit head-on. He said that at the time of the collision, the two vehicles were straddling the lane markers between the center and left lanes, and that after colliding, the vehicles slid into the left rail. He remembered starting to look back after that initial crash to see if other vehicles were approaching from the rear, and saw no emergency lights and heard no sirens. At that point, he remembers a sharp impact from the back, after which he lost consciousness. Mrs. Goutierrez testified that she witnessed the head-on collision in the left lane a few car lengths ahead of her, but she never saw any emergency lights. She did not remember any collision between her vehicle and a police unit, but she did remember learning, right after the accident while she was still on the right shoulder of the 1-10, that that is what happened.

| (¡Officer Campbell testified in deposition that as he merged onto I — 10, he turned on his emergency lights and siren, just as instructed by the dispatcher. He said that the suspects immediately accelerated to a high speed and that he pursued them. He also stated that during the chase, he does not remember seeing Officer Lalla’s lights or hearing his siren, but that he was paying attention to the suspects. Further, he testified that he did not directly witness any impacts between the suspect’s vehicle and Mrs. Goutierrez’s vehicle or Officer Lalla’s unit, but he did see a cloud of smoke erupt above Ms. Sciambra’s vehicle. He also saw the suspect’s vehicle spinning, and at one point saw its headlights facing west.

Officer Lalla’s deposition testimony was that Officer Campbell’s emergency lights and siren were on during the chase. He did not remember anything after he struck the suspect’s vehicle head-on.

On the above evidence, the trial judge granted the defendants’ motion for summary judgment, and dismissed the case with prejudice. This appeal followed.

DISCUSSION

The standard of appellate review of summary judgments is de novo, and appellate courts thus use the same criteria as the lower courts in determining whether the papers on file establish that there is no dispute as to any material fact, and that mover is entitled to judgment as a matter of law, as per La. C.C.P. art. 966(B). Allen v. Exhibition Hall Authority, 02-1072 (La.4/9/03), 842 So.2d 373.

In cases involving high speed police chases, the applicable law is La. R.S. 32:24, which provides generally that drivers of emergency vehicles may ignore traffic laws when involved in such chases provided 1) that they use audio or visual signals sufficient to warn other drivers of their approach, and 2) that the driver proceed with due regard for safety. The statute does not protect the driver of such |7vehicle “from the consequences of his reckless disregard for the safety of others.” La. R.S. 32:24(D).

Whether a driver of an emergency vehicle has acted with reckless disregard for the safety of others is a factual question normally resolved by trial on the merits, but where there are no material facts in dispute, summary judgment may be appropriate. Jones v. Congemi, 01-1345 (La.App. 5 Cir. 5/13/03), 848 So.2d 41. We also note that La. R.S. 32:24 provides a threshold for its application, which is that sirens or emergency lights must be used, and where these are used the statute exonerates drivers from normal negligence, but not from reckless disregard for the safety of others.

In the present case, there is conflicting evidence as to whether the police officers were using sirens and lights. Both Mr. and Mrs. Goutierrez testified in deposition that they heard no sirens and saw no emergency lights. Ms. Sciambra, the only disinterested witness, stated that she saw lights, but was equivocal as to hearing sirens. Both officers said that sirens and lights were used. There is thus disputed evidence on this point and resolution of this dispute requires credibility determinations which are not to be made for purposes of summary judgment.

We also note that the State Police report’s version of how the accident occurred is in conflict with that of the Goutierrezes. In Mr. and Mrs. Goutierrez’s version, their vehicle was not struck from behind by the suspect’s vehicle, but more likely by Officer Campbell’s unit. Both versions of the events indicate that Officer Campbell’s unit did strike the Goutierrez vehicle in the rear. The defendants argue that Officer Campbell’s decision to initiate the pursuit was not gross negligence and that the pursuit was so brief that he did not have an opportunity to terminate it before the accident occurred. However, if in fact Officer Campbell’s unit did strike the Gouti-errez vehicle, then not only are the | ¡^decisions to initiate and/or terminate the pursuit at issue, but the manner in which Officer Campbell operated his unit during the brief pursuit, and whether or not he had proper control of his unit during the pursuit, are also at issue.

Because of these conflicts in the evidence, credibility - determinations must be made and factual inferences must be drawn before the proper legal analysis can be applied. In these circumstances, there are material facts at issue, and therefore summary judgment was improper.

CONCLUSION

For the foregoing reasons, the summary judgment dismissing Mrs. Goutierrez’s claims against the City of Kenner, Officer William D. Campbell, and St. Paul Fire and Marine Insurance Co., is hereby vacated, and the matter is remanded to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      . Mrs. Goutierrez’s husband, Shelly Goutier-rez, was also an original plaintiff in this matter; however, he died in 2012, some four years after the accident which is the subject of this suit.


author: STEPHEN J. WINDHORST, Judge.

text:
    CANAL/CLAIBORNE, LIMITED v. STONEHEDGE DEVELOPMENT, LLC.
    No. 13-CA-641.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      David J. Halpern, Kathleen A. Manning, Michelle Miller Roy, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Karen C. Yarbrough, Celia M. Alexander, Attorneys at Law, Louisiana Department of Children and Family Services, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|2In this appeal defendant, State of Louisiana, Department of Children and Family Services, (the State), alleges that the trial court erred in denying its dilatory exception of prematurity prior to the trial of this matter. In its answer to the appeal, plaintiff, Canal/Claiborne Limited, (Canal/Claiborne), asserts that the trial court erred in its ruling that judicial interest was due from date of demand. Finding no error in either ruling, we affirm the decisions of the trial court.

Canal/Claiborne, Limited (Canal/Claiborne) is the owner of property located at 1661 Canal Street. In 1995, Canal/Claiborne entered into a lease with Stone-hedge Development, LLC, (Stonehedge), who in turn entered into a sublease with the State. The State continued to occupy the premises, remitting rent payments to Stonehedge, who in turn remitted them to Canal/Claiborne- until Hurricane Katrina occurred in 2005.

The effects of Hurricane Katrina caused significant damage to 1661 Canal Street, making it uninhabitable. Canal/Claiborne was able to repair its building, making it habitable for its tenants, with the exception of those portions occupied by the State. Canal/Claiborne contends that the State refused to remove its damaged furnishings and property from the space, and therefore, it occupied that space ^without paying the rent due from November 1, 2005 until June 2006, when the State entered into a new lease directly with Canal/Claiborne.

In January of 2006, Canal/Claiborne file.d suit against Stonehedge, alleging that Stonehedge defaulted on its monthly rents and that it continued to occupy the building. Stonehedge filed a third-party demand against the State on the same grounds. In response, the State filed several exceptions, which were later withdrawn. Although the exception of prematurity pursuant to La. R.S. 39:1673 was not included, the State in withdrawing its exceptions noted that although Stonehedge sought to circumvent the administrative and procedural process set by La. R.S. 29:1673, it was nevertheless in the State’s best interest to make an appearance in the suit.

Canal/Claiborne subsequently amended its petition to include the State as a defendant, alleging that the State “continued to occupy and use the premises to date and has paid and is expected to continue paying the Defendant the monthly rentals due under the terms of the sublease.” In response, the State filed an exception of prematurity, alleging that pursuant to La. R.S. 39:1673, Canal/Claiborne was first obligated to file a complaint with the chief procurement officer. The trial court denied the State’s exception, finding that Canal/Claiborne did not directly contract with the State and that the State effectively waived the administrative remedy of La. R.S. 39:1673 when it voluntarily withdrew its exceptions to Stonehedge’s third-party demand and by its ongoing participation in the litigation.

Canal/Claiborne’s claim' against the State went to trial on the merits, after which the trial court rendered judgment in favor of Canal/Claiborne, awarding $188,066.24, plus legal interest from date of judicial demand. After Canal/Claiborne filed a motion for new trial, the trial court amended the judgment |4to provide that the date of judicial demand was on June 7, 2010, the date on which Canal/Claiborne amended its petition and made the State a defendant.

La. R.S. 39:1673 A provides that

This Section applies to controversies between the state and a contractor and which arise under or by virtue of a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission. Any contractor who seeks a remedy with regard to such controversy shall file a complaint with the chief procurement officer.

La. R.S. 39:1673 is applicable to lease agreements. Willows v. State, Department of Health and Hospitals, 08-2357 (La.5/5/09), 15 So.3d 56.

In this case, Canal/Claiborne argues that La. R.S. 39:1673 is inapplicable to its suit against the State because there is no privity of contract between it and the State. Canal/Claiborne’s lease agreement is with Stonehedge, not the State. Therefore, its suit against the State is not one for breach of a lease contract; rather, it is for unjust enrichment or damages for trespass, thereby making La. R.S. 39:1673 A inapplicable. We agree.

At the time in question, Canal/Claiborne’s contract of lease was with Stone-hedge, and any contractual remedy that Canal/Claiborne could assert would be against Stonehedge. Accordingly, we find that the trial court did not err in finding that Canal/Claiborne was not a contractor with the State, and in denying the State’s dilatory exception of prematurity.

In its answer, Canal/Claiborne alleges that the trial court erred in ruling that judicial interest began to run when it amended its petition to add the State as a defendant on June 7, 2010, instead of the date that past rent was due. However, as previously stated, Canal/Claiborne’s claims against the State were not for past due rent, but were for damages due to unjust enrichment or trespass.

|sIn the alternative, Canal/Claiborne suggests that interest is due from the date Stonehedge filed its third party demand against the State on July 5, 2007. In support of its position, Canal/Claiborne cites Amoco Production Co. v. Texaco, Inc., 03-1625 (La.App. 3 Cir. 6/16/04), 876 So.2d 944. In that case, the court said that “... interest on each claim accrues separately from the time of the judicial demand was made for that claim[.]” Id. at 950. Canal/Claiborne asserts, and the basis of its entire case is, that it had no lease agreement with the State, and it did not assert its demand against the State for trespass/unjust enrichment until it amended its petition in June of 2010. Accordingly, the trial court did not err in its determination of when judicial interest began to run.

For the above discussed reasons, the judgment of the trial court is affirmed. Costs are assessed against appellant, State of Louisiana, Department of Children and Family Services.

AFFIRMED.


author: JUDE G. GRAVOIS, Judge.

text:
    Irma ALVAREZ v. SOUTHEAST COMMERCIAL CLEANING, LLC d/b/a South Florida Cleaning Systems, Louisiana-I Gaming, A Louisiana Partnership in Commendam, Boomtown, L.L.C. of Delaware, Pinnacle Entertainment, Inc. of Delaware, Louisiana Gaming Enterprises, Inc. and Tudor Insurance.
    No. 13-CA-657.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Ivan A. Orihuela, Attorney at Law, Ken-ner, Louisiana, for Plaintiff/Appellant, (Irma Alvarez).
    Ethan N. Penn, Amanda H. Aucoin, Attorneys at Law, New Orleans, Louisiana, for Defendants/Appellees, (Southeast Commercial Cleaning, LLC and Tudor Insurance Company).
    Robert H. Murphy, Jeffrey A. Raines, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee, (Louisiana-I Gaming, A Louisiana Partnership in Com-mendam, Boomtown, LLC of Delaware, and Pinnacle Entertainment, Inc. of Delaware).
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

| ¡¡Plaintiff, Irma Alvarez, has appealed the trial court’s grant of defendants’ exceptions of prescription in her slip-and-fall tort suit. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 31, 2012, plaintiff filed a petition for damages which alleged that on January 31, 2011, she slipped and fell at the Boomtown Casino (“Boomtown”) located in Harvey, Jefferson Parish, Louisiana, “as a result of a dangerous condition on the premises, namely a wet floor, causing her personal injuries and other damages.” Named as defendants in plaintiffs petition are: 1) Louisiana-I Gaming, A Louisiana Partnership in Commendam, Boomtown, LLC of Delaware, and Pinnacle Entertainment, Inc. of Delaware (collectively, “the Boomtown defendants”); 2) Louisiana Gaming Enterprises, Inc. (“Louisiana Gaming”); and 3) Southeast Commercial Cleaning, LLC d/b/a South Florida Cleaning System (“Southeast”), and its insurer, Tudor Insurance Company (“Tudor”).

|4On October 19, 2012, the Boomtown defendants filed an exception of prescription, alleging in their accompanying memorandum that they had evidence that plaintiffs accident actually occurred on January 30, 2011. They concluded that plaintiffs claim filed on January 31, 2012, one year and one day after her accident, was accordingly prescribed.

On October 23, 2012, Southeast and Tudor filed a similar exception of prescription, alleging in their accompanying memorandum that they had documentary evidence and certified medical records that showed that the slip and fall alleged in plaintiffs petition actually occurred on January 30, 2011, and therefore plaintiffs petition for damages filed on January 31, 2012 was prescribed.

On December 6, 2012, the trial court held a hearing on defendants’ prescription exceptions. At the hearing, the Boomtown defendants argued that the incident report prepared by a Boomtown Casino security officer, Tommie Williams, shows that plaintiffs accident occurred on January 30, 2011. They also submitted a video of plaintiffs accident which indicates that the accident occurred on January 30, 2011 at 9:25 p.m. Additionally, they submitted a certified copy of plaintiffs medical records from Ochsner Medical Center which indicate that plaintiff presented to the hospital on January 30, 2011 at 10:39 p.m. complaining of right leg and right arm pain and that she had tripped and fell. The Boomtown defendants argued that this evidence established that plaintiffs accident had in fact occurred on January 30, 2011, and that plaintiffs suit, filed one year and one day after the accident occurred, was prescribed.

Southeast and Tudor contended at the hearing that the only relevant inquiry for determination by the trial court at the hearing was the date of the accident. They argued that the hospital records which indicate that plaintiff was treated on 15January 30, 2011 establish that plaintiffs accident actually occurred on that date, which makes the filing of her petition for damages one day too late.

In response, plaintiff argued at the hearing that prescription statutes are to be strictly construed against prescription and in favor of maintaining the action. Plaintiff pointed out that because her petition for damages alleges that the accident occurred on January 31, 2011 and her suit was filed on January 31, 2012, the suit is not prescribed on its face. In support of her position that the accident occurred on January 31, 2011, plaintiff submitted a copy of a letter from Tudor which states that the date of the accident was January 31, 2011. Plaintiff argued that this indicates that Tudor investigated the claim and determined that January 31, 2011 was the date of the accident. Plaintiff also submitted certified medical records from Advanced Medical Center of Gretna where plaintiff received follow-up care and those records state the date of the accident as being January 31, 2011. Plaintiff argued that because there is conflicting evidence, pursuant to the rules of strict construction in favor of maintaining the action, the court was required to rule in favor of maintaining plaintiffs suit.

Plaintiff further argued at the hearing that the doctrine of contra non valentón applied in her case because she was not actually diagnosed with an injury until January 31, 2011. She argued that she did not have the opportunity to investigate the accident until after January 31, 2011 to determine if defendants were in fact responsible for her slip and fall.

At the hearing, plaintiff objected to the admissibility of the Boomtown incident report, arguing that although an affidavit of Jeannine Richert was attached to the report to establish its authenticity, it was Tommie Williams, and not Ms. Richert, who had personal knowledge of the accident; thus the report was inadmissible because Ms. Richert could not properly authenticate the report. [^Plaintiff also objected to the admissibility of the video of the accident because she allegedly had not been previously provided with a copy of the video. Plaintiff also requested an opportunity to amend her petition in the event that the court would grant defendants’ exceptions.

Following argument by the parties, the trial court overruled plaintiffs objections and allowed introduction of all evidence submitted by defendants. At the conclusion of the hearing, the trial court granted the exceptions of prescription, stating that the incident report, surveillance video, and emergency room records clearly show that plaintiffs accident occurred on January 30, 2011, and accordingly, the one-year libera-tive prescriptive period within which plaintiff had to file suit in this case ended on January 30, 2012; plaintiffs suit filed on January 31, 2012 was thus prescribed. This timely appeal followed.

LAW AND DISCUSSION

Prescription is a peremptory exception which is provided for in La. C.C.P. art. 927. Evidence in support or contravention of this exception may be introduced if the grounds thereof are not apparent from the petition. La. C.C.P. art. 931. If evidence is introduced in support or contravention of the exception, the ruling on the exception of prescription is reviewed by an appellate court under the manifest error standard of review. Dugas v. Bayou Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826, 829-30. If no evidence is introduced, the appellate court’s role is to determine whether the trial court’s ruling was legally correct. Id. at 830. Generally, the burden of proof lies on the party pleading the exception of prescription. Id. It is only when petition is prescribed on its face that the burden shifts to the plaintiff to show that the action has not prescribed. Id.

17At the hearing on the exceptions in the present case, evidence was introduced by all of the parties. Accordingly, our review of the trial court’s ruling herein will be under the manifest error standard of review.

Delictual actions are subject to a liberative prescription of one year, commencing from the day the injury or damage is sustained. La. C.C. art. 3492. In computing a prescriptive period, the day that marks the commencement of prescription is not counted and prescription accrues upon the expiration of the last day of the prescriptive period. La. C.C. art. 3454. When the prescriptive period is one year, prescription accrues on the last day of the year that corresponds with the date of the commencement of prescription. La. C.C. art. 3456. A petition in a tort action filed one year and one day after the date of the accident is prescribed. Bourg v. Woods, 09-628 (La.App. 5 Cir. 1/26/10), 31 So.3d 1123.

ASSIGNMENT OF ERROR NUMBER ONE

Evidence introduced and applicable law supports finding that trial court erred in sustaining defendants’ exceptions of prescription.

In her appellate brief, plaintiff raises the same arguments presented to the trial court. First, she argues that there is evidence in the record to show that the accident occurred on January 31, 2011. In support of this position, she refers to excerpts in the Ochsner medical records. She points out that although her Ochsner bill states that x-rays were performed on her on January 30, 2011, the x-ray reports were not prepared until January 31, 2011. Plaintiff argues that the Ochsner records are thus unclear and unreliable as to the date of the accident. Plaintiff also contends that the medical records from Advanced Medical Center state that the accident occurred on January 31, 2011. Plaintiff further points out that she ^submitted correspondence from Tudor stating that the accident occurred on January 31, 2011. Plaintiff argues that based on the conflicting dates in these records, there is a material issue of fact as to the date the accident occurred, thereby precluding the granting of defendants’ exceptions of prescription. Plaintiff concludes that her petition, which was filed on January 31, 2012, was timely filed because it alleges that the accident occurred on January 31, 2011, and there is evidence in the record to support her allegations that the accident occurred on January 31, 2011.

Upon review, we find that a close analysis of the Ochsner medical records reveals no discrepancy as to the date of the accident. Plaintiff argued that x-rays were taken at 8:48 a.m. and 8:44 a.m. on January 31, 2011. According to the Ochsner x-ray reports, however, the reports were transcribed and signed by a radiologist at that time on that date. The medical records reveal that the x-rays were actually taken on January 30, 2011 at 11:32 p.m. and were reviewed by the nurse practitioner on January 31, 2011 at 12:19 a.m., and that the x-ray reports were transcribed and signed by the radiologist at 8:43 a.m. and 8:44 a.m. on January 31, 2011.

Further, the following information contained in the Ochsner medical records which were introduced at the hearing on the exceptions indicate that plaintiff slipped and fell at the Boomtown Casino on January 30, 2011, and that she sought medical treatment from Ochsner that same day, to-wit:

• plaintiff presented to Ochsner on January 30, 2011 at “22:39” (10:39 p.m.);
• plaintiff signed the hospital registration authorizations on January 30, 2011;
• plaintiffs vital signs were taken on January 30, 2011 at “22:42” (10:42 p.m.);
|a* plaintiffs urine sample was collected on January 30, 2011 at “23:39” (11:39 p.m.);
• plaintiff informed the emergency room physician on January 30, 2011 at “23:51” (11:51 p.m.) that she had a “fall today” when she tripped in “[B]oom-town [C]asino”;
• pregnancy test results for plaintiff were obtained on January 30, 2011 at “23:57” (11:57 p.m.);
• medication was prescribed to plaintiff on January 31, 2011 at “00:25” (12:25 a.m.); and
• plaintiff was discharged on January 31, 2011 at “00:41” (12:41 a.m.).

Hence, the Ochsner medical records clearly reflect that plaintiff was seen at Ochs-ner between 10:39 p.m. on January 30, 2011 and 12:41 a.m. on January 31, 2011. This treatment time is consistent with the Boomtown incident report, which indicates that the accident occurred at 9:28 p.m. on January 30, 2011, as well as the video of the accident, which shows that the accident occurred at 9:25 p.m. on January 30, 2011.

Plaintiff further argues that a letter from Tudor and medical records from Advanced Medical Center support her contention that the accident occurred on January 31, 2011. In its caption, the Tudor letter does state “January 31, 2011” as the “Date of Loss.” However, there is nothing in the record to indicate where Tudor obtained this date or that Tudor had conducted an investigation and concluded that the accident occurred on January 31, 2011. Additionally, plaintiff was the person who filled in “1/31/11” as the “Date of Accident” in the “Accidental Injury Information” history form that she provided to Advanced Medical Center.

The manifest error standard of review demands that findings of fact by the trial court be given great deference and disturbed only when clearly wrong. Seitz v. Scofield, 01-1295 (La.App. 5 Cir. 2/26/02), 812 So.2d 764, 768. The issue for the reviewing court is not whether the trier of fact was wrong, but whether the trial court’s conclusions were reasonable under the evidence presented. Branch v. Wal-Mart Stores, Inc., 01-0988 (La.App. 5 Cir. 12/26/01), 806 So.2d 796, 800.

For the foregoing reasons, we find that the trial court did not commit manifest error in relying on the exhibits introduced by defendants at the hearing on the exceptions in determining that plaintiffs accident occurred on January 30, 2011.

Embedded in this assignment of error is plaintiffs argument that prescription statutes are to be strictly construed against prescription and in favor of maintaining the claim. While we agree that this is a correct statement of the law, plaintiffs argument in this regard is misplaced. There is no statutory construction involved in determining when plaintiffs accident occurred, only factual determinations. As we have found above, there was no manifest error in the trial court’s finding of fact that plaintiffs accident occurred on January 30, 2011. Hence, rules of statutory construction are not applicable in our review of the trial court’s factual determination as to the date plaintiffs accident occurred.

For the above-stated reasons, plaintiffs arguments on this assignment of error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Improper admission into evidence of Boomtown incident report and video of accident.

Plaintiff next contends that the Boomtown incident report was improperly admitted because it was not properly authenticated, reasoning that the report was accompanied by an affidavit from Jeannine Richert, but the report was authored by Tommie Williams. She further argues that the report lists as attachments a copy of Inplaintiffs driver’s license and statements of two witnesses, but these were not submitted with the report; thus, she asserts, the report is incomplete and therefore inadmissible.

Our review of the evidence introduced indicates that the Boomtown incident report was accompanied by an affidavit of Jeannine Richert, who is the risk manager at Boomtown. In her affidavit, Ms. Ric-hert attested that it is the regular business practice of Boomtown for its security officers to investigate all reported accidents that occur on Boomtown premises and to prepare incident reports documenting their findings. These incident reports are made and kept in the regular course of business of Boomtown. The accident involving plaintiff was investigated by Boom-town security officer Tommie Williams, who prepared the incident report. The report was attached to Ms. Richert’s affidavit and is admissible under La. C.E. art. 803(6) as a business record exception to the hearsay rule. See Aguilar v. Transit Management of Southeast Louisiana, Inc., 04-1027 (La.App. 5 Cir. 3/1/05), 900 So.2d 65, 69-70. Accordingly, the trial court did not err in admitting the Boomtown incident report into evidence.

Plaintiff further argues that the fact that the Boomtown incident report was printed on January 31, 2011 supports her claim that the accident occurred on that date. While the incident report states that it was printed at 4:48 p.m. on January 31, 2011, the printing date clearly does not establish that the accident occurred on 112that date. The incident report clearly states the accident occurred on January 30, 2011 at 9:28 p.m. Thus, this argument is without merit.

Further, plaintiff admitted in her brief that the evidence suggests her accident occurred between 9:00 p.m. and 10:00 p.m. The accident could not have occurred between 9:00 and 10:00 p.m. on January 31, 2011, as plaintiff now suggests, if the incident report was printed several hours earlier at 4:48 p.m. on January 31, 2011. Rather, the printing of the incident report at 4:48 p.m. on January 31, 2011 is consistent with the accident as having occurred between 9:00 p.m. and 10:00 p.m. on January 30, 2011, and further supports the trial court’s finding that the accident occurred on January 30, 2011. This argument is also without merit.

Plaintiff also argues that the videotape that was attached to Ms. Richert’s affidavit was inadmissible. The admissibility of a videotape is within the sound discretion of the trial judge. Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347, 351. The admissibility of a videotape is determined on a case-by-case basis according to the specific facts and circumstances of each case. Novosyolova v. Stephens, 02-0711 (La.App. 4 Cir. 6/11/03), 850 So.2d 29, 39. The factors to be considered in order to determine admissibility of a videotape are: 1) whether the videotape accurately depicts what it purports to represent; 2) whether it tends to establish a fact of the proponent’s case; and 3) whether it will aid the jury’s understanding. Id. Upon review, we find that all three of the factors to be considered for the admissibility of a videotape have been satisfied in this case. First, Ms. Richert stated in her affidavit that plaintiffs accident was investigated by a Boomtown security officer who determined that the accident was recorded by a surveillance camera. Ms. Richert also stated that the video recording was saved and an accurate copy of the video recording of plaintiffs accident was attached to her | T .-.affidavit. Thus, defendants established that the videotape accurately depicts the accident. Second, the videotape tends to establish a fact for purposes of defendants’ exceptions. Finally, the videotape aids the trial court’s understanding of the facts. Based on our finding that these factors have been satisfied, we find no abuse of discretion by the trial judge in admitting the videotape.

Plaintiffs arguments on this assignment of error are without merit.

ASSIGNMENT OF ERROR NUMBER THREE

The trial court erred in failing to apply the doctrine of contra non valentem.

The doctrine of contra non valen-tem is an exception to the general rules of prescription. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. This doctrine suspends prescription when the circumstances of the case fall into one of four categories: 1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or 4) where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Id.

In this assignment, plaintiff argues that the fourth category of contra non valen-tem should apply to this case because her cause of action was not known or reasonably knowable to her until after her x-rays were taken on January 31, 2011. She contends that she did not know for certain that she was damaged until after she was diagnosed by the staff at Ochsner on January 31, 2011 at the earliest. Thus, she argues that she did not know that a tort had been committed upon her and that 114her cause of action against defendants accrued on January 31, 2011 at the earliest. Under this reasoning, she concludes that her petition for damages filed on January 31, 2012 was timely.

Upon review, we find that plaintiffs reasoning on this issue is incorrect. As the Louisiana Supreme Court has explained: “Ignorance or misunderstanding of the probable extent or duration of injuries materially differs from ignorance of actionable harm which delays commencement of prescription.” Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960, 964. Proof of a cause of action against a particular defendant is not required to commence the running of prescription; rather, simply knowledge, actual or constructive, sufficient to put a reasonable person on guard to call for inquiry is enough to begin the running of prescription. Hines v. Browning-Ferris, Inc., 46,577 (La.App. 2 Cir. 9/21/11), 73 So.3d 479, 484-85, writ denied, 11-2340 (La.12/2/11), 76 So.3d 1180. Based on this accepted jurisprudence, we hereby reject plaintiffs argument that prescription did not start running on the date of her fall at Boom-town. Even if she did not specifically know the extent of the injury she had sustained as a result of her fall, she was surely aware on the date of her fall (January 30, 2011) that she had sustained some type of damage in the incident causing her to seek medical attention. See, Franz v. Ledoux, 05-822 (La.App. 5 Cir. 3/28/06), 927 So.2d 534, 539, writ denied, 06-0965 (La.6/16/06), 929 So.2d 1290. For these reasons, we find that the doctrine of contra non valentem is not applicable in this case.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court erred in not allowing plaintiff an opportunity to amend her petition for damages.

In her final assignment of error, plaintiff argues that the trial court erred in not allowing her an opportunity to amend her petition for damages, pursuant to La. |1SC.C.P. art. 934, to remove the objection pleaded by defendants in' their exceptions of prescription.

A plaintiff is allowed the opportunity to amend his petition within the delay allowed by the court “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition.” La. C.C.P. art. 934. However, “[i]f the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.” Id.

The right to amend a petition is qualified by the restriction that the objections to the petition be curable; further, the decision to allow amendment the petition is within the sound discretion of the trial court. McKinley v. Scott, 44,414 (La.App. 2 Cir. 7/15/09), 17 So.3d 81, 85. Based on the facts of this case as have been found by the trial court and affirmed herein, any amendment to the petition by plaintiff would have not have any effect on the running of prescription; thus, the objections raised by defendants in their peremptory exceptions of prescription are not curable by plaintiff in this case. Hence, the trial judge did not abuse his discretion in denying plaintiff the opportunity to amend her petition for damages.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting defendants’ exceptions of prescription is hereby affirmed.

AFFIRMED.

      . The record does not reflect that Louisiana Gaming was ever served with plaintiff's petition and thus is not a party to this appeal.

      . La. C.C. art. 3454 further provides that if the last day of the prescriptive period is a legal holiday, then prescription accrues upon the expiration of the next day that is not a legal holiday. This possible extension of the prescriptive period is not applicable to this case because the last day of the prescriptive period herein (January 30, 2012) was not a legal holiday.

      . In the body of the letter, mention is made about treatment rendered to plaintiff "for an injury she suffered at the Boomtown Casino on January 31, 2011.”

      . La. C.E. art. 803(6) provides:
      A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term "business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.


author: ROBERT A CHAISSON, Judge.

text:
    Elvin O. RAMOS v. USAGENCIES CASUALTY INSURANCE COMPANY, INC., Sixto Tolentino and Luis A. Serrano.
    No. 13-CA-685.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Ivan A. Orihuela, Attorney at Law, Ken-ner, Louisiana, Counsel for PlaintiffAppel-lant.
    James L. Donovan, Jr., P.M. Donovan, Attorneys at Law, Metairie, Louisiana, Counsel for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT A CHAISSON, Judge.

|2In this case involving an automobile accident, Elvin 0. Ramos, appeals from a judgment of the trial court rendered in favor of USAgeneies Casualty Insurance Company, dismissing his lawsuit. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Elvin 0. Ramos, alleged in his petition that on February 25, 2011, he parked his car, a 2001 Honda Civic, between the sidewalk and the street of his house on Alton Street in Jefferson Parish. As he was still sitting in his car with the door partially open, a white 1996 Ford E-150 van passed him and pulled all the way up into the adjoining driveway. In an apparent attempt to turn around, the white van backed out of the driveway and hit the left side of Mr. Ramos’s car. The impact caused the partially open door to close on Mr. Ramos’s left arm. A few days later, Mr. Ramos started to feel soreness and pain in his left arm. On March 2, 2011, Mr. Ramos went to a doctor with complaints of pain to his left shoulder, left hip/thigh, neck, and back. He thereafter underwent treatment at Physician’s Total Rehabilitation for approximately five to six months.

| aAs a result of the damages allegedly sustained in the automobile accident, Mr. Ramos filed suit against USAgeneies Casualty Insurance Company, the insurer of the Ford van; Sixto Tolentino, the owner of the vehicle; and Luis Serrano, the driver of the vehicle. Mr. Tolentino and Mr. Serrano were dismissed from the proceedings, and the matter proceeded to a judge trial against USAgencies on April 28, 2012. After considering the evidence presented, the trial judge rendered judgment in favor of USAgencies and against Mr. Ramos. The trial judge specifically found that the plaintiff failed to carry his legal burden of proof that an accident and/or injury occurred; that the accident alleged did not occur and, if it did occur, it was staged; and that the plaintiff participated in a systematic, intentional fraud with his testimony constituting insulting perjury upon the Court. A written judgment to that effect was signed on May 3, 2012.

Mr. Ramos now appeals. He basically raises two issues. First, Mr. Ramos contends that the trial court erred when it permitted evidence of his immigration status, as this information was irrelevant and prejudicial to him. Second, Mr. Ramos challenges the factual findings of the trial court.

EVIDENCE OF PLAINTIFF’S IMMIGRATION STATUS

In his appellate brief, Mr. Ramos contends that the trial court erred in permitting evidence of his illegal status in this country. Pursuant to questioning by defense counsel, Mr. Ramos stated that he was born in Honduras. Defense counsel then asked Mr. Ramos his status in the United States. Mr. Ramos’s attorney objected on the basis of relevancy. In response to this objection, defense counsel replied, “I think it is relevant if someone will break the law to personally benefit l4it’s an issue as it is in this case.” The court thereafter allowed the question regarding Mr. Ramos’s status in the United States. Mr. Ramos responded that he is “illegal.”

Mr. Ramos now contends that the trial court erred in allowing evidence of his immigration status because it had no bearing on his right to recover compensation and further had no bearing on his credibility. Mr. Ramos asserts that the improper admission of this evidence prejudiced the trial court against him and rendered it impossible for the trial court to make an impartial determination; therefore, the trial was tainted by the admission of this irrelevant evidence, and the judgment must be reversed. We find no merit to this argument.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. Whether evidence is relevant is within the sound discretion of the trial court and an appellate court will not disturb that ruling in the absence of clear abuse of that discretion. Kim v. Kim, 07-318 (La.App. 5 Cir. 10/30/07), 970 So.2d 1158, 1163.

We first note that the complained of evidence does not appear relevant to the determination of Mr. Ramos’s case. However, even if the trial court erred in admitting it as relevant, it was harmless error because there is no indication in the record that the trial court was biased against Mr. Ramos based on this evidence.

This case was tried before a judge rather than before a jury. A trial judge, unlike a jury, is well versed in the rules of evidence, and is, therefore, trained to give the appropriate weight to evidence and to evaluate evidence without bias. Raiford v. U.S. Industries/Ames Lawn & Garden Tools, 05-0815 (La.App. 4 Cir. 5/3/06), 929 So.2d 288, 291-92, writ denied, 06-1615 (La.10/13/06), 939 So.2d 366. Generally, a trial judge is presumed to be impartial; thus, a party contending that a judge did not act impartially is required to present some factual basis to support his claim and may not rely on conclusory allegations. Straughter v. Government Employees Ins. Co., 05-699 (La.App. 5 Cir. 3/14/06), 926 So.2d 617, 623.

In the present case, we find that Mr. Ramos failed to prove that the trial judge did not act impartially because of Mr. Ramos’s immigration status. During cross-examination of Mr. Ramos, there was only one question asked regarding his immigration status, and the issue of immigration was never raised again. In his appellate brief, Mr. Ramos makes conclusory allegations that after this question, the trial judge became biased as is evidenced by the trial court’s holding Mr. Ramos in contempt of court based on his finding that Mr. Ramos committed fraud and perjury. Mr. Ramos has failed to present any factual basis for his claim other than an adverse judgment. From the record, it is clear that the trial court’s ruling was not based on Mr. Ramos’s immigration status, but rather on his belief that Mr. Ramos was not credible due to the inconsistencies in his testimony. In fact, at a post-trial hearing, Mr. Ramos’s attorney conceded that defense counsel did a very effective job of calling into question his client’s credibility and further accepted the Court’s finding that Mr. Ramos was not credible. Accordingly, we find no merit to Mr. Ramos’s argument that the trial court was biased against him because of his immigration status.

FACTUAL DETERMINATIONS OF TRIAL COURT

On appeal, Mr. Ramos also challenges the factual determinations by the trial court. Specifically, Mr. Ramos contends that the trial court erred in finding that he failed to carry his legal burden of proof that an accident and/or injury occurred; that the accident alleged did not occur and, if it did occur, it was staged; and that he | (¡participated in a systematic, intentional fraud with his testimony constituting insulting perjury upon the Court.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Credibility is a factual determination that cannot be set aside without a finding of manifest error. Twiner v. Dinvaut, 11-854 (La.App. 5 Cir. 3/13/12), 90 So.3d 1107, 1112.

In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court. Second, the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Mai Vu v. Artis, 09-637 (La.App. 5 Cir. 12/29/09), 30 So.3d 140, 143.

Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous. Where the factfinder’s conclusions are based on determinations regarding the credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESGO, 549 So.2d at 844; Aleman v. Allstate Ins. Co., 04-948 (La.App. 5 Cir. 1/11/05), 894 So.2d 382, 384.

Mr. Ramos was the only witness to testify at trial. According to his trial testimony, on February 25, 2011, he parked his car, a 2001 Honda Civic, between the sidewalk and the street of his house on Alton Street in Jefferson Parish. As he was still sitting in his car with the door partially open, a white 1996 Ford E-150 |7van passed him and pulled all the way up into the adjoining driveway. In an apparent attempt to turn around, the white van backed out of the driveway and hit the left side of Mr. Ramos’s car. The impact caused the partially open door to close on Mr. Ramos’s left arm. Mr. Ramos claimed that the corner of the passenger bumper side of the other vehicle made contact with his vehicle causing damage “on the left side of the door all the way down to the back tire.”

After the impact, the driver of the other vehicle, Luis Serrano, got out of the car. Although they exchanged insurance information, the two men decided not to call the police because neither one had a driver’s license. During his testimony, Mr. Ramos admitted that he knew both the driver, Mr. Serrano, and the owner of the van, Mr. Sixto Tolentino, because he had actually sold the van that hit his car to Mr. Tolenti-no, who lived with Mr. Serrano.

During his trial testimony, Mr. Ramos admitted that he had been driving the vehicle with no license prior to the accident. On cross-examination, defense counsel asked Mr. Ramos if he had originally told USAgencies after the accident that his vehicle was parked in a parking lot. Mr. Ramos answered that there may have been some misunderstanding when he spoke to them, but claimed that he told the representative from the insurance company that he did not call the police because his license was expired at the time and the other gentleman did not have a license either. When confronted with his original statement that his vehicle was parked in a parking lot at the time of the accident, Mr. Ramos claimed that there was some confusion and that he did not say that.

When asked about his driver’s license, Mr. Ramos testified that he does not have and has never had a Louisiana driver’s license. He admitted that he previously had a driver’s license from the State of Washington, although he has never lived in that state. He claimed that he obtained the Washington license | ^because he had an opportunity to go work in Washington, but the work never came through and he did not move there. Mr. Ramos also testified that the expired Washington license was taken away from him in Alabama by a police officer who stopped him, and he was not able to get another license here. With regard to the vehicle involved in the accident, he claimed that when he bought this car for himself, the insurance company had the previous information from his driving records and his license in the past, and therefore, he did not have to present them with a license.

At trial, Mr. Ramos also testified about the property damage to his car. He claimed that as a result of this accident, his car was damaged “on the left side of the door all the way down to the back tire.” During his testimony, he admitted that when he purchased the Honda, it had damage similar to the damage that he claimed happened in the instant accident. Although Mr. Ramos claimed that he had repaired the original damage to the vehi-ele, he had no paperwork to prove the repairs.

After the accident, Mr. Ramos submitted to USAgencies a property damage claim for $4,385.15. At trial, Mr. Ramos admitted that the estimate, which amount was also provided in his answers to interrogatories, was actually greater than the amount of damages the car sustained in the accident. Mr. Ramos explained that this amount did not reflect the correct estimate, but rather reflected an estimate for repairs to the whole vehicle. When defense counsel showed him an estimate of his car made by Clean Fleet on behalf of Geico on April 7, 2011, reflecting this amount, Mr. Ramos said that he never made a claim with Geico for the damage and that he had given someone else permission to take his car to that place to get an estimate.

|sWith regard to his injuries, Mr. Ramos testified that he started to feel sore a few days after the accident and sought medical treatment on March 2, 2011. At trial, plaintiff testified that the door of his car closed on his left arm and that as a result, he suffered pain to his left shoulder, left hip/thigh, neck, and back. Mr. Ramos thereafter underwent treatment at Physician’s Total Rehabilitation for approximately five to six months. During the course of his treatment, plaintiff was instructed on each visit to fill out a pain diagram referring to parts of his body that were injured. When confronted with inconsistencies on the diagrams as to his pain, Mr. Ramos explained that he did not initially understand how to fill out the forms.

During his testimony, Mr. Ramos admitted that this is the second time he has been involved in an accident in front of his house and that he has had previous property damage claims. On redirect examination, Mr. Ramos testified that this accident really happened and that he does not stage or fake accidents to make property damage claims.

In finding that Mr. Ramos had not met his burden of proof, the trial court considered the testimony and evidence presented and found that Mr. Ramos was not credible. He noted the various inconsistencies in Mr. Ramos’s testimony relating to the accident, his claims for property damage, his claim for personal injuries, and his supposed language barrier. Based on these inconsistencies the trial court stated his belief that an accident did not occur and that even if it did, he did not believe that Mr. Ramos was injured as a result of the accident. He also expressed his belief that this was systematic intentional fraud. Considering the testimony and evidence in this matter, we cannot say that the trial court’s factual determinations were manifestly erroneous or clearly wrong.

1 Accordingly, for the reasons set forth herein, the judgment of the trial court in favor of USAgencies is affirmed. The costs of this appeal are assessed against the appellant.

AFFIRMED.

      . The trial court also found the plaintiff in direct contempt of court and sentenced him to 90 days in prison. Pursuant to a writ application filed by Mr. Ramos, this Court, on April 30, 2012, vacated the trial court's ruling that held plaintiff in direct contempt of court. This Court stated, "We find neither the Louisiana Code of Civil Procedure articles governing contempt nor the jurisprudence allow for a finding of direct contempt on the basis of false testimony allegedly constituting fraud.” Elvin Ramos v. USAgencies Casualty Insurance Company, Inc., 12-377 (La.App. 5 Cir. 4/30/12) (unpublished writ disposition).


author: MARC E. JOHNSON, Judge.

text:
    Gillis BRANCH v. Joseph YOUNG, Jr.
    No. 13-CA-686.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Thomas R. Schmidt, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Christopher J. Davidson, John A.E. Davidson, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   MARC E. JOHNSON, Judge.

|2In this appeal, Plaintiff, Gillis Branch, seeks review of several trial court rulings including the denial of a motion to vacate judgment, dismissal of a petition of intervention, and granting of a motion for eviction. For the reasons that follow, we affirm in part and reverse in part.

FACTS & PROCEDURAL HISTORY

On February 22, 2008, Ms. Branch filed a “Petition for Declaratory judgment, for Accounting and for Specific Performance of Contract” against Defendant, Joseph Young, Jr., seeking enforcement of a 1990 contract and a declaration that a subsequent 2003 bond for deed contract was invalid. Ms. Branch alleged that she and her now-deceased husband, Eddie Branch, entered into an installment contract to purchase property at 823 31st Street in Kenner for $44,000 with Defendant on August 15,1990. She claimed that under the terms of the contract, title to the property was to be transferred to her and her husband after | sthey paid $10,000 of the purchase price. Ms. Branch contended she and her husband had paid $11,000 on the contract by 1998.

Ms. Branch further alleged that unbeknownst to her, Defendant and Mr. Branch entered into a bond for deed contract on July 17, 2003, regarding the same property but at a higher purchase price of $66,000. She claimed that from August 2003 through March 2005, she and her husband made $9,555 in payments towards the property.

Ms. Branch also alleged that Defendant issued a notice of default in December 2007. She claimed she thereafter demanded transfer of the title under the terms of the 1990 contract, but Defendant refused and stated that he was canceling the contract.

In her petition, Ms. Branch sought: (1) an accounting of all moneys paid by her and her husband on both contracts; (2) an order transferring the title to her under the terms of the 1990 contract; (3) an order declaring the 2003 contract invalid and applying all moneys paid under that contract to any remaining balance on the 1990 contract; and, (4) an order declaring Defendant’s cancellation of the 1990 contract to be without effect.

Defendant answered the petition and filed exceptions of no right of action and nonjoinder of an indispensable party, claiming that Ms. Branch did not have the right to represent the interest of the deceased Mr. Branch and that the unopened succession of Mr. Branch was an indispensable party. After a hearing, the trial court sustained the exceptions. In its judgment dated September 28, 2010, the trial court ordered Ms. Branch to amend her original petition to include the Succession of Eddie Branch within 30 days or the case would be dismissed with prejudice.

Thereafter, on November 3, 2010, Defendant filed a motion to dismiss Plaintiffs petition on the basis Plaintiff failed to join the succession of Mr. Branch |4within the time delay ordered by the court. Without a hearing, the trial court signed an Order of Dismissal the same day, dismissing Plaintiffs suit with prejudice for failure to amend the petition. Notice of this judgment was never issued.

On January 13, 2011, Plaintiff, as admin-istratrix of the Estate of Mr. Branch, filed a petition of intervention, asserting the same allegations contained in and seeking the same relief requested in Plaintiffs original petition on behalf of Mr. Branch’s estate. On the same day, Plaintiff also filed a motion to vacate the November 3, 2010 judgment of dismissal, claiming that she did not get notice of the dismissal and that the Succession of Mr. Branch had now asserted a claim.

In response, Defendant filed a motion to dismiss the intervention, motion to dismiss Plaintiffs motion to vacate judgment, and a motion for eviction. Defendant claimed the petition of intervention was not timely or properly filed and that it was never properly served within the 90-day time period. He also maintained the judgment Plaintiff sought to vacate was a final judgment and, thus, could not be vacated. Defendant further asserted that he had previously served a notice to vacate upon Ms. Branch and sought a judgment of eviction to remove her from the premises at 823 31st St.

Defendant’s motions were heard on December 17, 2012, but neither Plaintiff nor Plaintiffs counsel were present. After determining that every effort had been made to serve Plaintiff with notice of the hearing, the trial court allowed the hearing to proceed. At the conclusion of the hearing, the trial court stated, “[i]f [Defendant will] submit a judgment, the Court will grant that judgment.” However, the record is devoid of any judgment relating to the December 17, 2012 hearing. Nonetheless, three days later, Plaintiff filed a motion to vacate the trial court’s December 17, 2012 judgment and requested a new trial on those matters. | sThe trial court set a new hearing date on the original motions, effectively granting the motion for new trial.

Thereafter, Ms. Branch filed several exceptions to Defendant’s motion for eviction, including an exception of unauthorized use of summary proceeding and nonjoinder of indispensable parties. Ms. Branch asserted that this case did not involve a landlord/tenant relationship and, thus, a summary eviction proceeding was improper. Rather, Ms. Branch claimed the proper procedural vehicle to decide the claim of possession was a foreclosure proceeding. She also alleged the children and heirs of Mr. Branch, or his succession, were indispensable parties to any eviction proceeding.

A hearing on Ms. Branch’s exceptions and Defendant’s original motions was held on January 14, 2013. At the conclusion of the hearing during which no evidence was introduced, the trial court took the matters under advisement. The next day, the trial court rendered judgment, denying Ms. Branch’s exceptions to Defendant’s motion to dismiss intervention and motion for eviction and granting Defendant’s motion to dismiss intervention, motion to dismiss Ms. Branch’s motion to vacate the judgment (which effectively denied Ms. Branch’s motion to vacate), and motion for eviction. Ms. Branch appeals these rulings.

DISCUSSION

Motion to Vacate

Ms. Branch contends the trial court erred in dismissing her motion to vacate the November 3, 2010 judgment of dismissal, which dismissed her case for failure to join an indispensable party within the specified time delay. She specifically argues the September 2010 judgment ordering her to add Mr. Branch’s succession as a party was unenforceable because the succession was a non-existent party and, thus, could not be added as a party-plaintiff. As such, Ms. Branch asserts the _yudgment of dismissal was improperly granted and her motion to vacate should have been granted.

Defendant asserts that Ms. Branch cannot challenge the September 2010 judgment because it is a final judgment, of which she received notice and from which she did not timely appeal. He maintains Ms. Branch is limited to a review of the January 15, 2013 judgment, which simply denied her motion to vacate the judgment of dismissal. Defendant further contends the November 2010 judgment of dismissal, which is a final judgment, is likewise not reviewable in this appeal because Ms. Branch did not timely appeal it.

A judgment that determines the merits of the action, in whole or in part, is a final judgment. A judgment that does not determine the merits but rather only determines preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. An appeal may be taken from a final judgment or from an interlocutory judgment when provided by law. La. C.C.P. art. 2083.

The September 2010 judgment sustaining the peremptory exception of failure to join an indispensable party and allowing Plaintiff time to amend her petition to cure the grounds for the exception does not determine the merits of the case, but rather only determines preliminary matters in the course of the action. Therefore, it was an interlocutory judgment, not a final appealable judgment. See Updegraff v. Parish of St. Bernard, 433 So.2d 863, 865 (La.App. 4th Cir.1983), where the court held that the maintenance of a peremptory exception of failure to join an indispensable party where the plaintiff was permitted to amend his petition was not a final judgment, but rather was a non-appealable interlocutory judgment. Interlocutory judgments may be reviewed either by timely application for supervisory writs or by appeal after final judgment in the matter. In re Succession of Spitzfaden, 12-895 (La.App. 5 Cir. 2/21/13); 113 So.3d 1103, 1104.

|7The November 2010 judgment of dismissal was a final judgment that dismissed the litigation. Thus, it was a final appeal-able judgment. The time delays for taking an appeal, whether devolutive or suspen-sive, begin to run from the expiration of the delay for applying for a new trial, if no application has been timely filed, or the mailing of notice of the denial of a new trial. La. C.C.P. arts. 2087 and 2123. The delay for applying for a new trial is seven days, exclusive of legal holidays, from the day after the notice of judgment has been mailed as required by La. C.C.P. art. 1913. La. C.C.P. art. 1974.

In this case, the trial court rendered the judgment of dismissal ex parte on November 3, 2010. There is nothing in the record that shows notice of the November 2010 judgment of dismissal was ever mailed in compliance with La. C.C.P. art. 1913. Thus, the seven-day delay for applying for a new trial and the delays for filing an appeal never commenced. See Ancona v. Lathan, 506 So.2d 222, 224 (La.App. 5th Cir.1987). Accordingly, we find the November 2010 judgment of dismissal is properly reviewable.

When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to review of the final judgment. See Marciante v. Marciante, 12-569 (La.App. 5 Cir. 3/27/13); 113 So.3d 387, 390 (the failure to file a writ application seeking review of an interlocutory judgment does not waive a party’s right to appellate review of that judgment upon appeal of a final judgment in the case). As 18such, we find the September 2010 judgment sustaining the exception of nonjoinder of an indispensable party is also properly before us for review.

In order to determine whether the judgment of dismissal was proper, we must first determine whether the September 2010 judgment finding the succession to be an indispensable party and ordering Plaintiff to amend her petition to add the succession was proper.

Louisiana Code of Civil Procedure Article 641, which governs “Joinder of parties needed for just adjudication,” provides:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights. Industrial Companies, Inc. v. Durbin, 02-665 (La.1/28/03); 837 So.2d 1207, 1217. Courts are to determine whether a party should be joined by a factual analysis of all the interests involved. Gibbs v. Magnolia Living Center, Inc., 38,184 (La.App. 2 Cir. 4/7/04); 870 So.2d 1111, 1116, writ denied, 04-1148 (La.7/2/04); 877 So.2d 146.

Ms. Branch brought the instant action as a declaratory judgment. “When declaratory relief is sought, all persons shall be made parties who have or claim |aany interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” La. C.C.P. art. 1880.

In her petition, Ms. Branch sought a determination of the validity of two separate contracts to which Mr. Branch was a party, as well as specific performance on the 1990 contract. Clearly, Mr. Branch’s succession has an interest in the subject matter and any adjudication of the action regarding the contracts at issue in his absence would impair his ability to protect that interest. Thus, the trial court properly found the succession was needed for just adjudication.

When the nonjoinder of a party needed for just adjudication may be cured or removed by an amendment of the petition, La. C.C.P. art. 934 mandates that the court order such amendment within a delay to be fixed by the court before dismissing the action. If the plaintiff fails to comply with the order to amend, the action “shall be dismissed.” La. C.C.P. art. 934.

In this case, the trial court allowed Ms. Branch 30 days to amend her petition to add the succession. She failed to do so. Therefore, the trial court properly dismissed her claim.

Ms. Branch argues that the trial court erred in ordering her to add the succession when it did not exist. To the contrary, succession occurs at the death of a person. La. C.C. art. 934. Although the record does not indicate the date Mr. Branch died, Ms. Branch alleged in her petition that Mr. Branch was deceased. Thus, Mr. Branch’s succession existed at the time the trial court ordered it be joined as a party-plaintiff.

A succession representative is the proper party to assert a right of the succession while the succession is under administration. Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00); 808 So.2d 363, 371, writ denied, 01-2546 (La.12/7/01); 803 So.2d 971. Prior to the qualification of a succession representative, only a universal successor may represent the rights of the decedent. La. C.C. art. 935. It does not appear Mr. Branch’s succession was under administration at the time of the September 2010 judgment. As such, Ms. Branch had the option of asserting the succession’s right through a universal successor or opening the succession and having a succession representative appointed, but she did neither.

Intervention

Ms. Branch next argues the trial court erred in dismissing the petition of intervention filed on behalf of the succession on the basis it was improperly served. She further maintains she was simply following the orders of the court through filing the petition of intervention and adding the succession as a party.

A person having an interest may intervene in a pending action to enforce a right related to the object of the pending action. La. C.C.P. art. 1091. An intervention is an incidental demand and not a main demand. La. C.C.P. art. 1031; Batiste v. Cooper, 417 So.2d 437, 439 (La.App. 1st Cir.1982). Thus, an intervention can only be filed while the suit between the original parties is pending. If the suit has terminated, no intervention therein is possible. See General Motors Acceptance Corp. v. Jordan, 65 So.2d 627, 629 (La.App. 1st Cir.1953).

In this case, the principal action was dismissed two months prior to the filing of the petition of intervention. Therefore, there was no pending action in which Mr. Branch’s succession could have intervened. Accordingly, we find the trial court properly dismissed the petition of intervention.

| uEviction

Ms. Branch’s final arguments relate to the judgment of eviction. She first argues the eviction is barred by res judicata. Next, she claims the eviction was an unauthorized use of summary proceedings because this case did not involve a landlord-tenant relationship but rather an owner-purchaser relationship under a bond for deed. Ms. Branch contends the proper procedure for Defendant to establish his right to possess the property is through foreclosure, which is an ordinary proceeding.

The doctrine of res judicata bars a subsequent action when there is a final judgment involving the same parties and the cause of action asserted in the second suit existed at the time of the final judgment in the first litigation and arose out of the transaction or occurrence that was the subject matter of the first litigation. La. R.S. 13:4231; Bovie v. St. John the Baptist Parish, Dept. of Streets and Roads, 13-162 (La.App. 5 Cir. 9/4/13); 125 So.3d 1158. The party who urges an exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. Id.

Ms. Branch asserts that Defendant previously sought to evict her in a proceeding brought before the Justice of the Peace in 2011. She contends she appealed to First Parish Court, which she argues reversed the ruling of the Justice of the Peace on the basis Defendant failed to join an indispensable party, namely Mr. Branch’s heirs.

Although Ms. Branch argued the doctrine of res judicata in the trial court, she failed to offer any evidence to support her position. Neither the record from First Parish Court nor the resulting judgment was introduced into evidence. It was incumbent upon Ms. Branch, as the party urging the exception of res judicata, to introduce into evidence the suit record involving the alleged prior eviction 112proceeding and the prior judgment. See Delaney v. McCoy, 46,103 (La.App. 2 Cir. 4/13/11); 63 So.3d 327, 329. By failing to introduce the requisite documentary evidence, Ms. Branch failed to meet her burden of proof and failed to prove the current eviction proceeding was barred by res judicata.

Ms. Branch next argues a summary eviction proceeding is not proper in a case involving a default on a bond for deed contract.

Louisiana’s statutory scheme for eviction, La. C.C.P. art. 4701, et seq., was designed to give landowners the right to oust occupants without the burdensome expense and delay required by a petitory action. Robinson Ventures, L.L.C. v. Dowl, 04-2149 (La.App. 4 Cir. 4/20/05); 901 So.2d 587, 589, writ denied, 05-1747 (La.1/27/06); 922 So.2d 548. Eviction is a proper remedy for use by an owner of immovable property, who wishes to evict the occupant after the purpose of the occupancy has ceased. La. C.C.P. art. 4702; PTS Physical Therapy Service, Inc. v. Magnolia Rehabilitation Service, Inc., 40,-558 (La.App. 2 Cir. 1/27/06); 920 So.2d 997, 999.

A bond for deed is “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941. When a buyer defaults on a bond for deed contract by failing to pay the installments as they come due and the non-payment continues for 45 days after notice of default, the seller may cancel the contact as provided in La. R.S. 9:2945. Upon statutory notice of default, the purchaser is not entitled to maintain possession. Montz v. Theard, 01-768 (La.App. 1 Cir. 2/27/02); 818 So.2d 181, 187. Although the bond for deed statute does not describe the procedural vehicle whereby the seller is to regain possession in the event of the purchaser’s default, |1sthe jurisprudence has indicated an eviction proceeding is appropriate. Montz, supra; Brown v. Weldon, 199 So. 620, 623 (La.App. 1st Cir.1941).

The petitioner in an eviction proceeding has the burden of making a prima facie showing of title to the property, prove that the defendant is an occupant as defined in La. C.C.P. art. 4704, and show that the purpose of the occupancy has ceased. Moody Investment Corp. v. Occupants of 901 East 70th St., 43,396 (La.App. 2 Cir. 8/13/08); 990 So.2d 119, 122.

At the hearing on the motion for eviction, Defendant did not call any witnesses or introduce any evidence into the record, but rather counsel simply stated his client’s position that Ms. Branch had been in default of the contract since 2005. Additionally, there is nothing in the record to indicate that the trial court took judicial notice of the contract at issue or any other facts or documents. Although there are two documents, a notice of default and a notice to vacate, attached to Defendant’s motion for eviction, these documents were not offered into evidence and thus, cannot be considered. Bovie, 125 So.3d at 1161.

Without any evidence, Defendant failed to make a prima facie case that he was the owner of the property, notice of default had been served on Ms. Branch, or the purpose of occupancy by Ms. Branch had been terminated. Accordingly, we find the trial court erred in granting eviction in favor of Defendant.

DECREE

For the foregoing reasons, we affirm the November 3, 2010 judgment of dismissal and that portion of the January 15, 2013 judgment dismissing Ms. Branch’s motion to vacate the 2010 judgment of dismissal. We also affirm that | ^portion of the January 15, 2013 judgment dismissing the petition of intervention. We reverse that portion of the January 15, 2013 judgment granting Mr. Young’s motion for eviction. Each party is to bear their own costs.

AFFIRMED IN PART; REVERSED IN PART.

      . Under La. C.C.P. art. 963, a court may grant an ex parte order without hearing the adverse party when "the order applied for by written motion is one to which mover is clearly entitled without supporting proof ...” The trial court ordered Ms. Branch to amend her petition to include the indispensable party within 30 days "or the case be DISMISSED with prejudice.” Ms. Branch had until October 28, 2010 to file her amended petition, but failed to do so. Under La. C.C.P. art. 934, "if a plaintiff fails to comply with the order to amend, the action shall be dismissed.” The record shows Ms. Branch did not timely amend her petition prior to the time Defendant filed the motion to dismiss, thus Defendant was entitled to dismissal and no supporting proof was necessary. Accordingly, the trial court had authority to grant the motion to dismiss without a hearing. See Batson v. Cherokee Beach and Campgrounds, Inc., 470 So.2d 478, 479 (La.App. 1st Cir.1985).

      . The 1995 amendments to La. C.C.P. art. 641 removed the terms "necessary and indispensable parties” and inserted the concept of "joinder of parties needed for just adjudication.” Fewell v. City of Monroe, 43,281 (La.App. 2 Cir. 6/11/08); 987 So.2d 323, 325, writ denied, 08-2172 (La.11/14/08); 996 So.2d 1093.

      . The grounds upon which the trial court dismissed the petition of intervention are unknown as they are neither stated in the judgment of dismissal nor in the transcript of the hearing on the matter.

      . This is not a situation where the dismissal of the principal action has no effect on the incidental demand under La. C.C.P. art. 1039 because the instant intervention was not filed prior to the dismissal of the principal action.

      . We note that an eviction proceeding does not necessarily preclude the parties from pursuing other remedies relating to the title of the property, return of money paid on the purchase price, and allowance for fair rental value on the property during the period of the purchaser’s occupancy. See Moody, 990 So.2d at 123; Montz, 818 So.2d at 192.

        . We note that the contract at issue is not even a part of the appellate record.