author: AMY, Judge.

text:
    Shannon CRAMER v. Mark TUTTLE.
    No. 08-940.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Michael R. Garber, Lake Charles, LA, for Defendant/Appellant, Mark Tuttle.
    Benji J. Istre, Moss Bluff, LA, for Plaintiff/Appellee, Shannon Cramer.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN and SHANNON JAMES GREMILLION, Judges.
   AMY, Judge.

|tA Texas court named the parties joint managing conservators of their minor child and permitted the plaintiff to establish the child’s domicile. However, the plaintiff was enjoined from moving from an address in Cameron Parish without the permission of the defendant or an order of the court. After the plaintiff and the child moved to another location within the parish in 2007, the plaintiff filed a petition to dissolve permanent injunction and a rule to increase child support in Cameron Parish. She also sought modifications to the visitation arrangement. The defendant filed exceptions of lack of subject matter jurisdiction and no right of action, asserting that the Texas court had jurisdiction. The trial court denied the exceptions. The defendant appeals. We affirm.

Factual and Procedural Background

An October 7, 2004 order of a Texas District Court modified the physical custody schedule of the minor child of the plaintiff, Shannon Kristine Cramer, and the defendant, Mark Elliott Tuttle. Ms. Cramer had previously been designated as the party permitted to establish the child’s domicile. The October 2004 order further permanently enjoined Ms. Cramer from moving the child from her address in Cameron, Louisiana “without agreement by the parties hereto, or further order of this Court.” The order provided, however, that she could “move back to Harris or Montgomery County, without permission of the parties, or further Order of this Court.”

Ms. Cramer filed a Petition to Dissolve Permanent Injunction and Rule to Increase Child Support in Cameron Parish on August 7, 2007. She alleged that the Louisiana court had jurisdiction of the matter pursuant to the Louisiana Uniform Child Custody Jurisdiction Law (UCCJL), La.R.S. 13:1700. Ms. Cramer asserted that 12circumstances had changed since the Texas court rendered its October 2004 order, insofar as the owners of the designated property in Cameron Parish were required to sell the home due to Hurricane Rita. She also alleged that the three-bedroom house could no longer accommodate her family due to her remarriage. She requested to move to a home located four miles from the address designated in the Texas order and alleged that Mr. Tuttle refused to give permission for the move as required by the Texas order. Therefore, she requested an order permitting her to move and declaring the permanent injunction of the Texas order null and void. Finally, in this and a later amended petition, Ms. Cramer sought an increase in Mr. Tuttle’s child support obligation, modification of the visitation schedule, and damages associated with Mr. Tuttle’s alleged failure to maintain health insurance for the child.

Mr. Tuttle filed exceptions of no right of action and lack of subject matter jurisdiction, questioning the filing of the petition in Louisiana. Mr. Tuttle also filed an Application to Enjoin Further Proceedings in Subsequent Suit in Texas, asserting that the Texas court maintained exclusive, continuing jurisdiction over the matter. He requested the issuance of a temporary and permanent injunction, enjoining Ms. Cram-er from proceeding in Cameron Parish. As evidenced by a communication from the Texas court to the Cameron Parish court, which was entered into evidence, the Texas court did not set a hearing on Mr. Tuttle’s filing and was awaiting the outcome of the Cameron Parish proceedings.

When the court in Cameron Parish heard the exceptions, Mr. Tuttle argued that the Parental Kidnaping Prevention Act (PKPA), 28 U.S.C. § 1738A, precluded the Louisiana court from exercising jurisdiction. Ms. Cramer contended that the PKPA is inapplicable and that, instead, the matter was controlled by the UCCJL. The trial |3court denied the exceptions, rejecting the contention that the PKPA retained jurisdiction in the Texas court. Mr. Tuttle appeals.

Discussion

In his sole assignment of error, Mr. Tuttle again asserts that the PKPA retains exclusive, continuing jurisdiction in the Texas court. Citing Sharrvp v. Jezek, 02-1346 (La.App. 1 Cir. 11/8/02), 836 So.2d 185, Mr. Tuttle asserts that this federal statute preempts the UCCJL in the event of concurrent jurisdiction.

According to La.R.S. 13:1702, as it existed at the time the petition in this case was filed, jurisdiction under the UCCJL is set forth, in pertinent part, as:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding ... or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the |4child’s present or future care, protection, training, and personal relationships!/]

“Home state” as used in La.R.S. 13:1701(5) is defined as:

[T]he state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

La.R.S. 13:1701(A).

As explained in Stelluto v. Stelluto, 05-0074 (La.6/29/05), 914 So.2d 34, the UCCJL serves as an additional consideration in a trial court’s inquiry as to jurisdiction in custody cases. The first consideration is whether a court has general subject matter jurisdiction as provided by the Louisiana Constitution or by legislation. Id. Even if a court may have general subject matter jurisdiction, it may be required to decline to exercise it in certain circumstances in order to promote the UCCJL’s stated purposes. Id. See La. R.S. 18:1700(A). Included in the general purposes set |Rforth for the UCCJL are avoidance of jurisdictional competition, ensuring that custody litigation is held in the state with the closest connection to the child and where evidence is located. Id. Additionally, the UCCJL is intended to deter abductions and promote cooperation with other states. Id.

The supreme court further instructed that:

[Although the UCCJL analysis is technically relevant to a court’s subject matter jurisdiction, the choice of the optimum jurisdiction to resolve custody battles under the UCCJL focuses on the strength of connections between the child and the competing states, more akin to a personal jurisdiction analysis. Amin [v. Balchaty, 01-1967, (La.10/16/01), 798 So.2d 75] at 80-81. Because of this focus, this court has rejected the notion that the UCCJL requires deference to the “home state” in every case. Id. at 82 (citing Revere [v. Revere, 389 So.2d 1277, 1279-80 (La.1980)]). Rather, jurisdiction may exist concurrently in two different states under the home state and significant connection standards. Where two states possess concurrent jurisdiction, this court has directed that the forum conduct “a comparative determination regarding which jurisdiction will serve the best interests of the child.” Id. at 83. This determination of the child’s best interest is well within the exclusive province of the trial court, and will not be disturbed absent an abuse of discretion. Anderson v. Anderson, 01-53 (La.3/29/05[5/30/01]), 788 So.2d 676.

Stelluto, 914 So.2d at 40.

In this case, La.R.S. 13:1701(5) designates Louisiana as the child’s home state as she has resided with her mother in Louisiana since 2004, greater than the six | r,months required by the provision. With Louisiana designated as the home state in the definition, La.R.S. 13:1702(A)(1) further indicates that Louisiana is a court of competent jurisdiction to render a modification decree as Louisiana was “the home state of the child at the time of commencement of the proceeding!)]” Furthermore, in light of the facts presented, it is clear that Paragraph (A)(2) also supports the trial court’s decision as the child and Ms. Cramer have a significant connection with Louisiana and evidence regarding the child’s care since 2004 would be present in the state. The facts presented do not indicate similarly significant connections with Texas. Thus, there is not the concurrent jurisdiction issue addressed in Stellu-to. The trial court was within its discretion in determining that subject matter jurisdiction rested within Louisiana for the modification sought.

Neither did the trial court err in rejecting Mr. Tuttle’s contention that the PKPA preempts the Louisiana claim and maintains jurisdiction in Texas. 28 U.S.C. § 1738A provides:

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.
(b) As used in this section, the term — •
(3) “custody determination” means a judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications;
(4) “home State” means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the l7child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
(5) “modification” and “modify” refer to a custody or visitation determination which modifies, replaces, or supercedes, or otherwise is made subsequent to, a prior custody or visitation determination concerning the same child, whether made by the same court or not;
(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met;
(A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(d) The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the |spendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.
(h) A court of a State may not modify a visitation determination made by a court of another State unless the court of the other State no longer has jurisdiction to modify such determination or has declined to exercise jurisdiction to modify such determination.

As with the UCCJL, Louisiana is the home state of the child under the PKPA given the child’s residence in this state in excess of six months. See 28 U.S.C. § 1738A(b)(4). Further, the custody determination rendered by the Louisiana court is consistent with the provisions of the PKPA as the court had jurisdiction under the law of the state, i.e., under the UCCJL, and Louisiana was the child’s home state on the date of the commencement of the proceedings. See 28 U.S.C. § 1738A(c)(l)-(2).

Finally, 28 U.S.C. § 1738A(a) dictates that a State shall not modify a custody determination of another State “except as provided in subsection (f), (g), and (h).” These subsections require consideration of both the jurisdiction of the reviewing state and that of the original court issuing a custody determination. Again, as Louisiana is the home state of the minor child and she continues to reside in the state, it is clear that Louisiana has jurisdiction. Conversely, no evidence indicates that Texas retains jurisdiction. In fact, the Texas order at issue expressly anticipated that the child could reside in Louisiana. Finally, and in consideration of subsection (g), no court of another State is exercising jurisdiction consistently with the provisions of § 1738A in making a custody/visitation determination. Instead, the record indicates that, although Mr. Tuttle filed a motion for enforcement and application for temporary restraining order in Texas and that it remained pending, the Texas court declined to set a hearing on the motion and was waiting for the outcome of the Louisiana ruling. |9Thus, it cannot be said that Texas was exercising its jurisdiction in making a custody determination.

In light of the terms of both statutory provisions at issue and the facts of this case, we find that the trial court did not err in denying the exceptions of lack of subject matter jurisdiction and no right of action.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the appellant, Mark Elliott Tuttle.

AFFIRMED.

      . In ruling on the exceptions, the trial court stated:
      The PKPA is designed to deter persons from taking children across state lines to defeat the jurisdiction of the court. That hasn’t occurred here at all. The move across the state lines could have been attacked in Texas as a move to defeat the custody of the Court, but it — when Texas looked at it, it saw that the move was made for reasons other than that, and there were proceedings in Texas recognizing that the child resided in Louisiana, which is a tacit approval by the Texas courts and an acquiescence by Mr. Tuttle. Six months after that point, Louisiana’s clearly the home state, and so the Court feels that Louisiana is the home state and has now acquired jurisdiction over questions of custody and all incidences and matters such as visitation and support and et cetera. So that's the ruling of the Court.

      . The UCCJL has since been repealed by 2006 La. Acts, No. 882, § 1, which also enacted the Uniform Child Custody Jurisdiction and Enforcement Act. See La.R.S. 13:1801. The Act became effective on August 15, 2007, and provided that: "A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this Act is governed by the law in effect at the time the motion or request was filed.” Ms. Cramer’s petition was filed on August 7, 2007. Accordingly, the application of La.R.S. 13:700 is mandated and all references to sections of the UCCJL in this opinion are to the versions of the statute in effect at the action was commenced.

      . Louisiana Revised Statutes 13:1700 provided:
      A. The general purposes of this part are to:
      (1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
      (2) Promote cooperation with the courts other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.
      (3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
      id) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
      (5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
      (6) Avoid relitigation of custody decisions of other states in this state insofar as feasible.
      (7) Facilitate the enforcement of custody decrees of other states.
      (8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child, and
      (9) Make uniform the law of those states which enact it.
      B. This part shall be construed to promote the general purposes stated in this Section.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Gary W. FREEMAN and Melissa R. Phillips v. AUDUBON INSURANCE GROUP.
    No. 2008-CA-0856.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2009.
    Writ Denied June 19, 2009.
    Frank Sloan, Mandeville, LA, for Plaintiff/Appellant, Gary W. Freeman.
    Michael F. Bollman, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Appellant, Mr. Gary Freeman appeals the trial court’s granting of summary judgment in favor of Audubon Insurance Group (Audubon). The trial court found that Audubon had properly notified Mr. Freeman of the cancellation of his policy and thus no coverage was in place at the time of his property loss.

Audubon issued Mr. Freeman a homeowner’s policy on his residence at 1019-1021 North Dupre Street. The policy period was from August 21, 1998 to August 21, 1999. Audubon claims that the policy was cancelled on June 18, 1999 for nonpayment of premiums. On January 6, 2000, a fire destroyed the Dupre Street residence. Mr. Freeman seeks to have coverage provided for his loss because he did not receive notice of the policy cancellation as required by La. R.S. 22:626.

A summary judgment is properly granted when a review of the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact. La. C.C.P. Art. 966. A fact is considered material if it is essential to the success of the petitioner’s claim. On appeal the granting of a motion for summary judgment is reviewed de novo.

|2La. R.S. 22:636, referring to policy cancellation, provides in pertinent part:

A. Cancellation by the insurer of any policy which by its terms is cancelable at the option of the insurer, ..., may be effected as to any interest only upon compliance with either or both of the following:
(1)(a) Written notice of such cancellation must be actually delivered or mailed to the insured ... not less than thirty days prior to the effective date of the cancellation ....
(2) Like notice must also be so delivered or mailed to each mortgagee, ... or other known person shown by the policy to have an interest in any loss which may occur thereunder. For purposes of this Paragraph “delivered” includes electronic transmittal, facsimile, or personal delivery.
B. The mailing of any such notice shall be effected by depositing it in a sealed envelope directed to the addressee at his last address as known to the insurer or as shown by the insurer’s records, with proper prepaid postage affixed, in a letter depository of the United States Post Office....
C.The affidavit of the individual making or supervising such a mailing, shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.

La. R.S. 22:636.1(F) describes sufficient notice for non-renewal as:

F. Proof of mailing of notice of ... intention not to renew ... to the named insured at the address shown in the policy, shall be sufficient proof of notice.

A strict reading of the statute would suggest that receipt of the notice is immaterial once evidence of the mailing has been provided. La. R.S. 22:636(C). However, given this Court’s recent opinion in Collins v. State Farm, 08-0790 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, evidence of mailing can be rebutted by affirmative proof of non-delivery. In Collins, this Court reversed the trial court’s granting of summary judgment in favor of the insurer who provided evidence of its mailing of notice to non-renew the insured, Mr. Collins’, homeowner’s policy. Id. Mr. Collins opposed the summary judgment with sworn affidavits from himself and a representative of his mortgage company stating that the notice was not received. |S/A The insurer’s proof of mailing specifically listed the mortgage company as a recipient of the notice to non-renew. Id. This Court found that under the facts of the case, Mr. Collins had sufficiently rebutted the presumption of delivery to defeat the motion for summary judgment filed by the insurer. Id.

Applying the rational from Collins we are directed to consider the circumstances and evidence in support of non-delivery, even though proof of mailing was adequately established. The evidence presented in opposition to the motion for summary judgment in this case was the deposition testimony of Mr. and Mrs. Freeman. In his deposition testimony, Mr. Freeman acknowledged that his home was not financed through a traditional mortgage and that he was responsible for securing insurance and paying the premiums. Furthermore, he confirmed that he received a refund cheek for the unused portion of his premium, but he did not know what it was for and did not inquire about its purpose. He also said that even though his lender’s name and address was on the cancellation notice Audubon claimed to have mailed, his lender did not receive notice of the cancellation either. However, there is nothing further in the record to support that assertion.

The record reveals the following: the policy period was August 21, 1998-August 21, 1999; the policy was cancelled on June 18, 1999 due to nonpayment of the premium; the unused portion of the premium for the policy was refunded shortly after the June 18, 1999 cancellation; and Mr. Freeman’s loss occurred on January 6, 2000. Additionally, it is uncontested that the payment of the insurance premiums was undertaken by Mr. Freeman, not a third-party. We find the facts and evidence presented in this case to be distinguishable from those of Collins. Thus, we cannot find that the trial court erred in its ruling. Accordingly, the trial court’s |4granting of summary judgment in favor of Audubon Insurance Group is hereby affirmed.

AFFIRMED.

JONES, J., concurs with reasons.

JONES, J., concurs with reasons.

Iil respectfully concur with the majority. To make it clear, a copy of Audubon Insurance’s notice of cancellation was mailed to the Appellant, Gary Freeman, as well as to his mortgage company. Thus, he was on notice of impending cancellation of coverage.


author: STEWART, J.

text:
    HOLLEY HOMESTEAD TRUST, Plaintiff-Appellee v. David Horace HARRISON, Defendant-Appellant.
    No. 44,149-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 15, 2009.

      Hallack Law Firm by William H. Hal-lack, Jr., Dennis W. Hallack, West Monroe, for Appellant.
    Travis M. Holley, Phillip M. Lester, Bastrop, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   STEWART, J.

_JjThe defendant, David Horace Harrison, appeals a judgment declaring the plaintiff, Holley Homestead Trust, the owner of 0.404 acres of land located along the boundary of the parties’ neighboring tracts. For the following reasons, we affirm.

FACTS

The property in dispute is a small area totaling 0.404 acres of land “situated in a portion of the Southeast One Quarter of the Southeast One Quarter of Section 30, T 22 N, R 6 E, Morehouse Parish, Louisiana,” according to a property description by professional surveyor, Frank M. Mes-singer. The disputed land is described as a slough, a low-lying area that holds water at times. The plaintiffs property is south of the slough, and the defendant’s property is north of the slough. The plaintiff claims ownership of the disputed property through acquisitive prescription of 30 years, whereas the defendant claims ownership by title.

Plaintiffs ancestors in title include Ned Averiett, who acquired the property now alleged to include the disputed tract in 1940; his son, Tilmer Averiett, who obtained title through a judgment of possession dated August 22, 1986; and Travis Holley, who purchased the land from Til-mer Averiett on December 6, 1986. Holley then conveyed the property to Holley Homestead Trust, which he created. For clarity, the trust as plaintiff will hereafter be referred to in Holley’s name.

The defendant’s ancestor in title is his father, Horace Harrison. David Harrison purchased the note on his parents’ property in January 2004. He states that the property has been in his family for over 60 years. It is |2undisputed that the 0.404 acres are included under the Harrison title. However, a fence or remnants of a fence on the northern high bank of the slough on the Harrison side of the boundary separates the disputed area from the rest of the Harrison land and encloses it with the Averiett land now owned by Holley. We will refer to this fence as the “north fence.”

On May 1, 2006, the plaintiff filed a petition styled as a possessory action after David Harrison put up a barbwire fence across the slough, and below the disputed north fence line, allegedly to refix the boundary. According to the petition, the north fence was recognized as the boundary between the Averiett and Harrison properties, and the disputed 0.404 acres were maintained under that fence for more than 30 years. The petition asserts that Ned Averiett maintained the fence and raised cattle, hogs, and goats on the property.

In response, Harrison asserted that he erected a fence in the slough along the true property line, and he alleged that Travis Holley disturbed his possession when he tore down the fence.

Prior to trial, both parties filed motions in limine. Holley sought to prohibit David Harrison and witnesses on his behalf from offering comments, statements or alleged verbal communications involving Horace Harrison, Ned Averiett, and Tilmer Aver-iett, all of whom are deceased. Likewise, Harrison’s motion sought to prohibit Holley from offering evidence regarding the acts of possession and intent to possess the disputed land by Ned Averiett. Though the trial court granted both motions, the restrictions on testimony were ignored at trial.

IsTRIAL TESTIMONY

Plaintiffs Case

Travis Holley purchased the Averiett property in 1986. He did not believe a survey was necessary to determine what he owned. The entirety of the tract was enclosed by a fence, which he believed indicated the boundary of the property. Holley described the fence as being made of “hog wire” held up by posts, trees, and crossties. We note that at the time of trial, only fence remnants remain in the disputed area.

After the purchase, Holley began clearing the property, including the slough. He sprayed the fence line of his property to kill weeds every year or two. At one time, he put a culvert at the narrow end of the slough to hold water to attract water fowl, but the culvert was either removed or washed away. To restore its natural state, Holley obtained advice about native plants to grow in the slough. He testified that he put survey flags to mark the placement of the plants and prevent them from being mowed down. At the time of trial, the flags were no longer on the property, and Holley could not explain the reason for their disappearance.

Holley testified that in January 2006, he found that a new fence had been put up through the slough. He cut the fence down, pulled up the posts, and threw the materials onto Harrison’s property. After Harrison filed a criminal complaint against him related to his taking down the fence, Holley filed the instant action on May 1, 2006.

Before Harrison put up the new fence, Holley had not known of any boundary dispute with his neighboring property owner. Holley testified that |4he had a survey performed after or around the time of filing this suit; the survey performed by Messinger & Associates, Inc., is dated February 28, 2006. Holley testified that there was no evidence of a fence along the true property line between his and Harrison’s property. Moreover, he did not know whether the new fence put up by Harrison in January 2006, followed the true property line. Evidence of the fence upon which Holley bases his claim of possession of the disputed 0.404 acres consists of wire embedded in a tree from which core samples were taken. The samples indicated that the wire had been there over 30 years. Cross examination revealed that there are other trees in the area of the disputed property with wire running through them. Holley denied that he or any workers on his property tore down fences in the disputed area.

Mary Erwin, the curator of Kalarama Nature Preserve in Collinston, Louisiana, visited Holley’s property eight years prior to trial. Holley sought her advice on how to maintain the slough in its natural state. Erwin recalled that the slough area she looked at appeared to have been recently cleared, but she could not say whether the particular area in dispute was cleared. She did not recall seeing a fence in the area.

Holley also called Linda Laing, who lived near the Averiett property from 1962 to 1967. She recalled that a fence went around Ned Averiett’s entire tract of land and that he had cows, goats, and sometimes hogs roaming his property. She claimed to be familiar with the slough and recalled that there was a fence along it. She also said that she had visited the area in the last six months and thought it all looked the same. Crossjexaminatio% established that Laing had rarely gone to the disputed area of the slough.

Frank Lee Messinger, III, was the professional land surveyor called by Holley. The parties stipulated to his qualifications as an expert in land surveying. Messinger testified that he did work for Holley twice. The first time he was asked to locate fences on the property when Holley was building in case Holley decided to clean the fence rows and make them look better. The second time was late 2005 or the early winter of 2006, when aerial photos of the area where taken. Messinger testified that there are two fence lines along the northern boundary of Holley’s property from Bayou Bartholomew up to the southwest corner of the disputed land, where he located a crosstie. Walking north and along the disputed area, Messinger found other crossties, which he said were tied in with the fence he used to determine Holley’s boundary. Messinger stated on cross-examination that another fence ran behind this line, but he denied finding evidence of any other fence going across the slough.

Roy McGrew, a forester who manages some of Holley’s timber land, took a core samples from a water oak tree that had wire strands running through it. He determined from the growth rings that the wire had been in the tree at least 37 years.

Holley also called David Harrison, who testified that he put a fence across the slough in January 2006, in the general area of the true property line. He claimed that another fence had originally been there from crosstie to crosstie, but that it had been moved to the high bank because of rotting. RHe was not sure of the dates when the original fence had been there or when it had been moved to the high bank. He also did not know whether the original fence was still there in 1986, when Holley purchased Ned Averiett’s land. Harrison also recalled that Ned Averiett had cows that would occasionally escape his land. He indicated that the fence outlined by Messinger is what kept the cows enclosed and off the Harrison land.

Lastly, Holley introduced the deposition testimony of James Harrison, the brother of David Harrison. Overruling the defendant’s hearsay objection, the trial court allowed the deposition in lieu of live testimony due to James Harrison’s incarceration in federal prison. According to his deposition, James lived on the family farm until a sophomore in high school. He continued to help his father work on the farm until he joined the Navy for three years. Thereafter, he went back to farming the Harrison land. James did not recall there ever being a fence through the slough along the boundary line as per the Harrison property title. Nor did he recall a fence on the south side of the slough. The only fence he recalled was the one located on the north edge of the slough along a tree line, namely, the north fence. He stated that this fence line was considered the boundary line between the Harrison and Averiett properties and that it still existed when Holley purchased the Aver-iett property in 1986. James testified that he worked on the fence and that some trees were used as fence posts. Numerous fence lines were built one on top of the other along the tree line. According to James, his father would never give up an inch of land; so, if he had considered the slough Harrison property, there would have been a fence 17through it on the property line. With regard to the Averiett property, James recalled that Ned Aver-iett’s fences were always falling down and that his cattle roamed the entire parish before stock laws requiring fences went into effect.

Defendant’s Case

Nelda Janice Harrison Robinson, the sister of David and James Harrison, lived on the family farm until eighth grade and visited it many times after moving. She recalled that the property line between the Harrison and Averiett properties was marked by a fence through the slough in the 1950s and 1960s. Her father moved the fence to the north side of the slough on the high bank to prevent the fence posts from rotting, but she was not sure when this occurred. She did not recall what became of the fence along the property line. She also testified that Ned Averiett was unable to maintain his fences, so his cattle and hogs frequently escaped and got into the Harrisons’ crops. She never saw Ned Averiett repair his fences, and she never saw him doing anything in the disputed area of the slough.

David Harrison testified that he worked on the Harrison property through his college years. He drove a tractor and did some work on the fences, which were often broken by cattle. He recalled that the opposite side of the slough was overgrown. When asked about activity he had observed on the Averiett land prior to 1986, he recalled that Ned Averiett had at times had row crops, cattle, goats, and hogs. However, this activity pertained to Aver-iett’s entire property and not just the disputed area. Harrison said that after Holley purchased the Averiett land he saw Holley | ^clearing underbrush in the slough and noticed that he had put a culvert and some plants. A month later, the culvert and plants were gone. In the early part of 2006, Harrison noticed survey flags placed in the slough. Some were in a straight line and some were in a curve. After Holley took down Harrison’s fence, Harrison noticed that the flags along the straight line were gone too. Harrison recalled that Ned Averiett had a fence along the high bank on his side of the slough and that Averiett’s fence was used to keep his cows out of the slough. He did not recall when he last saw that fence up.

Trial Court’s Ruling

Based on the testimony of plaintiffs witnesses, the expert testimony, and the physical evidence, the trial court determined that Holley and his ancestors in title openly possessed as owners the disputed area for over 40 years. The trial court noted that Holley’s ancestor in title raised cows and hogs in the disputed area for over 20 years and that Holley maintained and improved the slough for 20 years until David Harrison put up the fence soon after acquiring title to his family’s land. Noting that no evidence of such a fence was found by the experts or by the trial court’s own observation of the disputed area, the trial court rejected Harrison’s contention that there had been a fence along the time property line. Accordingly, the trial court rendered a judgment declaring the plaintiff to be the owner of the disputed property and assessing the defendant with fees and costs. Harrison’s appeal followed.

| .DISCUSSION

Though this matter was styled as a pos-sessory action, it is actually a boundary dispute between property owners of contiguous lands and was tried as such. Each claims ownership of the disputed 0.404 acres along a slough where their lands meet.

In a boundary action, the court renders a judgment fixing the boundary between contiguous lands in accordance with the ownership or possession of the parties. La. C.C.P. art. 3693. The boundary shall be fixed according to ownership of the parties; however, if neither party proves ownership, the boundary shall be fixed according to the limits established by possession. La. C.C. art. 792. If a party proves acquisitive prescription, then the boundary shall be fixed according to the limits established by prescription rather than by title. La. C.C. art. 794. Moreover, if a party and his ancestors in title possessed for 30 years without interruption and within visible bounds more land than their title called for, then the boundary shall be fixed according to these bounds. Id. Therefore, the party who relies on title will prevail unless the adverse party proves ownership by acquisitive prescription. Bowman v. Blankenship, 34,558 (La.App. 2d Cir.4/4/01), 785 So.2d 134, writ denied, 2001-1354 (La.6/22/01), 794 So.2d 794.

Acquisitive prescription of 30 years extends only to that which has been actually possessed. La. C.C. art. 3487. The party claiming acquisitive prescription of 30 years must have corporeal possession of the property and the intent to possess as owner. La. C.C. art. 3424; Williams v. McEacharn, 464 So.2d 20 (La.App. 2d Cir.1985). Corporeal possession means that 1,none exercises the physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425. Possession for purposes of acquisitive prescription must be continuous, uninterrupted, peaceable, public, and unequivocal. La. C.C. art. 3476.

One claiming possession without title can show adverse possession by enclosures, meaning natural or artificial marks that give notice of the character and extent of possession. Ewald v. Hubbard, 31,506 (La.App. 2d Cir.3/12/99), 737 So.2d 858, writ denied, 99-1289 (La.6/25/99), 746 So.2d 602. However, what constitutes adverse possession depends on the nature of the property and must be determined on the facts of each case. Bennett v. Louisiana Pacific Corp., 29,598 (La.App. 2d Cir.5/9/97), 693 So.2d 1319, writ denied, 97-1552 (La.10/3/97), 701 So.2d 199. Acts indicating adverse possession differ depending on the nature of the property. What suffices to show adverse possession of agricultural land, such as cultivation or using property as a pasture, differs from woodland where little may be done to indicate possession. Liner v. Louisiana Land & Exploration Co., 319 So.2d 766 (La.1975); Ryan v. Lee, 38,352 (La.App. 2d Cir.4/14/04), 870 So.2d 1137, writ denied, 2004-1531 (La.10/1/04), 883 So.2d 991.

The burden of proof is on the party who pleads acquisitive prescription. Williams v. McEacharn, supra. Whether a party has possessed the disputed property for 30 years without interruption is a factual issue that will not be reversed on appeal absent manifest error or a showing of an abuse of discretion. Garner v. Holley, 42,477 (La.App. 2d Cir.10/3/07),11 968 So.2d 234; Guillot v. Evans, 31,591 (La.App. 2d Cir.2/26/99), 728 So.2d 1052, writ denied, 99-1178 (La.6/4/99), 744 So.2d 631. Likewise, the determination of a boundary is a question of fact. Gam.er, supra.

Harrison raises three issues on appeal. We first address his argument that the trial court erred in ignoring the orders granting the motions in limine. Harrison does not refer to any objection made by him to specific testimony at trial which would provide a basis for review. Moreover, there was no testimony regarding any statement by Ned Averiett, whether an oral or written assertion or nonverbal conduct intended as an assertion. Testimony pertained to witnesses’ observations of Averiett’s land and his activities or lack thereof in the slough. We find no merit to the complaint that the trial court ignored the orders granting the motions in limine.

Next, Harrison argues that the trial court erred in allowing the deposition testimony of James Harrison into evidence where his unavailability was not established and in relying on this testimony even though James’s credibility was subject to serious question. Though David Harrison asserts there was no evidence to establish James’s unavailability for trial, the record shows that both counsel indicated to the trial court that James was in federal prison. Under La. C.C.P. art. 1450(A)(3)(a), a deposition of a witness may be used at trial for any purpose when the witness is unavailable. Moreover, the trial court has much discretion in determining whether to allow deposition testimony at trial, and its decision [12to allow such testimony will not be disturbed unless an abuse of that discretion is shown. Dunning v. Dapco Ventures, L.L.C., 2001-2366 (La.App. 1st Cir.11/8/02), 834 So.2d 448, writ denied, 2003-0215 (La.3/28/03), 840 So.2d 576. We cannot say on this record that the trial court abused its discretion in allowing the introduction of James Harrison’s deposition in lieu of live testimony. The trial court did not believe from its prior experience that the federal authorities would allow transfer of the witness to testify even if a writ of habeas corpus ad testificandum was requested. We note that prisoners do not even have the right to be physically present in court for their own civil actions. England v. Baird, 1999-2093 (LaApp. 1st Cir.11/3/00), 772 So.2d 905. Also, review of James Harrison’s deposition shows that counsel for David conducted a robust examination of the witness. For these reasons, we cannot say that the trial court abused its discretion in allowing the introduction of James Harrison’s deposition.

In making its findings of fact, the trial court relied on the deposition testimony of James Harrison. Both the testimony of David Harrison and the deposition of James Harrison reveal the bad relationship between the two brothers. However, James’s testimony shows that he was the person most familiar with the area in question. He grew up on the Harrison land and farmed it as an adult. In our three-tiered court system, fact finding is allocated to the trial court, and its evaluations of credibility, even when based on depositions offered in lieu of live testimony, are accorded great deference. Virgil v. American Guarantee and Liability Ins. Co., 507 So.2d 13825 (La.1987). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Id. While we may have assessed James Harrison’s credibility differently if sitting as trier of fact, we cannot say that it was manifest error for the trial court to rely on his testimony given the totality of the evidence.

Finally, Harrison contends that Holley failed to meet the burden of proving possession of the disputed area, particularly for the years 1976 to 1986, at which point Holley purchased the Averiett property and transferred it to the trust. Harrison argues that Holley failed to prove adverse possession of the 0.404 acres by his ancestor in title, Ned Avei-iett. According to Harrison, the intent of his and Holley’s ancestors in title was to fence around the slough on their respective high banks to prevent fence posts from rotting and to keep cattle from hiding in the slough.

The trial court rejected David Harrison’s claim that a fence had marked the true boundary line in the slough, but that his father had moved the fence back on the high bank of the Harrison property to prevent rotting of the fence posts in the slough. The trial court noted that David’s memory appeared vague and that he was uncertain about many points during his testimony. We agree. Although there may be other trees in the area of the slough with fence wire, none were shown to be evidence of the original fence claimed by David. Even Harrison’s sister could not say when the fence alleged to have been on the property line was there or was moved to the north on the high bank. She recalled only that the fence had been there sometime during the 1950s and 1960s. The record provides a reasonable |i4basis for the trial court’s rejection of David Harrison’s claim about a fence along the true property line.

The trial court found the evidence established that a fence existed all around the north side of Holley’s acreage and the slough. Our review supports this finding. The evidence shows that a fence existed on the north side of the slough in excess of 30 years and that Ned Averiett raised animals on his property, including in the area of the slough within the enclosure of the north fence. As stated, what constitutes adverse possession depends on the nature of the property and must be determined on the facts of each case. Bennett v. Louisiana Pacific Corp., supra. The slough does not appear to be the type of land where much can be done to indicate possession. The record shows that from the date of purchase in 1986, Holley cleared the area, placed a culvert, and planted native specimens to preserve the slough’s natural state. In the years prior to 1986, the property was enclosed by the north fence as part of Ned Averiett’s land and his livestock was allowed to roam the slough. There was no boundary dispute between the owners of the contiguous properties until David Harrison erected a new fence through the slough.

Considering the deference owed the trial court’s factual determinations, we find that the evidence suffices to show possession by Holley and his ancestors in title of the disputed 0.404 acres within an enclosure for more than 30 years. We find no manifest error in the trial court’s judgment declaring the trust owner of the disputed property in accordance with the boundary as described by Messinger.

|ir,CONCLUSION

For these reasons, we affirm the trial court’s judgment at appellant’s cost.

AFFIRMED.

      . See La. C.E. art. 801(A), defining “statement” for purposes of hearsay.


author: TERRI F. LOVE, Judge.

text:
    TUBAN PETROLEUM, L.L.C. v. SIARC, INC., The Texas Company and Home Oil Co. L.L.C. And Motiva Enterprises, L.L.C.
    No. 2009-CA-0302.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 2009.
    Writ Denied June 5, 2009.

      Lawrence D. Wiedemann, Wiedemann & Wiedemann, New Orleans, LA, for Tuban Petroleum, L.L.C.
    Cheryl M. Kornick, K. Todd Wallace, Kelly B. Becker, Liskow & Lewis, New Orleans, LA, for Motiva Enterprises, L.L.C.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

| t This appeal arises from a set of leases and fuel supply contracts. The plaintiff alleged that the defendants conspired to create a monopoly and prevent the plaintiff from obtaining Texaco branded gasoline. The refinery defendant filed an exception of no cause of action, which the trial court denied, and granted the plaintiff fifteen days to amend its petition. We find that the trial court erred in denying the exception of no cause of action and reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Tuban Petroleum, L.L.C. (“Tuban”) entered into three leases with SIARC, Inc. (“SIARC”) in order to operate three convenience stores under the “Birdies” name. Tuban subsequently entered into three fuel supply contracts with SIARC for Texas Oil Company (“Texaco”) branded gasoline and the utilization of Texaco emblems and credit cards. Tuban alleges that it discovered the gasoline being supplied by SIARC was unbranded.

As a result, Tuban filed a petition for damages against SIARC; Texaco; Home Oil Co., L.L.C. (“Home”); and Motiva Enterprises, L.L.C. (“Motiva”) (collectively “Defendants”) alleging that the companies restrained Tuban’s trade by conspiring to withhold Texaco branded gasoline. Tuban averred that Home |2contracted with Moti-va and SIARC “for the purchase and distribution,” through SIARC, “of branded Texaco fuel from the Motiva Refinery in Norco, Louisiana.” Additionally, Tuban contended that Home and Texaco were “personally aware, on a day by day basis, of the operation of the three convenience stores and the fuel supply thereto, by defendant, SIARC, Inc.” Once Tuban became suspicious, it requested purchase orders from Motiva and SIARC, which were allegedly not produced. Following the accusation, SIARC ceased supplying fuel as required by the fuel supply contracts. Tu-ban then claims it was unable to obtain Texaco branded fuel because of the Defendants’ alleged control of the market. Tu-ban began to operate its stores using unbranded gasoline. As a result, Tuban sought $10,000,000 in compensatory and punitive damages.

Motiva and SIARC filed a dilatory exception of improper joinder; a declinatory exception of improper venue; and alternatively, a motion to transfer venue, which the trial court dismissed. Motiva then filed a peremptory exception of no cause of action asserting that the petition did not state a cause of action against it under La. R.S. 51:122 or 123. The trial court denied Motiva’s exception, but ordered Tuban fifteen days to amend its petition. Motiva appealed prior to the expiration of time period for Tuban to amend its petition as required by La. R.S. 5L134.

I ,/VO CAUSE OF ACTION

“The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. The burden of proving that no cause of action was enumerated in the petition is on the mover. City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. The peremptory exception of no cause of action is reviewed using the de novo standard of review because it involves a legal question, which is based on the sufficiency of the petition. Bernberg v. Strauss, 08-0488, p. 5 (La.App. 4 Cir. 12/3/08), 999 So.2d 1184, 1187. “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. C.C.P. art. 931. The well-pleaded factual allegations in the petition must be accepted as true. Bernberg, 08-0488, p. 5, 999 So.2d at 1187. “Based thereon, our job is to determine ‘whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.’ ” Id., quoting Everything on Wheels Subaru v. Subaru South, Inc., 616 So.2d 1234,1235 (La.1993).

Louisiana utilizes fact pleading, which means that the “mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. “In appraising the sufficiency of the petition we follow the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” City of New Orleans, 93-0690, p. 28, 640 So.2d at 253. The petition may be amended if “the grounds of the objection pleaded Lby the peremptory exception may be removed.” La. C.C.P. art. 934. However, if the petition cannot be amended to state a cause of action, the claims shall be dismissed. Id.

ANTITRUST

Tuban asserts, in its original petition, that Home had a contract with Motiva and SIARC “for the purchase and distribution, through SIARC, INC., of branded Texaco fuel from the Motiva refinery in Norco, Louisiana.” Secondly, Tuban contends that Motiva was

aware that SIARC, INC., had ceased delivering Texaco branded fuel to plaintiff because of their knowledge of purchase and delivery of fuel from the Moti-va facility to the SIARC outlets and by virtue of their inspection of plaintiffs stations and their knowledge of the cessation of credit card activity, and conspired with SIARC, INC., directly, or by inaction, with SIARC, INC. in carrying out the restrain of plaintiffs trade in violation of LSA R.S. 51:122.

Thirdly, in its opposition to the exception of no cause of action filed in the trial court, Tuban alleged that it “went directly to Motiva when SIARC and Home Oil refused to deliver Texaco branded fuel to it and requested Motiva to sell Texaco branded fuel directly to it, which request was summarily denied by Motiva.” Tuban states no facts to support these conclusions and failed to assert any new facts on appeal, either in brief or at oral argument to support its antitrust allegations.

La. R.S. 51:122

As to the restraint of trade, Louisiana law provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or 15commerce in this state is illegal.” La. R.S. 51:122(A). A party claiming a conspiracy “must include an allegation of damage to competition.” Abraham v. Richland Parish Hosp. Serv. Dist. 1-B, 41,141, p. 7 (La.App. 2 Cir. 8/23/06), 938 So.2d 1163, 1169. Additionally, Tuban must show that Motiva’s contracts result in an unreasonable restraint of trade. State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 01-0458, p. 4 (La.App. 3 Cir. 6/20/01), 790 So.2d 673, 678; Jefferson v. Chevron U.S.A. Inc., 97-2436, 98-0254 (La.App. 4 Cir. 5/20/98), 713 So.2d 785, 789. Conclu-sory statements of fact are insufficient to support the antitrust claim of conspiracy. State ex rel. Ieyoub, 01-0458, p. 5, 790 So.2d at 678.

The Louisiana Supreme Court has also looked to the federal jurisprudence for guidance because the federal and state antitrust statutes are virtually identical. See Louisiana Power and Light Co. v. United Gas Pipe Line Co., 493 So.2d 1149, 1151 (La.1986). The United States Supreme Court stated that “a formulaic recitation of the elements of a cause of action will not” suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). “Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.” Twombly, 550 U.S. at 556-57,127 S.Ct. 1955, 1966.

We find that Tuban’s petition states mere conclusions that are unsupported by factual allegations. Tuban concluded that Motiva entered into a contract, without identifying the alleged contract, with Home and SIARC and that Motiva knew SIARC stopped selling Tuban Texaco branded fuel "with no other factual support. Tuban also failed to indicate how it could amend its petition to comply |fiwith the fact pleading requirements of a La. R.S. 51:122 claim. Therefore, we find that Tuban’s action against Motiva pursuant to La. R.S. 51:122 should be dismissed.

R.S. 51:123

“No person shall monopolize, or attempt to monopolize, or combine, or conspire with any other person to monopolize any part of the trade or commerce within this state.” La. R.S. 51.T23. Tuban must show that Motiva “either (1) monopolized, (2) attempted to monopolize, or (3) conspired to monopolize any part of the trade or commerce within this state.” State ex rel. Ieyoub, 01-0458, p. 5, 790 So.2d at 678. Tuban’s pleadings “must state facts sufficient to show that” Motiva “possessed monopoly power in a clearly defined economic and geographic market and had the general purpose or intent to exercise or maintain that power.” Id., 01-0458, p. 6, 790 So.2d at 678-79. Failure to define the relevant market, including the product market and geographic market is fatal. Id., 01-0458, p. 6, 790 So.2d at 679. The “geographic market is the section of the country in which sellers of a particular product operate” and the “product market encompasses the differences among various commodities and the willingness of buyers to substitute one product for another.” Abraham, 41,141, pp. 7-8, 938 So.2d at 1169.

Tuban’s petition does not include specific facts demonstrating that Motiva possessed market power or excluded competition. The conelusory allegations that Motiva was aware that SIARC stopped providing Texaco branded fuel and that LMotiva entered into a contract with Home and SIARC are insufficient to show that Motiva possessed monopoly power. Further, Tuban did not define the relevant geographic market regarding Texaco branded fuel or product market. Again, Tuban failed to demonstrate its ability to amend the petition to cure these defects. Accordingly, we find that the trial court erred in denying Motiva’s exception of no cause of action and reverse.

DECREE

For the above mentioned reasons, we find that the trial court erred in denying Motiva’s exception of no cause of action and reverse. Accordingly, Motiva is dismissed with prejudice as a party defendant.

REVERSED.

      . La. R.S. 51:134. Exceptions to be filed in limine litis; disposition; answer; trial; preference
      In all cases under this Part the defendant shall file all exceptions in limine litis, or if necessary in the alternative, after the usual delays, and any additional delays as the court may allow; however, a plea to the jurisdiction is not waived by other pleas or exceptions filed. The judge shall take up such exceptions in preference over all other business and shall decide all questions raised in the exceptions within ten days after submission, and his ruling shall have the effect of res judicata, unless the party cast shall appeal within five days. The appeal is returnable within ten days to the appellate court which shall hear and determine the case within forty days. If the exceptions are overruled by final judgment of the appellate court, the defendant shall file his answer covering all questions of controverted fact within fifteen days, and the case may be set for trial on the application of either party, which case the judge shall consider in preference over all other business.

      . The federal statutes are virtually identical. 15 U.S.C. § 1 reads, in pertinent part:
      Trusts, etc., in restraint of trade illegal; penalty Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

      . 15 U.S.C. § 2 reads, in pertinent part:
      Monopolizing trade a felony; penalty Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.


text:
    STATE of Louisiana v. Eddie D. JACKSON, Jr.
    No. 2008-KA-0286.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 29, 2009.

      Keva Landrum-Johnson, District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| ]Defendant-Appellant Eddie Jackson, Jr. appeals his sentence and conviction. For the reasons that follow, we affirm the conviction, vacate the sentence and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

New Orleans Police Officer Lt. Joseph Williams testified that on March 30, 2005, Detective Dennis Bush received information from a reliable confidential informant that an individual named “Eddie” was involved in narcotics activity at the intersection of Desire and Law Streets. Detectives Dennis Bush, Mike Dalferes, Corey Robinson and Yussef Willoughby, in plain clothes and unmarked police units, conducted surveillance at that location. Lt. Williams and Detective Jody Laroche, also in plain clothes and manning an unmarked unit, served as enforcement officers to affect an arrest, and they positioned themselves just outside the surveillance area. Following surveillance, Detectives Dalferes and Bush got into Williams’ car and followed the defendant to 2518 Louisa Street. Detectives Dalferes and Bush went to the back of the house while Lt. Williams and Detective |2Laroche covered the front door of the house. Shortly thereafter, Detective Bush arrested the defendant.

Similarly, Detective Corey Robinson testified that he was assisting the surveillance of the defendant at Desire and Law Streets. Detective Robinson first observed the defendant about five to eight feet from the intersection talking with a person standing on the sidewalk. Detective Robinson witnessed the person hand the defendant what he believed to be currency. The defendant placed the currency in his pocket and then walked a short distance into a vacant lot where he picked up a brown paper bag. The defendant reached into the bag and retrieved an item, which he gave to the person, who then walked away. A few minutes later, Detective Robinson observed two other occasions during which people approached the defendant, and he repeated his previous behavior of receiving what Robinson believed to be currency, walking to the brown paper bag, removing something from it, and handing it to the person. Upon completion of the third transaction, it began to rain. The defendant gathered the brown paper bag and rode on a bicycle to a house in the 2500 block of Louisa Street. Detective Robinson followed the defendant and directed the takedown units to the location. When the defendant walked down the alley to the back of the house, Detective Robinson lost sight of him. The takedown units arrested the defendant shortly thereafter.

| ^Detectives Bush, Dalferes, Willoughby and Robinson made in-court identifications of the defendant as the person they arrested on March 30, 2005.

Joseph Roy Allen, a property clerk with the Orleans Parish Criminal District Court, testified that the evidence room of Criminal District Court was flooded by five feet of water from Hurricane Katrina. Corey Hall, a New Orleans Police Department crime lab technician and an expert in the analysis and identification of narcotics, testified that he tested the packets of substances retrieved from the defendant. The substances tested positive for marijuana and heroin.

On May 17, 2005, the State charged Eddie Jackson, Jr., with one count of possession with intent to distribute marijuana (count one) and one count of possession with intent to distribute heroin (count two) in violation of La. R.S. 40:966. The defendant entered a not guilty plea on May 31, 2005. On June 24, 2005, the trial court found probable cause and denied the Motion to Suppress the Evidence. On August 25, 2006, a twelve member jury found the defendant guilty as charged on both counts.

On November 16, 2006, defendant filed a Motion for Post Judgment Verdict of Acquittal and Motion for New Trial. The trial court denied the Motion for New Trial on April 26, 2007. On April 27, 2006, the trial court sentenced the defendant to ten years on count one and seven years on count two at hard labor without the benefit of probation, parole or suspension of sentence. That same day, the State filed a multiple bill charging the defendant as a fourth felony offender. A hearing on the multiple bill, however, has not been held. On November 16, 2007, the defendant filed an untimely Motion for Appeal, which the trial court granted.

\ .ERRORS PATENT

A review of the record for errors patent reveals four.

The defendant herein was convicted of one count of possession with intent to distribute marijuana and one count of possession with intent to distribute heroin. At the time of defendant’s conviction, under La. R.S. 40:966 B(3), the term of imprisonment for a conviction for possession with intent to distribute marijuana carried no restrictions as to parole, probation or suspension of sentence, but did provide for a mandatory fine of not more than $50,000.00. According to the sentencing transcript, the court did not deny the benefits of parole, probation or suspension of sentence. However, the minute entry of sentencing and the commitment form erroneously state that the marijuana sentence is to be served without the benefit of parole, probation and suspension of sentence. Generally, when there is a conflict between the minute entry and the trial transcript, the transcript controls. State v. Hall, 1999-2887 (La.App. 4 Cir. 10/4/00), 775 So.2d 52. Furthermore, the trial court erroneously failed to impose the mandatory fine.

Additionally, pursuant to the language of La. R.S. 40:966 B(l) at the time of defendant’s conviction, a conviction for possession with intent to distribute heroin was to be served without benefit of probation or suspension of sentence. In this case, the trial judge incorrectly imposed the defendant’s sentence without benefit of parole.

The last error patent involves the defendant’s Motion for Post Verdict Judgment of Acquittal, which he filed on November 16, 2006. The record indicates that the trial court sentenced the defendant on April 27, 2007, without ruling on the Motion for Post Verdict Judgment of Acquittal, in | .^contravention of La.C.Cr.P. art. 821. Article 821 provides that a defendant may move for a post verdict judgment of acquittal following the verdict, and that such motion must be made and disposed of before sentence. See also State v. Ashford, 2003-1691 (La.App. 4 Cir. 6/16/04), 878 So.2d 798.

ASSIGNMENT OF ERROR NUMBER 1

In the first assignment of error, the defendant argues that the trial court erred in denying his Motion to Suppress the Evidence because there was no reason to justify the detectives’ warrantless intrusion into the residence to seize the brown paper bag. Further, he claims the detectives created an exigent circumstance by deliberately waiting until he entered the protected area where a warrant was required thus precluding the State from asserting the inevitable discovery doctrine.

On trial of a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Jones, 97-2217 (La.App. 4 Cir. 2/24/99), 731 So.2d 389. A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the trial court had the opportunity to observe the witnesses and weigh the credibility of their testimony. Jones, supra.

It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. State v. Gates, 24,995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345. An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. Rodriguez v. Deen, 33,308 (La.App. 2 Cir. 5/10/00), 759 So.2d 1032. For an arrest, the law does not require that “reasonable cause to believe” be established by evidence |fisufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. See La.C.Cr.P. art. 213; State v. Weinberg, 364 So.2d 964 (La.1978). The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. Id.

Probable cause for an arrest must be judged by the probabilities and practical considerations of everyday life in which average people, and particularly average police officers, can be expected to act. State v. Franklin, 598 So.2d 1147 (La.App. 1 Cir.1992). The reputation of the area is an articulable fact upon which a police officer may legitimately rely. Id. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or a preponderance standard demands. State v. Green, 98-1021, p. 9 (La.App. 4 Cir. 12/22/99), 750 So.2d 343.

Additionally, a confidential informant may provide adequate information to establish probable cause for a warrantless arrest, as long as the basis for the informant’s knowledge and reliability are established when examined under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Corroboration of details of the informant’s tip by independent police investigation is applicable to totality of the circumstances analysis. Id.

|7In this case, Detective Bush testified that he received information from a reliable confidential informant that an individual forty-five to fifty years old named “Eddie” and wearing a black shirt was selling heroin at the intersection of Desire and Law Streets. Detectives Bush, Dal-feres and Jackson set up surveillance at the location within twenty-four hours of receiving the information. The detectives observed the defendant, who fit the description of “Eddie” provided by the confidential informant, engage in three transactions with unknown individuals. In each instance, the unknown individual briefly spoke with the defendant and handed him what appeared to be currency. The defendant walked a few feet into the vacant lot at the location, knelt down in the grass, retrieved an object from a brown paper bag and handed it to the individual, who in turn left the area. Thus, the record evi-denees that under the totality of the circumstances in this case, it was reasonable for the detectives to conclude that the defendant was selling narcotics, establishing probable cause.

Generally, searches may be conducted only pursuant to a warrant which has been issued by a judge on the basis of probable cause. U.S. Constitution, Amendment 4; Louisiana Constitution Article 1 § 5; C.Cr.P. Article 162; State v. Brady, 585 So.2d 524 (La.1991). Police generally need a warrant to enter a home, but “warrantless searches will be allowed when police have a reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant.” United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.2003). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a protected area that, without those exceptional circumstances, would be unlawful. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).

|hA recognized exception to the warrant requirement for entry into a building is a quick search of the premises to determine the presence of persons in need, the presence of a perpetrator who might still remain on the premises, or to prevent the destruction of evidence. Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). Likewise, an intrusion of a protected area is justified if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320 (La.1979). An example of exigent circumstances is the destruction of evidence. Hathaivay, supra.

In this case, once the detectives realized the defendant was in the house on Louisa Street, they had valid reason to believe that the contraband could be destroyed or hidden, constituting exigent circumstances. Accordingly, we find that the probable cause, coupled with the exigent circumstances, justified the detectives’ entry into the protected area without a search warrant under these particular facts and circumstances.

PRO SE ASSIGNMENT OF ERROR NUMBERS 1, 2 AND 3

By these assignments, the defendant argues that his defense was prejudiced by having to go to trial without a copy of the transcript of his preliminary hearing because he was unable to prove that the arresting officers gave perjured testimony at trial.

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Evidence is material, hence discoverable, if there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed to the defense. United States v. Bagley, 473 U.S. 667, 668, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). ^Evidence that the government has failed to disclose to the defendant is considered collectively in determining whether the materiality requirement of a Brady violation has been satisfied. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819.

In this case, other than the defendant’s argument that he was denied a copy of the preliminary hearing transcript, nothing in the record indicates that he requested the transcript or that the trial court refused to provide him a copy. Nevertheless, the record does contain the transcript, and comparing the transcript with the trial testimony indicates that this assignment of error lacks merit, as the officers who testified at the preliminary hearing did not testify at trial.

At the defendant’s June 24, 2006 preliminary hearing, only Detectives Dennis Bush and Yussef Willoughby testified; neither Detective Bush nor Detective Wil-loughby testified at trial because they were no longer employed by the New Orleans Police Department at that time. Instead, Detectives Joseph Williams, Corey Robinson and Michael Dalferes testified at trial. It stands to reason that if neither Bush nor Willoughby testified at trial, there was no impeachment evidence to be had. In order for the defendant to obtain relief, he must prove “substantial prejudice.” La.C.Cr.P. art. 298. Accordingly, the defendant has not identified any inconsistencies between testimony at the preliminary hearing and testimony at trial.

PRO SE ASSIGNMENT OF ERROR NUMBER 4

The defendant contends the trial court erred by not declaring a mistrial as a result of improper remarks made by the State in closing argument. The defendant maintains that the Assistant District Attorney: 1) referred to the | ^defendant as a drug dealer; 2) referenced the defendant’s failure to testify in his own defense; and 3) asked the jury if they would like to live next door to the defendant.

A review of the transcript of the State’s closing argument does not indicate that the State referenced the defendant’s failure to take the stand in his own defense, nor that the State make any comment concerning whether the jury would like to live next door to the defendant.

During closing argument, the Assistant District Attorney did state:

“Mr. Jackson sells drugs. He is a drug dealer, okay?”

In this case, however, defense counsel failed to object to the remark and therefore did not preserve the issue for appellate review. Even if the issue were preserved for appellate review, the trial court did not err by not declaring a mistrial or admonishing the jury to disregard the remark. In State v. Clark, 2001-2087 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, this Court set forth the standard for determining whether a prosecutor’s remarks are so prejudicial as to warrant a new trial:

The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 111022, 1036, citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments that referred to “smoke screen” tactics and defense as “commie pinkos” were deemed inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397. Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who have heard the evidence. Williams, supra; Ricard; supra.

2001-2087, p. 7, 828 So.2d at 1183 (emphasis added). In this case, the prosecutor’s statement was based on the evidence presented at trial, in that the evidence showed that at least one officer witnessed the defendant engage in three hand-to-hand drug transactions.

Moreover, the statement itself was not so inflammatory as to create undue prejudice to the defendant by contributing to the verdict. For instance, in Clark, supra, this Court found that the prosecutor’s comments that the amount of drugs found in the defendant’s possession represented two thousand needles sticking out of his arm, and that if not for the officers involved in the case, drugs would come “pouring” into the city’s streets, did not warrant a new trial. Likewise, in State v. Harry, 2001-2336 (La.App. 4 Cir. 6/26/02), 823 So.2d 987, this Court found although the prosecutor’s statement that the defendant was the type of person to approach the jurors’ children and try to sell them drugs was improper, it did not contribute to the verdict and thus did not entitle the defendant to a new trial.

| ^Considering the foregoing, we cannot say that that the prosecutor’s statement in this case was inflammatory. Even if the statement exceeded the scope of La. C.Cr.P. art. 774, it was not so prejudicial as to warrant the granting of a mistrial pursuant to La.C.Cr.P. art. 771. This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction is affirmed. The defendant’s sentence is vacated and the matter is remanded for ruling on the Motion for Post Verdict Judgment of Acquittal, imposition of a fine as to the marijuana conviction, removal of the prohibition of parole on the heroin sentence, and correction of the minute entry and commitment form.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

      . Lt. Williams informed the court that Detectives Bush, Laroche and Willoughby are no longer with the New Orleans Police Department.

      . Detective Michael Dalferes took the stand and informed the court that he had also participated in the defendant's arrest as an undercover police unit on March 30, 2005, conducting surveillance of the defendant in the area of Law and Desire Streets. Detective Dalferes along rode with Detective Bush to Louisa Street as directed by Det. Corey Robinson. Detectives Dalferes and Bush went to the back of the house and knocked on the door. The defendant opened the door, panicked and dropped the brown paper bag to his feet. Detective Dalferes inspected the contents of the bag, which he recognized as packets of heroin and marijuana, arrested the defendant, searched him and retrieved $40.00. The evidence was tagged and transported to central lockup.

      . Some of the currency evidence has been remediated; however, some of the currency is unavailable to date.

      . La.C.Cr.P. art. 213 provides in pertinent part:
      A peace officer may, without a warrant, arrest a person when:
      (1)The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or in close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer ...

      . La.C.Cr.P. art. 770 provides in part:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the iurv:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770;

      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

        .See also State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716, (finding that the prosecutor’s statements that the jury should no longer tolerate or excuse killings was not a plebiscite on crime); State v. Deboue, 552 So.2d 355, 370 (La.1989)(finding it improper but harmless when the prosecutor stated that the "community is waiting for you to tell them what to do” and told the jurors that the defendants would merely laugh if given life sentences); State v. Mims, 97-1500, p. 51 (La.App. 4 Cir. 6/21/00), 769 So.2d 44, 76 (finding that a new trial was not warranted where the prosecutor referred to them as purveyors of drugs and "soldiers of death”); State v. Johnson, 2000-0680, p.14 (La.App. 1 Cir 12/22/00), 775 So.2d 670, 680 (finding improper but harmless the prosecutor's exhortation to the jury to "do the right thing” as citizens of Baton Rouge).

      . La.C.Cr.P. art. 774 provides;
      The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.

      . La.C.Cr.P. art. 771 states;
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.