author: BROWN, Chief Judge.

text:
    Faye HUEY, Individually and as Natural Tutrix of the Minor, LaShaun Latrice Thompson, Plaintiff-Appellant v. CALDWELL PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 47,704-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Lavalle Bernard Salomon, Monroe, LA, for Appellant.
    Jon Keith Guice, Baton Rouge, LA, Linda Kay Ewbank, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   BROWN, Chief Judge.

| plaintiff, Faye Huey, individually and as tutrix of the minor LaShaun Latrice Thompson, filed suit against defendant, Caldwell Parish School Board (“CPSB”), seeking damages arising out of her 16-year-old daughter’s sexual contact off campus with an adult male non-student. Plaintiff now appeals from a trial court judgment granting defendant’s motion for summary judgment and dismissing her claims. For the reasons set forth herein, we AFFIRM.

Facts and Procedural History

In Spring 2006, LaShaun was enrolled at Caldwell Parish High School (“CHS”) and rode to and from school on a bus driven by W.L. Rush, who had been employed as a bus driver by CPSB for 36 years. Plaintiff alleged that on three occasions, March 12, 2006, April 4, 2006, and May 3, 2006, La-Shaun was allowed to disembark from the bus before reaching school so that she could attend a medical appointment. Defendant notes that March 12, 2006, was a Saturday. Also, the forged note from La-Shaun was dated May 4, 2006, not May 3, 2006, as one of the days she was dropped off for an alleged doctor’s appointment.

There were, however, no doctor’s appointments. LaShaun admitted to intentionally lying to Rush in order to meet with Gary Thomas, a 28-year-old male with a criminal history. Each time, after Rush dropped her off at the health unit or hospital, LaShaun was picked up by Thomas, who drove |2them to his sister’s apartment where they had intercourse. After these rendezvous, Thomas would drop La-Shaun off at school, usually around lunch. In April 2006, LaShaun became aware that she was pregnant with Thomas’s child and was made to reveal the relationship with Thomas to her mother, who then contacted the police. On July 30, 2007, Thomas pled guilty to violating La. R.S. 14:80, felony carnal knowledge of a juvenile. Thomas received a sentence of ten years, with three years suspended and five years of supervised probation.

It is not disputed that LaShaun knowingly contrived false excuses in order to convince Rush to allow her to exit the bus before arriving at school in the morning. On one occasion in May 2006, LaShaun forged a note from plaintiff asking that she be let off at the local health unit for a doctor’s appointment. In April 2006, she asked to be let off for another doctor’s appointment, but Rush asked to speak with her mother. LaShaun used a cellular phone to call a friend who pretended to be her mother and gave permission for her to be dropped off for the appointment. As stated in the record, on both of these occasions, LaShaun was already pregnant.

LaShaun testified that she met Thomas around the beginning of February 2006. The only authority figure who knew about Thomas was plaintiff. Prior to the dates subject to this lawsuit, plaintiff learned from others in town that Thomas was attempting to pursue LaShaun whenever she walked home from an after-school tutoring program. Plaintiff confronted Thomas, along with his mother, demanding that he stay away from LaShaun due to her age. Following her confrontation with Thomas, liiShe pulled LaShaun out of the after-school program. Plaintiff did not inform anyone at the school of the issue, reasoning: “My deal was if I told him in front of his mom and everything, you know, that should have settled it.”

Additionally, plaintiff did not disclose to anyone at CHS that LaShaun had to leave a previous school due to inappropriate sexual activity with another student on school grounds. Plaintiff testified that she felt this information was “privileged” and that “I told them what I thought they needed to know about, her attention deficit and her disruptive behavior and those kinds of things.”

On March 7, 2007, plaintiff filed suit against CPSB. Specifically, she argued that Rush breached the duty of care owed to LaShaun by dropping her off at a location other than her home or school. Plaintiff also alleged that there was in place a school policy mandating that before a student is allowed to get off a bus at a stop other than her own, the school’s principal must confirm written permission from a parent or guardian. Had this policy not been violated, plaintiff claimed that La-Shaun would not have had sexual contact with Thomas.

Defendant filed a motion for summary judgment on June 25, 2010, arguing that there was no formal policy governing bus activity at the time of these events, that the risk of the harm that occurred was not foreseeable, and that Rush substantially complied with school board policies, even if there was an alleged technical violation.

On February 7, 2012, the trial court rendered written reasons for | judgment, and on March 7, 2012, the court signed a judgment granting defendant’s motion. The court found that “there was no written policy governing students exiting a school bus at the time this event occurred.” The trial court also found that plaintiff could not prove that the injuries suffered by LaShaun were foreseeable or that CPSB’s conduct was the cause of her damages. The court found it noteworthy that the relationship between Thomas and La-Shaun began before the first incident involving the school bus and that LaShaun knowingly planned to deceive Rush on each occasion. Plaintiff, thereafter, filed this timely appeal.

Discussion

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.06/08/09), 13 So.3d 1209, writ denied, 09-1491 (La.10/02/09), 18 So.3d 122. Summary judgments are favored under Louisiana law; however, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. La. C.C.P. 966(A)(2); Id.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P art. 966(B). A | ¡¡genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co., supra.

Louisiana courts have adopted a duty-risk analysis in determining whether liability for negligence exists under the facts of a particular case. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.04/03/02), 816 So.2d 270. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to an appropriate standard of care; (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries, and (5) actual damages. La. C.C. art. 2315; Id. at 275-76; Lowery v. Wal-Mart Stores, Inc., 42,465 (La.App.2d Cir.09/19/07), 965 So.2d 980. The plaintiffs failure to prove any of the elements of the duty-risk analysis results in a determination of no liability. Carroll v. State Farm Fire & Cas. Co., 31,652 (La.App.2d Cir.05/05/99), 732 So.2d 1263.

The duty of a school board to its students is well settled. A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La. C.C. art. 2320; Wallmuth v. Rapides Parish School Bd., 01-1779 (La.04/03/02), 813 So.2d 341; Adams v. Caddo Parish School Bd., 25,370 (La.App.2d Cir.01/19/94), 631 So.2d 70, writ denied, 94-684 (La.04/29/94), 637 So.2d 466. However, a school board is not the insurer of the safety of children, and constant supervision of each student is neither possible or required. S.J. v. Lafayette Parish School Bd., 09-2195 (La.07/06/10), 41 So.3d 1119; BL v. Caddo Parish School Bd., 46,557 (La.App.2d Cir.09/21/11), 73 So.3d 458. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Wallmuth, supra. In essence, when the school accepts custody, it stands in the shoes of the parent regarding the authority to control the student while there; in turn, it must also assume the responsibility to supervise. Frederick v. Vermilion Parish School Bd., 00-382 (La.App. 3d Cir.10/18/00), 772 So.2d 208, writ denied, 00-3171 (La.01/12/01), 781 So.2d 561.

The liability of the school board and its employees for injuries to students exists only when the school board has actual custody of the students entrusted to their care. BL, supra at 460. In this case, LaShaun was aboard a CPSB school bus on her way to school, in the care of defendant, when she was allowed to exit at the health unit or hospital.

The trial court correctly identified foreseeability as key to the negligence analysis for determining the liability of CPSB for the off-campus criminal actions of Thomas. Most important, in this case, is whether the scope of the duty encompassed the risk of the harm which occurred. This court has' laid out the proper framework for examining whether a risk falls within the scope of a duty owed:

|7The scope of protection (legal cause) inquiry is a question that determines whether the particular risk falls within the scope of that duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. The scope of protection inquiry asks whether the enunciated rules extends to or is intended to protect this plaintiff from this type of harm arising in this manner. In determining the limitation to be placed on liability for defendant’s substandard conduct, the proper inquiry is often how easily the risk of injury to the plaintiff can be associated with the duty sought to be enforced. The extent of the protection owed to a particular plaintiff is determined on a case by case basis to avoid making a defendant an insurer of all persons against all harms. The fact that a precise manner of harm is not anticipated does not destroy the scope of the duty when the general manner of the harm is foreseeable. (Internal citations omitted).

Thomas v. Sisters of Charity of the Incarnate Word, 38,170 (La.App 2d Cir. 03/19/04), 870 So.2d 390, 398, writ denied, 04-1403 (La.09/24/04), 882 So.2d 1132. Or as colloquially stated in the dissent:

Nevertheless, because substandard conduct does not render the actor liable for all consequences spiraling outward until the end of time, the concept of legal cause [scope of the duty] in the duty-risk analysis is necessary to cut off liability at some point. Roberts v. Benoit, 605 So.2d 1032, 1052 (La.1991). Legal cause considers whether “too much else has intervened-time, space, people, and bizarreness.” Id. at 1058. A risk may be found not within the scope of a duty where the circumstances of that injury to the plaintiff could not reasonably be foreseen or anticipated, because there was no ease of association between the risk of that injury and the legal duty. Lazard v. Foti, 02-2888 (La.10/21/03), 859 So.2d 656, 661.

Caraway, J., dissenting, Thomas, 870 So.2d at 400-401.

Defendant notes that similar to the facts in this case, in J.M v. Acadia Parish School Bd., 08-1377 (La.App. 3d Cir.04/01/09), 7 So.3d 150, the Third Circuit addressed a case in which a high school student was allowed to disembark from a school bus before reaching school without written permission, in violation of school policy. After leaving the bus, the student met with her 18-year-old boyfriend, engaged in sexual relations with him, |8and then hid from her mother for several days. While the court acknowledged that the bus driver breached her duty, it also held that the risk of the ensuing events was not foreseeable or easily associated with the breach. Id.

Plaintiff, while not addressing the implications of the holding in J.M., supra, urges the application of Agnor v. Caddo Parish School Bd., 41,224 (La.App.2d Cir.08/01/06), 936 So.2d 865, in which this court affirmed a trial court judgment finding the defendant school board 75% liable for injuries sustained by a third grader who slipped on a wet school bathroom floor and stabbed herself in the eye with a pencil as she fell to the ground.

The Louisiana Supreme Court, however, has cautioned that the extent of the duty of reasonable supervision depends on the age the student. S.J., 41 So.3d at 1127. Other cases show that the age of the student and other attendant circumstances do affect foreseeability and thus also the scope of the duty of reasonable supervision. In Frederick, supra, a high school failed to provide proper notice that band practice had been cancelled causing a student to miss her bus home. After attempting to contact her parents, the student instead took a ride with four male students, who then drove to a remote sugar cane field and violently raped her. The Third Circuit affirmed a grant of summary judgment in favor of the school board, holding that the student’s age, the lack of evidence to the student and the |9school that a danger existed, and the school board’s lack of control over students while off campus were pivotal factors in finding that the school’s action was not the legal cause of the injuries suffered. Id.

In Williams v. Orleans Parish School Bd., 07-0917 (La.App. 4th Cir.01/23/08), 2008 WL 399353, the Fourth Circuit affirmed a trial court judgment finding no liability on the part of the defendant school board, where a high school student was stabbed by a classmate after leaving campus without authorization during the school day with group of around 25 other students. The school principal and school security officer ordered the students not to leave, but took no action when the students did not heed their directions. While out of school, the victimized student was fatally stabbed by another student. The court held that this case was similar to Frederick, supra, because the injury was not foreseeable to the school or the teenaged student who joined the walk-out. Id.

In the instant case, LaShaun was 16 years old when the incidents began; she would turn 17 at the end of May 2006. She started seeing Thomas in February 2006 and was pregnant by April 2006. The two incidents involving the school bus occurred in April and May 2006. In each case the bus driver inquired about La-Shaun’s reasons for getting off at the health unit and doctor’s office. LaShaun gave the driver a forged permission slip and called a friend on her cell phone who pretended to be LaShaun’s mother. She admits to contriving the excuses in order to meet Thomas. It is difficult to locate any evidence in the record showing that the risk of this sort of injury was foreseeable to CPSB. LaShaun admitted that |inno one at CHS, other than a couple of select friends, knew about her actions with Thomas. LaShaun’s mother, who knew of the relationship with Thomas, did not inform the school of her daughter’s improper friendship with Thomas or her concerns about the relationship.

Plaintiff reiterates that LaShaun could not consent to the sexual activity with Thomas, pursuant to La. R.S. 14:80. However, this does not mean that LaShaun failed to understand that her actions in skipping school and clandestinely meeting with Thomas put her in danger. LaShaun knew that she was not supposed to get on or off of the bus anywhere other than at home or school. She was, according to her testimony, a capable student while at CHS. LaShaun devised a plan to meet Thomas and went with him to his sister’s apartment on multiple occasions. As a 16-year-old, she was aware of the nature of her actions and that her mother and school authorities would not approve.

Perhaps more importantly, there is no evidence or analysis in the record that anyone at the school would have been able to foresee this type of injury. Nor was it foreseeable to Rush when he dropped her off at the health unit or doctor’s office that she would instead wait until he left and then get into a car with Thomas and leave. Plaintiffs argument that the existence of In the alleged policy means that any injury suffered while not at school is the fault of the school board is without merit. Therefore, defendant was not the legal cause of LaShaun’s injuries.

Substandard conduct does not render the actor liable for all consequences spiraling outward until the end of time; the concept of legal cause is necessary to cut off liability at some point. In this case, too much has intervened, and this risk is not within the scope of defendant’s duty. We hold that the trial court’s grant of summary judgment was not in error.

Conclusion

For reasons set forth above, the judgment of the trial court is affirmed. Cost of appeal of are assessed against plaintiff.

AFFIRMED.

      . While plaintiff is not LaShaun's biological mother, she has raised LaShaun since birth under a temporary consent custody order. We note that despite LaShaun being a minor when these sexual crimes occurred, plaintiff and defendant as well as the trial court below reference her by name. La. R.S. 46:1844(W)(l)(a) provides that, "[t]he confidentiality of the identity of the victim who at the time of the commission of the offense is a minor under eighteen years of age or the victim of a sex offense may be waived by the victim.”

      . The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him or her to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidential burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
      The adverse party may not rest on the mere allegations or denials of his pleadings in response to a properly made and supported motion for summary judgment, rather, his response, by affidavits or otherwise, must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment shall be rendered against him, if appropriate. La. C.C.P. art. 967(B).

      . In that case, the supreme court, after previously reversing a grant of summary judgment, reinstated a trial court judgment, holding that the defendant school board was not liable for a rape suffered by a student who walked home following an after-school disciplinary program. The school and victim failed to notify the parent of the student's involvement in the program. The court held that the trial court did not err in finding that the student intended to walk home and the school satisfied the duty of reasonable supervision by providing access to a late bus and a telephone to contact a family member.

      . Prior to the incidents subject to this suit, Rush informed plaintiff that LaShaun had missed the bus once or twice in a week. Plaintiff discovered that LaShaun had instead taken a ride with some other students in her neighborhood. Upon learning this, plaintiff contacted the school board, which made improvements to her driveway so the school bus could pick LaShaun up at her door rather than at the end of the drive.

      . LaShaun graduated with an approximate 3.0 grade point average and attends Delta Community College in Monroe, LA.

      . Compare, D.C. v. St. Landry Parish School Bd., 00-01304 (La.App.3d Cir.03/07/01), 802 So.2d 19, writ denied, 01-0981 (La.05/25/01), 793 So.2d 169. (Affirmed a judgment finding the defendant school board was liable where a 12-year-old middle school student was raped while walking home through a part of town known to be dangerous and frequented by criminals.) The student violated the school uniform policy and was directed to obtain the proper attire from her home. The school secretary allowed the student to check herself out of school, in clear violation of the school’s policy, and walk home where, along the way, she was sexually assaulted. Important to the court’s rationale was the young age of the student, the fact that the school official directly violated the school's own policy and that the danger of the neighborhood through which she had to walk was well known. Id.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Daniel Dillon LOCKWOOD, Plaintiff-Appellant v. ALLSTATE INSURANCE COMPANY, Debra Albritton, Scott Albritton and American International Insurance Co., Defendants-Appellees.
    No. 47,746-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    Street & Street, Monroe, LA, by C. Daniel Street, for Appellant.
    Mouledoux, Bland, Legrand, & Brackett, L.L.C., New Orleans, LA, by Mark E. Hanna, for Appellee American Int’l Ins. Co.
    Charles B. Racer, Monroe, LA, for Ap-pellee Scott Albritton.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

| ,Daniel Lockwood appeals a summary judgment that dismissed his auto liability claim against American International Insurance Company (“AIIC”). For the reasons expressed, we affirm.

Factual and Procedural Background

Shortly before 1 a.m. on November 29, 2009, Lockwood was riding as a passenger in a Chevy Impala driven by 17-year-old Korey Albritton and owned by Korey’s mother, Debra Albritton. Korey lost control, ran off the road and crashed in a ditch, badly injuring Lockwood. Since Ko-rey was a minor, Lockwood filed this suit against his divorced parents, Debra and Scott Albritton, who had joint custody of Korey, and against Debra’s liability carrier, Allstate. Allstate ultimately settled for policy limits and was, with Debra, dismissed.

Through discovery, Lockwood learned that Korey’s father, Scott, had an auto policy with AIIC, which he joined as defendant. AIIC immediately answered that Scott’s policy had expired at 12:01 on November 29, 2009, less than an hour before the accident occurred, because Scott had failed to pay his renewal premium.

AIIC moved for summary judgment on this basis. It argued, in essence, that the statutory rules for expiration of a policy, and not for cancellation, applied. In support, it attached the affidavit of its regulatory analyst, Michael Alexander, stating that AIIC had issued Scott a policy for the period May 29 to November 29, 2009, but that the last monthly premium payment ever received from him, an EFT on August 28, 2009, was denied for insufficient funds, and the company never received any further payment |2despite monthly premium notices. Nevertheless, AIIC had tendered Scott a' renewal offer on September 30, 2009, to activate coverage for the period November 29, 2009, to May 29, 2010, even though his current premium was unpaid; the company also sent him an invoice on December 3, 2009, advising that coverage had expired, but offering to reinstate coverage retroactively if he would send the stated premium by December 22. However, AIIC never received any payment or response, so in the company’s view, Scott failed to renew his policy and had no coverage for the accident. AIIC also attached a copy of Scott’s automobile policy.

Lockwood filed a cross-motion for partial summary judgment, conceding that AIIC complied with the nonrenewal provisions of Title 22, but arguing that because it issued a new policy, it then had to comply with the cancellation provisions, which it failed to do. In support, he attached the affidavit of a private investigator in Baton Rouge, Thomas J. Cashio, who stated that he searched the records of OMV and found a certificate issued by AIIC to Scott for a policy effective November 29, 2009; he called this “an apparent renewal of the same policy which had expired[.]” Attached to the affidavit was an uncertified copy of the OMV insurance record.

AIIC objected that the affidavit did not show sufficient personal knowledge and the insurance record was uncertified; hence they could not be considered under La. C.C.P. art. 967.

After a hearing in November 2011, the district court denied both sides’ motions for summary judgment.

|sIn April 2012, AIIC re-urged its motion, this time attaching the deposition of its compliance director, Jeannie McLar-non. She testified that she signed a certification of “the renewal offer” made by AIIC to Scott for the period November 29, 2009, to May 29, 2010, but that it would take effect only if Scott complied with it. She admitted not knowing anything about OMV’s reporting requirements. AIIC argued that her use of the word “effective” was purely conditional, if Scott paid the premium; he did not, so there was no policy.

After a hearing in May 2012, the district court granted AIIC’s motion and denied Lockwood’s. Lockwood now appeals.

Discussion

By two assignments of error, Lockwood urges the district court erred in granting AIIC’s motion for summary judgment and denying his own. He frames the issue as whether “this insurer can rely on compliance with nonrenewal provisions after actually renewing the policy or, rather, would it then have to comply with cancellation provisions.” He contends that AIIC (1) actually issued and delivered a renewal policy to Scott, (2) reported to the state that it had done so, and (3) sent Scott proof of insurance cards. In short, AIIC did “everything required to renew the policy” and cannot now argue that it was not renewed. Thus AIIC was required to cancel the policy, but it did not follow the cancellation procedure, particularly the 10-day notice to cancel a binder required by La. R.S. 22:1266 D(l). Payne v. Old Hickory Ins. Co., 532 So.2d 956 (La.App. 5 Cir.1988), writ denied, 536 So.2d 1241 (1989); Henderson v. GEICO Gen’l Ins. Co., 36,696 (La.App. 2 Cir. 1/29/03), 837 So.2d 736; Taylor v. MFA Mutual Ins. Co., 322 So.2d 842 (La.App. 2 Cir.1975), aff'd, 334 So.2d 402 (1976). He concludes that this court should reverse the judgment and render partial summary judgment declaring coverage under AIIC’s policy.

AIIC responds that it only offered to renew the policy but Scott never accepted the offer. Citing the “Automatic Termination” clause of the policy, it argues that after 12:01 a.m. on November 29, 2009, there was no policy to cancel. When a policy expires from the running of its term, the statutory requirements for cancellation do not apply. Dominique v. Rodriguez, 06-578 (La.App. 5 Cir. 11/28/06), 947 So.2d 63. Issuing provisional ID cards in such circumstances does not constitute a renewal of the policy. Adamson v. State Farm, 95-2450 (La.App. 1 Cir. 6/28/96), 676 So.2d 227. AIIC also argues that all the cases cited by Lockwood involved true cancellations, not nonrenewals, and do not apply. Finally, AIIC argues that Cashio’s affidavit did not evidence any personal knowledge of how the OMV record was created, and the document itself is uncerti-fied; without these items, Lockwood has no admissible summary judgment evidence to rebut AIIC’s showing. It concludes the judgment should be affirmed.

Cancellation of an automobile policy is regulated by La. R.S. 22:1266, which provides in pertinent part, with emphasis added:

B. (1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(a) Nonpayment of premium.
|fi(2) This Subsection shall not apply to nonrenewal or to any policy or coverage which has been in effect less than sixty days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy. * * *
D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given. * * * This Subsection shall not apply to nonrenewal.

The emphasized and repeated passage, “This Subsection shall not apply to nonre-newal,” makes it clear that the provisions for cancellation, especially the 10-day notice with reasons for cancellation, do not apply to renewal of a policy. Adamson v. State Farm, supra. When a policy expires from the running of its term, it is not being disrupted but rather is “dying a natural death.” Id.; Green v. McCollum, 535 So.2d 8, 9 (La.App. 4 Cir.1988), writ denied, 536 So.2d 1222 (1989).

The nonrenewal of an automobile policy is regulated by another portion of R.S. 22:1266, which provides:

E. (1) No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This Subsection shall not apply:
(a) If the insurer has manifested its willingness to renew.
(b) In case of nonpayment of premium; however, notwithstanding the failure of an insurer to comply with this Subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.
| «(c) If the insurer or a company within the same group as the insurer has offered to issue a renewal policy to the named insured.
(d) If the named insured has provided written notification to the insurer of the insured’s intention not to renew the policy-

Subsection E makes clear that an insured is presumed to know the term of the insurance policy and has no right to expect that the policy will continue in effect until he decides to pay another premium. Adamson v. State Farm, supra; Green v. McCollum, supra.

The summary judgment evidence shows that AIIC tendered a renewal offer on September 30, 2009; if Scott never paid the renewal premium, no further notice was required, under R.S. 22:1266 E(l)(b). No record evidence contradicts Mr. Alexander’s statement in deposition that Scott never paid the renewal premium. Moreover, the record also shows that after the policy expired, AIIC offered to reinstate the lapsed policy upon payment of the stated premium. Again, the record contains nothing to show that Scott utilized this second offer. The record fully supports the district court’s finding that the AIIC policy expired before this accident occurred.

Lockwood argues that contrary to this showing, AIIC actually renewed the policy by issuing and delivering a copy of it to Scott, by reporting to the state that it had done so, and by sending Scott proof of insurance cards. The record, however, does not support Lockwood’s interpretation of AIIC’s actions. Scott’s automobile policy contains the following “Automatic Termination” clause:

If we offer to renew or continue your policy and you or your representative do not accept by making timely payment of |7the premium due, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer.

The renewal notice stated, “Effective Date of Change: 11/29/09,” and “We look forward to continuing your automobile coverage at this renewal.” The billing invoice stated, “This is your renewal bill” and “Please note: the payment must be received by 12:01 am (one minute after midnight) Standard Time on the Payment due date to avoid cancellation.” By plain reading, these documents mean that the renewal policy would be issued only if Scott paid the premium. Ms. McLarnon confirmed that the policy would be in effect for the next six months “had the offer been completed.” In the absence of evidence that Scott ever made a renewal payment (in fact, he was in arrears for the policy that ended on November 29, 2009), we cannot find that AIIC renewed the policy.

The fact that AIIC may have issued provisional ID cards to Scott does not alter the fact that he failed to renew the policy and that no coverage existed after 12:01 a.m. on November 29. Adamson v. State Farm, supra. Further, we cannot consider the allegation that AIIC may have provisionally notified OMV of a renewal, perhaps for the convenience of the insured. Supporting and opposing affidavits must be “made on personal knowledge” and all papers or parts thereof referred to in the affidavit must have “sworn or certified copies attached.” La. C.C.P. art. 967 A. The affidavit of the private investigator did not establish personal knowledge of OMV’s reporting practices and thus was not admissible. Shelter Ins. Co. v. Broan-Nutone LLC, 39,625 (La.App. 2 Cir. 5/11/05), 902 So.2d 1146, writ hdenied, 2005-1488 (La.12/16/05), 917 So.2d 1112. The “insurance record” was neither certified nor verified by a person who could authenticate it, and was thus inadmissible. Cheatham v. Luberski Inc., 43,603 (La.App. 2 Cir. 9/17/08), 996 So.2d 373; Person v. 2434 St. Charles Ave. Condominium Ass’n, 2011-1097 (La.App. 4 Cir. 3/7/12), 88 So.3d 679. Even taken at face value, the insurance record shows that the renewed policy “expires 00/00/0000,” a date obviously inconsistent with the six-month renewal offer. The district court did not err in finding that the AIIC policy expired before the accident occurred.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiff, Daniel Dillon Lockwood.

AFFIRMED.


author: LOLLEY, J.

text:
    Brandi Hopkins GOUTREAUX, Plaintiff-Appellee v. Jeremiah GOUTREAUX, Defendant-Appellant.
    No. 47,769-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Jonathan F. Raburn, Shreveport, LA, for Appellant.
    Ronald Miciotto, Shreveport, LA, for Appellee.
    Before WILLIAMS, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

|, Jeremiah Goutreaux appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, making a foreign judgment executory in favor of his former spouse, Brandi Goutreaux. For the following reasons, we affirm the trial court’s judgment.

Facts

At the time Jeremiah Goutreaux and Brandi Goutreaux divorced, they were both domiciled in Acadia Parish, Louisiana, which falls under the jurisdiction of the Fifteenth Judicial District Court, Parish of Acadia, State of Louisiana (the “Fifteenth JDC”). In that court, the following judgments were rendered: a Stipulated Judgment and Joint Custody Implementation Plan on December 16, 2009, and an Amended Stipulated Judgment on August 16, 2010.

At some point in time, Brandi, with the couple’s child, moved to Caddo Parish. After having lived in Caddo Parish for at least six months, Brandi filed her Petition to Make Foreign Judgment Executory and Petition for Increase in Child Support, and For Attorney Fees in the First Judicial District Court, Parish of Caddo, State of Louisiana (the “First JDC”). Jeremiah was served, and he filed an objection. A hearing was set and then continued by the trial court. However, the continuance and resetting inadvertently went unnoticed by the trial court and Brandi’s attorney, and the hearing on her petition went forward without Jeremiah’s attorney present. At that hearing, Brandi reserved her right to seek an increase in child support, but gave testimony as to why she sought an amendment in the |;>drop-off time for Jeremiah’s visitation with their child. The trial court considered her testimony and entered judgment in her favor.

When the continued hearing date subsequently arrived, the parties appeared again. The trial court noted its mistake as to overlooking the continued hearing date and heard the parties’ arguments regarding Brandi’s petition to make the child support judgment executory in the First JDC. Brandi requested the trial court adopt the findings made from the first hearing, with no objection by Jeremiah. Following the continued hearing, judgment was entered in favor of Brandi making the Fifteenth JDC judgment executory and revising the exchange time of the child. Jeremiah now appeals.

Discussion

On appeal, Jeremiah raises only one assignment of error, arguing that the trial court erred in making the judgment of the Fifteenth JDC executory in the First JDC. Specifically, Jeremiah argues it was error to rely on the holding in McIntyre v. Becker, 2005-0257 (La.App. 4th Cir.08/03/05), 918 So.2d 40, over the specific dictate of La. C.C.P. art. 2786(A), which states, in pertinent part, “A support order rendered by a court of this state may be registered for modification in another court of this state if all parties to the order are no longer domiciled in the parish of the rendering court.”

Here, the trial court was not in error in relying on McIntyre, supra, in making the judgment of the Fifteenth JDC executory in the First JDC. The facts in McIntyre are essentially identical to the facts at hand-an ex-wife sought to have a Calcasieu Parish judgment made executory in Orleans ^Parish, where she had relocated, for purposes of modifying a child support order. The ex-husband objected, but the trial court allowed the judgment to be made executory. In the case sub judice, the trial court specifically noted the following from McIntyre:

We find ... that [the defendant’s] reb-anee on the provisions set forth in La. C.C.P. arts. 2785, et seq., for intrastate registration of support orders for modification and enforcement is misplaced. Those provisions are designed to address the situation in which the rendering court is divested of jurisdiction because the parties no longer reside there, and the registering court is vested with jurisdiction. They do not, as [the defendant] suggests, establish exclusive jurisdiction in the rendering court when, as here, one party still resides there.

Id. at 45. The trial court’s reliance on McIntyre for these reasons was not in error and we agree with the trial court regarding the reasoning by the Fourth Circuit. Further, we point to these observations by the McIntyre court:

If registered and confirmed, a proceeding to modify the support order must be brought in the parish of the registering court {except the parish of domicile of the person awarded support is always allowed). The prior court is divested of jurisdiction to modify the support order. La. C.C.P. art. 2789(B). (Emphasis added).

Id.

Furthermore, Brandi correctly asserts that venue is proper in the First JDC under La. C.C.P. art. 74.2(D), which states, “A proceeding to register a child support, medical support, and income assignment order, or any such order issued by a court of this state for modification, may be brought in the parish where the person awarded support is domiciled.” Considering that Brandi is “the person awarded support,” and she currently is domiciled in Caddo Parish, the proceeding to modify her support order is proper in that parish, i.e., the First JDC. The trial court did not err in its judgment making |4the Fifteenth JDC judgment executory in the First JDC; therefore, Jeremiah’s assignment of error is without merit.

Conclusion

For the foregoing reasons, the judgment in favor of Brandi Hopkins Goutreaux is affirmed, with costs of this appeal assessed to Jeremiah Goutreaux.

AFFIRMED.


author: STEWART, J.

text:
    Brandy McEACHERN and Brian Ingram, Plaintiff-Appellant v. Michael Joe LANGLEY, Defendant-Appellee.
    No. 47,872-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    E. Charles Jacobs, for Appellant.
    Murray N. Salmas, Shreveport, LA, for Appellees.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

| plaintiff /Appellant, Brandy McEac-hern (hereafter referred to as “McEac-hern”), is appealing a trial court judgment maintaining Michael Joe Langley’s (hereafter referred to as “Langley”) sole custody of M.J.L., and reducing her visitation with M.J.L. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On October 22, 2008, Langley was granted sole custody of his minor child, M.J.L. McEachern, M-J.L.’s maternal grandmother, and Brian Ingram, M.J.L.’s maternal grandfather, were awarded visitation with M.J.L. in accordance with La. R.S. 9:344(A) and La. C.C. art. 136(B).

On May 13, 2009, a rule for contempt was filed on behalf of McEachern and Ingram, alleging that Langley failed to provide them with reasonable visitation. On August 19, 2009, Langley was held in contempt of the trial court’s order for failure to adhere to the above described visitation schedule. Additional orders of telephone contact between McEachern and M.J.L. were ordered, as well as reinforcement of all previously awarded periods of visitation in favor of McEachern.

On May 11, 2010, McEachern filed a petition for contempt and change of custody, alleging that Langley failed to follow the provisions of the previous judgment. She also sought the appointment of a mental health professional. Langley did not file any responsive pleadings. After review 12by a mental health professional, the trial court issued a judgment maintaining Langley’s sole custody of M.J.L., and reducing McEachern’s visitation to one three-hour period on the second Saturday of each month, subject to Langley’s supervision. The court was of the opinion that some form of sexual abuse did occur with the minor child while in McEachern’s house.

McEachern appeals.

LAW AND DISCUSSION

McEachern asserts two assignments of error in this appeal. In her first assignment, she contends that the trial court erred in changing and reducing her previously ordered grandparent visitation and telephone contact with M.J.L., absent any pleadings filed by Langley, Appellee, requesting that relief. Similarly, in her second assignment of error, she alleges that the trial court erred in changing and reducing her previously ordered grandparent visitation and telephone contact with the minor child, M.J.L., absent any showing of a change in circumstances justifying that change.

More specifically, McEachern argues that jurisprudence has established that a court may not decide a controversy that the litigants have not regularly brought before it. She notes that the only issue properly pled before the lower court was her request for change of custody and that Langley be held in contempt for his failure to honor the previously awarded visitation. Langley did not file any pleadings in this matter. Therefore, McEachern believes that the trial court’s judgment limiting her visitation is ^erroneous. Additionally, she contends that the evidence admitted did not show a change in circumstances necessary to support a change and/or reduction of her visitation. Because McEachern’s two assignments of error are substantially similar, they will be discussed together.

La. R.S. 9:344(A) states:

A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
La. C.C. art. 136(B) states:
B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.

The burden is on the mover, the relative, to demonstrate that extraordinary circumstances exist and that the visitation is in the child’s best interests. State in Interest of D.E., 46,644 (La.App. 2 Cir. 10/12/11), 83 So.3d 8; Lindsey v. House, 29,790 (La. App. 2 Cir. 9/24/97), 699 So.2d 1190.

The general rule established in La. C.C. art. 136 requires a relative, by either blood or affinity, to show not only extraordinary circumstances which support a granting of visitation rights, but also that visitation is in the best interest of the child. Lindsey, supra. The legislature, through La. R.S. 9:344, made it less difficult for a parent of the noncustodial parent to obtain visitation with grandchildren in two situations, i.e., when the noncustodial parent is either dead or interdicted. Id. In these two situations, the grandparent does not have to show extraordinary circumstances, but only that visitation is in the best interest of the child. Id.

Jurisprudence has determined that because a modification of visitation rights is not so substantial as a change in actual physical custody, a showing that the modification is in the best interest of the child is sufficient. Adams v. Adams, 39,424 (La.App. 2 Cir. 4/6/05), 899 So.2d 726; Acklin v. Acklin, 29,193 (La.App. 2 Cir. 2/26/97), 690 So.2d 869.

In the instant case, both parties agreed to appoint Sandi Davis, a licensed counselor employed by the Family Counseling Center, to evaluate each other, as well as M.J.L. Davis expressed serious concern about M.J.L. visiting McEachern’s home, noting the M.J.L. related that Ingram “does things to her.” In her opinion, Davis believed these acts suggested that sexual abuse was taking place in McEac-hern’s home. Concerned about M.J.L.’s well being, Davis recommended that visitation at McEachern’s |fihome be suspended, and that visitation should be supervised in a public place.

McEachern relies on Havener v. Havener, 29,785 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, in support of her argument that a court may not decide a controversy that the litigants have not regularly brought before it. The difference between the cited case law and the case before this court is in the expansion of the pleadings based on the evidence presented. Gerhardt v. Gerhardt, 46,463 (La.App. 2 Cir. 5/18/11), 70 So.3d 863. Louisiana C.C.P. art. 862 grants the trial court authority to render a final judgment granting the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

In this case, the trial court clearly explained its reasons for judgment, which were supported by the evidence presented by the parties. The trial court was “disturbed” by McEachern’s behavior during Davis’s evaluations. McEachern’s evaluations, coupled with M.J.L.’s interviews, provided the basis for the lower court to find a change in circumstances that would necessitate a modification of visitation. The trial court correctly ruled outside the pleadings based on that evidence, using the best interest of the child standard.

We conclude that the trial court did not impermissibly exceed the scope of the pleadings in its ruling. The evidence shows it to be in M-J.L.’s best interest to modify the current custody agreement, as well as the grandparent visitation. McEachern’s two assignments of error are meritless.

I «CONCLUSION

For the reasons discussed above, we affirm. Costs are assessed to the plaintiff, Brandy McEachern.

AFFIRMED.

      . Angel Nicole Langley, M.J.L.’s mother, died when M.J.L. was five months old.

      . At some point during this litigation, Brian Ingram was denied any visitation with M J.L., and any party or person who allows such visitation or enables him to visit with the minor child will be subject to contempt proceedings.


author: JOY COSSICH LOBRANO, Judge.

text:
    STATE of Louisiana v. Donavon L. KING.
    No. 2011-KA-1704.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Emily Voshell, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

liThe State charged Donavon L. King with possessing methamphetamine, a violation of La. R.S. 40:967(C)(2). On April 14, 2011, the trial court held a preliminary hearing and heard motions to suppress evidence and a statement. The trial court denied the motions. King filed a pre-trial writ to this Court from the denial of the motion to suppress evidence. This Court denied the writ because he had adequate remedy on appeal. State v. Donovan King, 2011-0654 (La.App. 4 Cir. 5/20/11), not published. On May 25, 2011, King pled guilty under State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the issue of his motions to suppress. He was sentenced to two years, suspended, and two years of active probation. He was also ordered to pay $800.00 to the Judicial Expense Fund and $190.50 in court costs. This appeal followed.

State Trooper William Bosworth of the Louisiana State Police Narcotics Division testified that he conducted an investigation at 2222 North Rampart Street in New Orleans on January 5, 2011. Trooper Bos-worth received an anonymous tip that a man named “Donavon” lived at that address and was manufacturing, selling and distributing crystal methamphetamine. The tipster described Donavon only as a short white man with dark hair. The tipster also had seen a lot of traffic at 2222 |2North Rampart Street — the same vehicles would go there multiple times a week, staying a few minutes “here and there.”

Based on this information, Trooper Bos-worth’s division conducted surveillance at 2222 North Rampart Street. At approximately noon on January 5, 2011, they saw a white man enter the residence and exit with another man fitting Donavon’s description a few minutes later. Donavon was later identified as Donavon King. The men stood on the porch, looking up and down the street for a minute or two before a taxi picked them up. The police followed the taxi to a residence on St. Claude Avenue that the two men entered. Shortly thereafter, King and his companion came out of the St. Claude Avenue residence, and were observed walking to a convenience store or gas station at the corner of North Rampart and Governor Nicholls Streets.

After going into the store, King and his companion exited and stood or sat by the store wall. The police decided to question them. In total, four unmarked cars were involved. The car that Trooper Bosworth was in pulled up closest to the store. Another car pulled up off of Governor Nic-holls Street, and the other two “were set back.” Trooper Bosworth did not recall the specifics, but remembered approaching the two men with Detective Tragel, who had been riding with him. Trooper Bos-worth asked King his name, and he said, “Donavon King.” King’s companion was later identified as Mr. Barry.

Upon approaching the two men, Trooper Bosworth asked Barry to go with Officer Bartholomey, who had arrived in a different car from Trooper Bosworth and Detective Tragel. Barry complied. Trooper Bosworth was wearing his badge. Trooper Bosworth then proceeded to inform King that they had him under surveillance. He explained how they had received an anonymous tip, observed |sKing exit his house, and that they were now asking him about it. At that point, King put his head down and admitted, “I do have meth in my bag and I have meth at my house.” Upon this admission, King was placed under arrest and was verbally informed of his Miranda rights for the first time. Trooper Bosworth clarified that when King issued his admission, Trooper Bosworth was in the middle of explaining the investigation to him. No questions had been asked.

A search of Bang’s bag produced nothing. No contraband was discovered therein. When asked if he would consent to a search of his residence, King said he would. Everyone relocated to King’s house. It was searched after King signed a consent form. King also signed and initialed a written Miranda statement of rights form at the house. A clear plastic bag containing crystal like shards, a gray and melon colored miniature suitcase containing a bag of methamphetamine; and a jar of crystal methamphetamine were all discovered in King’s house. The search also produced the following paraphernalia: scales, bags, a pipe with heavy residue, a drawer full of glass pipes and extra baggies, and other similar items. During the search, a roommate came home. King confirmed the roommate’s assertion that he did not know of the methamphetamine, telling Trooper Bosworth that his methamphetamine had nothing to do with his roommate. King also informed the investigating officers that some of the methamphetamine discovered in the house was the contraband that he thought was in his bag.

The State entered copies of the signed Waiver of Miranda Rights Form, the Consent to Search Form, and the criminalist report into the record. The criminalist report showed that the seized contraband tested positive for methamphetamine.

The record reveals no errors patent.

| ¿On appeal, King argues that the police made an illegal stop when they approached him at the convenience store, and that all evidence subsequently seized should have been suppressed because the seizure resulted from an illegal detention. He further argues that his subsequent permission to search his house was the result of this initial illegal detention. For reasons that follow, we conclude that the trial court properly found that there was no illegal detention.

The Fourth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Similarly, La. Const. Art. 1, Sec. 5 protects “person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” Searches and seizures conducted without warrants issued on probable cause are per se unreasonable unless justified by narrowly drawn exceptions to the warrant requirement. State v. Surtain, 2009-1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043, citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In order to enforce the mandates of the Fourth Amendment and La. Const. Art. 1, Sec. 5, and discourage police misconduct, evidence recovered pursuant to an unconstitutional search or seizure is inadmissible. State v. Hamilton, 2009-2205, p. 3 (La.5/11/10), 36 So.3d 209, 212 (citation omitted). At a suppression hearing, the State bears the burden of proving the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D). A trial court’s determination of a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion. State v. Wells, 2008-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581.

The trial court denied the motion to suppress evidence based upon a finding that King spontaneously confessed upon the initial encounter with the Louisiana Instate Police. The trial court found that the confession was not the result of any police interrogation. We find no abuse of the trial court’s discretion in these findings.

Under the Fourth Amendment to the United States Constitution, a seizure or stop occurs when an individual either submits to the police show of authority or is physically contacted by the police. State v. Tucker, 626 So.2d 707, 711 (La.1993), citing California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Additionally, under La. Const. Art. 1, Sec. 5, a seizure occurs where an actual stop is imminent. State v. Dobard, 2001-2629, p. 4 (La 6/21/02), 824 So.2d 1127, 1130. An actual stop is imminent “only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” State v. Tucker, supra, at 712. As long as the individual remains free to disregard the encounter and walk away, an officer may approach the individual and ask questions without probable cause or reasonable suspicion to detain the person. Dobard, 2001-2629, p. 3, 824 So.2d at 1130. The protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) apply only when a person is subject to a custodial interrogation and, thus, an officer need not formally advise a person not in custody of his rights prior to taking a statement in order for it to be admissible at trial. State v. White, 2011-208, p. 6 (La.App. 4 Cir. 9/28/11), 74 So.3d 748, 752.

Trooper Bosworth testified that he approached King and his companion with Detective Tragel. Though four police cars were involved at this point, Trooper Bos-worth testified that two of the cars remained “set back,” while the car he was in pulled up closest to the men as they sat in front of the convenience store. A second police car pulled up also. Trooper Bos-worth asked King’s companion to go speak |fito Officer Bartholomey while he and Detective Tragel spoke to King. Trooper Bosworth told King about the anonymous tip and explained that the police had him under surveillance. At that point, King put his head down, and admitted that he had methamphetamine at his house. These facts fail to show any reversible error in the trial court’s finding that King was free to go prior to this admission. Once King admitted he possessed methamphetamine, the police had probable cause to arrest him. Furthermore, nothing in the record indicates that King was coerced into signing the consent to search his home. Under these circumstances, we conclude that trial court did not err in denying the motion to suppress the evidence.

For the reasons stated above, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Cardell T. ELLIS.
    No. 2012-KA-0540.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

Lin this is a criminal appeal, the defendant, Cardell Ellis, seeks review of his conviction and sentence for home invasion, a violation of La. R.S. 14:62.8. The sole issue Mr. Ellis raises on appeal is the sufficiency of the evidence to support the conviction. Finding that the district court erred in part, we remand for the imposition of the mandatory fine required by La. R.S. 14:62.8(B). In all other respects, we affirm.

STATEMENT OF THE CASE

On December 22, 2010, Mr. Ellis was charged by bill of information with home invasion of an apartment located at 1825 Clouet Street in New Orleans (the “Residence”). On January 4, 2011, Mr. Ellis pled not guilty at his arraignment. On February 8, 2011, the trial court found probable cause to substantiate the charges. On October 24, 2011, the matter proceeded to a jury trial. The jury found Mr. Ellis guilty as charged. On November 3, 2011, Mr. Ellis filed motions for new trial and post-verdict judgment of acquittal. On November 17, 2011, both motions were denied. Mr. Ellis waived all delays, and he was sentenced to five years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. No fine was imposed. This appeal followed.

\ STATEMENT of the facts

For several years before the incident in question, Mr. Ellis and the victim, Lakisha Bush (“Lakisha”), were engaged in a dating relationship. Although they were never married, they had a child together — a daughter, “K.B.,” who was four years old at the time of the incident. For at least some part of November 2010, Mr. Ellis stayed in the Residence with K.B.; Lakisha; Lakisha’s mother, Betty Bush (“Ms. Bush”); and Ms. Bush’s male friend, Rufus Ferdinand (“Mr. Ferdinand”). Both Ms. Bush and Lakisha acknowledged that he stayed there for at least three days before the incident. Ms. Bush and her daughter, Traynell Bush, were the only parties to the lease of the Residence. Although Mr. Ellis was not a party to the lease, in early November 2010 he paid Ms. Bush two hundred dollars to stay there temporarily until he found his own apartment.

On the morning of November 10, 2010, Ms. Bush was at the Residence; also present were K.B., Mr. Ferdinand, and Mr. Ellis. Lakisha was at work. Lakisha testified that she paid her mother to watch K.B. while she was at work. On that morning, Ms. Bush was not feeling well. She thus asked Mr. Ellis to watch K.B. for her. In response, Mr. Ellis began using vulgar and threatening language. Because of his behavior, Ms. Bush locked him out of the Residence. After Ms. Bush locked him out, Mr. Ellis called the police in order to retrieve his belongings from the Residence. According to Ms. Bush, the police came out and instructed Mr. Ellis to take his belongings and to leave the Residence.

Ms. Bush testified that not only did she lock Mr. Ellis out, but also she called Lakisha at work and asked her to come home to help with him. When Lakisha arrived home, Mr. Ellis was sitting outside the Residence on the porch drinking beer. Lakisha went inside the Residence without incident. Sometime ^thereafter, Mr. Ellis came charging into the Residence. According to Lakisha, Mr. Ellis’ forced entry occurred when Mr. Ferdinand went to put out the trash. At that time, Mr. Ellis asked Mr. Ferdinand to tell Lakisha that he wanted his belongings. As Mr. Ferdinand was coming back in the door, Mr. Ellis knocked Mr. Ferdinand down and came charging in the Residence.

Ms. Bush gave a slightly different version of Mr. Ellis’ forced entry. She testified that Mr. Ellis requested his belongings and that Mr. Ferdinand went to get them for him. As Mr. Ferdinand approached the door with the belongings, Mr. Ellis rushed through the door and knocked Mr. Ferdinand down. Ms. Bush testified that at the time Mr. Ellis’ forced entry into the Residence, he did not have permission to enter.

According to Ms. Bush, after his forced entry into the Residence, Mr. Ellis started attacking her and Lakisha. He hit Lakisha in the head with the metal part of a napkin holder. He also broke K.B.’s chair and hit Lakisha with parts from the chair. Mr. Ellis threw Ms. Bush to the bed and threatened to hit her with the metal napkin holder. Thereafter, Mr. Ellis went outside and broke the driver’s side windshield on Lakisha’s vehicle. The neighbors called 911.

At approximately noon on November 10, 2010, Officer Cleveland Johnson, with the New Orleans Police Department (“N.O.P.D.”), was dispatched to a domestic disturbance call at the Residence. Upon arrival at the scene, Officer Johnson observed minor swelling on Lakisha’s face; however, he did not believe the injuries he observed on Lakisha’s face were consistent with her description of | ¿Mr. Ellis’ attack. Officer Johnson also observed damage to a child’s chair located inside the Residence, and a broken windshield on Lakisha’s vehicle parked outside the Residence. Officer Johnson was informed that Lakisha and Mr. Ellis had a four year old daughter together, who was also present in the Residence.

Officer Johnson testified that Mr. Ellis had scratches to his body and appeared to be intoxicated. According to Officer Johnson, at the time of his arrest Mr. Ellis gave his home address as 2544 Robert E. Lee Street in New Orleans. Office Johnson acknowledged that earlier that day he responded to a complaint from Mr. Ellis at that same location. Officer Johnson remembered speaking with Mr. Ellis in response to the complaint, but he did not recall the nature of the complaint. Nor did he prepare an incident report. Although the tape of Mr. Ellis’s 911 call (his complaint) was played in court, it did not refresh Officer Johnson’s recollection.

Following his investigation, Officer Johnson concluded that Mr. Ellis committed a domestic battery, that Mr. Ellis did not live at the Residence, and that at the time of the incident Mr. Ellis did not have permission to enter the Residence.

Erwin Williams, a N.O.P.D. complaint (911) operator, confirmed the existence of three 911 calls made in connection with the incident; those calls were made between 11:45 and 11:49 a.m. that day. Ms. Williams also identified the 911 call from Mr. Ellis, which was made around 9:48 a.m. that day. The 911 tapes were introduced into evidence.

ERRORS PATENT

The record reflects an error patent as to Mr. Ellis’ sentence. As part of the sentence for home invasion, La. R.S. 14:62.8(B) requires the imposition of a fine | r,of not more than $5,000. In this case, the trial court failed to impose the mandatory fine. This court has determined that the failure to impose a mandatory fine requires that the matter be remanded for imposition of that fine. State v. Hart, 10-1614, p. 4 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 29; State v. Williams, 03-0302, pp. 3-4 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, 753. This case thus must be remanded for that purpose. No other errors patent was found.

DISCUSSION

In his only assignment of error, Mr. Ellis contends that the evidence was insufficient to support his conviction. The gist of his argument is that the State presented insufficient evidence that his entry into the Residence was unauthorized given that he paid rent to stay there.

In reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Applying the Jackson standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, p. 9 (Laj6/29/01), 796 So.2d 649, 657 (quoting State v. Captville, 448 So.2d 676, 678 (La.1984)). The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Holmes, 06-2988, p. 34 (La.12/2/08), 5 So.3d 42, 68.

Home invasion is defined in La. R.S. 14:62.8 as “the unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another.” In order to convict Mr. Ellis of home invasion, the State was required to prove:

• that Mr. Ellis entered the Residence;
• that the Residence was an inhabited dwelling or a structure used in whole or in part as a home or place of abode;
• that Mr. Ellis was not authorized to enter the Residence;
• that the Residence did not belong to Mr. Ellis; and
• that Mr. Ellis acted with specific intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another.

See Cheney C. Joseph, and P. Raymond Lamonica, 17 LA. CIV. L. TREATISE, CRIMINAL JURY INSTRUCTIONS § 10.62.8 (2d ed.2011)(defining elements of home invasion offense); see also State v. Hart, 10-1614, p. 6 (La.App. 4 Cir. 11/2/11), 80 So.3d 25, 30 (holding that to convict a defendant of home invasion pursuant to La. R.S. 14:62.8, the State is required to prove that “he entered a dwelling owned by another without permission, that the dwelling was used in whole or in part as a home, that a person was present when he made the ^unauthorized entry, and that he had the intent to use force or violence upon the person or to vandalize, deface or damage the property.”)

The first two elements of the offense are undisputed: Mr. Ellis entered the Residence; and the Residence was an inhabited dwelling. Overwhelming evidence was presented at trial that Mr. Ellis used force or violence upon some of the individuals present in the Residence. Moreover, Mr. Ellis stipulated to the allegations of criminal damage to property. The fifth element thus was satisfied. The dispute is whether the third and fourth elements were satisfied — whether the Residence belonged to another and whether Mr. Ellis’ entry was unauthorized.

Disputing those two elements, Mr. Ellis argues that his entry was authorized given that he had an oral sublease with Ms. Bush for the month of November 2010. In support, he cites the undisputed fact that in the beginning of November 2010 he paid Ms. Bush two hundred dollars in rent to stay there. Since there was no specific term agreed upon by the parties, he contends that the duration of the sublease was month to month. La. C.C. art. 2680. He thus contends that the sublease did not expire until the end of November 2010. It follows, Mr. Ellis submits, that his entry on November 10, 2010, was authorized. This contention is not supported by the record.

| sUnder the jurisprudence, the fact that a person previously had permission to enter a house does not imply that the person continues to have such authorization. State v. Nunnery, 04-1560, p. 12 (La.App. 4 Cir. 12/8/04), 891 So.2d 67, 73; see also State v. Cojoe, 00-1856 (La.App. 4 Cir. 3/21/01), 785 So.2d 898. The relevant inquiry is “not whether defendant could generally enter the victim’s residence, but whether this particular entry was authorized.” State v. Spain, 99-1956, p. 7 (La.App. 4 Cir. 3/15/00), 757 So.2d 879, 884. The inquiry in this case is thus whether Mr. Ellis’ particular entry into the Residence at the time of the incident was authorized.

The record supports the jury’s implicit finding that Mr. Ellis’ entry was unauthorized. Although Mr. Ellis stayed at the Residence for several (at least three) days before the incident and had belongings there, Ms. Bush testified that he did not have permission to enter the Residence when he barged into it. At that point, Ms. Bush had locked him out. Moreover, she testified that he only had her consent to stay there when he was not drinking and not being disruptive. Thus, when Mr. Bush barged into the residence, he did not have consent.

As to the alleged verbal sublease, the record does not support Mr. Ellis’ contention that he had an open-ended agreement to occupy the Residence. | flAddressing the duration of the agreement for him to stay there, Ms. Bush testified that “it wasn’t like no certain length of time, but he was supposed to be out the apartment I believe at the end of the month because he was about to receive his apartment.” Lakisha likewise testified that Mr. Ellis needed somewhere to stay because he was sleeping in his car. She further testified that her mother felt bad for him and that he told her mother that he would give her two hundred dollars if she would let him stay. She still further testified that her mother asked him how long he needed a place to stay and that he responded that “it was going to be like a week or two.” The testimony presented at trial thus establishes that Mr. Ellis was only authorized to stay at the Residence until he found his own apartment.

Mr. Ellis acknowledged in his brief that he had found his own apartment by the date of the incident. He further acknowledged that the purpose of his 911 call earlier on the day of the incident was to retrieve his belongings from the Residence. According to Ms. Bush, the officer instructed Mr. Ellis to take his belongings and to leave the Residence. At the time of his arrest, Mr. Ellis provided a different home address to the officer; and the arresting officer concluded that he did not live at the Residence. Considering the evidence in the light most favorable to the prosecution, the evidence was sufficient to convict Mr. Ellis on the charge of home invasion.

DECREE

For the foregoing reasons, this matter is remanded for imposition of the mandatory fine required by La. R.S. 14:62.8(B). In all other respects, the defendant’s conviction and sentence are affirmed.

AFFIRMED IN PART; REMANDED IN PART

      . At trial, Lakisha identified the metal paper towel holder and K.B.'s chair, which she testified Mr. Ellis used in striking her.

      . Mr. Ellis’ attorney stipulated that Mr. Ellis committed criminal damage to property.

      . La. R.S. 14:62.8(B) provides:
      B. (1) Except as provided in Paragraph (2) of this Subsection, whoever commits the crime of home invasion shall be fined not more than five thousand dollars and shall be imprisoned at hard labor for not less than five nor more than twenty years; at least five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
      (2) Whoever commits the crime of home invasion when, at the time of the unauthorized entering, there is present in the dwelling or structure any person who is under the age of twelve years, is sixty-five years of age or older, or who has a developmental disability as defined in R.S. 28:451.2, shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than ten nor more than twenty-five years. At least ten years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

      . La. C.C. art. 2680 provides:
      If the parties have not agreed on the duration of the term, the duration is established in accordance with the following rules:
      (1) An agricultural lease shall be from year to year.
      (2) Any other lease of an immovable, or a lease of a movable to be used as a residence, shall be from month to month.
      (3) A lease of other movables shall be from day to day, unless the rent was fixed by longer or shorter periods, in which case the term shall be one such period, not to exceed one month.

      . The jurisprudence of this state construing the offense of home invasion is scant. Thus, the jurisprudence construing the related offense of unauthorized entry is resorted to by analogy.

      . In State v. Cojoe, 00-1856 (La.App. 4 Cir. 3/21/01), 785 So.2d 898, the defendant and the victim had lived in the victim's house before their divorce and again for a time after the divorce. Some of the defendant’s belongings were still in the house. However, a few weeks before the offense the victim threw the defendant out of the house and changed the locks to keep him from entering. The defendant entered the house while the victim was out of town. This Court affirmed his unauthorized entry conviction, noting that although the defendant had permission in the past to enter the house, the evidence that the victim subsequently made him leave and that she changed the locks proved that the defendant had no permission to enter on the date of the offense.

      .In State v. Spain, 99-1956 (La.App. 4 Cir. 3/15/00), 757 So.2d 879, the defendant entered his ex-girlfriend's residence and attacked her and her new boyfriend. The defendant's daughter lived with the victim, and the defendant sometimes visited the residence to see her. This Court rejected the defendant’s claim that his prior acceptance into the house showed his entry was not unauthorized.


author: ROBERT M. MURPHY, Judge.

text:
    Nicole Y. COSSÉ v. Ivan A. ORIHUELA.
    No. 12-CA-456.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.
    Rehearing Denied Feb. 25, 2013.

      Marc L. Frischhertz, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Ivan A. Orihuela, Attorney at Law, Ken-ner, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, HANS J. LILJEBERG, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

FACTS AND PROCEDURAL HISTORY

| ¡.Nicole Y. Cossé (“plaintiff”) and Ivan A. Orihuela (“defendant”) were married on December 1, 2000. Prior to their marriage, the parties opted out of Louisiana’s community property regime and entered into a separation of property regime. On March 3, 2006, the parties divorced. At the time of the divorce, plaintiff “was under the impression” that state and federal income taxes for 2004 had been filed and paid in full. However, in 2007, plaintiff learned that past due taxes for 2004 were owed. Upon receiving this notice, plaintiff contacted defendant who confirmed that the taxes had not been paid. The parties subsequently entered into an agreement whereby plaintiff agreed to file and pay the state taxes and the defendant agreed to file and pay the federal taxes and they would settle up at a later date. The parties’ agreement and subsequent payments form the basis of the dispute. The scope of the dispute in the trial court did not include entitlement to tax refunds from the State or IRS.

Pursuant to that agreement, on August 6, 2007, plaintiff submitted a payment of $3,171.00 to the Louisiana Department of Revenue for the 2004 state taxes. Plaintiff continued to inquire of defendant if he had filed and submitted Inpayment for the federal taxes. It was decided that plaintiff and defendant would each file “married separate” federal tax returns for 2004. On or around August of 2007, plaintiff filed a federal tax return for 2004 as “married filing separately” and submitted a payment for her tax liability in the amount of $1,918.00. Plaintiff also filed her 2005 federal tax return in 2007 as “married filing separately” and was due a refund of $2,710.00. However, the Internal Revenue Service (“IRS”) seized this amount and credited it to the outstanding balance on the 2004 liability.

On October 22, 2008, plaintiff filed a Request for Innocent Spouse Relief with the IRS, stating that she had filed a married separate return for 2004 and that the remaining tax liability was defendant’s. When the IRS denied this relief, plaintiff learned that an unsigned joint return for 2004 had previously been filed on June 7, 2005. This joint return, filed in June 2006, predated the “married separate” return filed by plaintiff in August 2007.

Plaintiff then learned that the tax liability for the 2004 state income taxes was still not satisfied; so, on February 4, 2009, she submitted an additional payment of $979.00 to the Louisiana Department of Revenue. Her total payments to the State of Louisiana for 2004 income taxes total $11.53.00.

Then, on May 1, 2009, after discovering that a federal tax lien for the 2004 federal tax liability of $10,944 had been placed on her house and in an effort to release that lien, plaintiff submitted a payment to the United States Treasury in the amount of $10,862.60. On May 13, 2009, the federal tax lien on plaintiffs house was released.

On May 4, 2009, defendant received correspondence from the IRS indicating that he had overpaid his 2008 taxes in the amount of $600.00 and that the IRS had applied that overpayment to the outstanding 2004 tax liability. Defendant also introduced into evidence copies of checks made payable to the Louisiana Department of Revenue for state tax liabilities for the years 2004, 2005, |4and 2006. On May 18, 2009, five days after the plaintiff paid the 2004 taxes, the defendant received correspondence from the IRS indicating that he had overpaid on his 2006 taxes in the amount of $17,822.72 and that the IRS had applied that overpayment to outstanding tax liabilities for 2004 and 2005. The IRS applied $10,248.22 to 2004 and $7,574.50 to 2005. Appellant did not introduce any copies of checks to the IRS.

On October 26, 2009, plaintiff received a notice from the IRS indicating that she still owed $120.11 regarding the 2004 tax liability, which she paid by check on November 2, 2009. Her tax payments consistently preceded his payments and responses. Her total payments to the IRS for 2004 total $15,610.71.

On July 1, 2010, plaintiff filed a Petition for Damages in the First Parish Court for the Parish of Jefferson seeking reimbursement from defendant for the amounts she paid for 2004 tax liabilities. The parties’ agreement was that plaintiff would file and pay state income taxes for 2004 and defendant would file and pay federal income taxes for 2004 and they would settle up later.

On March 24, 2011, the matter proceeded to a judge trial, at the conclusion of which the court found in favor of plaintiff, awarding her $15,785.66, plus interest and costs. On March 29, 2011, defendant filed a motion for new trial and/or a motion for appeal in the event his motion for new trial was denied. On April 11, 2011, the trial court denied defendant’s motion for new trial. At that time, the trial court did not address defendant’s motion for appeal. Thereafter, on September 1, 2011, the trial court acknowledged its prior oversight and granted defendant a suspensive appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In defendant’s first assignment of error, he contends that plaintiffs action against him is delictual pursuant to LSA-C.C. art. 3492 and is subject to a liberative prescription of one year.

| .DISCUSSION

Defendant asserts that he is entitled to raise the peremptory exception of prescription on appeal pursuant to LSA-C.C.P. art. 2163. Other than referencing the code article, he cites no authority for this contention but argues that plaintiffs action has prescribed.

A review of the record reveals that defendant raised an exception of prescription in his answer to plaintiffs petition on September 30, 2010 and at trial orally reserved his right to raise the exception on appeal. The peremptory exception must be raised in a formal pleading and is not properly raised in oral arguments or by brief. Natchitoches Parish Police Jury v. Natchitoches Sportsman’s Ass’n, 11-102, p. 3 (La.App. 3 Cir. 6/15/11), 67 So.3d 1284, 1286, writ denied, 11-1559 (La.10/7/11), 71 So.3d 315. We find that because defendant raised his exception of prescription by way of formal pleading in the trial court, that this issue is properly before this Court.

Plaintiff responds that her cause of action against defendant is a personal action pursuant to LSA-C.C. 3499 and is subject to a liberative prescription of ten years. As such, she asserts that her action has not prescribed.

A delictual action is a “tort action” or “an action seeking damages for injury caused by the act of another.” Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133, 136 (1971). A personal action is one brought to enforce an obligation against the [(¡obligor, personally and independently of the property which he may own, claim, or possess. LSA-C.C.P. art. 422.

Courts have found claims for reimbursement to be personal actions and subject to the ten-year liberative prescription under LSA-C.C. art. 3499. See Birch v. Birch, 45,702 (La.App. 2 Cir. 11/3/10), 55 So.3d 796, writ denied, 10-2670 (La.1/28/11), 56 So.3d 959 (citation omitted); Hagerdorn v. Klotz, 185 So. 658 (La.App. 1 Cir.1939); Johnson v. Hall, 185 So. 64 (La.App. 1 Cir.1938).

In the instant case, because plaintiffs cause of action is a claim for reimbursement for the 2004 federal taxes she paid arising from a breach of their agreement, we find that the action is personal and subject to the ten-year liberative prescription period in LSA-C.C. art. 3499.

Although the details are not clear regarding the parties’ agreement and the breach of that agreement, we find that the agreement was entered into in or around 2007 and was breached sometime soon thereafter. As a result, we find plaintiffs action, filed on July 1, 2010, was instituted well within the ten-year prescriptive period and was not prescribed.

This assignment of error has no merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

In his second and third assignments of error, defendant argues that the Louisiana Supreme Court’s appointment of Judge Dennis Waldron to preside over the case was contrary to law, and as such, the judgment is an absolute nullity. Specifically, defendant argues that because the supreme court’s appointment of Judge Waldron did not comply with LSA-C.C.P. arts. 4861-4866, it is absolutely null.

DISCUSSION

The record indicates that on December 8, 2010, Judge Rebecca M. Olivier, Division “A,” recused herself from the case and the case was re-allotted to 17Division “B.” On December 9, 2010, Judge George W. Gia-cobbe, Division “B,” recused himself and the case was re-allotted to Division “R,” Judge Niles A. Helmers. Due to the recu-sals, Judge Olivier requested that the Louisiana Supreme Court assign an ad hoc judge to the First Parish Court to preside over the case. On December 27, 2010, the Louisiana Supreme Court issued an order, pursuant to Article V, Section 5(A) of the Louisiana Constitution of 1974, appointing Retired Judge Dennis J. Waldron to preside as ad hoc judge over the matter.

The pertinent article that defendant claims was not complied with is LSA-C.C.P. art. 4864(A), which provides:

When a judge of a parish or city court recuses himself, he shall appoint another judge of the same parish or city court, if that court has more than one division; otherwise, he shall appoint either a parish or city court judge from an adjoining parish or, as judge-ad-hoc, an attorney domiciled in the parish who has the qualifications of a parish or city court judge.

The record indicates that this procedure was followed until Judge Olivier submitted a request to the supreme court to assign an ad hoc judge. The record does not indicate why that request was submitted, but we nevertheless find the appointment of Judge Waldron was not improper in light of the supreme court’s authority over all other courts.

Under Article V, Section 5(A) of the Louisiana Constitution of 1974, the Louisiana Supreme Court has the authority to assign a sitting or retired judge to any court. State v. Hyman, 10-335, p. 7 (La.App. 5 Cir. 2/15/11), 62 So.3d 146, 152, writ denied, 11-0558 (La.9/30/11), 71 So.3d 282. It is well recognized this constitutional grant of supervisory authority to the Louisiana Supreme Court over Rail other courts is plenary, unfettered by jurisdictional requirements, and exercisable at the complete discretion of the court. Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 8 (La.1/19/05), 903 So.2d 392, 400 (citations omitted).

Additionally, defendant asks us to find the judgment issued by Judge Wal-dron an absolute nullity, but cites no legal support for this proposition. Absolute nul-lities, which may be attacked at any time, at any place, by rule or any other method, are found in LSA-C.C.P. art. 2002. See Anderson v. Anderson, 98-1012 (La.App. 4 Cir. 8/26/98), 718 So.2d 582, 583 n. 2. Subsection (A) of that article provides the exclusive grounds for rendering a judgment absolutely null:

[I]f it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3)By a court which does not have jurisdiction over the subject matter of the suit.

As there is no basis for nullifying a judgment due to improper recusal procedure, as alleged in this case, we find the judgment in this case is not an absolute nullity.

These assignments of error have no merit.

ASSIGNMENTS OF ERROR NUMBERS FIVE, SIX, AND TEN

In his fifth assignment of error, defendant argues that the trial court erred when it rendered judgment in favor of plaintiff even though the evidence showed that defendant paid in full the relevant state and federal tax liability which plaintiff claims to have paid. In his sixth assignment of error, defendant argues that the trial IflCourt’s judgment was in error because plaintiff failed to show that she paid to the IRS and to the Louisiana Department of Revenue the amounts awarded to plaintiff by the trial court. And in his tenth assignment of error, defendant claims that the trial court erred when it rendered judgment in favor of plaintiff even though the evidence showed that the amounts awarded to plaintiff exceed any applicable amounts shown by the evidence and exceed any applicable amounts claimed by plaintiff.

STANDARD OF REVIEW

By these assignments of error, defendant contests the trial court’s findings of fact. Accordingly, the “manifest error” or “clearly wrong” standard of review applies. Under this standard, 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. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). This requires the reviewing court to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its faee, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id.

ImDISCUSSION

At trial, defendant introduced into evidence correspondence from the IRS in 2008 and 2009 indicating that an overpayment on defendant’s 2006 and 2008 federal taxes was applied to unpaid tax liabilities from 2004 and 2005. The IRS applied $10,848.22 to 2004.

The plaintiff introduced into evidence copies of checks she paid to the IRS in the amounts of $10,862.60 and $120.11 regarding the 2004 tax liability. The evidence also indicates that plaintiffs 2005 tax refund in the amount of $2,710.00 was seized by the IRS and applied to the outstanding 2004 tax liability and $1,918.00 was paid on her 2004 married filing separate return for a total payment for 2004 of $15,610.71 in federal taxes. The evidence further indicates that plaintiff paid $4,453.00 to the Louisiana Department of Revenue in connection with the 2004 state taxes.

In conclusion, the trial judge correctly found, in spite of much confusion, that there was an agreement by the parties whereby plaintiff agreed to file and pay the state taxes and the defendant agreed to file and pay the federal taxes, and they further agreed they would settle up at a later date. The trial judge considered all the evidence as well as the testimony of both parties, and found in favor of plaintiff in the amount of $15,736.55, in effect the amount of federal taxes that she paid. We find the trial court’s conclusion is basically correct and certainly not manifestly erroneous in light of the record. Correcting a mathematical error, this court amends the award to $15,610.71, the total 2004 federal tax payments that the plaintiff made. The court affirms the trial court’s judgment as amended. The court does not address any entitlement to refunds from the State or IRS.

AMENDED; AFFIRMED AS AMENDED

      . LSA-C.C.P. art. 2163 provides:
      The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

      . Langlois has been superseded by statute on grounds inapposite to this discussion. See Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988).

      . Article V, Section 5(A) provides:
      The supreme court has general supervisory jurisdiction over all other courts. It may establish procedural and administrative rules not in conflict with law and may assign a sitting or retired judge to any court. The supreme court shall have sole authority to provide by rule for appointments of attorneys as temporary or ad hoc judges of city, municipal, traffic, parish, juvenile, or family courts.

      . This article is applicable to the First Parish Court for the Parish of Jefferson by virtue of LSA-R.S. 13:2561.10.

      . See Official Revision Comment (e); Accardo v. Dimiceli, 226 La. 435, 76 So.2d 521, 522 (1954).

      . Because we find merit in defendant's fifth, sixth, and tenth assignments of error, we pre-termit discussion of his other assignments of error.