author: SUSAN M. CHEHARDY, Judge. WICKER, J.,

text:
    Mary Clulee, Wife of/and Neal CLULEE and Homeplace Batture Leasing, Inc. v. Shirley J. Rousseau, Wife of/and Nicholas P. GIAMBELLUCA, Marie A. Sunseri, Wife of/and Michael J. Giambelluca, Beverly Construction Company, L.L.C. and Phillip Family, L.L.C.
    No. 08-CA-645.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Beevers and Beevers, L.L.P., Gretna, LA, for Appellees, Mary and Neal Clulee.
    Anthony J. Staines, Stephen Mattesky, Aaron K. Rives, Staines and Eppling, Me-tairie, LA, for Intervenor/Appellant, Bayou Fleet Partnership.
    Panel composed of Judge SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2This particular litigation is over the ownership of a 25-foot strip of batture land in St. Charles Parish. The property in question is the southern half of the strip of land, which was a road formerly known as the Morgan Street Extension. The former Morgan Street Extension lies between two tracts of land; the Dugazon tract is north of the road and the Rivarde Place is south of the road. To put this litigation into context, it is beneficial to understand the relationship of the parties to the property at issue.

In 1870, Michael Hahn acquired a plantation on the Mississippi River in St. Charles Parish. Two years later, Hahn subdivided the land according to a plat. When the property was subdivided, it included a road that ran from River Road over the levee across the batture to the water’s edge. The road came to be known as Morgan Street. The portion of the road that ran across the batture, i.e., from the riverside toe of the levee to the water’s edge, is known as the Morgan Street Extension.

|3In 1872, Hahn sold the parcel south of Morgan Street, which included the batture, to Rivarde. The title to that parcel, which is commonly referred to as the Rivarde Place, reflected that it was bounded on the north by a "continuation of the line of Morgan Street.” In 1887, during the administration of Hahn’s estate, the sheriff sold the parcel north of Morgan Street, including the batture, to C.T. Dugazon (“Dugazon tract”).

In 1975, the Giambellucas acquired the batture portion of the Dugazon tract, which is north of the strip of land in question, to use in their construction business as a sand pit and materials yard. When the Giambellucas purchased the tract, the levee ramp was in place. The ramp traversed the levee from the toe on the road side to the toe on the river side. The Giambellucas obtained a permit from the Levee Board to use the ramp and, subsequently, asphalted the ramp and used the road to access their property from the levee to the river. The road, which the Giambellucas used in their business, was the Morgan Street extension.

In 1981, the Clulees acquired the Ri-varde Place, which is south of the property in question. According to the property description, the Clulees’ obtained all the land, including batture and levee, bounded on the south by Home Place Plantation, on the east by Sal Saia’s property, on the west by the Mississippi River, and on the north by “a continuation of the line of Morgan Street.” In 1981, the Clulees sold a one-third interest in that property to the Saias.

In 1989, the Clulees began to use the Morgan Street extension in their business of hauling crushed rock off of barges on the river. The Giambellucas, [4who disputed the Clulees’ right to use the road, constructed a gate on their property to block access to the road.

In 1990, the Clulees filed suit seeking a declaratory judgment that the Morgan Street extension in Hahnville, Louisiana from the River Road to the Mississippi River had been “impliedly” dedicated as a public road, and, therefore, could not be blocked. On September 4, 1991, the trial court declared that the Morgan Street extension was a public roach

Subsequently, on May 19, 1992, at the Clulees’ request, the St. Charles Parish Council declared that the Morgan Street extension served no public interest and no longer constituted property utilized or needed by the public. That day, the Council issued ordinance number 92-5-20 revoking and abandoning the Morgan Street Extension as a public road.

On March 12, 1993, the Giambellucas filed suit, seeking revocation of ordinance number 92-5-20. They also wanted in-junctive relief to prevent the Parish from destroying the levee-crossing ramp that formed part of the Morgan Street Extension, and a writ of mandamus directing the Parish to restore the levee-crossing ramp or, in the alternative, to create a right of passage over adjoining land. The trial judge dismissed the claims but, on appeal, this Court remanded for a trial of the issues on the merits.

On remand, the trial court declared the St. Charles Parish ordinance void and unenforceable in part. On appeal, this Court set aside St. Charles Parish Ordinance 92-5-20 with regard to Morgan Street from River Road to the levee and the public | ¿ramp over the levee. This Court, however, affirmed the revocation of the dedication of the road over the batture or the Morgan Street extension. Id.

When the Giambellucas again tried to assert control over the entire batture road, the Clulees sought a declaratory judgment regarding the ownership of the former Morgan Road extension. Subsequently, the trial court declared that the Clulees owned the southern half of the Morgan Street extension, which abuts their property, and the Giambellucas owned the northern half of the Morgan Street extension, which abutted their property. This Court affirmed that judgment, finding that by operation of law, “the parties each acquired one-half of the [Morgan Street] road bed when the Parish revoked [its] dedication.” Clulee v. Giambelluca, 777 So.2d at 1262.

Meanwhile, to satisfy an earlier judgment, Louisiana Materials provoked the sheriffs sale of the Clulees’ two-thirds interest in the Rivarde Place on January 27, 1993. On April 15,1993, Louisiana Materials sold its recently-obtained two-thirds interest in the Rivarde Place to Bayou Fleet Partnership. Therefore, in 1993, Bayou Fleet did have a two-thirds ownership interest in the entire Rivarde tract. The remaining one-third interest in that property was owned by the Saia family.

On February 12,1996, after a number of clashes with the Saias over property rights, Bayou Fleet petitioned to have the Rivarde Place partitioned by licitation. After the litigation began, Home Place Batture Leasing, Inc. (“Home Place”), through Neal Clulee, purchased the Saias’ one-third interest in the Rivarde | (iPlace. Thus, in 1996, Home Place Batture Leasing through the Clulees owned one-third of the Rivarde Place and Bayou Fleet owned two-thirds of Rivarde Place.

At trial, the district court judge ordered that the property be partitioned by licitation and sold at public auction by the Sheriff. Home Place appealed that ruling. After careful review of the record, this Court found that the trial judge erred as a matter of law, reversed the judgment, ordered that the property be partitioned in kind, and remanded to the district court for further proceedings.

On May 27,1999, when the property was partitioned in kind, the Clulees were awarded, pursuant to law, the northernmost one-third of the entire Rivarde Place, which abutted Morgan Road and the former Morgan Road extension. Bayou Fleet was awarded ownership and all its attendant rights to the other two-thirds, or the remaining and southernmost portion, of the Rivarde Place.

On March 22, 2002, the Clulees and Home Place Batture Leasing, Inc. sued the Giambellucas, Beverly Construction C., LLC, and Phillip Family, LLC, for damages for continued trespass onto the Clu-lees’ 25-foot strip of batture land, including conversion of sand from the Clulees’ batture land and interference with the Clu-lees’ use and enjoyment of their property. Later that year, on October 16, 2002, Bayou Fleet filed a Motion for Leave to file an Intervention, on the basis that it was also entitled to damages because it still held a two-thirds interest in the Morgan Street extension. In sum, Bayou Fleet argues that it still holds a two-thirds interest in the 25-foot strip of batture land formerly known as the Morgan Street extension because the strip was never named in or added to any property 17description when the land was transferred after the road was undedicated by the Parish.

On September 18, 2007 at the hearing on Motion for Leave to Intervene, Bayou Fleet introduced evidence, including various Acts of Sale of all or part of Rivarde Place dating back to 1974; the 1999 Judgment of Partition of Rivarde Place; property tax records; a certified copy of St. Charles Parish ordinance 92-5-20 revoking the Morgan Street dedication; and reported opinions of this Court on rights of various parties with respect to Rivarde Place. At that same hearing, the Clulees introduced virtually the same documents, including documents to support the chain of title; property tax records; judgments from the district court and opinions from this Court.

On December 14, 2007, the trial judge dismissed “Bayou Fleet Partnership’s Intervention to be declared owner of a two-third [2/3] undivided interest in the Southern twenty-five [25] feet of the property comprising the Morgan Street Extension.” Further, the trial judge denied “Bayou Fleet Partnership’s request ... that the Court declare a Right of Passage across the plaintiffs’ property” ... “as not plead and suitable for adjudication in this intervention proceeding.” Furthermore, the trial judge made the following findings of fact:

This case arises out of a property dispute between the intervener, Bayou Fleet Partnership [hereinafter Bayou Fleet], who contends that it owns a two-third [2/3] undivided interest in the southern twenty-five (25) feet of the roadway property referred to as the “Morgan Street Extension,” and the plaintiffs, Mary Clulee, Neal Clulee and Home Place Batture Leasing Inc. [hereinafter Mary Clulee, et al], who claim they are the sole owners of the southern twenty-five (25) feet of the Morgan Street Extension because they are the owners of the directly adjacent property; additionally, they claim Bayou Fleet never acquired an interest in the “Morgan Street Extension,” since Bayou Fleet’s acquisition documents originating from a Sheriffs Sale failed to include a legal description of the “Morgan Street Extension.”
Prior to 1992, the Morgan Street Extension was a public road owned and maintained by the Parish of St. Charles, State of Louisiana. |8The Morgan Street Extension is an unpaved road running east to west over the Mississippi River levee and dead-ending into the Mississippi River. On May 19,1992, the St. Charles Parish Council adopted an ordinance whereby the Parish revoked and abandoned the Morgan Street Extension. At the time of the revocation, Mary and Neal Clulee together with Salvador Saia owned the property south of the Morgan Street Extension, and the Giambelluea Family owned the property north of the Morgan Street Extension.
On January 27, 1993, the Clulees’ interest in the Mississippi River batture property south of the Morgan Street Extension was sold at Sheriffs Sale to Louisiana Materials Co., Inc. (a company related in interest to Intervener). However, the Sheriffs sale to Louisiana Materials Company, Inc did not include the legal description of the property comprising the Morgan Street Extension. Intervener, Bayou Fleet, subsequently acquired Louisiana Materials Co.’s interest in the Mississippi River batture property south of the Morgan Street Extension while Home Place Bat-ture Leasing acquired a one-third [1/3] interest in the property from the heirs of Salvador Saia. Despite numerous transfers of the property adjacent to the Morgan Street Extension, the property comprising the Morgan Street Extension was never included in any legal description on acquisition documents by Intervener.
On June 2, 1999 Intervener Bayou Fleet obtained a Judgment of Partition of the property south of the Morgan Street Extension from the 24th Judicial District Court in Jefferson Parish. The partition of the property resulted in (1) Home Place Batture Leasing obtaining the lot adjacent to the property comprising the Morgan Street Extension and (2) Bayou Fleet obtaining the remaining two [2] lots which do not front on the property comprising the Morgan Street Extension. Following this, on February 18, 2000, the 29th Judicial District Court, Division C, in case number 51,-940, entitled Mary Clulee wife of/ and Neal Clulee and Home Place Batture Leasing, Inc., vs. Nicholas P. Giambel-lúea, Michael J. Giambelluea, and Giam-belluca Land & Development Co., Inc., issued a judgment recognizing: (1) Mary and Neal Clulee as the owners of the southern 25 ft. of the property comprising the Morgan Street Extension and (2) Nicholas P. Giambelluea and Michael J. Giambelluea as the owners of the northern twenty-five [25] feet. It is important to note that Bayou Fleet filed a Motion to Intervene prior to the court’s ruling in this case (number 51,940 Mary Clulee wife of/ and Neal Clulee and Home Place Batture Leasing, Inc., vs. Nicholas P. Giambelluea, Michael J. Gi-ambelluca, and Giambelluea Land & Development Co., Inc.) alleging Bayou Fleet’s ownership interest in the Morgan Street Extension roadway. The trial court denied the Motion to Intervene as untimely. Bayou Fleet filed a Supervisory Wi’it with the Louisiana 5th[sic] Circuit Court of Appeals which affirmed the lower court’s decision.
|nAt trial Bayou Fleet argued that it is entitled to a two-thirds [2/3] ownership interest in the Southern twenty-five [25] feet of the roadway comprising the Morgan Street Extension because: (1) at the time of the Parish’s revocation the ownership of the property comprising the Morgan Street Extension “reverted to the then present owner or owners of the land contiguous thereto,” (citing Martin v. Fuller, 214 La. 404, 37 So.2d 851 (La.1948)); and (2) Bayou Fleet is the successor in interest, by vii’tue of chain of title, to the owners of the adjacent property at the time of the Parish’s revocation of the Morgan Street Extension. The Court however is not persuaded by Bayou Fleet’s suggestion that Martin v. Fuller ... is necessarily dispositive of the case at bar. The Court notes that Bayou Fleet, although a subsequent purchaser of an ownership interest in the adjacent property, was not the “present owner” of an interest in the adjacent property at the time of the public revocation and abandonment of the roadway. Furthermore, to acknowledge Bayou Fleet’s ownership interest in the Southern twenty-five (25) feet of the property comprising the Morgan Street Extension, Bayou Fleet’s chain of title must necessarily comport with traditional requirements governing transfers of interest in real property, which requires parties to a transfer of real property to provide a legal description of that property. Unfortunately for Bayou Fleet the legal description of the property comprising the Morgan Street Extension was not included in the Sheriffs sale documents or any other ownership transfer document to Bayou Fleet.
Bayou Fleet’s request at trial to grant a Louisiana Civil Code Article 689 Right of Passage is denied as not plead and developed for litigation by Bayou Fleet’s intervening pleadings in this case. The testimony of Intervener’s representative, Mr. Robin Durant, merely asserted that Bayou Fleet’s property was landlocked. Neither the intervening pleadings nor the evidence at trial established the LCC [sic] Article 691 and 692 prerequisites for a right of passage (location of road, type of road, construction specifications, etc) and therefore, Bayou Fleet’s request that the Court grant a Right of Passage across the property belonging to the plaintiffs, Mary Clulee, et al, must be denied in this litigation. That issue is reserved for future resolution. (Emphasis added).

La. C.C.P. art. 1091 provides, in pertinent part:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

IiqTo be allowed to intervene, the challenge is two-fold: the intervener must have a justiciable interest in, and a connexity to, the principal action. “[Justiciable right” as it is used in the context of an intervention as “the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.” The jurisprudence has held that the justiciable right must be “so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervener’s rights.”

In this case, the trial judge found that Bayou Fleet did not prove that it had a current ownership interest in the former Morgan Street extension necessary to establish a justiciable interest in the Clulees’ suit for trespass against the Giambellucas and their successors-in-interest. Upon review, we cannot say that the trial judge was clearly wrong. Pursuant to the 1999 partition sought by Bayou Fleet, the Clu-lees obtained 100% of the rights particular to the northernmost one-third of the Ri-varde Place, which happened to include ownership of the adjacent 25-foot strip formerly known as the Morgan Street extension. Bayou Fleet did not introduce evidence to the contrary. Accordingly, we find that the trial court was correct in refusing to allow Bayou Fleet’s intervention.

Bayou Fleet further ' argues that the trial judge erred in failing to award it a right of passage “across the Clulees’ property at a point fronting the Mississippi River in an area not affected by seasonal flooding.” The trial judge denied this claim because it was not plead. We agree. Bayou Fleet’s Petition for Intervention _[nfocused on establishing an ownership right in the batture road to share in any award in favor of the Clulees for trespass by the neighboring landowner.

The trial judge further found that Bayou Fleet had not introduced evidence to establish a right of passage. Upon review, we find that Bayou Fleet did not introduce evidence that it was an enclosed estate or other elements necessary to support burdening its neighboring estate with a servitude. See La. C.C. art 690 et aeq. Based on the foregoing, we affirm the trial court’s refusal to adjudicate Bayou Fleet’s right of passage as well as the trial court’s dismissal of Bayou Fleet’s Petition for Intervention. Costs of this appeal are taxed solely to Bayou Fleet Partnership.

AFFIRMED.

WICKER, J., dissents in part.

WICKER, J.,

dissenting in part.

1U agree with the majority insofar as the majority affirms that portion of the judgment denying Bayou Fleet Partnership’s request that it be granted a right of access across the plaintiffs’ property. However, I respectfully dissent from that part of the opinion which affirms the portion of the trial court judgment dismissing Bayou Fleet Partnership’s intervention. In my view, the majority errs in affirming the judgment in its entirety.

The majority views the 1999 partition as determinative of the ownership of the disputed tract. The majority concludes that the Clulees, by that judgment, obtained 100% of the rights allotted to that tract, which included ownership of the adjacent 25-foot strip of batture land. I disagree for the reasons that follow.

Bayou Fleet argued it owns a two-thirds undivided ownership interest in the Southern twenty-five feet of the roadway because in 1992 when the Parish revoked public use of the road, the ownership reverted to the present owner of the land that was contiguous to the road. Bayou Fleet argued that it had that ownership interest, as the successor in interest to the owners of the adjacent property at the time of the Parish revocation. The Clulees and Homeplace disagreed because, among other things, there was no act in the 12chain of title that included a description of the road and the ownership of the roadbed was previously declared as owned by the Giambellucas and the Clulees.

The testimony and evidence at trial, along with prior litigation to which the trial judge took judicial notice, revealed the following:

On May 19, 1992, the St. Charles Parish Council adopted an ordinance whereby the Parish revoked and abandoned the Extension of Morgan Street, which had been a public road. The road ran from La. Highway 18 (River Road) to the Mississippi River. At the time the Parish revoked the road, the Giambellucas owned the property North of the road. The Clulees and Salvador Saia owned the property South of the road, known as the Rivarde Tract. The Clulees owned a two-thirds undivided interest in the Southern property, while Saia owned a one-third undivided interest.

Robin Blair Durant, Bayou Fleet’s managing partner, testified that he is an owner of Bayou fleet Partnership. Louisiana Materials Co., Inc. was a family-owned corporation. On Februai'y 14, 1989, Louisiana Materials was granted a judgment against several other defendants, including Neal Clulee. As a result of that judgment, in January 1993, the Clulees’ undivided two-thirds interest in the Mississippi River batture property South of the Morgan Street Extension was sold at a Sheriffs sale to Louisiana Materials Co. Inc. The Saia family had the other one-third undivided interest in that property. A few months later in 1993, Bayou Fleet purchased from Louisiana Materials the two-thirds undivided interest in the Rivarde Tract.

Mr. Durand testified that Bayou Fleet attempted to reach an agreement with the Saias regarding reimbursement to Bayou Fleet for taxes, and maintenance of the property. No agreement was ever reached and the Saias were not interested in selling their portion or in purchasing Bayou |aFleet’s portion. As a result of the breakdown in communication, and the failure to resolve the dispute, Bayou Fleet filed suit against the Saias seeking to sell the undivided property at a public auction in order that one person own the property.

But, in 1996, before the suit was tried, Mr. Saia became ill and the Saias sold their undivided one-third interest to Homeplace Batture Leasing, Inc. Neal Clulee, as president of Homeplace, represented Homeplace at the sale transaction. Ultimately, the matter was tried. At the district court level, Bayou Fleet was sue-cessful in arguing that the property should be divided by licitation. On appeal, this court reversed and remanded the matter to the district court. Bayou Fleet Partnership v. Saia, 98-306 (La.App. 5 Cir. 2/5/99), 745 So.2d 629, writ denied, 99-0459 (La.4/1/99), 742 So.2d 559.

In that opinion, this court recited the history of the litigation:

On February 12, 1996, Bayou Fleet filed a petition to have the property partitioned by licitation. On May 22, 1996, Home Place Batture Leasing, Inc. (hereinafter Home Place) purchased the Saia family’s one-third (1/3) interest in the land for $23,000.00. On June 11, 1996, Home Place intervened in the suit, praying that the property be partitioned in kind. The Saia family was later dismissed from the suit.

98-306 at 2, 745 So.2d at 629.

The court explained:

The trial judge ordered that the property be partitioned by licitation and sold at public auction by the Sheriff, with costs of these proceedings assessed against the gross proceeds of the sale. The trial judge ordered partition by licitation because he concluded that the best use for this property is barge fleeting and that the possibility of Home Place getting the middle lot existed since the selection process must be random. Thus, he concluded that the property could not be conveniently divided and that division would result in a diminution of the property’s value.

98-306 at 5, 745 So.2d at 631.

|4This court reversed the judgment of the trial court, ordered that the property be partitioned in kind, and remanded the matter to the district court for further proceedings. 98-306 at 8, 745 So.2d at 632.

The trial judge then rendered a judgment on June 2, 1999 after conducting a random lot selection process. He divided the lots as A, B, and C. He flipped a coin to determine who would choose first. As a result, Homeplace chose first. Bayou Fleet was declared owner of Lots B and C and Homeplace owner of Lot A as indicated by the attached Appendix. The oumership of the Morgan Street Extension was not addressed in that judgment.

The first time that ownership was addressed was in February 2000, when the 29th Judicial District Court trial judge rendered a declaratory judgment dividing the ownership of the Morgan Street Extension. The court recognized Mary and Neal Clulee as owners of the Southern one-half (25 feet) of the property from the riverside toe of the Mississippi River Levee to the Mississippi river. The court further declared that Nicholas P. Giambel-luca and Michael J. Giambelluca were the owners of the Northern one-half (25 feet). The Giambellucas appealed the judgment asserting that they owned the entire roadbed between their batture properties. Clulee v. Giambelluca, 00-1057 (La.App. 5 Cir. 1/23/01), 777 So.2d 1259. This court affirmed the judgment.

Mr. Durant testified that when Bayou Fleet discovered that there was a potential claim for ownership of the road, they attempted to intervene in that suit. However, testimony had been received at that point and the trial judge denied the request to intervene. A supervisory writ was denied by this court without reasons. Clulee v. Giambelluca, 00-108 (La.App. 5 Cir. 2/18/00) (unpublished). According to the appellate opinion, the trial judge | .^rendered judgment declaring ownership on February 18, 2000, the same date as this court’s writ denial. Clulee v. Giambelluca, 00-1057 at 7, 777 So.2d at 1263. Thus, it appears that the intervention was untimely filed. In any event, Bayou Fleet was not a party to the suit for a declaratory judgment regarding ownership of the Morgan Street Extension.

Mr. Durant explained that the instant suit was the first opportunity Bayou Fleet had to assert its ownership interest in the road.

At trial, Ms. Clulee, Mr. Clulee’s wife, testified she was married to Mr. Clulee at the time they acquired an ownership interest in the Rivarde Tract. Homeplace is a company that is owned by the Clulees. In her opinion, she and her husband asserted an ownership interest in the Morgan Street Extension in litigation involving the Giambellucas on the basis that they were adjacent property owners at the time of the revocation and also because they became the owners following the judicial partition when they were awarded lot A.

Albert S. Cote, a title abstracter, testified as an expert in title examinations and real estate. He performed a title examination of the Morgan Street Extension in 2007. The writ of seizure did not include a legal description of the Morgan Street Extension, which is the bounding piece of property. The sale from Louisiana materials to Bayou Fleet did not include the extension. Only the Rivarde property was described in the Sheriffs sale. The sale from Saia to Homeplace did not mention the extension. It only mentioned the Ri-varde property. In the conveyance records, the extension is not legally described anywhere. Before the 1992 revocation, Louisiana Materials had a lien on the Clu-lees’ property — the Rivarde tract. Mr. Cote, has had experience with revocations of public roads. Sometimes the revoked roads are described in sales and sometimes they are not.

| ¡¡The evidence at trial revealed that although there have been numerous transfers of the Rivarde Tract, which is adjacent to the Morgan Street Extension, the Morgan Street Extension was never included in any legal description on acquisition documents, including documents concerning the Sheriffs sale to Louisiana Materials. Additionally, when the Clulees filed for bankruptcy in 1992 about four months after the Parish’s revocation, they did not list among their assets an ownership interest in the Morgan Street Extension.

La. R.S. 48:701 pertinently provides:

The parish governing authorities ... of the state ... may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within the respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes.
Upon such revocation, all of the soil covered by and embraced in the roads, streets, or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto[.]

Therefore, at the time of the Parish revocation, the Morgan street Extension reverted to “the then present owner or owners of the land contiguous thereto.”

As a result of the revocation, the road again became part and parcel of the property from which it had been originally carved and the ownership then became vested in accordance with the ownership of the property contiguous thereto at the time of the revocation. Martin v. Fuller, 214 La. 404, 422, 37 So.2d 851, 857 (La.1948).

It is undisputed that at that time, the Clulees, Giambellucas, and Saia owned the contiguous property. The Giambellucas owned the property North of the road while the Clulees and Salvador Saia owned the Rivarde Tract, which was property South of the road. The Clulees owned a twojthirds7 undivided interest in the Southern property, while Saia owned a one-third undivided interest. Pursuant to R.S. 48:701, the ownership of the road vested as follows: The Giambellucas acquired the Northern twenty-five foot tract and the Clulees together with Saia acquired the Southern twenty-five foot tract. The Clulees acquired a two-thirds interest in the Southern tract with Saia acquiring the remaining one-third interest.

The parties disagree, however, as to whether Bayou Fleet subsequently acquired an interest in the Southern twenty-five feet of the former Morgan Street Extension. The trial judge concluded that since the sale and acquisition documents did not contain a description of the Morgan Street Extension, Bayou Fleet never acquired ownership.

Appellant argues the trial judge erred because the presumption of transfer provided in La. R.S. 9:2981 governs and, therefore, the interest in the abandoned road was transferred along with the Clu-lees’ ownership interest in the Rivarde Tract. I agree that the trial judge erred in failing to apply the presumption.

La. R.S. 9:2981, which was added in 1958, provides for a conclusive presumption of the grant of interest in an abandoned road:

It shall be conclusively presumed that any transfer, grant, sale or mortgage of land and property abutting or contiguous to an abandoned road, street or alley, the dedication of which has been revoked, shall be held, deemed and construed to include all of grantor’s or mortgagor’s interest in and to said abandoned road, street, or alley, in the absence of any express provision therein particularly excluding the abandoned property therefrom; provided further, however, that no then existing valid servitude or rights of third parties in or on the abandoned property shall be in any manner or to any extent impaired, prejudiced, or otherwise affected by any of the terms and provisions of this Part.

1 ^Appellees argue, however, that jurisprudence interpreting a similar provision, La.R.S. 9:2971, does not support a presumption that the Clulees’ interest in the abandoned road was ever transferred. Bayou Fleet disagrees.

R.S. 9:2971 provides:

It shall be conclusively presumed that any transfer, conveyance, surface lease, mineral lease, mortgage or any other contract, or grant affecting land described as fronting on or bounded by, oí-as described pursuant to a survey or using a metes and bounds description that shows that it actually fronts on or is bounded by a waterway, canal, highway, road, street, alley, railroad, or other right-of-way, shall be held, deemed and construed to include all of grantor’s interest in and under such waterway, canal, highway, road, street, alley, railroad, or other right-of-way, whatever that interest may be, in the absence of any express provision therein particularly excluding the same therefrom; provided, that where the grantor at the time of the transfer or other grant holds as owner the title to the fee of the land situated on both sides thereof and makes a transfer or other grant affecting the land situated on only one side thereof, it shall then be conclusively presumed, in the absence of any express provision therein particularly excluding the same therefrom, that the transfer or other such grant thereof shall include the grantor’s interest to the center of such waterway, canal, highway, road, street, alley, railroad, or other right-of-way; provided further, however, that no then existing valid right-of-way upon, across or over said property so transferred or conveyed or so presumed to be conveyed and no warranties with respect thereto shall be in any manner or to any extent impaired, prejudiced, or otherwise affected by any of the terms and provisions of this Part or because of the failure of such grantor or transferror to therein make special reference to such right-of-way or to include or exclude same therefrom.

In Crown Zellerbach Corp. v. Heck, 407 So.2d 770, 773-74 (La.App. 1 Cir.1981), a case involving mineral rights, the First Circuit interpreted the phrase “described as fronting on or bounded by” in R.S. 9:2971 and found that the presumption did not apply in that case. In Crown, the property description in the deeds did not describe the property as “fronting on or bounded by” the highway or right-of-way. The court held that the omission evidenced the intent to convey only the property included within the exact 19and precise limits of the surveyed description. It concluded that a survey that excluded the contiguous land satisfies the express reservation requirement.

Crown interpreted the pre-2003 version of the statute. In 2003, the legislature amended the statute to provide for other means of describing the property. The legislature added: “or as described pursuant to a survey or using a metes and bounds description that shows that it actually fronts on or is bounded by” before the phrase “a waterway, canal, highway, road, street, alley, railroad, or other right-of-wayf.]”

All of the subsequent transfers to Louisiana Materials and then to Bayou Fleet contain a metes and bounds description that shows that the Rivarde Tract is bounded by Morgan Street. There is no express provision that particularly excludes the road. Thus, even assuming that R.S. 9:2971 applies to this situation, the presumption applies.

The Clulees also argue that La.R.S. 13:3851 provides that Sheriffs sales are sales per aversionem. As such, Louisiana Materials only acquired the property that was specifically described in the writ of seizure and sale.

La.R.S. 13:3851 pertinently provides:

Whenever a party to an action or proceeding desires to have the sheriff to whom a writ of attachment, sequestration, distringas, fieri facias, or seizure and sale is directed make a constructive seizure of any immovable property, whether vacant or improved, under the provisions of R.S. 13:3851 through 13:3861, the party shall annex to the writ at the time of its issuance, or deliver to the sheriff to whom the writ is directed, an exact and complete description of the immovable property to be seized.

Appellees rely on Cornish v. Kinder Canal Co., 267 So.2d 625, 629 (La.App. 3 Cir.1972), writ denied, 263 La. 624, 268 So.2d 679 (La.1972), 10application not considered, 263 La. 800, 269 So.2d 248 (La.1972) for its holding that in a sale of immovable property by certain bounds or limits, the vendee receives all of the land embraced within those limits, and nothing more. But in that case, the court could not rely on the presumption in R.S. 9:2971 because the act was retroactive. 267 So.2d at 631.

Pursuant to R.S. 9:2981, the Sheriffs sale conveyed the additional interest in the Morgan Street Extension to Louisiana Materials because there was no “express provision therein particularly excluding the abandoned property therefrom.”

Likewise, Bayou Fleet acquired the Clu-lees’ former two-thirds undivided interest in the Rivarde Tract from Louisiana Materials with no express provision excluding the abandoned property. Therefore, Bayou Fleet rather than the Clulees own an undivided two-thirds interest in the Southern twenty-five feet of the Morgan Street Extension.

I disagree with the majority that the 1999 partition judgment determined ownership of the disputed property. It was not until 2000 that the ownership interest in that property was ever addressed. Although the 2000 judgment declared the Clulees and the Giambellucas to be the owners of the road, Bayou Fleet was not a party to those proceedings and until the instant proceeding has never had its ownership claim considered on the merits. In Law Offices of Robert M. Becnel v. Ancale, 00-295 (La.App. 5 Cir. 9/26/00), 769 So.2d 761, 763-64, this circuit addressed a similar situation. In that case, an attorney had originally intervened to assert an interest in attorney’s fees and costs. The court had dismissed the intervention without ruling on the merits. Ancale held that the former dismissal of the intervention could not serve as the basis for maintaining a Inplea of res judicata in the subsequent Ancale case. 769 So.2d at 764. Therefore, to the extent that appellees rely on the 2000 judgment, that reliance is misplaced.

For these reasons, I respectfully dissent from that portion of the opinion which affirms the judgment dismissing Bayou fleet’s intervention. I would reverse that portion of the trial court judgment of December 14, 2007 dismissing Bayou Fleet Partnership’s intervention; render judgment declaring that Bayou Fleet Partnership is the owner of an undivided two-thirds interest in the Southern twenty-five feet of the property comprising the Morgan Street Extension, and remand this matter for further proceedings.

      . Batture is the property between the toe of the levee and the low watermark of a navigable water body. Here, the property, which is approximately 23 miles upriver from New Orleans, Louisiana, is between the toe of the levee and the Mississippi River in St. Charles Parish.

        . Clulee v. Giambelluca, 00-1057 (La.App. 5 Cir. 1/23/01), 777 So.2d 1259, 1260-1261, writ denied, 01-0789 (La.5/4/01), 791 So.2d 660.

      . Id.

      . Giambelluca v. Parish of St. Charles, 96-364 (La.App. 5 Cir. 11/14/96), 687 So.2d 423, 425-426, writs denied, 96-3096 (La.2/21/97), 688 So.2d 512; 97-0160 (La.2/21/97), 688 So.2d 513

      . Id.

      . The parties introduced a certified copy of the revocation ordinance into evidence at trial and the trial court took judicial notice of that ordinance. La. C.E. art. 202(A); Bayou Liberty Ass'n, Inc. v. St. Tammany Parish Council, 05-1228 (La.App. 1 Cir. 6/9/06), 938 So.2d 724, 729(judicial notice is mandatory, even without request, as to ordinances enacted by any political subdivision within the court's territorial jurisdiction, if a certified copy of the ordinance is filed with the clerk of court).

      . Giambelluca v. The Parish of St. Charles, 626 So.2d 740 (La.App. 5 Cir.1993).

      . Giambelluca v. Parish of St. Charles, 96-364 (La.App. 5 Cir. 11/14/96), 687 So.2d 423, writs denied, 96-3096 (La.2/21/97), 688 So.2d 512; 97-0160 (La.2/21/97), 688 So.2d 513.

      . The trial court ruled on February 18, 2000.

      . Clulee v. Giambelluca, 777 So.2d at 1262. The Louisiana Supreme Court denied writs. Clulee v. Giambelluca, 01-0789 (La.5/4/01), 791 So.2d 660. That judgment was final when the delay for rehearing expired, which was well before the instant action was instituted.

      . In 1989, Louisiana Materials, Co., Inc. sued on an open account and the Clulees, among others, were cast in judgment for $39,434.41 plus interest, costs, and attorney fees. The Sheriffs Sale of the Clulees’ interest in Rivarde Place was recorded on January 29, 1993.

      . On June 11, 1996, Home Place intervened in Bayou Fleet’s suit, praying that the property be partitioned in kind. Bayou Fleet Partnership v. Saia, 98-306 (La.App. 5 Cir. 2/5/99), 745 So.2d 629, 629-632. The Saia family was later dismissed from the suit.

      . Bayou Fleet Partnership v. Saia, 98-306 (La.App. 5 Cir. 2/5/99), 745 So.2d 629, 629-632, writ denied, 99-459 (La.4/1/99), 742 So.2d 559.

      . Livingston Downs Racing Association, Inc. v. State, Through Edwards, 96-1988 (La.App. 1 Cir. 9/23/97) 700 So.2d 1021, 1023.

      . Amoco Production Company v. Columbia Gas Transmission Corporation, 455 So.2d 1260, 1264 (La.App. 4 Cir.), writs denied, 459 So.2d 542 (La.1984), 459 So.2d 543 (La.1984).

        . Livingston Downs Racing Association, Inc. v. State, Through Edwards, 700 So.2d at 1024.

      . Added by Acts 1956, No. 555, § 1. Amended by Acts 2003, No. 723, § 1.

      . As amended by Acts 2003, No. 723, § 1.


source: Caselaw Access Project

author: MADELINE JASMINE, Judge Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Corey LEE.
    No. 09-KA-37.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2The defendant, Corey Lee, has appealed his convictions and sentences on two counts of armed robbery. For the reasons that follow, we affirm the convictions and sentences, and remand for correction of the commitment minute entry to have it conform with the transcript.

FACTS

At trial, Detective James Shook testified that he was a member of the Jefferson Parish Sheriffs Office and was assigned patrol in the first district on September 10, 2006. On that date, he was dispatched to 393 Brooklyn Avenue in response to a report of an armed robbery and auto theft. He met with the victim, Cassidy Klein. Mr. Klein described the perpetrator as being around “five nine, one forty, approximately around eighteen years of age, wearing a black outfit, a Dickies outfit.” A description of the suspect and the vehicle was given but to no avail.

| oOn September 27, 2006, Detective Shook was on patrol when he received a call from #2 San Jose, which is located about a mile to a mile and a half from 393 Brooklyn Avenue. The victim, Jeffrey Trauth, stated that he had been robbed and car jacked in front of his house. Mr. Trauth described the robber as being a “black male about five ten, one sixty, fifteen to sixteen years of age. He stated he had a distinctive look to him. He said he had a round face with lines and somewhat bags under [h]is eyes.” Detective Shook testified that, due to his knowledge of the community, he thought of the defendant, Corey Lee, when he heard the description.

Cassidy Klein, the victim in the first robbery, testified that he lived at 393 Brooklyn Avenue. On September 10, 2006, he walked out of his house to close the sunroof of his car, which was parked on the street in front of his house. He noticed the defendant was seated in a chair on the porch and thought he was a neighbor who was seeking shelter from the rain. Mr. Cassidy explained that after closing the sunroof, as he attempted to enter his house, “Mr. Lee had told me, ‘Wait. Hold up.’ And I turned around and he was pointing a revolver at me.” Mr. Klein described the gun as dark metallic and not chrome. The robber ordered him to give him his keys and, feeling that he had no choice, the victim did so. The defendant looked over his shoulder and backed up to the victim’s car, a 2000 Acura TL, which was later recovered ten blocks from Klein’s house.

Mr. Klein described selecting the robber’s picture from the photographic lineup shown to him by the police. Mr. Klein stated that he was certain that Mr. Lee was the man who robbed him. On cross-examination, Mr. Klein admitted that earlier he had had some amount of doubt from looking at the photographs but after seeing the defendant in person, he had no doubt the defendant was the robber.

|,¡Sergeant Dax Russo of the Robbery Division of the Jefferson Parish Sheriffs Office (JPSO) testified that he participated in the investigation of an armed robbery where Corey Lee was a suspect. He compiled a photographic array of six suspects, one of whom was Corey Lee, to show to the victim. On September 29, 2006, Mr. Klein selected Lee’s photograph from the lineup.

Jeffrey Trauth, the victim of the second robbery, testified that he was at home on September 27, 2006 when a young man knocked on his door and told him that the windows were down in his car. Mr. Trauth went outside and saw two men with a bicycle, one of whom was defendant, about 30 to 40 feet from his front door. Mr. Trauth explained that he went to his car and looked it over. Mr. Trauth testified that when he began walking back to his house, the two men walked up to him. The defendant pulled a .38 revolver from his pants and brandished it in the victim’s face. Mr. Trauth testified that the defendant kept screaming and asked his friend repeatedly “Should I shoot him? Should I shoot him?” over and over. Mr. Trauth testified that he prayed aloud for God to let him live. The robber demanded, “Give it up. Give it up.” While the gun was pointed at his face, the victim surrendered his keys and the robber went to the car and drove away.

Mr. Trauth testified that during this time, the man on the bike was laughing. This man said he had a gun but the victim did not believe him. Mr. Trauth got into a scuffle with this man that ended when the robber who had stolen his car came back. Mr. Trauth explained that he was scared because the gunman had returned; at that point, he released the second man and went inside of his house.

Mr. Trauth testified that he reported the robbery to the police and that later he identified the gunman from a photographic lineup. In court, Jeffrey Trauth positively identified the defendant as the gunman.

| aDetective Pamela Laborie, assigned to the Juvenile Division of JPSO, testified that in September 2006, Deputy Shook informed her that Corey Lee was a possible suspect in an armed robbery that took place at # 2 San Jose. Based on this information, she compiled a photographic lineup of six similar suspects. The photographic lineup was presented to the victim, Jeffrey Trauth, who identified Mr. Lee as the robber. Detective Laborie explained that she then prepared an arrest warrant for the defendant, Corey Lee, who was subsequently arrested. She later discovered that the defendant was a suspect in another armed robbery.

Detective Sergeant John Carroll testified that he interviewed the fifteen year old defendant in connection with these armed robberies. The defendant, who was accompanied by his mother, was informed of his rights and executed a written waiver of these rights. The transcript was published to the jury and the tape recording was played. In the interview, the defendant denied involvement in the robbery of Mr. Klein; he admitted being present for the robbery of Jeffery Trauth, but explained he did not commit the robbery.

At the conclusion of trial, the jury found the defendant guilty of two counts of armed robbery. He was sentenced to fifteen years on each count to run consecutively. This timely appeal followed.

LAW AND DISCUSSION

In his first assignment of error, the defendant argues that the unapproved absence of a member of the venire, Reginald Austin, during jury selection prejudiced his trial and that his request for a mistrial should have been granted.

The record shows that during the selection of the jury, Reginald Austin, a prospective juror, was called for voir dire. Although he had been present in the courtroom earlier, he was no longer in the courtroom when called for the panel. A | (¡search revealed that he was not in the hallway, the bathroom, smoking area, or jury room. Another prospective juror informed the court that Mr. Austin had left after an earlier bathroom break.

After discussing the facts relating to Austin’s absence, the trial court resumed selection of the jury. The defendant moved for a mistrial “based on the fact that [Austin] has disappeared and he was allotted to be sitting on the second panel for us to question.” The trial court denied the motion and jury selection continued with the remaining venire members.

The court ordered a police car to be sent to Austin’s home. Upon being brought back to court, Austin stated that he left court to go to the bathroom in his own home. The court held Austin in contempt and ordered him to remain in the back of the courtroom during the duration of the trial.

Statutory provisions governing mistrial are found in LSA-C.Cr.P. art. 775, which provides as follows:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury ease the jury dismissed, when the state and the defendant jointly move for a mistrial.

17Since a mistrial is a drastic remedy, in instances where it is not mandatory, this relief is warranted only when the defendant suffers substantial prejudice that deprived him of any reasonable expectation of a fair trial. State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612, 617. Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Paul, 05-612 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 352.

The mere fact that ■ prospective jurors composing a petit jury venire were excused or absent does not establish fraud or irreparable injury. State v. Smith, 430 So.2d 31, 37 (La.1983). A defendant in a criminal jury trial has no right to a trial by a particular jury or juror, but only to a trial by a competent, impartial jury. State v. Coleman, 410 So.2d 1079, 1081 (La.1982); State v. Lemelle, 353 So.2d 1312, 1315 (La.1977).

Neither in the trial court nor in brief to this Court, has the defendant asserted prejudice from the denial of a mistrial. Importantly, a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. LSA-C.Cr.P. art. 921.

The defendant relies in part on the case of State v. Cass, 356 So.2d 396 (La.1977) which provides that once a jury has been sworn, the defendant has a right to have his case decided by that jury. As the State points out in brief, however, Mr. Austin was never more than a prospective juror and did not serve on the defendant’s jury. The principles regarding selected jurors explained in Cass do not apply to the absence of a prospective juror.

Based on the foregoing, we find that the trial court did not abuse its wide discretion in denying the defendant’s motion for a mistrial.

|sIn his second assignment of error, the defendant ai-gues that his two consecutive fifteen year sentences for his armed robbery convictions are constitutionally excessive.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered constitutionally excessive, even when it is within the statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655.

In reviewing a' sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. Id., 07-332 at 15, 975 So.2d at 655-56. The trial court is afforded wide discretion in determining sentences and a court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.

In reviewing a trial court’s sentencing discretion, three factors will be considered on appeal: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332 at 15-16, 975 So.2d at 655. Notably, age is an insufficient justification for a downward departure in a sentence. State v. Hernandez, 02-892, p. 5 (La.App. 5 Cir. 1/28/03), 839 So.2d 281, 285.

Sentences above the minimum for first armed robbery offenders have been upheld in this circuit. For example, in State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, an eighteen year old defendant received concurrent sixty year sentences for two armed robberies. This Court upheld the sentences as within the trial court’s discretion. Id. at 14, 904 So.2d at 916. In a recent case involving |9an eighteen year old defendant, State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, the defendant robbed the clerk at a convenience store at gun point. Although the defendant argued mitigating factors on appeal, this Court upheld the twenty-five year sentence as within the trial judge’s sound discretion. Id. at 869.

Furthermore, the Supreme Court of Louisiana has expressly held that sentences between 35 to 50 years were acceptable for first offenders convicted of armed robbery. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49, 50, citing State v. Nealy, 450 So.2d 634, 640 (La.1984); State v. Walker, 449 So.2d 474 (La.1984); State v. Dunns, 441 So.2d 745, 746 (La.1983); State v. Huntsberry, 439 So.2d 432, 433 (La.1983).

In this appeal, the defendant argues that he was a juvenile when he committed the robberies and “no one was harmed.” As this Court has noted in the past, armed robbery is a most serious crime and should be dealt with very sternly. State v. Kennedy, 93-776, p. 14 (La.App. 5 Cir. 1/25/94), 631 So.2d 1195, 1203.

In State v. Butler, 07-1034 (La.App. 5 Cir. 10/28/08), 997 So.2d 631, this Court upheld a twenty year sentence for a sixteen year old armed robber. The defendant in Butler, unlike the defendant in this case, did not have a juvenile record. In State v. Henderson, 42,204, pp. 6-7 (La.App. 2 Cir. 5/23/07), 958 So.2d 101, 105, a twenty year armed robbery sentence, combined with a five-year firearm enhancement, was upheld, despite the defendant’s youthful age of seventeen.

At sentencing, the trial judge in this case specifically noted both the defendant’s youth and his extensive juvenile record, as well as his arrest record. The judge noted the seriousness of the armed robberies and the fact that one of the victims thought he was going to die. The judge stated that he had considered the 1 ^sentencing guidelines and found that any other sentence would deprecate from the seriousness of the crime.

In his brief to this Court, the defendant suggested that the imposition of consecutive sentences was vindictive in light of the fact that the defendant was offered concurrent sentences if he pled guilty. This Court in State v. Aleman, 01-743, pp. 12-13 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066, writ denied, 2002-0481 (La.3/14/03), 839 So.2d 26, addressed questions of vindictiveness in sentencing, despite the defendant’s failure to raise the issue before the trial court.

The Supreme Court of the United States has observed:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., [711] at 738, 89 S.Ct., [2072] at 2082[, 23 L.Ed.2d 656 (1969) ] (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” Chaffin v. Stynchcombe, supra, 412 U.S., [17] at 32-33, n. 20, 93 S.Ct., [1977] at 1986[, 36 L.Ed.2d 714 (1973) ]. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

Bordenkircher v. Hayes, 434 U.S. 357, 363-364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

In State v. Henderson, 94-286, p. 6 (La.App. 5 Cir. 12/14/94), 648 So.2d 974, 978, this Court, citing Bordenkircher, rejected the defendant’s claim that his sentence was vindictive. The defendant in Henderson rejected a plea bargain of a six and a half year sentence, went to trial, and received an eighteen year sentence following conviction. This Court concluded that the defendant’s sentence was not vindictive, because the “defendant chose not to accept the plea bargains offered by the State, thereby taking the risk of a greater penalty upon conviction by a jury.” Id.

|nIn this case, the defendant chose not to accept a plea bargain. Furthermore, as the State notes in brief, during the trial the court heard the testimony of both victims in great detail, thus making the judge aware of the severity of the armed robberies. The State also notes that the court took into account the extensive arrests and juvenile record of the defendant. For these reasons, we find that the sentences imposed in this case were not vindictive.

The Louisiana Supreme Court has stated that, “[o]n review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion.” State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 17. In light of the trial court’s wide discretion in sentencing, as discussed in Pearson, supra, and in light of the abundance of case law in which armed robbery sentences of twenty-five years were upheld, we find the defendant’s sentences are not constitutionally excessive.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The commitment order provides that the defendant was found guilty of two counts of armed robbery and that he was sentenced to fifteen years on each count, sentences to run consecutively. The sentencing transcript reveals the following:

The Court: On Count 1, Armed Robbery, I’m going to sentence you to fifteen years at hard labor. And that’s pursuant to, what is it, 64.4? No. What’s the one with the additional for the handgun?
Ms. Gorman: I believe it’s 64.3, your Honor.
The Court: 64.3. I’m looking at it. That adds another five years. It’s fifteen years at hard labor, without benefit of parole, | ^probation, or suspension of sentence, credit for time served. On Count Number 2, I’m going to sentence you to fifteen years at hard labor, without benefit of parole, probation, because it was a handgun also, without benefit of parole, probation or suspension of sentence, and order that, because these two were individual events happening on different days, order that they run consecutive to each other.

The commitment minute entry is inconsistent with the sentence as imposed by the trial court. The commitment minute entry reflects that the trial judge sentenced the defendant for two armed robbery convictions to fifteen years of imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The commitment minute entry fails to indicate that any portion of the sentences was imposed for the violation of LSA-R.S. 14:64.3. Pursuant to the firearm enhancement statute, the defendant was subject to an additional period of incarceration as follows:

When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

LSA-R.S. 14:64.3(A).

In this case, the State listed the enhancement statute in the bill of information. At sentencing, the trial judge specifically stated that he was imposing an additional period of incarceration for use of a firearm in each armed robbery. The commitment minute entry fails to reflect this sentence accurately. It is well settled that where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

In light of the discrepancies between the commitment minute entry and the transcript, we remand this matter for the trial court to order that the commitment | 13minute entry be amended to reflect the sentence as imposed by the court. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 881.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed. This matter is remanded to the trial court for the limited purpose of correcting the commitment minute entry to conform to the transcript.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED.

      . The bill of information cites the defendant’s date of birth as February 1, 1991, making him fifteen years old at the time of the two armed robberies at issue in this appeal.


author: GUIDRY, J.

text:
    Marlyn ELBERT v. Harold ELBERT.
    No. 2008 CA 2139.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 2009.

      James Don Thomas, II, Baton Rouge, LA, for Plaintiff-Appellant, Marlyn Elbert.
    Etta Kay Hearn, Baton Rouge, LA, for Defendant-Appellee, Harold Elbert.
    Before KUHN, GUIDRY, and GAIDRY, J.J.
   GUIDRY, J.

| ¿Appellant, Marlyn Elbert, appeals the judgment of the family court dismissing with prejudice her request for final periodic spousal support. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Marlyn and Harold Elbert were married on April 12, 1976. Mrs. Elbert filed a petition for divorce on April 16, 2007, stating that she and her husband were currently residing together, but that they planned to physically separate on April 7, 2007. Additionally, Mrs. Elbert stated that she is without sufficient means to provide for herself and requested that Mr. Elbert be ordered to pay her interim spousal support.

On May 16, 2007, Mr. Elbert filed an answer and reconventional demand. In his answer, Mr. Elbert denied Mrs. Elbert’s allegations regarding her need for spousal support and further answered that she has sufficient income and assets to support herself. In addition, Mr. Elbert denied Mrs. Elbert’s statement that the parties were residing together but planned to separate on April 7, 2007, and further answered that Mrs. Elbert had instead voluntarily abandoned the matrimonial domicile on that date.

Thereafter, Mrs. Elbert filed a rule to show cause on October 18, 2007, in which she stated that her original petition for divorce contained no request for final periodic spousal support and requested that final periodic spousal support be awarded to her in an amount equal to or exceeding the amount of interim periodic spousal support she was then receiving. On October 23, 2007, Mr. Elbert filed a rule to show cause requesting that an absolute divorce be rendered in his favor. A judgment of divorce was granted on November 14, 2007. On November 15, 2007, Mr. Elbert filed an opposition to Mrs. Elbert’s rule to show cause, denying Mrs. Elbert’s allegations regarding her request for final periodic spousal support.

|3A hearing on the sole issue of whether Mrs. Elbert was entitled to final periodic spousal support was held on June 23, 2008. Mr. Elbert was called as the first witness by Mrs. Elbert and was questioned concerning his allegation that Mrs. Elbert was at fault in the breakup of the marriage. Mr. Elbert objected to this line of questioning, since he believed that Mrs. Elbert was attempting to enlarge the scope of the pleadings on the issue of fault. Specifically, Mr. Elbert objected on the basis that Mrs. Elbert never alleged freedom from fault in her pleadings, nor did she file an answer in response to his reconventional demand to deny his allegation that she was at fault in the breakup of the marriage as a result of her abandonment. The court sustained Mr. Elbert’s objection. The court then informed Mr. Elbert that it would have to dismiss the matter if he requested such action, because Mrs. Elbert’s case had a “fatal problem” due to her failure to allege freedom from fault. Consequently, Mr. Elbert moved for a dismissal with prejudice, which the court granted.

On June 27, 2008, the family court signed a judgment dismissing Mrs. Elbert’s claim for final periodic spousal support with prejudice. Mrs. Elbert now appeals from this judgment.

DISCUSSION

In sustaining Mr. Elbert’s objection, the court relied on Louisiana Code of Civil Procedure article 1154, which provides, in pertinent part:

[i]f evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

The trial judge has great discretion to admit or disallow evidence subject to an objection based upon the scope of the issues and pleadings and to determine 1¿whether evidence is encompassed by the general issues raised in the pleadings. Muscarello v. Ayo, 93-2081, pp. 4-5 (La.App. 1st Cir.10/7/94), 644 So.2d 846, 849. A court of appeal will not disturb a trial court’s determination in this regard absent an abuse of the trial court’s discretion. See Denton v. Vidrine, 06-0141, p. 13 (La.App. 1st Cir.12/28/06), 951 So.2d 274, 285, writ denied, 07-0172 (La.5/18/07), 957 So.2d 152.

In the instant case, Mrs. Elbert requested that she be awarded final periodic spousal support by filing a rule to show cause. A rule to show cause is a contradictory motion used to commence a summary proceeding, which is appropriate for the determination of entitlement to spousal support. See La. C.C.P. arts. 963, 2591, 2592, 2593. A rule to show cause shall state the grounds therefore and the relief sought and shall comply with La. C.C.P. arts. 853, 854,863, and whenever applicable, with articles 855 through 861. La. C.C.P. art. 962.

In her rule to show cause, Mrs. Elbert stated that she filed for divorce on April 16, 2007, wherein she requested and was awarded interim periodic spousal support, and now requested final periodic spousal support in an amount equal to or exceeding the amount of interim periodic spousal support that she was then receiving. Louisiana Civil Code article 111 provides that in a proceeding for divofce or thereafter, the court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to|5terminate the marriage. Further, La. C.C. art. 112 provides that when a spouse is free from fault and in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support. Accordingly, freedom from fault is a necessary element of a claim for final periodic spousal support, and the burden of proving freedom from fault is on the claimant. See Almon v. Almon, 97-2004, p. 5 (La.App. 1st Cir.9/25/98), 718 So.2d 1073, 1077.

Because no technical forms of pleading are required, and there is no special pleading requirement with regard to pleading entitlement to spousal support, the trial court abused its discretion in finding that evidence as to the issue of Mrs. Elbert’s freedom from fault was not encompassed within her claim for final periodic spousal support. See La. C.C.P. arts. 854-861. Further, Mrs. Elbert’s fault, entitlement to final periodic spousal support, and Mr. Elbert’s ability to pay were listed as contested issues for the hearing on both parties’ pre-trial inserts. As such, fault was clearly an issue to be decided at the hearing and there was no surprise to Mr. Elbert such that he would be prejudiced in his defense of this issue. See Muscarello, 93-2081 at p. 4, 644 So.2d at 848. Consequently, the court abused its discretion in failing to allow Mrs. Elbert to present evidence on the issue of fault and in dismissing her claim for final periodic spousal support with prejudice.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the family court and remand this matter for further proceedings consistent with the reasons expressed |fiherein. All costs of this appeal are to be borne by the appellee, Harold Elbert.

REVERSED AND REMANDED.

      . Louisiana Code of Civil Procedure article 854 provides:
      No technical forms of pleading are required.

        All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

      . Louisiana Code of Civil Procedure article 853 relates to the caption of the pleading and adoption by reference, while article 863 relates to the signing of the pleadings.

      . Louisiana Code of Civil Procedure articles 855-861 relate to pleading the following special matters: capacity; fraud, mistake, or condition of the mind; suspensive conditions; official documents or acts; judgments or decisions; time and place; and special damages.

      .Though Mr. Elbert did not know exactly how Mrs. Elbert would prove her freedom from fault or refute his allegation of abandonment, fault is an issue Mr. Elbert knew Mrs. Elbert would have to establish to prevail on her claim for final periodic spousal support, and he could have sought more particular details through the discovery process.


author: KUHN, J.

text:
    Gerald Lynn AVERY v. CITIMORTGAGE, INC. and Gulf Coast Bank and Trust Company.
    No. 2008 CA 2052.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 2009.

      Harry L. Shoemaker, III, Baton Rouge, Louisiana, for Plaintiff-Appellant, Gerald Lynn Avery.
    Kent A. Lambert, Brian M. Ballay, New Orleans, Louisiana, for Defendant-Appel-lee, CitiMortgage, Inc.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   KUHN, J.

12Plaintiff-appellant, Gerald Lynn Avery, appeals the trial court’s judgment, sustaining the peremptory exceptions raising the objections of res judicata and no cause of action of defendant, CitiMortgage, Inc. (Ci-tiMortgage) and dismissing his petition seeking annulment of a judgment obtained through executory process and return of his residence or, alternatively, damages for negligence and unjust enrichment. We reverse in part and affirm in part.

PROCEDURAL BACKGROUND

Avery filed a petition seeking, among other things, the return of his residence, located in the South St. Gerard subdivision in Baton Rouge, or damages. According to Avery’s petition, on August 18, 2005, CitiMortgage sued to collect, via executory process, the purported balance due on a promissory note, along with interest, late charges, attorney fees and amounts advanced for the protection and preservation of the property subject to the lien of the mortgage. Pursuant to a judgment rendered in that lawsuit, Avery’s residence was seized and sold.

In August 2001, the United States Department of Veterans Affairs adjudicated Avery an incompetent beneficiary and pursuant thereto, the Twenty-Fourth Judicial District Court appointed the defendant, Gulf Coast Bank and Trust Company (“Gulf Coast”), as Avery’s curator empowered to disburse his monthly veteran’s compensation for his benefit, including making his monthly mortgage payments. Avery averred that Gulf Coast properly made those monthly mortgage payments to CitiMortgage, but that they were not properly credited to his account |3by Citi-Mortgage. Thus, he sought to have the executory-process judgment annulled. Alternatively, as raised in his original and amended and supplemental petition, Avery sought damages from CitiMortgage due to its improper crediting of payments tendered by Gulf Coast on his behalf and for unjust enrichment based on CitiMort-gage’s retention of any funds rightfully belonging to him.

CitiMortgage filed peremptory exceptions objecting to Avery’s petition on the basis of res judicata and failure to state a cause of action for which relief may be granted. After a hearing, the trial court sustained both exceptions. A judgment issued in conformity with the trial court’s rulings and dismissing all the claims filed by Avery with prejudice was subsequently signed by the trial judge. Avery appeals.

RES JUDICATA

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. La. C.C.P. art. 1673. A final judgment is conclusive between the parties except on direct review under La. R.S. 13:4231. A final judgment acquires the authority of the thing adjudged if no further review is sought within the time fixed by law or if the judgment is confirmed on review. La. C.C. art. 3506(31); Tolis v. Board of Supervisors of Louisiana State University, 95-1529, p. 2 (La.10/16/95), 660 So.2d 1206, 1206.

14The doctrine of res judicata is defined by La. R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Ordinarily, a second action is barred because it arises out of the same occurrence as the prior action. This provides judicial economy and fairness because the plaintiff must seek all relief and assert all rights arising from the same occurrence in the first action. “[I]t would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.” La. R.S. 13:4231 Comments-1990(a). When the judgment is in favor of the plaintiff, all causes of action asserted are extinguished and merged in the judgment. Causes of action that were not asserted by the plaintiff are extinguished and barred by the judgment. La. R.S. 13:4231.

La. R.S. 13:4231 provides a broad application of res judicata; the purpose is to foster judicial efficiency and protect the defendants from multiple lawsuits. Leon v. Moore, 98-1792, p. 4 (La.App. 1st Cir.4/1/99), 731 So.2d 502, 505, unit 5denied, 99-1294 (La.7/2/99), 747 So.2d 20. However, there are exceptions to this broad application including when exceptional circumstances justify relief from the res judicata effect of the judgment. La. R.S. 13:4232(1).

Generally, to dismiss Avery’s action on the basis of res judicata, a court must find: (1) the judgment in the executory process lawsuit is valid; (2) the judgment is final; (3)the parties are the same; (4) the cause or causes of action asserted in the present suit existed at the time of the final judgment; and (5) the cause or causes of action asserted in the present petition arose out of the transaction or occurrence that was the subject matter of the executory process lawsuit. See Smith v. LeBlanc, 2006-0041, p. 4 (La.App. 1st Cir.8/15/07), 966 So.2d 66, 70.

The party raising the objection of res judicata bears the burden of proving the essential facts to support the objection. Id. The doctrine, however, cannot be invoked unless all its essential elements are present. It is strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection. Id.

Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage evidenced by an authentic act importing a confession of judgment. La. C.C.P. art. 2631. Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspen-sive appeal from the order directing the issuance of the writ of seizure and sale, or both. La. C.C.P. art. 2642.

| fiThe defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an executory proceeding has not been followed. La. C.C.P. art. 2751. And as a general rule, in an appeal from an order issuing a writ of seizure and sale via executory process, the sole contention that can be raised is the authenticity of the process itself. Commercial Securities Co., Inc. v. Ross, 318 So.2d 668, 670 (La.App. 2d Cir.1975); see also Wells v. Standard Mortgage Corp., 2002-0895, p. 3 (La.App. 4th Cir.10/9/02), 865 So.2d 93, 95, writ denied, 2002-2782 (La.1/24/03), 836 So.2d 52 (noting that on appeal of a judgment denying a defendant injunctive relief to suspend the seizure and sale of her property, the issues before the court were whether the plaintiff was the proper entity to move for executory process and whether plaintiff followed the procedure for executory process).

In his petition, Avery concedes that CitiMortgage successfully seized and sold his residence via executory process. Nothing in the record establishes that he timely appealed the judgment rendered in that matter or attempted to arrest the seizure and sale of his residence, and Avery does not contend that he did so. On appeal, Avery does not dispute that the parties in the executory process lawsuit are the same. Thus, it is undisputed that the judgment in the executory process lawsuit is valid; the judgment is final; and the parties in the two lawsuits are the same. And clearly, the two lawsuits arise out of the same transaction or occurrence: the foreclosure of Avery’s residence. The executory process lawsuit was allegedly due to the failure of payments to be credited to Avery’s CitiMortgage account; and 17this suit alleges Avery is entitled to an annulment of the earlier judgment and, alternatively, to damages for the negligent management of the payments made to Ci-tiMortgage and unjust enrichment.

Avery narrowly focuses his challenge on appeal to the trial court’s res judicata dismissal of all his claims. Specifically, he urges that exceptional circumstances justify relief from the res judicata effect of the executory-process judgment insofar as his claims for damages arising from CitiMort-gage’s alleged negligence (i.e., that Citi-Mortgage accepted monthly mortgage payments from Gulf Coast, but failed to properly credit his account) and for unjust enrichment constitute causes of action that warrant relief from the res judicata effect of the earlier judgment. We agree.

Because the executory process lawsuit involved foreclosure of his residence through executory process, Avery was procedurally prohibited from bringing his ordinary negligence action in the executory proceeding. See Wells v. Standard Mortgage Corp., 2002-1984, p. 7 (La.App. 4th Cir.7/9/03), 865 So.2d 112, 116, writ denied, 2003-2262 (La.11/14/03), 858 So.2d 439. Although it appears that Avery did not attempt to arrest the seizure and sale of his residence by injunction under La. C.C.P. art. 2751 or to timely appeal the executory-process judgment, this lack of action on his part is of no moment because Avery is not asserting that the debt was legally unenforceable or that it had been extinguished as required to obtain injunc-tive relief. See Wells, 2002-1934 at p. 5, 865 So.2d at 116. The complicated procedural posture of the respective actions in relation to each other and the unsettled nature of the law constitute exceptional circumstances justifying relief from the effect of the doctrine as to the claim for damages as a result of CitiMortgage’s alleged improper crediting of payments tendered by Gulf Coast on his behalf and for unjust enrichment caused by 1 sCitiMortgage’s alleged retention of any funds rightfully belonging to him. See La. R.S. 13:4232(A)(1). Accordingly, the trial court erred in dismissing these claims for damages.

Moreover Avery does not raise any contentions that, at the time of the execu-tory process lawsuit, the debt was legally unenforceable, that the debt had been extinguished, or that the procedure required by law for an executory proceeding had not been followed, as was required to arrest the seizure and sale of his residence. See La. C.C.P. art. 2751. Further, he has failed to establish that even if one of these grounds for annulment of the executory-process judgment and for return of his residence did exist, that such did not exist at the time of the executory proceeding so as to bar the application of res judicata to this claim. In other words, if Avery had asserted a valid nullity action claim, it would have existed at the time of the final judgment in the executory proceeding and, therefore, cannot be asserted in this lawsuit. And because the other res judicata requirements were established by this record insofar as the nullity action claim, the trial court correctly dismissed that portion of Avery’s petition seeking annulment of the executory-process judgment and return of his residence.

NO CAUSE OF ACTION

Avery also challenges the trial court’s sustaining of the objection of no cause of action to dismiss the damage claims asserted in his petition.

lflThe function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The objection of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Fink v. Bryant, 2001-0987, p. 3 (La.11/28/01), 801 So.2d 346, 348-49. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink, 2001-0987 at p. 4, 801 So.2d at 349.

The facts that Avery alleges in his petition that entitle him to damages are that CitiMortgage received from Gulf Coast payments for his mortgage indebtedness, but that CitiMortgage did not credit his account. He also avers that its retention of these payments unjustly enriched Citi-Mortgage. Taking these facts as true for purposes of evaluating the exception of no cause of action, we find that Avery has presented a scenario that states a cause of action against CitiMortgage on the face of the petition. See Standard Mortgage Corp., 2002-1934 at p. 8, 865 10So.2d at 117. Therefore, the trial court erred in granting CitiMortgage’s exception of no cause of action to dismiss Avery’s claim for damages.

DECREE

For these reasons, that portion of the trial court’s judgment granting the peremptory exception of res judicata and no cause of action to Avery’s claim for damages is reversed; and that portion of the trial court’s judgment granting the peremptory exception of res judicata insofar as Avery’s nullity action claim is affirmed. Appeal costs are assessed against defendant-appellee, CitiMortgage, Inc.

REVERSED IN PART; AFFIRMED IN PART.

      . See the Uniform Veterans' Guardianship Law set forth at La. R.S. 29:351-374.

      . In naming Gulf Coast as a defendant Avery alleges, in the alternative, that Gulf Coast owed a duty to timely pay his monthly mortgage payments on the residence and failed to do so and seeks damages for this failure or for unjust enrichment.

      . CitiMortgage initially filed dilatory exceptions of lack of procedural capacity and nonconformity of the petition, complaining that as an incompetent, Avery lacked capacity to file the petition for nullity on his own behalf. The parties subsequently entered into a written stipulation agreeing that Avery’s adjudication as an incompetent constituted a limited interdiction and that at all times he maintained his rights and authority to sue and be sued, thereby resolving the dilatory objections.

      . Because we have found that the trial court correctly dismissed Avery's nullity action claim on the basis of res judicata, it is unnecessary to review whether his petition stated a cause of action for nullity relief.

      . Although Avery complains that the trial court erroneously denied his motion to continue, because he did not comply with La. District Court Rules Rule 9.8 by timely filing his pleading, we find no error in the trial court's implicit ruling concluding that he failed to show good cause or the necessity for an expedited hearing.