text:
    Ian A. PIERSON, Former Husband, Appellant, v. Jennifer L. PIERSON, Wife, Appellee.
    No. 1D14-79.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.

      Kevin A. McNeill, Lake City, and Carolyn R. Wah, pro hac vice, New York, for Appellant.
    Jennifer L. Pierson, pro se, Appellee.
   PER CURIAM.

Appellant, Ian A. Pierson (“the father”), appeals the trial court’s Amended Final Judgment of Dissolution, raising three issues on appeal. We affirm the amended judgment as to the challenged issues of parental timesharing and equitable distribution without further comment. However, we agree with the father that the trial court abused its discretion in granting Ap-pellee, Jennifer L. Pierson (“the mother”), ultimate authority over the children’s religious upbringing and in prohibiting the father from “doing anything in front of the children or around the children” that “conflicts with the Catholic religion.” We, therefore, reverse the amended judgment as to the religious restriction and remand.

The parties have three minor children who were born in 2003, 2005, and 2009. While the parties’ marriage was intact, the children were raised in the mother’s religion of Catholicism. The mother petitioned for the dissolution of her marriage to the father in 2012. During the parties’ separation, the father became a Jehovah’s Witness. As a result, one of the issues to be decided in the proceedings was the children’s religious training following the dissolution. During the hearing on the petition, the mother called Dr. Charlotte Chadik, the Director of Family Ministries of the mother’s church and a licensed psychotherapist. Dr. Chadik served as the “communication link” between church teachers and parents. When asked whether she was made aware of problems that the parties’ oldest son was having in Sunday School, she testified that the third grade Sunday School teacher reported to her about the child’s “behavior one day,” which included telling the teacher and students that the music they were listening to was wrong, that priests were bad, that he was going to grow up to be a Jehovah’s Witness minister, that the Bible they were using was wrong, and that there was no Heaven. When asked during the hearing if she had an objection to the father exposing the children to his beliefs, the mother expressed her concern that it was “confusing” for the children.

In the amended judgment, the trial court noted Dr. Chadik’s testimony and found the “beginnings of a substantial emotional problem” in the parties’ oldest son, who was then nine years of age, as a result of “being immersed in and exposed to two religions simultaneously.” Based upon the “demonstrated harm,” the court ordered “shared parental responsibility” with the mother having the “ultimate” religious decision-making authority for the children. The court prohibited the father “from doing anything in front of the children or around the children that disparages or conflicts with the Catholic religion.” It also prohibited the mother from disparaging the father’s religious beliefs in front of the children. This appeal followed.

As explained by the United States Supreme Court, parents have the right to direct the religious upbringing of their children. Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child. Mesa v. Mesa, 652 So.2d 456, 457 (Fla. 4th DCA 1995). As explained by the Fourth District in Mesa, “[allowing a court to choose one parent’s religious beliefs and practices over another’s, in the absence of a clear showing of harm to the child, would violate the [F]irst [AJmendment [of the United States Constitution].” Id. In addressing the case before it, the Fourth District agreed with the mother that the trial court erred in prohibiting her from exposing her children to her church’s religious practices where the father presented no evidence that exposing the children to the practices was doing them any harm. Id.; see also Gerencser v. Mills, 4 So.3d 22, 24 n. 2 (Fla. 5th DCA 2009) (“Without a showing of harm to the children, the court should not infringe on either parent’s free exercise of his or her religious beliefs.”); Abbo v. Briskin, 660 So.2d 1157, 1158 (Fla. 4th DCA 1995) (reversing the trial court’s restriction that the mother “not interfere in the development of the child’s Jewish religious training and upbringing, nor should she actively influence the religious training of the child in any other direction, other than the Jewish faith” and noting that “[a]s with married parents who share diverse religious beliefs, the question of a child’s religion must be left to the parents even if they clash”).

In the present case, while Dr. Cha-dik testified about what she was told regarding the parties’ oldest son’s behavior in one Sunday School class, she did not testify in her capacity as a psychotherapist. There was no evidence presented that Dr. Chadik or any other professional ever spoke to or evaluated the child. Nor was there any evidence presented that the parties’ two younger children were harmed by their exposure to the father’s religious beliefs or activities. While the mother’s concern that exposure to two different religions could confuse the children may be reasonable, neither that concern nor the evidence presented below established the requisite showing of harm to grant the mother ultimate religious decision-making authority for the children and to restrict the father from “doing anything in front of the children or around the children that ... conflicts with the Catholic religion.”

Case law from out-of-state jurisdictions supports our determination in this case. For instance, in Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130, 1132 (1990), the appellate court held that an order prohibiting a father from taking his children to religious services that were “contrary to the Jewish faith” during periods of lawful custody or visitation violated his constitutional rights and was an abuse of discretion. The appellate court noted that parents who are married may have differing opinions on the issues of politics and religion and that intervention is permitted only upon a showing of a substantial risk of harm to a child. Id. at 1140. The court saw no reason to treat such disagreements between divorced parents differently and held that the requirement of a substantial threat of physical or mental harm to a child is applicable to proposed restrictions on a parent’s post-divorce parental rights regarding the religious upbringing. Id. at 1140-41; see also Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606, 608 (1981) (reversing a restriction prohibiting the father from “giving his children any religious training or education which shall be in conflict or contrary with the religious training and beliefs of the custodial parent” because there was “clear error, for lack of foundation in the record, in the judge’s findings of a ‘deleterious effect’ on the children”); Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133, 1134 (1971) (reversing a restriction prohibiting the father from “taking the children to any Catholic Church services or to any instructional classes sponsored by the Catholic Church” where there was no affirmative showing that it would be detrimental to the children’s well-being to allow the father to take them to Catholic Church but only speculation that it was confusing to the parties’ six-year-old son).

In contrast to the foregoing cases, the Nebraska Supreme Court affirmed a restriction prohibiting the father, a Jehovah’s Witness, from “exposing or permitting any other person to expose his minor children to any religious practices or teachings inconsistent with the Catholic religion.” See LeDoux v. LeDoux, 234 Neb. 479, 452 N.W.2d 1, 2 (1990). In doing so, the court set out in detail the evidence presented by the children’s mother as to the negative effects on the children of being exposed to the father’s religion. Id. at 3-4. In affirming, the court found that a review of the record, which included testimony from a certified clinical psychologist who evaluated one of the children, disclosed no abuse of discretion on the trial court’s part given that there was ample evidence to conclude that the stress one of the children was experiencing, which was caused in part by his exposure to disparate religions, posed an immediate and substantial threat to his well-being. Id. at 5.

Unlike the situation in LeDoux, the only evidence in this case that was presented below in support of the religious restriction pertained to one incident involving one of the three children. Because the evidence did not establish the harm necessary to award the mother ultimate religious decision-making authority and to restrict the father from “doing anything” in front of or around the children that “conflicts” with the Catholic religion, we reverse the amended judgment accordingly.

AFFIRMED in part; REVERSED in part; and REMANDED.

LEWIS, C.J., BENTON and MARSTILLER, JJ., concur.

      . The trial court allowed Dr. Chadik’s testimony notwithstanding the father’s hearsay objection based upon its determination that the father’s objection was not contemporaneous.

      . We find no error in the trial court’s directive that neither parent disparage the other parent's religion in front of the children.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. CHAMROEUN SOK OU, Appellee.
    No. 1D14-33.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.

      Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellant.
    William Mallory Kent of The Law Office of William Mallory Kent, Jacksonville, for Appellee.
   PER CURIAM.

We reverse the trial court’s order granting appellee’s Florida Rule of Criminal Procedure 3.850 motion for postconviction relief filed on September 23, 2011. In granting the motion, the trial court vacated appellee’s 2001 plea, judgment, and sentence for sexual battery, holding appellee’s defense attorney had provided ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), by failing to advise him that his conviction would subject him to deportation. Prior to entry of the trial court’s order, however, both the United States Supreme Court and the Florida Supreme Court had already determined that Padilla does not apply retroactively to convictions that had become final prior to its issuance. See Chaidez v. United States, — U.S.—,133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, 124 So.3d 757 (Fla.2012). Appellee’s claim that manifest injustice mandates Padilla be applied retroactively to his case is without merit.

REVERSED.

VAN NORTWICK, CLARK, and SWANSON, JJ., concur.


text:
    In re Robin K. LJUNGBERG.
    No. 2014-B-1393.
    Supreme Court of Louisiana.
    July 8, 2014.
   ORDER

| ¶ Considering the Motion to Revoke Conditional Admission filed jointly by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that respondent’s conditional admission to the practice of law in the State of Louisiana be revoked, effective immediately. Respondent may not reapply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of a contract with the Lawyers Assistance Program. In the event respondent chooses to submit an application for readmission, it shall be filed with the Disciplinary Board, which shall appoint a hearing committee to take evidence and report to this court whether respondent should be readmitted to the bar and allowed to practice law in Louisiana. The Office of Disciplinary Counsel shall participate in the hearing and provide such information, evidence, and recommendations to the hearing committee as may be appropriate.

IT IS FURTHER ORDERED that respondent shall pay all costs associated with these proceedings.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re William Steven MANNEAR.
    No. 2014-OB-1390.
    Supreme Court of Louisiana.
    July 8, 2014.
   ORDER

11 Respondent was charged by bill of information in the United States District Court for the Middle District of Louisiana with receiving child pornography. Respondent entered a guilty plea to the charge on May 27, 2014. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by William Steven Mannear, Louisiana Bar Roll number 9098, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of William Steven Mannear for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that William Steven Mannear shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


author: JAMES F. McKAY III, Chief Judge.

text:
    STATE of Louisiana in the Interest of X.F.
    No. 2013-CA-1675.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Appel-lee/State of Louisiana.
    Tenee Felix, Louisiana Center for Children’s Rights, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McEAY III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

_JjThis is a juvenile delinquency case. X.F. appeals the judgment of the juvenile court adjudicating him delinquent of illegal carrying of a weapon in violation of La. R.S. 14:95. For the reasons set forth below, we affirm the adjudication.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

At the adjudication hearing, New Orleans Police Officers Lindy Collins and George Oliver testified on behalf of the State. The defense presented no witnesses.

Officer Collins testified that on December 21, 2012, he and his partner, Officer Oliver, were dispatched on a call of a suspicious person in a vehicle. An individual matching the description given by the dispatcher was seen exiting a vehicle. Officer Collins identified that individual as X.F. When X.F. saw the police unit, he broke and ran. Officer Collins immediately gave chase on foot; as he neared X.F., he saw him reach on the left side of his waistband and discard what was believed to be a semiautomatic weapon. Officer Collins continued to give chase and apprehended X.F. without losing sight of him. After X.F. was handcuffed and detained by another officer, Officer Collins retrieved the weapon 12from the spot where it had been discarded. At trial, Officer Collins identified the recovered weapon, which turned out to be an air pistol. He stated that the air pistol looked and felt like a real firearm.

Officer Oliver testified that he participated with Officer Collins in the investigation and arrest of X.F. on December 21, 2012. Officer Oliver was the driver of the patrol car; he did not pursue X.F. on foot as did Officer Collins. X.F. was identified in open court by Officer Oliver.

X.F. was adjudicated delinquent of illegal carrying of a weapon in violation of La. R.S. 14:95 and was committed to the Department of Public Safety and Corrections for six months. Execution of the commitment was suspended, and X.F. was placed on two years active probation. X.F. was also found not guilty on two counts of criminal trespass.

On appeal, X.F.’s sole assignment of error is the insufficiency of the evidence. Simply stated, he contends that the State failed to meet its burden of proof.

STANDARD OF REVIEW

Pursuant to La. Ch.C. art. 883, “[i]n order for the court to adjudicate a child delinquent, the [Sjtate must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State in the Interest of J.W., 2012-0048, p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184 (quoting State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93)). As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. | JState in Interest of S.J., 2013-1025, p. 3 (La.App. 4 Cir. 11/6/13), 129 So.3d 676, 678 (citing State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61).

In evaluating the sufficiency of evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930 (citing In re C.B., 97-2783, p. 17 (La.3/4/98), 708 So.2d 391, 400). Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile delinquency adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979). “In sum, we apply the ‘clearly wrong-manifest error’ standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.” State in Interest of R.L., 2012-1721, p. 4 (La.App. 4 Cir. 5/30/12), 95 So.3d 1147, 1150.

ANALYSIS

|4La. R.S. 14:95 defines the illegal carrying of weapons as “(1) [t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.”

La. R.S. 14:2(3) defines “dangerous weapon” as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” “The term ‘dangerous weapon’ is not limited to those instrumentalities ‘which are inherently dangerous, but includes any instrumentality which in the manner used, is calculated or likely to produce death or great bodily harm.”’ State v. Bonier, 367 So.2d 824, 826 (La.1979); See also State in the Interest of Ruschel, 411 So.2d 1216, 1217 (La.App. 4 Cir.1982); State v. Ragas, 2007-0003, p. 8 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 271. Moreover, it is well established that the “dangerousness” of the instrumentality by reason of the manner in which it is used is a question for the trier of fact. Bonier, 367 So.2d at 826.

As recognized by this Court in State v. Pleasant, 2010-1533, p. 8 (La.App. 4 Cir. 5/18/11), 66 So.3d 51, 56, “virtually any item, no matter how innocuous, can be considered a dangerous weapon provided that the manner in which it is used is likely to produce death or bodily harm.” See also State in the Interest of T.M., 2012-0436, p. 7 (La.App. 5 Cir. 11/27/12), 105 So.3d 969, 973-974. Louisiana jurisprudence has upheld determinations that a stick, an ink pen, rum, a tennis shoe, and a metal pipe were dangerous weapons in the manners used in individual cases. Id.

X.F. argues that the air gun is not a dangerous weapon because it is not a real gun. We find no merit in that argument. In State ex rel. M.B., 2001-2041, p. 2 (La.App. 4 Cir. 3/6/02), 812 So.2d 815, 816, this Court held that the issue of | ¿whether an air gun is a dangerous instrument is a question to be determined at the trial on the merits, not at a motion to quash. In rendering that opinion, we further stated:

Although an air gun is not a firearm, it is an instrument that can cause great bodily harm. See Clark v. Jesuit High School of New Orleans, 96-1307, p. 2 (La.App. 4 Cir. 12/27/96), 686 So.2d 998, 1000 (whereby a “BB” fired from a gun, pierced defendant’s gym bag, and struck victim in the right eye. As a result of this injury, victim is legally blind in his right eye.) Further, in State in the Interest of D.S., a “BB” gun was considered to be a dangerous weapon under La. R.S. 14:34, aggravated battery. 95-1019, p. 2 (La.App. 5 Cir. 4/16/96), 673 So.2d 1123, 1124, writ denied, 96-1237 (La.6/21/96), 675 So.2d 1086. In State in the Interest of D.S., the defendant shot another youth with a “BB” gun, and was charged with aggravated battery, which is a battery “committed with a dangerous weapon.” Id. The defendant admitted the allegations contained in the petition and was placed on probation until his 21st birthday. Accordingly, an air gun cannot be presumed to be a toy and thus not a dangerous weapon.

State ex rel. M.B., 2001-2041, pp. 2-3, 812 So.2d at 816 (footnotes omitted).

Clearly, this Court has recognized that an air pistol is an instrument that can cause great bodily harm. In the present case, we find that the evidence presented by the State supports the juvenile judge’s reasonable conclusion that the air gun in X.F.’s possession was a dangerous weapon within the meaning of La. R.S. 14:2(3).

In State v. Fluker, 311 So.2d 863, 866 (La.1975), the Louisiana Supreme Court enunciated the appropriate test to be applied in prosecutions for illegal carrying of weapons, that is, “under the facts and circumstances of the case as disclosed by the evidence, the manner in which defendant carried the weapon evinced an intent to conceal its identity.” See State ex rel. K.M., 2010-0649, p. 6 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 464.

X.F. maintains that the State failed to show he carried the air gun in a concealed manner. He asserts that because Officer Collins never testified regarding the manner in which X.F. carried the air gun, the State did not rule out | Bthe possibility that X.F. carried the gun in a sufficiently exposed manner to reveal its identity. We disagree with X.F.’s characterization of the facts adduced at trial.

Officer Collins testified that as X.F. fled, he reached into his waistband, retrieved the gun, and threw it to the ground. Officer Collins did not see the gun until it was discarded. Under the circumstances, we find that X.F.’s actions were consistent with carrying a weapon that he intended to conceal. Viewing the evidence set forth at trial in a light most favorable to the prosecution, any rational trier of fact could have found that all of the essential elements of the offense of illegal carrying of a weapon were proved beyond a reasonable doubt.

CONCLUSION

For the foregoing reasons, we find no clear error in the juvenile judge’s adjudication of X.F. as delinquent. Accordingly, we affirm.

AFFIRMED.

      . X.F. was initially charged with illegal possession of a handgun by a juvenile. The State amended the charge to illegal carrying of a weapon.


author: JOY COSSICH LOBRANO, Judge.

text:
    Roberto LLOPIS, D.D.S. v. The LOUISIANA STATE BOARD OF DENTISTRY; C. Barry Ogden, Executive Director, et al.
    No. 2013-CA-0659.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2014.
    Bobbie C. Smith, Anna M. Jackson, Bobbie C. Smith, LLC, New Orleans, LA, for Plaintiff/Appellant.

      William P. Connick, Michael S. Futrell, Gregory C. Fahrenholt, Connick and Con-nick, L.L.C., Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| TPIaintiff, Roberto Llopis, D.D.S., appeals the September 10, 2012 trial court judgment granting a motion for involuntary dismissal and an exception of insufficiency of service of process filed by defendants, C. Barry Ogden, Brian M. Begue, Louisiana State Board of Dentistry and State of Louisiana, Department of Health and Hospitals/Louisiana State Board of Dentistry. The judgment dismissed plaintiffs case against defendants without prejudice. For reasons that follow, we reverse the trial court judgment and remand this matter for further proceedings.

On October 31, 2011, Dr. Llopis filed a petition for damages, naming as defendants Louisiana State Board of Dentistry, certain individual members of the Board, and the Board’s executive director, co-executive director and attorney. This lawsuit involves damages allegedly suffered by Dr. Llopis when he applied for a restricted license with the Board in 2010, after having voluntarily surrendered |2his license to practice dentistry in Louisiana in 2006. Dr. Llopis requested that the Clerk of the Civil District Court for the Parish of Orleans, State of Louisiana, “PLEASE HOLD SERVICE” at the time of filing.

On January 25, 2012, Dr. Llopis filed a first amended petition for damages, which named as a defendant the “State of Louisiana, Department of Health & Hospitals/The Louisiana State Board of Dentistry”, and entirely restated the allegations and wording in the original petition. At this time, Dr. Llopis requested that service of citation be made on the defendants.

Defendants filed declinatory exceptions of insufficiency of service of process and lis pendens, a dilatory exception of vagueness or ambiguity, a peremptory exception of no cause of action, and a motion for involuntary dismissal. Dr. Llopis opposed the exceptions and motion. Following a hearing on May 24, 2012, the trial court granted defendants’ motion for involuntary dismissal and exception of insufficiency of service of process, and dismissed Dr. Llo-pis’ cause of action without prejudice. The trial court denied the remaining exceptions. This appeal followed.

On appeal, Dr. Llopis argues that the trial court committed legal error in considering the incorrect statute when determining whether to grant or deny defendants’ motion for involuntary dismissal and exception of insufficiency of service of process. Alternatively, Dr. Llopis argues that the trial court’s judgment was manifestly erroneous.

The following statute and code articles are applicable in this case:

|sLa. R.S. 13:5107(D) provides:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

La. C.C.P. article 1672(C) provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 8955 upon the sustaining of a declina-tory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

La. C.C.P. article 1201(C) provides:

Service of the citation shall be requested on all named defendants within ninety days of commencement |4of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinato-ry exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.

In support of its judgment granting the defendants’ exception of insufficiency of service of process and the motion for involuntary dismissal of Dr. Llopis’ claims, the trial court issued written reasons for judgment. In its reasons, the trial court found that dismissal of Dr. Llopis’ action was warranted because Dr. Llopis failed to request service of the original petition within 90 days of its filing. However, when discussing La. R.S. 13:5107 and La. C.C.P. articles 1201 and 1672, the trial court included the following statement: “Further complicating matters was the amendment of La. R.S. 13:5107(A), which took effect June 12, 2012 and to which neither of the parties have briefed.” The trial court then set forth the amended version of La. R.S. 13:5107(A).

As Dr. Llopis correctly states, the amended version of La. R.S. 13:5107(A) did not become effective until after the hearing on defendants’ exceptions and motion for involuntary dismissal. While we are mindful of the fact that reasons for judgment are not controlling and do not constitute the judgment of the court, we find that the trial court’s references to the June 2012 amendment of La. R.S. |fi13:5107(A) were improper because this amendment was not applicable to this case. However, we agree with the defendants that the trial court’s reference to the amended version of La. R.S. 13:5107(A) in its reasons did not establish that the trial court considered the wrong statute in deciding this case. We reach this conclusion because the trial court never referred to La. R.S. 13:5107(A) again in its reasons after the initial mention, the reasons included the applicable statute and code articles, and the reasons read in their entirety do not indicate that the trial court relied on the June 2012 amended version of La. R.S. 13:5107(A) in reaching its judgment. Therefore, we find no merit in Dr. Llopis’ argument that the trial court committed legal error in considering the incorrect statute when determining whether to grant or deny defendants’ motion for involuntary dismissal and exception of insufficiency of service of process.

As for Dr. Llopis’ alternative argument that the trial court erred in granting the defendants’ exception of insufficiency of service of process and motion for involuntary dismissal, we find that this argument has merit. The trial court dismissed Dr. Llopis’ cause of action based on his failure to timely request service of his original petition. The standard of review of a trial court’s judgment dismissing an action for failure to timely request service is manifest error. Johnson v. Brown, 03-0679, p. 2 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 322.

The record shows that on October 31, 2011, Dr. Llopis filed his original petition and held service on the defendants, prior to the filing of defendants’ exceptions and motion. However, he did request service on the defendants in his |fifirst amended petition, which was filed on January 25, 2012, within ninety days of commencement of the action. The service instructions on the first amended petition included a request that the State of Louisiana be served through the Louisiana Attorney General, its authorized agent. The citations for service were issued by the Clerk of Court for Civil District Court of the Parish of Orleans on January 26, 2012.

Regarding the ninety-day notice requirements, this Court has noted that “[t]he purpose of requiring that service be requested within ninety days of the suit’s commencement is to insure that the defendant receives notice of the suit within a reasonable time after it has been commenced.” Anderson v. Norfolk Southern Railway Company, 02-230, p. 4 (La.App. 4 Cir. 3/27/02), 814 So.2d 659, 661, citing Hugh Eymard Towing, Inc. v. Aeroquip Corp., 00-131, p. 3 (La.App. 5 Cir. 6/27/00), 776 So.2d 472, 473; see also Morgan v. Investment Cars Unlimited, Inc., 37,052, p. 5 (La.App. 2 Cir. 4/9/03), 843 So.2d 580, 583. In this case, the request for service on January 25, 2012, on all defendants, including the State through its authorized agent, was made within ninety days of the commencement of the action, and the first amended petition which was served on all defendants included all of the allegations and language set forth in the original petition. The amended petition named the State of Louisiana through the Department of Health & Hospitals/the Louisiana State Board of Dentistry whereas the original petition named the Louisiana Board of Dentistry but not through the Department of Health & Hospitals. Request for service of process on the correct agent was made within |7ninety days of filing suit. The defendants received notice of the suit within a reasonable time after it had been commenced.

Considering the harsh consequence of dismissal and the policy favoring maintaining actions, and the fact that Dr. Llopis requested service on the defendants within ninety days of filing suit, we find that under the particular circumstances of this case, the trial court erred in granting the defendants’ exception of insufficiency of service of process and motion for involuntary dismissal. Service of citation was properly requested as contemplated by La. R.S. 13:5107(D) and La. C.C.P. art. 1201(C).

For the reasons stated above, the trial court judgment is reversed. This case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . In addition to these defendants, the original petition and first amended petition also named as defendants Peyton Burkhalter, Dr. Rommel Madison and Dr. David Melancon. However, those three defendants were not parties to the exceptions or motion that are the subject of this appeal. Accordingly, the term "defendants” in this opinion does not include those three defendants.

      . Kaufman v. Adrian’s Tree Service, Inc., 00-2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104.

      . This case is distinguishable from the Fifth Circuit case of Pylant v. Jefferson Parish, State of Louisiana, Department of Health and Hospitals, 05-148 (La.App. 5 Cir. 6/28/05), 907 So.2d 807, in which a request for service of process on the correct agent was not made within ninety days of filing suit. This case is also distinguishable from the Fifth Circuit case of McGuire v. Environmental Monitoring Service, Inc., 03-497 (La.App. 5 Cir. 9/30/03), 865 So.2d 759, in which the amended petition was filed more than ninety days after the filing of the original petition.

      . The sheriff's returns show the following: (1) service was made on Brian Begue on February 1, 2012, through a legal secretary; (2) service was made on Barry Ogden and the Louisiana State Board of Dentistry on February 1, 2012, through Peyton B. Burkhalter, Executive Director; and (3) service was made on the State Department of Health and Hospitals on its legal department on February 6, 2012.

      . See Whitley v. State ex rel. Bd. of Sup’rs of Louisiana State University Agr. Mechanical College, 11-40, pp. 12-13 (La.7/1/11), 66 So.3d 470, 478 (where the court held that if the legislature’s word choice makes an article susceptible to two possible constructions, the statute should be construed in favor of maintaining a claim).


author: EDWIN A. LOMBARD, Judge.

text:
    CITY OF NEW ORLEANS, et al. v. Kevin M. DUPART. Kevin M. Dupart v. City of New Orleans, et al. City of New Orleans, et al. v. Kevin M. Dupart.
    Nos. 2013-CA-1292, 2013-CA-1293, 2013-CA-1294.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2014.

      James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Miles L. Granderson, Assistant City Attorney, Joyce G. Joseph, Deputy City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   EDWIN A. LOMBARD, Judge.

| ,This matter is before our Court on remand from the Louisiana Supreme Court for consideration of the sole remaining assignment of error of the Appellant, Kevin M. Dupart, who seeks review of the August 21, 2013 judgment of the district court denying his Motion for Preliminary Injunction. Finding that the judgment of the district court is not manifestly erroneous, we affirm.

In the prior appeals of this matter, which were consolidated by this Court, Kevin M. Dupart (“Mr. Dupart”), sought review of two (2) judgments of the district court, dated June 20, 2013, and August 21, 2013, denying his respective Motions for Preliminary Injunction. The appeals arose out of a code enforcement proceeding brought by the City of New Orleans (“the City”), against him as the owner of property located at 1416 Mandeville Street (“the Property”) in New Orleans.

In July 2010, the Property was inspected by a New Orleans code enforcement inspector, who noted violations of the unoccupied property standards code then located in Chapter 28 of the New Orleans Code of Ordinances (“the City Code”). As a result of the violations found, the City scheduled an administrative ^hearing for October 21, 2010, and a Notice of Hearing was sent via certified mail to Mr. Dupart on September 14, 2010, advising him of the October hearing date.

Mr. Dupart attended the October 21, 2010 hearing, where he was found “conditionally guilty” of City Code violations by an Administrative Hearing Officer (“AHO”) at the Recommendation of a City Facilitator. The AHO further informed Mr. Dupart that he was being fined $500 plus $75 in costs and $100 per day, but the fines would be suspended or rescinded if there was substantial work in progress by December 15, 2010, the next hearing date set. A judgment was not rendered against Mr. Dupart as a result of this hearing.

At the December 15, 2010 hearing, which Mr. Dupart attended, the AHO determined that the condition of Mr. Du-part’s property was still in violation of the City Code. He was fined $500 plus $65 in costs plus $300 per day for sixty days; however, the AHO informed him that the judgment could be suspended if he could prove that there was work in progress on the property by the next hearing date. Thus, Mr. Dupart was given a 60-day extension, until the next hearing date of February 16, 2011, to bring his property into compliance.

On February 9, 2011, the Property was again inspected and was deemed to still be in violation. Consequently, at the February 16, 2011 hearing, the AHO determined that the Property was blighted and a public nuisance. Mr. Dupart did not attend this hearing. The AHO rendered a final judgment (“the Administrative Judgment”) on February 16, 2011, but it was not signed until March 9, 2011.

The Notice of Administrative Judgment was filed as a lien in the Office of the Recorder of Mortgages for Orleans Parish in April 2011. Thereafter, the City requested the issuance of a writ of fieri facias, and the Clerk of Civil District Court issued the writ in case no. 2011-4585. A Notice of Seizure was later issued setting |sthe Property for sale by the Sheriff of Orleans Parish (“the Sheriff”) on November 8, 2011. The Property was seized by the Sheriff on August 30, 2011. On or about September 1, 2011, the City effectuated domiciliary service of the Notice of Seizure and the initial sale date on Mr. Dupart. The Property was initially offered at auction on November 8, 2011, but was ultimately sold at an April 18, 2012 Sheriffs sale.

Prior to the auction-purchaser paying for the Property and the issuance of the sheriffs deed, on May 8, 2013, Mr. Dupart filed a “Petition to Annul Sheriffs Sale, To Annul Administrative Judgment, For Temporary Restraining Order, For Preliminary and Permanent Injunction, and for Damages” seeking to enjoin the completion of the sale and delivery of the deed to the auction-purchaser. The district court granted the temporary restraining order, and Mr. Dupart’s lawsuit was transferred to the division of the district court to which the foreclosure suit had been allotted and consolidated with said suit.

A hearing on Mr. Dupart’s Motion for Preliminary Injunction was held on June 13, 2013. At the preliminary injunction hearing, Mr. Dupart argued that the Administrative Judgment was null and void for defects patent on the face of the proceedings, specifically that the Notice of Hearing did not comply with City Code Sec. 28-39(d). The district court, however, held that Mr. Dupart had been granted two (2) extensions of time to bring the Property into compliance and denied the preliminary injunction motion. Mr. Du-part appealed the denial of his Motion for Preliminary Injunction.

Mr. Dupart later filed a second Motion for Preliminary Injunction arguing that the Administrative Judgment was null and void because: 1) it was not signed within seven (7) days of the administrative hearing as explicitly required by City |4Code Sec. 28^14, and 2) it did not comply with the requirement of City Code Sec. 28-39(c) that “the notification shall expressly state: ‘The purpose of the hearing is to determine whether the unoccupied property is blighted for purposes of expropriation.’ ” The district court denied Mr. Dupart’s second Motion for Preliminary Injunction sua sponte without a hearing.

Subsequently, Mr. Dupart timely appealed the denial of his second Motion for Preliminary Injunction. Mr. Dupart’s appeals were later consolidated by this Court. City of New Orleans v. Dupart, 13-1292, 13-1293, 13-1294 (La.App. 4 Cir. 2/19/14), 136 So.3d 233. On appeal, we held that the district court erred in determining that the City’s substantial compliance with City Code Sec. 28-39(d) was sufficient and pretermitted discussion of Mr. Dupart’s remaining assignment of error. Id. Thereafter, the City filed a supervisory writ application with the Louisiana Supreme Court. The Supreme Court: granted the writ application; reversed the judgment of our Court; reinstated the judgment of the district court; and remanded this matter to our Court to consider Mr. Dupart’s remaining assignment of error. City of New Orleans v. Dupart, 14-617 (La.5/2/14), 137 So.3d 1203.

In Mr. Dupart’s sole remaining assignment of error, he avers that the district court committed a legal and a factual error and abused its discretion in denying his second Motion for Preliminary Injunction on August 21, 2013, because the Administrative Judgment is null and void as it was not signed within seven (7) days of the code enforcement hearing as required by City Code Sec. 28-44.

City Code Sec. 28-44, entitled Issuance of final order, provides:

Within seven days of an administrative enforcement hearing, the administrative hearing officer shall sign and issue a final order stating whether or not the person [5charged is liable for the violation, the amount of any fine, penalty, costs of fee assessed against him and that the abatement of the violation may be enforced by the city, administrative hearing officer or court of competent jurisdiction. Any order may be enforced by the city, administrative hearing officer or court of competent jurisdiction. The final order shall be served in the same fashion as the original notice. The final order shall notify the violator of his right of appeal and shall, so much as possible, conform to the stylistic and typographical requirements established for the notice of violation. The administrative hearing officer shall certify by order those properties which are determined to be blighted and shall direct the director to record a certified copy of related order.

Mr. Dupart argues that the “order” or Administrative Judgment in the instant matter was rendered on February 16, 2011; however, the Administrative Judgment was not signed until March 9, 2011, a difference of approximately three weeks. Mr. Dupart contends that the use of the word “shall” -within the aforementioned section indicates that it was mandatory for the hearing officer to sign the Administrative Judgment within seven days. See Miccol Enterprises, Inc., v. City of New Orleans, 12-0864, pp. 11-12 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 752-53. Thus, he argues that said judgment is an absolute nullity and cannot be valid under the terms of City Code Sec. 28-44.

Furthermore, Mr. Dupart, relying principally upon La.Code Civ. Proc. art. 1911, avers that a judgment is not a judgment until it is signed. Thus, he argues that an untimely signed judgment has no legal effect and should be treated as though it was never signed. Such a judgment is null and void because it is defective on its face and cannot be cured, he contends. Thus, he argues that the | (¡district court committed a legal error or abused its discretion when it upheld the validity of the Administrative Judgment.

Mr. Dupart concedes that he cannot provide legal support for his strict interpretation of City Code Sec. 28-44.

In response, the City argues that although there was a delay before the judgment was reduced to writing, the AHO had already rendered the judgment on the record. The City notes that Mr. Dupart’s argument is actually made against the AHO, not the City, as it was the AHO’s conduct that is controlled by City Code Sec. 28-44. Additionally, the City explains that Mr. Dupart was adjudicated to be a code violator at the hearing, where the judgment was rendered. The delay in the AHO’s signing of the Administrative Judgment, the City argues, inured to Mr. Du-part’s benefit because it delayed the City’s enforcement of said judgment against him.

The City further highlights that Mr. Du-part did not appeal the order of the hearing officer. Moreover, the City avers that the annulment of the order on the basis alleged by Mr. Dupart would result in an absurd consequence that is inconsistent with the spirit and intent of the law. We agree.

Mr. Dupart is correct in his argument that the AHO untimely signed the Administrative Judgment outside of the required seven-day period. However, he did not appeal said judgment. We further note that Mr. Dupart was not prejudiced by this error. As the City argues, he benefited from the delay as it allowed him to continue his possession of the Property for a three-week period. The City was precluded from acting upon the Administrative Judgment until it was signed. Furthermore, considering the lack of legal support for Mr. Dupart’s literal interpretation of the City Code Sec. 28-44, we find that a strict interpretation of |7City Code Sec. 28-44, resulting in the nullification of the Administrative Judgment due to the AHO’s error, is unmerited under the facts presented. The decision of the district court to deny Mr. Dupart’s second Motion for Preliminary Injunction was, therefore, neither legally incorrect nor manifestly erroneous. Mid-South Plumbing, L.L.C. v. Dev. Consortium-Shelly Arms, L.L.C., 12-1731, p. 10 (La.App. 4 Cir. 10/23/13), 126 So.3d 732, 739. Thus, this assignment of error is without merit.

DECREE

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

AFFIRMED.

      . See City of New Orleans v. Dupart, 14-617 (La.5/2/14), 137 So.3d 1203.

      . La.Code Civ. Proc. art. 1911 provides in pertinent part that: "[ejxcept as otherwise provided by law, every final judgment shall be signed by the judge.”


author: BROWN, Chief Judge.

text:
    Jack M. BAILEY, Jr. and Toye H. Bailey, Individually and on behalf of Their Minor Children Jack M. Bailey, III, Kelsey G. Bailey, and Robert Parkman Bailey, Plaintiffs-Appellants v. Laura Gay DELACRUZ, Mary Bamburgh, Realtor, and Coldwell Banker, Defendants-Appellees.
    No. 49,032-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 16, 2014.

      Law Offices of Jack M. Bailey, by Jack M. Bailey, Jr., T. Luke Thaxton, Shreveport, Heather Ray Lafitte, for Appellants.
    McMichael, Medlin, D’Anna, Wedge-Worth & LaFargue, LLC, Shreveport, by James C. McMichael, Jr., for Appellees, Coldwell Banker and Mary Bamburg.
    Laura G. Delacruz, In Proper Person.
    Before BROWN, CARAWAY, and GARRETT, JJ.
   BROWN, Chief Judge.

|! Purchasers of real property brought this action in redhibition and fraudulent/negligent misrepresentation against the seller and the seller’s real estate agent and broker. The seller, Laura DeLaCruz, had moved to Nevada and was served pursuant to Louisiana’s long arm statute. She did not answer the lawsuit or appear at trial. A preliminary default was entered and its confirmation followed the trial. The trial court found for plaintiffs and awarded plaintiffs $109,891.66 in redhibition against the seller, DeLaCruz. The seller’s real estate agent and broker were found liable for negligent misrepresentation in solido with the seller for $66,164.88. Plaintiffs’ motion for new trial sought to increased the damages awarded and was denied. Plaintiffs appealed. Defendants did not answer or file their own appeal. We affirm in part, reverse in part and render.

Facts

Plaintiffs, Jack and Toye Bailey (“Baileys”), purchased a house located on 2380 Covington Circle, Shreveport, Louisiana, on October 29, 2004, for $415,000. Plaintiffs were represented by a Coldwell Banker real estate agent, Sue White (“White”). The seller, Laura DeLaCruz (“DeLa-Cruz”), was represented by defendant, Mary Bamburg (“Bamburg”), who was also a real estate agent affiliated with defendant, Coldwell Banker.

In February 2004, approximately nine months before the sale to the Baileys, DeLaCruz purchased the Covington Circle house and was also represented in that previous transaction by Bamburg. Before completing that purchase, DeLaCruz paid to have two inspections conducted on the home, 12both of which revealed some moisture and structural issues. One inspection was completed by John Worthey (‘Wor-they”). The second inspection was performed by World Inspection Network (“World Inspection”).

Worthey, a general contractor, who was a certified mold, moisture and EIFS inspector, conducted a thorough inspection of the exterior and interior of the house. He specifically focused on the interior and stated that he used instruments to scan all interior portions. He concluded: “This residence is well constructed overall. The exterior finish system (EIFS) is in need of repair, but can be made sound and dry utilizing known repair methods ... The areas in need of repair were caused by application errors and lack of attention to construction details ... The interior was found to be dry and sound and I find no red flags that would warrant the testing for toxic molds at this time.”

Worthey oversaw the repairs that were made to the Covington Circle house by Reggie Doe and Dowden Plastering. When the exterior spots where Worthey had found moisture were taken down, he looked for and found no signs of mold. Worthey was satisfied that the repairs he recommended were completed and problems he listed were fixed. These repairs were paid for by the seller.

On October 4, 2004, the Baileys entered into a buy/sell agreement with DeLaCruz. The Baileys were provided with a Louisiana Residential Disclosure Form in accordance with La. R.S. 9:3894(B) and 9:3199(B). On the form, DeLaCruz and Bamburg responded negatively to all inquiries [.^concerning damage to the property including but not limited to: water damage, existing damage, and mold damage.

The buy/sell agreement gave the Baileys five days from October 5, 2004, to conduct a home inspection. The Baileys relied upon the opinion of their realtor, Sue White, who was affiliated with Coldwell Banker, she assured them that an inspection had been performed on the house during the DeLaCruz purchase and it was good for one year. Relying on this statement, the Baileys performed only a walk-through inspection.

At the closing, the Baileys were only given one of the two inspection reports performed during the DeLaCruz purchase, that of World Inspection. However, they were not given the entire World Inspection report, just three pages of this document. One page contained the Building Inspection Summary which listed six items that needed attention. The first item listed was “Exterior Structure, Siding Condition: maintenance — The exterior siding is in need of attention or repairs. There is a crack in the brick veneer under the upper right window and on the side at the rear of the home. These are not structural but should be sealed with caulk to prevent moisture intrusion.” The summary also noted that the exterior finish on the patio doors needed attention. Other minor issues were listed. The summary found that gas furnace, heating pump and cooling operations were all normal.

Omitted portions of the World Inspection report included 16 pages of worksheets which covered 17 specified categories. The items needing attention in the summary were noted on the worksheets. Significantly, in the 17th and last category, it is stated “Toxix(sic) mold detection and testing is ]4NOT within the scope of a home inspection. This home inspector is not a qualified professional mold expert.” At the time of the closing, the Baileys inquired as to whether the repairs referenced in the World Inspection’s summary had been completed. Both White and Bamburg indicated that they had been.

Upon moving into their new home, the Baileys hired Donnie Mclnnis to remodel a television cabinet in the living room. Mclnnis discovered mold, moisture and water intrusion on the inside of the sheet-rock. The Baileys then hired their own inspector who informed them that the “flashing was not properly installed for EIFS, the windows of the home were not properly installed, sealed, or caulked, the brick fascia on the home was not properly installed, there were severe structural defects in the home, there were no weep holes in the brick, the EIFS was not properly applied, there were issues with the base boards in the garage, and there was evidence of water intrusion and mold in more than two places.” Two additional air inspections determined the presence of three types of mold.

On October 25, 2005, Jack and Toye Bailey, individually and on behalf of their three minor children, filed suit against De-LaCruz, Bamburg, and Coldwell Banker, alleging breach of mandatory obligations under the property disclosure statute, breach of duties of real estate agents, fraud, bad faith breach of contract, breach of warranty, detrimental reliance, negligent misrepresentation, deliberate misrepresentation, conspiracy, and redhibition.

The gist of the complaint is that the Baileys relied, to their detriment, on representations of Coldwell Banker, Bam-burg, White and DeLaCruz and the mandatory disclosure form. They alleged that they would not have | .¡purchased the house if the mold and water intrusion had been disclosed. They claim that all defendants are “fully liable individually and in solido for all damages ... as deliberate tortfea-sors and violators of the mandatory disclosure laws from the date of sale ...” The Baileys continued to reside in the home and were living in the home on the date of trial in 2010.

Discussion

Findings of the trial court

The trial court found that there were structural defects to the home. In particular, multiple areas of water intrusion, flooding and mold, “which could not be discovered by simple inspection ...” The trial ' court found that DeLaCruz had knowledge of moisture/water problems, mold and structural defects in the house but failed to disclose these problems to the Baileys. As stated, DeLaCruz did not answer this lawsuit or appear.

In the written reasons for judgment, the trial court made the following finding:

The court finds that Coldwell Banker and Bamburg breached its duty to the Baileys. They were clearly aware of the moisture/water problems and the mold in the home but failed to provide this information to the Baileys. In fact, Bamburg signed the disclosure form indicating that there had been no water intrusion with respect to the property and there was no mold in the home.

Bamburg testified that she had no knowledge of mold. She had knowledge of the two inspection reports when DeLa-Cruz purchased the house and neither report identified any mold issues. Both reports indicated water intrusion. Worthey testified that he informed Bamburg and DeLaCruz that these problems were fixed. Defendants, however, did not appeal or answer this appeal to challenge the trial court’s finding.

• LThe trial court limited its remedy to a reduction of the price rather than a rescission of the sale. The court determined that the damages would be the amount necessary to convert the house into a sound structure.

The trial court found that DeLaCruz, Bamburg and Coldwell Banker were liable in solido for negligent misrepresentation under La. C.C. art. 2315, in the sum of $66,164.88. The trial court held DeLaCruz individually liable for damages resulting from redhibition in the amount of $109,891.66. The judgment stated that “these amounts include the award for all damages made by this court.” Judicial interest would run from the date of judicial demand. Exactly how the court came up with these figures was not explained; however, the Baileys’ exhibit 51A shows:

Itemized List of Damages Under Redhibition:

Robert Layfield (entry way, dining rm., floor repair) $2,890.00

Harkey Homes $6,375.00

ServPro $485.75

Appliance Expense $1,869.00

Pierce Plumbing $2,852.21

Jay Deaton Rub Repair $100.00

Custom Lawn Care $1,085.00

Bobby Greene Plumbing $6,308.87

Mike McWaters $1,700.00

Solomon, Inc. $1,180.00

Show Case Kitchens & Bath (Mstr.shower) $9,703.00

Custom Finishes (Mstr. bath-paint and drywall) $1,428.00

Ark La Tex Irrigation $2,575.00

Tiger Construction (wood fence) $975.00

Matthews Landscape (installing drains) $2,200.00

Matthews Landscape (resurfacing backyard) $2,000.00

Total Repairs made on the House Defects $43,726.83

Itemized List of Damages from Mold Problem:

Harkey Homes $24,425.00

Clean Air $13,641.20

SRP Environmental $4,245.00

Air Ref $3,281.25

House of Carpets (Floors only) $12,748.52

Porters $632.01

Donnie Mclnnis $7,191.85

Total Damages Caused by Mold/Water Intrusion $66,164.83

17Total Repairs and Damages $109,891.66

Thus, there was one award of $109,891.66 with the real estate agent and broker being liable with the seller for a portion of the award.

Motions for New Trial

Defendants, Bamburg and Coldwell Banker, filed a timely motion for new trial on October 30, 2011, that addressed two different issues, whereas the Baileys’ motion for new trial was submitted 14 months later. The court entered a judgment on June 28, 2013, granting, in part, Bamburg and Coldwell Banker’s motion for new trial by amending the amount of in solido damages from $70,000 to $66,164.83.

In their motion for new trial, the Baileys attached exhibits showing that they sold the Covington Circle home for $430,000 and again used White to represent them in the sale. This sale occurred after the trial. They claim to have paid a commission of $25,800 to Coldwell Banker and other costs including moving costs for a net loss of $24,039.74. Their exhibits with the new trial motion listed other costs to preserve the property, as well as general damages and attorney fees. Jack Bailey is an attorney and represented his family in this lawsuit.

In brief, the Baileys argued that “[T]he trial court’s judgment should be vacated, set aside, and remanded so the trial court can issue a new judgment on all issues and in light of the new evidence proffered by the Baileys.”

There are no limitations on the authority of the trial judge to hear witnesses or change the judgment, regardless of which party applied for the |snew trial. Nichols v. Hodges, 385 So.2d 298 (La.App. 1st Cir.1980), writ denied, 386 So.2d 355 (La.1980).

According to the Louisiana Code of Civil Procedure, once a motion for new trial has been granted in a non-jury case, either party may offer new evidence. La. C.C.P. art.1978 states:

It shall not be necessary in a non-jury trial to resummon the witnesses or to hear them anew at a new trial if their testimony has once been reduced to writing, but all such testimony and evidence received on the former trial shall be considered as already in evidence. Any party may call new witnesses or offer additional evidence, and with the permission of the court recall any witness for further examination or cross-examination as the case may be. However, the parties shall not be precluded from producing new proofs, on the ground they have not been offered on the first trial ...

Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973), held that the trial court may grant a new trial on “all issues despite requesting a new trial on only a few multiple issues.”

When a party seeks a new trial on the basis of newly discovered evidence, the party must demonstrate that he or she made every reasonable and diligent effort to procure the evidence before trial. La. C.C.P. art.l972(2); 1 La. Civ. L. Treatise, Civil Procedure § 13:2 (2d ed.).

The sale of the house after trial and the added losses in that sale may be new evidence; but, the remaining exhibits were not newly discovered and were cumulative. Further, the sale of the house would not affect the outcome of the cause. See Brousseau v. Tucker, 479 So.2d 446 (La.App. 1st Cir.1985). The exhibit presented at trial of the total repairs and damages is exactly the same as the proffered exhibit in the Baileys’ new trial motion. The damage award pertaining to the reduction in the sales price was Rproperly based upon the cost of repairs which did not change after the initial trial. The trial court did not abuse its wide discretion in denying the Baileys’ motion for new trial.

Legal Principles

The standard of review in cases regarding findings of fact is manifest error. In order to reverse the fact finder’s determination of fact, the reviewing court must review the entire record and find that a reasonable factual basis does not exist for the finding, and determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Detraz v. Lee, 05-1263 (La.01/17/07), 950 So.2d 557. Whereas, the appellate review of questions of law is to determine whether the trial court was legally correct or incorrect. Johnson v. Ledoux, 42-090 (La.App.2d Cir.05/16/07), 95 So.2d 911.

Louisiana civil law divides substantive private law into three categories: conventional obligations (contracts), delicts (torts), and property. In this case, contracts and torts intersect. There are fundamental differences between the two.

Saul Litvinoff, 6 Louisiana Civil Law Treatise, The Law of Obligations § 16.18, at 532 (2013), observed:

There are however instances where after asserting that the same act may be a breach of contract and a tort at the same time, a Louisiana court will grant the aggrieved party redress through a combination of the remedies allowed for one and the other kind of wrongful act, which means that a tort need not necessarily absorb a contract that bound the wrongdoer and victim, nor need a contract necessarily displace a tort.
[I]t is quite clear that in those instances Louisiana courts favored a cu-mul, if not of the actions to be brought by an aggrieved party, of the remedies to which such party is entitled. (Emphasis added).

| inLa. C.C. art. 2520 provides that:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

(Emphasis added).

A buyer’s remedy against a real estate agent is not in redhibition but is based in fraud and negligent misrepresentation. Hollingsworth v. Choates, 42,424 (La.App.2d Cir.08/22/07), 963 So.2d 1089; Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir.1978), writ denied, 355 So.2d 549 (La.1978).

As to the tort action of negligent misrepresentation this court in Davis, supra at 1065 stated:

Absent a vendor-vendee relationship, there can be no redhibitory action. Plaintiffs’ remedy against the realtors is in damages for fraud under La. C.C. art. 1847(9), or for negligent misrepresentation under La. C.C. art. 2315. White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2d Cir.1974).

Fraud is a misrepresentation or suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may result from silence or inaction. La. C.C. art. 1953. Shelton v. Standard/700 Assoc., 01-0587 (La.10/16/01), 798 So.2d 60.

InThe buyer’s action against a realtor for negligent misrepresentation arises ex delicto, under Civil Code article 2315. Davis, supra. In order for a plaintiff to recover based upon negligent misrepresentation, the defendant must possess a legal duty to supply the correct information, there must be a breach of that duty, and the plaintiff must have incurred damages as a result of the breach. A real estate agent has a duty to relay accurate information about the property he is selling. Connell v. Davis, 06-9 (La.App.5th Cir.10/17/06), 940 So.2d 195, writs denied, 06-2810, 06-2839 (La.01/26/07), 948 So.2d 175,178. The duty extends to both vendor and purchaser. The broker could be held liable upon breach of this duty. Connell, supra.

The trial court’s findings are unchallenged by defendants and the evidence clearly support redhibition, a contractual warranty claim. Further, the evidence supports the trial court’s finding of liability for negligent misrepresentation against the seller, realtor, and broker, which arises ex delicto.

The trial court did not recognize defendant’s conduct as fraudulent. When De-LaCruz bought the house she had an inspection done by John Worthey, a certified expert. He informed both DeLaCruz and Mary Bamburg that there was no indication of mold, and the moisture problem was satisfactorily fixed. Thus, we have to give deference to the trial court’s conclusion of negligent misrepresentation rather than fraud.

Redhibition Damages

La. C.C. art 2545 states:

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for |12the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.

In an action for rescission because of a redhibitory defect, the court may limit the remedy of the buyer to a reduction of the price where the defect in the thing sold is such as to merely diminish the value. La. C.C. art. 2541; Capitol City Leasing Corp. v. Hill, 404 So.2d 985 (La.1981). The trial court is afforded much discretion in determining the amount of reduction in the purchase price, and its award should not be modified absent a showing of clear abuse of that discretion. La. C.C. art. 2531; Kent v. Cobb, 35-663 (La.App.2d Cir.03/08/02), 811 So.2d 1206.

11sThe general rule for the measurement of damages in quanti minor-is, that is to reduce the purchase price due to the article’s defect, is the determination between the difference between the value of the defective thing' at the time of sale and the value warranted by the seller. Kent, supra. In the case of immovable property, the amount of the award due the buyer is the amount necessary to convert an unsound structure into a sound one. Dodd v. Tucker, 528 So.2d 644 (La.App. 2d Cir.1988).

According to the evidence, the Covington Circle home was purchased on October 29, 2004, from DeLaCruz for the price of $415,000. The Baileys lived in the house for more than seven years. Under these circumstances, the trial court did not abuse its discretion in applying a reduction in the selling price, rather than ordering rescission.

The trial court opined that the Baileys were inconveniently burdened by the necessary task and expense of repairing the structural, mold, and water damage and making the home sound. The Baileys presented evidence that they were required to spend the amount of $43,726.83 in repairs made on the house’s defects and an additional $66,164.83 for water intrusion/mold damage. The total damages were $109,891.68. The evidence supports the trial court’s award in redhibition, and it is affirmed.

In contract actions, mental distress damages are generally not recoverable. However, La. C.C. art. 2545 states that a seller who knows but fails to disclose defects may be liable for other damages. This would include nonpecuniary damages for mental anguish, aggravation, and inconvenience. A nonpecuniary loss means that which is known in continental doctrine as “dommage moral,” that is, damage of a moral nature which does not affect a | ^“material” or tangible part of a person’s patrimony. See Saul Litvinoff, Moral Damages, 38 La. L.Rev. 1 (1977).

The trial court determined to that De-LaCruz knew of the prior damage and failed to disclose it to the Baileys.

La. C.C. art.1988 provides in part:

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a non-pecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.

The Louisiana Supreme Court has held that recovery of a nonpecuniary loss can be granted in cases of redhibition, provided that the obligee proves that he intended to gratify a significant nonpecuniary interest in making the purchase; this is evident in the nature of the contract; and that the obligor either knew or should have known that failure to perform would cause a non-pecuniary loss to the obligee. Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La.1992).

This court found that the buyer of defective mobile home was not entitled in a redhibitory action to nonpecuniary damages for mental anguish, aggravation, and inconvenience despite the bad faith of the seller. Neither the nature of contract nor the facts and circumstances surrounding the purchase demonstrated that the buyer purchased the mobile home for a significant nonpecuniary purpose even though the mobile home was purchased with the intention that it serve as their family’s primary residence. McGough v. Oakwood Mobile Homes, Inc., 84-091 (La.App.2d Oir.ll/01/00), 779 So.2d 798.

11fiIn the case sub judice, the trial court did not award nonpecuniary damages. Neither the contract nor the record supports a finding that plaintiffs had a significant nonpecuniary purpose even though the home was purchased with the intention that it serve as their family’s primary residence. Thus, plaintiffs’ redhibition claim against DeLaCruz did not make a showing for the remedy of mental anguish.

Tort Damages

The trial court found that the real estate agent, Mary Bamburg, was not an independent contractor but a servant of the real estate broker, Coldwell Banker. Thus, Coldwell Banker was vicariously liable for any negligence committed by Bam-burg in an action for tort damages. La. C.C. art. 2320. As stated, no answer to the appeal was lodged by defendants and the trial court’s conclusion as to vicarious liability is proper.

The trial court found negligent misrepresentation by Bamburg. Damages may be of several kinds: actual, physical damages already suffered (sometimes referred to as patrimonial damages) ... moral damages which often involve no true patrimonial loss and so are called extra-patrimonial damages such as humiliation, embarrassment, loss of enjoyment or companionship, pain and suffering. William E. Crawford, 12 La. Civ. L. Treatise, Tort Law 2 ed. (West 2009), § 3.6.

The record substantiates the trial court’s finding that plaintiffs did suffer a diminution in value of their property due to non-disclosure of prior problems with the house. As we have already found, there was no manifest error on the part of the trial judge in accepting the cost of making the house sound as the amount of diminution in value of plaintiffs property, that is, the l^cost to restore the house to the value originally warranted by the seller. In this case, that would be the entire cost of $109,891.66. The trial court was clearly in error in assessing against the agent and broker only the alleged mold damage. Thus, we reverse in that respect and find the agent and broker liable for the full amount of $109,891.66.

Under the general rule followed by the great majority of jurisdictions, if the defendant’s conduct is merely negligent and causes only mental disturbance, without accompanying physical injury, illness or other physical consequences, the defendant is not liable for such emotional disturbance. Moresi v. State Through Dept, of Wildlife and Fisheries, 567 So.2d 1081, 1095 (La.1990); William Prosser & K. Page Keeton, Handbook of the Law of Torts § 54, at 361 (5th ed.). Restatement (Second) of Torts § 436A. In our jurisprudence, there have been deviations from the general rule. Louisiana courts have found that a plaintiff may recover damages for unintentional or negligent infliction of genuine and serious emotional distress without physical injury. Moresi, supra; Beis v. Bowers, 94-0178 (La.App.4th Cir.01/19/95), 649 So.2d 1094, writ denied, 95-0429 (La.03/30/95), 651 So.2d 847. What these cases have in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious. Moresi, supra; William Prosser & K. Page Keeton, Handbook of the Law of Torts § 54, at 362 (5th ed.); W. Malone & L. Guerry, Studies in Louisiana Tort Law, 45 (1970); Robertson, supra at 292.

Under the circumstances of this case, there was no outrageous conduct by Bamburg. She was told of no mold problem and that the water intrusion |17issues were fixed. Further, there was no physical harm and the facts do not rise to the level of genuine and serious emotional distress. The trial court was not manifestly in error in denying mental distress damages.

Solidarity

Under Civil Code Article 2091, “[t]here is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.” When an obligation fulfills this definition and contains these ingredients, the obligation is in solido. Sampay v. Morton Salt Co., 395 So.2d 326 (La.1981).

In Turner v. Massiah, 94-2548 (La.06/16/95), 656 So.2d 636, 639, the Louisiana Supreme Court stated:

The damage here, Stage 2 breast cancer, cannot be apportioned between the two tortfeasors because the damage is not severable; it is indivisible. If the damage, or injury, could have been divided into two parts, one part caused by one defendant and the other part caused by the other there would have been, in effect, two injuries. In that case, there having been two torts and two injuries, the question of two caps might have been present. In this case there were two torts but only one injury.

The court also noted that:

Apportioning or separating the injuries caused by one of the doctors from the injuries caused by the other simply cannot be done. “No ingenuity can suggest anything more than a purely arbitrary apportionment of such harm.” Id.

In the instant case, the realtor and broker are liable to the Baileys in tort for the full sum of $109,891.66 and the seller is liable in contract for the same amount. The negligence of each was therefore the legal cause of the entire harm. The damage is not severable; it is indivisible. Each defendant |iswas liable for all the damages caused. Lambert v. U.S. Fidelity & Guaranty Co., 629 So.2d 328 (La.1993).

Thus, all defendants are liable in solido for all damages.

Attorney fees

Plaintiff, Jack Bailey, is an attorney and represented the family in this litigation. He is asking for attorney fees on a 40% contingency basis. Of course, his substantive claims are considerably higher than was awarded.

The Louisiana seller will not be liable for personal injury damages in redhibition unless the seller knew of the defect in the thing. If that is the case, the seller will also be negligent, but the redhibition claim will add liability for the buyer’s attorney’s fees. Thomas C. Galligan, Jr., Contortions along the Boundary Between Contracts and Torts, 69 Tul. L.Rev. 457 (1994).

However, see a not yet published opinion from the First Circuit, Richard v. McElroy, 12-1657 (La.App. 1st Cir.12/04/13), 2013 WL 6267752.

On the redhibition claim and against the seller, Laura DeLaCruz, we award attorney fees. There is no testimony chronicling the time spent in prosecuting this claim. Based on the record, we award in favor of the Baileys and against the seller, Laura DeLaCruz, the sum of $25,000 as legal fees.

Judicial Interest

[ 1flPlaintiffs claimed that the awards should be with judicial interest from the date of the sale. The trial court awarded judicial interest from the date of judicial demand. La. C.C- art 2545 provides where the sale is rescinded, the seller “is liable to the buyer for the return of the price with interest from the time it was paid.” In the case sub judice, the sale was not rescinded. The damages did not consist of a return of the purchase price but the cost of repairs to make the property whole. The trial court correctly set judicial interest from the date of judicial demand.

Conclusion

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor plaintiffs, Jack and Toye Bailey, individually and on behalf of their minor children, and against Laura DeLaCruz, Mary Bamburg and Coldwell Banker, in solido, in the sum of $109,891.66 together with judicial interest from the date of judicial demand;

IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment in favor of plaintiffs, Jack and Toye Bailey, individually and on behalf of their minor children, and against Laura DeLaCruz in the sum of $25,000 as attorney fees with interest from date of judicial demand.

Costs are assessed to defendants.

      . The spelling of the defendant’s name, Mary Bamburg, has been amended from the incorrect spelling of "Bamburgh” contained in the original pleadings.

      . EIFS refers to Exterior Insulation and Finish System and is a type of exterior composite material.

      . He is seeking $286,616.37 as attorney fees.


author: PAUL A. BONIN, Judge.

text:
    Larry G. WILLIS, Jr. v. CITY OF NEW ORLEANS, et al.
    No. 2014-CA-0098.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 18, 2014.

      Ryan D. Kelley, Kinney, Ellinghausen, Richard, & Deshazo, New Orleans, LA, for Plaintiff/Appellee.
    Marc L. Frischhertz, Lloyd N. Frisch-hertz, Frischhertz & Associates, New Orleans, LA, for Intervenor/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hWe do not permit an intervening party to raise issues not previously advanced by the parties to the principal demand. See, e.g., Lions Gate Films, Inc. v. Jonesfilm, 12-1452, p. 6 (La.App. 4 Cir. 3/27/13), 113 So.3d 366, 370. In this case, the plaintiff, Larry G. Willis, Jr., sought four after-the-fact variances to bring his newly built accessory carport into compliance with New Orleans’s Comprehensive Zoning Ordinance. The Board of Zoning Adjustments granted three of the variances, and Mr. Willis then filed a petition in the district court seeking a reversal of the one denied request. The City of New Orleans, however, did not seek review of the three granted variances. Instead, Julie Cardón and Perla Orihuela, two of Mr. Willis’s neighbors, filed a petition for intervention in Mr. Willis’s action seeking reversal of the Board’s granting of the three variances.

Mr. Willis responded by filing an exception of no right of action. The district judge sustained the exception and dismissed the intervenors’ petition [2without prejudice. Upon our de novo review, we affirm the district judge’s ruling. We now explain our opinion in more detail.

I

We first briefly summarize this matter’s facts and procedural history. Mr. Willis purchased a vacant lot in New Orleans’ Lakeview neighborhood in 2011. In 2012, he applied for a construction permit to erect a single family dwelling and accessory carport. The City duly issued Mr. Willis a permit and construction commenced in May 2013. After the buildings were constructed, however, a City building inspector visited the premises and noted that the carport was in violation of four zoning ordinances concerning setback and height requirements.

In May 2013, Mr. Willis applied to the City of New Orleans Board of Zoning Adjustments for four variances. Ms. Cardón, an adjoining property owner, made her objections to Mr. Willis’s variance requests known to the Board by way of correspondence dated July 1, 2013. The Board took up Mr. Willis’s requests on August 12, 2013. On August 20, 2013, the Board granted three of the four requested variances. Specifically, the Board denied Mr. Willis’s request for a variance from the applicable height requirement for accessory carports.

| sMr. Willis then sought review of the Board’s refusal to grant the height variance by filing a petition with the Civil District Court for the Parish of Orleans, in accordance with La. R.S. 33:3427 E, naming as defendant the City of New Orleans. On September 19, 2013, Ms. Cardón and Ms. Orihuela, a neighboring property owner, filed a petition for intervention in Mr. Willis’s district court action naming the City and seeking to name the Board as defendants. Ms. Cardón and Ms. Orihue-la’s intervention does not specifically oppose Mr. Willis’s plea for a reversal of the Board’s denial of his height variance request. Rather, Ms. Cardón and Ms. Ori-huela assert in their intervention that they, as neighbors of Mr. Willis, are aggrieved by the Board’s granting of the three setback variances and seek reversal of these variances by the district court.

Subsequently, Mr. Willis filed an exception of no right of action, asserting that Ms. Cardón and Ms. Orihuela lack standing to raise issues in their intervention— namely the Board’s granting of the three variances — not raised by him in his main demand. See Lions Gate, supra. Ms. Cardón and Ms. Orihuela opposed Mr. Willis’s exception. At the close of the hearing on the exception the district judge sustained Mr. Willis’s exception and signed a judgment dismissing the intervention without prejudice. Ms. Cardón and Ms. Ori-huela timely filed a motion for devolutive appeal.

II

In this part we set forth the law governing exceptions of no right of action and intervention.

JA

Interventions are an incidental action governed by La. C.C.P. art. 1091, which provides that “[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.” The article restricts an intervenor’s action to one that either joins with the plaintiff “in demanding the same or similar relief against the defendant,” unites with the defendant “in resisting the plaintiffs demand,” or opposes both plaintiff and defendant. La. C.C.P. art. 1091. “An in-tervenor cannot object to the form of the action, to the venue, or to any defense and informalities personal to the original parties.” La. C.C.P. art. 1094. An interve-nor, accordingly, takes the proceedings as he finds them; he cannot change the issue between the parties, and can raise no new ones. Lions Gate, 12-1452, p. 6, 113 So.3d at 370. See also IberiaBank v. Live Oak Circle Development, L.L.C., 12-1636, p. 7 (La.App. 1 Cir. 5/13/13), 118 So.3d 27, 32 (“He must take the suit as he finds it without raising issues between the defendant and the plaintiff that they have not themselves raised.”). The reason why an intervenor’s rights are so limited is because he always has his own remedy by a separate action to inject new issues. See Marcello v. Louisiana Gaming Control Board, 04-0488, p. 5 (La.App. 1 Cir. 5/6/05), 903 So.2d 545, 548.

B

The propriety of an intervention can be questioned by the peremptory exception of no right of action. See IberiaBank, 12-1636, pp. 6-7, 118 So.3d at 31-32 Lions Gate, 12-1452, pp. 4-5, 113 So.3d at 369-370. “The peremptory exception of no right of action questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor.” First Bank and Trust v. Duwell, 11-0104, p. 3 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 18. See La. C.C.P. art. 927 A(6). The Louisiana Supreme Court defines the function of this exception as “a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition” and explained that it “serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.” Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-0719, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1217, citing Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” La. C.C.P. art. 681; see Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La.11/30/94), 646 So.2d 885, 888.

We review de novo a district court judgment sustaining an exception of no right of action as a question of law and determine whether the district judge’s ruling was correct or incorrect as a matter of law. See Hornot v. Cardenas, 06-1341, p. 12 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 798.

As already stated, upon our de novo review, we conclude that the district judge was correct in sustaining the exception of no right of action on the grounds that the intervenors improperly raised new issues not raised by Mr. Willis or the City in the principal demand. Mr. Willis’s petition in the district court asked for one thing: that the Board’s decision denying his request for a height variance for his carport be reversed. Ms. Cardón and Ms. Orihuela’s intervention, on the other hand, sought to add the Board as a party-defendant and asked for: 1) the reversal of the three waivers granted by the Board to Mr. Willis; 2) a judicial determination that the three variances were granted in violation of the City’s Comprehensive Zoning Ordinance; 3) a judicial determination that the City and the Board “acted with gross negligence and in bad faith in granting the variances” to Mr. Willis; and 4) an assessment of costs against the City and the Board.

Significantly, the intervenors’ petition took no position whatsoever on the relief requested in Mr. Willis’s petition—whether the Board erred in denying his request for a height variance. The intervenors’ petition, instead, neither joined with Mr. Willis against the City, united with the City in resisting Mr. Willis’s demands, nor opposed both Mr. Willis and the City. Rather, because the intervenors’ petition raised solely new issues the district judge properly sustained Mr. Willis’s exceptions.

The intervenors seem to misunderstand the legal basis for the district judge’s ruling. Citing, instead, to Carroll-ton/Riverbend Neighborhood Association v. City \qof New Orleans, 11-1737 (La.App. 4 Cir. 6/27/12), unpub., 2012 WL 4760796, the intervenors argue that the district judge erred in sustaining the exception because they, as neighbors of Mr. Willis, do have standing to seek review of the Board’s grant of the three setback variances. We agree with this uncontroversial assertion. Indeed, La. R.S. 33:4727 E(l) provides clearly that “[a]ny person or persons jointly or severally aggrieved by any decision by the board of adjustment of any officer, department, board, or bureau of the municipality, may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality.” We have also held that a resident of the same zoning district in which a piece of nonconforming property sits has a right of action to pursue a declaratory judgment action to determine the validity or legality of the non-conforming use. See Joubert v. City of New Orleans, 09-0601, p. 13 (La.App. 4 Cir. 1/13/10), 30 So.3d 186, 194. Neither of our decisions, however, negate the applicability of La. C.C.P. art. 1094, and the principle memorialized in \ ¿Lions Gate, 12-1452, p. 6, 113 So.3d at 370. We conclude, therefore, that the district judge properly sustained Mr. Willis’s exception of no right of action.

DECREE

The trial court judgment sustaining Larry Willis, Jr.’s exception of no right of action to the petition for intervention filed by Julie Cardón and Perla Orihuela is affirmed. All costs of the appeal are assessed to appellants. See La. C.C.P. art. 2164.

AFFIRMED.

      . Mr. Willis has not complained, by individual appeal or answer to the intervenors' appeal, that the district judge's dismissal of the intervention was without prejudice. See Downs v. R. T.S. Sec., Inc., 95-835, p. 8 (La.App. 3 Cir. 1/31/96), 670 So.2d 434, 439 ("While Article 934 does not explicitly say "with prejudice,” the peremptory exceptions are designed to preclude a right of action.”). But also see Vaughn v. City of Baton Rouge, 09-0930 (La.App. 1 Cir. 5/26/10), 39 So.3d 799.

      . The applicable ordinances are: a) Section 15.5.12(4) — Accessory Buildings/Carports— distance from front lot line; b) Section 15.5.12(4) — Accessory Buildings/Carports— distance from side lot line; c) Section 15.5.12(4) — Accessory Buildings/Carports— openings along side lot line; and d) Section 15.5.12(4) — Accessory Buildings/Carports— height.

      . A plain reading of La. R.S. 33:4727’s review provision suggests that a district court would be exercising its appellate jurisdiction. See La. Const, art. 5, § 16; see also In re American Waste & Pollution Control Co., 588 So.2d 367, 370 (La.1991); Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 01-0185, pp. 5-6 (La.10/16/01), 797 So.2d 656, 660; The Willows v. State, Department of Health & Hospitals, 08-2357, p. 6 (La.5/5/09), 15 So.3d 56, 60. If this is the case, intervention in a proceeding seeking a district court’s review of a Board’s decision would be improper under any circumstance. See In re BASF Corporation, Chemical Division, 533 So.2d 971, 975 (La.App. 1 Cir. 1988); Thibeaux v. State Farm Mutual Automobile Ins. Co., 285 So.2d 363, 364-365 (La.App. 3 Cir. 1973). No party to this appeal, however, has framed the issues for our review in this manner. According to the party presentation principle "we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” See Greenlaw v. United States, 554 U.S. 237, 243-244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008).