author: STEPHEN J. WINDHORST, Judge.

text:
    BAYOU FLEET PARTNERSHIP v. Mary and Neal CLULEE and Home Place Batture Leasing, Inc.
    No. 13-CA-934.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 10, 2014.

      Anthony J. Staines, Corey P. Parenton, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Wiley J. Beevers, Shayna Lynn Beevers, Steven M. Mauterer, Jared M. Newchurch, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

|2Appellants, Bayou Fleet Partnership and Bayou Fleet, Inc. (“Bayou Fleet”), appeal the trial court’s April 8, 2013 judgment. For the reasons that follow, the judgment is reversed in part, and affirmed in part. Of the two parcels of property at issue in this litigation, one is commonly referred to as “Rivarde Tract.” Rivarde Tract is a parcel of batture property, ie., property between the Mississippi River and its levee, in Hahnville, Louisiana, near the lower Mississippi River mile marker 125. This parcel measures 312 feet wide along the Mississippi River, and is approximately 1600 feet deep. On June 2, 1999, a Judgment of Partition of Immovable Property was rendered in the 24th Judicial District Court for the Parish of Jefferson and registered in the St. Charles Parish Conveyance Records. The judgment divided Rivarde Tract into three lots (Lots A, B, and C) and awarded ownership of Lot A to Home Place Batture Leasing, Inc. (“Home Place”) and ownership of Lots B and C to Bayou Fleet [.-¡Partnership. Lot A lies upriver from Lots B and C and abuts a roadway formerly known as the Morgan Street Extension. A portion of Morgan Street is publicly owned while the remainder (Morgan Street Extension) is privately owned by Home Place. The Morgan Street Extension provides ingress and egress to Lot A from the River Road by traversing the Mississippi River levee.

The property downriver from Lots B and C is known as Homeplace Plantation, and is also owned .by Home Place. Home-place Plantation is presently leased in part to James Marine, a ship repair facility. Homeplace Plantation also contains two sandpits and an area used for storing limestone. The sandpits are filled by dredging, primarily performed by Wood Dredging, that pumps river sand from the river in front of Home Place’s downriver property. Homeplace Plantation is the other parcel of property that is at issue in this litigation.

In 1999, Bayou Fleet was granted a permit by the U.S. Army Corps of Engineers to “install and maintain two anchor piles, chains, and bouys for a one |4tier barge fleet in the Mississippi River, RDB, at a point about 124.6 miles above the Head of Passes, near Hahnville, Louisiana, in St. Charles Parish.” Bayou Fleet received a second permit authorizing it to moor barges in the river. Bayou Fleet installed Tier 7 which was originally held in place by chains attached to two dead-men located on Bayou Fleet’s property (Lots B and C).

Bayou Fleet instituted the present proceeding by filing a Petition for Right of Passage contending that its property (Lots B and C) is currently an enclosed estate having no access by public or private road and is surrounded by property owned by Neal and Mary Clulee (“the Clulees”) and/or Home Place on the North, South, and West sides and by the Mississippi River on the East side. Bayou Fleet claimed that it was entitled to a gratuitous right of passage over the road previously known as the Morgan Street Extension, all the way up to the Mississippi River’s edge and over and across Home Place’s property (Lot A) at a location above the normal high water mark, as the lower lands are primarily composed of wetlands and are impassable. Bayou Fleet contended that without this right of passage it would be unable to use, maintain, or develop its property. Bayou Fleet claimed that it has been unable to repair and maintain the mooring system located in the Mississippi River in front of its property, resulting in the potential for barges to drift over and in front of Home Place’s downriver property when the river is high.

The Clulees and Home Place answered the petition and filed a reconventional demand and third party demand against Bayou Fleet seeking damages for continuing trespass and/or interference with their riparian property rights, as well as damages for mental distress, frustration, and substantial inconvenience. The Clulees and Home Place sought a preliminary and permanent injunction against Bayou Fleet to enjoin Bayou Fleet from mooring, docking, ^warehousing, holding or permitting vessels held in place to extend in front of their property. The trial court granted the preliminary injunction as requested.

After a trial on the merits, the trial court found in favor of plaintiffs-in-recon-vention, Mary and Neal Clulee and Home Place, and against defendant-in-reconvention, Bayou Fleet, for damages in the amount of $140,000.00. On the original demand, the trial court granted Bayou Fleet a non-gratuitous right of passage. Bayou Fleet appealed.

Trespass

In its first assignment of error, Bayou Fleet contends that the trial court erred in awarding damages to Home Place. Bayou Fleet argues that shareholders or members of an incorporated entity cannot bring an action for mental anguish, frustration, or inconvenience. Bayou Fleet contends that the entity, Home Place, is the proper party to bring a claim for its damages for trespass and that Mary and Neal Clulee, individually, as owners and/or members of Home Place, are not proper parties to bring an action for trespass concerning property owned by Home Place. Bayou Fleet contends that since the trial court found that Home Place did not prove any business losses, such as leases or profits, Home Place is not entitled to any damages. Furthermore, Bayou Fleet contends that the trial court erred in awarding nominal damages in the amount of $140,000.00 based on Phillip Family, LLC v. Bayou Fleet Partnership, 12-565 (La.App. 5 Cir. 2/21/13), 110 So.3d 1158.

An appellate court may, sua sponte, raise the peremptory exceptions of no right of action and no cause of action. La. C.C.P. art. 927B; See also Ezzell v. Mírame, 13-349 (La.App. 5 Cir. 12/30/13), 131 So.3d 1093, 1098 n. 4; Moreno v. Entergy Corp., 10-2268 (La.2/18/11), 64 So.3d 761, 762.

In An exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Marks v. Third Dist. Volunteer Fire Dept., 13-383 (La.App. 5 Cir. 12/30/13), 131 So.3d 1099, 1101. An exception of no right of action assumes the petition states a valid cause of action and questions whether the plaintiff has a legal interest in the subject matter of the litigation. I'd. No evidence may be introduced to support or controvert an exception of no cause of action and the facts alleged in the petition must be accepted as true. Id.; La. C.C.P. art. 931. Conversely, evidence may be introduced to support or controvert and exception of no right of action. Id. Any doubt as to the sufficiency of the petition to state a cause of action or whether a plaintiff has a right of action must be resolved in favor of the plaintiff.

The personality of a corporation is distinct from its members. La. C.C. art. 24. Only the corporation, not its members, may sue to recover any damages it has sustained. Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App. 2 Cir. 10/7/09), 22 So.3d 246, 253. A shareholder has no separate or individual right of action against third persons for wrongs committed against or damaging to the corporation. Id., citing Glod v. Baker, 02-988 (La.App. 3 Cir. 8/6/03), 851 So.2d 1255, writ denied, 03-2482 (La.11/26/03), 860 So.2d 1135. This same rule applies even where one person may be the sole shareholder. Id. (citations omitted). A person who does business in corporate form and reaps the benefits of incorporation cannot sue individually for damages incurred by the corporation. Id. at 253-254; See also Scaffidi and Chetta Entertainment v. University of New Orleans Foundation, 04-1046 (LaApp. 5 Cir. 2/15/05), 898 So.2d 491, 494; Hinehman v. Oubre, 445 So.2d 1313 (La.App. 5 Cir. 2/6/84).

The trial court awarded damages in favor of Mary and Neal Clulee and Home Place against Bayou Fleet in the amount of $140,000.00. It is clear from the ^record that Home Place, an incorporated entity, is the owner of the property at issue in the claim for trespass. Mary and Neal Clulee are owners and/or members of Home Place and thus, individually, have no right or cause of action for trespass as to property owned by Home Place. It is well settled that individuals who do business as a corporation and avail themselves of the benefits of incorporation remain separate from the corporation, and may not individually sue for damages incurred by the corporation. Accordingly, we find that the trial court erred in awarding damages to both Mary and Neal Clulee, individually, and to Home Place. If an award for damages is appropriate, the only proper party entitled to receive that award is Home Place.

A trespass occurs when there is an unlawful physical invasion of the property or possession of another person. Sellers v. St. Charles Parish, 04-1265 (La.App. 5 Cir. 4/26/05), 900 So.2d 1121, 1127. It is incumbent upon the plaintiff to show damages based on the result or the consequences of an injury flowing from the act of trespass. Id. The damages must be proved by a preponderance of the evidence, and this burden of proof may be met by either direct or circumstantial evidence. Id. One who is wronged by a trespass may recover general damages suffered, including mental and physical pain, anguish, distress, and inconvenience. Id. However, minimal and normal worry and inconvenience are not compensable. See Griffin v. Abshire, 04-0037 (La.App. 3 Cir. 6/2/04), 878 So.2d 750, 758, writ denied, 04-1663 (La.10/8/04), 883 So.2d 1018; Vial v. South Central Bell Telephone Co., 423 So.2d 1233, 1239 (La.App. 5 Cir.1982), writ denied, 432 So.2d 265 (La.1983).

In Louisiana, only compensatory and not punitive or exemplary damages are recoverable for injury to property. M & A Farms, Ltd. v. Town of Ville Platte, 422 So.2d 708,' 711 (La.App. 3 Cir.1982). In assessment of damages arising out of | ^trespass the trial court has much discretion, but the damage must be certain, and the discretion exercised only to the extent of the damage and ascertained from all of the facts and circumstances. Id. Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all of the facts and circumstances. Britt Builders, Inc. v. Brister, 618 So.2d 899 (La.App. 1 Cir.1993). However, a corporate entity cannot experience mental anguish. M & A Farms, Ltd., 422 So.2d at 711, citing Wendorf v. Corley, 394 So.2d 1252 (La.App. 3 Cir.1980).

The trial court found that Bayou Fleet accessed and used the Clulee property in question over a ten year period and thus, found that Bayou Fleet trespassed over the property for the entire ten years. The trial court also found that the Clulees and Home Place’s claims of lost business opportunities, lost rentals, and reduction in property value were not corroborated by any competent evidence. In finding that the claim for trespass was established by a preponderance of the evidence, the trial court noted that while the trespasses were on a frequent basis, they were apparently not on a daily basis. Even though the trial court found that the evidence at trial did not provide a guide for assessing the trespass damages, the court nonetheless awarded nominal damages in the amount of $140,000.00 for the 120 months of trespass proven, relying on Phillip, supra, as a guide.

Robin Durant, managing partner of Bayou Fleet, testified that he traversed the entirety of the Morgan Street Extension and then cut across Lot A along the riverfront to access his property (Lots B and C) and to check on the two deadmen attached to Tier 7 located in front of his property. He testified that he traversed this route at least 200 times from 1992 to 2005. Mr. Durant conceded that he never obtained permission from the Clulees to ti’averse over the road and Lot A.

| ^Additionally, Mr. Durant testified that Tier 7 is located adjacent to Bayou Fleet’s ownership of Lots B and C, approximately 215 feet in front on the river just above Home Place’s downriver property (Home-place Plantation). Prior to the installation of the monopoles in 2010, Tier 7 was kept in place by two deadmen located on Bayou Fleet’s property. Mr. Durant testified that barges do drift in front of the downriver property owned by Mr. Clulee. He testified that “[fit’s not infrequent, but it’s not every day.” Mr. Durant testified that the barges would only hang over the downriver property for a couple of hours or less.

Mr. Durant testified that prior to 2005, Bayou Fleet had to maintain the deadmen two to three times a year. He acknowledged that for short periods of time when the river was high, the spar barge would drift such that Tier 7 would encroach upon the property owned by the Clulees. Mr. Durant testified that when the river has a “bump in it” (large amount of rain causing the river to rise), Bayou Fleet would not adjust chains on the deadmen if the river was only going to rise for short period of time. Mr. Durant testified that he sent a letter to the U.S. Army Corps of Engineers to explain this “sluffing down.” He testified that he had no intent to block the Clulees access to their property.

After 2005, Mr. Durant testified that there was drifting or moving of Tier 7 because he could not get to the mooring system to maintain it. Mr. Durant testified that there was no way to prevent movement of the spar barge at Tier 7 down river in front of the Clulees’ property, at least no way “economically.”

The Clulees testified that they never gave Bayou Fleet permission to overhang or fleet in front of their downriver property and the overhang or fleeting occurred continuously, though not every day, from 1999 to 2010. The Clulees submitted numerous photographs from 1999 to 2010 that depicted overhanging or fleeting by Bayou Fleet in front of the downriver property.

|inThe Clulees further testified that although the property Was currently leased, they were unable to market the remainder of the downriver property because they had no water access due to Bayou Fleet’s fleeting. Mr. Clulee conceded that the fleeting did not occur on part of the downriver property. Mr. Clulee testified that he believed he lost $200,000.00 a year because of his inability to market the downriver property, but conceded that he did not have any documentation with him to support his marketing attempts, and no evidence was introduced. Mr. Clulee attempted to establish the value of his damages through the testimony of Daniel Wise and Warren Duffy. However, the trial court sustained Bayou Fleet’s objection and found that these individuals were not experts in real estate valuations and their testimony was not relevant. The Clulees were allowed to proffer the testimony of Mr. Wise and Mr. Duffy.

Considering the evidence and testimony, we find that the trial court did not err in finding that Bayou Fleet trespassed on the upriver and downriver property owned by Home Place. While Home Place is legally entitled to an award of damages for the trespass, we can find no evidence to support the award given by the trial court. The property did not suffer any physical damage and Home Place did not establish its claims of lost business opportunities, lost rentals, reduction in property value, or inability to market property. The $140,-000.00 award for trespass was apparently intended by the trial court as an award for mental anguish suffered as a result of the trespass, since no other damages may be inferred from the acts. The circumstances and testimony reveal, at most, “minimal and normal |n distress or inconvenience.” Since a corporation cannot suffer mental anguish, the trial court erred in awarding nominal damages for trespass to Home Place and this portion of the judgment must be reversed.

Right of Passage

In its second assignment of error, Bayou Fleet contends that the trial court erroneously awarded passage across Lot A that is burdensome and economically prohibitive. The passage awarded would require Bayou Fleet to build roadways horizontally across Lot A and vertically along its own property to the river. Bayou Fleet contends that this route is unreasonable and impractical, considering that Rivarde Tract is bordered by private roadways on its upriver and downriver borders which are be suitable for the light traffic Bayou Fleet previously utilized.

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. C.C. art. 646. The owner of an enclosed estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. La. C.C. art. 689. The owner of the enclosed estate may not demand the right of passage anywhere he chooses. La. C.C. art. 692. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands. Id. However, La. C.C. art. 694 provides that if property becomes enclosed due to a partition, then passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the partition does not mention a servitude of passage. This provision is mandatory and the only requirement is that the passage was previously used or exercised .prior to the partition. Fuller v. Wright, 464 So.2d 350, 852 (La.App. 2 Cir.1985), writ denied, 465 So.2d 737 (La.1985).

112Bayou Fleet, as owner of the dominant estate (Lots B and C), seeks a right of passage over the portion of the Morgan Street Extension privately owned by Home Place and a portion of the adjacent servient estate, also owned by Home Place (Lot A). The route proposed by Bayou Fleet would travel the entirety of the private portion of the Morgan Street Extension abutting Lot A and would cross the width of Lot A which fronts the Mississippi River to reach Lots B and C.

The trial court found that Bayou Fleet’s property (Lots B and C) became an enclosed estate when Rivarde Tract was subdivided into Lots A, B, and C in the 1999 partition proceeding. A review of the record indicates that the trial court did not err in that determination.

Bayou Fleet contends that it is entitled to a gratuitous right of way traversing the Morgan Street Extension, both the public and private portions, and across the bat-ture that fronts Lot A to access Lots B and C owned by Bayou Fleet.

Robin Durant testified that he used this route prior to and after the partition. He testified that he used this route about 200 times in 15 years (1992 to 2005). Mr. Durant testified that he informed his employees before the partition to utilize Morgan Street, including Morgan Street Extension to access Bayou Fleet’s property. He assumed that they always used this route to gain access to Bayou Fleet property. Mr. Durant admitted that pre-partition (1993, 1994, or 1995), he was able to access a different part of his property by a route between Bayou Fleet’s property and Homeplace Plantation (the downriver property) that did not involve the use of Morgan Street Extension. During that time frame, Bayou Fleet used the other route to install posts or railroad ties to separate Bayou Fleet property and Home-place Plantation.

Mr. Durant testified that in 1996 or 1997, Bayou Fleet was not using their land on Rivarde Tract for any purpose. He testified that the land had been 1 ^excavated and was in litigation. Since Bayou'Fleet only owned an undivided two-thirds interest in the property pre-partition, it was not interested in trying to develop anything while another party still owned an undivided one-third interest in the property. Mr. Durant testified that Bayou Fleet filed a partition by licitation in 1996 against the one-third interest owner, and the property was partitioned in kind in June of 1999 with Bayou Fleet owning two-thirds of the property (Lots B and C) and Home Place owning one-third of the property (Lot A).

John Batson testified that he worked for Bayou Fleet from January 2000 to December 2004. Once a month he would check on the deadmen and cut the grass. The equipment he used was located in a shed on Bayou Fleet property. Mr. Batson testified that he took three different routes to access Bayou Fleet’s property. Although Mr. Batson testified that he used Morgan Street in two of the routes, he conceded that he never drove down the side of the Morgan Street Extension owned by the Clulees.

Mitchell Folse testified that since his employment with Bayou Fleet in 2005, he personally went to Tier 7 twice a year to check on the deadmen, but he only used a “Joe Boat.” He testified that when he started working, he was told that he could not use any of the roads and he never crossed the property or road owned by the Clulees.

Oneal Jarreau testified that in the 32 years of working for the Clulees on the downriver property, he never saw Mr. Durant drive or walk down the former Morgan Street Extension. Mr. Jarreau testified that he never granted Mr. Durant permission to access the downriver property. He testified that he has travelled down Morgan Street Extension with Mr. Clulee a couple pf times and he never saw anyone else go down Morgan Street Extension to the river.

| MNeal Clulee testified that he owned Lot A and Morgan Street. He testified that he did not give Mr. Durant or Bayou Fleet permission to be on his property. He further testified that he did not know that Mr. Durant’s personnel used the Morgan Street Extension to access Bayou Fleet property.

Based on the testimony, Bayou Fleet failed to establish that it is entitled to a gratuitous right of way travelling the entirety of Morgan Street, including the Morgan Street Extension, the public and private portions, and then across the bat-ture at the front of Lot A to access its property located on Lots B and C. To obtain a gratuitous right of way, Bayou Fleet had to prove that the passage requested was previously used or exercised prior to the partition. The evidence presented indicates that Mr. Durant seldom used the proposed route prior to the partition, and the route was not used by Bayou Fleet’s employees prior to the partition in 1999. The testimony established that pri- or to the partition, Bayou Fleet accessed their property near the boundary of Home Place’s downriver property by a different route. Because the requested passage was not previously used or exercised prior to the partition, La. C.C. art. 694 is inapplicable.

Bayou Fleet’s remedy is therefore provided by La. C.C. art. 692, which entitles Bayou Fleet to passage along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands. The route determined by the trial court is the shortest, least injurious route over the servient estate (Lot A) owned by Home Place. Lots A, B, and C are wetlands. The | ir,evidence and testimony established that the river side of these lots is prone to flooding at different depths throughout the year due to the rise and fall of the river. While the area at the toe of the levee floods occasionally due to rain, the flooding can be remedied by proper maintenance of the landowners. The route determined by the trial court stays drier during the year than the route requested by Bayou Fleet. Furthermore, because Bayou Fleet is not entitled to gratuitous passage, La. C.C. art. 691 authorizes Bayou Fleet to construct on the right of way the type of road necessary for the exercise of the servitude. Accordingly, we find that the trial court’s determination of the route for right of passage in favor of Bayou Fleet was not manifestly erroneous, and we affirm.

Conclusion

For the reasons stated above, the judgment granting general damages to plaintiffs-in-reeonvention, Mary and Neal Clu-lee and Home Place Batture Leasing, Inc., and against defendant-in-reconvention, Bayou Fleet Partnership, for damages in the amount of $140,000.00 is hereby reversed. The judgment granting Bayou Fleet Partnership a right of passage is hereby affirmed.

REVERSED IN PART; AFFIRMED IN PART.

      . Bayou Fleet Partnership v. Agnes R. Saia, et al, Docket No. 489-381, Div. G., Twenty-fourth Judicial District Court, Jefferson Parish, Louisiana.

      . Home Place Batture Leasing, Inc. is owned by Neal and Mary Clulee.

      . Bayou Fleet Partnership, as owner of Lots B and C, allowed Bayou Fleet, Inc. to fleet barges in the Mississippi River in front of its property pursuant to an U.S. Army Corps of Engineers permit.

      . This street is also referred to in the record as the Extension of Morgan Street. It is currently referred to as Smith Street.

      . In Clulee v. Giambelluca, 00-1057 (La.App. 5 Cir. 1/23/01), 77 So.2d 1259, writ denied, 01-0789 (La.5/4/01), 791 So.2d 660, the Clu-lees and Home Place (referred to as "the Clulees” throughout opinion) sought a declaratory judgment regarding ownership of the former Morgan Street Extension. The trial court found that after St. Charles Parish revoked the dedication of the Morgan Street Extension, as provided by La. R.S. 48:701, the plaintiffs and defendants each acquired ownership of one-half of the 50-foot road bed between their properties. In affirming the trial court's judgment, this Court found that "the parties each acquired one-half of the road bed when the Parish revoked the dedication.” Id. at 1262. It is noted by this Court that there was no determination as to whether the Clulees and/or Home Place owned their one-half of the road bed or who was the proper party to bring the declaratory judgment. In Clulee v. Giambelluca, 08-645 (La.App. 5 Cir. 5/12/09), 15 So.3d 214, Bayou Fleet sought to intervene in the suit brought by Mary and Neal Clulee and Home Place against other defendants wherein the Clulees and Home Place sought damages for trespass on the portion of Morgan Street Extension owned by the Clulees and Home Place, as well as other damages. Bayou Fleet moved to intervene which was denied by the trial court. On appeal, this Court found that ''[pjursuant to the 1999 partition sought by Bayou Fleet, the Clulees obtained 100% of the rights particular to the northernmost one-third of the Rivarde Place, which happened to include ownership of the adjacent 25-foot strip formerly known as the Morgan Street extension.” [Emphasis added] Id. at 221. This Court then found that the trial court was correct in refusing to allow Bayou Fleet’s intervention. Id. This court did not make a distinction between the plaintiffs, the Clulees and Home Place, in this case. We note that in the 1999 partition, Lot A was awarded solely to Home Place, not to the Clulees. Accordingly, pursuant to the 1999 partition and this Court's opinion in the above case, Ilome Place, not the Clulees, was awarded 100% of the rights particular to the northernmost one-third of the Rivarde Tract, which included ownership of the adjacent 25-foot strip formerly known as the Morgan Street Extension.

      . In 2011, James Marine bought TT Barge and assumed the lease previously in place by TT Barge and Home Place at the downriver property. TT Barge operated a barge repair shipyard, where it serviced and maintained inland river barges. The barges that TT Barge repaired were often fleeted at Bayou Fleet’s Tier 7.

      . RDB is the river’s right descending bank.

      . Mr. Durant is referred to as the managing partner or owner of Bayou Fleet throughout the record.

      . Although appellees proffered the excluded testimony, they did not file an appeal or an answer to this appeal. Accordingly, whether the trial court was correct in sustaining Bayou Fleet’s objection is not before this Court on review.

      . In Phillip, the trial court awarded $140,000.00 for lost lease revenue based on specific expert testimony. Phillip, 110 So.3d at 1166-1168. In this case, Home Place did not present any expert testimony or other evidence concerning lost business opportunities, lost rentals, reduction in property value, or inability to market property. Mr. Clulee did not present any documentation at trial to support these claims. The trial court found that Home Place failed to corroborate its claims.

      . This Court notes that Mr. Clulee did not testify as to whether he owned the property and road individually or through his corporation. The evidence shows that the property and road are in fact owned by Mr. Clulee’s • corporation, Home Place. Mr. Clulee specifically testified that Morgan Street was part of the partition. Because the partition awarded ownership to Home Place, Morgan Street belongs to Home Place.

      . The April 8, 2013 judgment’s right of passage:
      Beginning at the point of that certain roadway known as “Extension of Morgan Street" and the point common with the northernmost point of the toe of the Mississippi River Levee (the "point of beginning”); travel in a southerly direction across the rear boundary of Lot A of the Old Rivarde Tract along the line separating said Lot A from the toe of said levee a distance of 114.02 feet (more or less) to a
      point common to Lot B of said Old Rivarde Tract; thence travel towards the Mississippi River a distance of 30 feet along the line separating said Lot A from Lot B to á point; ' thence travel in a northerly direction a distance of 114.02 feet (more or less) across Lot A along a line 30 feet distant from and parallel to the aforementioned rear boundary line of Lot A (said rear boundary line separating said Lot A from the toe of said levee) to a point on that certain roadway known as "Extension of Morgan Street,” thence a distance of 30 feet towards the levee along said roadway known as "Extension of Morgan Street” to the “point of beginning." (Said Lot A and Lot B are as per survey introduced at trial herein as Joint Exhibit 17, a copy of which is attached hereto and made a part hereof. The "point of beginning” above-referenced has been designated by the Court on said copy.)


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    W.G.T. v. E.A.A.
    No. 14-CA-4.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 10, 2014.

      Robert T. Garrity, Jr., Attorney at Law, Harahan, Louisiana, for Plaintiff/Appellee.

      Edith H. Morris, Suzanne E. Bayle, Bernadette R. Lee, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this domestic matter, appellant seeks review of the trial court’s judgment granting appellee’s petition to nullify an October 1, 2009 consent judgment pursuant to La. C.C.P. art. 2004. At the trial court level, appellee asserted that opposing counsel’s failure to disclose her representation of the presiding trial judge’s brother in an unrelated domestic proceeding as well as the trial judge’s failure to recuse herself for the same reason constitutes fraud or ill practice sufficient to annul the consent judgment entered into between the parties. For the following reasons, we find the trial court erred in nullifying the consent judgment and we reverse the trial court judgment.

FACTS AND PROCEDURAL HISTORY

W.T. and E.A. married on October 21, 1994. Of that marriage, two children were born. On June 2, 2003, the parties divorced and entered into a consent judgment that granted the parties joint custody of the two children. On August 22, 1 s2008, the children’s mother, E.A., filed a Rule to Modify Custody and to Set Child Support, seeking to be designated the domiciliary parent and also seeking child support. The trial court, the Honorable Martha Sassone presiding, appointed Dr. Steven York to perform a complete custody evaluation. On December 4, 2008, following a hearing officer conference on E.A.’s Rule to Modify Custody and Set Child Support, the hearing officer recommended that E.A. be designated the domiciliary parent; that W.T. be granted unsupervised visitation of the children every other weekend; and that W.T. be ordered to pay E.A. $2,087.50 per month in child support. Judge Sassone signed the judgment accepting the hearing officer’s recommendations, designating E.A. as domiciliary parent and awarding $2,087.50 in monthly child support. On January 16, 2009, W.T. filed an “emergency motion” seeking sole custody and child support. On January 28, 2009, the hearing officer continued W.T.’s rule to change custody because Dr. York had not yet completed his evaluation. The hearing officer further recommended that W.T. be found in contempt for failing to pay child support as ordered by the court on December 4, 2008. Sentencing was deferred to the district judge. W.T. filed a timely objection to the hearing officer’s recommendations and a hearing was set for February 20, |42009, before the newly elected judge in Division K, the Honorable Ellen Shirer Kovach.

On February 20, 2009, Judge Kovach held W.T. in contempt for failure to pay child support in accordance with the court’s order. On that same date, however, Judge Kovach gave W.T. additional time to pay his child support and ordered him to pay the full arrears of child support within one week or “there will be penalties assessed under Louisiana Revised Statute 13:4611.” Judge Kovach ordered W.T. to appear for a hearing on March 9, 2009, to show his compliance with the court’s order. On that date, W.T. did not appear. W.T.’s counsel appeared and indicated that she could not reach her client and did not provide any excuse for his absence. The trial judge issued an attachment and the sheriffs office contacted W.T., instructing him to appear in court the next morning. The following day, March 10, 2009, the trial judge found that W.T. did not pay the outstanding child support payment on the given purge date of February 27, 2009, and did not appear to court on March 9, 2009, as ordered by the court, to prove that he was in compliance with the ordered child support payments. While W.T. eventually made full payment later in the day on March 10, 2010, he did so only after Judge Kovach warned his counsel that he faced up to ninety days in prison. Judge Ko-vach found that W.T. had shown “a total and utter disregard for the orders of this Court.” She sentenced W.T., pursuant to La. R.S. 13:4611 as | ¡¡previously instructed, to five days with the Jefferson Parish Correctional Center and a $500.00 fine. W.T. filed a writ application with this Court, which was denied.

After Judge Kovach sentenced W.T. to five days imprisonment for his contempt, W.T. filed a motion to recuse the trial judge. On June 5, 2009, after a full hearing, the Honorable Nancy Miller of the 24th Judicial District Court found that W.T. failed to prove that Judge Kovach showed any actual bias or prejudice against him and denied his motion to re-cuse.

On August 26, 2009, E.A. filed an expedited rule for sole custody, alleging that W.T. emotionally abused the children; that he abused alcohol in the children’s presence; and that Dr. York’s evaluation recommended that W.T.’s visitation be limited. The trial court conducted a hearing on various pending motions on September 4, 2009. On that date, the court-appointed custody evaluator, Dr. York, testified. Dr. York testified that neither of the children desired to see or have any relationship with their father, W.T. He testified that the parties’ daughter was afraid to sleep at her, father’s house and that she was embarrassed to have any friends sleep over because she worried that her father would drink too much and became too angry in front of her friends. Dr. York testified that the parties’ son reported that his father made him kneel on rice with his hands stretched out as punishment. The son further reported that his father accused him of using , drugs and that he has run away from school to avoid being picked up by his father. Dr. York testified that E.A. had stayed overnight in a hotel with the children for fear of W.T.’s actions.

liiDr. York also testified that his initial report contained a note of caution indicating that, especially in this case, it was imperative that neither parent discuss the findings of his report with the children. Dr. York, in his report, recommended that “[a]ny action taken against the children, due to what they have said to me [Dr. York], should be treated harshly.” Dr. York then testified that, after he provided his report to the parties, W.T. did in fact discuss the custody evaluation with the children, telling the children that their lies may cause him to go to jail and to “have a good life.” Before Dr. York’s testimony was completed, counsel for both parties requested a recess.

During the recess, the parties negotiated the Consent Judgment at issue in this case and read same into the record. The consent judgment (1) awarded joint custody to the parties, naming E.A. as the primary domiciliary parent; (2) named Dr. Stephen Thompson as the family therapist to facilitate and approve visitation between W.T. and the children; (3) ordered that E.A. and the children meet with Dr. Thompson prior to W.T.; (4) provided that if W.T. had an emotional outburst, as determined by Dr. Thompson, he would have supervised visitation until Dr. Thompson determined it is no longer necessary; (5) permitted the children to interact with E.C.’s son; (6) ordered W.T. to engage in individual therapy with a counselor of his choice; (7) ordered that E.A. remain in individual therapy; (8) ordered that the minor children remain in psychotherapy; (9) provided that both parents and E.A.’s second husband, J.P., submit to drug and alcohol assessments; (10) provided that W.T.’s rule to reduce child support would be dismissed; (11) provided that E.A.’s rule for contempt against W.T. for failure to pay child support would be dismissed; (12) provided that W.T. would pay $8,571.25 in child support ^arrearages in the amount of $1,000.00 per month until paid in full; (13) provided that W.T. would pay child support payments in the amount of $1,043.25 on the 1st and the 15th of each month for the two minor children; and (14) provided that neither parent will discuss proceedings with the children nor “denigrate the other parent ... to the minor children.” The judgment was read into the record on September 4, 2009. The parties, W.T. and E.A., were sworn in by the Court and testified that they understood and agreed to the terms of the consent judgment. The parties’ counsel each signed the judgment and submitted same to the trial court. The consent judgment was signed by Domestic Commissioner Ruben Bailey on October 1, 2009.

On October 1, 2009, the same date that the consent judgment at issue was signed, W.T. filed a motion seeking to have E.A. held in contempt for violation of the consent judgment by failing to timely bring the children to Dr. Thompson for evaluation. On November 12, 2009, the hearing officer recommended that E.A. be found in contempt for delaying the children’s visit with Dr. Thompson. The hearing officer further imposed sanctions against E.A. for her failure to appear at the hearing officer conference. E.A. subsequently filed an objection to the hearing officer’s recommendations. On December 16, 2009, the trial court conducted a hearing. E.A. testified at the hearing that she did not immediately bring the children to Dr. Thompson after the September 4, 2009 hearing because she wanted to wait until the consent judgment was signed by the parties and the court to ensure that W.T. would comply with the judgment. E.A. testified further that she waited until the consent judgment was signed so that she could provide a copy of the judgment to Dr. Thompson. E.A. pointed out that the consent judgment did not provide a date upon which she needed to contact Dr. Thompson and she thought it was reasonable to wait until the judgment was signed by the parties and the court.

18Pr. Thompson also testified at the contempt hearing. He testified that he met with E.A. and the children on October 14, 2009. He also testified that, although he does not always receive a judgment prior to beginning therapy in custody cases, he does prefer to have a judgment prior to commencing therapy to clarify his role in the entire process. At the conclusion of the hearing, Judge Kovach found that E.A. acted reasonably in scheduling the children’s meeting with Dr. Thompson and found that she was not in contempt. Regarding the imposition of sanctions against E.A., Judge Kovach vacated that portion of the hearing officer’s recommendations, finding E.A.’s actions in bringing the children to Dr. Thompson within fourteen days of the signing of the judgment were reasonable and further that the underlying rule for contempt, filed on the same date that the consent judgment was signed, had “no merit whatsoever.”

After the ruling finding E.A. not in contempt of the consent judgment, W.T. filed a second motion to recuse Judge Kovach. At the recusal hearing, before the Honorable Henry Sullivan of the 24th Judicial District Court, Judge Kovach testified that she vacated the imposition of sanctions for E.A.’s and her counsel’s failure to appear at the hearing officer conference because E.A.’s counsel had articulated to the court that W.T. threatened her following the previous hearing officer conference and that E.A.’s counsel did not feel comfortable attending subsequent hearing officer'conferences without co-counsel present for her safety. Judge Kovach testified that she determined that although she found counsel’s behavior to be unprofessional, sanctions were not appropriate at that time given the totality of the circumstances in this case; however, Judge Kovach cautioned |ncounsel regarding the importance of attending hearing officer conferences in the future. Following the hearing, Judge Sullivan found no grounds for recusal and denied W.T.’s motion to recuse Judge Ko-vach.

On July 8, 2011, Judge Kovach voluntarily recused herself and ordered that the matter be transferred to another division of the 24th Judicial District Court. In the order of recusal, Judge Kovach stated:

[I]t has come to the attention of the court that counsel enrolled in this matter has recently represented a family member in a domestic matter. A review of La. C.C.P. arts. 151 and 152 reveals no grounds for recusal in this instance. Although the court believes that it can continue to be fair and impartial, in order to avoid a situation wherein the Court’s impartiality might reasonably be questioned, and pursuant to Cannon 3 of the Code of Judicial Conduct, I ... voluntarily recuse myself from presiding over the above[-]captioned matter.

Eight months later, on March 5, 2012, W.T. filed a Petition to Annul Consent Judgment. W.T. asserted that, since the date of the September 4, 2009 consent judgment, he learned that opposing counsel, Bernadette Lee, represented Judge Kovach’s brother at the same time she presided over W.T.’s domestic matter. W.T. alleged that Judge Kovach was prejudiced and that he would not have entered into the consent judgment had he known of opposing counsel’s relationship with the judge’s brother. W.T. asserted that he entered into the September 4, 2009 consent judgment upon advice of counsel based upon his counsel’s experience thus far with Judge Kovach in Division K. He alleged that favoritism was granted upon counsel for E.A. throughout the proceedings and that Judge Kovach voluntarily recused herself, on her own motion, as soon as the relationship between opposing counsel and Judge Kovach’s brother was made public. He further alleged that he was prevented from introducing evidence to support his claim because of the conflict of interest between the judge and [ tnopposing counsel, and sought annulment of the September 4, 2009 consent judgment asserting that it was obtained by ill practices.

On August 15, 2012, E.A. filed exceptions of no cause of action and prescription to the Petition to Annul Consent Judgment. On September 14, .2012, the Honorable Donald Rowan overruled EA.’s exceptions. E.A. filed a writ application to this Court seeking review of the September 14, 2012 judgment overruling her exception of no cause of action. This Court exercised its supervisory jurisdiction and determined that the trial court did not err in overruling the exception of no cause of action.

The trial court conducted the nullity hearing on June 20, 2013, and July 11, 2013. Judge Kovach was not called by any party to testify at the nullity hearing. Judge Kovach’s brother, William Shirer, testified that Bernadette Lee, E.A.’s counsel, represented him in a divorce proceeding in 2005 and testified that Judge Kovach knew that Bernadette Lee represented him in 2005. He also testified that Bernadette Lee prepared correspondence related to Mr. Shirer’s child custody matter pending in a Colorado court from 2008-2010, and that, in the summer of 2010, she represented Mr. Shirer on appeal in the Colorado matter. Mr. Shirer did not pay Ms. Lee for any correspondence or work performed in the Colorado court. |n However, no testimony was presented to show that, prior to her voluntary recusal, Judge Kovach knew that Ms. Lee represented or provided advice to Mr. Shirer after 2005 or during the instant proceedings. Bernadette Lee testified and acknowledged that she never disclosed the fact that she had represented the judge’s brother to the judge or opposing counsel during any hearings, including the recusal hearings. Further, Bernadette Lee testified that, sixteen years prior, she represented another member of Judge Kovach’s family. Ms. Lee testified that Judge Kovach conducted a telephone conference with both counsel, immediately prior to recusing herself, and indicated that she recently learned that Ms. Lee, at that time, represented her brother in a pending domestic matter in the 24th Judicial District Court. Following the telephone conference, in which W.T.’s counsel indicated his belief that his client would prefer for Judge Kovach to recuse herself, Judge Kovach issued her Order of Recusal.

W.T. testified at the nullity hearing. In support of his contention that Judge Ko-vach was biased against him, he testified that Judge Kovach ordered him to pay thousands of dollars in child support, held him in contempt for failure to pay his child support, handcuffed him in the courtroom for several hours, and ordered him to serve flat time in solitary confinement after he paid full restitution of what he owed. W.T. testified that he was unaware that opposing counsel represented the judge’s brother in his domestic matter or that she corresponded with a Colorado court in 2008-2010 on behalf of the judge’s brother. W.T. testified that he would not have signed the consent judgment had he known of the relationship between the judge’s brother and opposing counsel.

|12W.T. learned of the relationship between opposing counsel and the judge’s brother after he filed a complaint with the Office of Disciplinary Counsel (ODC) against Ms. Lee. Thereafter, W.T. learned that the ODC formally charged Ms. Lee and that some of the charges related to her actions in a Colorado court on behalf of Mr. Shirer, Judge Kovach’s brother. He testified that he “put two and two together” and, a few days after the formal charges against Ms. Lee were made public, Judge Kovach recused herself.

At the nullity hearing, W.T. testified that he really doesn’t “recall what the Judge did.” When questioned about whether the consent judgment was inequitable, W.T. testified that the judgment was unfair because it should have never been signed. His attorney argued, in closing argument, that the consent judgment is unfavorable to W.T; because it placed Dr. Thompson, who is not a medical doctor, in control of when W.T. can have access or visitation with his children.

Ms. Sherry Sandler, W.T.’s former counsel, also testified at the nullity hearing. Ms. Sandler testified that, had she known of the relationship between the judge’s brother and opposing counsel, she would have moved to recuse Judge Kovach immediately.

Ms. Sandler testified that, on March 10, 2009, the date on which W.T. was held in contempt and sentenced to flat time, W.T. , appeared in court without payment. She further testified that, after Judge Kovach expressed to her that W.T. faced 90 days imprisonment for his contempt charge, W.T. borrowed the money from his father within an hour or two. Ms. Sandler acknowledged that five days |13flat time to which Judge Kovach sentenced W.T. was “within her discretion” but stated that the judge “went too far” and disregarded the fact that the other party was not following court orders. She testified to her opinion that Judge Kovach was "biased against her client, W.T. Ms. Sandler testified that, in her nine years of practice, she has never seen a judge impose flat time on a litigant after they have made a payment of child support in full. Ms. Sandler testified that it was “amazing” that opposing counsel did not disclose during two recusal hearings that she represented the judge’s brother or that she had represented the judge’s brother in a matter in Colorado “for free.”

Bernadette Lee was the only attorney who testified at the nullity hearing who was present for the September 4, 2009 hearing and involved in the negotiations resulting in the consent judgment at issue. Ms. Lee testified that Dr. York’s testimony began in the morning and that, during a lunch break, the parties’ counsel discussed a potential settlement. Ms. Lee testified that her client, E.A., simply wanted peace and wanted the litigation to stop. She approached Mr. Garrity, W.T.’s counsel, who was very receptive to discuss settlement. She testified that, after speaking with his client, Mr. Garrity returned and told Ms. Lee that W.T. was reluctant to enter into a settlement and that he could not convince his client to* enter into a settlement at that time — even though Mr. Garrity indicated he advised W.T. it would be best to do so. Ms. Lee testified that the parties returned after lunch and that Mr. Garrity requested for the parties to speak with the judge in her chambers. Ms. Lee stated that Mr. Garrity essentially threw his client “under the bus” and, after the conference in chambers, a settlement was reached. Ms. Lee [Mtestified that Judge Kovach was mostly silent during the conference, allowing the attorneys to negotiate and reach a settlement.

On July 17, 2013, Judge Rowan signed a judgment granting W.T.’s Petition to Annul Consent Judgment. E.A. has appealed the trial court judgment, asserting that W.T. failed to meet his burden under La. C.C.P. art. 2004 to nullify the consent judgment entered into between the parties. We agree. For the following reasons, we find the trial court improperly granted W.T.’s petition to nullify and we reverse the trial court’s judgment.

DISCUSSION

La. C.C.P. art. 2004 provides that “[a] final judgment obtained by fraud or ill practices may be annulled.” Fraud and ill practices does not require intentional fraud or wrongdoing but rather is sufficiently broad to encompass “all situations wherein a judgment is rendered through some improper practice or procedure.... ” Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983). When reviewing a trial court decision on a petition to nullify pursuant to La. C.C.P. art. 2004, the “issue for the reviewing court is not whether the trial court was right or wrong but whether the trial court’s conclusions were reasonable.” Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La.10/16/01), 800 So.2d 762, 767.

A party seeking to annul a judgment under La. C.C.P. art. 2004 “must show both that the challenged judgment resulted from a deprivation of a legal right and that its enforcement would be ‘unconscionable and inequitable.’” Guidry v. First Nat. Bank of Commerce, 98-2383 (La.App. 4 Cir. 3/1/00), 755 So.2d 1033, 1036, writ denied, 00-0920 (La.5/26/00), 762 So.2d 1106, citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983).

On appeal, E.A. seeks review of the trial court’s judgment granting W.T.’s petition to nullify the September 4, 2009 consent judgment at issue. E.A. argues |1Bthat there is no evidence that the consent judgment at issue was entered into through any fraud or ill practice. Further, E.A. asserts that W.T. failed to prove that he was deprived of any legal right or that enforcement of the consent judgment at issue, which E.A. contends is in W.T.’s favor, would be unconscionable or inequitable.

In response, W.T. argues that Judge Kovach should have recused herself prior to the September 4, 2009 consent judgment at issue. W.T. asserts that Judge Kovach was clearly biased against him and that she treated the parties unequally. In support of his assertions, W.T. points to the fact that Judge Kovach sentenced him to five days imprisonment when he failed to appear for a hearing but points out that E.A. was not held in contempt for her failure to appear at two different hearing officer conferences.

The record reflects that W.T. was held in contempt for failure to pay his child support as ordered by the court. Subsequently, W.T. failed to appear in front of Judge Kovach on March 9, 2009, as she specifically ordered, and only made payment of child support after Judge Kovach instructed W.T.’s counsel that he faced ninety days imprisonment. Regarding the hearing officer conferences for which E.A. did not appear, the record reflects reasonable excuses for her absences that Judge Kovach determined did not warrant sanctions or imprisonment.

|1ñThe first hearing officer conference, on November 12, 2009, set W.T.’s motion for contempt against E A. for her failure to bring the children to Dr. Thompson as provided in the consent judgment. The record reflects that the motion for contempt against E.A. for violation of the consent judgment was filed on the same date that the consent judgment was signed by Commissioner Bailey. Judge Kovach testified at the recusal hearing that she found E.A.’s actions in meeting with Dr. Thompson within two weeks of the signing of the consent judgment to be reasonable and did not hold E.A. in contempt. Judge Kovach further explained that she vacated the hearing officer’s recommended sanctions against E.A. for her counsel’s failure to appear at the hearing officer conference because her counsel, Bernadette Lee, previously articulated to the court that W.T. threatened her at the most recent hearing officer conference. The record reflects that Ms. Lee reported the incident to Gretna police and Ms. Lee testified that she did not feel comfortable or safe attending another hearing officer conference without co-counsel present. Ms. Lee testified that she was unable to find co-counsel to attend the November 12, 2009 hearing officer conference and that she informed the hearing officer ahead of time that she would not be present that day.

Regarding the second hearing officer conference set for December 22, 2009, on E.A.’s rule for contempt against W.T., E.A. presented to the court a medical note wherein her doctor advised that she could not attend court due to the effect to her high-risk pregnancy. W.T. argues that E.A. was not placed on bed rest at that time and points to surveillance video he obtained of E.A. performing other tasks, such as gardening, and contends that E.A. was untruthful to the court. First, the medical note that E.A. provided to the trial court does not state that E.A. was | ^placed on bed rest. Rather, the note simply indicates that E.A. may not attend any further court hearings during her pregnancy. E.A. testified that her doctor used a device during her pregnancy to measure and document her contractions and discovered that, during court hearings, E.A.’s contractions were more frequent. Therefore, E.A.’s doctor, advised that she not attend any further court hearings through the remainder of her high-risk pregnancy. We find this is a sufficient and reasonable excuse for E.A.’s absence during the second hearing officer conference and that Judge Kovach was reasonable in her finding.

La. C.C.P. art. 151 provides the grounds upon which a judge shall be recused from a matter. It is well-established in our law that the statutory grounds for recusal in Article 151 are exclusive. Guidry, 755 So.2d at 1037. A trial judge may be recused when she is “biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that [s]he would be unable to conduct fair and impartial proceedings.” La. C.C.P. art. 151 B(5). However, a judge is presumed to be impartial. The party seeking to recuse cannot merely allege lack of impartiality; he must present some factual basis. Further, the bias, prejudice, or personal interest 1 ^alleged must be of a substantial nature and based on more than conclusory allegations. Couvillion v. Couvillion, 00-143 (La.App. 5 Cir. 9/26/00), 769 So.2d 747, 753, unit denied, 00-3185 (La. 1/12/01), 781 So.2d 562, citing Tamporello v. State Farm Mut. Auto. Ins. Co., 95-458 (La.App. 5 Cir. 11/15/95), 665 So.2d 503, 506 (citations omitted); see also K.P.W. v. M.P., 07-904 (La.App. 3 Cir. 12/5/07), 2007 WL 4248592, unit denied, 08-0122 (La.2/1/08), 976 So.2d 726, and writ not considered, 08-122 (La.3/24/08), 977 So.2d 944.

C. In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.

The Louisiana Supreme Court has advised that the recusation of judges is a serious and important legal procedure. In each possible recusal situation, there is a countervailing consideration that militates in favor of a judge not recusing herself, or being recused; that is, that the judge has an obligation, part of her sworn duty as a judge, to hear and decide cases properly brought before her. In re Lemoine, 96-2116 (La.1/14/97), 686 So.2d 837, 839-40.'

W.T. argues that, although a party’s counsel’s representation of a trial judge’s sibling may not statutorily require recusal under La. C.C.P. art. 151, the failure of opposing counsel and Judge Kovach to disclose counsel’s representation or relationship with Judge Kovach’s brother demonstrates an appearance of impropriety that has tainted the proceedings. First, the “ ‘statutory grounds for recusal in civil cases have not been amended by the Legislature’ to include ‘appearance of impropriety’ as a grounds for recusal.... Absent such an amendment or a contrary interpretation by the Supreme Court, ‘a mere appearance of impropriety, not statutorily listed in La. C.C.P. art. 151, cannot be a basis for recusal.’ ” Guidry v. First Nat. Bank of Commerce, 755 So.2d 1033, 1037, citing Pierce v. Charity Hospital, 550 So.2d 211, 214-15 (La.App. 4th Cir.1989), writ denied, 551 So.2d 1341 (La.1989). See also Couvillon v. Couvillon, 00-143 (La.App. 5 Cir. 9/26/00), 769 So.2d 747, 753 (in which this Court found that a trial | mjudge having previously represented a party’s family member does not itself create “any presumption of prejudice” and that the party seeking to recuse the trial judge must still prove actual bias “to such an extent that he would be unable to conduct fair and impartial proceedings”). Second, the Code of Professional Conduct does not require that a counsel disclose to the judge and opposing counsel that she represents the sitting judge’s adult sibling. There is no statutory or professional requirement mandating that she do so.

In his reasons for judgment, the trial judge cites to the Code of Judicial Conduct, Cannon 3(C), which provides, “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself.” The Code of Judicial Conduct does not require that a trial judge recuse herself to avoid the appearance of impropriety but states that she should recuse herself if her impartiality might reasonably be questioned. This recusal under Cannon 3(C) is voluntary, not mandatory. Radcliffe 10, L.L.C. v. Zip Tube Sys. of Louisiana, Inc., 07-1801 (La.App. 1 Cir. 8/29/08), 998 So.2d 107, 115, writ denied, 09-0011 (La.3/13/09), 5 RnSo.3d 119, and unit denied, 09-0024 (La.3/13/09), 5 So.3d 120, and amended on reh’g, 07-1801 (La.App. 1 Cir. 12/3/08), 22 So.3d 178.

In this case, no evidence was presented to show that Judge Kovach knew or should have known that Bernadette Lee represented her adult sibling in a pending domestic matter on the date that the September 4, 2009 consent judgment was executed or at the time of either recusal hearing. Furthermore, even if one assumes that Judge Kovach was aware of Bernadette Lee’s ongoing professional relationship with her brother, there was no evidence presented that her relationship with either her brother or Bernadette Lee was such that it would in any way affect her ability to be fair and impartial. Therefore, there is no reasonable basis to find that Judge Kovach should have.recused herself at that time. However, even if W.T. presented evidence at the prior recusal hearings that Bernadette Lee represented Judge Kovach’s adult sibling in a domestic matter, that reason alone is not sufficient grounds for recusal.

Even if reason for recusal exists in this case, reason for recusal does not in and of itself create reason to nullify a consent judgment negotiated and entered into between the parties before the sitting judge. See Guidry v. First Bank, 755 So.2d at 1036 (wherein the appellate court affirmed the trial court’s conclusion that “although a violation of the Judicial Code would justify disciplinary action by the Supreme Court, there was nothing in the law suggesting that a judge’s failure to recuse would be grounds to nullify a judgment”) and Viator v. Miller, 04-1199 (La.App. 3 Cir. 4/27/05), 900 So.2d 1135, 1139 (wherein, in dicta, the appellate court states that a judge’s unprofessional behavior does “not create an independent basis for nullity of the judgment ...”); and Barlow v. Barlow, 11-1286 (La.App. 3 Cir. 4/11/12), 87 So.3d 386, 393 (in which the ¶ appellate court determined that Li subsequent recusal of a trial judge did not require nullification of a consent judgment executed between the parties and approved by the trial judge). Moreover, even if W.T. proved actual bias — and, as previously discussed, such a finding is not supported by the record in this case — he would still have to prove that enforcement of the consent judgment at issue deprived him of a legal right and further that enforcement of the judgment would be inequitable and unconscionable. See Kem Search, 434 So.2d at 1070.

A consent judgment is a transaction or compromise between parties who prevent or put an end to a lawsuit by adjusting their differences by mutual consent, balancing the hope of gain against the fear of loss. Millet v. Millet, 04-406 (La.App. 5 Cir. 10/26/04), 888 So.2d 291, 293. A compromise agreement which forms the basis for a consent judgment gets its binding force and effect from the consent of the parties. Sutherlin v. Sutherlin, 05-535 (La.App. 5 Cir. 2/3/06), 930 So.2d 51, 53. Public policy favors these compromise agreements and the finality of the settlements. Id. The consent judgment at issue was signed by both parties’ counsel and entered into between the parties after Dr. York’s extensive testimony that was clearly unfavorable to W.T. Although Judge Kovach approved the consent judgment at issue, she did not rule on any issue before the court but merely accepted the stipulations reached between the parties. Further, the record reflects that Judge Kovach did not sign the written consent judgment; rather, the consent judgment at 'issue was later signed by Domestic Commission Ruben Bailey.

The petitioner in an action for nullity must first prove that the challenged judgment was obtained by fraud or ill practice. Thereafter, the petitioner must prove that the circumstances under which the judgment was rendered shows a deprivation of the litigant’s legal rights and that the enforcement of the judgment would be unconscionable and inequitable. Under the facts of this case, we find | ^that W.T. has failed to meet his burden to prove that the consent judgment at issue was obtained through any fraud or ill practice. The only testimony in the record regarding either the nature of the negotiations or the judge’s behavior in conference on September 4, 2009, was that neither party nor the trial judge exhibited undue influence upon either W.T. or his counsel, Mr. Garrity. W.T. has failed to prove any actual bias against him — rather, the record reflects that Judge Kovach maintained extreme patience and balanced control in the face of a difficult case. Additionally, W.T. failed to prove-that he was deprived of any legal right or that enforcement of the consent judgment at issue — granting him joint custody of his children, allowing him additional time to pay past due child support, and allowing for reconciliation therapy to reunify him with his children — would be unconscionable or inequitable. Accordingly, we find the trial judge erred in granting W.T.’s petition to annul the September 4, 2009 consent judgment.

CONCLUSION

For the reasons provided above, the trial court judgment is hereby reversed and this matter remanded to the trial court for further proceedings.

REVERSED; REMANDED.

      . In accordance with Rule 5-2 of the Uniform Rules — Courts of Appeal, we will refer to the parties by their initials to ensure the confidentiality of the minors involved in this proceeding.

      . The parties stipulated to Dr. York's expertise in child psychology and custody evaluations.

      . The hearing officer’s findings of fact are as follows:
      (1) W.T. has not exercised visitation since October 22, 2008.
      (2) W.T. did not complete sessions with Dr. York as ordered.
      (3) The hearing officer conference began at 10:00 a.m.; at 10:25 a.m., W.T. "angrily left and did not return." W.T.’s counsel remained.
      (4) W.T.’s behavior (while present) was "very belligerent” toward all present, including the hearing officer.
      (5) Neither W.T. nor his counsel provided any income documentation prior to the conference.
      (6) W.T. is self-employed.
      (7) The minor children attend [ ] school.
      (8) E.A. has seen Dr. York on three occasions.

      .As his basis for a change in custody, W.T. asserted that E.A. allowed the minor children to interact with W.T.’s second wife, E.C., from whom he was separated at that time. W.T. further alleged that E.C. was not a good influence on the children because she was pregnant out of wedlock.

      . On January 26, 2009, Dr. York provided written correspondence indicating that the children refused to go through an evaluation with their father, W.T., present. The correspondence indicated that the children’s psychotherapist planned to work with the children on this issue so that the evaluation could be completed.

      . On that same date, the hearing officer recommended that W.T. exercise weekend visitation beginning February 6, 2009, with W.T. to pick up the children from school on that day. The hearing officer further recommended that the children not be allowed to interact with E.C. until Dr. York completed his custody evaluation.

      . La. R.S. 13:4611, in pertinent part, provides:
      Except as otherwise provided for by law:
      (1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
      (d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

      . W.T. asserts that the trial court ordered both parties to appear on March 9, 2009. However, the trial court judgment orders only W.T. to appear to show proof that he paid his past due child support as ordered.

      . W.T.’s counsel informed the Court that she spoke with her client on Friday and that he indicated he would be in Court for the hearing on Monday. W.T.’s counsel further testified that she had not heard from W.T. over the weekend or the morning of the scheduled hearing.

      . According to W.T., he did not arrive at Court on March 10, 2009, prepared to make the payment ordered and did so only later in the day when the funds were loaned to him,by his father.

      . Scheduled for hearing on September 4, 2009, was E.A.’s previously filed motion to terminate W.T.'s visitation, W.T.’s motion for sole custody and child support, and various rules for contempt filed by the parties.

      . Dr. York testified that the son reported that this punishment resulted when the son cried after W.T. restrained him with W.T.'s arms around his neck.

      .The record reflects that E.C.’s son was the parties’ children’s former stepbrother with whom they developed a friendship during W.T.’s marriage to E.C.

      . The consent judgment further dismissed W.T.'s various rules for contempt against E.A. except for those related to "money issues" which were preserved but continued without date.

      . The record reflects that W.T. repeatedly refused to either attend therapy sessions or pay for the therapy sessions with the children. Eventually, following W.T.’s outburst in Dr. Thompson's office — wherein W.T., prior to storming out of the office, yelled at Dr. Thompson to “get a lawyer” — Dr. Thompson informed the court that he could no longer provide reconciliation therapy to this family because W.T. did not trust him and repeatedly would not allow Dr. Thompson to control the reconciliation efforts. On February 9, 2011, the consent judgment at issue was modified to provide that Dr. William Janzen would replace Dr. Thompson as the family therapist and custody facilitator.

      . The matter was transferred to Division "L" of the 24th Judicial District Court, the Honorable Donald Rowan presiding.

      . Contrary to the assertions in E.A.'s appellate brief, this Court did exercise its supervisory jurisdiction to consider her prior writ application to this Court. This Court found, "[ajfter review, we do not find the trial court erred in overruling the exception of no cause of action. Accordingly, this writ is denied.” E.A. has again assigned as error the trial court’s denial of her exception of no cause of action to W.T.’s Petition to Annul Consent Judgment. This Court has previously considered this issue and found it to be without merit. Upon consideration of the same issue on appeal, we find the Petition to Annul Consent Judgment, which alleges actual bias of the trial judge against W.T. resulting in a judgment obtained by fraud or ill practices, sufficiently states a cause of action and, therefore, E.A.’s argument on this issue is without merit.

      . The record reflects that William Shirer had a pending custody matter in Colorado in which Ms. Lee first wrote correspondence to the court regarding a jurisdictional issue and later, in 2010, represented Mr. Shirer pro hac vice. W.T. bases his allegations of bias on Ms. Lee’s representation of Mr. Shirer in the Colorado matter at the time of the September 2009 consent judgment. The Louisiana Attorney Disciplinary Board (the Board), in September of 2012, affirmed the Hearing Committee’s finding of fact that Ms. Lee did not actually represent Mr. Shirer in the Colorado matter until she applied to represent him pro hac vice on appeal. Mr. Shirer testified that the appeal process in the Colorado matter took place in 2010, which is subsequent to the execution of the September 2009 consent judgment. Regarding Mr. Shirer's Colorado matter prior to the appeal process, the Board found that Ms. Lee did not seek any relief in the Colorado district court and, thus, did not engage in the unauthorized practice of law. Rather, the Board found that Ms. Lee was in fact required to communicate with the Colorado court regarding the jurisdictional issue to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

      .Mr. Shirer testified that when his sister, Judge Kovach, became a judge, she explained to him that she could no longer discuss his case. He testified that he understood that and had no further conversations with his sister on the subject.

      .W.T. testified that, on the date that the parties executed the consent judgment, his counsel approached him during a recess and said, "the Court is not going to look favorable if you don’t sign this agreement.” On cross-examination, W.T. also testified that his counsel, Robert Garrity, had just enrolled as counsel of record on that date and, therefore, was not present for any prior hearings with Judge Kovach.

      . Ms. Lee testified that all charges were dismissed. The five-page Board report, dismissing all charges against Ms. Lee, was introduced into the record.

      . The record reflects that Dr. Thompson has 'a Ph.D in education and is not a medical doctor.

      . Ms. Lee testified that she did not charge Mr. Shirer for her legal advice or services performed in connection with the Colorado matter but that Mr. Shirer did pay the Colorado court the $200.00 fee to have Ms. Lee appointed pro hac vice. Mr. Shirer, however, did pay for legal services performed for his domestic case in Louisiana.

      . The record reflects that W.T. has consistently refused to timely pay his support obligations. See Treme v. Adams, 10-554 (La. App. 5 Cir. 1/11/11), 59 So.3d 1278, 1282 (in which this Court discusses that E.A. must continuously litigate to force W.T. to comply with his court-ordered support obligations. This Court further found that Judge Kovach abused her discretion in awarding E.A. an insufficient amount of attorney fees after finding W.T. in contempt for his consistent failure to pay child support as ordered and amended the contempt judgment to increase the amount of attorney fees awarded to E.A.). However, even though W.T. has been found in contempt multiple times for failure to pay child support, the record reflects that W.T.— while ordered to pay E.A.’s attorney fees and costs — was not sanctioned (fined or sentenced to imprisonment) following each contempt rule. In addition to the February 20, 2009 hearing discussed above (wherein Judge Ko-vach determined W.T. to be in contempt for failure to pay child support but allowed him additional time to comply prior to imposing sanctions), the record reflects additional instances wherein the trial judge gave W.T. additional time to pay, even after a finding of contempt.' For example, on September 22, 2010, Judge Kovach found W.T. in contempt for failure to pay the children’s medical expenses as ordered. Although the trial judge awarded E.A. attorney fees and costs, the trial judge provided W.T. a purge date and did not impose sanctions until after W.T. again failed to pay on the purge date provided by the trial court.

      . The record reflects that E.A. was pregnant with twins at the time of the hearing officer conference at issue.

      . The surveillance video was not admitted into evidence and was not proffered by W.T.'s counsel.

      . La. C.C.P. art. 151 provides:
      A. A judge of any court, trial or appellate, shall be recused when he:
      (1) Is a witness in the cause;
      (2) Has been employed or consulted as an attorney in the cause or has previously been associated with an attorney during the latter's employment in the cause, and the judge participated in representation in the cause;
      (3) Is the spouse of a party, or of an attorney employed in the cause or the judge’s parent, child, or immediate family member is a party or attorney employed in the cause; or
      (4) Is biased, prejudiced, or interested in the cause or its outcome .or biased or prejudiced toward or against the parties or the parties' attorneys or any witness to such an
      extent that he would be unable to conduct fair and impartial proceedings.
      B. A judge of any court, trial or appellate, may be recused when he:
      (1) Has been associated with an attorney during the latter's employment in the cause;
      (2) At the time of the hearing of any contested issue in the cause, has continued to employ, to represent him personally, the attorney actually handling the cause (not just a member of that attorney’s firm), and in this case the employment shall be disclosed to each party in the cause;
      (3) Has performed a judicial act in the cause in another court; or
      (4) Is related to: a party or the spouse of a party, within the fourth degree; an attorney employed in the cause or the spouse of the attorney, within the second degree; or if the judge’s spouse, parent, child, or immediate family member living in the judge's household has a substantial economic interest in the subject matter in controversy sufficient to prevent the judge from- conducting fair and impartial proceedings in the cause.

      . Rule 3.3 of the Rules of Professional Conduct does not apply under the specific facts of this case. Rule 3.3 provides:
      (a) A lawyer shall not knowingly:
      , (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
      (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
      (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable . remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
      (b)A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
      (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
      (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

      . On the contrary, Mr. Shirer testified that his sister, Judge Kovach, informed him that she could no longer discuss his case.

      . As previously discussed, Ms. Lee testified that Judge Kovach remained mostly silent during the conference with the parties in her chambers, allowing counsel to negotiate the settlement.


author: EDWIN A. LOMBARD, Judge.

text:
    Phillip MONROE v. NEW ORLEANS POLICE DEPARTMENT and The New Orleans Chief of Police.
    No. 2014-CA-0233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.

      Phillip Monroe, Louisiana State Penitentiary, Angola, LA, Plaintiff/Appellant/Pro Se.
    .Mary Katherine Kaufman, Assistant City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. ■ LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

_jjThe Appellant, Phillip Monroe, seeks review of the July 23, 2013 judgment of the district court rendered after it conducted an ex parte hearing on Mr. Monroe’s public records request. Finding that district court did not err in conducting it’s hearing we affirm.

Facts & Procedural History

On July 11, 2011, Mr. Monroe sought public records from the Superintendent of the New Orleans Police Department (“NOPD”), Roñal Serpas (“Supt. Serpas”), pertaining to his criminal case. Mr. Monroe alleges that the NOPD failed to honor his request. Consequently, he filed a petition for a writ of mandamus and civil penalties alleging that the request had been made and that he was seeking the estimated costs for the copies of the requested police reports. The district court did not act upon Mr. Monroe’s petition, and thus he filed a supervisory writ application.

On October 8, 2012, in writ application no. 2012-1325, this Court ordered the district court to determine the status of Mr. Monroe’s case. After ordering the parties to submit arguments on briefs only, on December 7, 2012, the district court denied relief to Mr. Monroe, who appealed the judgment.

|2On June 19, 2013, we held, in case no. 2013-CA-259, that Mr. Monroe was entitled to relief, and vacated the district court’s December 7, 2012 ruling. The matter was remanded back to the district court to make the writ of mandamus peremptory and order Supt. Serpas to inform Mr. Monroe of the cost of the copies of records that he requested. Additionally, the district court was directed to consider taxing the cost of the proceedings against Supt. Serpas. Lastly, the district court was ordered to hold a contradictory hearing to determine whether Supt. Serpas’ refusal to respond was arbitrary or capricious.

On June 24, 2013, Supt. Serpas was ordered by the district court to notify Mr. Monroe of the cost of the copies of the records he requested or show cause on July 19, 2013, why the cost of the copies should not be provided. Moreover, the district court ordered him to show cause on July 19, 2013, as to why it should not consider taxing the costs of the proceedings in compliance with this Court’s remand instructions, and whether Supt. Ser-pas’ refusal to respond to Mr. Monroe’s public record request was arbitrary and capricious. Lastly, the district court ordered that Mr. Monroe’s arguments be made by briefs only; however, Supt. Ser-pas was ordered to personally appear at the hearing.

Mr. Monroe filed a motion requesting to appear at the hearing as well as “written oral argument” as to why he should be granted civil penalties. The district court denied Mr. Monroe’s motion to appear on July 16, 2013. Supt. Serpas and the NOPD filed a response to the rule to show cause and a Peremptory Exception of No Cause of Action. The City Attorney’s Office mailed the requested documents to Mr. Monroe on July 19, 2013.

3At the July 19, 2013 hearing, the district court held that: the NOPD’s Peremptory Exception of No Cause of Action is granted and that Mr. Monroe’s claims be dismissed with prejudice, with each party bearing it’s own costs; and Supt. Serpas did not act arbitrary and capriciously by failing to comply with Mr. Monroe’s request for the records; thus, Mr. Monroe’s civil penalties request was denied. The judgment was signed on July 23, 2013. As a result, Mr. Monroe timely appealed the district court’s judgment and raises five assignments of error:

1. The district court abused its discre- , tion in conducting an ex parte hearing when it was ordered to hold the appropriate contradictory hearing on remand.
2. He was denied due process by not being allowed to attend the contradictory hearing ordered by this Court to present facts, evidence, and testimony contradictorily in favor of the Petition for Enforcement and Sanctions.
3. The district court abused its discretion in holding an ex parte rule to show cause hearing instead a contradictory hearing ordered by this Court.
4. He should not have to bear his own costs as the prevailing party.
5. There has been an arbitrary and capricious withholding of public records because he has yet to receive the documents he requested.

Standard of Review

In civil cases, we apply the manifest error standard of review to the trier of fact’s factual findings. See Hall v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98. In order to reverse the findings of a trier of fact, “an appellate court must undertake a two-part inquiry: 1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and 2) the court must further determine that the record establishes the finding is clearly wrong.” Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 723-724. When there are two permissible views of the evidence, the trier of fact’s choice between them cannot be manifestly erroneous. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The manifest error standard of review also applies to mixed questions of law and fact. See Brasseaux v. Town of Mamón, 99-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-821.

Contradictory Hearing

We combine our discussion of the first and third assignments of error as they both pertain to the same issue. Mr. Monroe argues that the district court erred in holding an ex •parte rule to show cause hearing instead of the contradictory hearing that was ordered. Mr. Monroe argues that the district court was ordered to hold a contradictory hearing by this Court, but it failed to do so. The purpose of the contradictory hearing was to determine whether Supt. Serpas arbitrarily or capriciously withheld the requested documents or unreasonably or arbitrarily failed to respond to his request as required by La.Rev.Stat. 44:32. Mr. Monroe cites to La.Rev.Stat. 44:35(E)(1), which states in pertinent part:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by LSA R.S. 44:32, it may , award the requester any actual damages proven by him to have resulted from the actions of the custodian ...

Mr. Monroe argues he could not “prove” his damages because he was not allowed to attend the hearing.

In response, Supt. Serpas argues that he did not act arbitrarily or capriciously because he never received Mr. Monroe’s public records request that was allegedly made on July 11, 2011, and was never served with the writ of mandamus. Supt. Serpas asserts that an NOPD’s Records and Identification Division employee signed an affidavit attesting to the fact that the division never received a request from Mr. Monroe. Further, there was no documentation to evidence that the | .¡request was received. Thus, because a request was not received, Supt. Serpas argues he could not have acted arbitrarily or capriciously.

Mr. Monroe asserts in assignments of error one and three that the district court abused its discretion in conducting an ex parte hearing when it was ordered to hold the appropriate contradictory hearing on remand. He further avers that because there was no contradictory hearing he was unable to establish that Supt. Serpas acted arbitrarily and capriciously in withholding the requested records. We note that Mr. Monroe filed a motion to appear that was subsequently denied by the district court. This Court addresses in more detail the trial court’s ruling on the motion to appear with our analysis of assignments two and four.

Mr. Monroe argues that because the contradictory hearing was not held he was unable to prove his case. Supt. Serpas argues that he had no opportunity to act arbitrarily and capriciously because he never received notice of the requests made by Mr. Monroe. The affidavit that was presented by the NOPD serves as evidence that Supt. Serpas was unaware of any request made by Mr. Monroe. Mr. Monroe relies upon La.Rev.Stat. 44:35(D) in arguing that if it is found that Supt. Serpas acted arbitrarily and capriciously by failing to respond to his request, he may be awarded damages as a direct result of Supt. Serpas’ actions. Here, Mr. Monroe asserts that he made requests to Supt. Serpas to produce the documents; however, if Supt. Serpas did not receive the requests then he could not have acted arbitrarily and capriciously. Despite the fact that the remand instructions were not followed, we find that the district court did not err in finding that Supt. Serpas did not act arbitrarily and capriciously in withholding records requested by Mr. Monroe.

IfiDue Process & Costs

Here we combine our discussion of the second and fourth assignments of error as they are related. The second assignment of error that Mr. Monroe raises is that he was denied due process by not being allowed to attend the contradictory hearing ordered by this Court to present facts, evidence, and testimony contradictorily in favor of his Petition for Enforcement and Sanctions. Further, he avers that NOPD’s Peremptory Exception of No Cause of Action was granted and his claims were dismissed with prejudice, each party bearing it’s own costs. Mr. Monroe argues that because he was precluded from attending the hearing, a decision was made by the district court for reasons unknown to him.

Moreover, he avers that because he was granted the documents he sought he is entitled to costs for litigation. He relies upon La.Rev.Stat. 44:35(D), in pertinent part:

If a person seeking the right to inspect or to receive a copy of public record prevails in such suit, he shall be awarded costs of litigation.

He further argues that the district court erred in ruling that the prevailing party should have to bear his own costs. Mr. Monroe argues that the district court abused its discretion. Mr. Monroe requested records from the NOPD, which they failed to respond to his request.

Supt. Serpas asserts that Mr. Monroe’s due process rights were not violated by the Court allowing him to respond to the rule to show cause hearing by brief. Supt. Serpas cites to Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir.1977), wherein the U.S. Fifth Circuit outlined the four factors considered to determine if an inmate may be present at trial. Those factors are: 1. Whether the prisoner’s presence will substantially further the resolution of the case; 2. The security risks presented by |7prisoner’s presence; 3. The expense of the prisoner’s transportation and safe keeping; and 4. Whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.

In addition, he further relies upon Conwill v. Greenberg Traurig, L.L.P., 2012 WL 5288749 (E.D.La. Oct. 24, 2012). In Conwill, the Eastern District applied the Ballard factors and held that in-person testimony was not needed because the plaintiff, who was a prisoner, was afforded the opportunity to be heard via video-conference.

Supt. Serpas asserts that Mr. Monroe was afforded the opportunity to be heard by responding in a brief as opposed to appearing in court. Moreover, he asserted there was no need for the hearing to be held at a later date. Thus, the district court correctly concluded that Mr. Monroe’s due process rights were not violated when he was ordered to respond by brief.

Supt. Serpas asserts that the district court properly found that he was not liable for Mr. Monroe’s costs for litigation because he acted in good faith by producing the records free of charge. He contends that he timely produced the records after he was notified of Mr. Monroe’s request for the documents.

Supt. Serpas cites to Dwyer v. Early, 02-1545 (La.App. 4 Cir. 03/12/03), 842 So.2d 1124, wherein our Court held that the granting of awards for attorney’s fees and costs is within the discretion of the trial judge and are only appropriate upon a determination that the custodian of records acted arbitrarily, capriciously, or unreasonably. Also, the district court looked to the totality of the circumstances. Supt. Serpas avers that because he never received the request for the records, and was never served-with Mr. Monroe’s Writ of Mandamus he did not act in such a way.

IsSecond, he argues that the records of the Orleans Parish Civil Sheriff reflect that he was not served with a writ of mandamus, and request for'civil penalties because the writ would have been served upon the Mayor, acting Mayor, or City Attorney on November 9th, or on November 13th.

Considering Mr. Monroe’s argument that he was denied due process by not being allowed to attend the hearing and that there is no legal authority cited to support his position, we examine the reasoning applied by the Fifth Circuit in Ballard, supra. In Ballard, eight inmates who were incarcerated filed a Civil Rights Act lawsuit against Florida prison officials where the district court determined that the presence of the prisoner’s was necessary to the conduct of the a non jury trial on their complaints. 557 F.2d. at 478. Subsequently, the district court judge issued writs of habeas corpus ad testifican-dum to have Florida deliver six prisoners into the custody of the United States Marshal Service, so that they could testify. Id. at 479. The United States Marshal Service filed an appeal from the district court’s order and moved for stay, in which the district court granted. Id. On appeal, the Fifth Circuit affirmed the district court’s issuance of the writs, and therein applied four factors in determining whether in court appearance of the prisoner’s was necessary. Id. The four factors were applied in order to determine if a Plaintiffs due process rights were violated if he was precluded from an inmate attending the hearing. Those factors include: 1. Whether the prisoners presence will substantially further the resolution of the case; 2. The security risks presented by the prisoner’s presence. Security concerns are always at issue in the transfer of a prisoner; 3. The expense of the prisoner’s transportation and safekeeping; and 4. Whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. Id. at 480-81.

|flIn the instant matter, Mr. Monroe was allowed to submit his argument via brief which allowed him to further the resolution of the case at hand. Further, because Mr. Monroe is a prisoner the Court is allowed, at its discretion, to determine if Mr. Monroe’s presence is needed when it pertains to the costs to transport the prisoner, and whether there would be security concerns. Additionally, in Taylor v. Broom, (La.App. 1 Cir. 5/17/88), 526 So.2d 1367, the First Circuit held that because of security reasons a prisoner’s due process rights do not include the right to be physically present at the trial of the civil suit. Regarding the fourth factor, we are unaware of the terms of Mr. Monroe’s imprisonment and whether the suit could have been stayed until he was released. Here, although Mr. Monroe was not present at the hearing he was still afforded the opportunity to present his argument via submission of a brief. The majority of the factors listed above all apply to Mr. Monroe because of his status as a prisoner, therefore, those factors can be taken into consideration by the district court in determining if his presence is needed. Broom states that because of security reasons and because a prisoner’s due process rights do not include the right to be physically present at the trial of a civil suit, therefore, Mr. Monroe’s due process rights were not denied. The district court allowed Mr. Monroe to submit his argument via brief, which is a sufficient method of expressing himself and presenting an argument on his behalf. For the reasons in stated in Con-will, Ballard, and Taylor, we find that Mr. Monroe’s due process rights were not denied. This argument does not have merit.

Regarding Mr. Monroe’s assertion that he should not have to bear his own costs as the prevailing party, he argues that when it can be proven that an abuse of discretion existed he, as the prevailing party, is entitled to costs of litigation. We disagree. Under La.Rev.Stat. 44:35(D) a party seeking the right to inspect or to 110receive a copy of a public record, who prevails in such a suit, shall be awarded costs of litigation. However, according to La.Rev.Stat. 44:35(A), a person may only recover costs when they have been denied the right to inspect or copy a record. The district court reasoned that Supt. Serpas did not purposefully deny Mr. Monroe the right to inspect or copy the requested documents. Further, Supt. Serpas provided the actual documents to Mr. Monroe free of charge, and was not found to have acted arbitrarily and capriciously. Additionally, all of Mr. Monroe’s filings were made in forma pauperis; thus, he did not incur costs. Therefore, we find Mr. Monroe’s argument is without merit.

Requests for Records

The final assignment of error that Mr. Monroe raises is that there was an arbitrary and capricious withholding of public records in that he has yet to receive the documents even after Supt. Serpas was ordered to produce them. Mr. Monroe argues that after he made the request for the copy of the records Supt. Serpas still failed to send the requested copies and acted without good faith. Thus, Supt. Ser-pas’ actions are manifestly arbitrary and capricious and civil sanctions are appropriate. As explained above, we do not find that Supt. Serpas acted arbitrarily or capriciously. Additionally, the record reflects that the City Attorney’s Office mailed a police report and a crime lab report on behalf of Supt. Serpas to Mr. InMonroe via certified mail on July 19, 2013. Further, the certified mail receipt was signed on July 22, 2013, indicating that a prison employee received the records.on that day. Once Supt. Serpas complied with the district court’s instructions, the documents were no longer in his possession. For these reasons, Mr. Monroe’s argument is without merit.

DECREE

For the foregoing reasons, the judgment of the district court in favor of Phillip Monroe is affirmed.

AFFIRMED.

      . In a letter dated July 25, 2013, the City Attorney’s Office advised the district court that the requested documents were sent via certified mail to Mr. Monroe, and enclosed a copy of the certified return receipt.

      . La.Rev.Stat. 44:35(A) provides:
      Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.