text:
    Betty Hebert GEER, Karen Wheat, Hebert-Geer Company, LLC, and Dorothy Hebert Tolbert v. BP AMERICA PRODUCTION COMPANY, W & T Offshore, Inc., and Houston Oil & Gas Company, Inc.
    No. 14-450.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      James P. Doré, Alan J. Berteau, Kean Miller, LLP, Baton Rouge, Louisiana, Jacob L. Johnson, The Law Office of Jacob L. Johnson, L.L.C., Grand Lake, Louisiana, for Defendant/Appellant, BP America Production Company.
    Donald T. Carmouche, Victor L. Marcel-lo, John H. Carmouche, William R. Coe-nen, III, Brian T. Carmouche, Todd J. Wimberley, Ross J. Donnes, D. Adele Owen, Talbot, Carmouche & Marcello, Baton Rouge, Louisiana, Chad E. Mudd, David P. Bruchhaus, M. Keith Prud-homme, Mudd & Bruchhaus, L.L.C., Lake Charles, Louisiana, Leonard Knapp, Jr., A Professional Law Corporation, Lake Charles, Louisiana, for Plaintiffs/Appel-lees, Betty Hebert Geer, Karen Wheat, Hebert-Geer Company, LLC, and Dorothy Hebert Tolbert.
    Winfred Thomas Barrett, III, Lake Charles, Louisiana, for Intervenors/Appel-lees, Marck Smythe and Glenn W. Alexander.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| ,Defendant, BP America Production Company (BP), appeals the trial court’s grant of a motion to enforce a settlement agreement filed on behalf of Plaintiffs, Karen Wheat, individually and in her capacity as executrix for the Succession of Betty Hebert Geer, the Hebert-Geer Company, LLC, Nancy M. Toerner, Dorothy Hebert Tolbert, and Intervenors, Marck Smythe and Glenn W. Alexander. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs and Intervenors (collectively referred to as Geer) are landowners who instituted this lawsuit against BP and others for damages to their property located in Calcasieu Parish, allegedly caused by oil and gas exploration and production on . them property. The matter was scheduled for trial on the merits for January 21, 2013. On January 4, 2013, Geer’s counsel advised the trial court that following mediation, the parties had reached “a tentative agreement to resolve the litigation[;]” thus, they had mutually agreed to continue the trial, and they “expect[ed] to have a completed settlement document in the very near future.”

In the ensuing months, the parties’ counsel exchanged drafts of a proposed written settlement agreement. On June 19, 2013, pursuant to La.R.S. 30:29(J)(1), 12correspondence authored by counsel for BP was sent to the Louisiana Department of Natural Resources (LDNR) stating:

Enclosed is a settlement agreement between plaintiffs and BP America Production Company (“BP”) in the above referenced case. This agreement has not yet been signed by the parties, but the substantive provisions regarding any work to be done on the property will not be changed. The settlement contemplates a cash payment to plaintiffs, with BP assuming primary cleanup responsibility for the west side of the property. A settlement between plaintiffs and W & T/Houston that contemplated cleanup of the east side of the property by Houston has previously been submitted. Your office has already issued a letter of no objection with respect to the W & T/Houston settlement.

As indicated therein, the settlement agreement was attached thereto. On July 31, 2013, LDNR issued a “no objection” letter to the trial court relative to the settlement agreement.

On August 19, 2013, Geer filed a Motion for Approval of Settlement between Plaintiffs and BP America Production Company with the trial court, and a hearing on the motion was scheduled for August 28, 2013. On August 27, 2013, counsel for BP notified Geer’s counsel that BP would not approve the settlement agreement.

On August 28, 2013, a Motion to Enforce Settlement between Plaintiffs and BP America Production Company was filed on behalf of Geer. On January 8, 2014, the trial court heard Geer’s motion. Overruling objections raised by BP as to the use of parol evidence, the trial court admitted several attachments to Geer’s motion relative to a settlement agreement and provided the following oral reasons:

The Court finds that there was a meeting of the minds on this settlement and that when it was presented to them — Louisiana'Department of Natural Resources, on June 19th, it was clear it was a settlement agreement.
|sThe unique procedures set out in Act 812 does [sic] not require the settlement to be signed before its sent to the DNR and not signed before the Court approves it. But there was clearly a meeting of the minds[,] and it is a settlement. And I will enforce the settlement as written.

Accordingly, the trial court granted Geer’s motion to enforce settlement and signed a concomitant judgment on January 22, 2014. BP appeals.

ASSIGNMENTS OF ERROR

BP presents the following assignments of error for our review:

Assignment of Error No. 1: The Trial Court erred in considering parol evidence to determine whether the parties had reached a compromise, and what that compromise stated.
Assignment of Error No. 2: The Trial Court erred in finding that a compromise, as defined in [La.Civ.Code arts. 3071, and following,] had been reached between [Geer] and BP America Production Company.
Assignment of Error No. S: The Trial Court erred in holding a binding and enforceable compromise is created when an unsigned draft of a proposed compromise agreement is submitted to the Louisiana Department of Natural Resources pursuant to [LaJR.S. 30:29(J)(1).

LAW AND DISCUSSION

In its first assignment of error, BP asserts that the trial court erroneously admitted and considered parol evidence in determining whether the parties had reached a settlement agreement in this case and what constituted the terms of said agreement. We disagree.

The evidence introduced in support of the motion to enforce the settlement was not admitted for the purposes of showing that there was an intent to settle. As argued by Geer, “[h]ere BP seeks by application of the parol evidence rule to exclude evidence of the very writings that constitute the written compromise itself. Under this wrongheaded argument, no compromise or settlement could ever be 1 ¿proven except in cases where all parties sign a single settlement document.” As discussed below, that is not what the jurisprudence holds.

In the instant case, the emails between counsel showed the totality of what transpired. The parties mediated the case and reached a tentative settlement agreement. They then requested that the trial court remove the case from the court’s trial docket. Drafts were then exchanged between counsel. Pursuant to the mandate of La.R.S. 30:29(J)(1), the agreement was then submitted to LDNR for the issuance of a “no objection” letter before submission to the trial court for its approval. For the foregoing reasons, we find no abuse of the trial court’s discretion in admitting the attachments in support of Geer’s motion.

In its second assignment of error, BP asserts that the trial court erred in concluding that Geer and BP had reached a compromise as defined by La.Civ.Code arts. 3071, and following. We review the trial court’s determination that there existed a valid and enforceable settlement agreement pursuant to the manifest error/clearly wrong standard of review. Klebanoff v. Haberle, 43,102 (La.App. 2 Cir. 3/19/08), 978 So.2d 598. “This is because the existence or validity of a compromise depends on a finding of the parties’ intent, an inherently factual finding.” Id. at 601 (citing Kelly v. Owens, 29,613 (La.App. 2 Cir. 8/20/97), 698 So.2d 757, writ denied, 97-2311 (La.12/12/97), 704 So.2d 1193). For the reasons discussed below, we find, no error in the trial court’s ruling.

Louisiana Civil Code Article 3071 defines a compromise as “a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Louisiana Civil Code Article 3072 provides that “[a] compromise shall be made in | .¡writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.”

In this case, BP maintains that because there was no open court recitation of a settlement agreement, a writing signed by both Geer and BP was required. BP contends that the June 19, 2013 version of the settlement agreement relied upon by the trial court contained no signatures and that Geer’s signature on “individual signature pages” was insufficient to satisfy the writing requirement.

Based upon our review of the record, we find no manifest error in the trial court’s determination that a valid compromise had been reached between Geer and BP. First, there was “a meeting of the minds” as to the agreement of the parties as evidenced by the emails between the attorneys. Clear evidence that there was in fact a “meeting of the minds” between the parties is contained in the exchanges predating the settlement agreement forwarded to LDNR.

On June 17, 2013, Will Coenen, counsel for Geer, emailed Alan Berteau, counsel for BP: “Alan, do you have the final draft of the agreement[?]” Minutes later, Ber-teau responded: “Will get it to you today.” Approximately two hours later, Berteau emailed Coenen with the referenced attachments thereto stating: “Will, here are the settlement draft[ ] and the settlement notice to be recorded. We need to add the signature pages to the settlement agreement; my secretary’s gone so it’ll be first thing tomorrow before I can get that to you.” Thereafter, on that same afternoon, the attorneys discussed changes made to prior drafts which were reviewed and accepted. Just minutes after 5:00 p.m., Ber-teau emailed Coenen: “Fair enough. Then let’s go with it. We’ll finalize it tomorrow and get it submitted to LDNR.” Coenen responded moments later: “Alan, the notice of settlement is fine. I forgot to mention that in my last email.” Additionally, within minutes, Coenen emailed Ber-teau, for his approval, the letter to be forwarded to LDNR and |fithe assistant attorney general involved in the case submitting the settlement agreement. Ber-teau promptly responded: “That’s fine. Can you share a copy of the ‘no objection’ letter re: W & T’s settlement?” Lastly, at 6:02 p.m., Coenen emailed Berteau relative to the letter directed to LDNR: “Let’s send out tomorrow. I[’]ll b[e] out but have someone sign[.]” The following day, Coe-nen’s secretary confirmed that Berteau’s office was delivering the letter to LDNR that afternoon.- Coenen then emailed Ber-teau requesting that he forward him a copy of the letter sent to LDNR, and Berteau agreed to do so.

The settlement agreement was forwarded to LDNR by counsel for BP as the attorneys had discussed. In Berteau’s letter to LDNR, he expressly identifies the document as the “settlement agreement” which was the subject of negotiations and the topic of the foregoing emails. Given the foregoing, we find it is disingenuous for BP to now claim that there was no “meeting of the minds” or settlement in the face of its attorney’s repeated representations via emails to opposing counsel and BP counsel’s own express representation to LDNR that the document it submitted was the agreement of the parties for which they sought LDNR’s approval and issuance of a “no objection” letter to the trial court. We agree with Geer that in so doing, “BP made an explicit representation to the LDNR under [La.R.S.] 30:29(J) that it had reached a meeting of the minds with the plaintiffs.”

BP also argues to this court that the settlement document forwarded to LDNR and relied upon by the trial court contained redactions and was incomplete. Geer acknowledges that there were redac-tions to the settlement agreement submitted to LDNR on June 19, 2013, some of which were required by the confidentiality provisions of the agreement itself. However, an unredacted version containing the dollar amount of the settlement was sent by counsel for BP to counsel for Geer just two days later. On that date, Geer’s counsel emailed BP’s |7counseI requesting a complete unredacted version so that he could proceed with obtaining signatures. BP’s counsel responded by attaching the requested document and stating, via email: “Here’s the settlement agreement. Note we need signatures on both the agreement and ‘Exhibit A.’ Thanks.”

Additionally, BP argues that even if the parties had achieved a meeting of the minds, there was no signed writing; thus, there was no. valid compromise. BP contends that Geer is unable to “identify any writing which can serve that function in the present case.” Additionally, BP notes that the settlement agreement forwarded to LDNR on June 19, 2013, was unsigned and that no other completed signed copy was introduced. Lastly, BP contends that Geer failed to show that BP’s counsel had the authority to enter into the settlement. We disagree.

Having found sufficient evidence that there was a meeting of the minds and a settlement between Geer and BP, we further find that the emails exchanged between counsel are sufficient under the jurisprudence to satisfy the requirement that the writing be signed and that counsel for BP had the authority to confirm the agreement.

Relative to the necessity of a writing, our supreme court in Felder v. Georgia Pacific Corp., 405 So.2d 521, 523-24 (La.1981), has stated that:

[T]he requirement that the agreement be in writing and signed by both parties does not necessarily mean that the agreement must be contained in one document. It would suffice that there be a written offer signed by the offerer and a written acceptance signed by the acceptor, even if the offer and the acceptance are contained in separate writings. In other words, where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La.C.C. art. 3071, has been perfected.

|RThe legal sufficiency of emails to constitute writings has also been addressed in the jurisprudence. In Klebanoff, 978 So.2d at 602, the second circuit considered whether a settlement agreement had been reached by the parties that was accomplished “through an exchange of emails” and reasoned as follows:

There are two essential elements of a compromise: (1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences. Trahan v. Coca Cola Bottling Co., 2004-0100 (La.3/2/05), 894 So.2d 1096. The requirement that the agreement be in writing does not necessarily mean that the agreement must be contained in one document. Felder v. Georgia Pacific Corp., supra. Where two instruments, read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement has been perfected. Id.; Townsend v. Square, 94-0758 (La.App. 4 Cir. 9/29/94), 643 So.2d 787. Compromises are favored in the law, and the burden of proving the invalidity of such an agreement lies with the party attacking it. Rivett v. State Farm, 508 So.2d 1356 (La.1987); Kelly v. Owens, supra.

Further, the court opined that “[t]he crucial issue is the parties’ intent as expressed in the emails.” Id. The court in Klebanoff ultimately found that “the parties’ positions were clearly expressed in writings which are recognized under the La. Uniform Electronic Transactions Act, La. R.S. 9:2607.” Id. at 605.

Also persuasive herein is Dozier v. Rhodus, 08-1813 (La.App. 1 Cir. 5/5/09), 17 So.3d 402, writ denied, 09-1647 (La.10/30/09), 21 So.3d 294, in which the appellate court considered an appeal of a trial court judgment granting a motion to enforce a settlement agreement. In reaching its decision, the trial court found that |9the elements required for a valid compromise were satisfied by an exchange of emails between the attorneys. On appeal, the first circuit, citing Felder, noted that the writing requirement for a compromise “can be satisfied by separate writings[.]” Id. at 409. The first circuit, therefore, found “that the legal requirements for an enforceable settlement agreement were met[,]” and it affirmed the trial court’s grant of the motion to enforce the settlement. Id. at 410.

In Succession of Wilson, 13-164 (La.App. 3 Cir. 10/9/13), 2013 WL 5539323 (unpublished opinion), this court also considered a motion to enforce a settlement agreement with issues raised therein that are very similar to those in the instant matter. In that case, it was asserted on appeal that:

[T]he trial court was clearly wrong: 1) in enforcing the alleged compromise agreement between the parties because ' it was not reduced to a writing, or reciprocal writings, signed by both parties; 2) in allowing parol evidence as proof of the agreement between the parties; and 3) in finding that [one party’s] attorney had the authority to bind [him] in a compromise agreement with the Succession..

Id., 13-164, p. 1. The Succession argued on appeal “that the emails between the attorneys, along with the documents attached thereto, succinctly set forth the terms of the settlement agreement and each party’s obligation under that agreement.” Id., 13-164, p. 3. Citing Dozier, this court found as follows:

After review, we conclude that the trial court did not err in finding that the parties entered into a valid compromise agreement. When read together, the emails and documents exchanged between the attorneys for the Succession and Roscoe clearly outline the obligations owed by each of the parties along with the parties’ mutual intent to put an end to their dispute. Further, that Roscoe’s attorney reserved the right to review another document ... does not change the fact that the parties had already agreed to all of the elements necessary to constitute a valid and enforceable settlement.

11ftM, 13-164, p. 4. We, therefore, affirmed the judgment of the trial court granting the motion to enforce the settlement agreement.

In the instant case, the exchange of emails between counsel for Geer and counsel for BP, some of which are quoted above, culminated in a settlement agreement between the parties. Thereafter, a document expressly identified by counsel for BP as a settlement agreement between Geer and BP was forwarded by BP to LDNR. The emails together with the document satisfy the requirement that a compromise agreement be reduced to writing.

We likewise find no merit to BP’s contention relative to counsel’s authority to enter into the settlement agreement. Although counsel for BP asserts that he lacked the requisite authority to bind his client, there is no evidence in the record supporting this contention. To the contrary, the evidence is overwhelming that counsel negotiated a settlement agreement over the course of several months, agreed to postpone the trial date in light of a tentative agreement between the parties, forwarded and responded to numerous emails in furtherance of reducing the agreement to writing, and represented to LDNR that a settlement existed, all of which refute BP counsel’s argument that he was without authority to negotiate on behalf of BP; and, the record contains no evidence to the contrary.

For these reasons, we agree with the trial court that there was a meeting of the minds between the parties as to a settlement agreement. Additionally, we find no error in the trial court’s ruling that a valid and enforceable compromise had been reached in accordance with La.Civ.Code art. 3071, and following.

In its final assignment of error, BP argues that “the oral reasons given by the Trial Court could be interpreted to hold that [LaJR.S. 30:29 supersedes the | T requirement that a compromise be signed by both parties.” This was not the holding of the trial court. The trial court’s oral reasons reveal that it recognized that the provisions of La.R.S. 30:29 do not require that the parties sign the document upon its submission to LDNR, or, for that matter, before the trial court approves it. Cognizant of the legal requirements for a valid and enforceable settlement agreement, the trial court correctly concluded that there was a meeting of the minds as to that agreement; further, the trial court correctly found the agreement, coupled with the emails exchanged between counsel, was sufficient to satisfy the writing requirement of the Louisiana Civil Code articles discussed above. We, therefore, find no merit to this contention.

DECREE

For the reasons assigned, the judgment of the trial court granting the motion to enforce settlement on behalf of Karen Wheat, individually and in her capacity as executrix for the Succession of Betty Hebert Geer, the Hebert-Geer Company, LLC,, Nancy M. Toerner, Dorothy Hebert Tolbert, Marck Smythe, and Glenn W. Alexander is affirmed. Costs of this appeal are assessed to BP America Production Company.

AFFIRMED.

      . We note that the Petition to Intervene names "Marck Smythe," whereas subsequent pleadings name “Mark Smyth.”

      . All claims of Plaintiffs and Intervenors against Defendants, W & T Offshore Inc., Houston Oil & Gas Company, Inc., Tracy W. Krohn and Davies Construction, LLC, as successor to Davies Construction Inc., were dismissed by court order dated December 20, 2012.

      . Louisiana Revised Statutes 30:29(J)(1) provides, in relevant part:
      In the event that any settlement is. reached in a case subject to the provisions of this Section, the settlement shall be subject to approval by the court. The [Louisiana Department of Natural Resources] and the attorney general shall be given notice once the parties have reached a settlement in principle. The [Louisiana Department of Natural Resources] shall then have no less than thirty days to review that settlement and comment to the court before the court certifies the settlement.

      .Notably, the drafts of the settlement agreement, when exchanged between counsel, contained a watermark stating "DRAFT RE SETTLEMENT DISCUSSION PURPOSES ONLY[;]” however, this watermark had been removed and did not appear on the document forwarded to LDNR for its approval.

      . "The standard of review applicable to the propriety of admission of parol evidence by a lower court is that of abuse of discretion.” Goutierrez v. Goutierrez, 12-428, p. 4 (La.App. 3 Cir. 11/7/12), 102 So.3d 1047, 1051, writ denied, 12-2655 (La.3/1/13), 108 So.3d 1177 (citing Bennett v. Porter, 10-1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663).

      . We note that BP contends that indemnity provisions were also not included in the settlement agreement forwarded to LDNR. However, said provisions pertained to co-defendants’ release and indemnity claims against one another and were unrelated to the settlement terms between Geer and BP.

      . Louisiana Revised Statutes 9:2607 provides:
      A. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
      B. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
      C. If a law requires a record to be in writing, an electronic record satisfies the law.
      D. If a law requires a signature, an electronic signature satisfies the law.

      . We also found no merit to the remaining assignments of error relative to parol evidence and lack of authority raised on appeal.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jody R. BALACH.
    No. 14-539.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Annette Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Jody R. Balach.
    Asa A. Skinner, District Attorney-Thirtieth Judicial District, Terry W. Lam-bright, Assistant District Attorney, Lees-ville, Louisiana, for Appellee, State of Louisiana.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

|TIn this criminal case, Defendant, Jody R. Balach, pled guilty to illegal possession of stolen things valued at more than $1,500:00, a violation of La.R.S. 14:69(B)(1). As part of the plea agreement, the State dismissed two other pending charges (one a felony and one a misdemeanor) against Defendant and agreed not to pursue habitual offender enhancement. Defendant was sentenced to serve eight years at hard labor and pay a fíne of $1,000.00 plus court costs. Defendant’s Motion to Reconsider Sentence was denied. He appeals, alleging excessive sentence. For the following reasons, we affirm Defendant’s sentence.

FACTUAL BACKGROUND

At Defendant’s guilty plea hearing, the State presented the following factual basis:

[O]n or about April 30th, 2013, defendant did have in his possession, along with another defendant, certain property belonging to Mr. Jeane, which he had good reason to believe was stolen property. My understanding is that property was also subject of a theft, and he had — would have had reasonable knowledge that the items were stolen property, and had a value of approximately $1800.

According to Detective Misti Bryant’s interview with Defendant, Defendant admitted to the illegal possession of various stolen items, including a two-ton jack, three tackle boxes, a battery charger, a wet tile saw, and fishing rods and reels. The owner, Carlton R. Jeane, signed an affidavit stating the value of the items was $1,770.00, based on their purchase prices. Defendant sold the items to Harvey’s Auto Parts in Vernon Parish.

UERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

Defendant contends his sentence is excessive, constitutes cruel and unusual punishment, and violates federal and state constitutions. This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).

Defendant was exposed to a sentence of up to ten years with or without hard labor and/or a fíne of up to $3,000.00 for his conviction of illegal possession of stolen things. La.R.S. 14:69(B)(1). Thus, his eight year sentence was toward the high end of the sentencing range and one-third of the possible fíne for the offense.

Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes |amay provide some insight, “it is well settled that sentences must be' individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[; however,] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)). “The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” La.Code Crim.P. art. 881.4(D).

In this case, we note that the trial court was in error in considering Defendant’s circumstances. At the plea hearing, Defendant testified he had eleven years of education and was employed as a moving contractor by Shapkoff Moving and Storage before his incarceration. He also stated that he has epilepsy and had taken medication for that condition about two months before the hearing and that he had “a doctor’s appointment lined up now for it” at the time of the plea hearing.

At sentencing, the trial court judge noted his consideration of the factors of La.Code Crim.P. art. 894.1 and commented that Defendant “apparently is in excellent health.” He stated that he had “no information about any kind of employment record” and noted Defendant had a tenth grade education. The trial court judge’s statements are incorrect, and it relied on misinformation in crafting Defendant’s sentence. However, Defendant’s appeal only contends that his sentence is excessive, not that it is based on incorrect facts. Therefore, we do not |4consider those factual errors in its review of Defendant’s appeal. Uniform Rules-Courts of Appeal, Rule 1-3.

The defendant in State v. Pitts, 08-1148 (La.App. 3 Cir. 4/1/09), 6 So.3d 976, pled guilty to illegal possession of stolen things over $500.00 regarding the theft of oilfield barges. He was sentenced to nine years at hard labor. As part of the plea bargain, the State agreed not to charge him as a habitual offender. On appeal, he argued his sentence was excessive because he helped authorities discover the involvement of others in the crime. The district attorney submitted a letter recommending a suspended sentence. The trial court considered the defendant’s past four felony convictions for receiving stolen things, sim-pie burglary, and unauthorized entry and two misdemeanor convictions for driving while intoxicated. The defendant also had a juvenile record. The trial court noted no arrests resulted from the defendant’s cooperation.

This court in Pitts determined the defendant’s sentence was based on his lengthy criminal history, not on the lack of results from his cooperation. This court also noted the defendant gained a significant benefit from the State’s agreement not to charge him as a multiple offender and expose him to a much longer sentence. The defendant’s sentence was affirmed.

In State v. Allen, 45,040 (La.App. 2 Cir. 1/27/10), 30 So.3d 1049, the defendant pled guilty to illegal possession of stolen things over $500.00 and possession of marijuana. His criminal history included misdemeanor convictions for evading arrest, unlawful carrying of a weapon, and possession of marijuana, along with a felony conviction for aggravated robbery. The thirty-eight-year-old defendant was married and had a four-year-old daughter. The second circuit affirmed his sentence of six years at hard labor with no fine.

|5In the instant case, the trial court judge noted that Defendant “is considered as a third offender classification” and that he has a prior criminal history of “Possession of Marijuana with Intent and ordered to serve seven years, which was suspended. That probation was ultimately revoked. In 2008, he pled guilty to the offense of Attempted Possession of Al-prazolam, was given a two and one-half year sentence, and that probation was revoked.” Additionally, Defendant, in his companion case, pled guilty to two counts of motor vehicle theft on the same day as his plea in this matter. The trial court judge did not believe Defendant was eligible for probation or “that he would respond favorably to any probationary treatment anyway.” The trial court judge also noted that Defendant was thirty-two years old at the time of sentencing, that he had four children, and that he had received treatment for his prior drug and alcohol abuse.

Defendant contends he received limited benefit from his plea bargain because the dismissed charges involved the same stolen items involved in this conviction. However, the State also waived its right to charge Defendant as a habitual offender. As a third felony offender, Defendant could have been sentenced to a term of eighty months to twenty years and/or a fine of $2,000.00 to $6,000.00. La.R.S. 15:529.1(A)(3)(a). Even though his eight-year sentence exceeds the minimum term he could have received as a multiple offender, he faced a potential exposure of a significantly longer term and a significantly higher fine. Defendant clearly received substantial benefit from his plea bargain.

We find that the trial court did not abuse its broad sentencing discretion in imposing this sentence. Defendant had two prior felony convictions and did not successfully complete his probation in either matter. The trial judge, best able to particularize the sentence, believed Defendant would not respond well to ^probation, and a lesser sentence would deprecate the severity of Defendant’s conduct. Defendant’s assignment of error lacks merit.

DISPOSITION

Defendant’s sentence is affirmed.

AFFIRMED.

      . On the same day, before the same judge, Defendant also pled guilty to two counts of theft of a motor vehicle valued at more than $500.00 but less than $1,500.00 under docket number 84717. He was sentenced to five years at hard labor plus a fine of $1,000.00 and court costs on each count. The trial court ordered all sentences to run concurrently-


text:
    SUCCESSIONS OF Harry Cyprien THIBODEAUX, Sr. and Irene Duplantis Thibodeaux, Husband and Wife.
    No. 14-487.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Michael J. Daspit, Daspit Law Office, A Professional Law Corporation, St. Martin-ville, Louisiana, for Appellants, Gene Thi-bodeaux and Tina Thibodeaux.
    Stan Gauthier, II, A Law Corporation, Michael G. Johnston, II, Lafayette, Louisiana, for Succession Representative/Appel-lee, Harry Cyprien Thibodeaux, Jr.
    William B. Bull, Lafayette, Louisiana, for Succession of Glenn W. Thibodeaux.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| Appellants, Gene Thibodeaux and Tina Thibodeaux (Gene and Tina), husband and wife, appeal a trial court judgment denying their claims against the successions of Gene’s parents, Harry Cyprien Thibo-deaux, Sr. (Harry, Sr.) and Irene Duplan-tis Thibodeaux (Irene). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Harry, Sr. and Irene, husband and wife, owned immovable property located in St. Martin Parish, which is at issue in this matter. Harry, Sr. died testate November 25, 1978. Irene died testate March 11, 2000. In December 2009, Harry Cyprien Thibodeaux, Jr. (Harry, Jr.) instituted estate proceedings to open the successions of his parents, Harry, Sr. and Irene. Harry, Jr. was ultimately appointed administrator of both the succession of Harry, Sr. and the succession of Irene.

The record reflects that on April 5,1977, Harry, Sr. executed an olographic testament wherein he bequeathed to Irene “all [his] earthly possessions and [his] share in the property which [they] both possess[,] to use according to law[,] until [Irene’s] death[,] to manage and use the revenue thereof!,] as long as she wants[.]” On December 1, 1978, all nine of the children of Harry, Sr. and Irene executed a Power of Attorney granting to Irene the authority to sell “movable property” belonging to the estate of Harry, Sr. Also in evidence is the Last Will and Testament of Irene, in statutory form, executed on January 13, 1994, wherein she |2bequeathed to her nine children equally “albof the remaining property of which [she] die[d] possessed.”

In April 2011, Gene and Tina filed a claim against the successions, asserting ownership of a wood-frame house and six acres of land on which it is situated. The house and land were the community property of Harry, Sr. and Irene. Gene and Tina alleged that they purchased the house from Irene for $16,000.00, evidenced by Act of Credit Sale dated December 31, 1980. Gene and Tina further claimed that, concurrent with their purchase of the house in 1980, they took possession of the land on which the house is situated; consequently, they argue that they own the land pursuant to thirty-years acquisitive prescription.

A bench trial was held on April 12, 2012, after which the trial court ruled, in pertinent part, as follows:

[Louisiana] Civil Code Article 464[ ] defines a building as [immovable] property, so the law regarding acquisitive prescription of an [immovable] property applies to this home and, of course, to the land it sits on.
In December of 1980, Mrs. [Irene] Thibodeaux signed a document purporting to sell the entire wood frame home to Gene Thibodeaux. The validity of that document can be questioned, but there’s no question that Gene Thibo-deaux intended to possess that property as owner, as this document is a document translative of ownership. So at that point, beginning on December 31st, 1980, Mr. Gene Thibodeaux was a good faith possessor of what Mrs. Irene Thi-bodeaux sold him. Mrs. Irene Thibo-deaux owned a one-half interest[ ] in the house, which she had every right to sell to Gene Thibodeaux. She had a Power of Attorney signed by all of her children giving her certain rights over property that they owned which |sthey inherited from their father. That Power of Attorney did not include the authority to sell [immovable] property, so she had no authority to sell the children’s half of the building to Gene Thibodeaux. Gene Thibodeaux has possessed that home since 1980, so as of December Blst, 1990, by acquisitive prescription, he acquired Mrs. Irene Thibodeaux’s one-half interest in that house. Of course, he inherited l/18th interest from his father.
With regard to acquiring, by acquisitive prescription[,] ownership of the other interest of his siblings, the question is whether they, the other siblings[,] had notice that he was acquiring, that he was intending to possess as owner, and without question, Glenn Thibodeaux understood that because he notarized the document. However, I have heard no evidence which [sic], that any of the other siblings were notified, either. by actions or words, oral or written, that Gene Thibodeaux intended to possess the property as owner. Although some of them may have had that understanding, it really doesn’t make any difference because on June 4th, 1988, Gene Thibo-deaux, in the letter marked Harry 1, acknowledges that the Bill of Sale that was passed on December 31st, 1980, did not transfer ownership of the siblings’ interest in the property, and he acknowledged that they still own their interest in the property. That acknowledgment, according to Civil Code Article 3464, interrupted any prescription that may have been running from 1980. Therefore, even if[,] at that time, they were all notified that he intended to possess as owner, only 30 years have not passed. He could not be a good faith possessor because he acknowledged the ownership in 1988, and even if he were a bad faith possessor, the 30 years does not run until 2018.
So Gene Thibodeaux owns, of the house, he owns 5/9th interest in the house. That’s the l/18th that he inherited plus the 9/18ths that he purchased from his mother, or that he acquired by acquisitive prescription based on the sale from his mother. The other 4/9ths are owned by the other heirs of Harry Thibodeaux, Sr.
With regard to the land upon which the home sits and extending from the property of the parish near the bayou’s edge to the highway, at times referred to as Lots 2 and 3 on the plat in Exhibit No.[] Gene 3, there’s no question that Mr. Gene Thibodeaux possessed that property since 1980. The question is[ ] whether the co-owners were notified by his actions or words, written or oral, that he was intending to possess as owner. Because if a co-owner possesses property, it cannot be considered adverse possession unless he notifies by words or action the other co-owners that he intends to possess as sole owner. Based on the evidence presented, I do not find that the co-owners were notified that he intended to possess as sole own-
er beginning December 31st, 1980. Therefore, the land previously referred to is still Downed by the heirs of Harry and Irene Thibodeaux and is part of their successions.

The 'concomitant judgment, signed on April 23, 2012, decrees, in pertinent part:

[Jjudgment in favor of the Succession Representative and against Gene and Tina dismissing the claim of Gene and Tina to complete ownership by acquisitive prescription of [Tract 2 and Tract 3].
... [Jjudgment in favor of the Succession Representative and against Gene and Tina dismissing the claim of Gene and Tina to the ownership by acquisitive prescription to complete ownership of the [house].
Considering the above it is declared that:'
1. Tract 2 and 3 are owned by the above captioned succession[sj.
2. The [hjouse on Tract 2 and Tract 3 is owned in indivisión-by:
A. The above captioned successions in the proportion of an undivided one-half (1/2) interest; and,
B. Gene and Tina in the proportion of an undivided one-half (1/2) interest.
... Gene and Tina reserve claims against the Succession of Irene Duplan-tis Thibodeaux for:
1. Overpayment of the sale price for the House; and,
2. Improvements and additions to the House; and,
the Succession of Irene Duplantis reserves all exceptions and defenses to the claims of Gene and Tina as set forth above.

Gene and Tina appeal.

| ¡ASSIGNMENTS OF ERROR

Gene and Tina argue that the trial court erred in: (1) “failing to halt and/or dismiss succession proceeding in its entirety, and all actions taken in support thereof, upon showing that same is predicated on a known falsehood”; (2) “allowing administration, executorship, and private sale”; and, (3) “denying Gene and Tina Thibo-deaux’s claim of thirty years acquisitive prescription^]”

DISCUSSION

Assignment of Error Number One

We decline to consider Gene and Tina’s first argument relative to the alleged “known falsehood” made by Harry, Jr. in the initial pleading filed herein, i.e., that Harry, Sr. died intestate. Gene and Tina did not present this argument to the trial court at the April 12, 2012 trial. Since the issue was not properly raised in the trial court, and was not considered by the trial court, we will not address it now. See Succession of Cheney, 13-1455 (La. App. 3 Cir. 5/7/14), 139 So.3d 663.

Assignment of Eiror Number Two

Gene and Tina also argue that it was error for the trial court to allow Harry,-Jr. to incur expenses which inure to the detriment of the successions of Harry, Sr. and Irene and that it was error for the trial court to allow a private sale of estate property based upon Harry, Jr.’s assertion that a sale was necessary to pay debts. In brief, Gene and Tina allege that Harry, Jr. “is using the fees incurred for invoking an administration and executorship as justification for invoking the administration and executorship in the first place.”

Irene and Harry, Sr.’s heirs own the property from their estates in indivisión. Louisiana Civil Code Article 797 defines ownership in indivisión as “[ojwnership of the same thing by two or more persons[.J” Louisiana Civil Code Article 807|fiprovides, in pertinent part: “No one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act. Any co-owner has a right to demand partition of a thing held in indivisión.” Further, La.Civ. Code art. 809 provides: “The mode of partition may be determined by agreement of all the co-owners. In the absence of such an agreement, a co-owner may demand judicial partition.”

The facts in evidence support Harry, Jr.’s position that he was within his legal rights to seek a judicial partition. The interested parties herein were undoubtedly not in agreement as to any partition of the estate property. It was also clearly within the purview and discretion of the trial court to allow a private sale of estate property. This assignment of error is without merit.

Assignment of Error Number Three

By their third assignment of error, Gene and Tina argue that the trial court erred in ruling that they did not prove notice was given to the other co-owners of their intent to possess as owners the house or the land. The trial court held that Gene and Tina only owned a one-half interest in the house, that Harry, Sr.’s estate owned one-half interest in the house, and that the estates of Harry, Sr. and Irene own the land equally.

“A co-owner ... commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner.” La. Civ.Code art. 3439. At the trial of this matter, the trial court was presented with testimony as well as documentary evidence. This is a manifest error case. See Succession of Cole, 12-802 (La.App. 3 Cir. 12/26/12), 108 So.3d 240, unit denied, 13-257 (La.3/15/13), 109 So.3d 384. The trial court’s determination that Gene and Tina did not prove notice was given to other 17co-owners of their intent to possess as owners is a factual finding and one which we find is well-supported by the record. At trial, Harry, Jr. offered into evidence a letter he received from Gene, written in June 1988, wherein Gene acknowledged: “The 1980 Bill of [SJale is not sufficient to give Tina and I full ownership of the ... house.” The trial court believed that this 1988 admission contradicted Gene and Tina’s present-day contention that since 1980, they have given notice of their intent to possess the house as owners. The trial court further held that said admission served to interrupt any claim of prescription which may have been running from 1980. We agree.

It is clear from reviewing the record, including the trial court’s oral reasons for judgment, that the trial court thoroughly analyzed the evidence before it, and we find no manifest error in the trial court’s factual findings. After full review, we find the record supports the trial court’s determination that Gene and Tina did not prove notice was given to other co-owners of their intent to possess the house and land as owners. Thus, we affirm the trial court’s April 23, 2012 judgment in its entirety.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Appellants, Gene Thibodeaux and Tina Thibodeaux.

AFFIRMED.

      . Harry, Sr. and Irene had nine children: Glenn W. Thibodeaux (deceased), Melvin H. Thibodeaux, Harry C. Thibodeaux, Jr., Ray A. Thibodeaux, Faye Thibodeaux, Mary D. Thi-bodeaux, Terry J. Thibodeaux, Gene F. Thibo-deaux, and Donald P. Thibodeaux.

      . The initial pleading filed in this matter on December 29, 2009, erroneously asserted that Harry, Sr. died intestate. After a copy of Harry, Sr.'s will was located, an amended pleading was filed on November 15, 2010, correcting the previous assertion.

      . The land at issue is explicitly described as Tract 2 (3.68 acres) and Tract 3 (3.09 acres).

      . Said Act of Credit Sale was notarized by Glenn W. Thibodeaux (deceased).

      . Gene and Tina's claim asserting their ownership of the land was made in August 2011.

      . Louisiana Civil Code Article 3486 provides: "Ownership and other real rights in immov-ables may be acquired by the prescription of thirty years without the need of just title or possession in good faith."

      . Louisiana Civil Code Article 3464 provides: "Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.”


author: KEATY, Judge.

text:
    Eliza HUNTER v. RAPIDES PARISH SCHOOL BOARD.
    No. 14-490.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Stacy Christopher Auzenne, Auzenne Law Firm, Alexandria, LA, for Defendants/Appellees: Rapides Parish School Board Claims Administrative Services.
    Eliza Hunter, In Proper Person, Alexandria, LA, In Proper Person: Plaintiff/Appellant.
    Court composed of J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

liln this workers’ compensation case, the claimant, Eliza Hunter, in proper person, appeals a judgment rendered by the workers’ compensation judge (WCJ). We affirm.

FACTS AND PROCEDURAL HISTORY

Eliza Hunter allegedly injured her low back on March 20, 2001, when she missed a step and fell at the school where she worked. She later filed a workers’ compensation suit against her employer, the Rapides Parish School Board (RPSB), and Claims Administrative Services (CAS), RPSB’s third-party administrator. In October of 2010, Ms. Hunter and the RPSB agreed to settle the matter in return for the RPSB establishing a Medicare Set-Aside Account (MSA) valued at $79,937.77 on Ms. Hunter’s behalf and paying Ms. Hunter the lump sum of $19,000.00. The parties then presented the WCJ with a Joint Petition and Compromise Settlement Agreement. According to the agreement, the RPSB had previously paid Ms. Hunter indemnity benefits totaling $63,786.80 and medical benefits totaling $80,792.54. The WCJ signed an order approving the agreement on October 12, 2010. The RPSB submitted the proposed MSA to the Centers for Medicare Services (CMS) for approval. CMS rejected the proposed MSA, instead requiring that the MSA be valued at $94,265.00. The RPSB opted to pay Ms. Hunter’s medical expenses as they accrued rather than fund the $94,265.00 MSA, and the attorney for the RPSB sent a certified letter to Ms. Hunter notifying her of its decision.

On November 6, 2013, Ms. Hunter filed a Form 1008 Disputed Claim for Compensation against the RPSB and CAS seeking to force them to establish the $94,265.00 MSA proposed by CMS. The RPSB and CAS responded by filing an ^exception of no cause of action and/or no right of action. After a hearing, the WCJ granted the exception and dismissed Ms. Hunter’s 1008 by judgment dated February 3, 2014. She timely filed a “REQUEST FOR APPEAL” of the judgment “rendered [on] January 27, 2014 OF NO CAUSE of action and/or NO RIGHT of action.”

On June 23, 2014, Ms. Hunter filed a pleading with this court entitled “BRIEF REQUESTING AN ORDER TO ENFORCE JUDGMENT.” Therein, she seeks to have this court enforce the order signed by the WCJ on October 12, 2010, approving the Joint Petition and Compromise Settlement Agreement entered into by Ms.-Hunter, the RPSB, and CAS. In her brief, Ms. Hunter fails to assign any error in either .the October 12, 2010 order or the February 3, 2014 judgment. Instead, she reviews the procedural history of this matter and alleges that CAS “ceased paying [her] medical expenses” in .2009. She then alleges that CAS denied her request to authorize one of its approved pharmacies to approve a prescription written by her primary care physician in March of 2014. Three exhibits are attached to Ms. Hunter’s brief.

DISCUSSION

Uniform Rules — Courts of Appeal, Rule 2-12.4(A)(5) mandates that the appellant’s brief “shall contain” “assignments of alleged errors.” In addition, Uniform Rules — Courts of Appeal, Rule 2-12.4(B)(1) requires that “[a] copy of the judgment ... complained of ... shall be appended to the brief of the appellant.” As mentioned previously, the judgment which Ms. Hunter attached to the brief she filed with this court seeks to have this court review and enforce an ^October 12, 2010 order for which the appeal delays have long expired. See La.Code Civ.P. arts. 2087 and 2123. In addition, Ms. Hunter failed to include any assignments of error in her brief. Nevertheless, “the courts of this State have considered [the merits of] briefs in improper form when filed by pro se claimants.” Hale v. Labor Ready, 08-719, p. 1 (La.App. 3 Cir. 12/10/08), 999 So.2d 293, 295. Because Ms. Hunter timely appealed the February 3, 2014 judgment granting RPSB’s and CAS’s exception of no cause of action and/or no right of action, we will “consider[ ] the merits of her appeal despite the improper form of her appellant brief.” Id.

“Although the technical rules of evidence and procedure are relaxed in workers’ compensation hearings, an appellate court is bound by the record before it on appeal.” Bourque v. Transit Mix, 13-1390, p. 3 (La.App. 3 Cir. 5/7/14), — So.3d —, —. “[A]ppellate courts are courts of record which neither can receive new evidence nor review evidence that is not in the record. Evidence attached to memo-randa and not properly and officially offered and introduced does not constitute evidence and cannot be considered, even if it is physically in the record.” Mouton v. Hebert, 13-755, 13-756, 13-757, 13-758, p. 2 (La.App. 3 Cir. 12/18/13), 2013 WL 6672900 (unpublished opinion) (citations omitted). Accordingly, this court is precluded from considering the exhibits attached to Ms. Hunter’s appellant brief to the extent that the information contained therein is not otherwise a part of the appellate record.

In Williamson v. Liberty Mutual Insurance Co., 12-148 (La.App. 3 Cir. 6/6/12), 92 So.3d 1218, this court affirmed, as amended, a judgment rendered by a WCJ in favor of a workers’ compensation claimant awarding him penalties and attorney fees after his employer failed to provide him with the money to purchase a MSA within thirty days of the approval of the parties’ settlement by the Office of | .Workers’ Compensation (OWC). We noted that “there was no requirement to obtain CMS’s approval of the settlement agreement. Quite the opposite, Paragraph (4)(B) states that the ‘[e]mployee understands that the receipt of this workers’ compensation settlement without CMS pre-approval may result in a loss of Medicare benefits for the work-related injury.’ ” Id. at 1222. In Williamson, 92 So.3d at 1221-22, we distinguished Harrelson v. Arcadia, 10-1647 (La.App. 1 Cir. 6/10/11), 68 So.3d 663, writ denied, 11-1531 (La.10/7/11), 71 So.3d 316, as follows:

[I]n Harrelson, the first circuit found that the settlement agreement required that Centers for Medicare & Medicaid Services (CMS) approve the amount of funding prior to payment. The first circuit held that the right to enforce the conditional obligation to fund the MSA account contained in the settlement agreement did not arise until the fulfillment of the suspensive condition when CMS approved the MSA funding. The first circuit held that penalties for nonpayment within thirty days were not owed because nonpayment was the result of conditions over which the employer had no control citing La.R.S. 23:1201(G).

According to the transcript of the January, 27, 2014 hearing on RPSB’s and CÁS’s exception, Ms. Hunter admitted that she knew that the RPSB was going to send the settlement agreement to CMS for approval. She further acknowledged that there was nothing in the settlement paperwork obligating the RPSB to fund a more expensive MSA if CMS did not approve the settlement that she and the RPSB had signed.

“A ‘judgment of a trial court is presumed correct, absent any record evidence indicating the contrary.’ ” Julien v. Dynamic Indus., Inc., 10-520, p. 9 (La.App. 3 Cir. 11/3/10), 52 So.3d 174, 180 (quoting Williams v. Williams, 07-541, p. 7 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234, 1239). “[T]he manifest error standard of appellate review applies in workers[’] compensation cases[,] and great | ¿deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Bracey v. City of Alexandria, 13-16, p. 3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1215, imit denied, 13-1934 (La.11/8/13), 125 So.3d 455 (quoting Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880).

Ms. Hunter has failed to point to any error in the judgment granting the exception of no cause of action and/or no right of action filed by RPSB and CAS, dismissing Ms. Hunter’s claims against it with prejudice. Accordingly, the judgment is “presumed correct.” Julien, 52 So.3d at 180. After thoroughly reviewing the record, we conclude that the jurisprudence supports the February 3, 2014 judgment.

DECREE

For the foregoing reasons, the judgment rendered in favor of the Rapides Parish School Board, granting its exception of no cause of action and/or no right of action and dismissing Eliza Hunter’s claims is affirmed. All costs of this proceeding are assessed against Eliza Hunter.

AFFIRMED.

      . "In Louisiana law there exists no single exception of no right and/or no cause of action. They are separate and distinct exceptions, each serving a particular purpose and each following particular procedural rules.” Mercier v. Flugence, 408 So.2d 52, 53 (La.App. 3 Cir. 1981).


author: GREMILLION, Judge.

text:
    Stacy Denise WOLF, et vir. v. Stuart NALL, et al.
    No. 14-565.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Michael L. Glass, Attorney at Law, Alexandria, LA, for Defendant/Appellee, Stuart Nall.
    Howard N. Nugent, Jr., Nugent Law Firm, Alexandria, LA, for Third-Party Ap-pellee, Melanie B. Landers.
    James Huey Gibson, Allen & Gooch, Lafayette, LA, for Third-Party Appellee, Southern General Agency, Inc.
    Andrew Parker Texada, Stafford, Stewart & Potter, Alexandria, LA, for Third-Party Appellees, BancorpSouth Ins. Services, Inc., d/b/a Wright & Percy Dwayne Moore.
    Jonathan Clyde Vidrine, West & Vid-rine, Ville Platte, LA, for Plaintiffs/Appellants, Stacy Denise Wolf, David Lee Wolf, III.
    Keith Alex Kornman, Degan, Blanchard & Nash, New Orleans, LA, for Defendant/Appellee, Certain Underwriters at Lloyd’s London.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|,In this personal injury matter, plaintiffs/appellants, Stacy Denise Wolf and David Lee Wolf, III, appeal the motion for summary judgment granted to Stuart Nall. We affirm

FACTS AND PROCEDURAL HISTORY

Stacy Wolf and David Wolf, III, asserted in their petition for damages that on or about May 28, 2011, Mrs. Wolf was shopping at the Alexandria Flea Market and Storage facility owned by Stuart Nall. A bookcase near one of the flea market stalls fell on her, injuring her neck, back, and right arm. She sued Mr. Nall, Affirmative Risk Management (an alleged insurer of the flea market), and “Lloyds London Insurance Company.” The suit, sought damages for Mrs. Wolfs injuries and Mr. Wolfs loss of consortium.

Mr. Nall answered the suit and inter-pleaded Ms. Melvina B. Landers, the merchant in whose stall the bookcase was located, and who had agreed to indemnify and defend Mr. Nall. He later filed a cross claim against those certain underwriters at Lloyd’s, alleging that they insured the premises of the flea market, which was further alleged to be owned by SWN, LLC.

A motion for summary judgment was filed by Mr. Nall, supported by the depositions of Mrs. Wolf and Ms. Landers. In summary, Mr. Nall argued that he did not control the bookcase and had no knowledge of any hazard it presented. The Wolfs filed an opposition to Mr. Nall’s motion on January 10, 2014.

Mr. Nall’s motion for summary judgment was heard on January 13, 2014. Counsel for Mr. Nall objected to the late filing of the Wolfs memorandum and 12moved to strike it and all exhibits there-l'0- ^aH arf?ued that the attachments 1° fi*e Wolfs memorandum did not change the analysis or demonstrate any genuine issue of material fact. The Wolfs argued that there were genuine issues of material fact regarding the safety precautions Mr. Nall employed, if any, to ensure the safety of the flea market’s patrons. The trial court agreed that the Wolfs’ submissions' were not filed timely and sustained Mr. Nall’s objection to them. Judgment was signed in open court. This appeal followed.

ANALYSIS

The standard of review of summary judgments have become axiomatic:

Courts of appeal review summary judgments de novo applying the same analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591 ■ So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

Berard v. Home State County Mut. Ins. Co., 11-1372, p. 2 (La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471-72.

Summary of the Evidence Presented by Mr. Nall

Mr. Nall submitted excerpts from the depositions of Mrs. Wolf and Ms. Landers to support his motion. Mrs. Wolf testified that she and a friend were standing at the entrance of Ms. Landers’ booth when she felt something hit her from behind. Two men lifted the bookcase off her, and an ambulance was called to transport her to the emergency room. Before the accident, Mrs. Wolf had seen the |sbookcase, which she described as tall. She noticed nothing unusual about the bookcase. Ms. Landers told her she owned the bookcase.

Ms. Landers denied that the bookcase was hers. A man tried to sell it to her, but she did not want it because it was too tall, over six feet in height. She testified that she first saw it in the back of the man’s pickup, and did not see him unload it outside her stall. The bookcase had been placed on gravel just off the sidewalk in front of her stall.

Legal Analysis

Louisiana Civil Code Article 2317 provides, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the acts of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.” Louisiana Civil Code Article 2317.1 further provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

A defendant’s burden of proof on summary judgment has been succinctly stated:

A party cannot simply file a motion for summary judgment that lacks proper support under [La.Code Civ.P. art. 967] Section (A) and rely on the fact that the opposing party will bear the burden of proof at trial. The threshold issue to consider on summary judgment is whether the moving party carried its burden of proof. Only then does the burden of production shift to the party opposing the motion.

Berard, 89 So.3d at 472. Therefore, Mr. Nall was required to demonstrate an absence of material fact as to one or more of the essential elements of the Wolfs’ claims before the burden of production shifted to them.

|4One of the essential elements of the Wolfs’ claims is proof that the bookcase presented an unreasonable risk of harm and that in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Both Mrs. Wolf and Ms. Landers testified that they saw the bookcase. Mrs. Wolf specifically testified that she saw nothing unusual about the bookcase. Further, Mrs. Wolf stood directly in front of the bookcase; one might presume that had she thought the bookcase represented an unreasonable hazard, she would not have remained in its proximity. Accordingly, we find that Mr. Nall carried his burden of proving that the bookcase did not represent an unreasonable risk of harm, and that the risk of harm was reasonably foreseeable.

Summary of the Evidence Presented by the Wolfs

The Wolfs did not timely file their opposition. La.Code Civ.P. art. 966(B)(1) provides for the filing of an opposition within the delays set forth in Uniform Rules — District Courts, Rule 9.9, which requires that memoranda opposing a motion must be submitted to the judge and served on the parties at least eight calendar days before the hearing. They argue, however, that Rule 9.9(e) provides that a party who violates the time period merely forfeits the right to oral argument. In Guillory v. Chapman, 10-1370 (La.9/24/10), 44 So.3d 272, a per curiam opinion granting an application for writs of certiorari or review, the Louisiana Supreme Court held that a trial court did not abuse its discretion in excluding an affidavit filed by a plaintiff in opposition to a motion for summary judgment less | ¡¡than eight days before the hearing. Most recently, this court held that a trial court did not abuse its discretion in striking the affidavit of an expert witness when the same was served six days before the hearing. Rogers v. Hilltop Ret. & Rehab. Ctr., 13-867 (La.App. 3 Cir. 2/12/14), — So.3d —.

Conversely, in Smith v. Rapides Healthcare Sys., L.L.C., 13-1172 (La.App. 3 Cir. 3/5/14), 134 So.3d 122, writ denied, 14-734 (La.5/23/14), 140 So.3d 728, this court held that the trial court did not abuse its discretion in considering an opposition filed seven days before the hearing. These cases are not cited for the proposition that there exists a bright-line rule regarding the number of days before a hearing after which an opposition should not be considered; rather, they illustrate the wide discretion the trial court enjoys.

The petition in the case at bar was filed on January 24, 2012. The motion for summary judgment was filed on April 3, 2013. The order fixing the date of the hearing on that motion was signed on April 4, 2013, and fixed the hearing a full two months in advance, June 10, 2013. Mrs. Wolfs deposition was taken on October 24, 2012. Ms. Landers’ deposition was taken on February 25, 2014. The deposition of Ms. Dana Hawkins, who accompanied Mrs. Wolf on the date of the accident, was not taken until May 13, 2013. That same day, the deposition of Ms. Lynne Braswell, another vendor who leased space from the flea market, was taken. The Wolfs had ample opportunity to prepare an opposition to the motion. Accordingly, we find that the trial court did not abuse its discretion in refusing to consider the Wolfs’ evidence in opposition to Mr. Nall’s motion.

^CONCLUSION

The Wolfs’ evidence in opposition was filed late. The trial court did not abuse its discretion in failing to consider it. However, before we even consider that issue, Mr. Nall was required to put forward evidence that demonstrated that there existed no genuine issue of material fact regarding any essential element of the Wolfs’ claims. He did. No genuine issue of material fact exists regarding . whether the bookcase represented an unreasonable risk of harm or that it was foreseeable. Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiffs/ appellants, Stacy Denise Wolf and David Lee Wolf, III.

AFFIRMED.

      . The Wolfs amended their petition to name "Certain Underwriters at Lloyd’s, London subscribing to certificate OM-SMP-A0142.” They dismissed their demands against Affirmative Risk Management.

      . Uniform Rules — District Courts, Rule 9.9(e) was added in 2002, effective April 1, 2002, initially as paragraph (c), and amended to re-designate it as paragraph (d).


author: THIBODEAUX, Chief Judge.

text:
    Myranda ADKINS v. CITY OF NATCHITOCHES, et al.
    No. 14-491.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    John C. Guillet Corkern, Crews & Gillet, LLC, Natchitoches, LA, for Defendant/Ap-pellee — City of Natchitoches.
    Richard Bray Williams, Williams Family Law Firm, L.L.C., Natchitoches, LA, for Plaintiff/Appellant — Myranda Adkins.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|, Myranda Adkins appeals a judgment of the Office of Workers’ Compensation (“OWC”) granting the exception of subject matter jurisdiction filed by the City of Natchitoches (“City”), the alleged statutory employer of Ms. Adkins, and revoking her authority to amend her original claim to add the City after rendition of final judgment against her direct employer, Natchitoches Tour Company, LLC (“Tour Company”). We affirm.

I.

ISSUES

We must decide:
(1) whether the trial court erred in granting the exception of subject matter jurisdiction filed by the City of Natchitoches;
(2) whether the trial court manifestly erred in revoking its previous order allowing Ms. Adkins to amend her petition; and
(3) whether the dismissal of the amended 1008 should have been without prejudice.

II.

FACTS AND PROCEDURAL HISTORY

While working for the Tour Company in 2012, the claimant, Myranda. Adkins, fell from a horse-drawn carriage, struck her head, and was run over by the wheels of the carriage. She filed a disputed claim with the OWC. The defendant Tour Company did not answer. Ms. Adkins subsequently obtained a default judgment against the uninsured Tour Company, and the OWC awarded her ^approximately nineteen weeks of temporary total disability benefits, eighty-two weeks of benefits for permanent scarring, a $4,000.00 penalty for not paying disability benefits, $45,884.38 in medical benefits, a $5,506.13 penalty for failure to pay medical benefits, and $12,000.00 in attorney fees. After final judgment was rendered in her favor against the Tour Company, Ms. Adkins moved to amend her claim to add the City as a defendant based upon an alleged statutory employer relationship. The motion was granted, and the City filed an exception of subject matter jurisdiction. Following a hearing, the OWC granted the City’s exception and revoked the previously granted authority to amend the petition. Ms. Adkins filed this appeal.

in:

STANDARD ÓF REVIEW

Whether a court has subject matter jurisdiction raises a question of law which is reviewed de novo.' Gandy v. Key Realty, L.L.C., 13-712 (La.App. 3 Cir. 12/11/13), 128 So.3d 678; Chavers v. Bright Truck Leasing, 06-1011 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, writ denied, 07-304 (La.4/5/07), 954 So.2d 141.

IV.

LAW AND DISCUSSION

Ms. Adkins contends that the trial court legally erred in granting the City’s exception of subject matter jurisdiction and in finding that her claim could not be amended to add the City as a defendant after.the matter had been tried and final judgment had been rendered against the Tour Company. She specifically asserts that the court’s reliance upon Booth v. Allstate Ins. Co., 466 So.2d 703 (La.App. 4 Cir.1985), was error because Booth was not a workers’ compensation Lease and its application of La.Code Civ.P. art. 1151 had no bearing on the present case.

In Booth, the plaintiff sought to file a supplemental petition to add her uninsured motorist carrier as an additional defendant after the case had been tried and judgment had been rendered against the tort-feasor and its insurer. Revoking its prior order allowing the amendment, the Booth court held that Article 1151 governing the amendment of pleadings could not be construed to authorize the filing of an amendment to a petition which had been fully disposed of by the court via final judgment. See also Johnson v. Walgreen Louisiana Co., 163 So.2d 830 (La.App. 4 Cir. 1964); Templet v. Johns, 417 So.2d 433 (La.App. 1 Cir.), writ denied, 420 So.2d 981 (La.1982); Loupe v. Circle, Inc., 545 So.2d 694 (La.App. 5 Cir.1989).

We disagree that these cases have no bearing, as they address the general rule that once judgment is rendered, a party’s recourse is not to amend but to seek a new trial or appeal from an adverse judgment. Once final judgment has been rendered, there generally can be no amended petition as there is no longer a petition before the court to amend. State Through La. Riverboat Gaming Com’n v. La. State Police Riverboat Gaming Enforce. Div., 97-0167 (La.App. 1 Cir. 6/20/97), 696 So.2d 645, writ denied, 97-1932 (La.11/7/97), 703 So.2d 1269. However, the trial court can retain subject matter jurisdiction to grant supplemental relief after judgment if such relief is specifically allowed by statute. See id. (applied La. Code Civ.P. art. 1878 to permit a party to seek a refund of fees after a declaratory judgment ordered that gaming rules were invalid).

Here, Ms. Adkins argues that La.R.S. 23:1310.8 is the controlling statute but asserts that the trial court erred in applying the limiting language of LLa.R.S. 23:1310.8(B) instead of allowing the amendment, which she refers to as a modification, under La.R.S. 23:13Í0.8(A)(1). We note that Ms. Adkins did not file a petition to modify a judgment; she seeks to add an entirely new defendant and has indicated to this court that she will retry her case and again prove her injuries. Louisiana Revised Statutes 23:1310.8(A)(1)

and (B), which address the continuing jurisdiction of the OWC, provide as follows:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Worker’s Compensation Act, a workers’ compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements' in workers compensation cases.
B. Upon the motion of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

Because Ms. Adkins is not asserting a change in her condition under section (B), she asserts that the broader language of section (A)(1) perpetuates the OWC’s jurisdiction to allow the addition of the City to the disposed of suit against | Bthe Tour Company. She cites our decision in Rivers v. Bo Ezemack Hauling Contractor, LLC, 09-1495 (La.App. 3 Cir. 5/5/10), 37 So.3d 1088, for providing a supportive distinction between the two sections. However, the cited language is only partially quoted, and the case as a whole does not support Ms. Adkins’ position.

More specifically, in Rivers, the claimant sought the approval of cervical surgery after a judgment finding in favor of the claimant and awarding benefits against the employer. The defendant filed an exception of lis pendens. We reversed, discussing La.R.S. 23:1310.8 in the context of lis pendens and res judicata. A panel of this court stated that section (A) provides the OWC with continuing jurisdiction “to modify former findings or orders regarding entitlement to compensation.” Rivers, 37 So.3d at 1091 (emphasis added). Such is not the case here, as the claimant is seeking to add an entirely new defendant to a suit resolved in her favor by final judgment. Rivers also involved a judgment in favor of the claimant, but in Rivers we indicated that the statute, La.R.S. 23:1010.8, did not address a judgment awarding benefits. Ms. Adkins quotes only part of what we said in Rivers, leaving out the last sentence:

The workers’ compensation statute addresses this difference, providing the workers’ compensation judge with continuing “power and jurisdiction” to modify former findings or orders regarding entitlement to compensation, La.R.S. 23:1310.8(A), and to modify prior compensation awards by “ending, diminishing, or increasing” such awards when “a change in conditions” is established. La.R.S. 23:1310.8(13). Importantly, this statute provides that “[a] judgment denying benefits is res judicata after the claimant has exhausted his rights of appeal,” but it does not address a judgment awarding benefits. La.R.S. 23:1310.8(E).

Rivers, 37 So.3d at 1091 (emphasis added).

|fiIn Rivers, we found that a post-judgment claim for approval of a particular surgery did not fall squarely within the parameters of La.R.S. 23:1310.8, but we believed that the intent and purpose of the statute were applicable to the facts in Rivers because that case involved ongoing medical benefits. There, the judgment sought to be modified ordered the defendant to authorize and accept financial responsibility for the claimant’s cervical injuries and her treatment by her surgeon of choice, Dr. Nunley. Thus, when Dr. Nun-ley subsequently recommended cervical surgery, we found that the issues raised by the new request for “surgery” were not identical to the general award of “treatment” by Dr. Nunley in the original judgment. We reversed the OWC’s granting of the defendant’s lis pendens exception, and we remanded for a consideration of the claimant’s post-judgment request for surgery. Unfortunately for Ms. Adkins, Rivers does not support Ms. Adkins’ request to add a new defendant to a disposed of suit against another party.

Ms. Adkins next points to a fourth circuit case we cited in Rivers, but she again fails to demonstrate support for her position. Brown v. Rouse Co., 97-1243 (La.App. 4 Cir. 1/14/98), 706 So.2d 547, writ denied, 98-419 (La.5/1/98), 805 So.2d 191, found that the OWC could retain modification jurisdiction under La.R.S. 23:1310.8(A)(1) where no formal award of benefits by court decree existed but where ongoing medical benefits were being paid and had not been terminated by judgment; it explained that La.R.S. 23:1310.8(13) pertains to changes in the amount of benefits. Brown further stated the court’s opinion that “the continuing jurisdiction described in LSA-R.S. 23:1310 A(l) refers to the power of the hearing officer to alter the nature of benefits awarded, e.g., changes from temporary total disability to supplemental earnings benefits.” Brown, 706 So.2d at 550.

|7In Brown, the claimant filed a motion to modify a judgment of the OWC that denied disability benefits. The claimant’s motion to modify was denied. The fourth circuit found no new issues that had not been previously litigated and found no change in condition or circumstance that would warrant reopening the judgment. The court articulated:

[T]he claimant does not contend that her physical condition as a result of the accident is any worse or different now than it was at the time her claim for disability benefits was denied.... Her argument is based entirely on the proposition that she now has better proof of the disability she failed to prove initially. Neither LSA-R.S. 23:1310 A(l) nor 23:1310 B is intended to allow the parties to relitigate what has already been litigated under the guise of continuing jurisdiction or the power of modification. Claimant’s theory of the case would provide her with limitless bites at the apple in hopes of eventually finding a more sympathetic audience. Claimant must either advance an issue in an open case that has not previously been litigated or show a change in condition or a change of circumstances before she can even approach the threshold of continuing jurisdiction or the power of modification. LSA-R.S. 23:1310 A(l) and 23:1310 B apply to new issues or circumstances, not new evidence. Claimant has shown no new issues and no new circumstances.

Brown, 706 So.2d at 551 (footnote omitted).

Both Rivers and Brown involved a post-judgment request for medical determinations. Rivers allowed the modification because of the new issue of surgery, and Brown denied the modification because no new issues were identified. Neither addressed the addition of a party defendant after a final judgment against a different party had been rendered. Ms. Adkins does not cite a case which supports continuing jurisdiction under La.R.S. 23:1310.8 for the post-judgment addition of a party, nor have we located one. We, therefore, find that the OWC did not err in granting the City’s exception of subject matter jurisdiction.

IsWith regard to Ms. Adkins’ complaint that the OWC erroneously revoked its leave to amend sua sponte, we disagree. The trial court revoked its prior order granting leave to amend after the hearing on the City’s exception of subject matter jurisdiction. Moreover, the court has the duty to examine subject matter jurisdiction sua sponte, even where the litigants have not raised the issue. Otwell v. Otwell, 10-1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232 (citing Boudreaux v. State, DOTD, 01-1329 (La.2/26/02), 815 So.2d 7).

While we find that the OWC did not have continuing jurisdiction under La. R.S. 23:1310.8 to allow the addition of the City as a defendant to a suit previously resolved by final judgment against the Tour Company, the merits of the statutory employer claim were never litigated or made part of the judgment. The statutory employer claim may or may not be valid. Because the granting of the exception was not determinative of the merits of the statutory employer claim, the judgment granting the exception should have been without prejudice. See Aswell v. U.S. Fidelity & Guaranty Co., 244 So.2d 243 (La.App. 3 Cir.1971); IberiaBank v. Live Oak Circle Development, L.L.C., 12-1636 (La.App. 1 Cir. 5/13/13), 118 So.3d 27; and see La. Code Civ.P. arts. 1673, 1841, 1844, and La.R.S. 13:4231(3). Accordingly, we amend the OWC judgment to indicate that the exception is granted without prejudice.

-lay-

CONCLUSION

Based upon the foregoing, the judgment granting the City’s exception of subject matter jurisdiction is amended to indicate that it is without prejudice. As amended, it is affirmed. Costs of this appeal are assessed equally between the parties.

AFFIRMED AS AMENDED.

      . Art. 1673. Effect of dismissal with or without prejudice
      A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.