source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eugene M. WATSON.
    No. 2013-KA-1532.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State Of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for the Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

I,This is a criminal appeal. The defendant, Eugene Watson, seeks reversal of his conviction for illegal possession of a stolen firearm, pursuant to La. R.S. 14:69.1, and possession of a firearm by a convicted felon, pursuant to La. R.S. 14:95.1. Mr. Watson contends that the evidence was insufficient to uphold his conviction and that the district court erred in failing to rule on his pro se motion to quash the bill of information. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On August B, 2012, Mr. Watson was charged by bill of information with one count of illegal possession of a stolen firearm and one count of possession of a firearm by a convicted felon. On September 6, 2012, Mr. Watson pled not guilty to both counts. On January 4, 2018, the district court denied Mr. Watson’s motion to suppress the evidence and found probable cause to hold Mr. Watson on his bond obligation.

After several continuances, a jury trial was held on May 15, 2013. The jury found Mr. Watson guilty on both counts. On June 6, 2013, the State filed a multiple bill of information. On July 31, 2013, Mr. Watson was sentenced as a first offender to serve five years at | ¡.hard labor as to La. R.S. 14:69.1, and twelve years at hard labor as to La. R.S. 14:95.1. On the same date, Mr. Watson entered a guilty plea as a second offender to a multiple bill of information. The district court immediately vacated Mr. Watson’s original sentence and resentenced him as a multiple offender to serve ten years at hard labor as to La. R.S. 14:69.1 and twelve years at hard labor as to La. R.S. 14:95.1, with credit for time served, to run concurrently, and without benefit of probation, parole, or suspension of sentence. This appeal followed.

STATEMENT OF THE FACTS

At trial, Detective Leonard Standiford testified that on July 9, 2012, he and Detective Nicholas Ory were patrolling the area around S. Liberty and St. Andrew Streets because of recent shootings and complaints of narcotic activity. Detective Standiford testified that at approximately 5:45 p.m. he was driving when he observed Mr. Watson crouching underneath a house on the corner of S. Liberty Street and St. Andrew Street. As he stopped his patrol car, he witnessed Mr. Watson reach to the left side of his waistband underneath his shirt, remove a firearm, and toss the firearm underneath the house. When the detectives exited the vehicle and ordered Mr. Watson to show them his hands, Mr. Watson proceeded under the house to the back stairs and attempted to enter the house. Detective Standiford testified that the distance from where Mr. Watson was crouched down to the back stairs was approximately fifteen feet. The detectives quickly apprehended Mr. Watson on the back stairs, and Detective Ory handcuffed him. 1 sDetective Standiford then took control of Mr. Watson as Detective Ory went to retrieve the firearm from under the house.

Detective Ory’s testimony in most respects tracked that of Detective Standi-ford. He testified that on the date of the offense he was riding with Detective Stan-diford on proactive patrol in the area due to recent violent offenses. When Detective Standiford turned onto St. Andrew Street from S. Liberty Street, Detective Ory saw Mr. Watson crouched down under a house that was raised off the ground about three to four feet. He explained that the house was raised off of the ground by cement blocks. When Mr. Watson saw the detectives, he looked nervous, reached under his shirt with his left hand on his pocket, raised his shirt, pulled out' a black weapon, threw it to the ground, and attempted to flee. Detective Ory apprehended Mr. Watson as he fled up the back stairs of the house, placed him in handcuffs, and went to retrieve the weapon. Meanwhile, Detective Standiford read Mr. Watson his rights. Detective Ory immediately recognized the weapon as a New Orleans Police Department (“NOPD”) firearm with an extended magazine. He rendered the weapon safe by removing the magazine and by racking the slide to remove a live round of ammunition.

Both Detectives Standiford and Ory identified the NOPD Glock that Mr. Watson discarded and the extended magazine from the weapon. Both detectives testified that they were familiar with Mr. Watson before they arrested him. On cross-examination, both detectives were asked whether another individual was with Mr. Watson at the time he was apprehended; both detectives testified that they only saw Mr. Watson. Further, both detectives testified that at the time they apprehended Mr. Watson, there was no vehicular traffic in the street.

14Petective Standiford identified a photograph taken immediately after they apprehended Mr. Watson of footprints underneath the house that were consistent with the Adidas shoes that Mr. Watson was wearing when he was apprehended. On cross-examination, Detective Standiford testified that he did not measure the footprints. Detective Standiford also made an in-court identification of Mr. Watson.

The NOPD Glock that Mr. Watson discarded belonged to Sergeant Dowal Barrett. Sergeant Barrett testified that on June 22, 2012, his home was burglarized and among his personal items that were stolen was his NOPD Glock. He explained that all NOPD weapons contain a serial number, and the serial number of the Glock Detectives Standiford and Ory found under the house matched the serial number of the Glock that was stolen from him. He identified the NOPD Glock in question as the firearm that was stolen from his house.

Sycmentress Bell testified that at approximately 5:30 p.m. on July 9, 2012, she was on S. Liberty Street around St. Andrew Street talking to Mr. Watson and “Ben” a/k/a Daniel Watson “out of [her] truck.” As she was driving away, she saw a police car behind her. She also saw Mr. Watson crouched underneath a house, and Ben standing on the sidewalk. On cross-examination, she testified that they were not standing right by each other. She further testified that “[t]he police just jumped out, and he started running.” Although she continued to drive away, she called her sister, Eugene Watson’s mother, to inform her of the unfolding events.

Derrek Marigny testified that on the evening of July 9, 2012, he was standing on the porch of his rental property, located at 2239 St. Andrew Street. He |5saw Mr. Watson, whom he knew as “Gino,” and another man standing on the sidewalk talking to another person in an SUV. He saw the SUV drive off, a police vehicle back up into the spot, and the officers jump out of the vehicle with their guns drawn. He saw one of the officers detain Mr. Watson. However, the other man, who was with Mr. Watson, disappeared behind an eight-foot-tall fence. He saw one of the officers walk toward the fence and appear to look over the fence for the man who disappeared. He then saw the other officer walk in the opposite direction behind a partition. He testified that the officer came out of the partition several seconds later saying: “Look what I got.” Mr. Marigny assumed it was a firearm. On cross-examination, Mr. Marigny testified that he never saw Mr. Watson leave the sidewalk to go under the house.

Rolanineor Warren testified that she lives at 1819 S. Liberty Street, the address of the house at which Mr. Watson was arrested. She testified that she was at home in the early evening of July 9, 2012, when Mr. Watson knocked on her door and woke her up. Before going to answer the door, she went to use the restroom. At that point, she heard a lot of foot noise. She then saw officers coming up her back steps. When she opened the door, she saw Mr. Watson on his knees on her porch with the officers. She was instructed by the officers to close the door.

ERRORS PATENT

A review of the record for errors patent reveals one. The district court sentenced Mr. Watson as a multiple offender to serve ten years at hard labor as to | fiLa. R.S. 14:69.1 and twelve years at hard labor as to La. R.S. 14:95.1, with credit for time served, to run concurrently. The district court stated that both sentences were to be served at hard labor without benefit of probation, parole, or suspension of sentence. The district court also stated: “[ajdditionally, by law I must impose a $45.00 indigent defender fee. I can’t waive that.”

In this case, the record reflects that the district court only imposed the forty-five dollar indigent defender fee. The governing statutory provision, La. R.S. 14:95.1(B), mandates the imposition of a fine. We thus remand this case for the imposition of the mandatory fine. See State v, McGee, 95-1863 (La.App. 4 Cir. 10/18/95), 663 So.2d 495, 496 (holding that we are bound by State v. Booth, 347 So.2d 241, 244 (La.1977), in which the Louisiana Supreme Court held that the fine imposed by La. R.S. 14:95.1 is mandatory, and the trial judge is without discretion to waive it).

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.

ASSIGNMENT OF ERROR NUMBER 1

Mr. Watson’s first assignment of error is that the evidence was insufficient to uphold his conviction. When assessing the sufficiency of evidence to support a conviction, this court must determine whether a rational fact finder could have found the defendant guilty beyond a reasonable doubt under Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979). This court has 17delineated four guiding principles under the Jackson v. Virginia standard of review:

First, we consider all of the evidence that the jury considered. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, in reviewing for sufficiency of evidence, we do not ignore evidence which was erroneously admitted at the trial or evidence which could have been excluded as, for example, inadmissible hearsay. See State v. Hearold, 603 So.2d 731, 734 (La.1992).
And, second, all of the evidence is viewed in the light most favorable to the prosecution. See State v. Fields, 12-0674, p. 6 (La.App. 4 Cir. 6/19/13), 120 So.3d 309, 315. Thus, in evaluating sufficiency of the evidence, we are not merely limited to the evidence itself, but may consider all reasonable inferences from the evidence which the fact-finder could have made. Jackson, 443 U.S. at 319, 99 S.Ct. 2781.
In similar fashion, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. See State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable-hypothesis of innocence is excluded. La. R.S. 15:438.
And, third, in evaluating a defendant’s challenge to the sufficiency of evidence, we are restricted to those theories of defense actually put forward to the trier of fact. See State v. Juluke, 98-0341, pp. 4-5 (La.1/8/99), 725 So.2d 1291, 1293-1294 (per curiam). In other words, a defendant may not develop a new theory on appeal and demonstrate that the circumstantial evidence was insufficient to negate the new theory. Id.
And, fourth, in our review, we are highly deferential to the trier of fact. State v. Smith, 11-664, p. 4 (La.App. 4 Cir. 1/30/13), 108 So.3d 376, 381. Thus, we assume that the jury can accept as true the testimony alone of any witness, even a single witness. State v. Sanchell, 11-1672, p. 6 (La.App. 4 Cir. 10/31/12), 103 So.3d 677, 680. We will only tread on a jury’s presumed acceptance of a witness’ testimony when the testimony is implausible or clearly contrary to documentary evidence. See State v. Mussall, 523 So.2d 1305 (La.1988).

State v. Hamdan, 13-0113, pp. 9-10 (La.App. 4 Cir. 12/11/13), 131 So.3d 197, 203-04. Further, conflicting testimony as to factual matters is a question of weight Rof the evidence, not sufficiency. State v. Robinson, 10-0885, p. 7 (La.App. 4 Cir. 12/21/10), 54 So.3d 1208, 1213 (citing State v. Jones, 537 So.2d 1244,1249 (La.App. 4th Cir.1989)).

In order to convict a person of violating La. R.S. 14:95.1, the State must prove the following: 1) the defendant possessed the firearm, 2) the defendant had a prior conviction for an enumerated felony, 3) the defendant possessed the firearm within ten years of the prior conviction, and 4) the defendant had the general intent to commit the offense. State v. Clements, 12-1132, p. 5 (La.App. 4 Cir. 3/13/13), 112 So.3d 306, 310-11 (citing State v. Ussin, 08-1577, p. 2 (La.App. 4 Cir. 4/8/09), 10 So.3d 848, 849; State v. Husband, 437 So.2d 269, 271 (La.1983)). Further, under La. R.S. 14:69.1, the State must prove that the defendant intentionally possessed, procured, received, or concealed a firearm which was the subject of a robbery or theft, and that the defendant knew or should have known that the firearm was the subject of a robbery or theft.

Mr. Watson only challenges one aspect of these two convictions — that he had possession of the firearm. This court has addressed the element of “possession” under La. R.S. 14:95.1, stating:

Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1; constructive possession is sufficient. State v. Day, 410 So.2d 741, 743 (La.1982). A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. The “mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession.” Johnson, OS-1228 at p. 6, 870 So.2d at 999. The State must prove that the defendant was aware that a firearm was in his presence and that the defendant had the general intent to possess the weapon. Johnson, 03-1228 at p. 5, 870 So.2d at 998. Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. Whether the proof is sufficient to establish possession turns on the facts of each case. State |9u. Hams, 94-0970, pp. 3^t (La.12/8/94), 647 So.2d 337, 338-39; State v. Bell, 566 So.2d 959, 959-60 (La.1990).

Clements, 12-1132 at pp. 5-6, 112 So.3d at 311. Further, this court has held that constructive possession exists if a defendant has dominion and control over a weapon, even if it is only temporary in nature and even if the control is shared. State v. Major, 08-0861, p. 6 (La.App. 4 Cir. 12/10/08), 1 So.3d 715, 720.

Mr. Watson concedes that he is a convicted felon and that the gun presented at trial was stolen; however, he contends that the State failed to present sufficient evidence that he was in possession of the gun to support the two convictions. Mr. Watson contends that the testimony of Detectives Standiford and Ory conflicts with that of Ms. Bell and Mr. Marigny. Ms. Bell and Mr. Marigny testified that Mr. Watson was with another person, as opposed to alone, and that there was a vehicle on the street when the officers rounded the corner, instead of there being no vehicular traffic, as the detectives testified. Further, Mr. Watson contends that the detectives’ testimony conflicts as to why they were patrolling the area. One detective testified that the patrolling was routine, while the other testified that the patrolling was proactive. Still further, Mr. Watson contends that neither Ms. Bell nor Mr. Marigny saw Mr. Watson discard the gun.

Mr. Watson states that before his counsel could object, the detectives testified that they knew of Mr. Watson before they encountered him on July 9, 2012. Thus, Mr. Watson contends that the detectives portrayed Mr. Watson to the jury as someone familiar with the criminal justice system. Mr. Watson submits that these facts show a potential motive on the detectives’ part to falsify the events, or that the detectives failed to recall specifics, which the jury should have recognized.

linThe State counters that the evidence was sufficient to sustain a conviction because the detectives both witnessed Mr. Watson remove the weapon in an attempt to dispose of it; the footprints underneath the house, which the detectives photographed, were comparable to prints made by the shoes Mr. Watson was wearing; and Ms. Bell corroborated the detectives’ testimony that no other person was close to Mr. Watson as he crouched under the house. The State further counters that Mr. Watson’s assertion that the detectives fabricated their testimony to frame Mr. Watson is irrational. Finally, the State argues that the variation of the events from the witnesses were minor discrepancies that the jury could have concluded were irrelevant.

The detectives testified that they saw Mr. Watson put his hand in his waistband, remove the firearm, and toss it underneath the house. This testimony proves that Mr. Watson was in possession of the stolen firearm. The defense’s witness, Ms. Bell, corroborated the detectives’ testimony in one important respect. While Ms. Bell was one of the two defense witnesses who testified that there was another individual with Mr. Watson, she stated that this individual was on the sidewalk and was not close to Mr. Watson who was crouched under the house. Thus, all three witnesses agreed that Mr. Watson was the only person under the house. Further, the photographs of the footprints found under the house match prints of the shoes Mr. Watson was wearing. Because it is undisputed that the firearm was found under the house, this evidence supports the detectives’ testimony that Mr. Watson possessed the firearm and that he discarded it under the house.

The only witness who denied that Mr. Watson was crouched under the house was Mr. Marigny. However, it is the fact finder’s job, and not the appellate court’s, Into determine witness credibility and weigh the evidence. Further, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Robinson, 10-0885 at p. 7, 54 So.3d at 1213.

Although there is conflicting testimony regarding whether Mr. Watson was standing alone or with another person at the time he was apprehended, Mr. Watson’s actions — crouching underneath the house and fleeing up the back stairs of the house when he saw the officers — demonstrates his awarenéss of the presence of the firearm and his general criminal intent to possess it. As previously noted, constructive possession exists if a defendant has dominion and control over a weapon, even if it is only temporary in nature and even if the control is shared. Major, 08-0861 at p. 6, 1 So.3d at 720. Thus, Mr. Watson’s actions prove, at a minimum, that he had constructive possession of the firearm.

In sum, the evidence was sufficient to allow a rational juror to find beyond a reasonable doubt that Mr. Watson had, at a minimum, constructive possession of the firearm. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, Mr. Watson contends that the district court erred in failing to rule on his pro se motion to quash. In his pro se motion to quash, Mr. Watson requested that the district court quash the bill of information because La. R.S. 14:69.1 and La. R.S. 14:95.1 violate the Louisiana and the United States Constitutions. His motion, however, failed to specify how prosecution for these offenses violated his constitutional rights. The district court failed to rule on his motion.

Mr. Watson concedes that his trial counsel made no objection to the district court’s failure to rule on his motion. Nonetheless, he contends that he is not barred |12from appealing this issue since he has a claim for ineffective assistance of counsel. He asserts that if his counsel had timely objected, he may not have been convicted of being a felon in possession of a stolen firearm. In support, he cites the 2012 amendment to Article I, Section 11 of the Louisiana Constitution, which provides “[t]he right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.”

In further support of his position, Mr. Watson cites State v. Draughted 13-0914 (La.12/10/18), 130 So.3d 855. In Draughter the Louisiana Supreme Court reversed the district court’s granting of a motion to quash based upon the unconstitutionality of La. R.S. 14:95.1 following the 2012 amendment of Article I, Section 11. Id., 13-0914 at p. 1, 130 So.3d at 857-58. The Louisiana Supreme Court held that the statute was not unconstitutional as applied to a defendant who was a convicted felon still under state supervision. Id. Mr. Watson contends, however, that the Louisiana Supreme Court did not preclude the possibility of declaring the statute unconstitutional as applied to a defendant who was not similarly situated.

The State counters that the motion to quash is not properly before this court because Mr. Watson failed to properly object to the district court’s failure to rule on it. The State submits that Mr. Watson thus failed to preserve the issue for appeal. The State further counters that the record does not contain sufficient h¡¡evidence for this court to address Mr. Watson’s ineffective assistance of counsel claim.

Although defense counsel’s failure to object to the district court’s failure to rule on his motion to quash precludes us from reviewing that issue on appeal, it does not preclude us from addressing Mr. Watson’s ineffective assistance of counsel claim. Generally, ineffective assistance of counsel claims are more properly raised through post-conviction relief in the district court where a full evidentiary hearing can be conducted. State v. Rubens, 10-1114, p. 58 (La.App. 4 Cir. 11/30/11), 83 So.3d 30, 66, writ denied, 12-0374 (La.5/25/12), 90 So.3d 410, and writ denied sub nom., State ex rel. Rubens v. State, 12-0399 (La.10/12/12), 99 So.3d 37 (citing State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802). However, this court has held that such claims can be addressed on appeal if the record is sufficient. Id. (citing State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147). Here, we find that the record is sufficient to address this claim.

In reviewing Mr. Watson’s ineffective assistance of counsel claim, we must follow the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rubens, 10-1114 at p. 58, 83 So.3d at 66. (citing State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337; and State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126). Mr. Watson must prove both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency. Id. (citing Brooks, supra; State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741). Under this test, Mr. Watson “must show that there is a reasonable probability that but for his counsel’s deficient performance the result of the proceeding would have been different.” Id., 10-1114 114at p. 58-59, 83 So.3d at 67 (citing Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; and State v. Guy, 97-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236).

Mr. Watson’s defense counsel should have objected to the district court’s failure to rule on Mr. Watson’s motion to quash. If his defense counsel had objected, the issue would have been preserved for appeal. Mr. Watson’s defense counsel’s performance thus was deficient. Nonetheless, Mr. Watson must also prove that he was prejudiced by his counsel’s deficiency. In his pro se motion to quash the bill of information, Mr. Watson simply alleged that La. R.S. 14:69.1 and La. R.S. 14:95.1 violated the Louisiana and United States Constitutions. He offered no legal argument, and he failed to reference any specific law in support of his motion. Considering his limited argument and complete lack of legal support, Mr. Watson has not shown that but for his counsel’s deficient performance, he would have prevailed on his motion. Thus, Mr. Watson has not shown that he has been prejudiced by his defense counsel’s failure to object at trial. Mr. Watson’s ineffective assistance of counsel claim lacks merit.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed and we remand this matter for further proceedings as addressed above.

AFFIRMED; REMANDED.

      . On cross-examination, defense counsel asked Detective Standiford whether it was routine patrol, to which he affirmatively responded.

      . At trial, photographs were introduced that depicted wooden slats underneath the house. However, Detective Standiford testified that these slats were not there at the time of Mr. Watson's arrest.

      . However, Mr. Marigny testified that he did not know Mr. Watson well.

      . During rebuttal, the State called Dan Hancock, the supervisor for the telecommunications system in the Orleans Parish Sheriff's Office, in order to introduce taped phone calls by Mr. Watson while he was imprisoned. However, Mr. Watson's counsel objected to the use of the tapes, and the district court recalled Mr. Hancock’s testimony because the State did not put the defense on notice of these tapes.

      . La. R.S. 14:95.1(B) provides:

      . While Mr. Watson’s arrest occurred before the 2012 amendment to Article I, Section 11, the Louisiana Supreme Court in Draughter held that the amendment applied retroactively to all cases pending on appeal or not yet final. Id., 13-0914 at p. 10, 130 So.3d at 863. We also note that the Louisiana Supreme Court has held La. R.S. 14:95.1 constitutional in circumstances like those of Mr. Watson. See State v. Eberhardt, 13-2306, 14-0209 (La.7/1/14), 145 So.3d 377.


author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Corey T. RUTH.
    No. 2013-KA-1547.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

|tThe State appeals the trial court’s granting of defendant, Corey T. Ruth’s, motion to quash. For the reasons discussed below, the trial court’s ruling is affirmed.

BACKGROUND

Corey Ruth was arrested on May 14, 2012, after police officers observed him illegally parked in an apartment’s handicapped zone. When they approached the vehicle, they observed the defendant in the driver’s seat, texting and holding three pills which they immediately recognized as alprazolam, a prescription drug more commonly referred to as Xanax. Although Mr. Ruth advised the officers that he had been prescribed the medication, he was arrested for illegal possession because he was not able to produce the prescription or the prescription-labeled container on the scene. Mr. Ruth was subsequently charged by bill of information with possession of alprazolam, in violation of La. R.S. 40:969(C).

Mr. Ruth filed a motion to quash alleging that the charges should be dismissed because it is not unlawful to possess a schedule IV controlled dangerous substance that has been obtained pursuant to a valid prescription, citing La.C.Cr.P. art. 582(10). He produced two exhibits to the trial court in support of his motion to Lquash. Exhibit A was an IRS statement from Blessed Place Pharmacy dated October 17, 2012, which contained Mr. Ruth’s name and address, the name of the prescribing physician, and the signature of the pharmacist. It also indicated that a prescription for “ALPRAZOLAM TAB 2MG” had been dispensed to the defendant on August 12, 2011. Exhibit B was a notarized affidavit from the pharmacist setting forth her degree and training, and confirming the information argued in support of the defense’s motion, including what was dispensed to Mr. Ruth and when it was dispensed. She was purportedly unable to appear as a witness because she is a sole proprietor and had no other pharmacist available to oversee the pharmacy in her absence.

In response, the State argued that the motion to quash should be denied solely because Mr. Ruth was not able to produce a prescription or prescription bottle at the time of the arrest. The trial court granted the motion to quash. It is from this ruling that the State seeks our review.

DISCUSSION

The applicable statute, La. R.S. 40:991(A), provides that any person “who claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the Uniform Controlled Dangerous Substances Law shall have the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office.” It further states that the “[production of the original prescription bottle with the defendant’s name, the pharmacist’s name, and prescription number shall be sufficient proof of a valid prescription.” Subsection (C) requires anyone claiming the defense of a valid prescription to raise this defense before trial through a motion to quash. See La. R.S. 40591(C). La.C.Cr.P. art. 532(10) further allows the trial court to grant a | ¡¡motion to quash where “[t]he individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.”

The State argues that the trial court abused its discretion in granting the motion to quash because the IRS statement from the pharmacy could not be considered a valid prescription. It contends that the trial court should have instead required the defendant to produce a copy of a “physician signed prescription as mandated under La.C.Cr.P. art. 532(10),” or in the alternative, a prescription bottle pursuant to La. R.S. 40:991. The State also argues that by the defendant’s own admission, his prescription was for only sixty pills, and no refills were authorized. Thus, relying on “the normal dosage of alprazo-lam ... provided by the National Library of Science,” the State argues that had Mr. Ruth been taking his medication three times, or in the very least, once a day, he should have been out of pills months before his arrest. The State’s arguments are unfounded.

First, the State’s position fails to take into consideration that in the average situation, a patient relinquishes the actual physician-written prescription to the pharmacy and does not maintain it in his possession. Or increasingly, physicians have the capability to send prescriptions directly to the pharmacy, without the patient ever receiving a paper copy of the prescription. Therefore, it makes sense for a defendant seeking proof of his prescription to return to the pharmacy that dispensed it. In addition, while it may be preferential to keep medication in a prescription-labeled bottle, patients, for various reasons, often choose not to do so and this, in and of itself, is not unlawful.

Second, the State’s argument goes against the law of this circuit which has already established that a trial court may consider prescription record printouts generated by a pharmacy when granting an Article 532(10) motion to quash. In\4 State v. Williams, 12-0110, (La.App. 4 Cir. 10/10/2012), 101 So.3d 533, and State v. Tran, 12-1219, (La.App. 4 Cir. 4/24/2013), 115 So.3d 672, we found no abuse of discretion by the trial courts in considering pharmacy-generated prescription records where those records contained the same information that La. R.S. 40:991(A) requires be placed on prescription labels.

In Williams, we explicitly stated that “La. R.S. 40:991 should not be read to restrict the sources of evidence a defendant may use to establish that he possessed a validly issued prescription” and that it “does not limit the nature of evidence that can be used to prove that a defendant had a prescription, but merely recognizes that a prescription bottle is sufficient proof of prescription.” Williams, 12-0110, pp. 5-6, 101 So.3d at 536-37. In Tran, we found it inconsequential that the defendant’s prescribed dosage of medication would have been consumed years before the defendant’s arrest if taken as prescribed, concluding that there is nothing that “requires a patient to destroy validly prescribed medicine in his possession _” Tran, 12-1219, p. 6, 115 So.3d at 675. Since there was “nothing irregular or suspicious” about the pharmacy-generated prescription record, and “especially in the absence of any contravening evidence,” we determined that the trial court did not abuse its discretion in granting the motion to quash. Id.

In the present case, the State presented no evidence or arguments to counter the validity of the Mr. Ruth’s prescription at the hearing on the motion to quash. Instead, the State’s argument focused solely on the fact that the defendant was not able to produce any proof that he had a valid prescription at the time of his stop. The State argued:

Upon conducting the traffic stop officers acknowledged in their report that Mr. Ruth was given the opportunity to present a prescription or a prescription bottle at the time of the stop. He was not able to do that at that time and therefore the State contends that he did not have a [svalid prescription at that time based on his inability to provide a prescription bottle or prescription at that time. The State would submit.

As is evident from our decisions in Williams and Tran, and from the context of La. R.S. 40:991(A) (which plainly states that a defendant “shall have the obligation to produce sufficient proof of a valid prescription”), a motion to quash cannot be denied on the sole basis that a defendant was unable to produce a prescription for a medication at the time of apprehension. In fact, the law anticipates that a defendant will have the opportunity to produce sufficient evidence at a later date, prior to trial. La. R.S. 40:991(C).

In addition, even if we were to consider the State’s argument that the defendant should have consumed all of his pills prior to his arrest, Tran makes clear that a defendant is under no obligation to have completely consumed and/or to have discarded an allegedly outdated prescription medication. Tran, 12-1219, p. 6, 115 So.3d at 675. We also find that there was nothing to prevent Mr. Ruth from skipping doses or taking the medication on an as-needed basis, and the trial court could have easily reached this conclusion based on the evidence before it. The admissibility of and relevance assigned to the pharmacy-generated evidence was solely within the province of the trial judge and will not be disturbed by this Court absent an abuse of discretion. Finding no abuse of discretion, the trial court’s ruling sustaining the motion to quash is affirmed.

DECREE

|fiFor the reasons stated herein, we find that the trial court did not err in granting the defendant, Corey T. Ruth’s motion to quash. It is therefore ordered that the trial court’s September 27, 2013 ruling granting the motion to quash is hereby affirmed.

AFFIRMED.

      . See, e.g., State v. Sanders, 12-0409 (La.App. 4 Cir. 11/14/2012), 104 So.3d 619, 629-30 (a trial court's ruling on relevancy will not be disturbed absent a clear abuse of discretion); State v. Bell, 05-0808, p. 12 (La.App. 4 Cir. 12/6/2006), 947 So.2d 774, 781 (a trial court’s ruling on the admissibility of evidence will not be disturbed absent a clear abuse discretion).


author: EDWIN A. LOMBARD, Judge.

text:
    Linda Ogden STEWART v. William L. OGDEN, Jr., et al.
    No. 2014-CA-0097.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2014.
    Tonya S. Johnson, Johnson Law Office, New Orleans, LA, for PlaintiffiApp ellant.
    Michael J. Hall, Law Office of Michael J. Hall, New Orleans, LA, for Defendant/Ap-pellee.
    Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME.
   EDWIN A. LOMBARD, Judge.

hThe Appellant, Linda Ogden Stewart, seeks review of the September 13, 2013 judgment of partition of the trial court. Finding that the district court committed a legal error in partitioning the property, we reverse and remand.

Lee Etta Bonvillian (“Ms. Bonvillian”) and her husband, Dave Robert Ogden (“Mr. Ogden”) purchased a home located at 2620 Milan Street (“the Property”), in New Orleans. The couple had four children: Robert Ogden (“Robert”), William Louis Ogden (‘William”), Peter Frederick Ogden (“Peter”), and Linda Ogden Stewart (“Ms. Stewart”). Ms. Bonvillian died on October 11, 1965, and her succession was opened on December 22, 1965. Mr. Ogden obtained a usufruct over Ms. Bon-villian’s undivided one-half interest in their community property. Robert, William, Peter and Ms. Stewart acquired an undivided naked ownership interest in their mother’s share of the community property, including the Property, obtaining an overall undivided 12.5% interest each in the Property.

Ms. Stewart alleges that she remained on the Property as a child, but moved out as an adult. She moved back into the Property in 1991, when her father became ill. Subsequently, her father, Mr. Ogden died testate on February 19,1991. Pursuant to his Last Will and Testament, he granted the entirety of his estate to his 12surviving children: William, Peter, and Ms. Stewart. Robert predeceased his father and left two surviving children, who were excluded from the will of Mr. Ogden. On May 7, 1991, a Judgment of Possession was signed and as a result William, Peter, and Ms. Stewart each obtained an approximate 29% undivided interest in the Property overall, totaling 87.5%. The remaining 12.5% undivided interest in the Property was retained by Robert’s heirs.

After her father passed, Ms. Stewart began making improvements and renovating the Property, allegedly with the agreement of her surviving brothers. Ms. Stewart further alleges that said improvements and renovations were made with her financial resources.

Subsequently, both William and Peter died. William was survived by his three children, William L. Ogden, Jr. (‘William Jr.”), Janelle Ogden-Brown (“Ms. Brown”), and Melanie Ogden-Adams (“Ms. Adams”), all of whom inherited their father’s 29% undivided interest in the Property. Upon Peter’s death, his son, Timba-si Ogden, acquired his 29% interest in the Property by Judgment of Possession from Peter’s succession. Timbasi Ogden later transferred his interest in the Property to Ms. Stewart by Quit Claim deed recorded on April 14, 2010. Additionally, in May 2010, Robert’s heirs individually conveyed their interest in the Property to Ms. Stewart. Thus, by the end of May 2010, Ms. Stewart held an approximate 71% interest in the Property with the remaining interest belonging to William Jr., Ms. Brown and Ms. Adams.

Thereafter, Ms. Stewart filed a Petition for Partition against William, Ms. Brown and Ms. Adams. In her petition, Ms. Stewart sought to purchase the defendants’ interest in the Property and further sought reimbursement and financial assistance for maintenance of the Property. Although, all three defendants were | sserved, only Ms. Brown and Ms. Adams (hereinafter collectively referred to as “the Appellees”) answered the suit.

On the date of the trial, the only party to appear was Ms. Stewart, and as a result, the parties agreed to submit the matter on the briefs to be determined by the trial court. The trial court rendered judgment on September 13, 2013, and therein decreed as follows:

• The Appellees are entitled to 29% ownership interest in the Property;
• Ms. Stewart is entitled to a 71% ownership interest in the Property;
• The parties stipulate to the 2011 appraisal value of the Property in the amount of $225,000.00;
• The Appellees are entitled to 29% of the appraised value of the Property totaling $65,250.00;
• The Appellees are entitled to 29% of the Road Home proceeds received by Ms. Stewart, or $21,091.12; and
• Upon Ms. Stewart’s payment of the foregoing amounts to the Appellees, Ms. Stewart shall be awarded sole possession and ownership of the Property.

Ms. Stewart subsequently filed a motion for new trial, which was denied by the trial court. Thereafter, she timely filed the instant appeal, and raises four (4) assignments of error:

1. The trial court erred by failing to acknowledge and address William Jr.’s interest in the property.
2. The trial court erred by failing to award Ms. Stewart any amount entitled for reimbursements.
3. The trial court erred when it awarded a portion of the Road Home proceeds to the Appellees when the Road Home proceeds have to be utilized to repair the Property Land the value of the Property was thereby increased based on those repairs.
4. The trial court erred when it assessed enjoyment value to the benefit of the Defendants-Appellees, when the record does not reflect any evidence of Defendants-Appellees request or demand for possession or for rental payments.

Standard of Review

“A trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between co-owners.” Slimp v. Sartisky, 11-1677, p. 21 (La-App. 4 Cir. 9/17/12), 100 So.3d 901, 916, amended on reh’g in part (Oct. 11, 2012), writ denied, 12-2430 (La.1/11/13), 107 So.3d 616. The allocation or assigning of assets and liabilities in the partition of property is reviewed under the abuse of discretion standard. Id. (citing Legaux-Barrow v. Barrow, 08-530, p. 5 (La.App. 5 Cir. 1/27/09), 8 So.3d 87, 90, writ not considered, 09-0447 (La.4/13/09), 5 So.3d 152).

First Assignment of Error

In her first assignment of error, Ms. Stewart argues that the trial court erred by failing to acknowledge and address William Jr.’s interest in the Property as a party to the partition. She contends that although the Petition to Partition was mailed to William Jr., by Long Arm Service on June 1, 2011, the certified mail package was later returned to the counsel for Ms. Stewart as unclaimed; consequently, neither an answer nor any responsive pleadings were filed on behalf of William Jr. Ms. Stewart maintains that because said pleadings were never filed on his behalf, William Jr.’s interest in the Property was not terminated.

Ms. Stewart relies primarily upon the holding of the Second Circuit in Decca Leasing Corporation v. Torres, 465 So.2d 910, 913 (La.App. 2nd Cir.1985), where it was determined that “the law is clear that a defendant may not be [ ¡^allowed to defeat service by merely refusing to accept the letter containing the citation.” Ms. Stewart further argues that, although William Jr. was properly served and joined in the matter and failed to file an answer or responsive pleadings, personal service upon him is not required, just evidence of an affidavit attesting to service pursuant to La.Rev.Stat. 13:320s. Id. She asserts that she filed such an affidavit on October 1, 2012, attesting to the steps she took to serve William Jr. with notice of the filing of the petition.

She argues that despite William Jr.’s failure to file an answer or responsive pleadings, his interest in the Property was not automatically terminated and he has the right to seek nullification of the partition judgment based on his omission from the same. Ms. Stewart contends that the trial court erred by failing to acknowledge and address his undivided 9.6% interest in the Property. Thus, she avers that the trial court committed a reversible error when it awarded the entire 29% undivided interest in the Property to the Appellees.

In response, the Appellees assert that because William Jr. was properly served, his failure to actively take part in the proceeding after properly being served amounts to a default. Further, the Appel-lees assert that William Jr. had the opportunity to assert arguments, request a new trial, and to file his own request for an appeal.

Pursuant to La. C.C.art. 811, “[w]hen the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by. | fiprivate sale and the proceeds shall be distributed to the co-owners in proportion to their shares.” In the instant matter, Ms. Stewart petitioned the trial court for the opportunity to purchase the 29% undivided interest of William Jr. and the Ap-pellees in the Property, but in the alternative, requested a partition by licitation or public sale.

However, La.Code Civ. Proc. art. 4602 provides that a partition must be judicial when a “party is an unrepresented absentee”. La.Code Civ. Proc. art. 5251(1) defines the term “absentee” as follows:

“Absentee” means a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown.

As the Second Circuit has explained, article 5251 sets forth four (4) different categories for determining whether an individual is an absentee:

(1) non-residents of Louisiana;
(2) persons domiciled in Louisiana, but who have departed from this state and have not appointed an agent for service of process;
(3) persons whose whereabouts are unknown, or who cannot be found and served after a diligent effort, even though that person may be domiciled or actually present in the state; or
(4) a person who may be dead.

Hemavathy v. Shivashankara, 34,440, p. 4 (La.App. 2 Cir. 2/28/01), 782 So.2d 115, 118-19, writ denied, 01-1318 (La.6/22/01), 794 So.2d 790. It appears that William Jr. is an absentee because he is a non-resident of Louisiana and he could |7not be found and served after a diligent effort. Furthermore, the record reflects that he was unrepresented. Thus, the trial court was required to conduct a judicial partition, which it did.

Regarding Ms. Stewart’s contention that the trial court erred in proceeding with the partition of the Property without addressing William Jr.’s interest in the Property, we note that statutorily the failure to make. a co-owner a party in a partition proceeding is not an obstacle to partitioning real property under La.Rev.Stat. 13:4985, which provides that a partition is valid even if a co-owner is not made a party thereto. La.Rev.Stat. 13:4985 states:

Where real property is partitioned, either in kind or by licitation, by either judicial or conventional partition the fact that one or more co-owners are not parties thereto shall not affect the validity of such partition as to the co-owners who are parties thereto or their heirs or assigns; provided that the rights of any co-owner not a party to such partition shall not be affected thereby and the interest of such co-owner in the property partitioned shall remain the same as if the property had not been partitioned.

However, in the instant matter, Ms. Stewart made William Jr. a party. Ms. Stewart was enabled to remedy William Jr.’s unrepresented absentee status by petitioning the trial court to appoint an attorney to represent him. We note that Comment (a) of the Official Revision Comments to La.Code Civ. Proc. art. 4602, supra, provides that the “[pjartition of property in which an unrepresented absentee has an interest must be made judicially, either under the provisions of this Chapter and of Art. 5091(1), infra, or under the provisions of Chapter 2 of this Title.” [Emphasis added]. La.Code Civ. Proc. art. 5091(A)(1)(a) states:

|rA. The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is:
(a) A nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has not waived objection to jurisdiction. [Emphasis added].

Moreover, Chapter 2 of Title IX, entitled Partition When Co-owner an Absentee, also states that an attorney or curator must be appointed to represent an absentee. Specifically, La.Code Civ. Proc. art. 4623, which is contained in Chapter 2 of Title IX, states:

When the petition for a partition discloses that the plaintiff is entitled thereto, and that the absent and unrepresented defendant is an absentee who owns an interest in the property, the court shall appoint an attorney at law to represent the absent defendant, and shall order the publication of notice of the institution of the proceeding.
The citation to the absent defendant and all other process shall be served on or service thereof accepted by the attorney at law appointed to represent him, and all proceedings shall be conducted contradictorily against this attorney. [Emphasis added].

The Third Circuit has further explained that certain procedures must be followed when an unrepresented absentee is a party to a judicial partition:

when an unrepresented absentee is a party to a judicial partition, it is required that the petitioner instituting the partition proceeding make that fact known to the court and the allegations contained in the petition must be supported by an affidavit of the petitioner or his counsel attesting to their verity. The court is then required to appoint an attorney to represent the absent defendant.

| Succession of Skye, 417 So.2d 1221, 1239 (La.App. 3rd Cir.1982), writ not considered sub nom., Succession of Skye v. Skye, 422 So.2d 161 (La.1982), and writ denied sub nom. Succession of Skye v. Skye, 422 So.2d 165 (La.1982).

Therefore, pursuant to both art. 5091 and art. 4623 of the Louisiana Code of Civil Procedure, an attorney should have been appointed to represent William Jr. because of his absentee status. Ms. Stewart was certainly empowered to petition the trial court to appoint a curator, but she did not. Procedurally, the trial court committed a legal error by failing to appoint an attorney to represent William Jr. prior to partitioning the Property. We find that the Property was insusceptible of being partitioned in the absence of a curator being appointed to represent William Jr. Thus, we reverse the judgment of partition and remand this matter to the trial court to appoint a curator to represent William Jr., at Ms. Stewart’s cost, and to conduct further proceedings. Lastly, in consideration of the need for the trial court to conduct a new trial, we pretermit discussion of the remaining assignments of error.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . La.Rev.Stat. 13:3205 provides in pertinent part:
      a defendant does not have to personally sign the return receipt nor is personal service upon the defendant; however, proof of service or an affidavit attesting to such is required under this statute.

      . See also Entrada Co., L.L.C. v. Moore, 41,-414, pp. 13-14 (La.App. 2 Cir. 8/9/06), 938 So.2d 1055, 1062 writ denied, 06-2232 (La. 1/8/07), 948 So.2d 123 (citing Munsterman v. Crawford, 532 So.2d 264 (La.App. 3d Cir. 1988), writ denied, 535 So.2d 743 (La.1989)).


author: MADELEINE M. LANDRIEU, Judge.

text:
    Chaniel AGE and Varney Goba v. DLJ MORTGAGE CAPITAL, INC., Select Portfolio Servicing, Inc., (Formerly Known as Fairbanks Capital Corp.); et al.
    No. 2013-CA-1654.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2014.
    Eric Oliver Person, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Eric J. Simonson, Angelina Christina, Vicki Elmer, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| plaintiffs, Chaniel Age and Varney Goba, appeal the trial court’s granting of summary judgment in favor of defendants, DLJ Mortgage Capital, Inc. [“DLJ”] and Select Portfolio Servicing, Inc. [“Select”]. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On June 1, 2009, the plaintiffs purchased by Special Warranty Deed the real property (a house and lot) located at 6150 East-over Drive in New Orleans. Three years later, on July 18, 2012, the plaintiffs filed suit alleging there was a title defect the defendants were bound to cure. The named defendants included the seller, DLJ Mortgage Capital, Inc. [hereinafter referred to as “DLJ”]; Select Portfolio Servicing [hereinafter referred to as “Select”], DLJ’s attorney in connection with the sale; Resource Title Agency, Inc. [hereinafter referred to as “Resource Title”], which performed the title examination; and First American Title Insurance Company [hereinafter referred to as “First American”], which issued the title j2insurance policy. The plaintiffs alleged that substantial portions of the house they had purchased encroached upon an adjacent piece of property, which was subject to a tax sale. In an amended petition, the plaintiffs alleged that they had learned about the encroachments sometime after they had purchased the property when a relative had performed a computer search relating to tax sales in the neighborhood. The plaintiffs further alleged that they did not know when the complained-of encroachments had come into existence. In the amended petition, the plaintiffs sought damages from the defendants (in a reasonable amount to be determined by the court) for the defendants’ alleged failure to deliver merchantable title.

The issuer of the title insurance policy, First American, filed a motion for summary judgment based upon the fact that its policy expressly excluded claims for loss or damage arising from encroachments or other such matters that would have been disclosed by an accurate survey of the premises. The plaintiffs do not dispute that they expressly declined to have a survey done. The trial court granted First American’s motion for summary judgment on March 21, 2013. Neither the plaintiffs nor any of the remaining defendants appealed the dismissal of First American from the lawsuit.

Subsequently, DLJ and Select filed a motion for summary judgment that was heard on July 19, 2013. DLJ and Select asserted that they were not liable to the plaintiffs as a matter of law because the plaintiffs had waived their right to object |ato any title defects under the provisions of the Special Warranty Deed and also had opted to forego having a survey, signing a written waiver to that effect. The plaintiffs argued that the terms of the Special Warranty Deed are ambiguous and therefore the waiver they signed was invalid. Alternatively, they argued that the waiver provision was not brought to their attention or explained, and that, therefore, they had not executed a knowing waiver. The trial court granted the motion for summary judgment from the bench, dismissing the plaintiffs’ claims against DLJ and Select. The court signed a written judgment to that effect on July 22, 2013. This appeal followed.

The sole issue raised on appeal is whether the trial court erred by finding that the plaintiffs waived their right to recover damages from DLJ and Select for the title defect complained of in the petition.

DISCUSSION

We have jurisdiction over this appeal because the trial court’s judgment dismissing the plaintiffs’ claims as to one or more of the defendants is a final judgment.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 2006-0363, p. 3 (La.11/29/06), 950 |4So.2d 544, 547. “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). Thus, the reviewing court must determine whether there is any genuine issue of material fact and whether the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C); Hall v. Malone, 2013-0315, p. 3 (La.App. 4 Cir. 1/15/14), 133 So.3d 91, 93 (citing Cressionnie v. Liberty Mutual Ins. Co., 98-0534, p. 3 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, 366). Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment. La. C.C.P. art. 966(F)(2).

With their motion for summary judgment, DLJ and Select submitted the affidavit of Patrick Pittman, a director of Select, who averred that: (1) Select had serviced the mortgage loan taken out by Mr. Kenneth Wiley, the prior owner of the property, which loan was assigned to DLJ as mortgagee on April 23, 2008; (2) Upon Mr. Wiley’s default, DLJ foreclosed on the note and then acquired the property at a sheriff’s sale on August 26, 2008; (3) DLJ, represented by Select, sold the property to the plaintiffs by Special Warranty Deed on July 17, 2009; (4) the only survey of the property in DLJ’s possession was a 1997 survey; and (5) DLJ did not construct any building or portion of a building on the property during the time it owned the property. Also submitted with Mr. Pittman’s affidavit were |,r,copies from Select’s files of relevant documents referenced in the affidavit, including the original Note, the Mortgage, the 1997 survey of the property performed by Stewart Title (which does not show any encroachment); the Act of Assignment to DLJ, the Sheriff’s Deed, and the Special Warranty Deed. Finally, DLJ and Select submitted a copy of First American’s “Notice of Availability of Survey,” which is completed and signed by the plaintiffs, and an Orleans assessor’s office map (printed from the office’s website in 2013), which purportedly shows the encroachment.

In opposition to the motion, the plaintiffs submitted the affidavit of plaintiff Chaniel Age, in which she averred that: (1) No one went over the provisions of the Special Warranty Deed with the buyers before they signed it; (2) The waiver of warranties was not brought to the attention of the buyers or explained to them; and (3) The Special Warranty Deed was ambiguous in that it contained one clause providing that the sale was being made with full warranty of title and another clause providing there was no warranty of title.

Reviewing this evidence, we conclude, as did the trial court, that the plaintiffs expressly waived their right to recover for the title defect complained of in their suit — the encroachment of portions of the house onto the neighboring lot. The Special Warranty Deed is two pages in length. Although the first paragraph contains the general provision: “Seller does hereby sell and deliver, with full warranty of title ... [the property described],” the contract goes on to specifically state:

| ^Sellers, Brokers and Designated Agents make no warranty or other assurances whatsoever concerning property measurements, square footage, room dimensions, lot size, property lines or boundaries. Buyers acknowledge that the property is purchased as seen waiving any and all errors and inconsistencies or omissions in such measurements, determinations, or square footage by Brokers and Designated Agents or on behalf of Seller.
It is understood and agreed that the property is sold by the seller and purchased by the buyers “AS IS, WHERE IS” without any warranties whatsoever as to fitness or condition, whether expressed or implied, and Buyers expressly waive the warranty of fitness and the guarantee against hidden or latent defects (defects in the property sold which render it useless or render its use so inconvenient or imperfect that Buyers would not have purchased it had they known of the vice or defect) provided by law in Louisiana, more specifically, that warranty imposed by Louisiana Civil Code art. 2520 et seq. [sicjwith respect to Seller’s warranty against latent or hidden defects of the property sold, or any other applicable law, not
even for a return of the purchase price. Buyers forfeit the right to avoid the sale or reduce the purchase price on account of some hidden or latent vice or defect in the property sold. Sellers expressly subrogate Buyers to all rights, claims and causes of action Seller may have arising from or relating to any hidden or latent defects in the property. This provision has been called, to the attention of the Buyers and fully explained to the Buyers, and the Buyers acknowledge that they have read and understand this waiver of all express or implied warranties and accepts the property without any express or implied warranties. [Emphasis added.]

The plaintiffs initialed this section waiving all express and implied warranties. Following this section is additional language that further limits the buyers’ rights:

The subject property is being sold without warranty by the seller but with full subrogation and substitution of all rights of warranty, which the seller may have against previous owners.
Grantor conveys that it is seized and possessed of the said land and has a right to convey it, and warrants the title against the lawful claims of all persons claiming by, through and under it, but not further otherwise.
The following reservations from and exceptions to this conveyance and the warranty of title made herein shall apply: ⅜ $ ⅜
_J[¡Any conditions that would be revealed by a physical inspection and survey of the property. [Emphasis added.]

The plaintiffs’ signatures appear at the end of the Special Warranty Deed. In addition to this document, DLJ and Select submitted a form the plaintiffs completed as part of their application for title insurance issued by First American. The form is entitled “Notice of Availability of Survey.” It provides, in pertinent part:

You have the right to obtain a survey which may:
* * *
2) determine whether structures or fences on the premises encroach on neighboring property, violate setback lines or zoning ordinances;
Without a survey you may not know these facts. The additional cost of a survey is $600 to 1000.00[sic] if you request it at this time.
If you are uncertain as to whether you should obtain a survey, you are urged to seek independent advice.

On this form, the plaintiffs checked off the box indicating “We do not request a survey.” Above the plaintiffs’ signatures is the sentence: “If we do not choose to obtain a current survey, we agree to hold Resource Title Agency, Inc.... harmless from any liability which may occur as a result of the lack of a current survey.”

In opposition to the motion for summary judgment and on appeal, the plaintiffs argue that the terms of the Special Warranty Deed are ambiguous, and, therefore, the express waiver of warranties is unenforceable; and alternatively, that the waiver of warranties was never brought to their attention, such that they did not understand what they were signing. Considering the evidence submitted with the motion, we reject these arguments.

|sThe Special Warranty Deed is not ambiguous. It contains a general warranty, which is then explicitly restricted in two respects: (1) all express and implied warranties are disclaimed/waived; and (2) an express warranty of title is granted subject to six named exceptions, including “[a]ny conditions that would be revealed by a physical inspection and survey of the property.” Louisiana Civil Code article 2050 provides “Every provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” Further, in the interpretation of contracts, the specific controls the general. Aikman v. Thomas, 2003-2241, p. 6 (La.App. 1 Cir. 9/17/04), 887 So.2d 86, 90 (citing Mixon v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minn., 147 La. 302, 305-306, 84 So. 790, 791 (La.1920)). Viewing the Special Warranty Deed as a whole, we find that the specific disclaimer/ waiver of warranties clearly modifies the general reference to the property being conveyed with “full warranty of title” that precedes the disclaimer. Any other interpretation would negate more than half of the language of this contract.

We also find no merit in the plaintiffs’ alternative argument that the contractual provisions were not explained to them. This court has held that three factors must be present to create a binding waiver of implied warranties: (1) the waiver must be written in clear and unambiguous terms; (2) the waiver must be contained in a written contract; and (3) the waiver must be brought to the attention of the buyer or explained to him. Boos v. Benson Jeep-Eagle Co., Inc., 98-1424 (La.App. 4 Cir. 6/24/98), 717 So.2d 661, 663-64. The seller has the burden of proving a waiver by the buyer. Id. The third requirement, that the waiver be brought to the attention of the buyer, is satisfied if the buyer is required to (and |9does) initial the warranty provision. Alexander v. Henderson Condo. Ass’n, Inc., 99-2906, p. 3 (La.App. 4 Cir. 12/27/00), 778 So.2d 627, 629.

In the case before us, all three requirements are met. The waiver is clear and unambiguous; it is contained in the written Special Warranty Deed; and the buyers were required to place their initials directly beneath the waiver provision. As an additional safeguard, the waiver provision includes an express acknowledgement that the provision has been called to the attention of and fully explained to the buyers, who acknowledge that they have read and understood it. Finally, the plaintiffs here were warned about the dangers of failing to obtain a survey in the form they had to sign for First American. Despite this specific notice that one of the defects that could be detected by a survey was the potential encroachment of the premises onto a neighboring property, the plaintiffs expressly declined to obtain a survey. It is undisputed that a survey performed at the time of the plaintiffs’ purchase would have disclosed the encroachment complained of.

In view of the evidence, we conclude that DLJ and Select met their burden of proving that the plaintiffs waived any rights they may have had to recover from the seller or its agent any damages caused by the encroachment of the house onto the adjacent lot. There being no material issue of genuine fact remaining, we find that DLJ and Select were entitled to judgment as a matter of law.

CONCLUSION

Accordingly, for the reasons stated, the summary judgment dismissing the plaintiffs’ claims against DLJ and Select is affirmed.

AFFIRMED.

      . DU had acquired the property at a sheriff's sale.

      . The plaintiffs named additional defendants that are not pertinent to this appeal and therefore are not referenced here. See footnote 5 infra.

      . The time was not specified.

      . A judgment that dismisses the lawsuit as to one or more parties is a final judgment pursuant to La. C.C.P. art. 1915 A. A final judgment is appealable. La. C.C.P. art. 2083.

      . See La. C.C.P. arts. 1915 A and 2083, and footnote 4, supra. The record before us does not disclose whether there are any defendants remaining in the lawsuit. The City of New Orleans, which was an original defendant, was dismissed without prejudice several months after the lawsuit was filed. The record does not disclose whether Resource Title, and/or the owner of the property encroached upon (also an original defendant, but not pertinent to this appeal), still remain defendants.