author: FREDERICKA HOMBERG WICKER, Judge.

text:
    SID-MAR’S RESTAURANT & LOUNGE, INC., Marion Gemelli Burgess and Sidney Kent Burgess v. STATE of Louisiana, Through the GOVERNOR and/or The Division of Administration, State Land Office.
    No. 14-CA-52.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Charles L. Stern, Jr., Margaret V. Glass, Attorneys at Law, Barry W. Ashe, Scott T. Whittaker, Kathryn M. Knight, Attorneys at Law, New Orleans, LA, for Plaintifi/Appellee.
    James D. “Buddy” Caldwell, Attorney General, Daniel D. Henry, Jr., David A. Peterson, Ryan M. Seidmann, Assistant Attorneys General, Louisiana Department of Justice, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

|sThe State of Louisiana, defendant, appeals the judgment of the trial court in favor of the plaintiffs, Sid-Mar’s Restaurant & Lounge, Inc., Marion G. Burgess, and Sidney K. Burgess (hereinafter collectively “Sid-Mar’s”), finding that Sid-Mar’s had acquired ownership of certain Lots, in whole in or part, in Square 128 of the Metairieville subdivision of Jefferson Parish. Sid-Mar’s answers this appeal requesting that this Court clarify the trial court’s judgment as to what portion of Lot 4 of Square 128 and Plane Street it owns, as well as whether its “economic rights” relative to its lease of the area north of its “restaurant property” were interfered with by the State’s 2006 commandeering order. For the following reasons, we affirm the trial court’s judgment and render the specific finding that Sid-Mar’s is the owner of the portion of Lot 4 and Plane Street that was within Sid-Mar’s “restaurant property” as described in the petition. We also find that Sid-Mar’s lease of the property to the north of its “restaurant property” was interfered with by the State’s 2006 commandeering order.

\ ¿PROCEDURAL HISTORY

Sid-Mar’s filed suit against the State “through the governor and/or the division of administration, state land office” on June 2, 2006, alleging the State had illegally taken its “restaurant property” and interfered with its economic rights relative to the area north of its “restaurant property” without just compensation. Sid-Mar’s alleged that the State accomplished this taking when the restaurant property was commandeered as a result of Governor Blanco’s February 10, 2006 executive order.

The State answered Sid-Mar’s petition in early 2007. In its answer, the State admitted “that Executive Order KBB 2006-6 was issued on February 10, 2006 ... [and] that the executive order commandeered the ‘use’ of the property described therein for certain necessary work by the Corps of Engineers.” The State further admitted that it had not offered any compensation to Sid-Mar’s as a result of its commandeering of the property Sid-Mar’s claimed. The State denied that Sid-Mar’s had owned the property it claimed.

On June 2, 2009, the State moved for “leave to file a third party demand” against the U.S. Army Corps of Engineers. The State argued that it had entered into a cooperation agreement with the Corps whereby the State agreed to commandeer certain property, which included the property Sid-Mar’s claimed, and that the Corps would, in turn, condemn that property, take that property, pay the owners of that property, and build a pumping station on that property. The State alleged that the Corps had breached its agreement with the State by failing to condemn Sid-Mar’s property and provide payments for Sid-Mar’s property and damages.

lsOn June 3, 2009, while this suit was still pending, the United States filed two Complaints in Condemnation in the United States District Court for the Eastern District of Louisiana. One complaint addressed a .088 acre tract, the other addressed a .166 acre tract. Those suits were later consolidated. The entities said to have an interest in the property were Sid-Mar’s, the Sheriff as ex-officio Tax Collector for Jefferson Parish, the State of Louisiana, and certain unknown owners. The parcels that Sid-Mar’s claims in this state court suit were among the parcels that were affected by the combined federal condemnation suit.

On June 5, 2009, Sid-Mar’s filed a motion for partial summary judgment seeking a judgment by the trial court that it owned the land it described as its “restaurant property” as of February 10, 2006, the date Governor Blanco issued her condemnation order.

On July 20, 2009, the East Jefferson Levee District Board of Commissioners (“EJLD”) moved for leave to file a petition of intervention, arguing that it was a necessary party in this litigation because it had an ownership interest in part of the property claimed by Sid-Mar’s. On April 24, 2013, the trial court issued an order allowing the EJLD to intervene in this action. Just before trial, on April 29, 2013, Sid-Mar’s answered the EJLD’s petition for intervention.

On July 21, 2009, the U.S. District Court issued an order staying the proceedings in this case. This stay remained in effect until December 18, 2012, when the U.S. District Court lifted the stay on this state court suit “for the limited purpose of determining title.”

[fiOn January 15, 2013, Sid-Mar’s moved for a partial summary judgment, seeking a judgment by the trial court finding that the Governor’s 2006 Commandeering Order “constituted a compensable taking by the State of Louisiana ..., by which the State of Louisiana acquired the relevant interest in the property identified in the Commandeering Order.” The trial court granted Sid-Mar’s motion for partial summary judgment on March 21, 2013, finding that “the Commandeering Order issued by Governor Kathleen B. Blanco on February 10, 2006 effected a ‘taking’ of plaintiffs’ property by the State of Louisiana. Accordingly, plaintiffs are entitled to compensation as allowed by Louisiana law.” The State sought writs of supervisory review of this decision to both this Court and the Louisiana Supreme Court. Those writs were denied. Sid-Mar’s Restaurant & Lounge, Inc., et al. v. State of Louisiana, 13-420 (La.App. 5 Cir. 5/16/13) (unpublished writ) (stating, “After de novo review of the application and accompanying exhibits, we find no error in the trial court’s ruling of March 21, 2013, granting summary judgment in favor of the plaintiff.”); Sid-Mar’s Restaurant & Lounge, Inc., et al. v. State of Louisiana, 13-1519 (La.10/4/2013), 122 So.3d 1021.

On March 5, 2013, the State filed both an exception of nonjoinder and a motion for partial summary judgment. In its exception of nonjoinder, the State argued that Sid-Mar’s erred in failing to join the U.S. Army Corps of Engineers as a defendant in this action. In its motion for partial summary judgment, the State sought to defeat any claim by Sid-Mar’s that it had obtained ownership rights in the disputed property through acquisitive prescription. After a hearing on March 1722, 2013, the trial court issued an oral ruling denying both this exception and this motion for partial summary judgment.

On March 26, 2013, the trial court issued a written judgment wherein it memorialized its denial of the State’s March 5, 2013 exception of nonjoinder and motion for partial summary judgment. In that judgment, the trial court also denied the State’s June 2, 2009 motion for leave to file a third-party petition.

On April 29, 30, and May 1, 2013, the lower court held a trial on the merits. On August 9, 2013, the trial court issued a written judgment wherein it found that:

[Sid-Mar’s owns] all of the property at issue in this litigation and identified as ‘Restaurant Property except for Square 128, Lot 3 which is the property of the East Jefferson Levee District (formerly the Pontchartrain Levee District).... The State did not prove any portion of these Lots were ever part of the bed of Lake Pontchartrain.

The State moved for a suspensive appeal of this judgment on August 30, 2013. The trial court granted the State’s suspensive appeal on September 4, 2013. Sid-Mar’s thereafter answered the State’s appeal. This decision now follows.

FACTS

In 1947, Mr. Leroy C. and Mrs. Marguerite Shultz bought Lots 1, 2, and 3 of Square 128 in the Metairieville subdivision of Jefferson Parish. These Lots comprise a part of the now-disputed “restaurant property.” Thereafter, Mr. and Mrs. Shultz lived on, and began to possess as owners, the entire “restaurant property.” The “restaurant property” included the collection of Lots 1, 2, and 3, to which the Shultzs had title, as well as, portions of Lots 4, and 19 through 24, which the Shultzs possessed as owners.

In 1949, the Pontchartrain Levee District Board of Commissioners (PLD) attempted to appropriate without compensation an area of land which included the 1 ^“restaurant property.” In 1950, the Shulzs filed suit against the PLD and the district court rendered judgment in favor of the Shultzs. The PLD paid the Shultzs $5,440.00 for Lots 1, 2, and 3. The record reveals no compensation payment for Lots 4 and 19 through 24. Thereafter, the PLD quitclaimed Lots 1 and 2 to the Shultzs.

In 1967, Marion Burgess and her husband, Sidney Burgess, Sr., both now deceased, opened a restaurant, then operated as a proprietorship, that they named “Sid-Mar’s Restaurant.” In 1972, the Shultzs leased part of the “restaurant property” to Mr. and Mrs. Burgess. This allowed Mr. and Mrs. Burgess to move “Sid-Mar’s Restaurant” to the “restaurant property.”

From 1972 and until Hurricane Katrina in 2005, Mr. and Mrs. Burgess, and later Sid-Mar’s Restaurant & Lounge Inc., owned and operated “Sid-Mar’s Restaurant” on the “restaurant property.”

From 1972 until 1977, Mr. and Mrs. Burgess leased the space for Sid-Mar’s Restaurant from the Shultzs, who, during the pendency of the lease, resided in a home on the property separate from the restaurant building. Following the death of Marguerite and Leroy C. Shultz, Sid-Mar’s (Mr. and Mrs. Burgess, and later Sid-Mar’s Restaurant & Lounge Inc.) continued to lease the restaurant space from the Shultz heirs, who, like their parents, occupied the home on the property. From 1972 until 1991, the “restaurant property” was comprised of both the area the Shultzs leased to Sid-Mar’s, and area on which the Shultz family members resided.

On September 30, 1991, Sid-Mar’s purchased the “restaurant property” from the Shultzs through an act of sale which conveyed to them: Lots 1, 2, and 3 of l9Square 128; together with “any ownership or pos-sessory interests or other rights or claims [the Shultzs] may have [had] on the lands abutting or contiguous thereto.” After this sale, Sid-Mar’s possessed, as owner, the entire “restaurant property.” This included both the area which had been leased for the Sid-Mar’s Restaurant from 1972 until the 1991 purchase, as well as, the other portion of the “restaurant property,” the area on which the Shultz family members had resided and possessed as owners.

Hurricane Katrina destroyed Sid-Mar’s Restaurant and its surrounding structures on August 29, 2005. Although Sid-Mar’s began taking steps to rebuild the restaurant in Katrina’s immediate aftermath, they were thwarted when the Governor “commandeered” their “restaurant property,” by Executive Order No. KBB-2006— 6. The Governor issued this commandeering order anticipating that the U.S. Army Corps of Engineers would build a pumping station at the affected location.

\ DISCUSSION

In this appeal, the State assigns two errors of the trial court. First, the State argues the trial court erred in failing to find that all of the disputed property, except for portions of Lots 1 and 2, was a former lake bottom and therefore not susceptible to acquisitive prescription in favor of Sid-Mar’s. Second, as to the parts of the “restaurant property” outside of Lots 1 and 2 of Square 128, the State argues the trial court erred in finding that Sid-Mar’s owns by acquisitive prescription the “restaurant property” because that area is owned by the Pontchartrain Levee District. This part of the “restaurant property” is comprised of portions of Lot 4 and Lots 19 through 24. Sid-Mar’s answers this appeal, asking this Court to clarify the trial court’s judgment as to Lot 4, and the property Sid-Mar’s leased north of the “restaurant property.” We address each of these arguments in turn.

Assignment One

In its first assignment of error, the State argues the trial court erred in failing to find that the entirety of the “restaurant property” is a former lake bed and thus not susceptible to acquisitive prescription. To address these assignments of error, we must address a threshold question of whether the trial court was manifestly erroneous in its finding that no part of the disputed property was a lake bed which at some point was under the waters of Lake Pontchartrain.

If the disputed property is a former lake bottom, it is owned by the State. La. C.C. art. 450. If the disputed property is owned by the State, it may not be alienated from the State though acquisitive prescription by a private party, such as Sid-Mar’s. La. Const. art. IX, § 4 (Lands ... of the state ... or “of a levee district shall not be lost by prescription.... ”); La. R.S. 38:317 (“The prescription by |nwhich the ownership of property is acquired as defined by Article 3446 of the Louisiana Civil Code shall not run against any levee district or levee and drainage district or against the board of commissioners of any levee district or levee and drainage district.”). The Louisiana Constitution also prohibits alienation of the disputed property if it was a lake bed, unless the alienation was for the purpose of reclamation by a riparian owner to recover land lost through erosion. La. Const. art. IX, § 3 (“The legislature shall neither alienate nor authorize the alienation of the bed of a navigable water body, except for purposes of reclamation by the riparian owner to recover land lost through erosion.... ”). The trial court’s determination of whether the disputed property was a former lake bottom is a question of fact subject to review for manifest error. Walker Lands, Inc. v. E. Carroll Parish Police Jury, 38, 376 (La.App. 2 Cir. 4/14/04), 871 So.2d 1258, 1263, writ denied, 04-1421 (La.6/3/05), 903 So.2d 442; Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993).

The State argues that the only reasonable conclusion from the evidence is that the “restaurant property” is a former lake bed. At trial, in support of this argument, the State presented the testimony of Andrew Oliver, Clay Carter, Dr. George Castille, III, and Gregory D’Angelo. Through the authentication by these witnesses, the State admitted numerous survey plats, photographs, and other documents into evidence.

Mr. Oliver, a Public Lands Field Officer with the Louisiana State Land Office, testified that he researched the possible owners by title of Sid-Mar’s property for the State in the aftermath of Hurricane Katrina. Mr. Oliver authenticated, inter alia, State’s Exhibits 8(i), 36(iv), and 29(vi):

• State’s Exhibit 8(i) is the western half of a map of New Orleans and its surrounding area dated with the year 1909. This map shows the now-disputed square 128 as partially eroded by the shoreline of Lake 112Pont char train. However, these maps do not show individual Lots within square 128.
• State’s Exhibit 36(iv) is a survey dated March 1, 1961 of Lots 1, 2, 3, 4, 24, the levee, the location of Lake Pontchartrain, Lake Street, Plane Street, and Orpheum Avenue. It was created for “Mr. and Mrs. Leroy Shultz and Board of Commissioners of the Pontchartrain Levee District.” Mr. Oliver testified that the PLD began construction of a levee in 1949, and that in connection with that, the PLD had appropriated the Shultzs’ property. Mr. Oliver identified this document as resulting from a lawsuit arising from the Shultzs’ lawsuit against the PLD over this appropriation and stated that it depicted the areas affected by the appropriation and the Shultzs’ subsequent law suit.
• State’s Exhibit 29(vi) is an aerial photograph of the disputed area, Mr. Oliver testified that it was taken in the 1990s. This photograph appears to show all of Sid-Mar’s property on dry land.

Mr. Oliver admitted that he had no evidence or personal knowledge to contradict Mr. Sidney K. Burgess’s testimony that between 1972 and 2005 there was no activity taken to try to reclaim land from Lake Pontchartrain. Mr. Oliver confirmed that construction on a pumping station began on and near the property Sid-Mar’s claimed after Hurricane Katrina.

Mr. Carter, a Public Lands Utilization Manager at the Louisiana State Land Office, testified that, as a part of his employment, he has tried to lease the State’s land on the bottom of Lake Pontchartrain. Mr. Carter testified that based on his work, he concluded that the “southern boundary” of Lake Pontchartrain’s shoreline was the south line of Plane Street. Mr. Carter also testified that there were no permits for reclamation of land that was lost due to erosion in the State Land Office’s files.

Dr. Castille, an expert in Historical Archeology, Geography, and water bottoms issues, testified relative to work he performed for the State Land Office in 2003 and 2012. In 2003, Dr. Castille performed contract work for the State Land Office looking into a number of camps on the Jefferson Parish side of the 17th | lsStreet Canal. While the eastern portions of these camps were on dry land, the western portions of these camps extended out over the water of Lake Pontehartrain. The State Land Office tasked Dr. Castille with determining whether the land under the eastern portions of these camps belonged to the State. Dr. Castille testified that as a result of this work, he produced a report which, inter alia, depicted what he believed was the southern shoreline of Lake Pontehartrain in the now-disputed area. According to that report by Dr. Castille, the southern shoreline of Lake Pontchartrain ran along the southern boundary of “Plane Street.”

In 2012, Dr. Castille conducted four “shovel tests” on the western halves of Lots 1 and 2 of Square 128 to determine whether the now-disputed “restaurant property” was formerly part of the bed of Lake Pontehartrain. These shovel tests consisted of Dr. Castille digging four holes in the ground to a depth below the ordinary mean high-water mark of Lake Pontehartrain. When Dr. Castille dug these holes, he found artificial fill below Lake Pontchartrain’s ordinary mean high-water mark. From this, Dr. Castille concluded that the land on the western halves of Lots 1 and 2 had eroded, become part of the bed of Lake Pontehartrain, and then had artificial fill placed on it to make it dry land. Dr. Castille testified that the items which he found in his “shovel tests,” such as rusted nails, appeared to have been in the ground for many years.

On cross-examination, Dr. Castille admitted that when he conducted his 2012 “shovel tests” on the property that Sid-Mar’s formerly occupied, the State and the Army Corps had had control of that area for several years (since the 2006 Commandeering Order). Dr. Castille further admitted that he did not know what activity the State or the Army Corps undertook while they were in possession of the land for that time.

|14 Gregory D’Angelo, an expert in title examination and title opinions, investigated the claims of ownership in Square 128 by Sid-Mar’s and the State in 2009. At trial, Mr. D’Angelo testified relative to State’s Exhibit 14 and 20. State’s Exhibit 14, a survey plat dated August 14, 1947, showed Lake Pontchartrain’s shoreline encroaching into Lots 1 and 2, but not Lot 3. This August 14, 1947 survey plat was attached to the act of sale by which Mr. and Mrs. Shultz bought Lots 1, 2, and 3 on November 13, 1947. State’s Exhibit 20 is the PLD’s quitclaim to the Shultzs, with an attached survey plat dated Sept. 13, 1960 and revised on March 1, 1961. Mr. D’Angelo opined that it was significant that this survey plat: measured the metes and bounds of Lots 1, 2, and 3 of Square 128; identified the streets surrounding Square 128 for orientation purposes; and featured the shoreline of Lake Pontehartrain encroaching significantly into Lots 1, 2, and 3. Mr. D’Angelo opined that these depictions of the shoreline encroaching into Lots 1, 2, and 3, were significant to determine the ownership of the full extent of these Lots.

In opposition to this evidence, Sid-Mar’s elicited testimony from Sidney Kent Burgess, Jr. and William D. Reeves and presented various exhibits of its own.

Sidney Kent Burgess, Jr. testified that his now-deceased parents, Sidney Burgess, Sr. and Marion Gemelli Burgess, founded Sid-Mar’s Restaurant in 1967 and moved it to the now-disputed “restaurant property” area in 1972. Mr. Burgess testified that, starting in 1972, Sid-Mar’s Restaurant was located at the municipal address of 1824 Orpheum Avenue, with the front of the restaurant facing Orpheum Avenue and the 17th Street Canal, and the rear of the restaurant facing Lake Pontchartrain. Mr. Burgess described Sid-Mar’s Restaurant being outside of the levee protection system.

11BIn his testimony, Mr. Burgess detailed how, beginning in 1972 and continuing until Governor Blanco’s 2006 commandeering order, the “restaurant property” had been fully possessed, -with the intent to own it, by his parents, Sid-Mar’s Restaurant & Lounge, Inc., members of the Shultz family, or some combination thereof.

At the time Sid-Mar’s Restaurant first relocated to its Orpheum Avenue location, the Burgess family leased the restaurant property from the Shultz family. At that time, the Shultzs resided in a house on the western portion of the “restaurant property.” There was a shed behind Sid-Mar’s Restaurant, driveways, landscaping and trees. There was additional parking north of Plane Street that was used by “Bernice’s Seafood.” Mr. Burgess testified that since 1972, there has been no change in the location of Lake Pontchartrain’s shoreline. He testified that he had no memory of the lake ever covering any part of the “restaurant property.”

Mr. Burgess testified that between 1972 and August 29, 2005, no one representing the State, or the EJLD, ever claimed to him that the State owned any part of the property that Sid-Mar’s was occupying. Nor did the State, or the EJLD, take any steps to maintain that property. Mr. Burgess testified that he did not observe any governmental entity maintain the portions of land that extended beyond 15 or 20 feet from the raised portion of the levee, a portion he called the toe of the levee.

Mr. Burgess began working in his parents’ restaurant in 1988 or 1984, eventually taking over its day-to-day operations. He maintained this role until Hurricane Katrina. Mr. Burgess testified that Sid-Mar’s Restaurant & Lounge, Inc. bought the “restaurant property” from the Shultzs in 1991. Mr. Burgess testified that he had maintained the land up to the Coast Guard fence on the western boundary of the “restaurant property.”

1 ifiMr. Burgess admitted that the “restaurant property” subsided over time and that he, his family members, and the Shultzs had occasionally used fill to build up the level of the “restaurant property.” Mr. Burgess also admitted to putting dirt on top of rocks which were on the lake’s shore; however, he claimed that he did not move the lake’s shoreline by this or any other action. Mr. Burgess specifically testified that Sid-Mar’s never had filled any lake bottom in order to make it dry land.

In the early 2000s, Sid-Mar’s entered discussions with the State Land Office. Mr. Burgess testified that, during these discussions, no one from the State Land Office suggested that he or Sid-Mar’s get a reclamation permit, nor did any person from that office suggest that Sid-Mar’s did not own the land it was claiming.

Hurricane Katrina destroyed all the structures on the “restaurant property,” save for a few slabs and pilings. Mr. Burgess testified that after the 2006 commandeering order and the subsequent commencing of construction of the pumping station on the “restaurant property,” he was not allowed to enter the “restaurant property.” Mr. Burgess testified that Sid-Mar’s paid property taxes on the “restaurant property” up until the date of the commandeering order, as well as for the years 2006, 2007, and 2009.

Dr. William D. Reeves, an expert in History and the History of land in South Louisiana, testified regarding several of Sid-Mar’s exhibits which supported Sid-Mar’s argument that the “restaurant property” was never the bed of Lake Pontchartrain. The exhibits discussed by Dr. Re-vees included:

• Exhibit 21-the “1837 Guerard plan”— which was a subdivision of two plantations carried out by Hector D’Corville at somepoint in 1836 or 1837. Dr. Revees explained that sales were made after this subdivision. The “1837 Guerard plan” showed square 128 just north of “Edinburgh Avenue.” Edinburgh Avenue is located in approximately the same location as Old Hammond Highway was later located. This exhibit also shows Plane Street abutting Square [17128 on its north side, as well as, Square 129 abutting Plane Street on its north side.
• Exhibit 30-a plan from 1837-showed Square 128 as the last marked square before Lake Pontchartrain.
• Exhibit 35-a subdivision plan of Square 128 — was found by Dr. Reeves in the Notarial Archives. Dr. Reeves testified that this plan was attached to a June 15, 1877 act before notary W. J. Castell. This map shows the entirety of Square 128 without any encroachment by Lake Pontchartrain.
• Exhibit 36-a map of New Orleans dated 1885-depicts Square 128 as being on dry land. It also shows that north of Square 128 and south of the shoreline of Lake Pontchartrain, was Square 129, which was also depicted as being on dry land.
• Exhibits 49(A) and (B) — maps dated 1917 — showed the now-disputed area. Dr. Reeves testified that the northern boundary of Square 128 was, as shown on these maps, south of Lake Pontchartrain.

In addition to this above testimony relative to historic maps, Dr. Reeves also opined that the 1872 “G.L.O.” meander line was north of the northeast corner of Square 128. Dr. Reeves based his opinion on his analysis of the notes of surveyor “Sulakowski” on which the 1872 “G.L.O.” meander line was based. According to Dr. Reeves, he believed that the 1872 “G.L.O.” meander line was 142 feet further out than Dr. Castille had estimated it to be in his trial testimony.

After evaluating the above evidence, we cannot say that the trial court was manifestly erroneous in failing to find that the “restaurant property” was not formerly part of the bed of Lake Pontchartrain.

The survey plat dated September 13, 1960, which was attached to the quit claim deed by the PLD in favor of Mr. and Mrs. Shultz, appeared to show the shores of Lake Pontchartrain encroaching into the westside of Lots 1, 2, and 3. However, we cannot say that this evidence is a reliable map of the shoreline’s location. First, the purpose of this survey plat was to lay out the relative position and dimensions of Lots 1, 2, and 3, so that the PLD could abandon any claim to 118ownership of Lots 1 and 2, but not Lot 3. Second, while this survey plat measures these three Lots and sets their boundaries, it does not do the same for Lake Pontchartrain’s location. The State also argues that several aerial photographs show that the shoreline of Lake Pontchartrain encroached into all or part of the “restaurant property.” After closely examining these photographs, we cannot say the trial court was manifestly erroneous in finding that the quality of these photographs precluded a finding that they supported survey plats, such as the September 13, 1960 plat, which showed portions of the “restaurant property” under the waters of Lake Pontchartrain.

As to the “shovel tests” performed by Dr. Castille in 2012, the State argues that these tests proved that the dry land upon which the “restaurant property” was situated, during the existence of Sid-Mar’s Restaurant at that location, was the result of artificial filling of Lake Pontchartrain’s bed. We disagree. Dr. Castille’s “shovel tests” consisted of him digging four holes in the “restaurant property” and finding construction debris at depths that were below the lake’s ordinary mean high-water mark. In this circumstance, these tests do not necessarily lead to the conclusion that any of the “restaurant property” was formerly part of the bed of Lake Pontchartrain. Dr. Castille’s “shovel tests” occurred in 2012, several years after Sid-Mar’s had lost possession of the “restaurant property” to the State and the Army Corps of Engineers. Dr. Castille testified that he did not know whether any of the State’s activity, or the Army Corps’ construction of a pumping station, affected the results of his shovel tests. Furthermore, Dr. Castille acknowledged that the “restaurant property” land naturally subsides over time.

The admission from Dr. Castille that the land comprising the “restaurant property” naturally subsides over time is particularly important when considered in | flight of the testimony of Mr. Burgess. Mr. Burgess testified that in the years since Sid-Mar’s Restaurant opened in 1972, he came to take over its operations from his parents. Mr. Burgess testified that in the time since 1972, he and his parents have placed “fill” on the land as it subsides. Although Mr. Burgess admitted that the “restaurant property” subsides and that Sid-Mar is responsible for placing fill on the “restaurant property”, he testified that the “restaurant property” has never been under the waters of Lake Pontchartrain.

Sid-Mar’s position, that the “restaurant property” is not a former lake bed, is also supported by: various 19th century government surveys of the area; Dr. Castille’s testimony that the construction of the 17th Street Canal caused a lowering of the rate of erosion after 1872; as well as various other exhibits showing the “restaurant property” as dry land in the 20th century. Among these 19th century government surveys was a “Map of the Property of The State of Louisiana” signed by the then-Chief State Engineer. It showed the “restaurant property” on dry land when measured both by the original 1837 survey of Lake Pontchartrain’s shoreline, as well as the lake’s shoreline in 1915. Furthermore, the weight of the evidence suggests that Sid-Mar’s “restaurant property” is south of the shoreline of Lake Pontchartrain as surveyed in 1872. First, the legal description of the “restaurant property,” as alleged in Sid-Mar’s petition, places the 1872 shoreline at a point on the northern boundary of the “restaurant property.” Second, several maps in the record show that the area alleged to be the “restaurant property” lays just south of the 1872 survey line showing the shoreline. Furthermore, several photographs showing Sid-Mar’s Restaurant in operation, dated from the 1980s through the early 2000s, showed the “restaurant property” occupying dry land.

|2nHaving considered the evidence in the record, we find that there was sufficient evidence in the record for the trial court to reasonably find that the “restaurant property” was not a former lake bed. Given our conclusion that the trial court did not manifestly err in this finding, we now address the State’s second assignment of error.

Assignment Two

In its second assignment of error, the State argues that the trial court erred in failing to find that Sid-Mar’s could not have gained ownership of the “restaurant property,” except to Lots 1 and 2 within it, through acquisitive prescription because the entirety of the “restaurant property” was owned by the PLD and acquisitive prescription does not run against the PLD. To resolve this claim, we carefully examine the sequence of events that relate to the PLD’s potential claims to the Lots which comprise the “restaurant property:”

• On April 9, 1947, Mr. and Mrs. Shultz bought Lots 1, 2, and 3 from Isabella A. Hunter and Wishart Hunter.
• On March 24, 1949, the PLD Board of Commissioners enacted an appropriation resolution in connection with flood control projects. The area of land included in this appropriation resolution included all of the “restaurant property” now in dispute, as well as other lands.
• On May 10, 1950, Mr. Shultz sued the PLD over this appropriation, arguing that the PLD did not have the legal authority to take his property without just compensation.
• On June 20, 1960, the trial court in the Shultz suit rendered a “judgment in favor of plaintiff, Leroy C. Shultz, and against the defendant, Board of Commissioners for the Pontchartrain Levee District, in the [sum of $5,440.00] dollars, with legal interest ... from March 24, 1949.” In its accompanying reasons for judgment, the trial court explained that the PLD’s defenses for its appropriation were without merit, and that the parties had | ⅞1 stipulated to the $5,440.00 sum as compensation for Mr. Shultz’ property.
• On August 21,1961, the PLD executed a quit-claim deed in favor of Mr. and Mrs. Shultz of all of its rights in Lots 1 and 2, but not Lot 3.
• On January 23,1978, after the death of Mr. and Mrs. Shultz, a judgment of possession was entered in favor of their surviving heirs, Leroy J. Shultz and Ronald J. Shultz, giving them each a undivided ½ ownership interest in, inter alia, “Lots Nos. 1, 2, and 3 of Square 128....”
• On September 30, 1991, Leroy J. Shultz and Ronald J. Shultz sold Lots 1, 2, and 3, together with “any ownership or possessory interest or other right or claims that the [they] may have [had] on lands abutting or contiguous thereto,” to Sid-Mar’s Restaurant & Lounge, Inc.

In Delaune v. Bd. of Com’rs for Pontchartrain Levee Dist., 230 La. 117, 87 So.2d 749 (La.1956), the Louisiana Supreme Court recognized that the law used by the PLD for their appropriation, La. C.C. art. 665, did not by itself impose a servitude in favor of the PLD on lands that fronted a lake such as Lake Pontchartrain. Rather, at the time the PLD passed its appropriation resolution in 1949, La. C.C. art. 665 provided for a servitude on the shores of navigable rivers. In light of the Court’s decision in Delaune, the PLD recognized that its previous resolutions appropriating the Shultzs’ land were illegal because they had not been done with valid authorization. The PLD thereafter paid the Shultzs for Lots 1, 2, and 3. The record indicates that the Shultzs and the PLD stipulated to the price the PLD would pay for these lots.

As shown above, the PLD’s 1949 appropriation of the “restaurant property” was illegal because it took the Shultzs’ land without just compensation. While there is evidence to show that the PLD paid for Lots 1, 2, and 3, there is no evidence to show that the PLD ever paid for the other portions of lots which | ¡.¡.comprised the “restaurant property,” portions of Plane Street, Lot 4, and Lots 19 through 24.

Accordingly, we find no error in the trial court’s conclusion that plaintiffs could own via acquisitive prescription the portions of Lot 4 and Lots 19 through 24 which comprised the “restaurant property.” Additionally, because the PLD sold its interest in Lots 1 and 2 to Sid-Mar’s predecessors in title, Sid-Mar’s had acquisitive prescription run in its favor as to those lots as well. Because the PLD validly paid Sid-Mar’s predecessors in title for Lot 3, and then never sold Lot 3 or otherwise alienated it, the PLD validly owned Lot 3 and Sid-Mar’s could not acquisitively prescribe ownership of that lot. Accordingly, this assignment of error is without merit.

Sidr-Mar’s Answer

Sid-Mar’s answered the State’s appeal arguing that this Court should clarify the trial court’s judgment as it relates to Lot 4 of Square 128, the “Plane Street” area just north of Square 128, and the leased parking lot north of the “Plane Street” area. For the following reasons, we grant the relief Sid-Mar’s seeks.

In its written judgment, the trial court found that Sid-Mar’s owns:

all of the property at issue in this litigation identified as ‘Restaurant Property' except for Square 128, Lot 3.... Specifically, plaintiffs proved ownership of Lots 1 and 2 through chain of title and portions of Lots 19, 20, 21, 22, 23, and 24 of Square 128 through thirty year acquisitive prescription.

In determining the meaning of this judgment, we must ascertain whether the property at issue in this litigation identified as “restaurant property” included the portion of Lot 4 which Sid-Mar’s and the Shultzs possessed. In its petition, Sid-Mar’s described its “restaurant property” as a parcel of land it described as:

Commencing at the comer common to Sections 120 & 192, Township 12 South, Range 11 East, Parish of Orleans, State of Louisiana; thence S 82°47'04" W for a distance of 701.09 feet to a point on the 18721 ¡jjjG.L.O. Meander line on the shore of Lake Pontchartrain. Thence N 85°55'05" W for a distance of 84.85 feet to the point of beginning. Thence N 86°20'42" W for a distance of 198.00 feet to a point, thence S 00°42'29" E along a chain link fence, for a distance of 129.20 feet to a point, thence N 84°50'35" E along a chain link fence, for a distance of 67.66 feet to a point. Thence N 74°37'36" E along a chain link fence, for a distance of 69.65 feet to a point. Thence S 86°20'42" E for a distance of 55.46 feet to a point. Thence N 03°39'18" E for a distance of 95.75 feet to a point, being the point of beginning.

After studying this description, and examining the maps attached to Sid-Mar’s petition, we find that the portion of Lot 4 which is. encompassed by the above description, and the Plane Street area which abuts Square 128 on its north side, are within the definition of the “restaurant property” as that term was used in the trial court’s judgment. Accordingly, we find that the trial court did not fail to rule on the ownership status of this portion of Lot 4 and Plane Street; rather, it simply failed to mention those areas specifically. Just as it did with Lots 19 through 24, Sid-Mar gained ownership of the portion of Lot 4 and the Plane Street area which was within the “restaurant property” through thirty year acquisitive prescription.

As to Sid-Mar’s “economic rights” in the area north of Plane Street which it leased for its parking lot, we find that the trial court did not render judgment. However, given the complete record before us after the trial on the merits, we find that Sid-Mar’s claim has merit. Sid-Mar’s did not possess this leased land as its owner, therefore Sid-Mar’s did not obtain ownership of this land through acquisitive prescription. Nevertheless, Sid-Mar’s did . have an “economic right” in its lease and it is clear from the record that its lease was interfered with by the State’s 2006 commandeering of that property.

\ ^CONCLUSION

For the forgoing reasons, we affirm the judgment of the trial court as it relates to the “restaurant property.” Sid-Mar’s owned the entirety of the property it described as the “restaurant property,” except for the portion of that property within Lot 3, when the State took that property in 2006. Further, Sid-Mar’s “economic rights” in the area north of Plane Street were interfered with by the State’s 2006 commandeering of that property.

AFFIRMED AS AMENDED.

      . On September 8, 2006, the State filed a dilatory exception of prematurity. Although it is not clear from the record before us, it appears that this exception was either waived by the State or denied by the trial court.

      . The trial court’s order, allowing the EJLD to intervene in this action, rendered moot the State's July 16, 2009 exception of nonjoinder. In that exception, the State had argued that the EJLD was a necessary party in this case because the EJLD had an ownership interest in the property Sid-Mar's claimed in its petition.

      . One day before a scheduled hearing on Sid-Mar's June 5, 2009 motion for partial summary judgment, the United States filed a motion in the federal condemnation suit, to stay the state court proceedings in this case. The United States argued that a stay was necessary to aid and protect the federal court’s jurisdiction. The U.S. District Court agreed and, on July 21, 2009, enjoined Sid-Mar’s from prosecuting this state court suit until authorized by the federal court. Sid-Mar's appealed this ruling. On appeal, the U.S. Fifth Circuit affirmed the U.S. District Court’s order staying the state court proceedings. U.S. v. Sid-Mars Restaurant & Lounge, Inc., 644 F.3d 270 (5th Cir.2011).
      On December 18, 2012, the U.S. District Court granted Sid-Mar’s motion to allow the Louisiana court to determine state law issues related to the ownership of property disputed in this matter, and lifted the stay on state court proceedings "for the limited purpose of determining title."

      . Previous to this judgment, on February 22, 2013, the trial court held a hearing on Sid-Mar's January 15, 2013 motion for partial summary judgment.

      . In its oral reasons for denying the State’s March 5, 2013 motion for partial summary judgment, the trial court cited the "dispute about where the applicable shoreline is, [and] the effect of the Pontchartrain Levee District’s appropriation from Mr. Shultz."

      . At this location, Sid-Mar's Restaurant had the municipal address of 1824 Orpheum Avenue.

      . During this time period, Sid-Mar's also used an area north of the "restaurant property” for customer parking. This parking area was on and just north of where planning maps indicated “Plane Street” should be located. Ownership of the parking area north of the "restaurant property” is not at issue in this appeal.

      .Executive Order No. KBB-2006-6 "commandeered” property, such as Sid-Mar’s, by the following text:

        Section 1: The state of Louisiana hereby commanders the use of certain property located in the parish of Jefferson, state of Louisiana, Section 121 and 122, Township 12 South, Range 11 East, and land extending north into Lake Pontchartrain, containing approximately 10.2 acres, as shown on the attached map (Exhibit A) entitled "Lake Pontchartrain and Vicinity, New Orleans Plan, Emergency Restoration, 17 th Street Canal Interim Closure Structure, Exhibit A” and dated January, 2006.
      Section 2: Said property shall be used for work that will include levee and floodwall construction and repair, constructing [sic] an interim gated closure structure north of the Hammond Highway Bridge, miscellaneous clearing and selective demolition of damaged flood control works, ... including the right to ... perform any other work necessary and incident to the construction of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Project, 17 th Street Outfall Canal Interim Closure Structure, and any appurtenances....
      Section 3: The state of Louisiana has commandeered the real property interests for the property required by the Department of the Army as indicated on the attached map (Exhibit A). Said property is commandeered pursuant to R.S. 29:721, et seq. Said owners of the property so commandeered shall be identified and compensated in accordance with the terms of the Cooperation agreement Between the United State of America and the Orleans Levee District for Rehabilitation of a Federal Hurricane/Shore Protection Project executed on October 21, 2005, as supplemented by Supplemental Agreement No. 1, dated January 27, 2006, and as further supplemented by Supplemental Agreement No. 2, dated January 27, 2006.

      . We have addressed these assignments of error in reverse order for the sake of clarity of reasoning.

      . Mr. D’Angelo performed this work on behalf of the State Land Office.

      . Dr. Castille testified that this subsidence of the land occurred at relatively slower rate than land inside the levee protection system.

      . This 1872 line is referred to as the ''G.L.O.” meander line.

      . The PLD also enacted an appropriate resolution on December 7, 1948.

      . The resolution stated that the PLD appropriated "all lands between the levee right of way limits on the shores of Lake Pontchartrain in Jefferson Parish and the water's edge on the Lake side of Lake Pontchartrain.”

      . Mr. Shultz’s suit and the resulting judgment also affected his ownership status over Lot 5. We omit discussion of that Lot however as it is not a part of the "restaurant property” now in dispute.

      . Mr. and Mrs. Shultz paid $4,005 to the PLD for all of the PLD’s ownership rights in Lots 1 and 2.

      . Sid-Mar's did not own the "restaurant property” outside of Lots 1 and 2 of Square 128 through valid title.

      . Sid-Mar's economic right in' the parking lot it leased is not contingent upon its lessor having-valid ownership of the leased land.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    Bamela Jerome KOUSSANTA v. Tomeca Renee DOZIER.
    No. 14-CA-59.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Roland A. Ditta, Attorney at Law, Gret-na, Louisiana, for Plaintiff/Appellant.
    Barbara J. Ziv, Esther J. Greenbaum, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKS HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Plaintiff seeks review of the trial court’s judgment granting defendant’s exception of no cause of action and dismissing plaintiffs Motion to Modify Custody and Visitation Judgment without prejudice. For the following reasons, we affirm.

Facts

Plaintiff, Mr. Koussanta, and defendant, Ms. Dozier, who were never married, are the parents of a child born on September 80, 2008. The couple separated shortly before the child’s first birthday, and Ms. Dozier sought child support through the State of Louisiana, Department of Children and Family Services, in the juvenile court. That court ordered Mr. Koussanta to pay child support to Ms. Dozier. Soon thereafter, Mr. Koussanta filed a Petition for Custody in the 24th Judicial District Court seeking equal, shared custody of the child and domiciliary parent status. Ms. Dozier responded with a Rule to Establish Custody, requesting joint custody of the child, domiciliary parent status, and a custody evaluation. After a trial on the merits, on November 14, 2011, the trial court entered a judgment awarding Mr. Kous-santa and Ms. Dozier joint custody of their |sminor child, with Ms. Dozier being designated the domiciliary parent and Mr. Koussanta being awarded unsupervised, overnight custody/visitation of the child every other weekend as set forth in the judgment. The judgment further ordered that Mr. Koussanta complete six months of weekly therapy and attend co-parenting classes.

On July 25, 2012, Mr. Koussanta filed a Rule for Contempt and a Request for a Modification of Visitation seeking increased visitation, asserting that he complied with the court-ordered therapy and counseling. The rule was tried on February 4, 2013, over Ms. Dozier’s exception of no cause of action. In addition to the parties, numerous witnesses testified, including Mr. Koussanta’s therapist, the parties’ co-parenting counselor, the court-ordered anger management counselor, and the child’s pre-kindergarten teacher. Numerous exhibits were admitted. In its February 25, 2013 judgment, the trial court awarded Mr. Koussanta one additional overnight visit with the child per week and revised the parties’ previous holiday and summer custody schedule. The trial court further ordered that the minor child attend counseling, recognizing that the child was having disciplinary issues at school.

Approximately four months later, on June 14, 2013, Mr. Koussanta filed a Motion to Modify Custody and Visitation Judgment seeking designation as primary custodial parent, subject to the specific visitation rights in favor of Ms. Dozier, or, alternatively, that the parties be awarded joint and shared custody, naming the parties eo-domiciliary parents. Mr. Koussanta’s request for modification of the February 25, 2013 judgment was based on allegations of the child’s' continued misbehavior at school; Ms. Dozier’s intention to transfer the child to a new school; Ms. Dozier’s inability to provide a stable home for the child; Ms. Dozier’s undermining of his parental authority; and Ms. Dozier’s failure |4to act in the child’s best interest by failing to communicate with the child’s pediatrician about his continued behavioral problems, refusing to treat a lip infection, and failing to place Mr. Koussanta on the child’s daycare emergency card and medical records. Mr. Koussanta also requested that the trial court change the child’s therapist, claiming that the child was not progressing under the present, court-appointed therapist.

On July 11, 2013, Ms. Dozier filed an exception of no cause of action, asserting that none of the allegations contained in Mr. Koussanta’s motion constituted a change in circumstances sufficient to meet the heavy burden imposed on him under Bergeron v. Bergeron, infra. After a hearing, on September 4, 2013, the trial court entered a judgment granting Ms. Dozier’s exception of no cause of action and dismissing Mr. Koussanta’s Motion to Modify Custody and Visitation Judgment without prejudice. Mr. Koussanta now appeals the trial court’s judgment granting the exception of no cause of action and dismissing his motion.

Law & Discussion

On appeal, Mr. Koussanta asserts his Motion to Modify Custody and Visitation Judgment sufficiently shows that a change in circumstances materially affecting the welfare of his child has occurred since the last custody judgment and therefore sufficiently states a cause of action. As such, Mr. Koussanta asserts that the trial court erred in granting Ms. Dozier’s exception of no cause of action.

Whether a plaintiff has stated a cause of action is a question of law. Rome v. Bruce, 09-155 (La.App. 5 Cir. 10/13/09), 27 So.3d 885, 888. Therefore, this Court is required to conduct a de novo review in determining whether the trial court was legally correct in granting the exception of no cause of action. Donelon v. Donelon, 95-088, (La.App. 4 Cir. 7/26/95), 659 So.2d 512, 513. An exception of |fino cause of action questions whether the law extends a remedy against the defendant under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719 (La.3/17/06), 929 So.2d 1211, 1217. In ruling on the exception, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition, accepting as true each well-pleaded fact in the petition. Id. Evidence may not be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

However, “[w]hen a trial court has made a considered decree of permanent custody, the party seeking a change bears the difficult burden of proving that the continuation of the present custody situation is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). (Footnote added).

Recognizing the dilemma presented by the burden set forth in Bergeron, supra, and the general rule that a cause of action should be maintained unless the plaintiff has no cause of action under any evidence admissible under the pleadings, this Court, in Menge v. Menge, 545 So.2d 674 (La.App. 5th Cir.1989), reasoned:

The heavy burden proclaimed in Berger-on was thus crafted to avoid the less than “imperative” action for change of custody, in order to protect the best interests of a child who is the subject of a custody dispute between his parents. Therefore, the usual tendency of the courts to maintain a cause of action, whenever possible, gives way to a stricter interpretation in actions to modify a considered decree of custody. Unjustified litigation, and threats thereof, and the consequences of interparental conflict being visited upon the child, are specifically discouraged by the Supreme Court in this particular area by the burden of proof enunciated in Bergeron.

|„/d at 676. Therefore, this Court held:

[I]n order to maintain a cause of action in a modification of a considered custody decree, the movant must allege some circumstances within the framework of Bergeron-thsA, is, movant must aver in at least general terms the continuation of the present custody is so deleterious to the child as to justify a modification, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Otherwise, the detrimental effects to the child caused by ‘unjustified litigation, threat of litigation or continued interparental conflict’ sought to be avoided by the rationale of Bergeron will not be avoided.

Id.

In this matter, the last custody decree, dated February 25, 2013, in effect at the time Mr. Koussanta filed his Motion to Modify Custody and Visitation Judgment, was entered after a trial during which testimony was taken and evidence admitted relevant to the continued joint custody of the child; thus it was a considered decree. As such, in order to modify the February 25, 2013 custody decree, the standard enunciated in Bergeron, supra, applies. Therefore, in order to defeat defendant’s exception of no cause of action, Mr. Koussanta’s motion must show a material change in circumstances and that the continuation of the present custody is so deleterious to the child as to justify a modification in custody. On de novo review of this matter, we find that the trial court properly granted the exception of no cause of action.

Although Mr. Koussanta’s motion to modify the custody decree sets forth several allegations in support of his assertion that a material change in circumstances has occurred, we find, as the trial court did, that many of those same allegations, mostly surrounding the child’s behavioral problems, already were [7brought before and considered by the court at the trial resulting in the February 25, 2013 custody decree. In granting the exception, the trial court stated,

And I’m of the opinion that most of the things listed in this motion to modify custody and visitation judgment, most of those things, those things have been litigated and I have made a decision. I am aware of the issues that [the child] had in school and that’s why I ordered that he receive counseling ... That’s why I ordered what I ordered and it appears that ... [the child] is, is doing better. ...
So I do feel that this motion to modify custody and visitation of judgment, I don’t think there’s a material change in circumstances. Things in here, I am already aware of....

Moreover, the last considered decree of custody was entered less than four months prior to Mr. Koussanta’s Motion to Modify Custody and Visitation Judgment, hardly enough time to allow the court-ordered counseling to benefit or address the child’s behavioral problems. Thus, the allegations in the petition do not aver that continuation of the present custody is so deleterious to the child as to justify a modification or that the harm caused by a change of environment is outweighed by its advantages to the child. Accordingly, Mr. Koussanta’s Motion to Modify Custody and Visitation Judgment fails to state a cause of action under Ber-geron, supra.

Decree

Considering the foregoing, the judgment of the trial court granting defendant’s exception of no cause of action is affirmed.

AFFIRMED.

      . On September 4, 2013, the trial court additionally denied Ms. Dozier's exception of res judicata. Ms. Dozier did not seek review of that ruling.

      . A trial court renders a considered custody decree when it makes an award of permanent custody after receiving evidence of parental fitness to exercise care, custody, and control of children. Rome, supra at 888, citing Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 738.

      . We reject Mr. Koussanta’s assertion that the February 25, 2013 judgment is not a considered custody decree, but a visitation decree. The February 25, 2013 judgment modified the joint custody arrangement of the parties. See La. C.C. art. 136, which states in relevant part that “[a] parent not granted custody or joint custody of a child is entitled to reasonable visitation rights.”


text:
    G R CONSTRUCTION & RENOVATION, LLC v. Alice and Edwin Keith WHITE.
    No. 2014-CA-62.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      E. Jeffrey Perilloux, Attorney at Law, Laplace, Louisiana, for Plaintiff/Appellee.
    Robert L. Raymond, Attorney at Law, Destrehan, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Pefendants appeal a default judgment rendered against them, and the award of attorney fees in connection therewith. For the following reasons, we affirm the default judgment awarding $51,025.84 to plaintiff, and we reverse the award of attorney fees.

FACTS AND PROCEDURAL HISTORY

Defendants, Alice and Edwin Keith White, are the owners of the property located at 183 Riverlands Drive in Laplace, Louisiana. In August of 2012, the Whites’ house was heavily damaged in Hurricane Isaac. Thereafter, Mr. and Mrs. White entered into a contract with plaintiff, G R Construction & Renovation, L.L.C. (“G R Construction”) for certain repair work to be performed for a total contract price of $153,077.52.

According to G R Construction, it performed the repair work provided for in the contract and was paid $102,051.68, but Mr. and Mrs. White failed to pay the remaining $51,025.84 due under the contract. On May 2, 2013, G R Construction filed a Statement of Privilege for the unpaid balance of $51,025.84 in the mortgage |srecords of St. John the Baptist Parish. The record shows that G R Construction also sent a letter to the Whites by certified mail notifying them that the Statement of Privilege had been filed and advising them that failure to pay the balance due would result in G R Construction filing suit against them. The return receipt shows that the letter was received and signed for by Alice White.

On June 25, 2013, G R Construction filed a “Suit to Enforce Lien” against Alice and Edwin Keith White, seeking the remaining balance of $51,025.84, plus interest, costs, and attorney fees. On July 17, 2013, G R Construction filed a Motion for Preliminary Default, asserting that Mr. and Mrs. White were served via personal service on June 27, 2013, and they did not file an answer or other responsive pleadings. The trial judge ordered entry of the preliminary default on July 18, 2013.

On August 1, 2013, the trial judge confirmed the default judgment. In connection with the confirmation, G R Construction introduced evidence in support of its claim, including the contract between the parties, the Statement of Privilege, two letters to the Whites from counsel for G R Construction, and the testimony of a representative of G R Construction, Jo Ann Robinson. The trial judge confirmed the preliminary default and rendered judgment in favor of G R Construction and against Alice and Edwin Keith White for $51,025.84, as well as legal interest, costs, and attorney fees in the amount of $5,000.00. The Whites appeal the default judgment rendered against them.

LAW AND DISCUSSION

On appeal, Alice and Edwin Keith White do not challenge the evidence in support of the default judgment. Instead, the Whites contend that the judgment against them is an absolute nullity because they were never served with the petition. They assert that Mr. White could not have been served at the address | ¿where service was requested, because he was not living in the family home when the lawsuit was filed or thereafter. They further argue that the judgment is null and must be set aside because the appellate record does not indicate service on either Alice or Edwin Keith White.

G R Construction responds that the trial court record does, in fact, contain service returns showing personal service on Edwin Keith White and domiciliary service on Alice White, both on June 27, 2013. They further assert that the service returns were omitted from the appellate record in accordance with Rule 2-1.11 of the Uniform Rules of the Courts of Appeal, and that the Whites should have requested that the service returns be included in the appellate record when they decided to argue insufficiency of service.

On April 17, 2014, this Court ordered that the Clerk of Court for the 40th Judicial District Court supplement the appellate record with copies of all of the service returns in the trial court record. On April 28, 2014, this Court received copies of the service returns as requested. As asserted by G R Construction in its appellee brief, the sheriffs service returns reflect that Edwin Keith White was personally served on June 27, 2013, and Alice White was served with domiciliary service on June 27, 2013, at 183 Riverlands Drive in Laplace, Louisiana.

Citation and service thereof are essential in all civil actions, except summary and executory proceedings, divorce actions under La. C.C. art. 102, and proceedings under the Children’s Code. La. C.C.P. art. 1201(A); Punctual Abstract Co., Inc. v. U.S. Land Title, 09-91, p. 5 (La.App. 5 Cir. 11/10/09), 28 So.3d 459, 462. A default judgment may not be taken against a person who has not received citation and service thereof. Collier v. Landry, 12-718, p. 3 (La.App. |s5 Cir. 4/10/13), 115 So.3d 31, 33. A judgment that is rendered when there is a vice of form, such as invalid service of process, is an absolute nullity. Barnett Marine, Inc. v. Van Den Adel, 96-1029, p. 7 (La.App. 5 Cir. 4/9/97), 694 So.2d 453, 456-457, writ denied, 97-1236 (La.9/26/97), 701 So.2d 983.

The usual procedure to annul a judgment is to bring a direct action in the trial court. La. C.C.P. art.2006; Fouchi v. Fouchi, 442 So.2d 506, 508 (La.App. 5 Cir. 11/9/83), writ denied, 445 So.2d 1235 (La.2/27/84). However, the jurisprudence has held that where the judgment at issue is an absolute nullity, it may be attacked in direct or collateral proceedings at any time and before any court. Id.; Lexington Insurance Co. v. Tasch, Inc., 12-339 at 10, (La.App. 5 Cir. 11/27/12), 105 So.3d 950, 956. In order for an appellate court to consider the merits of a collateral attack based on a vice of form, the defect raised must be apparent on the face of the record. See Fouchi, supra at 508-509.

In the present case, the service returns in the record reflect that Alice and Edwin Keith White received service of citation on June 27, 2013. Once a completed sheriffs service return is received by the clerk of court who issued it, the return shall be considered prima facie correct. La. C.C.P. art. 1292. Although the recitation on the return of the citation is presumed to be correct, this presumption is rebuttable. Tunnard v. Simply Southern Homes, L.L.C., 07-945, p. 3 (La.App. 1 Cir. 3/26/08), 985 So.2d 166, 169. The party attacking it bears the burden of proving its incorrectness by a preponderance of the evidence. Id.; Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90, 97.

Service was not challenged by the Whites until this appeal, so the record contains no evidence to rebut the presumption of correctness of the service return. Because the record before us contains pri-ma facie evidence that the Whites were properly served and there is no evidence of any defect in service that is apparent in 1 fithe record, we affirm the default judgment awarding $51,025.84, plus interest, to G R Construction.

Also on appeal, Alice and Edwin Keith White contend that the trial court award of $5,000.00 in attorney fees to G R Construction was improper, because there is no applicable statutory authority for awarding attorney fees in this case, and the contract between the parties does not provide for an award of attorney fees.

In response, G R Construction concedes that the assessment of attorney fees in this case was improper, and it acknowledges that the judgment should be amended as such.

Accordingly, based on the admission of plaintiff that attorney fees were improperly awarded in this matter, we reverse the trial court’s award of $5,000.00 in attorney fees to G R Construction.

DECREE

For the foregoing reasons, we affirm the default judgment awarding $51,025.84 to plaintiff, G R Construction, but we reverse the award of $5,000.00 in attorney fees.

AFFIRMED IN PART; REVERSED IN PART.

      . On May 12, 2014, Alice and Edwin Keith White filed a supplemental appellant brief, in which they assert that the "Keith White" who was allegedly served with process in this case was not one of defendants herein. Rather, they now claim that the person served was actually the son of defendants who is also named "Keith White.” There is no evidence in the record to support this assertion.

      . Because the Whites’ ground for nullity does not appear in the record, the proper forum for the Whites to attack the validity of the default judgment is the trial court, where evidence of the alleged nullity can be presented. See Fouchi v. Fouchi, supra at 508-509. See also La. C.C.P. arts.2005 and 2006, which allow an action for nullity to be filed in the trial court even after the judgment has been affirmed on appeal, where the ground for nullity did not appear in the record for appeal.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Patrick GEORGE.
    No. 2014-KA-53.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Angel G. Varnado, David M. Hufft, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Appellant, Patrick George.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

li>On appeal, defendant challenges his convictions for resisting arrest with force or violence. For the following reasons, we affirm his convictions, vacate his amended sentences, reinstate his original sentences, and remand to the district court with instructions.

Procedural History

On September 29, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Patrick George, with resisting a police officer with the use of violence or threats of violence, in violation of La. R.S. 14:108.2. On June 4, 2013, the State amended the bill of information to include a second count of resisting a police officer with the use of violence or threats of violence, in violation of La. R.S. 14:108.2.

On October 3, 2013, a six-person jury found defendant guilty as charged on both counts. On October 8, 2013, defendant filed a motion for new trial, which was denied by the trial court on October 10, 2013. On the same date, after waiving sentencing delays, the trial court sentenced defendant to three years in the custody of the Department of Corrections, on each count to be served concurrently. The trial court suspended defendant’s three-year concurrent sentences and ordered ^defendant to be placed on active probation for two years. The trial court further imposed a fine of $500.00 “plus costs.” Immediately thereafter, defendant filed a Motion for Appeal, which was also immediately granted by the trial court.

On October 21, 2013, in open court, defense counsel moved the trial court to defer defendant’s (already imposed) sentences under La.C.Cr.P. art. 893. The trial court granted defendant’s request. The trial judge then vacated defendant’s original sentences, resentenced defendant to three years imprisonment in the custody of the Department of Corrections, “deferred imposition of the sentence,” and pláced defendant on active probation for two years. The trial court further imposed a $500.00 fine. Defendant filed a second motion for appeal on October 23, 2013, which was granted by the trial court on the same date. The instant appeal follows.

Facts

On September 17, 2009, at 2:13 a.m., Deputy Renoid Berthelot of the Jefferson Parish Sheriffs Office (“JPSO”) was patrolling in a high crime area in Marrero when he observed the driver of a white Toyota driving northbound on Avenue I who was not wearing his seatbelt. Deputy Berthelot activated his overhead lights and initiated a traffic stop.

Before Deputy Berthelot was able to instruct the driver to exit his vehicle, however, the driver left his vehicle and approached Deputy Berthelot, waving his hands in the air and yelling about being stopped. Deputy Berthelot testified that he was alarmed by the driver’s actions because they were irregular for a minor traffic stop, and the area was known for crime.

^Deputy Berthelot immediately advised the driver to place his hands on the hood of the patrol unit so Deputy Berthelot could conduct a brief pat-down for officer safety due to the driver’s “aggressive nature.” Initially the driver complied and placed his hands on the patrol car, but continued “running his mouth, talking loudly.” After Deputy Berthelot positioned himself behind the driver and attempted to pat him down for weapons, the driver stiffened his arms and pushed his body off the patrol unit, launching himself into Deputy Berthelot’s chest, and nearly knocking Deputy Berthelot to the ground. Deputy Berthelot was able to regain his balance and push the driver forward onto the hood of his patrol unit. A struggle ensued but Deputy Berthelot was eventually able to secure the driver’s arm behind his back and place him in handcuffs.

At that point, two more Jefferson Parish Sheriffs Office Deputies — Brett LeBlanc and Anthony Venezia — arrived. Despite being handcuffed, the driver continued to struggle but, with Deputy LeBlanc’s help, Deputy Berthelot was able to place the driver in the backseat of his patrol unit.

Once inside the unit, the driver advised the deputies that his name was Derrick Bowman. He stated that he did not have a Louisiana driver’s license because he had recently moved here from Atlanta. Deputy Berthelot and the dispatcher conducted computer searches of federal and Louisiana databases, which revealed no listing for “Derrick Bowman.” Deputy Berthelot then issued a traffic citation for lack of insurance to the driver, “Derrick Bowman.”

Deputy Berthelot further advised the driver that he was under arrest for battery of a police officer. Upon learning that he was being arrested, the driver became “angry, violent, started thrashing and jumping around in the back seat ... [and] started kicking” the doors and windows of the police unit. Deputy Berthelot, who was concerned that defendant might injure himself, opened the back door of |fihis unit to retrieve defendant. When Deputy Ber-thelot opened the door, defendant kicked Deputy Berthelot in the stomach, knocked him to the ground, and attempted to escape. Deputy Venezia tried to subdue defendant but defendant kicked Deputy Venezia in the head. Deputy Berthelot attempted to assist Deputy Venezia and defendant also kicked him in the head. Eventually, Deputy Venezia was able to grab defendant in a “bear hug” in an attempt to subdue him.

While Deputy Venezia grappled with him, defendant grasped Deputy Venezia’s testicles and refused to release them. Eventually, Deputy Berthelot sprayed defendant with a single burst of pepper spray. When defendant continued his assault, Deputy Venezia retrieved his flashlight and struck defendant in the face, which caused him to release his grip. Defendant continued, however, to kick and “thrash” so Deputy LeBlanc restrained his feet with a nylon strap known as a “hobble restraint.”

Once defendant was restrained, deputies called paramedics to check for injuries to defendant before transporting him to jail. Scott Stein, an EMT paramedic for West Jefferson Hospital, testified that defendant was “very upset, very angry, spitting, [and] cursing.” Specifically, defendant spit at him and used profane, racial slurs. Defendant also told the EMTs that his name was “Derrick Bowman.” Defendant received medical treatment for minor injuries then he was taken into police custody.

Upon arrival at the jail, the nurse on duty advised Deputy Berthelot that defendant required additional medical attention and instructed him to transport defendant to University Hospital. While at University Hospital, defendant advised Deputy Berthelot of his actual name, which is Patrick George.

At trial, defendant testified that he was “unjustifiably beat by the police.” Defendant testified that he was driving his aunt’s car without her permission and |fiwithout a license so he was afraid he would be taken to jail and tried to avoid the officer. Defendant testified that, once he was stopped, Deputy Berthelot conducted an in-depth search of his person and threatened him with a Taser.

Defendant testified that Deputy Le-Blanc arrived, handcuffed him, and sat him in the back of Deputy Berthelot’s patrol unit. Defendant admitted that he gave the officers a false name because he was trying to avoid going to jail. Defendant denied kicking the windows while inside the police unit.

According to defendant, the officers then instructed him to exit the vehicle so Deputy Berthelot could pepper-spray him. Deputy Venezia then choked and tackled defendant and tightened the handcuffs around his wrists. Next, the officers placed defendant’s legs in plastic restraints so Deputy Venezia and Deputy Berthelot could take turns beating defendant with a flashlight. Defendant also testified that Deputy Berthelot pepper-sprayed him four or five times while he was on the ground. Defendant denied grabbing Deputy Vene-zia’s testicles. Finally, defendant testified that he was transported to University Hospital where the doctors found that he had minor facial fractures and lacerations.

After hearing the evidence and testimony, the six-person jury unanimously found defendant guilty as charged on both counts of resisting a police officer with force or violence.

Law and Argument

On appeal, defendant argues that the State failed to meet its burden of proving he violated La. R.S. 14:108.2. Specifically, defendant argues that the officers’ actions were outside of the scope of their official capacities; thus, his was an unlawful arrest, which can be lawfully resisted.

| ./Defendant contends that Officers Vene-zia and Berthelot were not acting in their official capacities when they “fondled, sprayed him with pepper spray,” and beat him “in the face with a flashlight,” prior to his arrest.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the standard is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11), 66 So.3d 1118,1122.

Rather, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.; Jackson, 443 U.S. at 319, 99 S.Ct. 2781; See also State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490, p. 3 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116, p. 2 (La.10/16/95), 661 So.2d 442, 443. The trier of fact shall evaluate credibility and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688 and 08-1951 (La.1/30/09), 999 So.2d 750.

|8In the instant case, defendant was charged and convicted of two counts of resisting a police officer with force or violence in violation of La. R.S. 14:108.2, which provides:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threatening force or violence toward a police officer performing any official duty.

At trial, the evidence showed that Deputy Berthelot was wearing an official uniform and driving a marked police unit when he stopped defendant at 2:13 a.m. in a high crime area for driving a vehicle without wearing a seatbelt. Defendant admitted that he knew Deputy Berthelot, who was dressed in full Jefferson Parish Sheriffs Office uniform and driving a marked Jefferson Parish Sheriffs Office patrol unit, was a police officer when he stopped him.

Further, the testimony of the State’s ■witnesses reflected that defendant struggled with Deputy Berthelot before he was placed in the back of the patrol unit. Then, after being informed that he was under arrest for battery of a police officer, defendant became aggressive and kicked both Deputies Berthelot and Venezia in the head. Defendant also grasped and refused to release Deputy Venezia’s testicles, until he was forcibly removed. Even after he was subdued, defendant | ncontinued to resist and potentially harm himself until he had to be restrained at the ankles. Finally, defendant continued to spit at the police officers and emergency medical technicians that were attending his medical needs.

Although defendant testified that the witnesses presented by the State at trial all “lied,” and that he was an innocent victim who was “unjustifiably beat by the police,” the six-person jury found the testimony of the State’s witnesses to be more credible. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297 (citation omitted). It is the fact-finder who weighs the respective credibility of the witnesses, and this Court will not reweigh those determinations. See, State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047,1051.

Therefore, after reviewing the record, we find that rational jurors, viewing the evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant was guilty of resisting two police officers with force or violence. Accordingly, we find that the evidence presented was sufficient to sustain defendant’s convictions. This assignment lacks merit.

Errors patent

Finally, pursuant to La.C.Cr.P. art. 920, we have reviewed the record for errors patent and found the following errors that require action.

First, defendant’s sentences imposed on October 21, 2013 must be vacated. In this case, the trial court originally sentenced defendant on October 10, 2013 to concurrent three-year sentences, suspended those sentences, and placed defendant on active probation for two years. Immediately thereafter, defendant filed a Motion for Appeal, which the trial court granted.

110Despite the fact that sentence had already been imposed and no written motion to reconsider had been filed in this case, defense counsel, in open court, on October 21, 2013, requested that the trial court defer defendant’s sentences under La. C.Cr.P. art. 893. The trial court thereafter vacated defendant’s original sentences, sentenced defendant to concurrent three-year sentences, deferred imposition of the sentences, and placed defendant on active probation for two years.

Under La.C.Cr.P. art. 916, after the first order of appeal was signed, the trial court was divested of jurisdiction to set aside or amend defendant’s sentence. See, State v. Stephens, 438 So.2d 203 (La. 1983) (trial court is divested of jurisdiction to amend a sentence once the order of appeal is signed, except to correct an illegal sentence or to reduce a legal sentence under certain circumstances).

In this case, defendant’s sentences pronounced but deferred on October 21, 2013 are without effect as the trial court lacked jurisdiction to vacate and amend defendant’s sentences, after defendant’s motion for appeal was granted on October 10, 2013. Accordingly, defendant’s sentences of October 21, 2013 are vacated and defendant’s original sentences of October 10, 2013 are reinstated.

Next, with respect to defendant’s original sentences that were imposed on October 10, 2013, we note that the necessary probation form was not completed and filed at the time of defendant’s original sentencing, as required by La.C.Cr.P. art. 895.1. Accordingly, this matter is remanded for imposition of probation conditions consistent with La.C.Cr.P. art. 895.1. State v. Harris, 93-1098 (La.1/5/96), 665 So.2d 1164.

Finally, we note that, although the commitment reflects that defendant was properly advised of the time period for seeking post conviction relief as required by La.C.Cr.P. art. 930.8, the sentencing transcript indicates that the trial court failed Into give such an advisal. When there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La.C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post conviction relief by means of its opinion. State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La. App. 5 Cir. 6/28/12), 97 So.3d 522, 538; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Accordingly, we advise defendant, by way of this opinion, that no application for post conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

CONVICTIONS AFFIRMED; DEFERRED SENTENCES VACATED; ORIGINAL SENTENCES REINSTATED; MATTER REMANDED.

      . See Errors Patent discussion, infra.

      . Deputy Berthelot testified that he was dressed in full patrol uniform and driving a fully-marked Jefferson Parish Sheriff's Office vehicle at the time in question.