text:
    SUCCESSION OF Gerald P. BEGNAUD Sr.
    No. 13-232.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      David Lafargue, Lafargue Law Office, Marksville, LA, for Appellants: Gerald P. Begnaud Jr., Charleen Begnaud Gremil-lion.
    Kerry L. Spruill, Marksville, LA, For Appellee: Peggy Begnaud.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liThe children of the deceased, Gerald P. Begnaud (Gerald), appeal the trial court’s ruling in favor of their stepmother, Peggy Begnaud (Peggy), allowing her to be interred in the family cemetery existing next to the family home of which they are the naked owners. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Gerald died testate on June 16, 2011. Gerald was first married to Katherine Harper Begnaud, the mother of the appellants, Gerald Begnaud, Jr. and Charleen Begnaud Gremillion (collectively referred to as “the children”). Gerald then married Peggy in 1991, but they divorced on April 29, 2002. However, Gerald and Peggy remarried on October 6, 2010.

Gerald filed an application for a family burial ground on March 12, 2010, in the presence of a notary public. Gerald was listed as owner and Peggy signed the application as “an additional family member.”

In June 2012, the children filed a partial judgment of possession and a rule to show cause. Peggy filed a rule to show cause pertaining to the partial judgment’s exclusion of the Begnaud Cemetary in the detailed descriptive list. The trial court issued a judgment on the rule in August 2012, recognizing the children as the owners of the burial ground, subject to Peggy’s right to visit and maintain the Beg-naud Cemetary and the parties’ rights to litigate issues relating to interment in the cemetery.

Peggy filed a petition for declaratory judgment seeking judicial recognition of her right to be buried in the Begnaud cemetery next to her husband. Although the parties were able to settle various disputes regarding other immovable and 12movable property, the parties were unable to agree on Peggy’s right to be interred in the family cemetery.

Following a November 2012 trial, the trial court issued written reasons for ruling on December 13, 2012, and granted Peggy’s motion for declaratory judgment on December 19, 2012. The children now appeal and assign as error the trial court’s grant of a declaratory judgment in favor of Peggy awarding her interment rights in the family cemetery.

DISCUSSION

The trial court noted that this represents a novel issue. It found that the Begnaud cemetery was a family burial ground pursuant to La.R.S. 8:1(22); that Peggy signed the application for the family burial ground as an “additional family member;” and that, at Gerald’s death in June 2011, Gerald and Peggy were “family.” The trial court concluded that Peggy “shall be admitted to the Begnaud cemetery upon her death.” We find no error in this ruling.

Louisiana Revised Statute 8:803, titled “Descent of title to cemetery space,” states:

Except as herein otherwise provided, every right of interment and cemetery space shall be subject to the laws of Louisiana pertaining to community property, inheritance, including but not limited to the laws of intestacy, donations inter vivos and mortis causa, and successions.

Gerald’s October 5, 2004 last will and testament stated in part:

2.
I give, willf,] devise, grant and bequeath to Peggy Cunningham Begnaud the right to live in the family residence which we have shared together at Highway 105, Simmesport, Louisiana, until her death. I further, give, will, devise, grant and bequeath to Peggy Cunningham Begnaud the sum of $1,000.00 per month for the balance of her life which monies are to be used to run the house which includes payment of all utilities, telephone and yard expenses. This right of habitation and the monthly payments shall terminate in the |sevent that Peggy Cunningham Begnaud should vacate the family residence for a period of 60 consecutive days or fails to use the family residence as her primary residence.
2. [sic]
I give, will, devise, grant and bequeath the balance of my property which I may own at the time of my death, of every nature, kind and description, to my two children equally, namely, Gerald P. Begnaud, Jr. and Charleen Begnaud Gremillion.

The will further appointed the children as co-executors of Gerald’s estate.

Louisiana Revised Statute 8:1(22) defines a family burial ground as a “cemetery in which no lots are sold to the public and in which interments are restricted to a group of persons related to each other by blood or marriage.” Louisiana Revised Statute 8:806 states:

When the record title to a cemetery space or right of interment is in the names of two or more persons, each shall be considered as having a vested right therein and no conveyance or other disposition of said space or right shall be recognized without the written concurrence of each said record owner, but each owner shall have the right of interment in any unoccupied portion of the cemetery space at the time of death.

Peggy testified that she and Gerald commenced living together in 1983 and married in 1991. Peggy and Gerald divorced in 2002. Peggy said that she and Gerald physically separated for about a year-and-a-half, then resumed cohabitat-ing, and eventually remarried on October 6, 2010. They remained married until Gerald’s death.

Peggy admitted that the house was Gerald’s separate property; that the land on which it is situated was his separate property; and that pursuant to a prenuptial agreement executed before the first marriage in 1991, the house and surrounding land remained his separate property. She further admitted that, at the time the application for the family burial ground was submitted, she and Gerald were not |4married, nor were they married at the time the cemetery space was dedicated on January 5, 2010; however, she said that they were living together.

Peggy recounted the conversation she had with Gerald regarding the family cemetery. Peggy testified that at Gerald’s behest, she contacted Mike Kelly, an attorney, regarding the formation of the family cemetery for them. Peggy discussed the “Application for Family Burial Ground” that was filled out by Gerald and submitted to the Louisiana Cemetery Board. Gerald signed the form as the owner and Peggy signed above the area designated “Additional Family Member’s Signature/Relationship.” Peggy then reviewed the “Act of Dedication” describing the land adjacent to the house to be used as a family cemetery. Peggy described it as being in the backyard. Peggy stated that Gerald wished for her and their poodle, Tootie, to be buried next to him. Peggy constructed her and Tootie’s vaults after Gerald’s death. She admitted that she did not request the children’s permission to erect her or Tootie’s vaults. A photograph submitted into evidence shows Gerald’s vault and Peggy’s vault with Tootie’s vault situated in the middle. Tootie, who died two months after Gerald, has been buried in the cemetery.

Charleen Gremillion testified that she discussed with her father his wishes regarding the cemetery plot prior to his death. She said it was always understood that Peggy would go back to Tennessee to be buried with her family. Charleen stated that her father kept Peggy “at arm’s length” and kept his property separate. She noted that no one is listed on the “Application for Family Burial Ground” under item number six that states “list the name, business address and residence address of each owner and one additional family member(s).” Further, at the time Peggy signed the application she did not list her relationship to the owner, as she and Gerald were divorced at the time.

1 ¿Gerald Jr. testified that he regularly spent time visiting with his father and Peggy. He acknowledged that they were physically together except for a brief period of separation.

There is no dispute that the children are the current owners of the cemetery. This case presents an interesting issue regarding a property owner’s rights versus a spouse’s right to be buried in a family burial ground, even if the spouse is not a part owner of the underlying ground.

Although there is no jurisprudence on this issue, a spousal preference exists in other areas involving the right to control interment. For example, La.R.S. 8:655 gives a surviving spouse preference over the adult surviving children in controlling interment of the deceased when a written and notarized document does not instruct otherwise and an action for divorce has not been filed prior to death. See also La.R.S. 8:659. Similarly, we find that the legislature intended to give a surviving spouse a preferential right to be interred in the family burial ground. Although La.R.S. 8:1(22) does not expressly confer the right to interment, it presupposes that those who are family, by either blood or marriage, of the owner have a right to buried there. Legally, as a relative by marriage to the former owner, Gerald, Peggy has the right to be interred in the cemetery pursuant to the plain language of La.R.S. 8:1(22).

Furthermore, there is no manifest error in the trial court’s finding that Gerald intended for Peggy to have the right of interment in the family cemetery. The fact that Peggy and Gerald were together for over twenty-five years is undisputed. They married each other twice. Peggy’s participation in the joint application for the burial ground, Gerald’s inclusion of her signature on the document, his bestowal of a usufruct to Peggy over the adjacent home, and his remarriage to RPeggy, are evidence of Gerald’s intent to also bestow upon Peggy an interment right near him in the family cemetery. Further evidence of his intent is in the testimony of a friend who said she heard many conversations in which Gerald expressed his desire that Peggy be buried next to him.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Gerald Begnaud, Jr. and Charlene Gremillion.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. David Thomas SCHWARZ.
    No. 13-255.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.
    See also — So.3d -, 2013 WL 5539306.

      John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for appellee State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for defendant/appellant David Thomas Schwarz.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

h The Defendant, David Thomas Schwarz, was charged by indictment filed on March 18, 2011, with aggravated rape, a violation of La.R.S. 14:42. The Defendant entered a plea of not guilty on March 23, 2011. On May 7, 2012, the charge of aggravated rape was amended to forcible rape, a violation of La.R.S. 14:42.1. The Defendant then entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On July 30, 2012, the Defendant was sentenced to ten years at hard labor with two years to be served without benefit of probation, parole, or suspension of sentence, to run concurrently to the sentence imposed in trial court docket number 11023-11. A motion to reconsider sentence was filed on September 4, 2012, and was denied on September 17, 2012. A motion for appeal was filed on October 16, 2012, and was subsequently granted.

The Defendant is now before this court asserting the trial court erred in allowing Donna Fruge Ross to present a victim impact statement. This assignment of error lacks merit.

FACTS

On January 25, 2011, the Defendant was employed at the Calcasieu Multi-Handicap Center in Vinton, Louisiana. On that date, the Defendant engaged in anal sex with the twenty-four-year-old victim who was a resident of the center. The victim was incapable of resisting or understanding the nature of the act because of his abnormal condition. During the commission of the act, someone walked into the room.

J^ERRORS PATENT

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

ASSIGNMENT OF ERROR

The Defendant contends the trial court erred in allowing Donna Fruge Ross to present a victim impact statement.

Louisiana Revised Statutes 46:1844(k) provides for the consideration of victim impact statements by the victim or a designated family member to be present and heard at all critical stages of the proceedings, including the sentencing stage. Louisiana Revised Statutes 46:1842(11) defines a family member as including “a spouse, parent, child, stepchild, sibling, or legal representative of the victim, except when the person is in custody for an offense or is the defendant.”

At the sentencing hearing, the State informed the trial court that Ross would like to speak on behalf of the victim. Defense counsel asserted it was not proper for Ross to give victim impact testimony, as it was beyond the scope of Title 46. The State claimed Ross was a legal advocate recognized by the Attorney General’s Office. The trial court subsequently allowed Ross to testify at the sentencing hearing.

Ross testified that she was certified through the Attorney General’s Office to be the ombudsman for all forty-two group homes in Region V. Thus, she was the voice for the residents living in those homes. Ross informed the trial court that the victim was nonverbal. She also informed the trial court that the victim was autistic, profoundly retarded, and depended on others to dress, feed, and bathe him. Ross further indicated that the victim was hospitalized in the “psych unit” as a result of the Defendant’s actions. Ross subsequently asked the trial court to impose the maximum sentence.

1:3After Ross’s testimony, defense counsel restated his objection, cited State v. Behrnes, 97-179 (La.App. 1 Cir. 12/29/97), 706 So.2d 179, and alleged the trial court’s consideration of Ross’s testimony was reversible error. The trial court overruled the objection and found Ross was the victim’s legal representative because he could not speak for himself.

The Defendant argues that Ross presented no evidence to prove she was appointed as a legal representative of the victim. The Defendant then cites Behmes. In Behmes, the defendant was convicted of forcibly raping his stepdaughter. On appeal, the defendant argued the trial court erred in allowing his two daughters to give statements concerning offenses allegedly committed against them by the defendant. The first circuit found the trial court erred in permitting testimony from the victim’s stepsisters because this class of relatives was not enumerated in La.R.S. 46:1842. The first circuit then found this error by itself “may be harmless.” Id. at 182. However, it constituted reversible error when coupled with the trial court’s refusal to permit the defendant to rebut the statements at issue.

The Defendant in the case at bar argues that any error in allowing Ross to make a victim impact statement was not harmless error. The Defendant claims Ross’s request that he receive the maximum sentence and her appeal to the trial court’s sense of justice by asking that he serve as an example for people looking to work in care facilities was very damaging to his chances of getting a lesser sentence. The Defendant contends the trial court’s failure to adhere to the language of La.R.S 46:1842(7) requires that his sentence for forcible rape be reversed and the matter be remanded for resentencing.

The State contends the victim’s family designated Ross as the speaker for the family. The State notes that legal representative is not defined in La.R.S. |446:1842 and argues that Ross was a legal advocate. The State argues that because Ross is the victim’s representative in other situations, it would stand to reason that would also apply in the criminal context. The State further argues that Ross’s statement was necessary for the trial court to formulate a sentence under La.Code Crim.P. art. 894.1, as she provided information regarding the Defendant’s knowledge of the victim and the victim’s condition. The State points out that the trial court noted the victim’s mother was too upset to provide valuable information. Additionally, the victim could not speak for himself.

The State asserts that, assuming Ross’s statements were improper, the error was harmless because the trial court questioned counsel, the witnesses, and took the Defendant’s background into consideration before sentencing him.

In State v. Gomez, 00-566, 00-677 p. 7 (La.1/17/01), 778 So.2d 549, 554, the supreme court stated: “the legislature has not expressly authorized testimony from mental health professionals as part of a victim-impact statement at sentencing in any criminal case. La.R.S. 46:1844(K).” Although Ross is not a mental health professional, we find Gomez to be helpful in its determination of whether Ross, an ombudsman or advocate for the disabled, should have been allowed to testify.

Based on the definition of a family member set forth in La.R.S. 46:184, 46:1842 2(11), the ruling in Behrnes, 706 So.2d 179, and the supreme court’s remarks in Gomez, IIS So.2d 549, we find that Ross was impermissibly allowed to speak at the Defendant’s sentencing hearing. However, we find this error was harmless in light of the fact that the State asked the trial court three times to impose the maximum sentence and the fact that the Defendant was sentenced to serve ten years when he was facing a possible sentence of five to forty years. La.R.S. 14:42.1.

For these reasons, we find this assignment of error lacks merit.

I ¿DISPOSITION

The Defendant’s conviction and sentence for forcible rape are affirmed.

AFFIRMED.

      . The appeal in trial court docket number 11023-11 is before this court in appellate docket number 13-254.

      . This matter was consolidated for briefing purposes with appellate docket number 13-254. Assignment of error number two will be addressed in that docket number, as it pertains solely to the offense committed therein.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Jean-Luc ARISME.
    No. 13-269.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Alvin D. Hunt, Lake Charles, LA, for Defendant/Appellant Jean-Luc Arisme.
    John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee State of Louisiana.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| T In this criminal case, Defendant, Jean-Luc Arisme, entered a Crosby plea to the amended charge of possession of marijuana with intent to distribute in connection with a traffic stop. He was given a five-year suspended sentence with special and general conditions of probation. Defendant’s guilty plea was entered after the denial of his motion to suppress the marijuana, and he reserved his right to appeal all matters pertaining to his motion to suppress. Defendant is appealing only his conviction pursuant to the trial court’s denial of his motion to suppress. For the following reasons, we affirm Defendant’s conviction, but remand this matter to the trial court to correct two errors patent.

FACTS AND PROCEDURAL HISTORY

On July 21, 2010, Defendant was observed driving a motor vehicle on Interstate 10 in Calcasieu Parish by Sergeant Stuart Henderson (Officer Henderson) of the Calcasieu Parish Sheriffs Department. Defendant was stopped and questioned by Officer Henderson due to improper lane usage (signal violation) and dark tinted windows. Defendant’s vehicle had a Florida license plate and was an Enterprise rental car on which he was listed as an additional operator of the vehicle. Defendant had a passenger in the vehicle with him. The occurrence was videotaped via camera on Officer Henderson’s vehicle.

In speaking with Defendant, Officer Henderson became suspicious when Defendant was unable to provide the last name of his passenger, and he and the passenger gave conflicting accounts of their whereabouts on a recent trip to Houston, Texas. Officer Henderson also stated that he found it unusual and suspicious for a rental vehicle to have such dark tint on the front windows.

After his investigation, Officer Henderson issued a Notice of Violation to Defendant, returned his documentation to him, and advised him he was being | ^released as a courtesy. Immediately thereafter, Officer Henderson asked Defendant for permission to search the vehicle. According to the audio and video recording of the stop, Defendant seemingly refused. Following Defendant’s apparent refusal, Officer Henderson retrieved his drug dog from his vehicle, and the dog alerted to a narcotic odor emitting from the rear of Defendant’s vehicle. Approximately sixty pounds of marijuana were found in a suitcase in the trunk of the vehicle. Both Defendant and his passenger were arrested.

On November 18, 2010, Defendant was charged by bill of indictment with one count of possessing 60 to 2000 pounds of marijuana, a violation of La.R.S. 40:966(F)(1). Defendant entered a plea of not guilty to the charge and subsequently filed a motion to suppress the evidence seized as a result of the warrantless search of his vehicle. The trial court heard the motion to suppress, at which hearing defense counsel waived Defendant’s presence. The trial court denied the motion. Thereafter, the State amended the charge against Defendant to possession of marijuana with the intent to distribute. Defendant entered a Crosby plea to the amended charge, reserving his right to appeal “all matters pertaining to those motions to suppress.” The trial court accepted Defendant’s guilty plea and sentenced him to five years.

The trial court suspended the sentence and placed Defendant on three years of probation with the following conditions of probation: 1) register with probation and parole and pay a “$60 monthly visit fee and $75”; 2) be subject to random drug screening; 3) maintain all of the conditions set forth in La.Code Crim.P. art. 895; and, 4) pay a $250.00 fee to the Southwest Louisiana Crime Lab. |3Additionally, the trial judge authorized Defendant’s probation to be transferred to Tallahassee, Florida, provided Florida would accept his probation.

Defendant filed a timely Motion for Appeal and Designation of Record which was granted by the trial court. Defendant is now before this court, alleging trial court error in its denial of his motion to suppress.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note two errors patent.

First, as a condition of probation, the trial court ordered a $250.00 fee to the Louisiana Crime Lab, for which a payment plan was not established. In State v. Wagner, 07-127, pp. 7-8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held in pertinent part:

When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).
We view this procedure as no different from payment plans for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-3413 (La.5/26/00), 762 So.2d 1101 (restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board), and State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim’s fund, Indigent Defender Board, and District Attorney).
We, therefore, remand this case to the trial court for establishment of a payment plan for the fine, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.
14Similarly, the trial court’s ordering the payment to the crime lab fund during the period of probation is an insufficient payment plan. We also remand the case to the trial court for establishment of a payment plan for these costs, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.

This issue has been similarly resolved in other cases. See State v. La-Combe, 09-544 (La.App. 3 Cir. 12/9/09), 25 So.3d 1002, and State v. Snelling, 09-1313 (La.App. 3 Cir. 5/5/10), 36 So.3d 1060, writ denied, 10-1301 (La.12/17/10), 51 So.3d 16. Accordingly, we remand this case to the trial court for the establishment of a payment plan for the fee, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. See Stevens, 949 So.2d 597.

Next, according to the sentencing transcript, as a condition of the Defendant’s probation, the trial judge ordered that he “register with the probation and parole and pay $60 monthly visit fee and $75.” The court minutes and the Conditions of Probation form (signed by Defendant and a probation officer six days after sentencing) indicate that Defendant was ordered to pay a monthly fee of $75.00 to the Office of Probation and Parole with $60.00 designated for supervision and $15.00 for the technology registration fund. However, the form is not signed by the trial judge, thereby rendering the condition of probation requiring the Defendant to pay $75.00 ambiguous. It is unclear from the sentencing transcript whether the $75.00 payment is a one-time payment or a monthly payment, nor is it clear whether it is included in or is in addition to the $60.00 payment. While the court minutes and Conditions of Probation form offer a reasonable interpretation, the transcript controls in the case of a conflict between the minutes and transcript. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied) 00-2051 (La.9/21/01), 797 So.2d 62. Therefore, we | ¡¡instruct the trial court that, upon remand, it is to clarify the details of the $75.00 payment it imposed as a condition of probation. See State v. Peeler, 05-615 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218 (unpublished opinion).

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant contends that “the trial court erred in finding reasonable suspicion that [he] engaged in any criminal conduct after he was released from the traffic stop, thus allowing law enforcement to conduct a second detainment and expanded search not supported by any new articulable suspicion of illegal activity.”

DISCUSSION

Defendant alleges that the trial court erred in denying his motion to suppress the evidence seized during the warrantless search of his vehicle. Defendant claims that after he was “ostensibly” stopped for having dark tinted windows and making an illegal lane change, Officer Henderson issued to Defendant a Notice of Violation and told him that he was being released. The video recording (DVD) of the traffic stop was introduced as exhibit D-l at the motion to suppress hearing. The traffic noise makes it difficult to hear what is being said on the DVD, but Officer Henderson did issue to Defendant a Notice of Violation and told him he was being released as a courtesy instead of being given a ticket. The actual Notice of Violation stated, “You are released as a courtesy.”

Immediately after Officer Henderson informed Defendant that he was released as a courtesy, he told Defendant that he had seen lots of “crazy stuff’ and asked him if he had anything illegal in the car. When Defendant answered, “No,” Officer Henderson asked to search the vehicle. Defendant denied Officer Henderson’s request to search the vehicle, at which time Officer Henderson | r,retrieved his dog from the police unit, conducted a sweep of the vehicle, and found marijuana in the trunk of the vehicle.

In brief, Defendant argues that Officer Henderson failed to acquire a “new” reasonable suspicion after his release from the traffic stop. According to Defendant, the original traffic stop was over when the officer released him, and no new exigent circumstances occurred to justify the enlargement of the search. Defense counsel summarizes his argument as follows:

This [a]ppeal boils down to this: Mr. Arisme was released and arrested during the same traffic stop. At the end of the day, Officer Henderson botched his stop and investigation under La.C.Cr.P. Art. 215.1(D): he put the horse behind the cart; or in this case, the dog behind the cart. At the end of his ten minute questioning of the defendant and his guest passenger, the physical issuing of the citation and telling Mr. Arisme he was being released as a courtesy, the stop and investigation, pursuant to La. C.Cr.P. art. 215.1(D) was over. No new exigent circumstances are presented in the record by Officer Henderson, nor does he articulate any new rationale to enlarge his search.

We find that Defendant is precluded from raising this “new” reasonable suspicion argument on appeal since he failed to raise this argument in either his written motion to suppress or at his hearing on the motion to suppress. In his written motion to suppress, Defendant alleged that when the officer stopped him, the officer lacked reasonable suspicion that he was committing, had committed, or was about to commit a crime. The written motion to suppress also alleged that the subsequent search of Defendant’s vehicle was conducted without probable cause to search, without consent to search, without a warrant to search, and without an exception to the warrant requirement. At the hearing on his motion to suppress, defense counsel argued as follows:

MR. HUNT:
Your Honor, several things. If you watched the video, Your Honor, it goes almost 10 minutes and 27 seconds of questioning, walking around the car, looking at the car. Referring back to the tint, |7at no time in that 10 minutes and 27 seconds did he look at the window directly or ask any questions about the window so it’s sort of boot strapping this whole dark tint argument into all the suspicion I think is [sic] a bit of revisionist history once the report was written. If this was such a big deal, that should’ve been brought up in the first 10 minutes and 27 seconds. Then he signs the ticket at 10 minutes and 34 that says we’re releasing you to go and the next follow-up question at 10 42 is—
THE COURT:
He was just stalling. He had already decided he was going to have the dog check the car. We all know that.
MR. HUNT:
Other than articulating about the energy drink or the passenger looking ahead and all of these other things, his statement was I just see a bunch of crazy stuff out here. Well, life is crazy. I see crazy stuff in my office everyday[,] but that doesn’t mean anything.

Considering Defendant’s written motion to suppress and his counsel’s oral argument, we find that Defendant did not raise in the trial court the same argument he is now raising on appeal — that Officer Henderson failed to acquire “new” reasonable suspicion after the alleged conclusion of the traffic stop by the issuance of the Notice of Violation.

Louisiana courts have long held a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial court in a motion to suppress. State v. Brown, 434 So.2d 399 (La.1983) (rejecting defendant’s alternative argument regarding the denial of his motion to suppress because he had not raised the issue at trial); State v. Johnson, 07-1040 (La.App. 4 Cir. 9/10/08), 993 So.2d 326 (“failure to raise a ground for suppressing an item of evidence in a properly filed motion to suppress waives such a basis for exclusion on appeal”); State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162 (defendant is limited on appeal to the grounds he articulated at trial and a new basis for a claim, even if it would be meritorious, cannot be raised for the first time on appeal); see La.C.Cr.P. art. 841 (providing that a new basis for an objection cannot be raised for the first time on appeal).

State v. Montejo, 06-1807, p. 22 (La.5/11/10), 40 So.3d 952, 967-68, cert. denied, — U.S. -, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010) (footnote omitted). Therefore, Defendant is | ^prohibited from raising the “new” reasonable suspicion argument for the first time on appeal.

Even if we were to consider Defendant’s “new reasonable suspicion” argument, a similar argument was rejected in State v. Burton, 98-828 (La.App. 3 Cir. 2/23/94), 640 So.2d 342, writ denied, 94-617 (La.4/7/94), 641 So.2d 203. In Burton, the officers stopped Burton and his passenger for speeding. Questioning of Burton and his passenger revealed conflicting stories and extreme nervousness. Either during or after the questioning, one of the officers “filled out a Consent to Search Form, handed Burton back his driver’s license^] and told him to slow down.” Id. at 344. As Burton walked back to his vehicle, an officer explained to him what the Consent to Search Form entailed. When Burton refused to give consent to search, one of the officers radioed for a canine to be brought to the scene. When the canine alerted to the presence of drugs, the officers searched the vehicle and found contraband.

In Burton, 640 So.2d at 346, this court addressed an argument similar to the “new” reasonable suspicion argument raised by Defendant in brief:

Defendants argue in their brief that once the purpose for the initial stop had concluded and the defendants were told they were “free to go,” any action taken by the police to search the defendants’ vehicle was in violation of the defendants’ right to be free from unreasonable searches and seizures. Trooper LaFleur filled out the Consent to Search form before he returned defendant-Burton’s driver’s license and told the defendants they were free to go; he asked defendant-Burton to look at the Consent to Search form seconds later. It is obvious that the trooper had the intent to search the defendants’ vehicle after he had completed the routine duties for a traffic stop. The fact that the trooper finished the steps for the traffic stop with the statement “you are free to go” should not be construed to mean that all proceedings were concluded, that the initial reasonable suspicion had been dispelled, and that before any further actions could be taken the police had to reestablish reasonable suspicion on other grounds.

Likewise, in the instant case, Officer Henderson’s completion of the steps of the traffic stop with the issuance of the Notice of Violation should not be construed |9to mean that all proceedings were concluded and that Officer Henderson’s initial reasonable suspicion had been dispelled. When defense counsel asked Officer Henderson if he was finished with the investigation of the improper lane change at the time he gave Defendant the Notice of Violation, Officer Henderson replied, “When I handed his stuff back, he was free to go. His vehicle wasn’t going anywhere though.” At that point, Officer Henderson testified, he already had a reasonable ar-ticulable suspicion that Defendant and his passenger were engaging in criminal activity. When Officer Henderson initially saw Defendant’s vehicle, he noticed dark tint on the windows. Officer Henderson then saw Defendant make an improper lane change and stopped his vehicle. As Officer Henderson approached Defendant’s vehicle, he confirmed that the tint on the vehicle was dark. Upon speaking with Defendant, Officer Henderson learned that the vehicle was a rental vehicle. Officer Henderson knew that it was “unusual and suspicious” for a rental vehicle to have dark tint on the front window. Officer Henderson also learned that the rental was overdue. While Officer Henderson spoke with Defendant, he noticed that the passenger stared straight ahead without looking at the officer. He interpreted the passenger’s action as nervousness. Officer Henderson also became suspicious when he asked Defendant to step out of the vehicle, and, before he did so, Defendant took a “huge gulp” of a Monster energy drink sitting in his console. Finally, Officer Henderson’s questioning of both Defendant and his passenger revealed conflicting accounts of their itinerary for the past few days.

According to Officer Henderson, his decision to bring the dog out had nothing to do with the Defendant’s refusal to give consent to search but with all of his “reasonable suspicion prior to [his] asking [Defendant for consent].” Officer Henderson further explained:

|10I believed there was [sic] drugs in the vehicle. The easiest way to get in there is with a consent. I had enough, based on my training and experience, I had enough reasonable articulable suspicion to believe there was [sic] narcotics in the vehicle. The vehicle was not free to go at that point. I was going to walk my canine if he refused, which he did.

It is clear from Officer Henderson’s testimony that, based on his reasonable suspicion, he intended to search Defendant’s vehicle once he completed the routine duties for a traffic stop. Thus, as this court found in Burton, we find that Officer Henderson’s issuance of the Notice of Violation did not mean that all proceedings were concluded or that Officer Henderson’s initial reasonable suspicion had been dispelled. Additionally, as the court found in Burton, Officer Henderson’s issuance of the Notice of Violation did not trigger the need for Officer Henderson to acquire “new” reasonable suspicion before he acted any further.

In brief, Defendant futilely attempts to distinguish the supreme court’s decision in State v. Lopez, 00-562 (La.10/30/00), 772 So.2d 90, wherein the supreme court found that the marijuana seized in Lopez’s car should not be suppressed. In making this finding, the supreme court disagreed with this court’s finding that the trooper’s questioning of Lopez exceeded the original justification for the stop, which was a speeding violation. Citing Burton, 640 So.2d 342, the supreme court held that the trooper acquired reasonable suspicion to enlarge the scope of his investigation when Lopez and his wife exhibited “agitated demeanor[s]” and gave “conflicting accounts of their itinerary[.]” Id. at 93. In Lopez, the court further stated that “[t]he arrival of a drug-detection dog on the scene within minutes of the stop afforded the officer the opportunity to ‘pursue[ ] a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant.’ ” Id. at 93 (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)) (second |uand third alterations in original). Noting that the dog’s sniffing around the exterior of Lopez’s vehicle was not a search, the supreme court held that the dog’s “subsequent alert,” which was consistent with Lopez’s extreme nervousness, “gave the officers probable cause to search for contraband.” Id. (citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and United States v. Seals, 987 F.2d 1102 (5th Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993)).

Defendant, in the present case, attempts to distinguish Lopez by arguing that the investigation in Lopez was still ongoing when the drug dog arrived and Lopez was being interrogated. Defendant argues that Officer Henderson chose to keep the dog in the back of the patrol unit during his investigation and did not bring him out until after the Notice of Violation was issued. We find this distinction insignificant. As in Lopez, Officer Henderson’s investigation was still ongoing when he retrieved the drug dog. As previously discussed, this court’s decision in Burton warrants a finding that Officer Henderson’s investigation of the original stop did not end upon the issuance of the Notice of Violation. Thus, when Officer Henderson retrieved his drug dog, he was continuing to investigate his suspicion of criminal activity that developed as a result of the initial stop. As Officer Henderson testified, based on his reasonable suspicion, he intended to investigate further, either by consent to search or by walking the canine.

For the reasons set forth in Burton, we find that Officer Henderson was not required to acquire new reasonable suspicion after he issued the Notice of Violation. Rather, we find that Officer Henderson was continuing to investigate the reasonable suspicion acquired from the initial stop. Thus, even assuming arguendo that Defendant had properly preserved his “new” reasonable suspicion argument, that argument and his assignment of error lack merit.

| ^DISPOSITION

Defendant’s conviction is affirmed. Additionally, we remand this case to the trial court for the establishment of a payment plan for the $250.00 fee to the Louisiana Crime Lab, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. And, we instruct the trial court to clarify the details of the $75.00 payment set forth in the conditions of probation.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . According to the sentencing transcript, the trial court did not state whether the five-year sentence was to be served with or without hard labor; however, that issue is not before the court, as Defendant is only appealing his conviction and not his sentence.


text:
    Kenneth E. CASTLE v. Harry CASTLE, et al.
    No. 13-271.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Maurice L. Tynes, Lake Charles, Louisiana, for Plaintiff/Appellee, Kenneth E. Castle.
    W. Thomas Barrett, III, Lake Charles, Louisiana, for Defendant/Appellant, Harry Castle.
    Charles M. Kreamer, Allen & Gooch, A Law Corporation, Lafayette, Louisiana, for Defendant/Appellee, John Pohorelsky.
    Emmett C. Sole, Stockwell, Sievert, Vic-cellio, Clements & Shaddock, Lake Charles, Louisiana, for Defendant/Appel-lee, Castle Real Estate, Inc.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|! Defendant/Cross Claimant, Harry Castle, appeals the judgment of the trial court granting an exception of no cause of action in favor of Defendant in Cross Claim, John Pohorelsky, dismissing his cross claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In September of 2005, Kenneth Castle filed suit against his brother, Harry Castle, seeking an accounting of the income and expenses associated with jointly owned immovable property (the underlying litigation). The underlying litigation was ultimately settled pursuant to a Receipt and Release dated June 24, 2009, and a Joint Motion and Order of Dismissal dated June 25, 2009. Kenneth Castle was represented by an attorney, John Pohorelsky, in the underlying litigation.

A subsequent lawsuit (the current litigation) was instituted on June 24, 2010, by Plaintiff, Kenneth Castle (Kenneth), against Defendant, Harry Castle (Harry), asserting his entitlement to a further accounting for 2007, 2008, and 2009. Kenneth also named his former attorney, John Pohorelsky (Attorney Pohorelsky), in the current litigation, alleging malpractice.

In response to the current litigation, Harry filed an exception of res judicata based upon the prior settlement and Receipt and Release in the underlying litigation. The trial court denied Harry’s exception of res judicata on September 29, 2011.

On September 23, 2010, Harry filed a cross claim against Attorney Pohorelsky for indemnification of any amounts he may be cast in judgment in the 12current litigation. Attorney Pohorelsky responded with an exception of improper cumulation and an exception of no cause of action. The trial court granted the exception of no cause of action, finding that due to the lack of an attorney-client relationship, Harry failed to state a cause of action against Attorney Pohorelsky. Therefore, the trial court signed a judgment July 27, 2012, granting Attorney Pohorelsky’s exception of no cause of action and granting Harry additional time to amended his cross claim to include intentional tort allegations.

On July 12, 2012, Harry supplemented and amended his cross claim against Attorney Pohorelsky. Attorney Pohorelsky filed a second exception of no cause of action and an exception of peremption. The exception of no cause of action was granted by the trial court, and a judgment consistent therewith was signed November 7, 2012.

Harry appeals from the November 7, 2012 judgment of the trial court granting Attorney Pohorelsky’s exception of no cause of action and its denial of his exception of res judicata. For the following reasons, we affirm.

ASSIGNMENT OF ERROR

On appeal, Harry asserts that the trial court erred in denying his exception of res judicata relative to Kenneth’s claim for an additional accounting in the main demand. Additionally, Harry asserts error in the trial court’s grant of Attorney Pohorelsky’s exception of no cause of action which dismissed his cross claim.

LAW AND DISCUSSION

At the outset, we acknowledge that the first assignment of error raised by Harry addresses the trial court’s denial of his exception of res judicata. Although Harry addresses this contention in his brief to this court, he failed to seek review of |3the September 29, 2011 judgment denying his exception by means of a supervisory writ. Additionally, the present motion and order for appeal seeks a devolutive appeal only from the November 7, 2012 judgment in favor of Attorney Po-horelsky dismissing Harry’s cross claim. Accordingly, the ruling of the trial court denying Harry’s exception of res judicata is not properly before this court and is not considered herein.

Harry also asserts error in the trial court’s grant of Attorney Pohorelsky’s exception of no cause of action. We find no merit to this contention.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Fink v. Bryant, 01-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Id., pp. 348-349. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Id. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. Because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition, the appellate court reviewing the judgment should subject the case to a de novo review. Id.

Becnel v. Grodner, 07-1041, pp. 2-3 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894. Additionally, to withstand an exception of no cause of action, the cross claim must set forth the material facts upon which the cause of action is based. Legal or factual conclusions, absent facts which support such conclusions, are insufficient. Vermilion Hosp., Inc. v. Patout, 05-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688; Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127. Therefore, accepting the facts as alleged in Harry’s cross claim to be true, we must determine whether |4the law affords any remedy to Harry based upon his allegations against Attorney Pohorelsky.

The jurisprudence is clear that “an attorney does not owe a legal duty to his client’s opposing party when acting on behalf of his client. A non-client, therefore, cannot hold the attorney of his opponent personally liable for malpractice or negligent breach of a professional obligation.” Arledge v. Hendricks, 30,588, p. 5 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, 139, writ denied, 98-2015 (La.11/20/98), 728 So.2d 1287 (citing Montalvo, 637 So.2d 127). However, a non-client can assert a claim against an attorney based upon an intentional tort. Penalber v. Blount, 550 So.2d 577 (La.1989). Quoting Penalber, our supreme court has further stated:

Although Penalber re-affirmed the basic premise that an attorney acting on behalf of his client may not be sued by an adversary based on negligence or malpractice, that case did allow a cause of action against an attorney based on intentional tort: Intentionally tortious actions, ostensibly performed for a client’s benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not generally owe a duty to his client’s adversary, under the broad ambit of LSA-C.C. art. 2315, an attorney may be held personally accountable for his intentional tor-tious conduct....
[Penalber,] 550 So.2d at 582.

Montalvo, 637 So.2d at 130. Recognizing that “identifying an intentional tort in the context of an attorney’s actions may be more difficult than identifying a traditional intentional tort[,]” the supreme court opined that “it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney in persuading his client to initiate and continue the suit.” Id. Therefore, “[f]or a petition to state a cause of action against an opponent’s attorney, the petition must allege facts showing, on the part of the attorney, specific Rmalice or an intent to ‘cause direct harm’ in persuading his client to initiate and continue the suit.” Arledge, 715 So.2d at 139 (quoting Montalvo, 637 So.2d at 130).

In the instant case, Harry’s First Amended and Supplemental Cross Claim alleges:

Exhibit HC-5[] clearly and unequivocally evidences a deceptive and duplicitous pattern and practice of John Poho-relsky of simultaneously actively seeking a settlement and resolution of the Prior Litigation with Harry while informing his client, Kenneth, additional litigation could thereafter be brought against Harry following resolution of the Prior Litigation for the same accounting issues addressed in the Prior Litigation.
The simultaneous deceptive misrepresentations of John Pohorelsky to Harry and Kenneth contain untrue statements of material facts and omit to state material facts required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
The intentional deceptive acts of John Pohorelsky in actively withholding material facts from his communication to Harry as well as in preparation of the Settlement Documents, has resulted in Harry’s incurring needless defense costs in the instant proceedings. John Poho-relsky should be compelled to indemnify Harry for his costs of defense and any other amounts which he may be called upon to pay in the instant proceedings.

Having fully reviewed the assertions set forth in Harry’s cross claim, we agree with Attorney Pohorelsky that all these allegations and the documents attached to the cross claim “demonstrate[ ] is that what an attorney and his client talk about during settlement negotiations is different from what the same attorney and his opposing counsel talk about during settlement negotiations.” This demonstration of the adversarial nature of our legal system does not amount to an | ^intentional tort by an attorney against a non-client in the course of litigation. These documents evidence the tactical discussions between Attorney Pohorelsky and his client, Kenneth, that included settlement options and potential risks involving same. In fact, these documents contain discussions between Kenneth and Attorney Pohorelsky pertaining to whether the settlement perfected a release of liability for any further accounting after 2006, which was the very issue raised by Harry in his exception of res judicata. Even accepting the allegations as true, the cross claim clearly lacks any allegations of specific malice on the part of Attorney Pohorelsky or an intent to cause direct harm to Harry.

Based upon the foregoing, we conclude that the cross claim fails to allege facts sufficient to state a cause of action against Attorney Pohorelsky for an intentional tort. Accordingly, we find no error in the trial court’s grant of Attorney Pohorelsky’s exception of no cause of action dismissing the claims asserted against him by Harry.

DECREE

For the reasons assigned, we affirm the judgment of the trial court granting the exception of no cause of action in favor of John Pohorelsky and dismissing the claims of Harry Castle against John Pohorelsky with prejudice. The costs of this appeal are assessed to Harry Castle.

AFFIRMED.

      . Castle Real Estate, Inc. was also named as a defendant; however, the claims against this defendant are not relevant to the present appeal and are not addressed herein.

        . Attorney Pohorelsky filed an exception of no cause of action and an exception of improper cumulation to Kenneth’s claims; however, the trial court's rulings on these exceptions are not relevant to the present appeal and are likewise not addressed.

      . The trial court noted that “in memoranda to the [cjourt, both sides seem to agree that Harry Castle must allege an intentional tort against [Attorney] Pohorelsky to state a cause of action.”

      . Exhibit HC-5 consists of over fifty pages of documents including emails and letters produced by Kenneth, most of which were communications between Kenneth and his then attorney, Attorney Pohorelsky, during the course of the underlying litigation.


text:
    Phyllis J. GREEN v. EVANGELINE PARISH POLICE JURY.
    No. 13-274.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Daniel E. Broussard, Jr. Broussard, Halcomb & Vizzier, Alexandria, Louisiana, for Plaintiff/Appellant, Phyllis J. Green.
    Joel P. Babineaux, Olivia S. Regard, Ba-bineaux, Poché, Anthony & Slavich, L.L.C., Lafayette, Louisiana, for Defendant/Appellee, Evangeline Parish Police Jury.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|, Plaintiff, Phyllis J. Green, appeals an adverse judgment following a bench trial on her age, gender, and racial discrimination claims against Defendant, Evangeline Parish Police Jury (the Police Jury). The trial court ruled that Ms. Green failed to satisfy her evidentiary burden of proving that the Police Jury discriminated against her on the basis of age, gender, or race. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 2007, the Evangeline Parish Registrar of Voters, Ted Soileau, announced his resignation at a meeting of the Police Jury. The Police Jury held a meeting to appoint a new Registrar of Voters on April 9, 2007, and four individuals were nominated for the position: Ms. Green, Doug Deville, Darrel McGee, and Lucas Buller. After two rounds of voting were held, Lucas Buller was appointed as the Registrar of Voters for Evangeline Parish.

Ms. Green filed suit on April 9, 2008, against the Police Jury alleging age, gender, and racial discrimination pursuant to the Louisiana Employment Discrimination Law (LEDL). According to Ms. Green’s petition, she “applied with [the Police Jury] to fill the job of Registrar of Voters, [but her] application was denied by [the Police Jury] at its regularly scheduled meeting on April 9, |⅞2007[,] for no reason.” Ms. Green further asserted that “she is an African-American female over the age of forty (40)[,]” and she has been “employed in the Registrar of Voters[’] office ... over thirty (30) years since July 15, 1976.” Ms. Green alleged that the Police Jury “appointed Lucas Buller, a white male under the age of forty (40) with no prior experience in the Registrar of Voters[’] officef,]” and, thus, “the denial of her application for appointment of Registrar of Voters and the appointment of Lucas Buller by [the Police Jury were] based on race, gender, and age discrimination by [the Police Jury] against [her].”

The Police Jury denied all allegations. A bench trial was held on November 19, 2012. On November 28, 2012, the trial court issued written Reasons for Judgment, recounting the evidence before it and explaining its decision, in pertinent part, as follows:

[T]he Police Jury met in an open meeting to appoint a successor to Mr. Soi-leau. At this meeting four (4) candidates were nominated for the position of Registrar. The four (4) candidates for the position of Registrar were Doug De-ville, who was the Secretary Treasurer for [the] Police Jury, Plaintiff, Phyllis J. Green, who was the Deputy Registrar of Voters, Darrel McGee, who was a self-employed businessman, and Lucas Bul-ler, who was a former Bank Vice President, who was then employed by Ronald J. Landreneau and Associates, a local engineering firm.
On the first ballot taken by the Jury, Darrel McGee received one vote, Phyllis J. Green received two votes, and both Doug Deville and Lucas Buller received three votes. A second ballot was taken wherein Lucas Buller received five (5) votes to Doug Deville’s four (4) votes. [Lucas] Buller was appointed as Registrar of Voters for Evangeline Parish.
Plaintiff, Phyllis J. Green filed this action against the Evangeline Parish Police Jury, contending that the Jury discriminated against her when it selected Lucas Buller to fill the job of Registrar of Voters for the Parish of Evangeline. [Phyllis] Green is [a woman] of African American descent who is above the age of forty (40) who has been employed in the Registrar of Voters Office for a period exceeding thirty (30) years. [Lucas] Buller, on the other hand, is a |swhite male who was under the age of forty (40) at the time of his appointment.
At trial[,] the Court heard from former Registrar Ted Soileau, plaintiff Phyllis Green, former President of the Jury[,] Bill Guidry (now deceased) by deposition, current Police Juror Richard Thomas, former Juror Ronald Doucet, current Juror Eric Soileau, former Juror Sidney Fontenot, former Juror Davis Manual (by deposition), former Juror Bob Manual (by deposition), and former Juror Hill Johnson (by deposition).
In their live testimony, both African American Jurors who voted for Ms. Green’s appointment (Richard Thomas and Ronald Doucet) testified that they had no personal knowledge that race, gender, or age had anything to do with the votes east by the Jury.
In the testimony of the other Jurors, some of whom voted for Doug Deville or Lucas Buller, all testified that race, age, or gender had nothing to do with their decisions in casting their votes on the appointment.
Ms. Green in her testimony specifically told the Court that no Juror ever told her that she would not get the job because of her race, gender, or age. Ms. Green further testified that she had no personal knowledge or document which would show that her race, age or gender had any bearing on the way the Jurors voted.
The evidence indicates that the Jurors who voted for Mr. Deville did so for reasons arising out of his service to them in his capacity as Secretary Treasurer of the Evangeline Parish Police Jury. The evidence further indicates that those who voted for Mr. Buller did so for reasons of political alliance with Mr. Buller’s father who was a former colleague of theirs. Such evidence shows that the members of the Jury were not discriminating against Ms. Green for reasons of her race, gender, or age.

A judgment was signed on January 18, 2013. Ms. Green has appealed, asserting that the trial court erred in ruling that she failed to prove discrimination and, thereafter, dismissing her claims with prejudice.

LAW AND DISCUSSION
On review, an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[T]he issue to be |4resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Hanks v. Entergy Corp., 06-477, p. 23 (La.12/18/06), 944 So.2d 564, 580. If the findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Montgomery v. C & C Self Enters., Inc., 10-705, p. 4 (La.App. 3 Cir. 3/30/11), 62 So.3d 279, 282, writ denied, 11-873 (La.6/3/11), 63 So.3d 1016 (alteration in original).

Louisiana Revised Statutes 23:312 governs discrimination in employment based on age and provides in part:

A. It is unlawful for an employer to engage in any of the following practices:
(1) Fail or refuse to hire, or to discharge, any individual or otherwise discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment because of the individual’s age.
(2) Limit, segregate, or classify his employees in a way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of the individual’s age.

Louisiana Revised Statutes 23:332 governs discrimination in employment based on gender and race and provides in part:

A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an | ^employee, because of the individual’s race, color, religion, sex, or national origin.

This court’s recent opinion in Montgomery, 62 So.3d at 281-82, illustrates the requisite burdens of proof in employment discrimination claims:

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in an employment discrimination case. First, the plaintiff must bear the initial burden of establishing a prima facie case of discrimination. Id. In order to prove a prima facie case of age discrimination, the plaintiff must show that: (1) she is in the protected age group between the ages of forty and seventy years; (2) her employment with the defendant was involuntarily terminated; and (3) she was qualified to perform the job she was employed to perform. Taylor v. Oakbourne Country Club, 02-1177 (La.App. 3 Cir. 5/14/03), 846 So.2d 959, writ denied, 03-2025 (La.11/7/03), 857 So.2d 494; See also, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); and McDonnell, 411 U.S. 792, 93 S.Ct. 1817. Establishing a prima facie case in effect creates a presumption that the defendant unlawfully discriminated against the plaintiff. Hicks, 509 U.S. 502, 113 S.Ct. 2742.
If the plaintiff succeeds in establishing a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its conduct. Reeves, 530 U.S. 133, 120 S.Ct. 2097. This burden on the defendant ] is one of production, not persuasion. Id. If the defendant provides such reasons, the plaintiff will then have an opportunity to prove, by preponderance of the evidence, that the defendant’s proffered reasons were merely pretext, or in other words, not the true reason for the alleged discrimination. Id.

The trial court found there was no showing that Ms. Green’s age, gender, or race actually played a role in the Police Jury’s decision making process. We agree.

Although Ms. Green was qualified to be the Registrar of Voters, she has failed to prove that her age, gender, or race had any bearing whatsoever on the Police Jury’s decision not to appoint her for the position. Ms. Green even admitted at trial that no member of the Police Jury ever told her that her age, gender, or race 1 fiwere the reasons why she was not appointed to be the Registrar of Voters. When asked why she felt that the Police Jury had discriminated against her, she explained, “I didn’t get any white votes that night. All I had was the two black votes that the police jurors [sic], and I was a woman[,] and I was black, and I didn’t get out of the other seven I didn’t get any white votes.... ”

Our review of the evidence in the record reveals that it contains a reasonable factual basis for the trial court’s conclusion, and the record does not establish that the trial court’s findings were clearly wrong or manifestly erroneous.

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the [factfin-der’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.
Gradney v. La. Commercial Laundry, 09-1465, pp. 2-3, (La.App. 3 Cir. 5/12/10), 38 So.3d 1115, 1118 (citations omitted) (internal quotation marks omitted).

Derouen v. Malahmeh, 10-1002, pp. 3-4 (La.App. 3 Cir. 2/9/11), 61 So.3d 693, 696 (alteration in original). Not finding the trial court’s conclusion to be clearly wrong or manifestly erroneous, we affirm the trial court’s judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to Plaintiff/Appellant, Phyllis J. Green.

AFFIRMED.

      . Louisiana Constitution Article 11, § 5 provides:
      The governing authority of each parish shall appoint a new registrar of voters, whose compensation, removal from office for cause, bond, powers, and functions shall be provided by law. Upon qualifying as a candidate for other public office, a registrar shall forfeit his office. No law shall provide for the removal from office of a registrar by the appointing authority.

      . Louisiana Revised Statutes 18:51(C)(1), pri- or to its amendment in 2008, read in pertinent part: "A vacancy for any cause in the office of registrar shall be filled by the parish governing authority within ten days after the date on which the vacancy occurs.”

      - Louisiana Revised Statutes 23:301-369.


text:
    SUCCESSION OF Frank BERNAT.
    No. 13-277.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Gregory Brian Upton, Gregory B. Odom, II, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees: Carolyn Dianne Tuma, JoAnne Kotar McClain, Succession of Frank Bernat.
    Gwenda R. Lamb, Alexandria, LA, for Appellant: Henry A. Bernat.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|, Henry A. Bernat appeals a trial court judgment granting an exception of res ju-dicata. The co-executrices of the Succession of Frank Bernat filed the exception of res judicata in response to Henry’s petition to annul the testament. Henry also raises issues relating to a judgment of homologation. For the following reasons, we affirm the trial court’s judgment.

FACTS

On January 19, 2010, Frank executed a will at Cabrini Hospital in Alexandria, Louisiana. The facts surrounding the execution of the will were set forth in this court’s opinion in a previous appeal, In re Succession of Bernat, 11-368, pp. 1-2 (La.App. 3 Cir. 11/2/11), 76 So.3d 1287, 1289, writ denied, 12-263 (La.3/30/12), 85 So.3d 122:

The testator, and his attorney, Mark Watson, composed a will which was executed on January 19, 2010. The statutory will was executed at Cabrini Hospital in Alexandria, Louisiana, in the presence of two witnesses, Connie Lawrence and Chastity Stroud, and was notarized by Watson.
Watson read the will to Bernat. Af-terwards, Watson asked Bernat if the contents of the will were what Bernat had wished. Bernat responded in the affirmative in the presence of the witnesses. Watson then asked Bernat to sign the five page will. Being unsteady due to his ailments, Bernat signed the end of the first page with a shaky hand. Because of Bernat’s shakiness, Watson decided to direct Bernat to sign an “X” at the end of the second page. Bernat proceeded to sign the third, fourth, and fifth pages with his signature. The fourth and fifth pages both contained two signature lines for the testator: one line in the middle or top two-thirds of the page, and the other at the very end of the page. On the fourth and fifth pages, Bernat signed each upper signature line with his signature, and each lower signature line with an “X.” As a result, the first and third pages contain Bernat’s signature, the second page contains only an “X,” and the fourth and fifth pages, the fifth bearing the attestation clause contain both a signature and an “X.” The entire process of signing was conducted in the presence of Watson, who notarized and signed the attestation clause, and the witnesses, who also signed the attestation clause.

12Frank died two days later on January 21, 2010. His net estate was valued at just over a million dollars. Frank was never married and had no children of his own. The will named his nieces, Carolyn Tuma and JoAnne McLain, as co-executrices. Carolyn and JoAnne filed a petition to probate the will on April 14, 2010. They asked that Frank’s assets be divided equally among his eleven surviving nieces and nephews.

Henry, one of the testator’s nephews, intervened in the probate proceedings, challenging the interpretation of the will. Henry sought a declaratory judgment contending that Frank’s estate should be divided into thirds, with one-third going to the children of each of Frank’s three siblings; two of whom had one child each and the third sibling, who had nine children. Under this scenario, Henry would receive one-third of Frank’s estate, JoAnne would receive one-third, and the other nine nieces and nephews would receive one-third. The trial court interpreted the testator’s will as leaving equal shares to each of the eleven legatees, and Henry appealed to this court. In In re Succession of Bernat, 76 So.3d 1287, this court found no error in the trial court’s determination that the testator intended to divide his estate equally between the eleven legatees.

After the trial court’s hearing and oral ruling on its interpretation of the will on December 13, 2010, Henry then filed a petition to annul the testament on January 5, 2011, setting forth several abnormalities with the will which he claimed rendered it null. He first claimed that Frank had not signed the testament as required by La. Civ.Code art. 1577 because he made an “X”. He also claimed that a different attestation clause was required for Frank arguing he did not read the will and did not sign each page of the testament. Finally, he asserted that the witnesses to the will did not read along on an exact copy of the will as provided by La.Civ.Code art. 1579.

[sThe trial court signed the final judgment on January 14, 2011. In his first appeal to this court, Henry also asserted that the will was not in proper form. This court declined to address the issue at the time because it had not been raised in the trial court.

In response to Henry’s petition to annul the will, the co-executrices filed several exceptions, including an exception of res judicata, which was filed on February 24, 2011. Judgment denying the exception of res judicata was signed on June 20, 2012, because the original final judgment of the trial court was not introduced at the trial on the exception. On July 3, 2012, the co-executrices filed another exception of res judicata, this time attaching the trial court’s January 14, 2011 judgment. The co-executrices argued that Henry should have sought an annulment of the will at the same time he sought a declaratory judgment on the interpretation of the will. A hearing was held on August 6, 2012. On October 11, 2012, the trial court rendered judgment sustaining the co-executrices exception of res judicata. Henry then filed the present appeal.

RES JUDICATA

The co-executrices filed the exception of res judicata, claiming that Henry should have also raised the issue of nullity of the will when he sought a declaratory judgment regarding the interpretation of the will. In reviewing this case, we must determine whether the trial court committed manifest error when it sustained the exception of res judicata because it was prior to the case being submitted and evidence was received from both parties. Steckler v. Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161, writs denied, 11-2639, 11-2677 (La.2/10/12), 80 So.3d 477, 487.

The doctrine of res judicata is set forth in La.R.S. 13:4231. Quoting Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053, the ^supreme court reiterated the five elements that must be established in order for a judgment to have a res judicata effect on a second action:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Henry claims that his petition to annul should have been addressed by the trial court before considering the exception of res judicata because a valid and final judgment had not been rendered when he filed his petition to annul. Henry first argues that absolutely null judgments are considered never to have existed and, therefore, cannot have a preclusive effect. He claims that the declaratory judgment is predicated upon an absolutely null order of probate thereby rendering it absolutely null also.

Pursuant to La.Code Civ.P. art. 1872 a person interested under a will “may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.” Furthermore, La.Code Civ.P. art. 1874(3) pro-vides that an heir may have a declaration of rights or legal relations to determine questions concerning the construction of wills. A declaratory judgment can serve as a basis for res judicata to another action so long as the two proceedings involved the same transaction or occurrence and the parties existed in the same capacity in both suits. Travacal Props., LLC v. Logan, 10-323 (La.App. 3 Cir. 10/6/10), 49 So.3d 466.

Valid Judgment

Res judicata is provided for in La. R.S. 13:4231. In explaining what constitutes a valid judgment, comment (d) provides, in pertinent part:

|/To have any preclusive effect a judgment must be valid, that is, it must have been rendered by a court with jurisdiction over subject matter and over parties, and proper notice must have been given. The judgment must also be a final judgment, that is, a judgment that disposes of the merits in whole or in part.

See also Kelly v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210; and Interdiction of Wright, 10-1826 (La.10/25/11), 75 So.3d 893.

In conjunction with this concept, La. Code Civ.P. art.2002 provides that judgments are absolutely null which are rendered (1) against an incompetent person, (2) against a defendant who had not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken, or (3) by a court which does not have subject matter jurisdiction over the subject matter of the suit. An action to annul a judgment on these grounds can be brought at any time. La.Code Civ.P. art. 2002(B).

There is no time limitation for attacking an absolutely null judgment because it is not a valid judgment. Defects that render a judgment absolutely null are incurable by prescription. Warner v. Garrett, 268 So.2d 92 (La.App. 1 Cir.), writ refused, 263 La. 987, 270 So.2d 123 (1972); Trahan v. Bertrand, 06-1271 (La.App. 3 Cir. 2/21/07), 952 So.2d 809, writ denied, 07-631 (La.5/4/07), 956 So.2d 612. Whereas, defects that render a judgment relatively null are curable by prescription. Id.

It is the declaratory judgment which formed the basis for the co-executrixes’ exception of res judicata. Henry has not alleged any of these defects with the declaratory judgment itself. Henry is seeking to annul the probated testament pursuant to La.Code Civ.P. art. 2931. The alleged defects he complains about are with the testament itself. This does not affect the validity of the declaratory | judgment which determined the interpretation to be given to the will. The declaratory judgment itself is valid.

Furthermore, we observe that an action for annulment of a will is subject to a five-year prescriptive period. La.Civ.Code art. 3497. Any defects with the will would be curable by the passage of the prescriptive period. While time has not passed in the instant case, it is clear that defects with a will do not render it an absolute nullity.

Henry has made a subject matter jurisdictional claim regarding the probate of the will. He argues that only one affidavit of death, domicile, and heirship was filed, when La.Code Civ.P. arts. 2821 and 2822 require that it be executed by two people.

In Succession of Fuller, 482 So.2d 619 (La.1986), the supreme court adopted the reasons of the dissenting judge in the second circuit when the removal of an administrator was sought because no affidavit of death and domicile establishing the jurisdiction of the district court was filed with the petition to appoint an administrator. The dissenting judge, Chief Judge Hall, noted that the appellant did not contend that the district court was without jurisdiction. He noted that “[t]he failure to file the affidavit which ‘may ’ serve as proof of jurisdictional facts does not mean the court did not have jurisdiction.” Succession of Fuller, 480 So.2d 754, 760 (La.App. 2 Cir.1985). Judge Hall recognized that the failure to comply with the procedural requirement of making proof of jurisdictional facts is easily curable and that no one questioned that the district court had jurisdiction.

We agree that the jurisdictional issues complained of by Henry are not issues that would render the probate proceedings absolutely null under La.Code Civ.P. art. 2002(3). There is no doubt that Frank was domiciled in Rapides Parish at the time 17of his death and that the Rapides Parish district court has subject matter jurisdiction over the proceedings. Henry does not contest this fact.

Final Judgment

Henry also argues that he filed his petition to annul the judgment on January 5, 2011, which was prior to the signing of the final judgment on January 14, 2011. He argues that a final judgment was not in place at the time he filed his petition to annul the will, so it should have been addressed.

In explaining what constitutes a final judgment, comment (d) to La.R.S. 18:4231 provides, in pertinent part:

The use of the phrase “final judgment” also means that the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and would bar any action filed thereafter unless the judgment is reversed on appeal. Having the res judicata effect of a judgment attach at the time of final judgment is rendered by the trial court is in accord with our present law on lis pendens, see Code of Civil Procedure Articles 531, 532.

Obviously, a judgment becomes final once signed by the trial judge unless reversed on appeal. Furthermore, the declaratory judgment was upheld by both this court and the supreme court. Therefore, the declaratory judgment was a final judgment on January 14, 2011.

In Avenue Plaza, L.L.C. v. Falgoust, 96-173 (La.7/2/96), 676 So.2d 1077, the supreme court had to consider the res judica-ta effect of an eviction suit that was filed after a declaratory judgment action but reached final judgment first. The supreme court held that the final judgment in the eviction action became res judicata to the declaratory judgment action, which was still pending. See also Bunch v. Schilling Distrib. Inc., 589 So.2d 502 (La.App. 3 Cir.1991), writ denied, 592 So.2d 1319 (La.1992).

Henry filed his petition to annul the final judgment after the hearing and oral ruling by the trial judge but before judgment was signed. Once the final judgment Iswas rendered in the declaratory judgment action, it became conclusive and could serve as a basis for a res judicata claim to the annulment action. Since we have determined that there was a valid and final judgment in place, we will now address whether the other elements were established supporting the granting of the exception of res judicata.

Same Parties

We recognize that the parties in the declaratory judgment action and in the petition to annul are the same. Henry has not contested this issue.

Cause of Action Existed at Time of Declaratory Action

Most of the grounds for nullifying the will asserted by Henry were in existence when Henry filed his petition for a declaratory judgment. Furthermore, Henry admits that his allegations of Frank’s medical condition preventing him from executing a will became known to him after depositions taken on December 6, 2010, which was one week before the declaratory judgment hearing on December 13.

The issue of Frank’s ability to read the will did come up at the hearing. The trial judge inquired of Henry’s attorney if the validity of the will was at issue, and she replied that the issue was not before the court at that time. We find that the grounds asserted by Henry for nullifying the will were in existence at the time of the hearing on the declaratory judgment.

Same Transaction or Occurrence

What constitutes the transaction or occurrence is to be determined on a case-by-case basis. Hy-Octane Invs., Ltd. v. G & B Oil Prods., Inc. 97-28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057. It is the subject matter of the litigation, principal demand, or action. Id. It is the logically-related events that are so connected together to be referred by a single legal name such as a crime, a contract, or a lawrong. Id. “All logically related events entitling a person to institute legal action against another generally are regarded as comprising a ‘transaction or occurrence.’ ” Id. at 1060.

In Hy-Octane, this court found that a suit for breach of contract and a suit for wrongful termination of the contract originated from the same transaction or occurrence, the contract. In Travcal Properties, 49 So.3d 466, this court found that two suits which found their basis rooted in the interpretation of an operating agreement arose out of the same transaction or occurrence.

We also find that the suit for declaratory judgment and the petition to annul the will find their basis rooted in the execution and interpretation of Frank Bernat’s will. Therefore, both actions arise out of the same transaction or occurrence.

Additionally, we do not find any exceptional circumstances as contemplated by La.R.S. 13:4232 which prevent the declaratory judgment from barring the petition for nullity. Henry was aware of the alleged deficiencies by the time of the hearing on the declaratory judgment. He did not decide to pursue an action to annul the will until the trial court issued its oral ruling declaring that the will provides for a division of Frank’s estate equally to his eleven nieces and nephews.

The co-executrixes established all elements necessary to sustain their exception of res judicata. We find no manifest error by the trial judge sustaining the exception of res judicata.

HOMOLOGATION JUDGMENT

Henry objects to the homologation judgment signed on October 25, 2010. He argues that the co-executrixes never published nor noticed the final tableau of distribution and that the judgment should not have been signed. Henry specifically objects to the amount of attorney fees listed in the judgment.

| inThe trial court found that the judgment homologating the tableau of distribution was final, and the prescriptive period to challenge the judgment had expired. Therefore, the trial court found that the attorney fees set forth in the tableau could not be contested.

On October 22, 2010, the co-executrixes filed a final tableau of distribution. The co-executrixes admit that a blank draft of the tableau judgment was accidentally submitted to the court. On October 25, 2010, the trial court inadvertently signed this judgment prior to the proper delays running. La.Code Civ.P. arts. 3308-8307. There is no indication in the record that notice of the signing of this judgment was sent to anyone.

Pursuant to La.Code Civ.P. art. 3305, Henry requested notice of the filing of the tableau of distribution on July 16, 2010. In his petition for declaratory judgment, Henry admitted he received notice of the filing of the tableau of distribution by certified mail on October 25, 2010. This included the attached blank judgment homologating the final tableau of distribution. On December 13, 2010, Henry filed an opposition to the tableau of distribution, obviously unaware at the time that the judgment had been signed.

Subsequently, the co-executrixes filed an additional tableau of distribution on February 1, 2011, which listed many of the same debts. They too were also obviously unaware that the judgment had been signed. Henry followed with an additional opposition to the tableau of distribution on February 14, 2011. A judgment homolo-gating the interim tableau of distribution was signed on April 11, 2011. The judgment recognized that Henry had filed an opposition but agreed to the payment of certain debts.

Henry is obviously attacking the validity of the October 25, 2010 judgment of homol-ogation and seeking its annulment, arguing that it was signed before the ^petition for authority to pay the estate debts, was not published, and seven days had not elapsed from the date of publication as required by La.Code Civ.P. art. 3304.

Louisiana Code of Civil Procedure 2004(A) provides that a judgment obtained by fraud or ill practices may be annulled. It has been recognized that Article 2004 is not limited to actual fraud or wrong doing, and courts should look to equitable considerations. In re Succession of Crumbley, 06-402 (La.App. 3 Cir. 9/27/06), 940 So.2d 748. “There is actionable fraud or ill practice when (1) the circumstances illustrate a deprivation of the legal rights of the litigant seeking relief, and (2) enforcement of the judgment would be unconscionable and inequitable.” Id. at 751 (quoting Succession of Blackwell, 98-50, p. 5 (La.App. 3 Cir. 5/6/98), 713 So.2d 625, 628, writ denied, 98-1983 (La.10/30/98), 727 So.2d 1169).

An action for nullity of a judgment pursuant to La.Code Civ.P. art.2004 for vices of substance may not be brought by collateral attack but must be brought by direct action. Calcasieu Parish Sch. Bd. v. Parker, 02-339 (La.App. 3 Cir. 10/2/02), 827 So.2d 543, writ denied, 02-2719 (La.1/10/03), 834 So.2d 440. “Thus, the party praying for the nullity of a relatively null judgment must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits.” Smith v. LeBlanc, 06-41, p. 7 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 72. “A direct action can be brought by filing a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered.” Id.

The limitation envisioned by comment (d) to LSA-C.C.P. art.2004 prohibits the issue from being raised by way of an affirmative defense, such as in the answer or by exception. Clearly, any of those methods would be a collateral attack, that is, an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling the judgment. The reason for this rule is that a relative nullity involves a factual issue which must be proven by evidence placed in the record.

| wId. (citations and footnote omitted).

Henry has yet to file a petition for nullity, directly attacking the October 25, 2010 judgment. However, his attorney did raise the issue at the August 6, 2012 hearing which is why the trial court addressed it in its reasons for judgment. Henry has not properly attacked the judgment of ho-mologation. However, no objection was made to the argument being raised at the hearing. Therefore, any error in this regard is waived. Parker, 827 So.2d 543; Johnson v. Jones-Journet, 320 So.2d 533, n. 4 (La.1975).

However, we find that even if Henry did properly attack the October 25, 2010 judgment, the action would not be timely as found by the trial court. Louisiana Code of Civil Procedure Article 2004(B) also provides that an action for nullity based on fraud or ill practices must be brought within one year of the discovery by the plaintiff. The one-year limitation to file an action to annul a final judgment is a period of peremption rather than prescription. Ellison v. Ellison, 06-944 (La.App. 1 Cir. 3/23/07), 960 So.2d 155. “Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La.Civ.Code art. 3458. “Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment.” La.Civ.Code art. 3460. “Peremption may not be renounced, interrupted, or suspended.” La.Civ.Code art. 3461.

“The burden of proof to show that a nullity action was brought within one year of the discovery of the fraud or ill practice is upon the plaintiff.” Ellison, 960 So.2d at 157. For the purposes of determining when the one-year period to bring a nullity action begins to run, the date of discovery of the fraud or ill practice is the date on which a plaintiff either knew, or should have known through the exercise 11sof reasonable diligence, of facts sufficient to excite attention and put the plaintiff on guard and call for inquiry, and such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id.

Henry filed his first appeal with this court on February 2, 2011. That appeal record, which is an exhibit to the present appeal, contained the October 25, 2010 judgment homologating the final tableau of distribution. We find that the presence of that judgment, relied on by Henry, is sufficient to put him on notice that he has a claim. More than one year has passed since the lodging of the first appeal with this court. Therefore, any action to annul the October 25, 2010 judgment would be preempted. We find no error in the trial court’s decision that the time for attacking the October 25, 2010 judgment of homolo-gation has passed.

OTHER ISSUES

Henry has raised an issue concerning the discovery of Frank’s medical records relating to Frank’s ability to execute the will. Henry also raises an issue concerning the production of the detailed billing records of the attorneys handling the succession, arguing they have not established their entitlement to the fees as listed on the October 25, 2010 judgment of homolo-gation. Since we have sustained the exception of res judicata regarding the attack on the will and find that the judgment of homologation stands, there is no need to address these issues.

For the reasons set forth in this opinion, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to Henry Bernat.

AFFIRMED.