author: GREMILLION, Judge.

text:
    State of LOUISIANA v. Chadwick MCGHEE
    15-285
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Michael F. Kelly, Assistant District Attorney, P. 0. Box 1200, Marksville, LA 71351, (318) 253-5815, COUNSEL FOR APPEL-LEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 80006, Lafayette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Chadwick McGhee
    Chadwick McGhee, Louisiana State Penitentiary, Main Prison—Walnut 4, Angola, LA 70712, PRO SE
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

|Jn November 2013, Defendant, Chadwick McGhee, was charged with one count of second degree kidnapping, in violation of La.R.S. 14:44.1. Defendant was found guilty of the lesser included offense of simple kidnapping, in violation of La.R.S. 14:45. The State announced its intent to file a habitual offender bill against Defendant. Defense counsel then objected to the verdict, and court was adjourned.

In October 2014, a hearing was held on Defendant’s Motion for New Trial. Defendant argued for a new trial on two grounds: the verdict was contrary to the law and evidence, and the discovery of new and previously unavailable evidence regarding the role Tamika Williams played in the entire incident. The trial court denied the motion.

In November 2014, Defendant was adjudicated a third felony offender and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant’s appeal of that sentence is addressed in the companion filing bearing docket number 15-286.

This court vacated Defendant’s conviction due to insufficient evidence. See State v. McGhee, 15-285 (La.App. 3 Cir. 11/4/15), 179 So.3d 739, and 15-286 (La.App. 3 Cir. 11/4/15), 178 So.3d 316. The supreme court subsequently reversed that ruling and remanded to this court for consideration of the assignments of error this court’s prior rulings had rendered moot. State v. McGhee, 15-2140, 15-2141 (La. 6/29/17), 223 So.3d 1136.

Defendant appeals his conviction, raising three assignments of error through counsel: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in denying his motion for. new trial; and (3) the trial court erred in admitting out-of-court statements made by Asa Bentley, a co-defendant, who was |Pnot subject to confrontation. In addition to the assignments of error presented by counsel, Defendant filed a pro se brief raising four assignments of error: (1) Defendant was denied his right to appellate review and a complete record; (2) supplemental arguments as to why the evidence was insufficient for his conviction; (3) he was denied his right to testify on his own behalf; and (4) his trial- counsel provided- ineffective assistance for his failure to object to the introduction of evidence of .other crimes.

- FACTS

The State called-six witnesses to testify at trial: Laura Stelly, the victim’s mother; Cecil Cooper, the victim’s fiancé; James Crystal; Tamika Williams, one of the co-defendants; Detective Roland Patterson of the Avoyelles Parish Sheriffs Office; and Detective Jeremiah Honea of the Avoyelles Parish Sheriffs Office.

Stelly testified that the last time she saw her daughter was September 7, 2013, when the victim dropped off her daughter, Jav-aia, with Stelly. Stelly later reported her daughter missing on September 11, 2013. Stelly also 'testified that Bentley came by her house between the time she last saw her daughter and when she reported her missing. She testified that- Bentley was looking for her daughter because “she had got him for $175.” Stelly testified that, after Bentley came to her house, she went to her daughter’s - house and found it “turned over” or ransacked. Finally, Stelly testified that it was not a new occurrence for her daughter to disappear, but that she always checked on her kids and she would came home after a few days.

IsOn cross-examination, Stelly testified that Bentley came to her house on a Saturday morning, but that she did not know the specific date. She reaffirmed her direct testimony that after speaking to Bentley, she went to her- daughter’s house and found it ransacked, yet nonetheless waited a few days before reporting the victim missing. She also confirmed' that her daughter had a drug problem, would disappear for days at a time, and had been locked up twice for “flipping out,”

The State then called Cecil Cooper, the victim’s fiancé, to testify. He testified that he and the victim had been dating and living together for about three years, that they had a daughter together named Jav-aia, and that he was aware of the victim’s drug problem. He testified that the victim would sometimes disappear, but never for more than a night. He stated that the last time he saw the victim was September 6, 2013, after work. They were going to watch a movie, but he fell asleep, and she was not home when he woke up the next morning.

Cooper testified that on Saturday, September 7, 2013, he was sent home from •work early, but did not have a car, so he was waiting on a ride home when Bentley and Defendant came by and agreed to give him a ride home. He identified Defendant in court. Cooper began giving testimony as. to what both Bentley and Defendant said while they were driving him home. Cooper testified that Defendant kept ■ repeating that something had happened and Cooper’s “girl [was] down bad for what she did.” Cooper stated "that he took Defendant’s comment about “[his] girl” to mean the victim. Cooper also testified that Bentley then told him that the victim had stolen Bentley’s cocaine and that someone was going to pay. Cooper stated that he told Bentley he would call the cops, went into his house to find it ransacked, and, at that point, Bentley fled the scene, hitting a car that was in Cooper’s yard in the process. Finally, he stressed that although the victim would | ¿often disappear for anight, she was never gone multiple days, and that he had not heard from her since September 6, 2013.

On cross-examination, Cooper mostly affirmed his prior testimony and acknowledged that he knew that the victim had a drug problem and was still using drugs when she went missing.

The State then called James Crystal, who testified that he saw the victim by a shed where he was living, on September 7 or 8, 2013, and that he texted Bentley so that Bentley could' get “his stuff back,” meaning the cocaine that the1 victim had stolen. Crystal identified Defendant in court,' stating that' Defendant was with Bentley when he came to the shed looking for the victim. Crystal then gave testimony that a Mexican individual came to the shed, left, and Bentley and Defendant left shortly thereafter. ■ On cross-examination, he reiterated that the victim was gone before anyone got to the shed.

The State then called Tamika Williams, a co-defendant, Williams admitted to having a problem with cocaine and pills that had lasted for a couple of years. Williams stated that she knew both Bentley and Defendant, whom she identified in court. She testified that she had been in a sexual relationship with Bentley, who was also her cocaine dealer. Williams stated that she had known Defendant for over thirteen years, that she saw Bentley on a daily basis, and that Defendant was almost always with Bentley. She testified that she knew the victim because the victim’s son had the same father as Williams’ two daughters.

Williams described a phone conversation she had with Bentley on September 7, 2013, where Bentley told her that the victim had stolen money and cocaine from him the night before, that he wanted it back, and that if he found the victim, he was going to kill her. She then described an incident where she was priding with Bentley, they saw the victim on a back road, and he jumped out and chased the victim but was unable to catch her.

Williams then testified that a few nights later, Bentley picked her up at her apartment in Simmesport and they drove along Louisiana Highway 1 towards Mansura. She testified that Bentley was speaking to his brother, Willie Price, and that they met up with Price in front of the Y-Not-Stop in Mansura. Williams stated that Price, Donnie Edwards, Defendant, and the victim were all in the same car, and that Price and Edwards dragged the victim out of the car and handed her over to Bentley, who dragged her to the Dodge Durango in which he and Williams had driven to Man-sura. According to Williams, Defendant did not move or get out of the car during this time.

Williams testified that after throwing the victim into the back of the Durango, Bentley positioned himself on top of her. She further stated' that Bentley began choking the victim, telling her that he wanted his money back or he was going to kill her, and the victim kept begging him not to kill her. Williams stated that Edwards began driving the Durango, and that they were following Price back towards Simmesport.- She described hearing choking sounds and what sounded like someone being hit, but said that she did not see anything because she was texting her sister and did not look in the back of the vehicle. She stated that the sounds continued for about ten or fifteen minutes, that she heard the sound of glass .breaking, and then smelled something funny, “[l]ike somebody went to the .bathroom on their self.” Williams said she was then dropped off at her apartment, where she picked up her child and went to her mother’s house in Odenburg.

Once she arrived at her mother’s home, Williams received a call from Bentley, and shortly thereafter, Bentley, Edwards, Price, and Defendant arrived at [ (Williams’ mother’s house in the Durango. Williams stated that Defendant had his head down “like he was crying or sad or something,” and that Bentley told him, ‘You know anything I tell you to do you-do it.” At that point, all of -the males left, and Williams went inside.,.

Williams-further testified that the following day, Bentley took her to a nearby field where he claimed he had dumped the victim’s body, but Williams got scared and refused to go see the body. Bentley told her he had to move the-body. She then testified that she first contacted the police, pretending to be her friend Benita Robinson, and told them that “Tamika knew what happened.” Williams also admitted that the first time she was interviewed, she lied about having been in the Durango because she was afraid she would get in trouble.

On cross-examination, Williams again admitted that she. had previously been convicted of forgery and that she lied to the police during her initial interactions, giving a false name when she called and pretending she was not present during the incident between Bentley and the victim. She also admitted that during her first interview. with, the police, she never indicated that Defendant was even present during the. incident. Williams admitted that she had no idea how the victim ended up in the car with Defendant and the others before -being dragged to the Durango; what happened after she was returned to her apartment, and again admitted she did not actually see what had happened in the Durango.

After defense counsel pointed out that Williams had reached an agreement with the State to testify against all of her co-defendants in exchange for being released from incarceration after her co-defendants’ trials were finished, the State’s rebuttal consisted of having Williams confirm that the plea agreement called for “truthful testimony.”

|7The State then called Detective Roland Patterson of the Avoyelles Parish Sheriffs Office. Detective Patterson stated that he was involved in the interview of Defendant, whom he identified in open court. Detective Patterson then testified that prior, to the interview, Defendant was read his rights and signed the “Standard Miranda form” indicating that he understood his rights, which had been read to him,, and that he chose to waive those rights in order .to give a statement. Finally,'he stated that prior to Defendant’s interview, no threats or promises were made to Defendant.

The State then called Detective Jeremiah Honea of the Avoyelles Parish Sheriffs Office. Detective Honea testified that the victim’s body was never found. He further stated that the Durango that Williams spoke of at length during her testimony had been sent to Baton Rouge for forensic tests, and that no forensic evidence was found inside the car. Detectivfe Honea then described five photographs of the vehicle and stated that Tomeka Masón, Bentley’s live-in- girlfriend and the owner of the Du-rango, had filed a report with the Simmes-port Police Department on September 10, 2013, regarding the vehicle having been vandalized.

Detective Honea stated ■ that their “break” in the case .came when Williams called in pretending to be Benita Robinson and told police that Williams had information about the victim. Like Detective Patterson, Detective Honea identified Defendant in open court and testified that he interviewed Defendant and that Defendant signed a- waiver of his rights prior to the interview.

The State moved to admit Defendant’s prior interview into evidence, but defense counsel objected on the basis that it was not freely and voluntarily given. The trial court recessed the jury to determine if the interview was freely and | ^voluntarily given, while under the impression that the interview contained a confession. After the jury was returned to the courtroom, the trial court informed them that the video was not a confession, but merely an interview Defendant gave to detectives, and that they should give whatever weight they felt it deserved, as they would any other witness. The entire interview was then replayed for the jury.

The interview contained a long story told by Defendant to Detectives Patterson and Honea in which Defendant claimed he saw the victim at a barbecue around the time she disappeared, that he saw her leave the barbecue, and that he had not seen her since. He specifically denied ever being in a car with her in the Mansura area. He stated everything was “cool,” that he had no knowledge of the victim taking anything from Bentley, and that people asked him the next day if he had seen the victim. Defendant stated that he had ridden in a car with Price before, but just for errands. Defendant vehemently denied any knowledge of why Bentley was looking for the victim, claiming that Bentley never told him why he was looking for her.

On cross-examination, Detective Honea again testified that the Durango in question was tested for evidence, and no evidence was found. He also admitted that despite searching multiple other vehicles, there was no forensic evidence linking Defendant, or any of the co-defendants, to the case. He admitted that the entire investigation was based on what they were told by Williams, noting that her testimony and information had changed as time has progressed. Finally, he admitted that the only evidence, other than Williams’ testimony, that any incident ever occurred between Simmesport and Mansura was the broken window in Mason’s car, which was reportedly vandalized.

|9On re-direct, Detective Honea testified that when Mason reported the car vandalized, she told him that Bentley had been driving the car the night before. At that point, the State rested its case. Closing arguments were presented. After the State concluded its argument, defense counsel moved for a mistrial on the basis of La. Code Crim.P. art. 770(2), which mandates a mistrial on the grounds of introduction of “other crimes” evidence. The trial court denied this motion because evidence related to the ransacked house had been- introduced without objection during trial.

ASSIGNMENT OF ERROR NUMBER ONE (PRO SE ASSIGNMENT OF ERROR NUMBER TWO)

In light of the supreme court’s ruling in McGhee, Defendant’s assignments of error regarding the sufficiency of the evidence against him are deemed without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant’s second attorney-filed assignment of error is that a new trial should have been granted on two grounds: the verdict was contrary to the law and the evidence and there was newly-discovered, material evidence whose introduction at trial would have probably resulted in a different verdict. The first part of this argument is precluded by the supreme court’s ruling that the evidence presented was sufficient to support Defendant’s conviction. Accordingly, we address only the issue of the newly-discovered evidénce.

Under La.Code Crim.P. art. 851(B)(3), a new trial shall be granted when:

New and material evidence, that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

hftDefendant argues that Williams, the State’s sole witness to testify about the crime of which Defendant was convicted of being a principal, gave a statement to police after trial indicating her involvement in the whole enterprise was greater than she had testified during trial. Specifically, Defendant argues that after his trial, Williams gave a statement in which she admitted receiving evidence (bloody clothing) from Bentley and destroying it. Defendant, argues that had the jury,known of Williams’s greater involvement in the commission and cover-up of the kidnapping, its verdict would have been different. We disagree. ;

We have found that the trial judge’s duty is an objective test, “in • that the trial judge does not sit as the ultimate arbiter of the resolution of the case once the new evidence is considered, that is, the trial court does not weigh the evidence.” In other words, “[t]he role of the trial court is to review the evidence constituting the State’s case, not to determine the sufficiency of the evidence, but to evaluate the effect of the newly discovered evidence.”

State v. McKinnies, 13-1412, p. 10 (La. 10/15/14), 171 So.3d 861, 869 (footnotes omitted).

Defendant’s argument is that had the jury known Williams had lied about the extent of her involvement,- it would have come back with a different verdict, and, therefore, Defendant should get a new trial. We find this information would have been unlikely to change the verdict. Although the only direct evidence’ of what occurred the night the victim disappeared is the testimony of Williams, the jury was already aware that Williams had previously lied to law- enforcement about her involvement in the victim’s disappearance and that she had given- multiple inconsistent prior statements. It is unlikely the jury would have changed its mind about Williams’s testimony in light of the newly discovered statement, as it fails to show an aspect of her character which had not already been displayed during trial. [^Accordingly, we cannot find that the trial court abused its discretion in denying the motion for new trial. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In ■ his final attorney-filed assignment of error, Defendant argues his Sixth Amendment right to confront the witnesses against him was violated. Defendant argues the trial court erred in allowing Cooper and Williams to give testimony regarding statements made to them by Bentley, Defendant’s co-defendant, who invoked his Fifth Amendment right against self-incrimination prior to trial. Specifically, Defendant argues the testimony in question should have been excluded in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which prohibits the introduction of testimonial evidence against an accused where the accused has no opportunity to cross-examine the witness regarding his accusations against the defendant. This 'argument is completely inapplicable to Defendant’s case. .

As the Crawford court discussed at length, the Confrontation Clause entitles Defendant to cross-examine the witnesses against him. Bentley, whose statements are at issue, was not a witness against Defendant. Initially, none of the statements Defendant complains of actually include any accusations by Bentley of wrongdoing on Defendant’s part. In Crawford and State v. Hunter, 11-291 (La. 4/8/11), 59 So.3d 1258, another case cited by Defendant, the testimony not only specifically implicated the defendant in the crime for which he was charged, the statement was made in response to police questioning.

The statements at issue here contain neither aspect. In fact, rather than being statements made in response to police questioning, the statements were made to the victim’s fiancé ,and to Bentley’s sometime-paramour. As the Craivford court | ^specifically noted, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” 541 U.S. at 51, 124 S.Ct. 1354. While the relevancy of these statements may have been questionable, their admission in no way violates the Confrontation Clause nor Crawford, as they do not actually accuse Defendant of any criminal activity. Accordingly, this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

This, court has already addressed Defendant’s claim that he was denied access to the full record by ordering those portions of the record, which were missing. The remaining portions related to sentencing were included in Defendant’s companion docket number 14-286, concerning review of Defendant’s habitual offender adjudication. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE.

In Defendant’s third pro se assignment of error, he argues that his constitutional rights were violated when his attorney refused to allow him to testify on his own behalf. Although Defendant does not frame his argument as a claim of ineffective assistance of counsel, that would be the proper method of reviewing this claim. As noted in State v. James, 05-2512, p. 1 (La. 9/29/06), 938 So.2d 691, 691 (citing State v. Hampton, 00-522, pp. 14-15 (La. 3/22/02), 818 So.2d 720, 729-30), Defendant needs to “‘allege specific facts, including an affidavit from counsel’ and- point to record evidence to support his claim.” Although Defendant has raised specific allegations regarding the circumstances surrounding hiS' alleged denial of the right to testify, the record before this court does not support his claims, ■

“A claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief. This allows the trial judge an opportunity to |iaorder a full evidentiary hearing on the matter.” State v. Francis, 99-208, p. 10 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491, writ denied, 00-544 (La. 11/13/00), 773 So.2d 156. As Defendant’s allegations are based on private conversations between himself and his attorney held off the record, this assignment of error should be preserved for presentation in an application for post-conviction relief, where the trial court may investigate Defendant’s claims that trial counsel refused -to let him testify despite his expression.of a desire to do so.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

Defendant’s final pro se assignment of error argues that he was denied effective assistance of counsel when trial counsel failed to raise a contemporaneous objection to the introduction of evidence, through the testimony of Cooper, regarding another crime which the State insinuated was committed by Defendant; namely, the ransacking'of Cooper’s home. Defendant acknowledges that claims of ineffective assistance of counsel should be raised bn post-conviction relief, but argües that there is sufficient evidence in the record to Allow this court to review his claim nonetheless.' We disagreé' with this - assertion.

“Ineffective assistance of counsel does not exist unless there was a deficient performance by the attorney.” State v. Truehill, 09-1546, p. 17 (La.App. 3 Cir. 6/2/10), 38 So.3d 1246, 1257. Defendant makes no allegation regarding whether trial counsel’s decision to not make a contemporaneous objection to Cooper’s testimony regarding his home being ransacked could have been trial strategy. “An alleged error can be construed as trial strategy if there are differing views regarding the advisability of a tactic[.]” Id. This assignment of error, like Defendant’s third pro se assignment of error, is relegated to post-conviction relief, so that the trial court may fully investigate Defendant’s allegations.

114DECREE

Defendant's conviction is affirmed. Defendant’s pro 'se assignments of error numbers three and four are relegated to post-conviction relief.

CONVICTION AFFIRMED.

      . This court treated Defendant’s first pro se assignment of error as a motion to supple- ' ment the record with" a transcript of voir dire and ordered the trial court to provide a copy of the transcript of voir dire. The trial court complied with that order. The remaining documents Defendant claims are missing are related to his sentencing and are present in the record for the appeal of his habitual offender adjudication in docket number 15-286.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    6TH WARD/CROWLEY GRAVITY DRAINAGE DISTRICT, et al. v. Charles BENOIT
    17-82
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017
    Thomas K. Regan, Privat & Regan, Post Office Box 688, Crowley, LA 70527-0688, (337) 783-7141, COUNSEL FOR PLAINTIFF/APPELLEE: City of Crowley
    F. Douglas Wimberly, Cloyd, Wimberly & Villemarette, L.L.C., Post Office Box 53951, Lafayette, LA 70505-3951, (337) 289-6906, COUNSEL FOR PLAINTIFF/APPELLEE: 6th Ward Crowley Gravity Drainage District
    Brad P. Scott, Christopher A. Meeks, David P. Vicknair, Scott, Vicknair, Hair & Checki, 909 Poydras Street, Suite 1100, New Orleans, LA 70112, (504) 684-5200, COUNSEL FOR DEFENDANT/APPELLANT: Charles Benoit
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   AMY, Judge.

hThe plaintiffs filed a motion for contempt of court, asserting that the defendant failed to comply with various terms included in a 2012 Consent Judgment, whereby the defendant was ordered to, among other things, remove debris from a drainage channel. Following a hearing, the trial court entered a judgment of contempt, sentencing the defendant to thirty days in the parish jail and making that sentence contingent on the timely completion of designated tasks.

Factual and Procedural Background

The present contempt of court proceeding originates from a 2008 petition filed by the 6th Ward/Crowley Gravity Drainage District (the “District”) against Charles Benoit, alleging that Mr. Benoit had placed “large amounts of debris, including concrete and asphalt on [his] property abutting Bayou Blanc[.]” The District cited concerns regarding potential drainage and integrity of the drainage canal as well as erosion and possible contamination of the soil by hydrocarbons. The District alleged that Mr. Benoit’s actions “caused significant damages to the banks and shoulders of the drainage channel, particularly fracturing the soil and causing the collapse of the northern bank of Bayou Blanc, depositing materials into the right-of-way and existing drainage ehannel[.]” The District asked that Mr. Benoit be held “liable for, including but not limited to the cost of removing all material, construction debris and soil which shifted into the drainage channel, and the cost of restoration of the drainage channel and the cost of the restoration of the northern and southern banks of the drainage channel in order to prevent further erosion.”

While the matter proceeded to trial on January 31, 2012, and February 1-2, 2012, the record indicates that, at the close of the District’s evidence, “the parties stipulated subject to the approval of the members of the governing authorities that the Court would issue a Consent Judgment^]” The resulting Consent Judgment, signed by the trial court on March 12, 2012, provides, in part, that:

JA-
CHARLES BENOIT shall remove a maximum of 3,000 cubic yards by truck measure of construction debris, concrete and other material along and adjacent to the property belonging to CHARLES BENOIT from the north bank and the channel of Bayou Blanc, at his cost up to a maximum of $90,000.00, including excavation, removal and disposal.- If stabilization of the north bank is achieved with removal of less than 3,000 cubic yards of debris and material (as to quantity and slope) as determined by the 6th WARD consulting engineers, removal will cease. If after removal of 3,000 cubic yards of debris and material, stabilization -has not been .achieved, the 6th WARD DRAINAGE DISTRICT will be responsible for removal of sufficient additional material to achieve bank stabilization.
2.
CHARLES BENOIT shall grade, reshape and slope the bank to achieve a slope no-steeper than a 4:1 ratio but may be steeper if approved by the 6th WARD DRAINAGE DISTRICT engineer at the sole expense of CHARLES BENOIT including all measures for the-stabilization of the remaining- portion of the building nearest Highway 13 and erosion protection. Any damage or loss of the building shall be at the sole risk and -responsibility of - CHARLES BE-NOIT.
3.
CHARLES -BENOIT .shall remove the unstable, portion of the building nearest Highway 13 approximately the .southernmost twenty (20) feet of the building and shall remove all other .structures, including but .not limited to movable trailers, campers, manufactured housing, buildings and the large storage -structure at Avenue M, south of the existing private road. The existing private road may remain in place except as provided below. ..
4.
CHARLES BENOIT shall begin removal of the debris from the channel and north bank within sixty (60).days of the- signing of the Consent Judgment.
5.
-CHARLES BENOIT.shall grant a ¡permanent servitude in favor of the 6th WARD DRAINAGE DISTRICT over and across the property along Bayou Blanc south of his existing private road to the low bank. However, if a portion of the private road is within the area necessary for the servitude and to be determined by the' sloped (a 4:1 ratio), a steeper sloped ratio shall be approved by the consulting engineers, provided CHARLES BENOIT pays all the costs to maintain the private road with ■ a steeper slope ratio, No material whatsoever or any improvements, buildings or structures, including slope protection revetment or retaining walls shall be placed or constructed south of the existing road or 4:1 slope area at any time without the prior written approval of the 6th WARD DRAINAGE DISTRICT.
Jé-
All work, including excavation, removal and disposal of debris, sloping, grading and leveling, shall be completed by CHARLES BENOIT within one year of the date of signing of the Judgment and no debris or material removed from the bank shall remain on- the property except for material which is approved for fill or erosion control material and is leveled to grade.
7.
All work performed shall be subject to the approval and as directed by the 6th WARD DRAINAGE DISTRICT’S consulting engineers.

The record indicates that, following the 2012 judgment, the District repeatedly returned to court seeking Mr. Benoit’s compliance. The District first filed motion for contempt of court in May 2013 and alleged that Mr. Benoit had taken no action in compliance with the Consent Judgment, Following,a hearing, the trial court rendered an August 5, 2013 constructive contempt judgment, sentencing Mr. Benoit to “thirty (30) days in the Parish jajl[.]” However, the trial court ordered that the sen-, tenee be suspended if Mr. Benoit made “significant progress in complying with the requirements of the Consent Judgment” within sixty' days and if he completed “the cleanup process” detailed in the Consent Judgment within one year of the contempt judgment.

However, the District returned to the trial court with the filing of a second Motion for Contempt of Court in January 2014, alleging that Mr. Benoit had “taken no action whatsoever in complying with either the Consent Judgment dated March 14, 2012, or the Judgment On Rule dated August 5, 2013.” The District noted that “[m]ore than sixty (60) days ha[d] transpired since” the trial court’s order to “‘make significant progress in complying with the Consent Judgment.’ ” On July 15, 2014, the trial court issued an Order finding it to be “in the best interest of.the parties to defer sentencing to allow the Defendant/Respondent .to complete . the work in accordance with the Consent Judgment” pursuant to a stipulation reached between the parties. The trial court rescheduled the hearing on the Motion for Contempt and Motion to Enforce Consent Judgment until August 18, 2014. Following a hearing on |4that deferred date, the trial court again found Mr. Be-noit in contempt by judgment signed on October 15, 2014. The trial court sentenced the defendant to “thirty (30) days in the Parish Jail,” which the trial court again “suspended conditioned upon compliance” with a further stipulated Order.

In February 2015, the trial court considered another Motion for Contempt and to Enforce Judgment, and, by March 2015 judgment, found Mr. Benoit in contempt. The trial court sentenced Mr. Benoit to serve “a term of thirty (30) days in the Parish Jail, which sentence shall be suspended conditioned upon compliance with the following stipulated Order[.]” The judgment instructed Mr. Benoit “to have'a contractor mobilized on the property to begin excavation work, within sixty (60) days from February 18, 2015[,]” and to “provide written notice to plaintiffs’ counsel, three (3) days prior to the mobilization date, so that the engineers [could] stake out the area of excavation[.]” The judgment further ordered that Mr. Benoit’s “contractor shall meet with the engineers prior to any. excavation begin[ning.]” ,

However; the present matter was instituted when, in January' 2016, the District again filed a Motion for Contempt, seeking a finding of constructive contempt due to Mr. Benoit’s alleged “failure to comply with terms of the Judgment signed by this Honorable Court on March 4, 2015[.]”'The District contended that, although Mr. Be-noit' had served jail time following the prior finding of contempt, he had “taken no | ^action [in] furtherance of any of the obligations he agreed to perform, as documented in the Consent Judgment of March 14, 2012.”

Following a hearing, the trial court denied the Motion for Contempt, but ordered the parties to “meet and confer so as to agree upon a procedure to implement the Consent Judgment by setting a date to establish a time to begin the excavation work as stipulated in the Consent Judgment signed on March 12[sic], 2012[.]” The record indicates that the trial court thereT after issued, an April 4, 2016 Order detailing a timeline for the “re-staking” of the subject excavation site, as well as the District’s providing details regarding the necessary depth of the excavation.

The Order further provided instructions regarding the timeline for the mobilization of necessary equipment and the need “to maintain the integrity and placement of the survey stakes placed by defendants on the property, until actual excavation begins.” It also included reference to the need for the District’s supervisor to be on site at the time of the excavation “in order to verify, by truckload measurement, the amount of debris/fill removed from the ‘staked out’ area.” Further, the Order provided that “[t]he excavation of the required amount of debris/fill, and/or achievement of the slope required by the Consent. Judgment of March 14, 2012[,] will be accomplished on or before April 25, 2016.” Finally, it directed that the building that was to be “partially removed and/or demolished as per the Consent Judgment of March 14, 2012[,]” was to “be removed by 4/25/16.”-

The record contains a subsequent Order, which followed a “Status Conference in Open Court” on April 25, 2016. Therein, the trial court ordered “that all trucks and equipment (including the excavator) shall not be removed from the site until all of the work is completed unless it interferes with the' job progress.” The Order further instructed that “the building must be cleared and removed not later than this week[.]” It advised that “upon failure to do so,” another hearing would be schéduled on contempt charges or a status conference would be held. ’

| fiHowever, on June 6, 2016, the District filed the Motion for Contempt of Court resulting in the judgment now under review. Therein, the District alleged that its engineer met with Mr. Benoit and his contractor, reminding them “that the material excavated from the slope was to be loaded onto trucks so that a ‘truck’ measurement [] of the volume of material removed could be determined.” It explained that, although, by “May 23, 2016, a quantity of material had been excavated from the slope and placed on the top bank immediately' above the beginning of the slope[,]” “[n]o truck measurement of the excavated material was accomplished.” Further, the District alleged that the excavation performed “did not begin at the toe of the slope as required by the engineering analysis, in order to achieve a stable .slope.” Neither, the District asserted, had Mr. Benoit “removed the unstable portion of the building located near the Hwy 13 Bridge, as required by the Consent Judgment and the Order of April 4, 2016.” The District explained that it had corresponded with counsel for Mr. Benoit, requesting “a plan of action” to bring the work into compliance, but that “[a]s of May 31, 2016[,] no further work had been done on the site, and all of the contractor’s equipment had been removed.” Given its allegation that Mr. Benoit failed to comply with prior orders of the court in various regards, it again advanced its request for a finding that Mr. Benoit was in contempt of court. .

When the trial court conducted the contempt hearing in August 2016, the District presented testimony from its supervisor and its engineer, who each testified regarding excaváted material that had been piled atop the adjacent bank, but that had not been removed from the property, as well as photographic evidence of the site’s condition. While Mr. Benoit suggested that he had incurred costs at an amount that was sufficient to have satisfied his obligation under the Consent Judgment, the trial court limited his argument in this regard insofar as the figures were largely invoiced to |7him, but remained unpaid. The trial court allowed Mr. Benoit to proffer those invoices.

After argument from counsel regarding further plans to pursue completion of the necessary work, the trial court again entered a judgment of contempt, stating that it found Mr. Benoit “in contempt of Court for failing to comply with the provisions of the previous Consent Judgment ... dated March 14, 2012,” in that Mr. Benoit:

a. Failed to remove the unstable portion of the building located near LA Hwy 13;
b. Failed to load the excavated material into trucks for the- purpose of quantifying the amount of material excavated;
c. Placed excavated material south of the limestone road in [sic];[] and
d. Failed to make a good faith effort to comply with the provisions of the Consent Judgment and previous orders of this court[.]

The trial court sentenced Mr. Benoit to thirty days in the Parish jail. However, the trial court suspended execution of the sentence contingent upon Mr. Benoit’s “accomplishing” of the following within sixty days:

a. Removal of the unstable portion of the building nearest Highway 13, estimated to be the southernmost' twenty (20) feet of the building; and
b. Removal of all the excavated material; from south of the limestone road.

The judgment of contempt further included an Order that “any removal of excavated material will be quantified by truck measurement, verified by a representative of the [District]” and that Mr. Benoit was to, within ninety days, “comply with the provisions of the Consent Judgment dated March 14, 2012, regarding the required excavation of material at the ‘toe’ of the northern bank, removal of debris from the channel, and achieve the required slope,”

|sMr. Benoit thereafter appealed, and, before this court, asserts that the trial court- erred in: 1) barring “the introduction of. all evidence offered to show” that he “satisfied his $90,000 obligation;” 2) determining that costs he “obligated himself to pay for the work do not count for purposes of the $90,000 until he actually pays the specified amount[;]” and in 3) finding him in contempt “for failing to remove the unstable portion of a building on his property when the City and the District failed to offer any evidence of which portion of the building is unstable.”

Discussion

Mr. Benoit jointly addresses his assignments of error in his brief to this court, asserting that the trial court erred in discounting his contention that he satisfied the terms of the Consent Judgment insofar as he indebted himself in excess of $90,000 in his efforts to excavate the subject work site. In this regard, he cites.error in the trial court’s exclusion of invoices issued by his contractor, although he acknowledges that those invoices largely remain unpaid. Mr. Benoit also contends that the trial court erred in finding him in contempt for failure to remove the unstable portion of a building on - his property insofar as the District failed to prove that any portion of the building was unstable and that, contrarily, he testified that it was not.

As provided by La.Code Civ.P. art. 221, “[a] contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” Louisiana Code of Civil Procedure Article 224 lists' various acts that constitute constructive contempt of court. Pertinent to the present matter, is La. Code Civ.P. art. 224(2), which describes the “[wjilful disobedience of any. lawful judgment, order, mandate, writ, or process of the court” as a constructive contempt of court. In this latter regard, the trial court 19specifically determined that Mr. Benoit “[flailed to make a good faith effort to comply with the provisions of the Consent Judgment and previous orders of this court[.]”

This matter involves á finding of civil contempt, as it is one in which the trial court seeks to compel compliance with the underlying Consent Judgment. See Billiot v. Billiot, 01-1298 (La. 1/25/02), 805 So.2d 1170. The burden of proof applicable to a proceeding for civil contempt of court is the preponderance of the evidence standard. Paradise Bod & Gun Club, Inc. v. Roy O. Martin Lumber Co., Inc., 14-1184 (La.App.,3 Cir. 4/1/15), 160 So.3d 626.

While Mr. Benoit suggests that the' de novo standard of review is applicar ble in this matter as it is bne of contract interpretation, we find no merit in that assertion. Rather, within his argument-that he had a different interpretation of the meaning of the terms of the Consent Judgment, . Mr. Benoit admittedly disputes his consent to that judgment. Notably, however, “unless a consent judgment is an absolute nullity, it cannot be attacked collaterally[,]” Alternas v. Boudreaux, 15-725, p. 6 (La.App. 3 Cir. 12/23/15), 184 So.3d 142, 146, writ denied, 16-0157 (La. 3/24/16), 190 So.3d 1197. Instead, we find that the appropriate standard of review is that applicable to a trial court’s determination as to whether an individual should be held in contempt for disobeying a court order, i.e., the abuse of discretion standard. See Capital City Press, L.L.C. v. La. State Univ. Sys. Bd. of Supervisors, 13-1803, 13-1804 (La.App. 1 Cir. 12/30/14), 168 So.3d 669. However, the trial court’s “predicate factual determinations are reviewed under the manifest error standard.” Id. at 674.

With regard to the proffered invoices, Mr. Benoit argues that although they remain unpaid, the incurred obligation signaled satisfaction of the Consent Judgment. However, reference to the trial court’s exclusion of those receipts indicates riot only the trial court’s rejection of Mr. Benoit’s contention that the work was performed “at his cost” per the Consent Judgment, but that the District further challenged those invoices as they,- in part, reflected work performed outside of the paraméters of the I mCons'ent Judgment. On review, we leave the trial court’s rulirig .undisturbed and note, as an aside, .that the invoices themselves offer only vague descriptions of the work performed. See Medine v. Roniger, 03-3436, p. 6 (La. 7/2/04), 879 So.2d 706, 711 (explaining that “a district court is afforded great discretion concerning the admission of evidence at trial, and its decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of that discretion”).

Furthermore, and notwithstanding Mr. Benoit’s suggestion that his compliance with the Consent Judgment is indicated by the incurring of certain debt, reference to the Consent Judgment itself reveals a broader directive to Mr. Benoit as to the issue of the removal of debris. In this regard, the Consent Judgment ordered that:

CHARLES BENOIT shall remove a maximum of 3,000 cubic yards by truck measure of construction debris, concrete and other material along and adjacent to the property belonging to CHARLES BENOIT from the north bank and the channel of Bayou Blanc, at his cost up to a maximum of $90,000.00, including excavation, removal and disposal. If stabilization of the north bank is achieved with removal of less than 3,000 cubic yards of debris and material (as to quantity and slope) as determined by the 6th WARD consulting engineers, removal will cease. If after removal of 3,000 cubic yards of debris and material} stabilization has not been achieved, the 6th WARD DRAINAGE DISTRICT will be responsible for removal of sufficient additional material to achieve bank stabilization.

Significantly, and in addition to the fact that the work performed by Mr. Benoit has not yet been “at his cost” as determined by the trial court>—á fact not specifically addressed by the contempt ruling— the remainder of the order is quite detailed and dependent upon measurement.

For example, the Consent Judgment required that Mr. Benoit “remove a maximum of 3,000 cubic yards by truck measure” of designated debris. Yet, the excavated - debris was simply piled atop the adjacent bank without the assistance of trucks for either measurement or removal/disposal purposes. Thus, as testified to by the City of Crowley’s engineer, the measure of debris could not be assessed per “truck ^measure” as required by the Consent Judgment. Accordingly, the record supports the trial court’s finding of contempt in that Mr. Benoit “[flailed to load the excavated material into trucks for the purpose of quantifying the amount of material excavated[.j” .

Neither do we find merit in Mr.'Benoit’s contention "that the trial court erred in finding himrin contempt due to the determination that he-“[flailed to remove the unstable* portion of the building located near LA Hwy 13[.]” In this regard, Mr. Benoit suggests that “the City and the Drainage District failed to introduce any evidence of which portion of the building was unstable and whether that portion still remained on the property.” He also notes that he testified that no portion of the building was unstable and that he felt that the building could stay.

Finding no merit in Mr. Benoit’s argument in this regard, we note that the matter before the trial court was a motion for contempt rather than a challenge to the parametérs of the Consent Judgment. In this regard, the Consent Judgment was specific as to the portion of the building to be removed in that Mr. Benoit was ordered to:

[Rjemove the • unstable portion of the building nearest Highway 13 approximately the southernmost twenty (20) feet of the building and shall remove all other structures, including but not limited to movable trailers, campers, manufactured housing, buildings and the large storage structure at Avenue M, south of the existing private road.

(Emphasis added.) Thus, the District was not required to demonstrate which portion of the building was unstable at the time of the contempt hearing. Rather, the unstable portion of the building was designated at the time of the Consent Judgment. In turn, to maintain its burden of proof on the motion for contempt, the District was only required to demonstrate willful disregard of the Consent Judgment’s order as to the building. On this point, Michael Habetz, an employee of the District who maintained 112records of the progress on the property, testified that no portion of the subject building had been removed at the time of the hearing. Accordingly, we find no manifest error in the trial court’s determination that Mr. Benoit failed to comply with the Consent Judgment as to the removal of the building.

In addition to our finding as to the trial court’s particular factual findings addressed above, and given the circumstances of the five years between the Consent Judgment and the contempt ruling, we find no abuse of discretion in the trial court’s finding of contempt.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned the appellant, Charles Benoit.

AFFIRMED.

      . In this regard, the October 15, 2014 judgment ordered Mr. Benoit to:
      [Rjemove the remaining trailer/mobile homes south of the private road and demolish the warehouse building on east side of the property and thó 'southernmost portion of the warehouse building on the west side of the property (being approximately 20 to 25 feet thereof) within thirty (30) days from August 18, 2014, weather permitting, and any claim for rain delays shall be substantiated by a written log or other document evidencing same; ■ and ,
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that once the trailer/mobile homes have been removed and the buildings demolished, the engineers shall on or about October 1st or as soon thereafter as the tract has been cleared enter the site and commence surveying to calculate the proper slope and the "locations and amount of the debris to be removed[.]

      . The Motion for Contempt and Enforce Judgment referenced in. the trial court’s judgment is not contained within the present record. We include discussion of the resulting judgment for Background purposes.

      . As quoted above, the Consent Judgment ordered Mr. Benoit to "remove a maximum of 3,000 cubic yards by truck measure of construction debris, concrete and other material[.]" (Emphasis added.)

      . In his brief to this court, Mr. Benoit makes no argument regarding this particular finding of fact, which relates to the Consent Judgment’s directive that: "No material whatsoever or any improvements, buildings or structures, including slope protection revetment or retaining walls shall be placed or constructed south of the existing road or 4:1 slope area at any time without the prior written approval of the [District].”

      . Louisiana Code of Civil Procedure Article 224 defines constructive contempt of court as "any contempt other than a direct one[,]” whereas La.Code Civ.P. art. 222 defines direct contempt as "one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which 'appears of record."

      . Mr, Benoit contended that the removal of certain mobile homes on the property must be included in the work to be performed under the-Consent Judgment.

      . The Consent Judgment’s physical description of the building is mirrored in the judgment of contempt’s order that the sentence imposed be “suspended contingent upon [Mr. Benoit] accomplishing the following within sixty (60) days: a. Removal of the unstable portion of the building nearest Highway 13, estimated to be the southernmost twenty (20) feet of the building[.]”


author: Judge Paula A. Brown

text:
    Angele Schott THOMPSON, Wife of and Alphonse M. Thompson, Jr. v. FRF PROPERTIES, LLC and Jody Ferchaud
    NO. 2017-CA-0152
    Court of Appeal of Louisiana, Fourth Circuit.
    11/02/2017
    Rehearing Denied November 15, 2017

      Al M: Thompson, Jr., AL M. THOMPSON, JR., L.L.C., 365 Canal Street, Suite 2960, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    Irl R. Silverstein, David A. Silverstein, THE ' SILVERSTEIN LAW' FIRM, A PLC, 635 Lafayetté Street, Gretna, LA 70053, ’ COUNSEL FOR DEFENDANT/APPELLANT ■
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown)
   Judge Paula A. Brown

11 This, matter involves the termination of a predial servitude. Appellants, FRF Properties, LLC and Jody Ferchaud (collectively, “FRF”), appeal the trial court’s judgment which .granted the Petition to Terminate Servitude for ,Non-Use .(the, “Petition”) filed on behalf of Appellees, Angele Schott Thompson and Alphonse M. Thompson, Sr. (collectively, the “Thomp-sons”). For the reasons that follow, we reverse.

STATEMENT OF FACTS

The Thompsons are the owners and occupants of property located at 384 Audubon Street (“384 Audubon”) in New Orleans, Louisiana, Lot 11-A. FRF owns property located at 390 Audubon Street (“390 Audubon”) in New Orleans, Louisiana, Lot 13-A—which is presently a four-plex. Through an act of sale dated June 2, 1967, the Thompsons’ ancestor in title ere-ated a servitude of right-of-way in favor Lot 13-A for the purpose of maintaining a driveway to provide access to Lot 13-A. The servitude terms stated in part:

There, is hereby created and reserved, in favor of lot 13-A, the property herein conveyed on the side toward Pitt Street and in favor of the present and future owners of said lot 13-A, a servitude of right-of-way for the purpose of maintaining and using a driveway for access to the |2said lot 13-A, said servitude affecting a strip of land fronting 3 feet on Audubon Street by a depth between equal, and parallel lines of 101 feet, 4 inches, 5 lines, a width in the rear of 3 feet, said strip of land commencing at the point of intersection of the line of Audubon Street and the line dividing lot 11-A from lot 13-A, all as shown on the aforementioned plat of survey attached hereto.

The properties are,,adjacent to each other. The properties are separated by a driveway/ which: consists of two parallel lines of concrete strips—one strip on 384 Audubon, the servient estate, and'the other strip on 390 Audubon, the dominant estate. A three feet wide space exists between the parking strips. The servitude runs from the street' to a garage structure located in the rear of the 390 Audubon property.

On or about March 31, 2016, Jody Fer-chaud took possession of the lower unit of the four-plex at 390 Audubon property, the unit nearest to Prytania Street. A dispute ensued between the Thompsons and Mrs. Ferchaud. The Thompsons alleged that Mrs. Ferchaud improperly-parked her vehicle on the servitude area,'blocked their view, destroyed them vegetation, and threatened the Thompsons. As a result of the dispute, the Thompsons filed their. Petition. The Petition alleged, in part, that since the Thompsons moved to 384 Audubon on February 3, 2000, a fence hád been erected across the 390'Audubon side of the parking strips and that the' servitude had not been used to access the rear of the property. The Petition | ¡further alleged that Mrs. Ferchaud, by parking her vehicle on the servitude, violated its original intent—to facilitate passage to the rear of the' property. Accordingly, the Thomp-sons' sought the following: 1) to extinguish the servitude for nonuse; 2) to enjoin Mrs. Ferchaud from parking on any portion of . the servitude or damaging the Thompsons’ vegetation; and 3) monetary damages.

The trial court.conducted a trial on the merits regarding the .termination of the servitude and the Thompsons’ request for damages on July 8, 2016. In addition to their testimony, the Thompsons called Peter Dodge, Jeanne Landry, and Ivan Man-dich as supporting witnesses.

Peter Dodge testified that he lived at his Broadway Street home since 1976. His house is located directly behind 384 Audubon and partially behind 390 Audubon. Mr. Dodge stated the rear of the property located at 390 Audubon was generally unkempt and that a fence separated the two Audubon Street properties. Mr. Dodge said that he had never seen a vehicle .traverse the parking strips between 384 .and 390 Audubon. He also stated that he had not seen vehicles parked in the rear of the properties during the time he has lived in his Broadway home.

Jeanne Landry, a regular visitor and long-time friend of the Thompsons, testified that a full row- of azaleas on the Thompsons’ side of the'two. parking strips [4had been cut. Similar to Mr. Dodge,- Ms. Landry said the rear area of 390 Audubon was neglected and she noted a chain fence had been erected. Ms. Landry also testified that she never saw a vehicle parked in the driveway of the four-plex, nor had she ever seen a vehicle travel across the parking strips to enter the rear of the .four-plex. Ms. Landry also,identified a photograph depicting the Thompsons’ azalea bushes and a vehicle parked on the parking strips; however, she could not confirm whether the azaleas impeded the driveway or whether the vehicle was actually parked on the 384 Audubon parking strip.

Ivan Mandich, a nearby neighbor of the Thompsons,, said he regularly passed 384 and 390 Audubon Street. According to Mr. Mandich, he had never seen any vehicles drive across the parking strips between the adjacent properties, nor had he-ever seen any vehicles parked there. He added a. vehicle could not easily park there because of the narrow passage way and .the presence of a stump.

Mrs. Thompson verified that she had lived at, 390 Audubon since 2000. She met Mrs.- Ferchaud on- March 31, 2016. .Mrs. Thompson testified that after Mrs. Fer-chaud. drove up in her vehicle, she told Mrs. Ferchaud that she could not park on the parking strips^ In response, she said Mrs. Ferchaud screamed that “as the owner, she could park wherever she wanted.” Mrs. Thompson stated that on the ensuing Sunday, April 2,' 2016, she saw Mrs; Fer-chaud clip her azalea bushes.

Mrs. Thompson described the servitude area from its rear portion towards Audubon Street. She noted that there was. a chain link fence, “a bunch of overgrown stuff,” and a tree stump in .the area of the servitude. Mrs. Thompson .1 .-¡testified that the structure in the rear of 390 Audubon had collapsed and only a concrete slab remains in its place. Mrs. Thompson said two parallel concrete parking strips remain on the front' portion cjf the lot—une on the 390 Audubon side of the property and the second on her property at 384 Audubon. Mrs. Thompson testified that the servitude had not been used for passage since she and her husband'purchased their home in February 2000 and she never consented to allowing anyone to park' on the parking strip located on 384 Audubon.

Mr. Thompson testified that he had never given anyone permission to park on the 384 Audubon parking strip and no one had ever sought his permission to do so. He identified photographs of his property and the géneral area of the' servitude. Mr. Thompson complained that Mrs. Ferchaud continued to park on the 384 Audubon parking strip, notwithstanding a consent judgment which precluded her from doing so. He said he had never seen anyone access the rear of 390 Audubon by driving oh the parking strips, nor had he seen anyone walk on the 384 Audubon parking strip to access the chain link fence area. Mr. Thompson also denied planting any vegetation to block access to the servitude.

FRF countered with testimony from Erin Winters, Vanessa Manuel—a former tenant at 390 Audubon—and Dr. Bruce Raeburn—a current tenant at 390 Audubon. Erin Winters, whose uncle was married to Mrs. Ferchaud, testified that she managed FRF from 2002 to 2010. She allowed tenants to park on the left side of the 390 Audubon building on a seniority basis for a fee. She testified that the Thompsons never contacted her to complain about the parking. On" cross- | examination, she admitted she did not necessarily receive complaints; she also said she was unaware a servitude existed on the property.

Ms. Manuel testified that she lived at 390 Audubon from June 2006 until May 2Ó07. She said that when she resided there, she parked her vehicle in the driveway between 384 and 390 Audubon Street. When she exited her vehicle, she accessed her unit through the front door. Ms. Manuel also recalled an occasion when her mother parked her truck in the driveway and her truck door was damaged by Mrs. Thompson. According to Ms. Manuel, Mrs. Thompson admitted dragging a garbage can down the space between her home and the parking strips, scraping the truck with the garbage can. Ms. Manuel said she reported the incident to the police, but when the police arrived, Mrs. Thompson told them that the driveway was a shared easement. According to Ms. Manuel, the police officer advised her that he could not write a report, but told her that she could seek damages in civil court. Ms. Manuel testified that the Thompson’s had never told her she could not park on the parking strips.

Dr. Bruce Raeburn, a forty-year resident of 390 Audubon, testified that during thirty-four of the forty years he resided there, he routinely saw people turn onto the street and then drive onto the parking strips and park their vehicles. His testimony included the following:

Q. In the 40 years that you’ve resided there, have you seen people driving— turning onto the street, driving on this [sic] drive strips and parking their vehicles?
A. Routinely for at least 34 of the 40 years.
|7Q. I just want to ask you one more thing to make sure we understand here. If someone is driving on Audubon Street and turns on to this property, whether it’s a tenant or a guest, they would normally come up on these parking strips?
A. Yes.
Q: So they would be accessing this building by coming over those parking strips?
A. That’s correct. That’s routinely what the tenants who lived in either apartment azalea or apartment C did.

Dr. Raeburn also testified that Ms. Manuel, who previously resided in “apartment azalea” at 390 Audubon, complained to him in 2007 or 2008 about her dispute with the Thompsons over the parking strip.

Mrs. Ferchaud testified that she moved into 390 Audubon on March 31, 2016. She identified herself as the owner to Mrs. Thompson. Shortly thereafter, Mrs. Thompson told her that she could not park on the “parking pad.” Mrs. Ferehaud said she did not know that a servitude existed until she went to the Conveyance Office and reviewed copies of the act of sale. She said she learned that she had a right to use the servitude to access 390 Audubon; however, she understood the servitude terms did not give her permission-to park on the 384 Audubon parking strip. Mrs. Ferchaud testified that she now parks her vehicle on the FRF portion of the parking strips; but she steps onto the 384 Audubon parking strip to access her front door when she exits her vehicle. Mrs. Ferchaud added that she did, in fact, cut the Thomp-sons’ azalea bushes because they impeded her ability to exit her vehicle without damaging her car door. On cross-examination, IsMrs. Ferchaud conceded that she did not know anything about how people had parked their cars before she arrived.

Following the trial, on July 15, 2016; the trial court rendered judgment in favor of the Thompsons, terminating the servitude for nonuse. The judgment also dismissed the Thompsons’ damages claims. FRF filed a Motion for New Trial on July 22, 2016. The trial court denied the motion on November 22, 2016 and provided written reasons for the judgment. Thereafter, FRF filed the present appeal.

STANDARD OF REVIEW

In 1026-Conti Condominiums, LLC v. 1025 Bienville, LLC, 2015-0301, p. 4 (La. App. 4 Cir. 12/23/15), 183 So.3d 724, 727, writ denied, 2016-0144 (La. 3/14/2016), 189 So.3d 1067, this Court espoused:

Judgments regarding servitudes are reviewed under the manifest error standard of review. Allen v. Cotten, 2011-1354, p. 3 (La. App. 3 Cir. 5/2/12), 93 So.3d 681, 683 [citations omitted]. An appellate court may not set aside a trial court’s findings of fact unless they are manifestly erroneous or clearly wrong. Id. (citing Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 (La. 1993)). To reverse under -the manifest error rule, an appellate court must find from the record that there is no reasonable basis for the trial court’s finding and that the record shows the finding to be manifestly erroneous. Id. (citing Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880 . (La. 1993)).

In determining whether the trial court’s finding was manifestly erroneous or clearly wrong, a reviewing court must do more than just review the record for some |9evidence which supports or contradicts the trial Court’s finding; but rather, it must view the record in its entirety. Stobart, 617 So.2d at 882.

DISCUSSION

A predial servitude is a charge on a servient estate for the benefit of the dominant estate. La. C.C. art. 646. La. C.C. art. 705 provides in part:

The servitude of passage is the right for the benefit of the dominant- estate whereby persons, animals, utilities; or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and.the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate.

A predial servitude may be extinguished by nonuse for ten years. La. C.C. art. 753. Prescription of nonuse begins to run'for affirmative servitudes from the date of their last use. La. C.C. art. 754. “When the prescription of nonuse is pleaded, the owner of the dominant estate has the burden of proving that he or some other person had made use of the servitude as appertaining to his estate during the period of time required for the accrual of the prescription.” La. C.C. art. 764. An essential element of proof in extinguishing, a servitude for nonuse is whether the servitude was in fact used for any purpose consistent with its grant. Palgrave v. Gros, 2002-249, p. 4 (La. App. 5 Cir. 9/30/02), 829 So.2d 579, 582.

FRF raises two. assignments; of error in support of its claim, that the trial court erred in terminating the servitude for non-use. First, FRF argues that it offered sufficient testimony to prove at least a single use in the past ten years. Next, FRF asserts the trial court erred in terminating the servitude for what it | Tntermed “illegal uses,” namely, parking on the servitude. We shall first examine FRF’s argument that it proved use within the prescriptive period.

FRF cites to Ms. Manuel’s and Dr. Raeburn’s testimony as documented proof of use of the servitude within the past ten years. In rebuttal, the Thompsons contend that although the driveway area consists of two parking strips—one on the servient estate and the' other on the dominant estate—FRF failed to prove that any alleged use occurred on the 384 Audubon parking strip. Our review of the trial court’s reasons for judgment establishes that the trial court did, in fact, agree with the Thomp-sons that neither the. testimony of .Ms. Manuel nor Dr. Raeburn affirmatively showed that Ms. Manuel or others parked on or used the 384 Audubon parking strip in any way within the past ten years.

With reference to Ms. Manuel, the trial court' determined * that her testimony, wherein she stated that she had “parked in the driveway,” did not conclusively prove that she parked on the 384 Audubon parking strip. The trial court found Ms. Manuel’s testimony was vague, in that Ms. Manuel did not specify whether she had ever “áctually used any portion of the servitude to access passage to the duplex.” The trial court also concluded Ms. Manuel did not provide, .objective evidence to show that her mother parked on the servitude portion of the parking strips,

Similarly, the trial court found Dr. Rae-burn’s testimony was “fatally vague.” In its reasons for judgment, the trial court noted that while Dr. Raeburn testified individuals used the parking strips, he failed to specify when the use occurred, orJjjthat the 384 Audubon parking strip was specifically used. The trial court further reasoned that only Mrs. Ferchaud gave specific testimony that she drove on the 384 Audubon parking strip for the specific purpose of parking her vehicle to gain _ access to 390 Audubon. However, the trial court concluded that Mrs. Ferchaud’s actions were not dispositive of use because it occurred in 2016—after the ten years of nonuse of the servitude lapsed.

Upon careful scrutiny of the record in its entirety, particularly the testimony of Dr. Raeburn, we conclude there is no reasonable factual basis upon which the trial court based'its decision to terminate the servitude. Notably, the trial court- did not find that Dr. Raeburn’s testimony lacked credibility. Rather, the trial court deemed his testimony vague. The record contradicts the trial court’s conclusion- for the following reasons. .

First, the record shows that Dr. Rae-burn expressly testified that he routinely saw people park- their vehicles and drive onto the parking strips during thirty-four of the forty years he lived at 390 Audubon. Dr. Raeburn, who described himself as a current friend of the Thompsons, stated that he lived at 390. Audubon years before the Thompsons moved to 384 Audubon in February 2000. ■ The Thompsons brought their petition to terminate the servitude in 2016. Thus, the trial court’s finding that Dr. Raeburn’s testimony lacked detail as to when he observed individuals driving on the parking strips, erroneously, miscalculated the passage of time. Based upon Dr. Raeburn’s testimony, the latest he could have made his I ^observations regarding use of the parking strips would have been 2010—well within the ten-year time period to interrupt prescription for nonuse of servitude.

Secondly, the record shows that Dr. Raeburn did, indeed, testify with specificity that individuals had driven, parked, and walked on the servitude. As referenced herein, Dr. Raeburn’s testimony affirmatively states that he saw individuals drive and park onto the parking strips in order to access 390 Audubon. He also .said he saw occupants of his upstairs unit come down the exterior stairs and.walk onto, the “parking pad.” He did not know of anyone who limited themselves to “not walking on the three-foot servitude.” Moreover, Dr. Raeburn’s testimony—-that Ms. Manuel complained to him in 2007 or 2008 about her dispute with Mrs. Thompson over use of the 384 Audubon strip—bolsters Ms. Manuel’s testimony regarding the use of the parking strips within the requisite ten-year prescriptive period. We find Dr. Rae-burn’s testimony that he saw individuáis drive their vehicles onto and park on both parking strips to access 390 Audubon, as well as walk on the servitude, necessarily equates to use of the servitude.

Next, we turn to FRF’s claim that the trial court erroneously terminated the servitude because'the court found that any use was for illegal parking. At the outset, we note the record refutes that claim. Upon finding that FRF had failed to prove any actual use of the servitude within the past ten years, the trial court opined in its reasons for judgment that “the court need not address whether or not parking on the servitude operated to toll the prescriptive period.” Given that the trial court did not terminate the servitude because it was improperly used for 11sparking and this Court’s determination that the trial court erred in finding FRF did not proye use, this assignment of error is moot and need not be addressed by this Court. Notwithstanding, we shall review .this-alleged error in light of the Thompsons’ contention that the only “use” demonstrated by FRF— parking on the servitude—should. be deemed insufficient to interrupt prescription. . .

The Thompsons argue that parking on the servitude was inconsistent with the servitude’s purpose, which they allege was to providé passage to the rear of 390 Audubon. They assert that in order to interrupt prescription for nonuse, the use must be a use contemplated under the grant of the servitude, relying on Palgrave, 2002-249, p. 4, 829 So.2d at 582. In Palgrave, a servitude of passage granted the appellants the right to' bring their boats in and out of Bayou Barataría. The Palgrave Court' determined that the appellants’ actions in walking across the servient estate did not constitute use of the servitude sufficient to interrupt prescription. Id. at pp. 6-7, 829 So.2d at 583-584. In conjunction therewith, the Thompsons contend that parking on á servitude that was created to facilitate passage to the rear of the dominant estate does not constitute a use consistent with the servitude’s creation.

FRF does not dispute that the servitude created, herein is a servitude of passage and not a servitude of parking. However, FRF challenges the Thompsons’ assertion that the servitude was created strictly to allow passage to the rear , of 390 Audubon. FRF asserts that the servitude’s creation was to permit access to any part of the dominant estate. FRF relies on the servitude’s terms which state, in |upart, that the servitude created is “a servitude of right-of-way for the purpose of maintaining and using a driveway for access to the said Lot 13-A...” (Emphasis added).

“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046. Applying this legal precept to the present matter, we must agree with FRF that a clear reading of the servitude’s terms shows its purpose was to create a servitude of passage to access Lot-13A (390 Audubon), not just to the rear of the property.

Given our determination that the servitude grants access to the entirety of 390 Audubon, it cannot be terminated solely because it was not also used to access the rear of the property. Express statutory authority provides that partial use of the servitude constitutes use of the whole. See, La. C.C. art. 759. Therefore, any use of a portion of the area burdened with a predial servitude interrupts the prescription of nonuse as to the entire area. Claitor v. Brooks, 2013-0178, p. 7 (La. App. 1 Cir. 12/27/13), 137 So.3d 638, 643-44. Upon review, we find FRF’s evidence—which showed parking, driving and/or walking onto the servitude in order to access 390 Audubon—proves usage consistent with the servitude’s grant, and thereby, sufficient to interrupt prescription.

I ^CONCLUSION

Based on the foregoing reasons, we find the trial court’s judgment to terminate the servitude for nonuse was manifestly erroneous. FRF met its burden of proof. Accordingly, the judgment is reversed.

REVERSED

      . Throughout the record, the parties interchangeably refer to the parking strips as the "driveway,” "drive strips,” or "parking pads.” For consistency purposes, this opinion will- reference .the area as "parking strips" where applicable.

      . The servitude is also referred to as "the 384 Audubon parking strip” in this opinion.

      . The Thompsons represented' that the1 fence was constructed by FRF or its ancestors in title.

      . Prior to trial, the-trial court issued a'temporary restraining order on .April 6, 2016. In response to the restraining order, FRF filed a Motion to Dissolve Temporary Restraining Order. On April 20, 2016; a judgment was rendered dissolving the restraining order and ordering the Thompsons to pay $700.00 in costs to FRF. By consent, the parties agreed to a preliminary injunction which enjoined FRF from parking on any portion of the servitude and from having any contact with the Thompsons.

      .As referenced, the parties reached a consent judgment on the temporary restraining order. Accordingly, the bulk of the trial testimony summarized herein focuses on evidence relevant to the servitude.

      . The trial court originally drafted a judgment that denied relief fo Plaintiffs' motion for new trial. Upon recognizing the error, the trial court vacated that judgment; and on the same date, issued the present judgment and incorporated reasons which denied Defendants’ motion for new trial.


text:
    Nicole DOTSON v. REGENCY PARK TOWNHOME OWNERS ASSOCIATION and ABC Insurance Company In re: Colony Insurance Company
    NO. 2016-C-0027
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 2016
   Relator, Colony Insurance Company, seeks review of the trial court’s January 8, 2016 judgment denying its motion for summary judgment. Because we find the Colony policy at issue does not provide coverage for plaintiffs claims, we reverse the trial court judgment, grant summary judgment in favor of Colony and dismiss plaintiffs claims against Colony with prejudice.

On February 9, 2013, plaintiff, Nicole Dotson, slipped and fell at an event at the Regency Reception Hall located at 7300 Downman Road in New Orleans. Plaintiff timely filed a petition for damages against the owner of the reception hail, Regency Park Townhome Owners Association (“Regency Park”), and its insurer. Regency Park answered the petition and filed a third party demand against KMP, LLC and Colony Insurance Company.

12According to Regency Park’s third party demand, KMP leased the reception hall from Regency Park for the period of August 1, 2009 through July 31, 2014. The lease allegedly required KMP, among other things, to maintain commercial general liability insurance naming Regency Park as an additional insured and to indemnify and defend Regency Park as to all claims arising out of the 'use of the premises. Regency Park further alleged that KMP obtained a commercial general liability insurance policy from Colony, which provides coverage to Regency Park as an additional insured for claims asserted by plaintiff. The named insured listed on the insurance policy is KMP, LLC/Kurte Pellerin (“KMP”). The policy stated that the policy period was from October 31, 2012 through October 31, 2013, but the policy was cancelled on December 20, 2012 due to nonpayment to the finance company. Plaintiffs accident occurred after the policy was cancelled.

On August 31, 2015, Colony filed a motion for summary judgment arguing that the insurance policy does not afford coverage for plaintiffs claims and Colony does not owe defense and indemnity to Regency Park,. Regency Park and plaintiff .opposed the motion for summary judgment, arguing that Regency Park was an additional insured under the Colony policy, and that Colony failed to properly provide notice to KMP and Regency Park prior to cancellation of the policy. Following a hearing on December 10, 2015, the trial court denied Colony’s motion for summary judgment, finding that genuine issues of material fact remain. ’

Colony timely filed this writ application, arguing that the trial court erred in denying its motion for summary judgment. Specifically, Colony argues that there are no issues of fact that the policy was properly cancelled prior to plaintiffs accident, the policy does not afford coverage for plaintiffs claims and Colony is not obligated to defend any party against plaintiffs claims.

| .¡Appellate courts review rulings on motions for summary judgment de novo, utilizing the same criteria applied by the trial courts to determine .whether summary judgment is appropriate. Hooper v. Brown, 2015-0339 (La.App. 4 Cir. 5/22/15), 171 So.3d 995, 999. At the time of the hearing on the motion for summary judgment, Louisiana Code of Civil Procedure article 966 provided that summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admission, together with the affidavits, if any, admitted for .purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The applicable version of La. C.C.P. art. 966(C)(2) set forth the burden of proof on a motion for summary judgment as follows:

■ The burden of proof remains with the movant. However, if the- movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence , of factual support for one or more elements essential to the .adverse, partjds claim,action, or defense. Thereafter, if the adverse’ party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact,

Both Regency Park and plaintiff contend that under La. R.S. 9:3550, entitled “Insurance Premium Finance Companies,” Colony was required to provide notice of the insurance policy cancellation. La. R.S. 9:3550 specifies acts to be | ¿performed by the premium finance company ’in order to cancel an insurance contract.- In this matter, the policy was not cancelled by the insurer, Colony, but by the named insured, KMP, through power of attorney held by the premium finance company. Capital Premium Financing, Inc., the premium finance company in this matter, not Colony, was responsible for notifying the insured, KMP, and its agent of the cancellation of the insurance policy, The only notification requirements placed upon the insurer in La. R.S. 9:3550 are stated in Section (G)(4) as follows:.

Upon receipt of the notice of cancellation, the insurer shall give notice to any governmental agency, holder of a security interest in the insured property, or other third party as shown in the records of the insurer requiring statutory, regulation, or contractual notice and which were not given by the premium finance company as provided in, Paragraph (3) of this Subsection. The insurer shall give the prescribed notice on behalf of itself or the insured to any , governmental agency, | ¡¡holder of a security interest in the insured property, or third party on or before the fifth business day after the day it receives a copy of the notice of cancellation from the insurance premium finance company and shall determine the effective date of cancellation taking into consideration the number of days notice required to complete the cancellation if such notice is given by the insurer, otherwise the effective date of cancellation shall be calculated from the date the premium finance company sent the notice to such governmental agency, holder of. a security interest in the insured property, or other third party taking into consideration the number of days notice required to complete the cancellation.

Regency Park is not listed as an additional insured on the policy -or named in the premium finance agreement. There is no evidence that Regency Park was entitled to notice of cancellation by the insurer pursuant to La. R.S. 9:3 550(G)(4). Thus, Colony was under no obligation to notify Regency Park when Colony received notice of cancellation.

On December 6,2012, Capital sent KMP and its agent a notice of -intent to cancel the insurance coverage indicating that the policy coverage would be cancelled on December 20, 2012 if the past due amount was not received by Capital prior to the cancellation date. On December 20, 2012, Capital provided Colony, KMP and KMP’s agent with notice that KMP’s premium finance agreement was in default, and that the policy was' cancelled. Because the policy was cancelled on December 20, 2012, it was not in effect at the time of the plaintiffs accident on February 9, 2013.

Because wfe’ find that no genuine issues of material fact remain and that the Colony policy does not afford coverage for plaintiffs claims, we find the trial court erred in denying Colony’s motion for summary judgment. We reverse the |fitrial court judgment, and render judgment granting summary judgment in favor of Colony. Plaintiffs claims against Colony are hereby dismissed with prejudice.

/s/Madeleine M. Landrieu JUDGE MADELEINE M. LAN-DRIEU

/s/Dennis R. Bagneris, Sr. JUDGE DENNIS R. BAGNERIS, SR.

/s/Rosemary Ledet JUDGE ROSEMARY LEDET

      . Subsequent to Regency Park’s filing of its answer and third party demand, plaintiff filed a first amended and supplemental petition for damages naming KMP and Colony as additional defendants to the main demand.

      . La. R.S. 9:3550(G) provides in pertinént part:
      G, Insurance contracts may be canceled upon default as follows:
      (1) When a premium finance agreement contains a power of attorney enabling the insurance premium finance company to cancel any insurance contract, or contracts, or endorsements listed in the agreement, the insurance contract, or contracts, or endorsements shall not be canceled by the insurance premium finance company unless such cancellation is effectuated in accordance with this Subsection.
      (2) Upon default of the insurance premium finance agreement by the debtor, the premium finance company shall mail or send an electronic notice of cancellation to the insured, at his last known mailing or electronic address as shown on the records of the insurance premium finance company. In the event the default is timely cured, the premium, finance company shall, within three business days- from the time the default was cured, mail or send electronic notice of rescission of the cancellation notice to the insured, at his last known mailing or electronic address as shown on the records of the premium finance company and to all other parties who had previously been sent notice of cancellation. In the event the default is not timely cured as provided' herein and the insurance policy is canceled pursuant to the terms of the insurance premium finance agreement, a copy of the notice of cancellation of the. insurance contract shall also be sent to the insurance agent negotiating the related insurance contract whose name and place of business appears on the insurance premium finance agreement. Such notice of cancellation shall also state the name of any governmental agency, holder of a security interest in the insured property, or third party also requiring notice of cancellation as shown on the insurance premium finance agreement.
      (3)(a) Ten days after notice of cancellation has been mailed to the insured, if the default has not been cured, the insurance premium finance company may thereafter effect cancellation of such insurance contract, or contracts, or endorsements by sending to the insurer, by depositing in the mail or with a private carrier, or via electronic mail, within five business days after the date of cancellation...

      . According to the insurance premium finance agreement, Capital was granted power of attorney for Colony. Additionally, the insurance premium finance agreement stated in part as follows:
      Capital may cancel the insurance policies, declare the entire amount of loan immediately due and payable, with or without recourse to any security for the debt and collect the entire unpaid balance due, if any, Borrower agrees to indemnify and hold Capital harmless from any third party claims that arise, either directly or indirectly, from Capital's cancellation, pursuant to the power of attorney granted to Capital herein....

      Borrower and Producer agree that the liability of Capital tó any person or corporation upon the exercise of the power of attorney contained herein shall be limited to the amount of the principal balance.

      . At no time prior to cancellation was Regency Park named as an additional insured under the policy. The fact that 'Regency Park was listed as an1 additional insured on'the certificate of insurance did not. confer rights upon Regency Park under the policy. The certificate states that.it.does not constitute, a contract between the insurer and the certificáte holder, and conférs no tights upon the certificate holder. Further, it states that if the certificate . holder is an additional insured, the policy (must be so endorsed. The policy was never endorsed to add Regency Park as a named insured.