author: Judge Edwin A. Lombard

text:
    STATE of Louisiana v. Richard ABBOTT
    NO. 2017-KA-0016
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 14, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE/APPELLEE
    Martin E. Regan, Jr., Paul J. Barker, REGAN LAW, PLC, 2125 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins)
   Judge Edwin A. Lombard

|,The defendant, Richard Abbott appeals his conviction and sentence for second degree battery, a violation of La. Rev. Stat. 14:34, arguing that the trial court erred in denying his motion for a new trial. After review of the record in light of the applicable law and arguments of the parties, the judgment of the trial court is affirmed.

Relevant Facts and Procedural History

On the evening of July 18, 2015, the defendant was involved in an altercation outside the Three-Legged Dog, a French Quarter bar. The defendant was commissioned to carry a weapon as a state fire marshal at the time of the incident and, as an arson investigator, was assigned a state-owned, explosive-sniffing service dog. Prior to the altercation, the off-duty (but armed) defendant was drinking at the bar, accompanied by his off-leash service dog. The defendant was arrested and, on July 24, 2015, a grand jury returned an indictment charging him with one count of aggravated battery and one count of possession of a firearm while on the premises of an alcoholic beverage outlet. At his arraignment on August 3, 2015, the defendant pleaded not guilty to both counts and, on September 4, 2015, the State entered a nolle prosequi on the second count. On September 8, 2015, the trial' court granted the defendant’s motion to waive his right to a trial by jury.

On January 29, 2016, just prior to trial, the defendant filed a motion pursuant to La. Code Crim. Proc. 781, seeking a charge on the use of force or violence in defense the defendant filed a motion to instruct on the justifiable use of force or violence in defense, citing La. Rev. Stat. 14:19(A)(1)(a),(C) and (D). On February 17, 2016, the defendant filed a second motion seeking a charge on the burden of proof pertaining to a justification defense. However, the record before the court does not reflect a trial court ruling on the defendant’s motions to instruct, nor does -the record indicate that a defense objection to the trial court ruling or failure to rule on the defendant’s motions.

The following evidence was adduced at the two-day trial which began on January 29, 2016:

Sergeant Andrew Packer of the New Orleans Police Department (NOPD) testified that the night of July 18, 2016, he was working a paid detail in the French Quarter when, at 8:36 p.m., he was dispatched to an aggravated battery in progress |aat the Three-Legged Dog. At the scene, Sergeant Packer interviewed the victim, Curtis . Courtney, and several witnesses. He observed open lacerations on Mr. Courtney’s head and the defendant, who appeared intoxicated, seated at the bar. After learning that defendant struck Mr, Courtney on the head with a handgun, he placed the defendant under arrest, administered Miranda warnings, and recovered a loaded .357 magnum revolver from the defendant’s rear pocket. Sergeant Packer observed that the defendant’s state-issued, explosive-sniffing, service dog was not on a leash and was located in another room of the bar.

On cross-examination, Sergeant Packer related Mr. Courtney’s version of events: Mr. Courtney and his friend were outside the bar when the defendant approached them and asked if they knew the location of his dog. They responded that they did not know and the defendant began beating Mr. Courtney on the head with a pistol. Sergeant Packer testified that the two bartenders verified that the defendant had been consuming alcohol and that the defendant was too intoxicated to interview, although Sergeant Packer believed the defendant understood the Miranda warnings when given. Sergeant Packer conceded that the defendant was not given a breathalyzer test and that the intake report narrative incorrectly identified the two bartenders as male.

NOPD Detective Christopher Laborde testified that he was at the police station on July 18, 2016, when Sergeant Packer arrived with the defendant. Detective La-borde removed all items bearing the identification of the state fire marshal’s office from the defendant’s wallet and then, with another officer, relocated to the Three-Legged Dog to retrieve the video surveillance footage and [¿take photographs of Mr. Courtney’s injuries. Detective La-borde related that, prior to their arrival, the manager of the bar had been instructed by Sergeant Packer to recover the video surveillance of the incident from the bar’s video cameras and to download the footage to a “jump drive.”

Detective Laborde narrated the video surveillance tape with his observations as it was played in open court. According to Detective Laborde’s description, at 8:31 pm the defendant was seated at the bar and Mr. Courtney was outside with an unidentified dog. Detective Laborde identi* fled another man in a dark shirt as Marshal Edwards, the man who initially apprised the defendant that his service dog was absent from the bar. The defendant pushed Mr. Edwards and when Mr. Courtney attempted to break up the fight, the defendant hit Mr. Courtney with an object he retrieved from his waistband. Detective Laborde testified that the surveillance video corroborated the version of events related to him by Sergeant Packer earlier that evening. Detective Laborde stated that defendant declined to be interviewed.

On cross-examination, Detective- La-borde conceded that Sergeant Packer selected the. surveillance footage to collect, consisting of twenty minutes of footage from only three of the twelve camera angles. He also conceded that, to his knowledge, Mr. Courtney declined to seek medical attention for his injuries, Detective Laborde acknowledged that the incident report incorrectly identified the two bartenders as male and did not include any indication that the defendant was “too drunk.. .to question.”

Mr. Edwards testified, stating he was a regular patron of the Three-Legged Dog. On the evening of July 18, 2015, he went to the bar to “hang out” with his |Bfriehd, Mr. Courtnéy. When he arrived, he and Mr. •Courtney went outside to smoke a cigarette and were approached by the defendant. According to Mr. Edwards, the defendant “thought that we had taken his dog and hidden it in the back and then told him it was dead,” but did not offer an explanation as to why the defendant made such an accusation. Mr. Edwards stated that the defendant appeared “extremely intoxicated” 'and when he pulled'out his gun, he (Mr. Edwards) and Mr. Courtney began to back away. The defendant then reached out to grab Mr. Edwards by the throat. In response, Mr. Courtney “grabbed” the defendant who began hitting him (Mr. Courtney) with his gun. When asked to explain what he meant when he.said Mr. Courtney “grabbed” the defendant, Mr. Edwards stated that he didn’t see what happened, but he heard Mr. Courtney say, “hey,. stop.” Mr. Edwards described the gun as a “little black revolver,” but was unable to positively identify the weapon in court. Mr. Edwards stated that he was not injured in the altercation, but that because the defendant tried to “chase [him] around the bar” when he attempted to go inside, he remained outside to wait for the police to arrive.

On cross-examination, Mr. Edwards testified that at no time did he have his hands in his pockets, nor did the defendant instruct him to remove his hands from his pockets. The surveillance footage was replayed for Mr. Edwards who stated that the images were too blurry for him to decipher, although he was able to identify his girlfriend in the video and agreed that, after the police had been called, the video showed him handing his backpack to his girlfriend, who sprinted out of the bar and down the street and did not reappear on the video. Mr. Edwards denied that any weapons or drugs were contained in his backpack, claiming that he was giving his girlfriend his car keys.

| (jBIake Branch, one of the bartenders working at the Three-Legged Dog on the night of the incident, testified that the defendant entered the bar at 2:30 pm, introduced himself and stated that he was new to the neighborhood. Ms. Branch recalled that the defendant began drinking at 2:30 pm and continued until he was arrested around 9:00 pm and that everyone at the bar was intoxicated except Mr. Edwards, who generally drank orange juice. She testified that both the defendant’s and Mr. Courtney’s dogs were at the bar but that the defendant’s dog was off-leash and he (the defendant) did not appear to be watching his dog, as it was roaming around the bar. Ms. Branch testified that she did not witness the actual altercation but observed Mr. Courtney holding his head shortly thereafter. While the defendant and Mr. Edwards were still outside engaged in a verbal argument, Ms. Branch approached Mr. Courtney, observing three bumps on his head. She stated that eventually everyone returned inside the bar while waiting for the police to arrive. When the police arrived, Ms. Branch witnessed “a small silver revolver” being removed from the defendant’s pocket.

On cross-examination, Ms. Branch conceded that she gave the defendant’s private investigator a written statement on September 16, 2015, indicating that the defendant had not been drinking excessively. She stated that, as a licensed bartender, she did not find the defendant too intoxicated to be served, although she could not recall specifically what he had been drinking, other than beer and shots of alcohol.

Mr. Courtney testified that he lives across the street from the Three-Legged Dog and is a regular patron. On the night of the incident, he arrived at 7:30 pm and observed the defendant, who he had never met before, sitting at the bar drinking a beer while his dog freely roamed around the premises. The two men |7engaged in a brief conversation and Mr. Courtney informed the defendant that his dog had just exited the bar. When asked whether the defendant appeared to be drunk, Mr. Courtney responded that “he looked giddy.” He testified that, at some point, he (Mr. Courtney) was outside smoking a cigarette and drawing on the sidewalk with chalk but could not recall the incident or the events leading up to the incident and was only able to piece together what happened based on information from his friends and what he discerned from the video footage. Mr. Courtney stated that he suffered three lacerations to the back of his head which bled for hours and that, although he declined medical treatment on the night of the incident because he could not afford ambulanee charges, he sought medical treatment the following morning. Mr. Courtney recalled consuming four bottles of Coors Light prior to the incident and declared that he was not in possession of any weapons when the incident occurred. He testified that, at the time of the incident, he was not aware that the defendant was a law enforcement officer or that the defendant was in possession of a gun.

The defendant’s private investigator, Emily Beasley, testified, but the extent of her testimony was a description of the layout of the bar and the location of the video surveillance cameras. She stated that she attempted to recover the remaining surveillance footage the police had not requested from the bar manager, but it no longer existed.

The defendant testified that, as a state fire marshal, he was commissioned to carry a weapon and regularly participated in the special firearms training required of all law enforcement officers. He was a fifteen-year U.S. Army veteran and had been deployed for combat duty in the 1991 Persian Gulf War, where he was wounded by an exploding RPG. After his father passed away, he moved to | ^Louisiana to be closer to his family and began employment as an arson investigator with the fire marshal service; he was eventually promoted to captain and relocated to the New Orleans area. He was also issued a state-owned, explosive-sniffing, service dog, a veteran of three tours in Afghanistan with the U,S. Marines.

The defendant testified that on the day of the incident he was new to the French Quarter neighborhood and, because his cable service was not yet connected, he stopped into the Three-Legged Dog at 2:00 pm to watch television. During his afternoon visit, he was advised by the bartenders that the bar was dog-friendly and invited to return later with his dog to attend a crawfish boil that evening. The defendant testified that he left the bar' at 3:30 to run' errands and walk his ‘dog, eventually returning with his dog later that evening.

With the surveillance footage playing, the defendant narrated the details in the video supporting his version of events. At 8:24 pm, Mr. Courtney was outside with his own dog while the defendant’s dog followed one of the bartenders to the ice machine. The defendant asserted that he had viewed the video “probably 100” times and at no point did it show his dog outside of the bar. According to the defendant, at 8:30 pm, Mr. Courtney called to him from outside the bar and said, “Hey, hey, fire marshal, your dog just got hit by a taxi out here.” Because his dog was not in his immediate sight, the defendant exited the bar to , investigate. He questioned Mr. Courtney who repeatedly told him that the dog had been , hit by a taxi, saying “If that dog is so special, you need to keep a better eye on it,” Then, according to the defendant, Mr. Edwards approached, poking him- in the chest and telling him that, “[his] dog was dead, and if [he] didn’t get out of their face, [he] would be dead too.” The defendant then “strong arm-barred”- Mr. Edwards, in the “brachial plex.” The defendant claimed that, as.Mr. Edwards began walking | nbackward, he reached both of his hands into his pockets. Identifying himself as a law enforcement officer, the defendant commanded Mr. Edwards to remove his hands from his pockets but Mr. Edwards continued to walk backward and the defendant heard a female say, - “get his gun!” The defendant then turned and observed Mr. Courtney reaching toward his (the defendant’s) waistband where his gun was holstered.

The defendant stated that, at that point, he was afraid because he was surrounded by three people (Mr. Edwards, Mr. Courtney, and Mr. Edwards’ girlfriend) with Mr. Courtney.attempting to seize'his gun. He attempted to shield his gun from Mr. Courtney’s reach but Mr. Edwards restrained his (the defendant’s) other arm. The defendant took his. gun out of his holster and secured it in his palm to prevent it from falling into Mr. Courtney’s possession or sliding into the public street. Because Mr. Courtney continued to reach forward, putting his hands on defendant’s shoulders, the'defendant struck him (Mr. Courtney) oh the head with the pistol, repeatedly instructing him to “get down.” After the defendant struck him three times,. Mr. Courtney complied and went down onto his knee. Once Mr. Courtney acquiesced, the defendant (no longer feeling threatened) lifted him up and led him inside the bar to wait for the police.

The defendant continued to describe the video frame by frame, pointing out that Mr. Edwards attempted to hand an.unidentified object to the bartender (who refused. to take it) .and then put the item in his backpack and handed it to his girlfriend who sprinted all the way down the street and out of view of the video cameras.

Introducing his credit card statement indicating that a payment in the amount of $37.75 was made to the Three-Legged Dog on July 18, 2015, the defendant | ^conceded he consumed a couple of alcoholic drinks, but also asserted that he bought several drinks for others at the bar, including Mr. Courtney, both of the bartenders, and other patrons. He related that, after the incident, he resigned from his fire marshal position because media coverage of the incident would undermine the credibility of the law enforcement program.

On cross-examination, the defendant asserted that when he arrived at the bar the second time with his dog, he asked the bartender if it would be permissible to allow his dog off of its leash. The bartender responded that it would be fine as long as the bar was not crowded. The defendant claimed he had only consumed four beers the entire day, which included his first visit to the bar earlier in the afternoon, and that throughout the course of his conversations with other bar patrons, he revealed that he was a fire marshal and that, because fire marshals are law enforcement officers, he was armed at all times. Although he did not remove his gun or show it to anyone in the bar, the defendant believed everyone in the bar was aware of his occupation and that he was armed.

The defendant agreed with the district attorney’s assessment of police use-of-force training procedures which required officers to control their emotions when meeting force with force but, refuting the district attorney’s suggestion to the contrary, asserted that he was not angry or emotional at the time of the incident, only rather confused when Mr. Edwards and Mr. Courtney told him his dog had been hit by a taxi because his highly trained service dog would not exit a building unless directed. He asserted that, although the video footage showed the dog wandering around the bar, the dog returned to defendant every few minutes to “check with [him]” and, because it did not make sense that his dog wandered In outside and down the street, he believed that someone had intentionally hidden his dog or removed it from the bar.

The questions and testimony then shifted to police use-of-force training and the defendant explained that he was trained to stay one level of force above the force being met. Thus, once he felt that Mr. Courtney was no longer a threat to him, he placed the gun in his back pocket. The defendant testified that he did not violate fire marshal department policy by entering an establishment that serves alcohol with a service dog while armed. Finally, he admitted that twenty .years earlier, he had been charged with a misdemeanor firearm violation in New York after hunting with “Army buddies” but explained that, at the time, he had been unaware that it was illegal to possess any type of gun in New York, including a hunting rifle.

At the conclusion of the two-day trial on February 5, 2016, the trial court took the matter under advisement. On February 17, 2016, the defendant filed a second motion to instruct, citing State v. Wells, 2014-1701 (La. 12/8/15), 209 So.3d 709, for the proposition that the State should bear the burden of proving beyond a reasonable doubt that the defendant’s conduct was not justified. On February 18, 2016, the trial court returned a responsive verdict of guilty of second degree battery and ordered a pre-sentence investigation. Again there is no indication in the record that the trial specifically ruled on the defendant’s motion or that the defendant objected to the trial court ruling or failure to rule.

On March 8, 2016, the defendant filed his first motion for a new trial and a motion for a post-verdict judgment of acquittal, both of which the court denied. On May 31, 2016, defendant filed a second motion for a new trial based on newly discovered evidence and, on June 28, 2016, after a lengthy hearing, the trial court | ^denied defendant’s motion for a new trial and sentenced the defendant to five years at hard labor, suspended, and five years active probation, on the condition that defendant participate in Veterans Court and submit to weekend incarceration for twenty-five weekends.

Assignment of Error

As his sole assignment of error, the defendant asserts that the trial court failed to rule on his proposed written instructions pursuant to La. Code Crim. Proc. art. 781 and, thus, failed to apply the proper law in reaching its verdict. Accordingly, the defendant argues that his motion for a new trial should have been granted because the verdict is contrary to the law and evidence.

Applicable Law

La. Code Crim. Proc. 851 provides in pertinent part:

A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence.
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

“When the allegations of a motion for new trial are not supported by proof, a trial judge properly overrules the motion. Allegations raised in the motion alone are not sufficient, as a defendant has the burden to hsshow that an injustice has been done to him.” State v. McKinnies, 2013-1412, p. 11 (La. 10/15/14), 171 So.3d 861, 870.

“A judge in a bench trial is not required to charge himself on the applicable law, since he is presumed to know it, unless one of the parties timely requests that he do so and provides him with the requested written charges.” State ex rel. D.R., 2010-0404, p. 5 (La. App. 4 Cir. 11/10/10), 51 So.3d 844, 848 (quoting State v. Pizzalato, 93-1415 (La. App. 1 Cir. 10/7/94), 644 So.2d 712, 715). In a bench trial, a request for the judge to charge himself before the verdict as to the disputed issue of law, and to object if he refuses to give special charge correctly stating the law, is the method of preserving the issue for appeal. Id.

“When a case is tried without a jury, the state or the defendant may request the court to charge itself in accordance with written charges presented to the court.” La. Code Crim. Proc. art. 781. Pursuant to La. Code Crim. Proc. 807, “a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it wholly correct and pertinent.” (emphasis added).

La. Rev. Stat. 14:19 provides in part:

(A)(1)(a) The use of force or violence upon the person of another is justifiable .,. [wjhen committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
⅝ ⅜ ⅜
(C) A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
(D) No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person [14or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense...

However, La. Rev. Stat. 14:21 provides that

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to with draw and discontinue'the conflict.

There is “a ‘presumption of regularity' in judicial proceedings,” State v. Evans, 96-1139, p. 6 (La.App. 4 Cir. 6/17/98), 715 So.2d 604, 607, such that, in the absence of some evidence that the trial court applied an incorrect standard, it must be presumed that it applied the [correct] standard.” State v. Lewis, 97-2854, p. 35-36 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1025.

Standard of Review

Appellate review of the ruling of a trial court on a motion for a new trial shall be invoked only to consider error of law. La. Code Crim. Proc. art. 858; McKinnies, 2013-1412, p. 9, 171 So.3d at 869. A reviewing court will attach great weight to the exercise of a trial court’s discretion; however, an abuse of that discretion will be considered an error of law. McKinnies, 2013-1412, p. 9, 171 So.3d at 869.

Errors Patent

A review of the record reveals no errors patent.

Discussion

Before discussing the defendant’s assignment of error, we note there are a number of problems with the record before the court. The trial court set the return date on this appeal for September 13, 2016, and there is nothing in the record (or | lfithe trial court docket sheet) to indicate that a request for an extension of that return date was requested or granted. See La. Code Crim. Proc. art. 916(1) (trial court retains jurisdiction to extend return date of appeal). Nonetheless, the appeal was not lodged in this court until January 6, 2017, see La. Code Crim. Proc. art. 917 (“clerk of trial court shall prepare record on appeal and lodge it with appellate court on or before the return date or any extension thereof.”); see also Uniform Rules-Courts of Appeal, Rule 2-2.3 (record shall be filed on or before date fixed for return or any extension granted).

The defendant’s failure to adhere to set deadlines continued in this court with the filing of his appellate brief. On January 6, 2017, the defendant was notified that his brief was due on January 31, 2017. On January 24, the defendant filed his first motion for an extension of time to file his appellate brief. This court granted the motion with a new due date of March 2, 2017. On March 1, 2017, the defendant filed a second motion for extension of time to file his appellate brief. This court again granted the motion, extending the time until April 4, 2017. On March 29, 2017, the defendant filed a third motion for extension of time. This court denied the motion, ordering that the defendant’s appellant brief be filed on or before April 4, 2017. Instead, the defendant electronically filed his brief on April 6, 2017. This failure to timely file a brief is sanctionable, see Uniform Rules-Courts of Appeal Rule 2-12.12, but in the interest of judicial efficiency we have determined the defendant’s appeal on the merits.

As his sole assignment of error, the defendant asserts that the trial court failed to rule on his proposed written instructions pursuant to La. Code Crim. Proc. art. 781 and, thereby, failed to apply the proper law in reaching its verdict. |) (Accordingly, because the verdict is contrary to law and evidence, the defendant argues that his motion for a new trial should have been granted.

There is nothing in the record before this court indicating whether the trial court ruled on either of the defendant’s motions for special instructions or that the defendant objected to the trial court ruling or failing to rule. Yet on March 8, 2016, the defendant filed his first motion for a new trial based on La. Code Crim. Proc. 851(B)(2) and (5), arguing that the failure of the trial court to rule on defendant’s proposed special instruction that the state bore the burden of proving beyond a reasonable doubt that defendant was not justified in his use of force against the victim in self-defense, constituted prejudicial error. The trial court minutes reflect that the defendant appeared for a hearing on the motions for new trial and post-verdict judgment of acquittal (both denied) but there is nothing to indicate what took place at the hearing, the reasons for the court’s denial of defendant’s motions, or whether defendant filed a contemporaneous objection to the denial of the motion. On May 31, 2016, the defendant filed his second motion for a new trial based on newly discovered evidence. After a lengthy hearing on June 28, 2016, the defendant’s second motion for a new trial was denied.

Notably, the defendant’s appeal appears to be based on the denial of the defendant’s first motion (filed on March 8, 2017) for a new trial. However, although the burden is on the defendant to prove the denial of his motion for a new trial constituted an injustice to him, the defendant points to no evidence (other than the trial court’s failure to acquit him) indicating that the trial court misconstrued 117the law or that the defendant was prejudiced by the trial court’s failure to rule on his proposed charges. The defendant does not address the absence in the record of any evidence indicating if, and how, the trial court ruled on his proposed charges, nor does the defendant address the absence of any record evidence that he objected to the trial court ruling or failure to rule on his proposed charges. Rather, the defendant argues that, had the trial court evaluated the evidence under the correct law, it would have found defendant not guilty and, therefore, because the trial court found the defendant guilty (albeit of a lesser offense than that charged), it must have operated under a misunderstanding of the law applicable to the case. This argument is circuitous and without merit.

Given the “presumption of regularity” applied to judicial proceedings and in the absence of any evidence to the contrary, we presume that the trial court applied the correct law in reaching the verdict. See Evans and Lewis, supra. Notably, the trial court is required to give special charges only “if [they are] wholly correct and pertinent” and, in this case, the instructions proposed by the defendant were neither “wholly correct or pertinent.”

With regard to the proposed justification instruction, the State presented eyewitness testimony by which, if found credible by the trier-of-fact, would tend to establish that defendant acted as the aggressor and, therefore, pursuant to La. Rev. Stat. 14:21, cannot claim self-defense. Thus, if the trial court found the defendant acted as the aggressor, the defense of justification was unavailable and, thus, not pertinent. As such, the trial court’s refusal to consider an instruction on an unavailable defense cannot be prejudicial.

11sWith regard to the defendant’s second proposed instruction, that the burden was on the State to prove that the defendant was not justified in his actions, the defendant proposed the following:

If you find that the defendant has raised the defense that his conduct was justified, the State must prove that the defendant’s conduct was not justified. Remember the State bears the burden of proving the guilt of the defendant beyond a reasonable doubt. See generally: State v. Wells, 2014-1701 (La. 12/8/16); 2016 La. Lexis 2531, [209 So.3d 709].

However, Wells does not support the proposition that the burden is on the State to prove that the defendant did not act justifiably. The issue in Wells is whether a jury could consider the defendant’s duty to retreat in determining whether he acted in self-defense in a homicide case and whether the defendant could claim justification as a defense at all if the homicide occurred while the defendant was involved in illegal activity. Most notably, the passage cited by the defendant in his proposed instruction was not the holding but, rather, was taken' from the statement of facts outlining the jury charges that were given in the trial court. Accordingly, Wells is not authoritative support for defendant’s proposed instruction. Moreover, this court has consistently declined to settle definitively on the issue of which party bears the burden of persuasion in proving self-defense in non-homicide cases. State v. De Gruy, 2016-0891, p. 18-19 (La.App. 4 Cir. 4/5/17), 215 So.3d 723. Accordingly, it was within the trial court’s discretion to |infind that the proposed instruction submitted by the defendant, citing Wells as authority, was neither “wholly correct or pertinent” and, thus, not applicable to this case.

In addition, the defendant argues that the trial court erred in failing to grant his motion for a new trial because the verdict is contrary to the law and evidence. The defendant failed to present this argument to the trial court in either of his motions for a new trial, however, and it is axiomatic that this court does not consider arguments raised for the first time on appeal. Moreover, even construing this claim as one of insufficient evidence, the defendant’s argument is without merit. The relevant question in a review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court.” State v. Williams, 2011-0414 p. 18 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 771. Further, “a factfinder’s credibility determination is entitled to great weight and should not be disturbed unless it is contrary to the evidence.” Id.

In this case, according to defendant’s own testimony and the argument in his appellate brief, his justification defense stemmed from his fear of being disarmed by Mr. Courtney. A rational fact-finder could have reasonably found that, once the defendant secured his gun in the palm of his hand (as he asserted he did in his trial testimony), his continued beating of Mr. Courtney’s head with the gun was an unreasonable use of force and was unnecessary to prevent the victim from disarming him.

Also, as previously discussed, the State also presented eyewitness testimony from the victim’s friend, Mr. Edwards, identifying the defendant as the aggressor. Consequently, even if the burden of proof lay with the State in showing the defendant did not act in self-defense, a rational fact-finder could have chosen to believe the eyewitness testimony, as well as the video surveillance evidence, to |21find that the defendant was the aggressor. Accordingly, viewed in the light most favorable to the prosecution, the evidence is sufficient to convince a rational factfinder that the State proved beyond a reasonable doubt that defendant committed second degree battery.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

BELSOME, J., CONCURS IN THE RESULT

      . La. Code Crim. Proc. 781 provides that "[w]hen a case is tried without a jury the state or the defendant may request the court to charge itself in accordance with written charges presented to the court. The requested charges shall be governed by the rules of procedure relative to requested charges in jury cases.”

      . La. Rev. Stat. 14:19 provides in part:
      (A)(1)(a) The .use of force or violence upon the person of another is justifiable ... [w]hen committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
      (C) A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
      (D) No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was' reasonable and apparently necessary to prevent a forcible offense...

      . It is problematic whether a contemporaneous objection was necessary to preserve the issue for appeal. See State v. Lewis, 97-2854, p. 36 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1025 (although trial court applied incorrect standard for ruling on the motion for a new trial motion, the defendant failed to contemporaneously object and, thus, failed to preserve this error for appellate review); but see La. Code Crim. Proc, 841(B) ("The requirement of an objection shall not apply to the court’s ruling on any written motion.”)

      . In State v. Cheatwood, 458 So.2d 907, 911 (La. 1984), the Louisiana Supreme Court held that "In reviewing a conviction in which the defendant offered evidence tending to establish the affirmative defense of justification, an appellate court must determine whether a rational trier of fact could have concluded by a preponderance of the evidence, viewed in the light most favorable to the prosecution, that defendant’s [conduct was justified].” In State v. Fluker, 618 So.2d 459, 462 (La. App. 4 Cir. 1993), this court recognized that "in a homicide case, the State bears the burden of proving that the killing was not committed in self-defense." However, "in a non-homicide situation, the defense of justification requires a dual inquiry, namely: an objective inquiry into whether the force used was reasonable under the circumstances; and ⅝ subjective inquiry into whether the force was apparently necessary.” Id. After discussing the division of the Louisiana courts on the issue, this court stated that it "has therefore never adopted which party has what burden of proof when the defendant raises a claim of self-defense in a non-homicide case.” Id. at 463. Without going so far as to definitively hold it as a rule, the Fluker court opined that the burden should be on the state in both homicide and non-homicide cases. Id. In State v. Wischer, 2004-0325, pp.8-9 (La. App. 4 Cir. 9/22/04), 885 So.2d 602, 606-07, however/this court acknowledged the dual inquiry discussed in Fluker, but expressly adopted the holding in Cheatwood, that the defendant bore the burden of proving justification by a preponderance of the evidence. In State v. Jefferson, 2004-1960, pp. 10-11 (La. App. 4 Cir. 12/21/05), 922 So.2d 577, 588, this court acknowledged the split in the Fluker and Wischer decisions but declined to resolve the conflict, finding that under the more stringent standard, the evidence viewed in a light most favorable to the prosecution was sufficient to prove beyond a reasonable doubt that the defendant did not act in self-defense. Thereafter and until present, this court has consistently declined to settle the controversy. De Gray, 2016-0891 p. 8; State v. Rouser, 2014-0613 pp. 6-7 (La. App. 4 Cir. 1/7/15), 158 So.3d 860, 866-67; State v. Jones, 2012-0510, p. 11 (La. App. 4 Cir. 6/12/13), 119 So.3d 859, 866; State v. Boudreaux, 2008-1504, p. 32 (La. App. 4 Cir. 9/29/10), 48 So.3d 1144, 1162.

      . The defendant makes this argument in his brief as an extension of his previous arguments: that the verdict is contrary to the law and evidence because the evidence proves defendant acted in self-defense and, but for the trial court’s failure to consider his defense of justification or apply the appropriate burden of proof, he should have been found not guilty.

      . In State v. Martin, 2013-0115, pp. 11-13 (La. App. 4 Cir. 12/4/13), 131 So.3d 121, 129, this court described the law as follows:
      "An assignment of error based on the refusal of the trial court to grant a new trial on grounds that the verdict was contrary to the law and evidence presents nothing for appellate review.” State v. Gray, 351 So.2d 448, 461 (La. 1977). However, in State v. Guillory, 10-1231, pp. 3-4 (La. 10/8/10), 45 So.3d 612, 615, the Supreme Court determined that a grant or denial of a motion for new trial pursuant to La. [code Crim. Proc. art.] 851(5) presents a question of law that is subject to appellate review and is reviewed for abuse of discretion. In State v. Collins, 10-1181, pp. 11-12 (La. App. 4 Cir. 3/23/11), 62 So.3d 268, 275, this Court noted that it was “unclear whether Guillory is limited to motions filed pursuant to [La. Code Crim. Proc.] art. 851(5) or whether it is applicable to ... motions filed pursuant to [La. Code Crim. Proc,] 851(1).” This Court, which was considering a motion for new trial based upon La. [Code Crim. Proc. art.] 851(1), wherein the verdict is allegedly contrary to the law and evidence, reviewed the evidence and concluded that the evidence supported the verdict. Collins, 10-1181, p. 12, 62 So.3d at 275. The Court stated that "even accepting arguendo that Guillory is applicable to the denial of a motion filed pursuant to [La. Code Crim. Proc.] 851(1), the trial court clearly did not abuse its discretion in denying the motion.” Id. at 18.


source: Caselaw Access Project

author: Judge Terrel J. Broussard, Pro Tempore

license: Public Domain

text:
    Vincent CARUSO, Jr., et al v. CHALMETTE REFINING, LLC Audrey Raymond v. Chalmette Refining, LLC
    NO. 2016-CA-1117, NO. 2016-CA-1118
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 28, 2017
    Rehearing Denied July 12, 2017

      Robert B. McNeal, Charles B. Wilmore, Matthew D. Simone, LISKOW & LEWIS, One Shell Square, 701 Poydras Street, Suite 5000, New Orleans, LA 70139-5099, COUNSEL FOR DEFENDANT/APPELLANT, CHALMETTE REFINING, L.L.C.
    Thomas E. Schwab, BARKLEY & THOMPSON, L.C., 1515 Poydras Street, Suite 2230, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT, EATON CORPORATION
    Jeffrey Bernard, BERNIARD LAW FIRM, 300 Lafayette Street, Suite 101, New Orleans, LA 70130 AND Sidney D. Torres, III, Roberta L. Burns, Beau Camel, LAW OFFICES OF SIDNEY D. TORRES, III, APLC, Torres Park Plaza, 8301 West Judge Perez Drive, Suite 303, Chal-mette, LA 70043 AND Gregory P. DiLeo, Benjamin W. Gulick, 300 Lafayette Street, Suite 101, New Orleans, LA 70130 AND Jay Andry, Jr., 710 Carondelet Street, Suite 100, New Orleans, LA 70130, COUNSEL FOR PLAINTIFFS/APPELLEES VINCENT CARUSO, JR., AUDREY RAYMOND AND KAREN REYNOLDS
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel J. Broussard, Pro Tempore)
   Judge Terrel J. Broussard, Pro Tempore

h Chalmette Refining, L.L.C., and Eaton Corporation appeal the district court’s amended judgment of June 17, 2016, which arose out of a June 15, 2015 bench trial. The trial was held to determine an award of cleaning cost damages in. this class action proceeding. For the reasons herein, we reverse the judgment of the district court.

Facts and Procedural History

This niatter arose out of an industrial accident which occurred at Chalmette Refining’s St. Bernard facility. Because of problems with some electrical equipment manufactured by Eaton, the refinery’s fluid catalytic cracker unit was forced into an emergency shutdown. As a result of the emergency shutdown, nineteen tons of regenerated catalyst was released from the cracker unit’s stack during the early morning hours of September 6, 2010. The catalyst exited the cracker unit’s stack at a height of 342.71 feet, with a velocity of 31.76 miles per hour, and at' a temperature of 145° Fahrenheit. Winds deposited dust from the | {.catalyst plume over a considerable portion of St. Bernard Parish and Orleans Parish’s lower ninth ward.

In response to the accident, Chalmette Refining issued a public notice that persons with claims or concerns about the catalyst dust release could call a toll-free telephone number to get information and/or make a claim. Chalmette Refining, accordingly, hired Crawford & Co. to adjust claims and investigate complaints related to the catalyst dust release. Shortly thereafter, Crawford began to contact those individuals making claims. Between the time of the public notice and October 11, 2010, Chalmette Refining responded to numerous claims for dust cleanup. Specifically, it arranged for the pressure washing of 130 structures and paid 1,330 claims for the exterior cleaning of 1,445 structures. Chalmette Refining also paid 1,241 claimants to wash 1,883 automobiles, and arranged for the individual cleaning of 136 additional vehicles.

In response to the incident, plaintiff Audrey Raymond filed a petition for damages in Civil District Court for Orleans Parish on September 8, 2010, which was subsequently amended to add class allegations. Plaintiffs Vincent Caruso, Jr. and Karen Reynolds filed a class action petition in St. Bernard Parish on September 2, 2011. Ms. Raymond’s claims were transferred from Orleans Parish to St. Bernard Parish and consolidated. Mr. Caruso, Ms. Raymond, and Ms. Reynolds all continued as plaintiffs; and each serves as a class representative. After the class representatives filed a motion for class certification, but prior to the Iscertification hearing, the parties narrowed the issues by entering into several stipulations. First, the parties stipulated as to the class’ geographic boundaries:

The class shall be defined geographically as the area that is bounded on the south by the northern bank of the Mississippi River, on the east by the center line of Louisiana Highway 47 (commonly referred to as Paris Road), on the north by the southern boundary of the marsh located south of Bayou Bienvenue, and on the west by the eastern bank of the Inner Harbor Navigation Canal (more commonly known as the Industrial Canal).

Additionally, the parties stipulated that class certification would not be sought in this proceeding to adjudicate any claims for personal injuries. This matter, accordingly, is limited solely to claims for property damages. The' district judge eventually granted the class representatives’ motion and certified the class on September 27, 2013 as defined as:

Louisiana residents who lived or owned property located in the Parishes of St. Bernard and Orleans within a geographic area stipulated to by the parties and whose property, moveable and/or immovable, was impacted and/or contaminated as a result of the subject spent catalyst release from Chalmette Refining, L.L.C. facility on or about September 6, 2010 and who suffered property damage and/or were required to clean their properties due to the release.

Following class certification, the parties again entered into several stipulations. First, the appellants stipulated that they would be “solidarily liable for any award of property damages to plaintiff Vincent Caruso, Jr., Audrey Raymond and/or Karen Reynolds at the Trial and/or to any class members/plaintiffs in any subsequent trials or adjudications, as a result of the September 6, 2010 catalyst release.” Next, the class representatives, individually and on behalf of other class members, entered into three stipulations. First, they stipulated that none of them is claiming permanent damage to any property as a result of the September 6, 2010 Rcatalyst release. They next stipulated that none of them is claiming any damage to the exterior or interior finishes of their residences, other buildings or automobiles (excluding any required cleaning) as a result of the September 6, 2010 catalyst release. Lastly, they stipulated that none of them is claiming any damage to their HVAC systems or any component thereof as a result of the September 6,2010 catalyst release.

The class representatives subsequently filed a motion for Partial Summary Judgment as to liability on March 13, 2015. After hearing oral argument from the parties on April 16, 2015, the district judge took the matter, under advisement. In a judgment issued on May 12, 2016, the district judge, in granting the motion, reasoned that:

“.. .the combination of the class definition as defined by this Court on September 27, 2013 and the stipulation of [defendants’ solidary] liability entered into the record on February 19, 2015 establish that members of the putative class within the geographical area suffered damage as a result of the catalyst discharge of a non-permanent nature which includes the cost of cleaning affected property, bud did not suffer personal injury, damage to car paint and/or air condition units.”

The district judge, additionally, ruled that the “degree of said damage is reserved for trial of respective representative members of the class for the purpose of creating subclasses for damage evaluation.” In the accompanying reasons for judgment the district judge clarified the issues to be tried in the future: “As previously set forth the Court reserved the ability to further delineate damages within the class based upon the proof of the extent of damages and costs to remediate said damages. The causal relationship need not be established except to |sdetermine the amount of compensation for the damage suffered.” No party sought appellate review of the district judge’s May 12, 2016 judgment. It is, accordingly, now final. See Larkins v. David Wilkerson Construction, 08-0576, p. 6 (La. App. 4 Cir. 12/17/08), 3 So.3d 67, 70.

Prior to the damages trial, the parties again entered into a series of stipulations concerning background factual and eviden-tiary issues. Notably, the class representatives stipulated that none of them is making a claim for future damages as a result of the September 6, 2010 catalyst release.

The class representatives then tried their case for damages before the bench on June 15, 2015. After taking evidence and considering the matter the district judge ruled in favor of the class representatives. The judgment concluded that the plaintiffs “suffered damages as a result of the catalyst released on September 6, 2010” and set cleaning expenses. With regards to cleaning costs associated with exterior house cleaning, the district judge ordered the following assessment:

1) A house with less than 2,000 square feet of living space shall receive $300.00 in cleaning expenses;
2) A house with 2,000-3,000 square feet of living space shall receive $400.00 in cleaning expenses
3) A house with more than 3,000 square feet of living space shall receive $500.00 in cleaning expenses.

As respects cleaning costs associated with interior house cleaning, the district judge ordered the following assessment:

1) A house with less than 2,000 square feet of living space shall receive $100.00 in cleaning expenses;
2) A house with 2,000-3,000 square feet of living space shall receive $125.00 in cleaning expenses
3) A house with more than 3,000 square feet of living space shall receive $150.00 in cleaning expenses.

| (¡Lastly, the district judge awarded $75.00 per vehicle for motor vehicle cleaning expenses. With those assessments in mind, the district judge made the following award s for cleaning expenses: Mr. Caruso $1,275.00, Ms. Raymond $600.00, and Ms. Reynolds $1,525.00 for cleaning expenses. And the district judge ordered that the appellants are solidarity hable for all of the plaintiffs’ damages. The district judge additionally ordered that “all class members who after notice and receipt of a proof of loss form indicates that they took no action to clean or remove the catalyst, then the award shall be $75.00 for exterior, $25.00 for interior and $25.00 for each vehicle.”

The appellants timely brought motions for new trial concerning damages awarded to Mr. Caruso. On June 17, 2016, the district judge granted in part the motion, vacated the April 12, 2016 judgment, and issued a new judgment that reduced Mr. Caruso’s damages from $1,275.00 to $850.00. The June 17, 2016 judgment was, in all other respects, identical to the April 12, 2016 judgment. Appellants then timely sought a devolutive appeal from the amended June 17, 2016 judgment.

In the June 17, 2016 amended judgment, the district judge created an assessment of cleaning costs that he then applied to the class representatives’ claims for cleaning costs and to those claims put forward by class members who submitted proof of loss forms, yet indicated they took no steps to clean their property. The appellants contend that the June 17, 2016 award of cleaning costs must be reversed because it is not based on competent evidence. In this case, the 17district judge’s basis for making damage assessment was grounded solely upon the taking of judicial notice as to the amounts for “generally accepted cleaning expenses.” See La. C.E. art. 201, (providing for judicial notice of adjudicative facts generally). Because judges are prohibited from taking judicial notice of material issues of disputed fact and because the amount to be awarded as cleaning costs is at the very heart of the present dispute, the appellants argue that the district judge erred by taking judicial notice of cleaning cost expenses in this case. We agree. The jurisprudence clearly provides that judges may not take notice of material issues of disputed facts. And, our review of the record reveals that the plaintiffs failed to introduce any other competent evidence on which to base an award of cleaning costs. Given this dearth of evidence, it is clear that the June 17, 2016 judgment is not supported by substantial or competent evidence. We, accordingly, reverse the district court’s June 17, 2016 judgment. We now explain our rationale in greater detail.

Assignments of Error

On appeal, the appellants urge us to reverse the district judge’s June 17, 2016 judgment because it is not based upon substantive competent evidence. In so urging, they make several arguments. They first assert that the June 17, 2016 judgment should be reversed because: 1) plaintiffs failed to submit documentary evidence to prove entitlement to cleaning expenses; 2) the base award of damages is based upon the improper use of judicial notice of a disputed fact; 3) it is legal error to award damages to claimants who failed to prove that they suffered |sdamages; and, 4) the damage schedule is erroneous to the extent it awards damages to all potential plaintiffs when each is obligated by La. C.C. Pro. arts. 591 C and 592 E(5) of the La. C.C. Proc. to prove his damages with individual proof of loss.

Having reviewed the record in light of the parties’ arguments, we observe that we must reverse the June 17, 2016 judgment. Simply put, the appellants correctly point out that the judgment is not based upon competent evidence. As the district judge’s reasons for judgment illustrate, the fundamental assessment of cleaning costs is based entirely upon the district judge’s taking judicial notice of generally accepted basic cleaning expenses:

“There was no evidence presented of typical expenses to clean the interior of homes, other than testimony of the representative plaintiffs as to the amount of time it took them to clean the exterior of their homes. The Court therefore takes judicial notice of generally accepted basic cleaning expenses and in its sound discretion formulated a damage assessment.”

As we will explain, however, the district judge improperly took judicial notice of what in this case is a disputed judicial fact. And our review of the record supports the district judge’s conclusion that none of the plaintiffs introduced any documentary evidence to prove their claimed cleaning expenses. The June 17, 2016 judgment’s base damage assessment was not based upon competent evidence, and therefore it must be reversed. The remainder of the awards in the June 17, 2016 judgment must likewise be reversed because they too are based upon the | gfígures set out in the base damage assessment. We now explain our rationale in more detail.

The issues in this case implicate the law regarding proof of damages. Simply put, for a plaintiff to recover damages he must first prove his case. See Burse v. Allstate Ins., 00-1896, p. 3 (La. App. 5 Cir. 3/28/01), 783 So.2d 648, 651. Following on this principle, a plaintiff also bears the burden of proving each and every element of damage claimed. See Perez v. State Through Dep’t of Transp. & Dev., 578 So.2d 1199, 1206 (La. App. 4 Cir. 1991). The present dispute is concerned entirely with awards for property cleaning costs. We have previously held that property cleaning costs constitute special damages. See Ganheart v. Executive House Apartments, 95-1278, p. 5 (La. App. 4 Cir. 2/15/96), 671 So.2d 525, 528. Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty. Kaiser v. Hardin, 06-2092, p. 11 (La. 4/11/07), 953 So.2d 802, 810.

In reviewing a trier of fact’s factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. See Kaiser, 06-2092, p. 12, 953 So.2d at 810. In other words, we apply the well-known manifest error/clearly wrong standard of review when confronted with a challenge to an award of special | indamages. Therefore, we now turn to a discussion of whether the judge’s award of special damages was based on manifestly erroneous factual findings.

The awards of “generally accepted basic cleaning expenses” in this matter are based entirely upon assessments derived from the exercise of judicial notice. The judicial notice of adjudicative facts is governed by Article 201 of the Louisiana Code of Evidence. An adjudicative fact is a fact normally determined by the trier of fact. See La. C.E. art. 201 A. A court may take judicial notice of adjudicative facts, whether requested or not. La. C.E. art. 201 C. A party may request a court to take judicial notice of an adjudicative fact at any stage of the proceeding. La. C.E. art. 201 F. Article 201 D compels a court to take judicial notice upon l'equest “if supplied with the information necessary for the court to determine that there is no reasonable dispute as to the fact.” La. C.E. art. 201 D. Whether the notice is occasioned by the court on its own motion, or by a party, a “party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior opportunity to be heard, the request may be made after judicial notice has been taken.” La. C.E. art. 201 E.

| n Importantly, Article 201 B provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) Generally known within the territorial jurisdiction of the trial court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Pursuant to this article, courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. See Perez v. Evenstar, Inc., 12-0941, p. 11 (La. App. 4 Cir. 1/30/13), 108 So.3d 898, 905. Disputed facts, however, “are not in the same vein as the laws of nature, geographic and historical facts, time, laws and other matters of common knowledge.” Elliott v. U.S. Fid. & Guar. Co., 568 So.2d 155, 158 (La. App. 2 Cir. 1990). A finder of fact may not consider evidence outside the record in making its findings. See Weatherly v. Optimum Asset Mgmt., Inc., 04-2734, p. 5 (La. App. 1 Cir. 12/22/05), 928 So.2d 118, 121. “The resolution of material issues of disputed fact by judicial notice is improper.” Brown v. Rudy Smith Serv., Inc., 441 So.2d 409, 413 (La. App. 4 Cir. 1983). See also Elliott, 568 So.2d at 158.

In this case, the underlying trial was focused upon the plaintiffs’ burden of proving their entitlement to damages for cleaning expenses. By resorting to Article 201 of the Code of Evidence to meet the plaintiffs’ burden of establishing the cost of generally accepted basic cleaning expenses, the district judge took judicial notice of the fact that was at the very heart of the dispute—the cost of cleaning supplies. Moreover, there is nothing in the record before us to suggest that the | iaprice of generally accepted basic cleaning expenses is either generally known within the territorial jurisdiction of the trial court, or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Quite simply, the district judge erred by taking judicial notice of the cost of generally accepted basic cleaning supplies. Judicial notice cannot be employed to resolve disputed issues of fact that otherwise should be resolved by trial.

Having reviewed the record it is clear to us that, absent the taking of judicial notice, no competent evidence supports the district judge’s cleaning costs award. The three representative plaintiffs testified at trial and by way of deposition. While each representative discussed the nature of the catalyst, how it covered their properties, and how long it took them to clean the catalyst off their properties, none of the three presented any evidence as to the amounts of money expended by them to clean their properties. Accordingly, the judgment’s award for cleaning costs is not supported by competent evidence and must be reversed.

“In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. Civil Code art. 2324.1. However, “[s]peculation, guessing, or a mere possibility is insufficient to sustain a finding of fact or an award.” Iles v. Ogden, 09-0820, p. 39 (La. App. 4 Cir. 2/26/10), 37 So.3d 427, 452. Therefore, “[s]peculative damage awards without a basis of detail or specificity are not permitted.” Overton v. Shell Oil Co., 05-1001, p. 19 (La. App. 4 Cir. 7/19/06), 937 So.2d 404, 416. Similarly, a plaintiff’s burden must be borne by competent evidence showing the extent of the damages and a plaintiffs own uncorroborated personal estimate of loss alone is insufficient to carry his burden. See Tudor Chateau Creole Apartments P’ship v. D.A. Exterminating Co., Inc., 96-0951, p. 8 (La. App. 1 Cir. 2/14/97), 691 So.2d 1259, 1264. It is true that when a party has suffered damages but cannot establish them with legal certainty, the courts have discretion to fix the amounts thereof. The latter rule has no application when the damages sought are easily proven, but such proof is not forthcoming. See Banner Chevrolet, Inc. v. Kelt, 402 So.2d 747, 752 (La. App. 4 Cir. 1981).

No proof in this case was submitted by the representative plaintiffs as to their incurred cleaning expenses. The district judge’s award of cleaning expenses, therefore, lacked a reasonable factual basis and was clearly wrong. We must, therefore, reverse the June 17, 2016 award of cleaning expenses because the class representatives “simply failed to introduce sufficient and competent evidence upon which the trial judge could reliably base a damage award.” Freeman v. G. T. S. Corp., 363 So.2d 1247, 1251 (La. App. 4 Cir. 1978).

DECREE

We reverse the district court’s judgment of June 17, 2016 in favor of plaintiffs Vincent Caruso, Jr., Audrey Raymond and/or Karen Reynolds, individually and as class representatives, and against Eaton Corporation and Chalmette Refining, L.L.C.

REVERSED

      . Chalmette Refining and Eaton put forward identical positions on appeal. Accordingly, unless otherwise noted, both defendants will be referred to jointly as appellants.

      , Catalyst is used to assist in refining hydrocarbons in the refinery’s cracker unit.

      . With respect to this last assignment, the appellants argue that they have a constitutional due process right to present defenses to each individual plaintiffs damage claim and that class action procedures should not be utilized to take away these rights.

      . Because we reverse the judgment entirely upon this basis, we pretermit discussion of the appellants’ remaining assignments of error.

      . The manifest error standard of review also applies to mixed questions of law and fact, See Bates v. City of New Orleans, 13-1153, 13-1157, p. 7 (La. App. 4 Cir. 3/26/14), 137 So.3d 774, 780. We further note that when reviewing questions of law we are simply to determine whether the trial court was legally correct or incorrect. See Goodrich Petroleum Co., LLC v. MRC Energy Co., 13-1435, p. 13 (La. App. 4 Cir. 4/16/14), 137 So.3d 200, 207.

      . If the court is proposing to take notice of an adjudicative fact in jury trial instructions, "the court shall inform the parties before closing arguments begin.” "Time of taking notice. A party may request judicial notice at any stage of the proceeding but shall not do so in the hearing of a jury. Before taking judicial notice of a matter in its instructions to the jury, the court shall inform the parties before closing arguments begin.” La. C.E. art 201(F). This is so because, in civil cases, the court "shall instruct the jury to accept as conclusive any fact judicially noticed." La. C.E. art. 201 G.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Robert Andrew SCHIFF and N.O.W. Properties, LLC v. Lidia POLLARD
    NO. 2016-CA-0801
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 28, 2017

      Randall A. Smith, J. Geoffrey Ormsby, SMITH <& FAWER, L.L.C., 201 St. Charles Ave, Suite 3702, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPELLANT
    W. Patrick Klotz, KLOTZ & EARLY, 909 Poydras Street, Suite 2950, New Orleans, LA 70112, Mark P. Glago, Jatavian L. Williams, Katherine E. May, THE GLAGO LAW FIRM, LLC, 909 Poydras Street, 29th Floor, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

_JjIn this suit to annul a prior judgment, Robert Andrew Schiff and N.O.W. Properties, L.L.C. (collectively “Schiff’), appeal the trial court’s May 3, 2016 judgment granting the exception of res judicata filed by defendant, Lidia Pollard, and dismissing plaintiffs’ claims with prejudice. For the reasons that follow, we convert the appeal to a supervisory writ, we grant the writ and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This is the third appeal involving these parties before this Court. See Pollard v. Schiff, 13-1682, 14-0853 (La. App. 4 Cir. 2/4/15), 161 So.3d 48; Schiff v. Pollard, 15-0340 (La. App. 4 Cir. 10/7/15), 177 So.3d 719 (“Schiff I”). The original suit and first appeal involving these parties, Pollard, supra, arose out of a failed business venture between Mr. Sehiff and Ms. Pollard in which they entered into an agreement to purchase, renovate, and resell properties under the business name of N.O.W. Properties, L.L.C. During the duration of their business | ^partnership, between March 2007 and September 2009, twelve properties were purchased and renovated. “[A]t some point early in the venture, Mr. Sehiff unilaterally decided to rent the completed houses rather than sell them” and “expected Ms. Pollard to manage the rental properties by securing tenants, collecting rent, and making repairs to the properties.” Pollard, 13-1682, 14-0853, p. 3, 161 So.3d at 51. By September 2009, the parties’ business partnership had soured; they agreed to end the partnership and attempted to divide the assets by obtaining a comparative market analysis (“CMA”) for each of the twelve properties. In 2010, Ms. Pollard found a buyer for one of the properties, but when the property was sold Mr. Sehiff retained all profits from that sale rather than sharing the profits with Ms. Pollard. As a result, Ms. Pollard filed suit against Sehiff for breach of contract, an accounting, and judicial dissolution of the partnership.

Following a three-day bench trial in April 2013, Sehiff filed numerous post-trial motions, including a motion to admit approximately 100 exhibits and additional testimony, a motion to admit newly discovered evidence, and a motion for new trial. After taking these matters under advisement, the trial court rendered judgment on August 2, 2013, in favor of Ms. Pollard. The trial court found Sehiff liable for breach of contract and bad faith damages and awarded Ms. Pollard $685,176.52 in specified elements of damages.

Sehiff timely appealed the trial court’s August 2, 2013 judgment and argued, inter alia, that the trial court erred by relying on a false and incomplete accounting |sprepared by CPA Marjorie Corcoran and erred in denying his motion for new trial based on newly discovered evidence that Ms. Pollard gave false testimony at trial. Pollard, 13-1682, 14-0853, p. 8, 161 So.3d at 54. Upon review of the entire record, this Court found no merit in any of Sehiff s assignments of error and substantially affirmed the trial court’s judgment but amended the total award to $684,824.73 based on the record evidence of reimbursements owed and an error in the award of judicial interest. Id. 13-1682, 14-0853, p. 26, 161 So.3d at 61.

On June 19, 2014, while the appeal of the August 2, 2013 judgment was pending before this Court, Sehiff filed a petition to annul the judgment on the grounds that it was obtained by fraud and ill practices. In response to Schiffs petition to annul, Ms. Pollard filed a peremptory exception of no right of action and a dilatory exception of lack of procedural capacity as to N.O.W. Properties, L.L.C., which the trial court granted and allowed Sehiff thirty days to amend the petition.

Sehiff filed an amended petition to annul on August 18, 2014. In response, Ms. Pollard filed a peremptory exception of per-emption, arguing that the petition to annul was filed more than a year after the August 2, 2013 judgment and more than a year after Schiff allegedly learned of the fraud and ill practice that served as the grounds for the petition to annul. Following a hearing, the trial court’s | ¿November 7, 2014 judgment granted Ms. Pollard’s exception of peremption and dismissed Schiffs amended petition to annul with prejudice. Schiff timely appealed the trial court’s November 7, 2014 judgment.

In the appeal' of Schiff I, the Court noted that the petition to annul “reveals an obvious attempt by Schiff to relitigate the trial court’s decision that was affirmed” in Pollard. 15-0340, p. 3, 177 So.3d at 721. However, with regard to Ms. Pollard’s exception of peremption, the Court found that the trial court erred in granting it and dismissing Schiffs petition to annul. The record reflected that Schiffs amended petition to annul related back to the date of filing of .the original petition to annul on June 19, 2014, which was within one year of the alleged discovery of the fraud or ill practices and within one year of the August 2, 2013 judgment. Schiff I, 15-0340, pp. 4-5, 177 So.3d at 722. Finding that the amended petition to annul was timely, this Court reversed the trial court’s November 7, 2014 judgment and remanded for further proceedings.

On remand, Ms. Pollard filed exceptions of vagueness and ambiguity and res judica-ta. After a hearing on these exceptions, the trial court granted the exception of vagueness and ambiguity, ordered Schiff to amend the petition within thirty days, and further, ordered that the exception of res judicata be held in abeyance until an amended petition was filed and reviewed. Schiff then timely filed a second amended petition to annul on January 12, 2015. In response, Ms. Pollard filed an exception of no cause of action and re-urged the exception of res judicata. .

[HOn April 22, 2016, the trial court held a hearing on the exceptions of res judicata and no cause of action. Finding that all of the issues raised within Schiffs amended petition to annul had been previously litigated and ruled upon, the trial court granted the exception of res judicata. The trial court’s May 3, 2016 judgment reads in pertinent part as follows:

IT IS HEREBY ORDERED that the Exception of Res Judicata be and hereby GRANTED; Plaintiffs’ claims are accordingly dismissed with prejudice.
IT IS FURTHER ORDERED that the Exception of No Cause of Action is rendered MOOT by virtue of the Court’s ruling on the Exception of Res Judicata.

Schiff filed a motion for appeal of the trial court’s May 3, 2016 judgment on May 16, 2016.

JURISDICTION

Before we proceed to the merits of the case, we must address a procedural matter concerning the lack of decretal language in the May 3, 2016 judgment. The trial court’s May 3, 2016 judgment from which Schiff appeals does not name either the party in favor or against whom the exception of res judicata is granted. Although the judgment does decree unmistakably that plaintiffs’ claims are dismissed with prejudice, we find that the May 3, 2016 judgment lacks components of definitive decretal language necessary to properly invoke our appellate jurisdiction.

“We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment.” Bd. of Supervisors of La. State Univ. and Agric. and Mech. College v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La. C.C.P. art. 1841. A final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language. La. C.C.P. arts. 1841, 1918. For a judgment to be a valid, final, appealable judgment, it must contain decretal language, which has three necessary components: (1) it must name the party in favor of whom the ruling is ordered; (2) name the party against whom the ruling is ordered; and (3) specify the relief that is granted or denied. Tsegaye v. City of New Orleans, 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710; Mid City Holdings, 14-0506, pp. 2-3, 151 So.3d at 910; Palumbo v. Shapiro, 11-0769, p. 5 (La. App. 4 Cir. 12/14/11), 81 So.3d 923, 927. The specific relief granted must be apparent on the face of the judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Moon v. City of New Orleans, 15-1092, 15-1093, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425.

Finding that the trial court’s May 3, 2016 judgment lacks components of definitive decretal language required for a valid final judgment and necessary for the exercise of our appellate jurisdiction, the appellant is not entitled as of right to appellate review. See La. C.C.P. art. 2201; Mid City Holdings, 14-0506, p. 3, 151 So.3d at 910. However, in some circumstances when confronted with a judgment in an appellate context that is not final and appealable, this Court is authorized to exercise our discretion to convert the appeal to an application for supervisory preview. Tomlinson v. Landmark American Ins. Co., 15-0276, p. 3 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 157; Mid City Holdings, 14-0506, pp. 3-4, 151 So.3d at 911. In cases such as this, when a decision by this Court would terminate the litigation, “judicial efficiency and fundamental fairness to the litigants dictates that the merits of an application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.” Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam). In addition, as in those cases in which we have exercised our discretion to convert an appeal to an application for supervisory writs, we find that the motion for appeal was filed within 30 days of the judgment and, thus, was within the time period for the filing of an application of supervisory writs. Tomlinson, 15-0276, p. 3, 192 So.3d at 157; see Favrot v. Favrot, 10-0986, pp. 5-6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104; Rule 4-3, Uniform Rules—Courts of Appeal.

Therefore, we have decided to exercise our discretion and convert Schiffs appeal of the May 3, 2016 judgment to an application for supervisory review, which we then grant. We now turn to the merits of the substantive issue before us.

DISCUSSION

In the sole assignment of error, Schiff argues that the trial court erred as a matter of law by granting Ms. Pollard’s exception of res judicata and dismissing Schiffs claims with prejudice. Schiff begins by arguing that it is a well-settled rule of law that a prior judgment cannot be pled as res judicata in a suit to annul it. |8Schiff further argues that the doctrine of res judicata does not preclude this suit to annul the trial court’s August 2, 2013 Pollard judgment (hereinafter “Pollard judgment”) because this suit to annul asserts a different cause of action and raises issues that were not litigated in the prior suit.

The doctrine of res judicata bars re-litigation of claims and issues arising out of the same facts and circumstances between the same parties of a previous suit when there is a valid final judgment. Ins. Co. of North America v. Louisiana Power & Light Co., 08-1315, p. 5 (La. App. 4 Cir. 3/4/09), 10 So.3d 264, 267; Avenue Plaza, L.L.C. v. Falgoust, 96-0173, pp. 4-5 (La. 7/2/96), 676 So.2d 1077, 1079. In reviewing a judgment sustaining a peremptory exception of res judicata, the appellate court must determine whether the trial court’s decision was legally correct or incorrect. Bd. of Supervisors of La. State Univ. v. Dixie Brewing Co., Inc., 14-0641, p. 6 (La. App. 4 Cir. 11/19/14), 154 So.3d 683, 688; Myers v. Nat'l Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La. App. 4 Cir. 5/19/10), 43 So.3d 207, 210.

First, while we recognize the general rule that a prior judgment cannot be pled as res judicata in a suit to annul it, as stated and followed in Haney v. Davis, 04-0856, p. 7 (La. App. 4 Cir. 5/11/05), 904 So.2d 53, 56, that general rule does not apply ipso facto. “Recognizing the basic principle of res judicata, the necessity that a time should come for the cessation of litigation, courts do not blindly prohibit its assertion by exclusively relying on presumptions against its application.” Makar v. Ivy, 291 So.2d 861, 863 (La. App. 3 Cir. 1974). In Haney, |flthis Court stated that it did not find that an exception to the general rule had been established by the “very limited record before us.” 04-0856, p. 7, 904 So.2d at 56. Thus, under the circumstances and record of that case, the Court could not determine whether the prior judgment was res judicata as to the issues and claims raised in the suit to annul. But where the record reflects that the essential elements of res judicata are clearly established and show that the issues raised in the suit to annul were raised or could have been raised in the prior suit, then the exception of res judicata will be maintained. Cf. Schnell v. Mendoza, 13-922, pp. 6-8 (La. App. 5 Cir. 5/21/14), 142 So.3d 238, 242-43.

La. R.S. 13:4231 explains the applicability of the doctrine of res judicata as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Pursuant to La. R.S. 13:4231, a second action is precluded by res judicata when all of the following elements are satisfied:

(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 | inexisted at the time of the 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.

Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1053. Res judicata cannot be applied to preclude another action unless all the essential elements are present and each necessary element has been clearly established by the party invoking it. Myers, 09-1517, p. 6, 43 So.3d at 211; BBCL Enterprises, LLC v. American Alternative Ins. Corp., 15-0469, pp. 3-4 (La. App. 4 Cir. 2/3/16), 187 So.3d 65, 68.

In the application of La. R.S. 13:4231, Louisiana courts have held that the statute “embraces the broad usage of the phrase ‘res judicata’ to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel).” Maschek v. Cartemps USA, 04-1031, p. 5 (La. App. 4 Cir. 2/16/05), 896 So.2d 1189, 1193, quoting Stroscher v. Stroscher, 01-2769, pp. 6-7 (La. App. 1 Cir. 2/14/03), 845 So.2d 518, 525; see Schnell, 13-922, 142 So.3d at 242; Stelly v. Stelly, 07-640, pp. 3-4 (La. App. 3 Cir. 11/7/07), 969 So.2d 1283, 1286; Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 01-0993 (La. App. 1 Cir. 8/4/04), 880 So.2d 129, 135. In Maschek, the Court explained the two aspects of res judicata under La. R.S. 13:4231 as follows:

Under claim preclusion, the res judicata effect of a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: (1) foreclosure of relitigat-ing matters that have never been litigated, 111 but should have been advanced in the earlier suit; and (2) foreclosure of relitigating matters that have been previously litigated and decided.

04-1031, p. 5, 896 So.2d at 1193. Thus, res judicata does not require that claims or issues be actually litigated or decided for the doctrine to apply. Schnell, 13-922, p. 6, 142 So.3d at 242. A prior judgment is res judicata as to the grounds that were decided in the first suit and those that were “implicitly adjudicated as a necessary consequence of the decision.” Ward v. Pennington, 523 So.2d 1286, 1292 (La. 1988).

In this case, Schiff argues that the essential elements of res judicata are not present in this suit to annul the Pollard judgment and, thus, the doctrine of res judicata does not apply to preclude it. In particular, Schiff asserts that the cause of action in this suit to annul arises out of a different transaction or occurrence than the prior suit and the acts of fraud or ill practice alleged within this suit were not raised or litigated previously. We, therefore, turn to examine the record and Schiffs second amended petition to annul to determine whether the elements of res judicata are present.

In the petition to annul, Schiff alleges the following acts of fraud or ill practice were committed by Ms. Pollard and her trial counsel in obtaining the Pollard judgment:

• Intentional concealment of the Regions 2974 bank account from the expert CPA, causing the CPA’s accounting, and ultimately the trial court’s judgment, to be incomplete and inaccurate.
• Intentional misrepresentation of the amount of reimbursement expenses in the proposed judgment presented to the trial court.
• False trial testimony from Ms. Pollard regarding the Regions 2974 bank account and the amounts and sources of money she invested | iainto the venture, which affected the trial court’s assessment of the case and the amounts awarded in the judgment.
• Fraudulent misrepresentation by Ms. Pollard in holding herself out to be a licensed contractor, affecting the validity of the contract and the trial court’s assessment of her credibility.

In support of these allegations, Schiff attached numerous exhibits to the petition to annul, including excerpts of trial and deposition testimony, exhibits entered into the record of the prior suit, post-trial memo-randa from the prior suit, the trial court’s reasons for judgment in Pollard, and correspondence between trial counsel for the parties. Schiff argues that the grounds for this suit to annul and the issues raised therein were not raised or litigated in the previous suit or even discovered until after the prior judgment was rendered.

“It is imperative that courts review a petition for nullity closely as an action based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof.” Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149, p. 5 (La. 10/16/01), 800 So.2d 762, 766. Moreover, “[n]ot every fraud or ill practice constitutes grounds to annul a judgment.” Ward v. Pennington, 523 So.2d 1286, 1289 (La. 1988). “There must be a causal relationship between the fraud or ill practice and the obtaining of the judgment.” Id. “[A] logical interpretation of Article 2004 dictates that a judgment will not be annulled on account of fraud or ill practice in. the course of a legal proceeding if the fraud or ill practice, pertained, to a matter irrelevant to the basis of the decision and the judgment therefore was not obtained by fraud or ill practice.” Id. Thus, we now review Schiffs petition to annul to determine whether the allegations raise claims or issues that were not raised in the prior suit or whether this suit to annul the Pollard judgment is intended as another chance to argue and prove claims that were previously denied for failure of proof.

Intentional concealment of Regions bank account

Schiff alleges that Ms. Pollard and her trial counsel intentionally concealed the Regions 2974 bank account from the expert CPA for the Pollard trial, resulting in an accounting that was inaccurate and incomplete in favor of Ms. Pollard. Schiff further alleges that Ms. Pollard’s trial counsel attempted to deceive the trial court by stating that he had only received information about the Regions 2974 account three days before trial.

As shown -within Schiffs exhibits to the petition to annul, Schiff raised this issue of an incomplete, false accounting during trial, in post-trial memoranda, and on appeal. During the three-day trial, on April 16, 2013, the trial court heard arguments regarding the production of bank accounts and, ultimately, admitted all of the bank account documents including those for Regions 2974. In post-trial memoranda, Schiff argued to the trial court that Ms. Pollard and her trial counsel did not provide the CPA with the Regions 2974 bank account and, thus, her accounting was inaccurate and incomplete. In the Pollard appeal, Schiff assigned as error the trial court’s reliance on the accounting by the CPA that “did not include or consider an entire bank account” and was “unreliable and patently false.” This Court rejected Schiffs argument, finding that “[Schiff] was free to produce his own accounting to include missing information, and other alleged ‘missing' expenses that should have been credited to Schiff, to refute the one prepared by Ms. Corcoran [the CPA], but did not.” Pollard, 13-1682, p. 16, 161 So.3d at 58. Thus, this issue was raised, addressed, and decided in the prior suit.

| ^Intentional misrepresentation within the Proposed Judgment

Next, Schiff makes several allegations involving Ms. Pollard’s trial counsel intentionally misrepresenting the amounts of reimbursement expenses during the trial and within the proposed judgment submitted to the trial court. Specifically, Schiff alleges that Ms. Pollard’s trial counsel “knowingly inaccurately” did not include $116,418 in stipulated reimbursements in the proposed judgment.

The amount of reimbursement expenses owed to Ms. Pollard was litigated during trial, raised and argued in post-trial memo-randa, and raised and addressed on appeal of the Pollard judgment. Notably, Schiff did not previously argue that the amount of stipulated reimbursements in the proposed judgment was inaccurate by the amount now alleged in the petition to annul; however, any objection to that proposed judgment should have been raised prior to the trial court rendering judgment or in a motion for new trial. In addition, this Court’s decision in Pollard reviewed all trial testimony and evidence regarding the reimbursement expenses, noting that “[b]y stipulation of the parties, $40,204 in total deductions was made.” 13-1682, pp. 16-17, 161 So.3d at 58-59. Upon review of the record and the allegations in Schiffs suit to annul, we find that all claims regarding the reimbursement expenses were raised and addressed during the trial and on appeal in the prior suit.

False testimony & Fraudulent misrepresentation

Schiff also alleges that Ms,- Pollard testified falsely several times during the pri- or trial in regard to the Regions 2974 bank account, reimbursement expenses, and the amounts and sources of money she allegedly invested out of pocket into the partnership. In addition, Schiff alleges that several months after the trial he discovered that Ms. Pollard fraudulently misrepresented to him and to the trial 1 lscourt that she was a Louisiana licensed contractor. Schiff asserts that Ms. Pollard’s perjured testimony misled the trial court in its assessment of the case and in its determination of the amounts awarded in the judgment; thus, Schiff asserts that the judgment was obtained by fraudulent testimony and should be annulled.

First, we find that Schiff had sufficient opportunity to address any alleged false statements by Ms. Pollard during the prior trial and appeal. During trial, both parties testified and were cross-examined by counsel about the amounts invested in the partnership, the various bank accounts opened or used by each party during the partnership, and their withdrawals and distributions from those accounts. Schiff had the opportunity to challenge Ms. Pollard, and in fact did challenge her, on disputed sources and amounts of investments and reimbursements during trial. The record also reflects that Schiff raised the claim of newly discovered evidence of Ms. Pollard’s false testimony regarding the source of $50,000 in a motion for new trial and in the Pollard appeal; both the trial court and this Court addressed and dismissed that claim. We find that each of the allegations of Ms. Pollard’s false testimony-in regard to disputed amounts and sources of money invested in the partnership were raised and decided in the prior suit.

The only allegation of false testimony that appears for the first time in Schiffs petition to annul is that Ms. Pollard fraudulently misrepresented herself as a Louisiana licensed contractor. Schiff alleges that he discovered this new evidence several months after the trial court rendered judgment in Pollard. Schiff argues that Ms. Pollard’s fraud vitiates the contract sued upon in Pollard and, thus, this new evidence provides grounds to annul the judgment. We find no merit to this argument.

| ifi“Discovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity.” Gladstone v. American Auto. Ass’n, 419 So.2d 1219, 1223 (La. 1982). “Absent a specific discovery request or ‘knowing concealment,’ where a party seeks to annul a judgment because the other party failed to disclose facts within his knowledge [... ] that would have been helpful to his case, that party cannot prevail when with reasonable diligence he could have ascertained those facts himself.” Wright v. Louisiana Power & Light, 06-1181, p. 14 (La. 3/9/07), 951 So.2d 1058, 1068; see also La. C.C. art. 1954 (“Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill.”). Furthermore, if the fraud alleged in a suit to annul pertains to a matter which was irrelevant to the basis of the trial court’s decision, the judgment was not obtained by fraud or ill practice and cannot be annulled on that ground. Frank L. Maraist, 1 La. Civ. L. Treatise, Civil Procedure, § 12.6 (2016); see New Orleans Redevelopment Authority v. Lucas, 02-2344, p. 12 (La. App. 4 Cir. 8/25/04), 881 So.2d 1246, 1253.

The subject matter of the prior suit was a partnership agreement between these same parties to buy, renovate and resell properties, and the terms of that agreement were at issue throughout the litigation. If Ms. Pollard’s status as a licensed contractor were a cause for that agreement, then it was incumbent upon Schiff to raise that issue and exercise due diligence to ascertain facts relevant to that issue during the prior litigation. Notably, there is no indication within the | ^pleadings from the prior suit, the trial court’s judgment, the appellate briefs, or this Court’s decision in Pollard that Ms. Pollard’s status as a Louisiana licensed contractor was relevant to the trial court’s determination of claims and issues in the prior suit. Consequently, we find no merit to Schiffs argument that newly discovered evidence that Ms. Pollard misrepresented herself as a Louisiana licensed contractor serves as a basis to annul the Pollard judgment. In addition, we find that res judicata bars this claim which Schiff could have advanced in the prior suit.

After close review of Schiffs petition to annul and the record before this Court, we find that each of the issues or claims raised in this suit to annul were actually raised and addressed by the trial court and this Court in the Pollard suit, or should have been advanced in that prior suit. Thus, Schiffs suit to annul attempts to relitigate claims and issues determined by the Pollard judgment, which is a valid, final judgment. Upon review of the record in light of the relevant jurisprudence, we find that all essential requirements of res judicata are present and preclude Schiffs suit to annul the Pollard judgment. Accordingly, we affirm the trial court’s May 3, 2016 judgment granting the exception of res judicata and dismissing Schiffs claims with prejudice.

CONCLUSION

For the reasons stated above, we convert Schiffs appeal to an application for supervisory review, we grant the writ, and we affirm the trial court’s judgment granting the exception of res judicata and dismissing Schiffs claims with prejudice.

|, «APPEAL CONVERTED TO WRIT; WRIT GRANTED; JUDGMENT AFFIRMED

      . While we refer to Robert Andrew Schiff and N.O.W. Properties, L.L.C. collectively as "Schiff”, we refer to Robert Andrew Schiff, individually, as “Mr. Schiff.”

      . Ms. Pollard also filed a peremptory exception of res judicata, which the trial court denied.

      . Schiff’s amended petition to annul also sought a temporary restraining order, preliminary injunction and permanent injunction to prevent Ms. Pollard from enforcing and collecting the August 2, 2013 judgment. After a hearing on plaintiff’s petition for preliminary and permanent injunction, the trial court rendered judgment finding that Sehiff could not establish the burden of proof for a preliminary injunction and denied the petition for preliminary and permanent injunction.

      . Schiff also filed a motion for new trial that was denied by the trial court on January 5, 2015.

      . While the Court in Makar found that the trial court erred in maintaining the exception of res judicata, the Court went through the analysis of determining whether res judicata applied rather than holding that the default judgment could not have a res judicata effect in a suit to annul it.

      . Schiff’s second amended petition to annul is hereinafter as the petition to annul.

      . As reflected by Schiffs exhibits to his petition to annul, Schiff merely had to file a records request with the Louisiana State Licensing Board of Contractors in order to discover whether Ms. Pollard ever held a contractor's license issued by state.

      . Referring only to the numerous pleadings from that prior suit that Schiff has attached and filed into the record of this suit.