author: LILJEBERG, J.

text:
    Dr. Natchez MORICE v. ALAN YEDOR ROOFING AND CONSTRUCTION, et al
    NO. 16-CA-532
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, DR. NATCHEZ MORICE, Melvin G. Ripp, Jr.
    .'COUNSEL FOR DEFENDANT/APPELLANT, ALAN YEDOR ROOFING AND CONSTRUCTION, Albert J. Ni-caud, Jeffrey M. Siemssen
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   LILJEBERG, J.

11 Defendant-Appellant, Alan Yedor Roofing and Construction, appeals a default judgment rendered against it on May 15, 2003. For the reasons set forth more fully below, we vacate the default judgment and remand this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This matter has a long and convoluted procedural history. On July 25, 2002, plaintiff-appellee, Dr. Natchez Morice, filed a petition for damages against defendants, Alan Yedor Roofing and Construction and Alan Yedor, in the Second Parish Court for the Parish of Jefferson, State of Louisiana. The petition alleges these defendants owed Dr. Morice damages caused by faulty repairs to the roof of an office building owned by Dr. Morice. Dr. Morice requested Service of the petition on both defendants at 1507 Demothenes Street in Me-tairie, Louisiana. The service returns filed in the record indicate the deputy sheriff was unable to affect service because defendants were “not at this address.”

On August 16, 2002, Dr. Morice filed a motion to appoint a private process server and obtained an order from the trial court authorizing Keith Lobrano to serve defendants. On August 23, 2002, the Second Parish Court Clerk of Court (“Clerk”) issued citations addressed to “Alan Yedor” and “Alan Yedor Roofing & Const.” The service return for the citation addressed to “Alan Yedor” indicates Mr. Lobrano personally served “Alan Yedor / roofing & constr” on September 6, 2002, and the return information for the citation addressed to “Alan Yedor Roofing & Construction” indicates personal service on “Alan Yedor” on the same day. Neither return contained information regarding the location where the personal service occurred. In its appellate brief, defendant denies service was perfected.

On May 15, 2003, Dr. Morice obtained a default judgment against “Alan Yedor Roofing and Construction” for $18,604.06, as well as legal interest, |gattorney’s fees in the amount of 33 ⅛% of the amount owed, and court costs. Other than an Affidavit of Non-Military Service, the record does not contain any evidence in support of the claims alleged in his petition. On May 15, 2003, the Clerk issued a “Notice of Judgment” addressed to “Alan Yedor Roofing & Const.” at 1507 Demothenes Street for service by a deputy sheriff. On May 28, 2003, the deputy sheriff filed a return indi-eating defendant was not at the address listed on the notice.

Almost ten years later, on May 13, 2013, Dr. Morice filed an ex parte motion to revive the May 15, 2003 judgment, which the trial court granted. On May 17, 2013, the Clerk mailed a notice of signing of judgment to “Alan Yedor Roofing and Construction” at 1507 Demothenes Street. The record contains an envelope indicating the post office returned this mailing to the Clerk undelivered and unable to forward.

On April 23, 2015, Dr. Morice took his first step to execute the May 15, 2003 judgment by filing a judgment debtor rule against Alan Yedor. The trial court ordered Mr. Yedor to appear for the rule on August 21, 2015, and Dr. Morice requested service on Mr. Yedor at 1721 Barataría Blvd., in Crown Point, La. The service return filed by the deputy sheriff indicates “no such address.” On June 29, 2015, the deputy sheriff personally served Alan Ye-dor with notice of the August 21, 2015 hearing at 7721 Barataría Blvd. in Crown Point/Marrero, La. Mr. Yedor appeared for the rule on August 21, 2015, and the trial court continued the matter to October 22, 2015. The minute entry for the October 22, 2015 hearing indicates the judgment debtor rule was “satisfied by letter.”

|sOn September 15, 2015, Dr. Morice filed a pleading entitled “Writ of Fieri Facias and Order of Sale.” On that same day, the trial court entered an order to the Clerk to issue a writ of seizure and sale directing the sheriff to sell property owned by “Alan Yedor, II” to satisfy the judgment. On September 16, 2016, the Clerk issued a writ of fieri facias to the sheriff.

On November 10, 2015, Dr. Morice filed a motion seeking additional documents from “Alan Yedor, II” in satisfaction of the judgment debtor rule. The matter was originally set for hearing on December 10, 2015. However, when the deputy sheriff was unable to perfect service after numerous attempts, the hearing was rescheduled to February 18, 2016, and Dr. Morice obtained an order from the trial court appointing Mr. Lobrano as a private process server. Mr. Lobrano provided an affidavit stating he personally served “Alan Yedor, II” on January 10, 2016.

At the February 18, 2016 hearing, Mr. Yedor testified that he was Alan Yedor, II. He further confirmed that at the time Dr. Morice obtained the judgment against him, he was doing business as Alan Yedor Roofing and Construction. He also confirmed that he did not incorporate this business and did not register it as a trade name with the Louisiana Secretary of State. Mr. Yedor also told the trial court he was not served with “papers” regarding this lawsuit prior to the time Dr. Morice obtained the judgment against him and first learned of the judgment during the prior year. At the conclusion of the hearing, the trial court advised Mr. Yedor to seek advice from an attorney.

On February 28, 2016, Dr. Morice filed a second pleading entitled “Writ of Fieri Fa-cias and Order of Sale” requesting the trial court again order the Clerk to issue a writ of fieri facias. The trial court denied the request and instructed Dr. | ¿Morice to file a rule to show cause. On March 81, 2016, the trial court signed a rule to show cause which set the matter for hearing on May 19, 2016. The trial court also stated in the rule to show cause that the May 15, 2003 judgment “was never served on Alan Ye-dor Roofing and Construction or Alan Ye-dor II.”

On April 29, 2016, Dr. Morice filed a motion to appoint a private process server to serve Mr. Yedor with notice of the May 19, 2016 hearing, as well as the May 15, 2003 judgment, May 14, 2013 revival judgment and notices of the signing of these judgments. The trial court granted the request on April 29, 2016, again appointing Keith Lobrano. On May 6, 2016, Mr. Lo-brano filed a service return in the record for the notice of the rule to show cause set on May 19, 2016. The service return indicated Mr. Lobrano personally served Alan Yedor at 7721 Barataría Blvd. The return also contained a notation stating “‘Drop Service’ refused to aceept hand to hand.” The record does not contain returns relating to notice of the signing of the May 15, 2003 judgment or subsequent revival judgment.

On May 11, 2016, the trial judge recused herself from these proceedings and reset the hearing on Dr. Morice’s request for a writ of fieri facias on June 7, 2016. On May 16, 2016, the private process server, Keith Lobrano, filed an affidavit in the record stating:

... he received a certified copies (sic) of the Notice of Rule to Show Cause issued April 4th, 2016 and Rule to Show Cause, filed and Order signed March 31st, 2016 in these proceedings, certified copies of Judgments signed May 15th, 2003 and revived Judgment May 14th, 2013, as well as certified copies of Notices of Signing those Judgments (sic), in these proceedings and all of these documents were personally served on Alan Yedor, II on May 6th, 2016 as will be shown by the return in this record filed May 6th, 2016. [Emphasis added.]

Mr. Lobrano did not attach any service returns to his affidavit and as noted above, the only return filed in the record was with respect to the notice for the May 19, 2016 hearing, which the trial court continued.

hOn June 6, 2016, defendants filed a motion for suspensive appeal and motion for stay. The following day, June 7, 2016, the parties appeared for a hearing on Dr. Moriee’s request for the issuance of a writ of fieri facias. During the hearing, the parties did not introduce any evidence, but rather presented their arguments to the trial court. Dr. Morice’s counsel directed the court’s attention to Mr. Lobrano’s affidavits wherein he stated he personally served Mr. Yedor with the petition, certified copies of the judgments and notices of signing of judgments. Counsel also argued that the trial court mailed Mr. Yedor notices of the signing of judgment to the address where he was personally served.

In response, Mr. Yedor’s counsel argued that a “plethora of mistakes” existed with respect to the May 15, 2003 judgment. He argued his client denied receiving personal service of the petition and further argued that Dr. Morice failed to present any evidence to the court to support the default judgment awarding damages in favor of Dr. Morice. At the conclusion of the hearing, the trial court stated that after reviewing the record, she found there was “service” and was going to sign the order to issue the writ of fieri facias.

During and after the hearing, the trial court also noted that defendants filed a motion for suspensive appeal and motion to stay. The trial court explained she was denying the motion to stay and she was “not going to rule on the motion for sus-pensive appeal.” However, on that same day, the trial court signed an order granting defendants’ motion for suspensive appeal and set a bond in the amount of $34,656.00. The trial court denied the portion of the order which stated all further | (¡proceedings were stayed pending this Court’s decision on the appeal. A notation on the order indicates the clerk received $34,656.00 on July 28, 2016.

DISCUSSION

Upon review of the record and appellate briefs, issues regarding whether and when appeal delays commenced in this matter are apparent and present a question as to whether this Court has jurisdiction to consider this appeal. When an appellant fails to timely file an appeal, the appellate court lacks jurisdiction to consider the appeal. Alexander v. Maki, 15-517 (La.App. 5 Cir. 1/4/16), 183 So.3d 821, 823. Therefore, we address this threshold issue prior to analyzing the merits of defendant’s appeal.

La. C.C.P. art. 5002(A) governs the delays for filing an appeal from a judg-merit entered in a parish court and provides the appeal “may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.” This particular time period commences upon receipt of the notice of judgment, rather than upon mailing of the notice, in cases where notice is required. Myles v. Turner, 612 So.2d 32, 35 (La. 1993); Alexander, 183 So.3d at 822-23. La. C.C.P. art. 4905 states that notice of the signing of a final judgment “shall be given as required by Article 1913.”

La. C.C.P. art. 1913 provides the following notice requirements for default judgments:

B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state.
|7C. Notice of the signing of a default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.
D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of judgment was mailed.

Though defendant denies it was served with the petition, for purposes of determining whether jurisdiction exists to consider this appeal, we note the return in the record states defendant received personal service. According to La, C.C. arts. 1913(C) and 5002, when a defendant ⅛ personally served, the ten-day appeal delay commences when the defendant receives notice of the signing of judgment mailed by the clerk of court. Myles, 612 So.2d at 35.

The Clerk did not file any certificates in the record in accordance with La. C.C.P. art. 1913(D), which would indicate that it mailed a notice of the signing of the May 15, 2003 judgment to defendants. Therefore, we find that contrary to the arguments set forth in Dr. Morice’s appellate brief, appeal delays did not begin to run in this matter as a result of the Clerk’s mailing of a notice of signing of the May 15, 2003 judgment.

As noted above, on May 15, 2003, the Clerk did issue a notice of judgment to be served by the deputy sheriff on “Alan Ye-dor Roofing and Construction” at “1501 Demothenes,” the same address where the sheriff failed to serve the petition. The service return filed in the record on May-28, 2003 indicates the deputy sheriff did not serve defendant because he was not at the address listed on |sthe notice. Therefore, because La. C.C.P. art. 5002(A) requires receipt of the notice of judgment, the appeal delays did not begin to run as a result of these steps taken by the Clerk.

Furthermore, after the trial court issued its rule to show cause on March 31, 2016, and stated that defendants never received notice of the judgment, Dr. Morice asked the trial court to again appoint Mr. Lobra-no as a private process server. However, the only return Mr. Lobrano filed in the record pertained to the notice of the May 19, 2016 rule to show cause issued by the Clerk on April 4, 2016 to “Alan Yedor.” This return does not indicate service on the defendant named in the judgment, “Alan Yedor Roofing and Construction.” Furthermore, this return does not indicate Mr. Lobrano served Mr. Yedor with the May 15, 2003 judgment or a notice of signing of this judgment. According to the record, the Clerk did not issue any new notices with respect to the May 15, 2003 judgment to be served by the private process server. The only document in the record relating to the May 15, 2003 judgment is the “notice of judgment” the Clerk issued on May 15, 2003 for service by the deputy sheriff. Mr. Lobrano did not file a return in the record indicating that he served Mr. Yedor with this document on May 6, 2016.

Defendant obviously learned of the May 15, 2003 judgment well before it filed the motion for suspensive appeal. However, actual knowledge of the signing of the judgment outside of the record and absent compliance with the mailing or service requirement is not sufficient to cause new trial and appeal delays to commence. 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 13-588 (La.App. 5 Cir. 2/26/14), 136 So.3d 313, 316; Hacienda Constr., Inc. v. Newman, 10-18 (La.App. 5 Cir. 6/29/10), 44 So.3d 333, 336 (...“we decline to hold that actual notice of the judgment prevails over the plain wording of La. C.C.P. art. 1913, which clearly requires that the clerk of court mail notice of the signing of a final judgment to the counsel of record for each party.”)

lain a similar matter, 9029 Jefferson Highway, supra, the plaintiff obtained a default judgment for damages after it hired the defendants to repair a leaking roof. The plaintiff obtained a default judgment in 2010 in parish court, but the defendants were not served with notice of the judgment. On July 8, 2011, the plaintiff filed a motion for seizure of personal property of the defendants, and on August 18, 2011, the defendants filed a motion for new trial. The plaintiff argued the motion for new trial was untimely because the defendants had actual notice of the judgment when they received the motion for seizure of property. However, this Court determined the new trial and appeal delays did not commence without compliance with the mailing or service requirements. Id. at 316.

On the other hand, in Albitar v. Albitar, 16-167 (La.App. 5 Cir. 6/30/16), 197 So.3d 332, 340, this Court recently determined that when a party files a motion for an appeal or an exception of insufficient service of judgment, he is deemed either to have notice of the judgment or waive notice. Therefore, this Court found the appeal delays commenced from the time the defendant filed the exception of insufficient service of the default judgment. Id. Upon reviewing the record in the instant matter, we do not find defendant filed any pleadings or took any other steps in this matter prior to the filing of the motion for suspen-sive appeal which triggered the appeal delays.

The only indication of service of the May 15, 2003 judgment or notice of the signing of judgment in the record is the May 14, 2016 affidavit of Mr. Lobrano wherein he states he served Mr. Yedor with certified copies of these documents “as will be shown by the return filed in the record on May 6, 2016.” However, this service return does not contain any indication to confirm service of the judgment or notice of signing of judgment. Furthermore, the return was not addressed to the party listed in the judgment, Alan Yedor Roofing and Construction.

110Appeals are favored in the law and any doubt shall be resolved in favor of maintaining, rather than dismissing an appeal. Hacienda Constr., Inc, 44 So.3d at 336. Unless the grounds for dismissal are free from doubt, the appeal should be maintained. U.S. Fire Insurance Company v. Swann, 424 So.2d 240 (La. 1982). Considering the deficiencies outlined above, considerable doubt exists as to whether “Alan Yedor Roofing and Construction” received notice of the judgment in accordance with La. C.C.P. arts. 5002 and 1913. Therefore, considerable doubt exists as to whether appeal delays commenced on May 6, 2016, and we must find in favor of maintaining the appeal and determine defendant’s appeal is not untimely. Accordingly, we find jurisdiction exists to consider this appeal.

In its appellate brief, defendant raises three assignments of error. Defendant first argues the May 15, 2003 judgment must be reversed because Dr. Morice failed to establish a prim a facie case by presenting relevant and competent evidence to the trial court as required by La. C.C.P. art. 4904. Defendant also contends the trial court erred by awarding Dr. Mor-ice attorney’s fees because he did not pray for this relief in his petition. Finally, defendant argues the trial court erred in entering the default judgment because Dr. Mor-ice failed to serve the petition for damages on defendant.

With respect to his first assignment of error, defendant argues the record contains no evidence to support the damages and attorney’s fees awarded to Dr. Morice. La. C.C.P. art. 4904 governs the entry of default judgments in parish and city courts:

A. In suits in a parish court or a city court, if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary.
B. The plaintiff may obtain a fínal judgment only by producing relevant and competent evidence which establishes a | uPrima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. [Emphasis added.]

In order to establish a prima facie case to obtain a default judgment, a plaintiff must establish his case with competent evidence as fully as though each of the allegations in the petition were denied by the defendant. Concept 29 Uniform Service v. Roe, 542 So.2d 609, 611 (La. App. 5th Cir. 1989). Although a presumption exists that a default judgment is supported by sufficient evidence, the presumption does not attach when the record upon which the judgment is rendered indicates otherwise. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1264, 1268 (La. 1993); Moreau v. Griffith, 96-683 (La. App. 3 Cir. 12/11/96), 686 So.2d 663, 666 (vacating judgment because of insufficient evidence in the record to obtain a default judgment).

The record before this Court indicates the only document Dr. Morice presented in support of the May 16, 2003 judgment is an affidavit of nonmilitary service. The record contains no other documentary evidence or testimony to establish prima fa-cie proof of the damages and attorney’s fees awarded to Dr. Morice. Therefore, we find the trial court erred in entering a default judgment in favor of Dr. Morice due to the lack of relevant and competent evidence in the record. It is not necessary to address the remaining issues raised on appeal.

DECREE

Based on the foregoing, we vacate the trial court’s May 16, 2003 default judgment and remand this matter for further proceedings.

JUDGMENT VACATED AND MATTER REMANDED FOR FURTHER PROCEEDINGS

      . As noted above, the May 15, 2003 judgment was only entered against "Alan Yedor Roofing and Construction.”

      . The record does not contain a letter regarding the judgment debtor rule.

      . This pleading represented the judgment obtained by Dr. Morice was against "Alan Ye-dor, II.”

      . La. C.C.P. art. 736 provides that a "person who does business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business.”

      . This statement is inaccurate. The record does not contain any certificates indicating the Clerk ever mailed a notice of the signing of the May 15, 2003 judgment to defendants. Furthermore, the record does not contain information regarding the address where Mr. Lobrano alleges he personally served defendants with the petition for damages.

      . This ruling is not on appeal before this Court.

      .In its appellate brief, defendant explains that following die hearing, the parties thought the trial court denied the suspensive appeal and therefore, it filed a Petition for Injunctive Relief and to Nullify the Default Judgment. Defendant claims it did not learn the trial court signed the order granting the suspen-sive appeal on June 7, 2016, until the parties appeared for the hearing on the Petition for Injunctive Relief and to Nullify the Default Judgment on July 12, 2016.

      .Defendant complains that the service returns filed by the private process server did not contain the address where he personally served defendants. La. C.C.P. art. 1292 states the "sheriff shall endorse on a copy of the citation or other process the date, place and method of service and sufficient other data to show service in compliance with law.” La. C.C.P. art. 1293 requires a private process server to "make service of process in the same manner as is required of sheriffs.”

      . On December 13, 2016, this Court issued an order to the Clerk requesting a supplemental record containing all service returns and notices of signing of judgment filed in its record. The Clerk lodged the supplemental record with this Court on December 20, 2016.

      . Because Mr. Lobrano failed to include information regarding the place where he served defendants with the petition for damages, the 1507 Demothenes address was the only address contained in the record at the time the Clerk issued this notice of judgment.

      . We note that defendant failed to brief this last assignment of error other than to note in its statement of the facts that the service return filed in the record failed to identify the 'location/place” where personal service was perfected.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    STATE of Louisiana v. Ryan Joseph MODICA
    NO. 16-KA-320
    Court of Appeal of Louisiana, Fifth Circuit.
    February 8, 2017
    COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Orenthal J. Jasmin

      COUNSEL FOR DEFENDANT/APPELLANT, RYAN JOSEPH MODICA, Gwendolyn K. Brown, Margaret S. Sollars
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

| iDefendant, Ryan Joseph Módica, pled guilty to second degree battery, in violation of La. R.S. 14:34,1. In accordance with a plea agreement, the trial judge sentenced defendant to four years with the Department of Corrections and ordered that his sentence run concurrently with any other sentence he was serving. This appeal followed. For the following reasons, we affirm defendant’s conviction and sentence.

Defendant pled guilty and thus, the facts were not fully developed at trial. However, in the bill of information, the State alleged that on or about May 18, 2015, defendant committed a battery upon Kelvin Jones without his consent with the intention of inflicting serious bodily injury. Also, during the guilty plea colloquy, the trial judge questioned defendant concerning the “factual circumstances surrounding the battery” and ascertained that defendant on May 18, 2015, did commit a second degree battery.

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests permission to withdraw as counsel of record.

After receiving appellant counsel’s brief and motion to withdraw, this Court performed a full examination of the entire appellate court record to determine whether the appeal is frivolous in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 .(1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam).

|aOur independent review of the record in this case consisted of (1) a review of the bill of information to ensure that defendant was properly charged; (2) a review of all minute entries to ensure that defendant was present at all crucial stages of the proceedings and that the conviction and sentence are legal; and (3) a review of the guilty plea and sentencing transcript to determine if there was an arguable basis for appeal. Having conducted this review, we found no non-frivolous issues regarding defendant’s convictions and sentences.

Defendant, in a pro se letter to the trial court, requested that he be permitted to withdraw his guilty plea because he was “threatened with the fact that if [he] didn’t accept the plea at that time [he] will get multi-billed.” The record reflects that the potential prosecution of defendant as a multiple offender was discussed extensively at the time he entered his plea, and that the trial court explained that his plea was being tendered, in part, in exchange for the State’s agreement to forego its right to prosecute him as a multiple offender. Accordingly, this claim raised by defendant has no merit.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of record is granted.

We have reviewed the record for errors patent according to the mandates of La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), and find none.

Defendant’s sentence and conviction are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . At the same time, defendant pled guilty to one count introducing contraband into a municipal or parish jail (La. R.S. 14:402) and was sentenced to six years with the Department of Corrections, to run concurrent to the sentence in the instant case. Defendant also filed an appeal from that guilty plea and sentence, which was affirmed by this Court. See State v. Modica, 16-604 (La. App. 5 Cir. 02/08/17), 210 So.3d 962.


author: JOHNSON, J.

text:
    Mark Anthony JENKINS, Sr. v. Latasha JACKSON
    NO. 16-CA-482
    Court of Appeal of Louisiana, Fifth Circuit.
    February 22, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, MARK ANTHONY JENKINS, SR., Cecelia F. Abadie
    COUNSEL FOR DEFENDANT/AP-PELLEE, LATASHA TUCKSON, Willie M. Zanders, Sr.
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   JOHNSON, J.

_JjPlaintiff/Appellant, Mark .Anthony Jenkins, Sr., appeals the sustaining of peremptory exceptions of res judicata and no cause of action in favor of Defendant/Ap-pellee, Latasha Jackson, resulting in the dismissal of his petition for nullification in the 24th Judicial District Court, Division “A”. For the following reasons, we affirm the dismissal of the petition for nullification.

FACTS AND PROCEDURAL HISTORY

The pertinent facts of this extensive matter are as follows:

Mark Anthony Jenkins, Sr. and Latasha Jackson began them relationship while Ms. Jackson was in high school. During the time of their sexual involvement, Ms. Jackson became pregnant. On September 18, 1997, Mark Anthony Jenkins, Jr. (hereinafter referred to as “Mark, Jr.”) was born to Latasha Jackson. According to Mr. Jenkins, he signed an acknowledgement of paternity establishing filiation to Mark, Jr., and the acknowledgement was filed by November 1997. The following year, on May 31, 1998, Mr. Jenkins and Ms. Jackson were married. At some point, the parties separated, and Ms. Jackson obtained a judgment of child support against Mr. Jenkins on October 27, 2003. Mr. Jenkins and Ms. Jackson were divorced on April 13, 2004.

On February 15, 2012, Mr. Jenkins filed a “Petition for Revocation of Acknowledgement of Paternity, for Damages Due to Fraud under C.C. art. 2315, and for Restoration of Payments Not Due under C.C. art. 2299” in the 24th Judicial District Court. In his petition, Mr. Jenkins alleged that Ms. Jackson fraudulently concealed the truth about the paternity of Mark, Jr. and obtained child support while knowing that another man, Samuel Scott, was the biological father. He also alleged that he mistakenly signed the acknowledgement of paternity for Mark, Jr. [2In addition, Mr. Jenkins sought to have his acknowledgement of paternity revoked, monetary damages from Ms. Jackson, and a court order for a paternity test for himself and Mark, Jr.

In opposition to the petition for revocation, Ms. Jackson filed an “Exception of Prescription and/or No Cause/Right of Action.” In her exception, Ms. Jackson argued that Mr. Jenkins’ right to revoke the formal act of acknowledgement was per-empted because he failed to disavow Mark Jr. within 180 days of the marriage; thus, he had neither a right of action nor cause of action to revoke the acknowledgement. The matter was heard by a domestic commissioner. In a judgment rendered on July 5, 2012, the domestic commissioner sustained the exception of prescription but overruled the exceptions of no cause of action and no right of action. Mr. Jenkins filed a “Motion for New Trial,” which was heard on September 13, 2012. A new trial was granted, and the matter was set for arguments. On October 15, 2012, the domestic commissioner rendered a judgment in favor of Mr. Jenkins, which overruled Ms. Jackson exception of prescription. Ms. Jackson objected to the domestic commissioner’s ruling.

The matter was heard by the trial court on January 16, 2013. In a judgment rendered on January 22, 2013, the trial court overruled Ms. Jackson’s exception of prescription. The trial court also ordered genetic testing and assigned costs for the test. Ms. Jackson sought supervisory review of the trial court’s judgment.

In Jenkins v. Jackson, 13-296 (La. App. 5 Cir. 5/14/13) (unpublished writ disposition), writ not considered, 13-1835 (La. 8/22/13); 122 So.3d 1009, this Court granted Ms. Jackson’s writ application in part, reversing the trial court’s ruling on the exception of prescription and rendering a ruling that sustained the | {¡exception. Citing J.P. v. C.E., 12-20 (La.App. 3 Cir. 5/2/12); 94 So.3d 107, this Court found that the two-year prescriptive period in La. R.S. 9:406 should apply prospectively from its effective date, which was August 15, 2008. Because Mr. Jenkins did not file his petition to revoke until February 15, 2012, which was well over the two years from the effective date, Mr. Jenkins’ action to revoke his acknowledgement of paternity was prescribed. This Court also vacated the order for genetic testing and remanded the matter to the trial court for determination of whether Mr. Jenkins was entitled to the genetic testing pursuant to applicable law, specifically La. R.S. 9:396. Upon remand, Mr. Jenkins filed a “Motion for Court to Rule on Petitioner’s Previous Motion for Genetic Testing under R.S. 9:396.” The trial court granted the motion and ordered that Mr. Jenkins, Ms. Jackson and Mark, Jr. submit to the genetic testing.

On September 11, 2013, Mr. Jenkins filed a “Motion to Amend Petition to Annul Judgment of Juvenile Court.” In that motion, Mr. Jenkins alleged that he filed a petition to nullify child support in the juvenile court; however, he was informed by the court that the nullification had to take place in the district court. Mr. Jenkins sought to amend his original petition filed, which was filed in the trial court, to include a request for damages for mental anguish and nullification of the judgment of child support rendered in the juvenile court. The motion was heard by the trial court and granted on November 25, 2013.

Mr. Jenkins subsequently filed a “Petition for Nullification of the Judgment of the Fifth Circuit which Reversed a Judgment of This Court” on June 25, 2014. In that petition, Mr. Jenkins sought to annul the portion of the May 14, 2013 writ disposition of this Court that found his right to revoke the acknowledgement prescribed. He alleged that his acknowledgement of paternity was signed at the | ¿hospital after Mark, Jr. was born, but the only copy of the acknowledgement was destroyed during Hurricane Katrina, while in the possession of the State. Mr. Jenkins sought to have the judgment of this Court annulled on the basis that it did not consider whether the form of the acknowledgement was by authentic act.

On October 14, 2014, Mr. Jenkins filed a “Rule to Show Cause Why Plaintiffs Name Should Not Be Removed from the Birth Certificate and Why An Expert Should Not be Appointed to Calculate Probability of Paternity.” In that pleading, Mr. Jenkins requested that, since the genetic testing ordered by the court showed that he cannot be Mark, Jr.’s biological father, the testing be admitted into evidence, the signing of the birth certificate be given no legal effect, and his name be removed from the birth certificate. Mr. Jenkins also requested that an expert be allowed to use Samuel Scott’s DNA report to calculate the probability of paternity, and Ms. Jackson be cast with the costs of the genetic testing.

In opposition to Mr. Jenkins’ petition to revoke acknowledgement and rule to show cause, Ms. Jackson filed an “Exception of Prescription,” arguing that Mr. Jenkins’ cause of action was prescribed under the ten-year liberative prescriptive period. She also argued that fraud was not a procedural avenue that could be used to vitiate the birth certificate; specifically, Mr. Jenkins could have ascertained the truth regarding his paternity of Mark, Jr. prior to signing the birth certificate.

A hearing on Mr. Jenkins’ rule to show cause was held on January 21, 2015. In a judgment rendered on February 4, 2015, the trial court denied the rule and made a handwritten notation that “no authority [was] provided by mover to show this court that this is the proper procedure to alter or amend birth certificates. Dept, of Vital Records is not a party.” In a separate judgment rendered on the same date, the trial court overruled Ms. Jackson’s exception of prescription, admitted the genetic testing into evidence, found that Mr. Jenkins is not the father |fiof Mark, Jr., and ordered Ms. Jackson to reimburse Mr. Jenkins for the total costs incurred for the testing, which included attorney’s fees and court costs. The trial court also ordered a rule to show cause hearing to show why the birth certificate should not be altered and why DCFS should not authorize the calculation of Mr. Scott’s probability of paternity for Mark, Jr.

Ms. Jackson filed a “Motion and Order for Appeal” on February 24, 2016, seeking appellate review of the trial court’s rulings that overruled her exception of prescription and ordered her to pay the costs incurred to prove paternity. The motion was granted by the trial court, and an appeal was lodged. This Court dismissed Ms. Jackson’s appeal through an order on May 26, 2015, finding that the trial court’s February 4th judgments were not final judgments. Ms. Jackson was allowed 30 days to file an appropriate writ application seeking review of the interlocutory rulings.

After the trial court rendered its February 4th judgments, Mr. Jenkins filed a “Petition for Alternation of a Birth Certificate to Remove Petitioner’s Name as Father of the Child, Void His Signature, and Change the Surname of the Child” on February 9, 2016. Subsequently, he filed a “Motion to Amend Petition a Third Time.” In that motion, Mr. Jenkins sought permission to add allegations against DCFS, mainly that it failed to establish paternity prior to obtaining a judgment of child support against him for Mark, Jr. Mr. Jenkins also filed a “Motion for Order to Calculate the Probability of Paternity.” He claimed that he obtained permission from the juvenile court to allow the use of the DNA report for Mr. Scott and requested that the DNA information be used in the instant matter.

On June 23, 2015, Ms. Jackson filed a supervisory writ with this Court, seeking review of the trial court’s February 4,2016 judgments. Ms. Jackson alleged that the trial court erred when it overruled her exception of prescription and found Mr. Jenkins not to be the legal father of Mark, Jr. She argued that Mr. | fiJenkins’ cause of action was prescribed under La. R.S. 9:392 and 9:406. Ms. Jackson further alleged that the trial court erred in ordering her to reimburse Mr. Jenkins for the costs incurred in obtaining the genetic testing. In opposition to the writ application, Mr. Jenkins contended the prior writ disposition did not preclude his claim to rebut the presumption of legal paternity created by signing Mark, Jr.’s birth certificate because there was no evidence of an authentic act of acknowledgement.

In Jenkins v. Jackson, 15-399 (La. App. 5 Cir. 6/23/15) (unpublished writ disposition), writ denied, 15-1622 (La. 9/4/15); 177 So.3d 709, Ms. Jackson’s writ application was granted in part and denied in part. This Court found that Mr. Jenkins had judicially confessed, in more than one pleading, that he signed both the birth certificate and an acknowledgement of paternity at the time of Mark, Jr.’s birth in 1997, and that Mr. Jenkins’ confession constituted full proof against him. Consequently, this Court found that Mr. Jenkins’ subsequent allegations that he could not remember signing any acknowledgement or that no authentic act of acknowledgement existed could not be considered for purposes of pursuing another attempt to revoke or rebut his acknowledgement of legal paternity in this matter. Thus, Mr. Jenkins’ cause of action was again found to be prescribed pursuant to La. R.S. 9:406. The trial court’s ruling concerning prescription was reversed, and Ms. Jackson’s exception was sustained as to Mr. Jenkins’ claim to revoke or rebut his acknowledgement of legal paternity. This Court further found no error in the portions of the trial court’s judgment that found Mr. Jenkins was not 17the father of Mark, Jr., based upon the paternity test report, and ordered Ms. Jackson to reimburse Mr. Jenkins for the costs incurred in obtaining the genetic testing and court costs; however, the order for Ms. Jackson to pay Mr. Jenkins’attorney’s fees was vacated.

On October 7, 2015, Mr. Jenkins filed a "Motion to Dismiss the Allegations against DCFS Contained in the Third Amendment to the Petition and Motion to Rebut Finding of Judicial Confession to Signing ‘An Acknowledgment’ other Than the Birth Certificate.” In the motion, Mr. Jenkins alleged that Ms. Jackson and DCFS judicially confessed in the juvenile court proceeding that there was no authentic act of acknowledgement, and the June 23rd writ disposition from this Court was not the law of the case. He sought to dismiss his allegations against DCFS in his third amendment to his petition and sought admission of the judicial confessions of DCFS and Ms. Jackson into evidence for the purposes of rebutting this Court’s legal paternity finding. The motion was heard before the trial court on October 16, 2016. In a judgment rendered on February 1, 2016, the motion was denied.

Subsequently, in the same proceeding, Mr. Jenkins filed a “Petition for Nullification 1) Request Nullification of Fifth Circuit’s Ruling for Lack of Jurisdiction and for Fraud and Ill-Practice in the Writ Application, 2) Request a Finding that R.S. 9:406(B)(2) is Unconstitutional, and 3) Request an Injunction against Enforcement of the Rulings” on March 10, 2016. Among his numerous allegations, Mr. Jenkins alleged that the rulings of this Court in the prior writ dispositions regarding the existence of an authentic act of acknowledgement and legal paternity were null because this Court lacked the subject matter jurisdiction to consider the legal paternity of Mark, Jr. He further alleged that Ms. Jackson’s attorney obtained the rulings in her favor through fraud and ill practices because she misrepresented the law by claiming that the signing of the birth certificate |smade him the legal father of Mark, Jr. and by failing to enter the judicial confession of Ms, Jackson from the juvenile court that there was no authentic act of acknowledgement. He maintained that enforcement of the rulings obtained through fraud and ill practices would be unconscionable and inequitable because injustice was brought about by depriving him of notice and the right to be heard. Mr. Jenkins also alleged that La. R.S. 9:406(B)(2) was unconstitutional because it did not provide for a suspension of the two-year prescriptive period to revoke an authentic act of acknowledgement obtained by fraud.

On April 5, 2016, Ms. Jackson filed an “Exception of No Cause of Action, Res Judicata, and for Sanctions.” Ms. Jackson argued that Mr. Jenkins’ petition for nullification did not state a cause of action upon which relief could be granted. She claimed that Mr. Jenkins’ grounds for nullifying the rulings were baseless; thus, she requested that the action be dismissed. She also argued that Mr. Jenkins’ action sought to re-litigate issues that were already considered by this Court and the supreme court. As a result of the repeated litigation of the same issues and the personal attack upon her attorney, Ms. Jackson requested sanctions against Mr. Jenkins. The exception was heard before the trial court on May 16, 2016. On May 24, 2016, the trial court sustained the exceptions of no cause of action and res judicata and denied the request for sanctions. The instant appeal followed.

^ASSIGNMENTS OF ERROR

On appeal, Mr. Jenkins alleges the trial court erred in sustaining the peremptory exceptions of no cause of action and res judicata, which resulted in the dismissal of his action. He argues that the litigation has focused entirely on whether the two-year prescriptive period of La. R.S. 9:406 applied to an act executed in 1997, not whether there had actually been an authentic act of acknowledgement executed by him.

LAW AND ANALYSIS

No Cause of Action

Mr. Jenkins alleges the trial court erred in sustaining Ms. Jackson’s exception of no cause of action. He claims that his petition for nullification is authorized by La. C.C.P. art. 2006 and is not simply another request for review of this Court’s previous rulings. Mr. Jenkins avers that the grounds for nullity raised in his petition are mainly based upon lack of subject matter jurisdiction over the issue of legal paternity and deprivation of the right to be heard through having an opportunity to present evidence. When taking the allegations of the petition as time, Mr, Jenkins claims that his petition stated valid causes of action.

Ms. Jackson argues that the trial court did not err in sustaining her exception of no cause of action because: 1) Mr. Jenkins failed to raise the claim of lack of subject matter jurisdiction with the supreme court following this Court’s July 31, 2016 writ disposition; and 2) the claims of fraud and ill practices and unconstitutionality of La. R.S. 9:406(B)(2) were moot issues. Because Mr. Jenkins failed to raise his subject matter jurisdiction claim before the supreme court, Ms. Jackson contends the claim is now a moot issue. She further contends that Mr. Jenkins’ claims of fraud and ill practices are moot issues because those claims were considered in this Court’s July 31, 2015 writ disposition.

| ípThe function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Guidry v. Hanover Ins. Co., 09-220 (La.App. 5 Cir. 11/10/09); 28 So.3d 426, 428, writ denied, 09-2701 (La. 2/26/10); 28 So.3d 272, citing Louisiana Paddle-wheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La. 11/30/94); 646 So.2d 885, 888. The exception’s function is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Id, citing Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234, 1235 (La. 1993). No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. Id. at 429, citing La. C.C.P. art. 931. The exception of no cause of action is triable solely on the face of the papers; and, for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. citing City of New Orleans v. Board of. Commissioners, 93-690 (La. 7/5/94); 640 So.2d 237, 253.

The standard of review of an appellate court review of the judgment sustaining an exception of no cause of action is de novo because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Id. A petition should not be dismissed for failure to state a cause of action, unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id., citing Fink v. Bryant, 01-987 (La. 11/28/01); 801 So.2d 346, 349.

We will now review Mr. Jenkins’ claims to determine whether they were properly sustained and dismissed by the trial court. Subject Matter Jurisdiction

Mr. Jenkins alleges this Court lacked the subject matter jurisdiction to determine his legal paternity of Mark, Jr. when reviewing Ms. Jackson’s ^¿¿supervisory writ applications. As a result, he contends that the writ dispositions rendered by this Court are null and void.

The nullity of a final judgment may be demanded for vices of either form or substance. La. C.C.P. art. 2001. A final judgment shall be annulled if it is rendered by a court which does not have jurisdiction over the subject matter of the suit. La. C.C.P. art. 2002(A)(3). Except as otherwise provided in La. C.C.P. art. 2003, an action to annul a judgment on the grounds for vices of form may be brought at any time. La. C.C.P. art. 2002(B).

The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. Canal/Claiborne, Ltd. v. Stonehedge Dev., LLC, 14-664 (La. 12/9/14); 156 So.3d 627, 632, citing La. C.C.P. art. 3. Thus, a judgment rendered by a court with no jurisdiction over the subject matter of the action or proceeding is void. Id.

According to La. Const, art. V, § 10, except as otherwise provided by the constitution, a court of appeal has appellate jurisdiction of all civil matters appealed, including matters from family and juvenile courts, and supervisory jurisdiction over cases which arise within its circuit. A district court has original jurisdiction over all civil and criminal matters, with the exception of the excluded cases listed in the constitution. La. Const, art. V, § 16.

In the instant matter, this Court reviewed supervisory writ applications arising from Mr. Jenkins’ petition for revocation of acknowledgement of paternity, which was properly filed in the 24th Judicial District Court. The district court had the jurisdiction to determine both the legal and biological paternity of Mark, Jr. in its review of Mr. Jenkins’ petition to revoke. Because the 24th Judicial District Court is a district court within our circuit, this Court had the supervisory | ^jurisdiction to render determinations relevant to Mr. Jenkins’ petition, which included the legal and biological paternity of Mark, Jr. As such, despite his assertion that this Court lacked subject matter jurisdiction, Mr. Jenkins’ legal paternity of Mark, Jr. was properly before this Court for review in the two supervisory writ applications at issue.

Mr. Jenkins’ contention that this Court had no subject matter jurisdiction to determine his legal paternity of Mark, Jr. lacks merit beyond a doubt because no set of facts could have been proven in support of his claim. Thus, there is no relief that could be granted to Mr. Jenkins, and the claim should have been dismissed. See Guidry, supra. Accordingly, we find that the trial court properly sustained Ms. Jackson’s exception of no cause of action on the claim of lack of subject matter jurisdiction raised in Mr. Jenkins’ petition for nullification.

Fraud and III Practices

Mr. Jenkins alleges the writ applications rendered by this Court should be considered as null and void because Ms. Jackson’s counsel, Kristyl Treadaway, deliberately misrepresented the law and facts of the case by stating that the trial court rendered a determination on legal paternity. He argues that the trial court only rendered a determination on biological paternity. He also alleges that Ms. Treadaway failed to present, either to the trial court or this Court, her judicial confession from the juvenile court case that no authentic act of acknowledgement ever existed.

A final judgment obtained by fraud or ill practices may be annulled within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. La. C.C.P. art. 2004(A) and (B). To annul a judgment obtained by fraud or ill practices, a direct action (ie., a new and separate proceeding) must be | ^brought for that purpose in the court which rendered the judgment. Regions Bank v. Cabinet Works, L.L.C., 11-748 (La.App. 5 Cir. 4/10/12); 92 So.3d 945, 961, quoting, Succession of Schulz, 622 So.2d 693 (La. App. 4th Cir. 1993). Such a nullity may not be asserted collaterally. Id. Filing a petition of nullity of judgment in existing proceedings, including the proceedings in which the judgment complained of was rendered, is not a direct action but a collateral attack. Id.

In his petition for nullification, Mr. Jenkins attempted to have the writ dispositions of this Court declared null and void on the basis that they were obtained through fraud and ill practices. However, Mr. Jenkins did not file a direct action alleging fraud and ill practices; rather, he collaterally asserted those grounds under the same district court number as his petition for revocation. He attempted to collaterally attack the proceedings in which the writ dispositions complained of were rendered, ultimately rendering his attack procedurally deficient. Consequently, Mr. Jenkins’ claim in his petition for nullification that the writ dispositions were null and void due to fraud and ill practices did not state a cause of action upon which he would be entitled to relief. The nullification of the writ dispositions on the grounds stated by Mr. Jenkins could not be granted in his collateral attack in this proceeding but only in a direct action.

Accordingly, we find that the trial court properly sustained Ms. Jackson’s exception of no cause of action on the issue of fraud and ill practices and properly dismissed Mr. Jenkins’ claim.

Constitutionality of La. R.S. 9:j,06(B)(2)

In addition to nullification claims, Mr. Jenkins alleged La. R.S. 9:406(B)(2) is unconstitutional because it does not provide for suspension of the two-year prescriptive period and rules out contra non valentum. As a result, Mr. Jenkins contends that La. R.S. 9:406(B)(2) permits the deprivation of any opportunity to exercise the vested right to revoke an authentic act of acknowledgement obtained |i4by fraud when the victim does not learn of the fraud until the two-year period has expired.

After review, we find that the trial court erred in sustaining Ms. Jackson’s exception of no cause of action on the constitutionality of La. R.S. 9:406(B)(2). If accepted as true, the allegation that La. R.S. 9:406(B)(2) is unconstitutional states a cause of action. Additionally, if successful, the law extends a remedy for an action on that basis, which would be the declaration that the statutory provision is unconstitutional. Thus, the trial court erroneously dismissed Mr. Jenkins’ claim on the constitutionality of La. R.S. 9:406(B)(2). Therefore, we vacate the trial court’s ruling on this issue.

Res Judicata

Mr. Jenkins alleges the trial court erred in sustaining Ms. Jackson’s exception of res judicata. He argues that the issues raised in his petition for revocation of acknowledgement of paternity, which subsequently had trial court rulings reviewed through writ applications, were not the same issues raised in his petition for nullification. Mr. Jenkins contends that neither of this Court’s previous writ dispositions addressed whether an authentic act of acknowledgement was signed by him, which was one of the claims presented in his petition for nullification along with lack of subject matter jurisdiction over the issue of legal paternity, Thus, he avers that his grounds for nullity were not considered by the appellate court.

Conversely, Ms. Jackson maintains that her exception of res judicata was properly sustained because this Court previously addressed and dismissed Mr. Jenkins’ claim to revoke or rebut his acknowledgement. She argues that the July 31, 2015 writ disposition precluded future legal challenges regarding the acknowledgement of Mark, Jr., either by authentic act or judicial confession. She further argues that the majority of the issues raised in Mr. Jenkins’ petition for 11finullity related to his acknowledgement had already been dismissed with prejudice by this Court.

Louisiana’s law of res judicata is set forth in La. R.S. 13:4231, which provides,

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 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 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.

The Louisiana Supreme Court has established the following five elements that must be satisfied for a finding that a second action is precluded by res judicata : 1) the judgment is valid; 2) the judgment is final; 3) the parties are the same; 4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and 5) the cause or causes of action in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. McLean v. Majestic Mortuary Servs., 11-1166 (La.App. 5 Cir. 5/22/12); 96 So.3d 571, 575. Appellate courts review exceptions of res judicata using the de novo standard of review because these exceptions present legal questions. Id.

We will now review the relevant prior rulings rendered in this matter. This Court rendered two writ dispositions: one on May 14, 2013 and the other on July 31, 2015. In the disposition rendered on May 14, 2013, this Court considered whether the prescriptive period for Mr. Jenkins’ right to revoke an authentic act of ac-knowledgement of paternity had lapsed, as argued in Ms. Jackson’s exception of | ^prescription. In the reversal of the trial court’s ruling, this Court sustained Ms. Jackson’s exception and found that Mr. Jenkins’ cause of action to revoke his ac-knowledgement of paternity had prescribed under La. R.S. 9:406. Mr. Jenkins’ writ application to the supreme court that sought review of this Court’s disposition was not considered.

In the disposition rendered on July 31, 2015, this Court reviewed the trial court’s ruling that overruled Ms. Jackson’s second exception of prescription, wherein she again claimed that Mr. Jenkins’ claim to revoke his acknowledgement of paternity was prescribed. In its ruling, the trial court found that Mr. Jenkins was not the father of Mark, Jr. On review, this Court considered Mr. Jenkins allegation raised in opposition to the exception that he “learned that there was never a notarial act or an authentic act of acknowledgment—only a signed birth certifícate.” Mr. Jenkins’ claim that the prior writ disposition did not preclude his claim to rebut the presumption of legal paternity created by the signing of the birth certificate was also considered.

Reversing the trial court’s ruling on prescription a second time, this Court found that Mr. Jenkins judicially confessed to signing both the birth certificate and an acknowledgement of paternity at the time of Mark, Jr.’s birth in more than one pleading to the courts, and found his confession to constitute full proof against him. This Court further found that Mr. Jenkins’ allegations suggesting that he could not remember signing any acknowledgement other than the birth certificate or that an authentic act of acknowledgement does not exist could not be considered for purposes of pursuing another attempt to revoke or to rebut his acknowledgement of legal paternity in this case. In the reversal, it was noted that

our May 14, 2013 writ disposition held that “[respondent’s] cause of action to revoke his acknowledgment of paternity has prescribed.” Respondent neither contested the form of his acknowledgment at the time that writ application was considered by this Court, nor did he file a timely writ of review to the Louisiana Supreme Court regarding that Indecision. Accordingly, we find that respondent cannot circumvent this Court’s prior ruling regarding the prescriptive period applicable to his acknowledgment of paternity by filing a rule to show cause in the trial court, which attempted to re-eharacterize the nature of that acknowledgment in a manner contrary to respondent’s judicial confession made at the time of our prior writ disposition. Therefore, we find that the trial court erred in denying relator’s exception of prescription because we have already held that respondent’s cause of action to revoke his acknowledgment of legal paternity has prescribed. (Internal citations omitted).

Accordingly, Ms. Jackson’s exception of prescription was sustained, and Mr. Jenkins’ claim to revoke or rebut his acknowl-edgement of legal paternity of Mark, Jr. was dismissed with prejudice. The supreme court denied Mr. Jenkins’ writ application that sought review of this Court’s disposition.

In his petition for nullification, Mr. Jenkins alleged that the writ dispositions were null and void because this Court lacked the subject matter jurisdiction to determine the legal paternity of Mark, Jr. He also alleged that the rulings in Ms. Jackson’s favor should be considered null and void because she obtained them through fraud and ill practices. Mr. Jenkins further alleged that La. R.S. 9:406(B)(2) was unconstitutional because it failed to provide for a suspension of the prescriptive period to revoke an authentic act of acknowledgement obtained through fraud.

First, as earlier discussed in this opinion, this Court had the subject matter jurisdiction to determine the legal paternity of Mark, Jr. in the previous writ dispositions. Next, we find that we lack the authority to provide further judicial review of the determination regarding Mr. Jenkins’ acknowledgement under res judicata.

The Louisiana First Circuit, in Poole v. Fuselier, 15-1317, pp. 8-9 (La,App. 1 Cir. 10/28/16); 213 So.3d 18, 23, 2016 WL 6330392, 2016 La. App. LEXIS 1962, explained the finality of an appellate court judgment by stating:

A'judgment that decides the merits of the case in whole or in part is a final judgment. La. C.C.P. art. 1841; Tolis v. Board of Supervisors of 1 Louisiana State University, 95-1529 (La. 10/16/95), 660 So.2d 1206 (per curiam). A final judgment may be rendered by either a trial court or an appellate court, and a judgment by an appellate court that decides the merits of the case is a final judgment, regardless of whether the case reached the appellate court on appeal or on supervisory writs. Tolis, 660 So.2d at 1206. A final judgment is conclusive between the parties except on direct review. La. R.S. 13:4231. Moreover, a final judgment becomes final and definitive and acquires the authority of the thing adjudged if no further review is sought within the time fixed by law, if the Supreme Court denies an application for certiorari, or if the judgment is confirmed on further review. La. C.C.P. arts. 2166(E) & 2167; Tolis, 660 So.2d at 1206; Batson v. S. Louisiana Med. Ctr,, 2006-1998 (La.App. 1 Cir. 6/13/07), 965 So.2d 890, 895-96, writ denied, 2007-1479 (La. 10/5/07), 964 So.2d 945. Once a final judgment becomes final and definitive and acquires the authority of the thing adjudged, no court has jurisdiction, in the sense of power and authority, to modify, revise or reverse the judgment, regardless of the magnitude of the error in the final judgment. Tolis, 660 So.2d at 1206; Batson, 965 So.2d at 896.

In this matter, the July 31, 2015 writ disposition rendered by this Court is a final judgment. While upholding the previous writ disposition, the July 31st disposition determined that Mr. Jenkins is Mark, Jr.’s legal father, sustained Ms. Jackson’s exception of prescription, and dismissed Mr. Jenkins’ petition to revoke his acknowledgement with prejudice. The supreme court subsequently denied Mr. Jenkins’ writ application. Hence, the disposition of this Court that dismissed Mr. Jenkins’ petition to revoke became a final and definitive judgment after the supreme court denied certiorari. Consequently, judicial review that would modify, revise or reverse the July 31st writ disposition is precluded. See Poole, supra. Because the parties are the same, the cause of action asserted in the petition for nullification existed at the time the July 31st writ disposition became a final judgment, and the causes of action in the petition for nullification arose out of his petition for revocation, subsequent review of Mr. Jenkins’ acknowledgement of Mark, Jr. is precluded by res judicata.

Furthermore, we find that Mr. Jenkins’ challenge of the constitutionality of La. R.S. 9:406(B)(2) in this proceeding is also precluded by res judicata. The July 11331st writ disposition that found Mr. Jenkins’ claim to revoke his acknowledgement of Mark, Jr. was prescribed, pursuant to La. R.S. 9:406, is valid and final. The parties to the petition for nullification, Mr. Jenkins and Ms. Jackson, are the same parties to the petition for revocation. Mr. Jenkins’ claim that La. R.S. 9:406(B)(2) is unconstitutional existed at the time the July 31st writ disposition became a final judgment, and the basis of his claim arose out of the finding that his petition for revocation was prescribed. Because the judgment was in favor of Ms. Jackson, all causes of action, which includes Mr. Jenkins’ challenge of the constitutionality of La. R.S. 9:406(B)(2), existing at the time of final judgment concerning Mr. Jenkins’ ac-knowledgement of Mark, Jr. are extinguished, and the judgment bars a subsequent action on those causes of action. See La. R.S. 13:4231. Therefore, we find that Mr. Jenkins’ claim in this proceeding that La. R.S. 9:406(B)(2) is unconstitutional is precluded from review. (See also, Yarnell Ice Cream, Co. v. Allen, 38,263 (La.App. 2 Cir. 3/3/04); 867 So,2d 969, where the appellate court held that a constitutional challenge of a statute raised through a petition for nullity, after a final judgment was rendered that considered the application of the same statute in its determination, was barred from review.).

DECREE

For the foregoing reasons, we affirm the dismissal of Mark Jenkins, Sr.’s petition for nullification in favor of Latasha Jackson. Mr. Jenkins is assessed the costs of this appeal.

AFFIRMED

      . Mr. Jenkins alleges that he signed an acknowledgment of paternity in his petition for revocation.

      . In his ruling, the domestic commissioner found that Mr. Jenkins’ right to revoke the acknowledgement could not prescribe pursuant to the version of La. R.S. 9:406 in effect at the time of the signing of the acknowledgement. In 2007, La. R.S. 9:406(B) provided, At any time, a person who executed an authentic act of acknowledgment may petition the court to rescind such acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.

      . The trial judge made a handwritten notation that the parties "dispensed with [the determination of Mr. Jenkins' right] in light of [the] hearing held.”

      . This was the second request to amend Mr. Jenkins’ petition. In the first amendment, the Department of Children and Family Services (hereinafter referred to as "DCFS”) was added to the action as an indispensable party.

      .Mr. Jenkins’ reference is to the Louisiana Department of Health.

      . Mr. Jenkins obtained Mr. Scott’s DNA report from another, unrelated matter in the juvenile court.

      . Ms, Jackson also argued that Mr. Jenkins should have actually filed a disavowal action pursuant to La. C.C. art. 195, not an action to revoke an acknowledgement, because he fili-ated himself to Mark, Jr. by marrying her after Mark, Jr. was born. However, she maintained that action would have also been prescribed.

      . On writ of certiorari to the supreme court, Justice Hughes dissented, stating,
      [T]he seemingly untimely review and intervention of the Court of Appeal to decide an issue not addressed in the trial court’s judgment, based on the concept of a "judicial confession,” is clearly wrong given the DNA evidence, the multiple pleadings and amendments thereto, the stipulation of the parties, and the inability of DCFS to produce an authentic act of acknowledgment. This is not justice but judicial "gotcha.” These matters are best left to the trial court for trial on the merits and development of a full record.
      The continued efforts of DCFS given the DNA results in the record are also questionable.
      (Emphasis in original).

      . The initial judgment signed by the trial court did not contain the required decretal language required to render the judgment final because it failed to indicate the specific relief granted. See Morraz-Blandon v, Voiron, 16-112 (La.App. 5 Cir, 8/25/16); 199 So.3d 1220, 1221. As such, after the appeal was lodged, we issued an order instructing the trial court to amend the judgment to include the necessary decretal language. The trial court signed an amended judgment on November 7, 2016 to include decretal language that dismissed Mr. Jenkins’ petition with prejudice. (See generally, Rousseau v, Emp'rs Mut. of Wausau, 493 So.2d 121, 124 (La. App. 5th Cir. 1986), where this Court held that a judgment sustaining an exception of no cause of action is a final, appealable judgment, even in cases where only a portion of the case is dismissed by the exception.) The amended judgment corrected the deficiency in the judgment. Accordingly, we find that a final judgment has been rendered and is reviewable on appeal.

      . The Juvenile Court of Jefferson Parish would not have been the proper venue to file such a petition. (See State v. James, 99-1670 (La.App. 4 Cir. 2/23/00); 757 So.2d 811, 813, where the court held, "There is no authority in Ch.C. art. 311 or any other article of the Children’s Code for the filing of a petition to nullify an acknowledgment of paternity in Juvenile Court.... ”)

      . We note that both Mr. Jenkins and Ms. Jackson were given the fair opportunity to argue their positions in their respective briefs, as no oral arguments were heard for Ms. Jackson’s supervisory writ applications. This Court considered the arguments presented by both parties.


author: STONE, J.

text:
    Cheryl WELLS, Plaintiff-Appellant v. The TOWN OF DELHI and Chad Dee and Kristie H. Morgan Defendants-Appellees
    No. 51,222-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      LAW OFFICES OF MOSES, J. WILLIAMS, By: Moses Junior Williams, Counsel for Appellant

      HUDSON, POTTS & BERNSTEIN, L.L.P., By: Johnny R. Huckabay, II, By: Robert McCuller Baldwin, Counsel for Ap-pellee Town of Delhi
    COTTON, BOLTON, HOYCHICK & DOUGHTY, L.L.P., By: John Hoychick Jr., Counsel for Appellees, Chad Dee Morgan, Kristie H. Morgan, and Louisiana Farm Bureau, Mutual Insurance Company
    NELSON, ZENTNER, SARTOR & SNELLINGS, LLC, By: Thomas G. Zent-ner, Jr., Counsel for Appellee, Louisiana Farm Bureau Casualty Insurance Company
    Before BROWN, PITMAN, and STONE, JJ.
   STONE, J.

hThe Appellant, Cheryl Wells, appeals the trial court’s judgment granting the Appellees’, Town of Delhi and Chad and Kristi Morgan, motions for 'summary judgment. For the following reasons, we reverse the ruling of the trial court.

FACTS AND PROCEDURAL BACKGROUND

On May 8, 2012, Cheryl Wells (“Wells”) was the front seat passenger of a vehicle driven by Natasha Hamilton (“Hamilton”) during a heavy thunderstorm that developed without warning. Due to a fallen tree across the road on which she was traveling, Hamilton was forced to take an alternate route onto Charter Street. As the vehicle was traveling on Charter Street, a large limb broke off an oak tree located at 508 Charter Street (“the property”). The limb fell onto Hamilton’s vehicle, crushing the roof of the vehicle and striking Wells on the head. As a result of the accident, Wells was rendered a quadriplegic. No other passengers in the vehicle sustained serious injuries.

The tree involved in the accident was located on the edge of a property line between the home of Chad and Kristi Morgan (“the Morgans”) and the right-of-way and street owned by the Town of Delhi (“Delhi”). The roots of the tree protruded underneath the sidewalk and its limbs protruded over the street. Following the accident, Wells filed a lawsuit, pursuant to La. C.C. arts. 2315 and 2317.1, against Delhi and the Morgans (collectively, “the defendants”) alleging her injuries were a result of the defective and dying tree on the defendants’ property.

|aThe defendants filed separate motions for summary judgment asserting Wells could not prove the defendants knew or should have known that the tree was defective. Additionally, the defendants asserted the affirmative defense of Act of God, arguing the limb fell because of the violent storm. The trial court granted both motions for summary judgment, finding the following facts undisputed:

1. The tree was located on the property of the Morgans and protruded onto land under the control of Delhi.
2. The tree in question was, in fact, defective, and was suffering from “heart rot.”
3. The felled limb was the proximate cause of Wells’ injuries.
4. The driver of the vehicle was not at fault in the accident.

Although it concluded the tree was defective, the trial court determined the defendants did not possess requisite knowledge of the defect, and therefore could not be liable for the accident. According to the trial court, the defect in the tree was not of such nature that a reasonable man, upon proper inspection, could or should have observed the defect and be placed on notice that the tree posed a threat to others. This appeal followed.

DISCUSSION

Summary Judgment

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate, court uses the same criteria that governed the district court’s determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show there is no genuine issue as to material fact, and the mover is entitled to | judgment as a matter of law. La. C.C.P. art. 966. See Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La. 2013), 124 So.3d 1065, 1071.

The burden of proof on a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(D)(1).

The trial court must first determine whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. If not, summary judgment must be denied in favor of a trial on the merits. A fact is material if its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. In other words, material facts are those which potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Debrun v. Tumbleweeds Gymnastics, Inc., 39, 499 (La. App. 2 Cir. 04/06/05), 900 So.2d 253, 257, citing Giordano v. Rheem Mfg. Co., 93-1614 (La. App. 3 Cir. 10/05/94), 643 So.2d 492.

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice. Jones v. Estate of Santiago, 2003-1424 (La. 04/14/04), 870 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La. App. 2 Cir. 04/07/04), 870 So.2d 1131, | ¿writ denied, 2004-1420 (La. 09/24/04), 882 So.2d 1142. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La. App. 2 Cir. 08/18/99), 740 So.2d 263, writ not cons., 99-2729 (La. 11/24/99), 750 So.2d 993.

A trial judge cannot make credibility determinations on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5717, 2003-1533 (La. 02/20/04), 866 So.2d 228; Independent Fire Ins. Co. v. Sunbeam Corp,, 1999-2181, 1999-2257 (La. 02/29/00), 755 So.2d 226. A party seeking a summary judgment is entitled to a favorable judgment only if “there is no genuine issue as to a material fact” and, thus, the “mover is entitled to judgment as a matter of law.” [Emphasis theirs.] Hutchinson, supra. The credibility of a witness is a question of fact. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Hutchinson, swpra,. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Independent Fire Ins. Co., supra.

Notice of Defect

Wells argues the trial court erred in granting the defendants’ motions for summary judgment because there is controverted evidence regarding the defendants’ failure to exercise reasonable care in discovering the defect in the tree. According to Wells, the defendants chose not to inspect the tree, despite warnings that the tree was defective and posed an unreasonable risk of harm to individuals who encountered it. Wells claims the failure of the defendants to inspect their property and care for the defective tree constitutes negligence and renders them liable for damages.

IfiDelhi asserts summary judgment is warranted because it did not have the requisite actual or constructive knowledge of the tree’s defect. Delhi claims the tree was alive with green leaves and branches and had no obvious signs of rot, death, or decay. Similarly, the Morgans argue they did not know nor could they have reasonably known of the tree’s defect. The Morgans claim they never saw anything to indicate the tree contained rotten or decayed branches or that the tree was otherwise not healthy.

To recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the defendant knew or should have known of the defect. Moody v. Blanchard Place Apts., 34,587 (La. App. 2 Cir. 06/20/01), 793 So.2d 281. See also La. C.C. arts. 2317 and 23171.

Likewise, to recover against a public entity for damages due to a defective thing, a plaintiff must prove that: (1) the thing which caused the damage was in the custody of the public entity; (2) the thing was defective due to a condition creating an unreasonable risk of harm; (3) the entity had actual or constructive notice of the condition yet failed to take corrective action within a reasonable period of time; and (4) the defect was a cause of plaintiffs harm. Jones v. Hawkins, 98-1259 (La. 03/19/99), 731 So.2d 216; Ricks v. City of Shreveport, 42,675 (La. App. 2 Cir. 10/24/07), 968 So.2d 863. Failure to meet any one statutory element will defeat a negligence claim against a public entity. Breitling v. Shreveport, 44,112 (La. App. 2 Cir. 05/13/09), 12 So.3d 457.

| (¡Constructive notice is defined as the existence of facts that imply actual knowledge. La. R.S. 9:2800(D). To prove constructive notice, plaintiffs must produce facts demonstrating the defect existed for a sufficient period of time and should have been discovered and repaired if the public entity had exercised reasonable diligence. Breitling, supra.

In his deposition, Chad Morgan stated that during the four years he has owned the property on Charter Street, he has not performed any maintenance on the tree. He further stated he does not check the yard or look at the tree on a regular basis. However, the last time he saw the tree it had green leaves and appeared to be healthy. Additionally, Morgan indicated he was not aware of any branches falling from the tree prior to Wells’ accident, but that he could not say with certainty that no branches had fallen.

Dee Lawrence McCall (“McCall”) was Delhi’s public works supervisor at the time of Wells’ accident. In his deposition, McCall stated he regularly drove the streets of Delhi to look for problematic and hazardous conditions. He stated that on numerous occasions prior to the accident, he had driven by the property on Charter Street and noticed that the sidewalk where the tree stood was severely cracked and broken because of the tree’s roots growing into and underneath the sidewalk. McCall indicated he believed the condition of the sidewalk was hazardous and needed to be removed but admitted he did not have it removed. He also admitted to never inspecting the tree to determine if it created an unreasonable risk of harm to the public.

Gary Patterson, a forestry expert, submitted an affidavit wherein he concluded the tree suffered from decay and heart rot. He also opined the 17tree had been dying for many years before the accident, despite the presence of some green leaves. Patterson stated that visible knots on the ti'ee’s trunk as well as hollow spots on the limbs were indicative of a dying tree. In examining photos taken of the tree after the accident, Patterson was able to determine that medium to large limbs had been falling from the tree for years. According to Patterson, the defect in the tree would have been discovered upon a “reasonable cursory inspection” based on the dead fallen limbs and the visible and unobstructed view of the thinning crown of the tree. Furthermore, he noted that the fact that the tree’s roots were obviously growing underneath and through the sidewalk should have alerted the Morgans and Delhi that they needed to conduct a closer inspection of the tree, especially because of the tree’s large size.

After a thorough review of the record, we find Patterson’s affidavit alone creates a genuine issue of material fact concerning: 1) whether the defendants knew, or in the exercise of reasonable care, should have known of the tree’s defect; 2) whether, through the exercise of reasonable care, the accident could have been prevented; and, 3) whether the defendants failed to exercise such reasonable care. Neither the Morgans nor Delhi presented any evidence to counter Patterson’s expert testimony. In fact, the defendants failed to submit any expert or other evidence regarding the health of the tree at the time of the accident. Moreover, the depositions of both McCall and Morgan bolster Wells’ argument that the defendants chose not to inspect the tree despite signs it was possibly defective, or at least unhealthy. The question of whether Delhi or the Morgans, upon a reasonable inspection of the sidewalk and/or tree, could have discovered the tree’s defect and prevented Wells’ accident and resulting injuries, is integral to the ultimate ^resolution of this case and should not have been disposed of by summary judgment.

Act of God Defense

Alternatively, the defendants argue they are not liable for Wells’ injuries because the tree fell as a result of a severe thunderstorm storm caused by a force of nature. Wells argues the Act of God defense can only be used if the defendants are free from fault in causing her injuries.

An Act of God, or force majeure, is an unusual, sudden and unexpected manifestation of the forces of nature which man cannot resist. An injury caused by an Act of God is one which is due directly and exclusively to natural causes that could not have been prevented by the exercise of reasonable care. Recovery for injuries caused by extreme weather conditions may be precluded by the application of this rule. Greene v. Fox Crossing, Inc., 32,774 (La.App. 2 Cir. 3/1/00), 754 So.2d 339, writ denied, 2000-0944 (La. 05/26/00), 762 So.2d 1108. The Act of God defense is not absolute and does not apply if human fault is involved in causing the loss. Saden v. Kir by, 94-0854 (La. 09/05/95), 660 So.2d 423, 428.

The Act of God defense is only available to a defendant who is free of negligence and shows the accident is the direct and exclusive result of natural causes that could not be prevented by the exercise of reasonable care. Brown v. Williams, 36,863 (La. App. 2 Cir. 07/31/03), 850 So.2d 1116, writ denied, 2003-2445 (La. 11/21/03), 860 So.2d 555.

In light of our determination that there exists disputed issues of material facts concerning whether the defendants were negligent in causing Wells’ accident, we find summary judgment was not appropriate on this Inissue. Whether the defendants are free from negligence is a question of fact that needs to be determined by the trier of fact.

Spoliation

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code of Civil Procedure art. 966.

Wells argues that approximately five months after she filed suit, counsel for the Morgans asked counsel for Wells if the tree could be cut down and removed. Wells agreed to the removal with the stipulation that she be notified at least one week prior to the removal. Wells claims Delhi removed the tree and the sidewalk under the tree without providing Wells with any notice. According to Wells, this act constituted spoliation of evidence.

Two years after the accident, Delhi had the tree cut down due to the tree’s hazardous condition. The defendants argue that this two-year period was plenty of time for Wells to inspect the tree and that her failure to do so nullifies her spoliation claim. The defendants also allege they had no agreement with Wells to notify her before cutting down the tree.

In its reasons for judgment, the trial court determined there was no spoliation in this case. However, the issue of spoliation was not addressed in either defendant’s motions for summary judgment. Wells claims the trial court should not have made any ruling on this issue because the defendants did not address the claim in their motions for summary judgment. Furthermore, according to Wells, prior to the hearing on the motions for summary judgment, the parties agreed the spoliation claim would not be considered.

| inAs a matter of law, summary judgment cannot be used to dispose of matters that were not raised in the motion. Thus, we find the trial court improperly disposed of Wells’ spoliation claim by summary judgment.

CONCLUSION

For the above reasons, the judgment of the trial court is reversed. The matter is remanded to the trial court for further proceedings. The appellate court costs in the amount of $324.50 are to be paid by the Town of Delhi and Chad and Kristi Morgan in accordance with La. R.S. 13:5112.

REVERSED AND REMANDED.

      . Since the filing of the appeal, Wells died. No petition to substitute parties has been filed.

      . There were three other people in the vehicle.