author: BROWN, Chief Judge. DREW, J.,

text:
    C & C ENERGY, L.L.C. and Red Sox Investments, L.L.C., Plaintiffs-Appellees, v. CODY INVESTMENTS, L.L.C., Defendant-Appellant.
    No. 44,630-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 2, 2009.

      Simmons, Morris & Carroll, L.L.C. by Harry D. Simmons, Brandon Trey Morris, Shreveport, for Appellant.
    Shuey Smith, L.L.C. by Richard E. Hil-ler, Shreveport, for Appellees.
    Before BROWN, PEATROSS and DREW, JJ.
   BROWN, Chief Judge.

| iCody Investments, L.L.C. (“Cody”), appeals from a judgment invalidating a tax sale. The district court held the tax sale null and void because only one co-owner of the subject property received notice. Cody asserts that the trial court erred in finding the tax sale to be invalid, or in the alternative, asserts that the tax sale was at least valid as to the conveyance of George Gorsulowsky’s undivided 3/4 interest in and to the property. We affirm.

Facts

George and Marilyn Gorsulowsky, husband and wife, acquired ownership of the property in December of 1992. Subsequently, Marilyn died, triggering a May 24, 1995, judgment of possession recognizing George and their seven surviving children as undivided owners of the property. George was awarded an undivided 3/4 interest, while each of the children received an undivided 1/28 interest, subject to George’s usufruct.

George was the only co-owner to receive notice of a tax sale held by the Caddo Parish Sheriffs Office after the 1999 parish taxes on the property went unpaid. As a result of the sale, Cody acquired its ownership of the property on July 19, 2000.

C & C Energy, L.L.C., and Red Sox Investments, L.L.C. (“C & C”), acquired the seven children’s undivided 1/4 interest in the property after the tax sale. C & C filed suit to annul the tax sale deed and then filed a motion for summary judgment. Cody filed an opposition to C & C’s motion | .¿for summary judgment and asserted a cross motion for summary judgment in which it claimed that the sale was valid in its entirety or at least valid as to George’s 3/4 interest.

The court granted C & C’s motion, declaring the tax sale null and further ordering its cancellation from the public records. This appeal followed.

Discussion

A motion for summaiy judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App. 2d Cir.08/21/96), 679 So.2d 477.

Regarding the notice required prior to a tax sale of immovable property, La. R.S. 47:2153 provides, in part:

A. On the second day after the deadline for payment of taxes each year, or as soon thereafter as possible, the tax collector shall send a written notice by United States mail postage prepaid to each tax notice party when the tax debtor has not paid all the statutory impositions which have been assessed on immovable property, notifying the person that the statutory impositions on the immovable property shall be paid within twenty days after the sending of the notice or as soon thereafter before the tax sale is scheduled, or that tax sale title to the property will be sold according to law[.] (Emphasis added).

| ;>Cody argues that the tax sale is valid because notice was given to George, who was responsible for taxes and was the usufructuary. Cody cites Spikes v. O’Neal, 193 So. 487 (La.App. 1st Cir.1940), in support of this theory. However, the U.S. Supreme Court and the Louisiana Supreme Court have both since ruled that co-owners must receive notice. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Lewis v. Succession of Johnson, 05-1192 (La.04/04/06), 925 So.2d 1172. Due process requires “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mennonite Bd. of Missions, 462 U.S. at 795, 103 S.Ct. at 2709 (citing Múllame v. Central Hanover Bank & Trust Co., 389 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). The sale of property for nonpayment of taxes is an action that affects a property right protected by the due process clause of the 14th Amendment of the U.S. Constitution. Mennonite Bd. of Missions, supra. Any party with a legally protected interest in property “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id., 462 U.S. at 798, 103 S.Ct. 2706.

The Louisiana Supreme Court has stated that lack of notice to each co-owner is fatal to a tax sale. Lewis v. Succession of Johnson, supra. “[E]ach co-owner is entitled to individual written notice of delinquent taxes because alienation by tax sale of immovable property, owned in indivisión, |4without notice to each co-owner deprives the owners of due process.” Id. at 1181. “Written notice to one co-owner cannot be imputed to other co-owners.” Id. at 1182. Thus, a tax sale is null and void without notice.

The next question raised is whether the tax sale is null and void as to all co-owners, including the co-owner who received notice, or only as to the co-owners who were without notice. Therefore, we must determine whether this tax sale is null and void in its entirety.

The Lewis court stated in its conclusion: The tax sale, is therefore, null and void as it pertains to Matthew Johnson, Sr., Myrtle Johnson Franklin, and Aaron Perry Johnson, Sr. Additionally, the advertisement, which would have been an additional reasonable step to notify Deo-la Mae Johnson James if in proper form, was insufficient for the reasons cited hereinabove so the tax sale as it relates to Deola Mae Johnson James was null and void.

Id. at 1184. Thus, Cody argues that the supreme court would have validated the sale as it pertained to Deola Mae had she herself received sufficient notice. We disagree.

One co-owner cannot pay its portion of the tax and prevent the sale of all of the property; the tax amount must be paid in full. La. R.S. 47:2153. Notice is required to be given to all co-owners before the tax sale occurs. Thus, as the trial court found, a tax sale without proper notice to all co-owners is null and void in its entirety.

Conclusion

For the aforementioned reasons, and taking into consideration the potential deprivation of Constitutionally protected property rights under the Due Process Clause of the Fourteenth Amendment, we affirm.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting:

|ilf the supreme court in Lewis, supra, believed that failing to give notice to some co-owners, in and of itself, invalidated the tax sale as to all co-owners, it would have been unnecessary for the court to engage in any additional inquiry into the sufficiency of notice to the co-owner who received it. As the court wrote:

In a separate and distinct legal issue, we have to decide whether the sale was rendered null and void with regard to Deola Mae Johnson James’s own interest in the property. While we have in this opinion concluded that the lack of notice received by Deola Mae’s siblings provided grounds to invalidate the sale, the question remains whether Deola Mae Johnson James’s interest has been divested, considering that contrary to what did not take place regarding Deola Mae’s siblings, the tax collector did take steps to send notice to Deola Mae. The issue, of course, is whether these steps were sufficient to satisfy the minimum requirements set forth in Mennonite and our statutory law as well.

Lewis, 2005-1192 at p. 17-8, 925 So.2d at 1182.

There is no dispute that George received proper notice. The status quo for the parties essentially remains as only the identities of the co-owners has changed.

I agree with the majority that the tax sale is clearly null and void as it pertains to the children’s undivided 1/4 interest. However, the tax sale should remain valid as it pertains to George’s 3/4 interest. Accordingly, I respectfully dissent.

      . The Gorsulowsky children conveyed their interest by Act of Cash Sale to Bobbie D. Mitchell, who in turn conveyed her interest to C & C Energy, L.L.C., and Red Sox Investments, L.L.C.

      . La. R.S. 47:2180 has been revised and renumbered as La. R.S. 47:2153.

      . The 14th Amendment of the U.S. Constitution states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process!.]”


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Louis TAYLOR.
    No. 2009-KA-0041.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 4, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|T STATEMENT OF THE CASE

On June 26, 2007, the defendant, Louis M. Taylor, a.k.a. “Tubby”, (Taylor), and his co-defendant, Craig Smith (“Smith”), were charged by bill of information with attempted second degree murder of Nathaniel Davis. On July 11, 2007, the defendant pled not guilty.

On June 23, 2008, the trial court heard and denied the defendant’s motion to suppress identification and found probable cause. On July 25, 2008, the defendant filed a Motion Pursuant to La.C.Cr.P. art. 704 for Separate Trials of Defendants. The record contains nothing more on this motion than the actual document.

On July 31, 2008, following a trial by jury, the defendant was found guilty as charged. On that date, the defense filed a written objection to a non-unanimous jury verdict, challenging the constitutionality of La.C.Cr.P. art. 782(A). On October 29, 2008, the defendant was sentenced to twenty five-years at hard labor, and the defense objected. This appeal follows.

| .STATEMENT OF THE FACTS

Testimony of Officer Cindy L. Woods

Officer Cindy L. Woods testified that she is a supervisor for the New Orleans Police Department, Communications Division’s 911 Center. She identified a printout and a cassette tape of the April 27, 2007 911 call that the State introduced into evidence. The tape was played for the jury-

Testimony of Dr. Juan Duchesne

Dr. Juan Duchesne testified that he is a trauma surgeon at University Hospital. He said he was on call on April 27, 2007, when he saw Nathaniel Daws (“Mr. Davis”), the victim. According to Dr. Du-chesne, Mr. Davis suffered multiple gunshot wounds. Mr. Davis was in shock due to blood loss when he arrived. He suffered injuries to his left lung, his abdomen and his bowel. He also had “other inference of bullets in his extremities” and a small laceration to his head. Dr. Du-chesne testified that Mr. Davis was chemically paralyzed for roughly twenty-four hours after his admission to the hospital as part of his treatment. He stated that Mr. Davis remained in intensive care for two days and remained on the hospital floor for part of two or three days. Part of his treatment included a prescription for morphine.

Testimony of Officer Leroy Matthews

Officer Leroy Matthews testified that he was assigned to the New Orleans Police Department’s Fifth District on April 27, 2007. On that date, he responded to a call near the intersection of Franklin Avenue and North Galvez Street at approximately 12:05 p.m. He arrived at the scene to find the victim, Mr. Davis, on the curb, bleeding from the head, the stomach, and on his face. Duct tape was on |3his left hand and around his neck. Officer Matthews said that Mr. Davis explained that two unknown black males had kidnapped him, beat him with a pipe, and shot him in an abandoned building. The abandoned building was at 2550 N. Galvez Street. Officer Matthews stated that Detective Cyril Evans arrived at the scene one or two minutes after Officer Matthews and assumed the investigation.

Testimony of Detective Cyril Evans

Det. Evans testified that upon interviewing the victim, Mr. Nathaniel Davis, he learned that the perpetrators were Craig, “Tubby”, and a third unknown individual. He noted that the crime scene — 2550 N. Galvez Street — is a block from where the victim was found. Subsequent investigation revealed that Mr. Davis lived at 2224 N. Galvez Street.

Det. Evans testified that during the initial investigation a black Camaro was found in the 2000 block of Painters Street. He stated that he learned from Mr. Davis that the car belonged to Craig Smith and that Smith lived in the residence where it was parked. Det. Evans described the residence as adjoining to the crime scene. He further testified that a motion inquiry through the district’s computer system showed that Smith lived at 2025 Painters Street, where the Camaro had been discovered.

Det. Evans stated that he interviewed Mr. Davis on April 29, 2007. In that interview, Mr. Davis provided a description of the third, unknown assailant. Det. Evans testified that Mr. Davis identified one of the men as “Tubby” and provided information that “Tubby” lived in the 1900 block of Painters Street. Mr. Davis also identified Smith in a photographic lineup.

|4Pet. Evans stated that on May 1, 2007, a search warrant was executed at Smith’s residence. Smith was arrested at that time. Det. Evans testified that as he drove away from 2025 Painters Street, he passed a white Camaro parking in the driveway 1931 Painters Street. At that time, he recalled that Mr. Davis had informed him that “Tubby” drove a white Camaro and lived in the 1900 block of Painters. Det. Evans saw the driver of the white Camaro exit and proceed to unload groceries. He called for assistance and parked. Before assistance could arrive, however, the driver got back into the white Camaro and drove North on Painters Street, back towards the 2000 block. At that point, assistance arrived and a traffic stop was executed on the white Camaro near the corner of Arts and Johnson Streets. When stopped, the driver of the white Camaro identified himself as Louis Taylor. Upon being asked, Taylor also informed that his nickname is “Tubby”. Det. Evans also observed Taylor had a tattoo that said, “Tubby”.

Det. Evans testified that Taylor was arrested and taken to the Fifth District station. A photographic lineup was compiled and taken to University Hospital to show Mr. Davis. At the hospital, Mr. Davis identified the defendant, out of the lineup as the “Tubby” who had attacked him. Det. Evans testified that he then returned to the Fifth District station, advised the defendant Taylor of the charges against him, and processed the arrest paper work for both Smith and the defendant.

Det. Evans testified that blood samples, two cell phones and a bloody roll of duct tape were recovered from the crime scene. A pair of tennis shoes, a white blood stained t-shirt, a white undershirt, a pair of blue jeans, a navy blue belt, keys and another piece of duct tape were also recovered from the crime scene.

Det. Evans further testified that at the time that the search warrant was executed at Smith’s residence, Walter Jones, a man fitting Mr. Davis’ description | ¡¡of the third assailant, was detained. However, Mr. Davis was unable to identify Mr. Jones in a lineup, and Mr. Jones was released.

Testimony of Mr. Nathaniel Davis

Mr. Nathaniel Davis, the victim, testified that he had known both Smith and the defendant for approximately seven or eight months. He grew up with their cousin, “Tank”. After “the storm”, Mr. Davis relocated to N. Galvez Street, near Elysian Fields Avenue. He said that Smith and the defendant lived near the corner of N. Galvez and Painters Streets, and the three began to “hang out.” Smith once cut Mr. Davis’ hair, and the defendant had taken Mr. Davis to the store for supplies.

Mr. Davis testified that prior to the April, 27, 2007 incident, he went to see Smith “on a Wednesday” to inquire about Tank, who had been shot. Smith acted “nonchalant” and did not want to speak to Mr. Davis. Mr. Davis returned home. Mr. Davis stated that he returned to see Smith the next day and inquired as to what hospital Tank was in so that he might visit. He claimed that Smith was “nonchalant” again.

Mr. Davis said he returned on a Friday. Craig Smith was with another man as Mr. Davis approached. Mr. Davis stated that when he inquired about Tank, Smith was non-responsive. As Mr. Davis left, Smith grabbed him behind the neck and put him in a choke hold. At some point during this encounter, Smith made a phone call, instructing the person to come over. According to Mr. Davis, the defendant arrived in a white Camaro. Mr. Davis stated that he freed himself from Smith, however, Smith and the defendant then pushed him under a nearby shed. As they did so, they accused Mr. Davis of being involved in Tank’s shooting. Mr. Davis testified that Smith and the defendant then grabbed sticks and pipes, and the | f,defendant and the “other dude” proceeded to beat him with them. According to Mr. Davis, Smith ran off upstairs. He returned with a gun. Mr. Davis testified that Smith pointed the gun at him, and he went at Smith. Smith shot Mr. Davis three times. The assailants then got some duet tape and attempted to tape Mr. Davis’s hands and mouth. Mr. Davis testified that he managed to free his hands and remove the tape from his mouth. The assailants hit Mr. Davis with the sticks and pipes, yelling at him to shut up. They then took Mr. Davis into a house, where they put duct tape on him again and continued beating him.

Mr. Davis testified that Smith threw the gun down and the “other ‘lil dude’ picked it up and began hitting him with it. Mr. Davis said that Smith attempted to call someone on his phone and got angry because whomever he was calling was not answering. The defendant, Taylor, then left with the third man to get some gas to set the house on fire, leaving Mr. Davis alone with Smith. Mr. Davis said he then managed to flee from Smith. He ran to the middle of the intersection of Franklin Avenue and North Galvez Street, where he attempted to flag someone down for help. A woman came to his rescue. More people gathered and called the police.

When Det. Evans arrived, Mr. Davis told him that his attackers were “Tubby and Craig.” He also testified that the incident occurred nearby in an abandoned house and told Det. Evans where “Craig” and “Tubby” lived. Several days later, Det. Evans visited Mr. Davis at the hospital, and he identified the defendant and Smith in photographic lineups.

WTiile Mr. Davis was in the hospital, he stated that Tank was placed in the same room as he. WTien Tank asked why Mr. Davis was there, Mr. Davis told |7Tank what had happened. Mr. Davis testified that Tank said, “Man, I told them dudes that wasn’t you.”

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that La. C.Cr.P. art. 782(A), allowing for a conviction by a ten to two (i.e. non-unanimous) jury vote in a non-capitol felony case, is unconstitutional in violation of the Sixth Amendment of the U.S. Constitution. It is noteworthy that the record on appeal does not indicate the jury was polled, nor does the record show the actual jury vote. The defendant asserts that the jury returned a verdict with a ten to two vote. The State does not challenge this assertion. Presuming the defendant’s assertion that he was convicted by a ten to two jury vote is correct, this assignment of error merits no relief as a matter of law.

In State v. Tillman, 2008-0408, p. 27 (La.App. 4 Cir. 3/4/09), 7 So.3d 65, this Court recognized that the First Circuit addressed this issue in 2007 in the case of Derrick Todd Lee. The First Circuit stated the following on this issue:

The punishment for second degree murder is confinement for life at hard labor. See LSA-R.S. 14:30.1(B). Louisiana Constitution Article I, § 17(A) and LSA-C.Cr.P. art. 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a |sverdict. Under both state and federal jurisprudence, a criminal conviction by a less than [ — ] unanimous jury does not violate a defendant’s right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, 164-165. The defendants reliance on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a non-unanimous jury verdict but rather, address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the sentencing judge. These decisions stand for the position that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and approved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Nothing in these decisions suggests that a jury’s verdict must be unanimous. Accordingly, LSA-Const. Art. I § 17(A) and LSA-C.Cr.P. art. 782(A) are not unconstitutional and do not violate the defendant’s Sixth Amendment right to a trial by jury.

State v. Lee, 2005-0456, p. 4 (La.App. 1 Cir. 5/16/07), 964 So.2d 967, 973, cert, denied State v. Lee, 2007-1288 (La.3/7/09), 977 So.2d 896, writ denied Lee v. Louisiana, — U.S. —, 129 S.Ct. 130, 172 L.Ed.2d 37 (2008).

In Tillman, this Court also noted that the U.S. Supreme Court denied a writ in Lee on October 6, 2008. 2008-0408 at p. 26, 7 So.3d 65, citing — U.S. —, 129 S.Ct. 130, 172 L.Ed.2d 37 (2008). Just weeks after this Court decided Tillman, the Louisiana Supreme Court reversed a trial court ruling that held La.C.Cr.P. art. 782 unconstitutional. State v. Bertrand, 2008-2215, 2008-2311 (La.3/17/09), 6 So.3d 738. In doing so, the Court concluded:

Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be |9overturned, we find that the trial court erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.

2008-2215, 2008-23111 at p. 8, 6 So.3d at 743. This recent jurisprudence clarifies that La.C.Cr.P. art. 782(A)’s presumption of constitutionality remains intact. Therefore, we find that the non-unanimous verdict did not violate the defendant’s rights under the United States or Louisiana constitutions.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant asserts that the trial court erred in trying the defendants together because his defenses were antagonistic to Smith’s defense. He argues that Mr. Davis, the victim, was attacked by Smith after asking too many questions about Tank’s condition, but that Mr. Davis never mentioned a disagreement with the defendant. He points to no other evidence. In his pre-trial motion, filed three days prior to trial, the defendant asserted that his defense would argue that Smith was, in fact, the guilty party. A review of the trial transcript fails to show such an argument. Moreover, neither the defendant nor his co-defendant, Craig Smith, called any witnesses.

The trial court never addressed the defendant’s motion, which was not filed until three days prior to trial. However, the trial transcript shows no objection lodged by the defense to offer the trial court a chance to address the motion. Accordingly, this argument has arguably been waived. See State v. Williams, 341 So.2d 370, 378 (1976) (an error cannot be availed of on appeal if the party has not made known to the court the action which he wishes the court to take), citing La.C.Cr.P. art. 841. The defendant’s failure to make or preserve a record showing he | inobjected to going to trial without addressing his motion shows that he may have changed his mind about wanting a separate trial. This would be legitimate trial strategy. The logical conclusions can only be one of the following: 1) the trial court inherently denied the motion; or 2) the defendant decided to drop the issue and did not preserve it for review. Regardless of what happened below, substantive analysis shows that this assignment of error, as argued, merits no relief.

This Court has stated the following on severance:

La.C.Cr.P. article 704 provides that “[jjointly indicted defendants shall be tried jointly unless ... [t]he state elects to try them separately; or ... [t]he court, on motion of the defendants, and after contradictory motion with the district attorney, is satisfied that justice requires a severance.”
Whether to grant or deny a severance is within the trial court’s sound discretion and will not be disturbed absent clear abuse. State v. Prudholm, 446 So.2d 729, 741 (La.1984). The standard for a pre-trial severance is broader because of speculation as to what the evidence will be, whereas the standard for severance after trial commences is stricter because the judge can examine the evidence. State v. Fleming, 574 So.2d 486, 492 (La.App. 4th Cir.1991), writ denied, 592 So.2d 1313 (La.1992). Under the “antagonistic defenses” test a severance is mandated when each defendant intends to blame the other, and a joint trial would require the defendants to defend against the state and each other. State v. Prudholm, 446 So.2d at 741; See La. C.Cr.P. art. 704, comment (c).
When each confession or statement involves both defendants as principals and only the extent of participation is contradictory, the defenses are not antagonistic and the degree of blame each defendant seeks to cast on the other does not warrant a severance. State v. Williams, 416 So.2d 914, 916 (La.1982); State v. Simmons, 381 So.2d 803, 806 (La.1980), cert denied, Simmons v. Louisiana, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 498 (1980).
In State v. Simmons, supra, the jointly charged defendants were convicted of first degree murder. The Supreme Court held that although each defendant’s statement blamed the other for the shooting, the defenses were not antagonistic because each confession involved the other defendant as a principal. See also State v. Gaskin, 412 So.2d 1007, 1012 (La.1982), where the Court stated in dicta that “(j)ustice does not require a severance where only the extent of participation of each defendant is at issue.” A principal is defined as one who is 11/‘concerned in the commission of a crime, whether present or absent, and whether [he] ... directly commit[s] the act constituting the offense, aid[s] and abet[s] in its commission, or directly or indirectly counsels] or procure[s] another to commit the crime.” La. R.S. 14:24.

State v. August, 96-2777, pp. 8-9 (La.App. 4 Cir. 9/16/98), 719 So.2d 536, 541. Moreover, the mere unsupported allegation that defenses will be antagonistic is not sufficient to require severance. State v. Prudholm, 446 So.2d 729, 740 (La.1984); see also, State v. Bradford, 367 So.2d 745 (La. 1978)(the mere allegation that a defendant will attempt to cast blame on a codefen-dant does not suffice).

Here, the defendant points to the dispute between the victim and his co-defendant. At the trial level, he also asserted that he intended to inculpate his co-defendant. However, he points to no arguments made at trial that demonstrated any antagonism between Smith’s defense and his. Review of the trial transcript reveals none. Nowhere does the trial transcript show that Smith and the defendant blamed each other. The dispute between Smith and Mr. Davis does not, per se, show any antagonism between Smith’s and the defendant’s defenses. Even if it did, this per se demonstration would not be sufficient, under the case law above, for the defendant to bear his burden of showing that severance was mandated. Moreover, the defendant’s statement that Mr. Davis mentioned no disagreement with him fails on two levels. First, the alleged difference that Mr. Davis had a prior altercation with Smith but did not have one with the defendant does nothing, on its own, to show antagonistic defenses between the two defendants. Second, the assertion appears incredible, given Mr. Davis’s testimony that showed the defendant participated with great effect in the attack on him. The jurisprudence shows that varying degrees of participation in a crime does not make a co-defendant’s defenses antagonistic. See August, 96-2777, at p. 9, 719 So.2d at 541, \l2citing State v. Simmons, 381 So.2d at 806. The record is simply void of antagonistic defenses between the defendant and the co-defendant, Smith. Accordingly, this assignment of error lacks merit.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . He does not assert that less than ten jurors voted to find him guilty.


author: PARRO, J.

text:
    FARMCO, INC. and Brent A. Beauvais v. Robert Ray MORRIS, Frances L. Morris, Jacqueline M. Creer, Zelotes A. Thomas, Keith E. Morris, and Roñada B. Morris.
    No. 2008 CA 1996.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 2009.
    Kenneth L. Blanchard, Jr., Plaquemine, LA, for Plaintiffs-Appellants Farmco, Inc. and Brent A. Beauvais.

      C. Jerome D’Aquila, New Roads, LA, for Defendants-Appellees Robert Ray Morris, Frances L. Morris, Keith E. Morris, and Roñada B. Morris.
    A.M. “Tony” Clayton, Michael P. Frugé, Clayton and Frugé, Port Allen, LA, for Defendants-Appellees Jacqueline M. Creer and Zelotes A. Thomas.
    Before PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

| ¡¡Farmco, Inc. (Farmco) and Brent A. Beauvais (collectively, plaintiffs) appeal from a judgment granting motions for involuntary dismissal and dismissing their claims for injunctive relief and/or damages against Robert Ray Morris, Frances L. Morris, Keith E. Morris, Roñada B. Morris, Zelotes A. Thomas, and Jacqueline M. Creer (collectively, defendants) in this matter involving a servitude of passage claimed by the defendants on property owned by the plaintiffs. We reverse the judgment and remand for further proceedings in accordance with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Farmco and Beauvais are the owners of several large tracts of land in West Baton Rouge Parish, having purchased this property at a United States Marshal’s sale on March 25, 1997, after its prior owners, Ashland Plantation, Inc. (Ashland) and Kenneth H. Kahao, defaulted on a 1979 debt owed to the Farmers Home Administration (FHA). The tract at issue in this litigation is identified as Tract D-4 on a map prepared for Ashland on April 7, 1994, by Wallace J. Hargrave. That map shows that a portion of the Farmco/Beau-vais property, Tract D-2, had been subdivided in 1983 into 18 lots comprising Chamberlin Subdivision. All of the Cham-berlin Subdivision lots front on Louisiana Highway 620, also known as “Section Road.” Between Lots 6 and 7 and Lots 11 and 12 are two 60’-wide passageways leading north to the back of the subdivision. Perpendicular to those passageways and running east-west along the back of all 18 lots of the subdivision is another passageway. These three passageways make up Tract D-⅛, and have been used by the defendants in this suit for access to their residences and to agricultural property north of the subdivision.

Farmco and Beauvais filed this suit on July 26, 2006, asserting that they were the lawful owners of Tract D-4 and that the defendants were using their land without their permission or consent. The petition alleged that the unauthorized use of the property by the defendants had rendered the property unmarketable and caused financial loss to the plaintiffs. They sought monetary damages and back rentals for this Ruse of the property. The petition also stated that “Robert R. Morris and Frances Morris should be enjoined from any further use” of Tract D-4. No injunc-tive relief was sought against the other named defendants. But in the third paragraph of the prayer for relief, the plaintiffs prayed that:

After all legal delays and due proceedings had, Defendants be declared to have no right to use the subject property and be found to have unlawfully possessed Plaintiffs (sic) Tract D-4 and that they be cast for damages, including back rentals all as appropriate in the premises and for all costs of this matter. (Emphasis added).

On October 27, 2006, after several continuances, the court heard and denied the preliminary injunction and set the matter for trial. Again, there were several continuances, and a bench trial was finally held on April 27, 2007.

Before the trial began, a number of documents were submitted by the plaintiffs and admitted into evidence by stipulation of all counsel that they were authentic and relevant to the proceedings. These documents included maps of the property and established the current ownership of all the relevant properties.

The plaintiffs’ first witness was George W.T. Ruple, the sole officer and director of Farmco, who identified the deed and proces verbal showing the property was sold to him and Beauvais at the U.S. Marshal’s sale in March 1997. Ruple testified that they had never given any of the defendants permission to use any portion of Tract D-4. Despite this, Robert Morris was using the easternmost 60’ passageway (between Lots 11 and 12) to get to his sugarcane fields behind the Chamberlin Subdivision. Keith and Roñada Morris and Zelotes Thomas were using that same 60’ passageway to gain access to their houses, as their driveways opened onto the easternmost passageway, and Jacqueline Creer was using the westernmost passageway for access to her driveway and house. Although the plaintiffs had developed and sold other portions of the property, Ruple testified that it was not possible to sell Tract D-4, because it was obvious that the defendants were using the property. Ru-ple said that Ms. Creer and Ms. Thomas had been using the tract ever since the plaintiffs purchased it. Although Keith and Roñada Morris bought their property later, their predecessor-in-title had also |4been using it for some time. There was a similar situation concerning the property owned by Robert and Frances Morris; although they purchased it after the plaintiffs’ purchase, their predecessor-in-title had also used the easternmost passageway to get to its sugarcane crop north of the Chamberlin Subdivision. Ruple testified that all of the passageways were being used for vehicular travel before he and Beauvais bought the property and that they existed in their present configuration at least since the Chamberlin Subdivision was developed in 1988.

Ruple also identified an “Act of Predial Servitude” executed and recorded in 1987, in which Ashland granted Roy and Irma Nugent a servitude of passage over the easternmost 60’ passageway (between Lots 11 and 12) currently being used by Keith and Roñada Morris, Robert and Frances Morris, and Ms. Thomas; Ruple admitted he had been aware of this predial servitude for several years. The record also contains authentic acts showing that Roy and Irma Nugent bought Lot 12 from Ashland in 1986; in February 1993, the Nugents sold Lot 12 to Daniel L Miremont; Mire-mont sold it to Keith and Roñada Morris in March 1998; and in October 2006, they donated an undivided l/2000th interest in Lot 12 to Robert and Frances Morris. Robert and Frances Morris purchased their agricultural property north of Cham-berlin Subdivision from Ashland in December 2000.

Ms. Thomas identified an act of sale showing her purchase of Lot 11 in 1987. She testified that her relatives and family members drove on the 60’ passageway alongside her lot when they visited her. She also said that school buses turned around on that passageway and other people whom she did not know used it as a road. Ms. Thomas said people had been using that strip as a road ever since she bought her property. There were utility poles alongside the passageway, and utility repair and maintenance workers also used the passageway to get access to those poles.

Following their testimony, plaintiffs’ counsel called Fred Stephens to the stand, but he was not present. Plaintiffs’ counsel assured the court that Stephens had been subpoenaed and that his testimony was needed to establish the value of the property in | ¡¡that area to prove damages. He asked the court to continue the trial and issue a bench warrant for Stephens. The court denied the continuance, but agreed to issue a bench warrant for Stephens’ failure to appear under a subpoena. At that point, plaintiffs’ counsel stated, “I have no more case in chief, Your Honor,” and rested the plaintiffs’ case.

Counsel for the defendants then moved for involuntary dismissal of the plaintiffs’ claims against their clients, arguing that upon the facts and law, the plaintiffs had shown no right to relief. Ms. Thomas and Ms. Creer argued they were entitled to be dismissed, because no injunctive relief had been sought against them in the petition, no damages had been proven, and no declaratory judgment had been sought. Keith and Roñada Morris reiterated those claims, and contended also that Ashland had granted them a predial servitude over the property at issue before the plaintiffs purchased the property; therefore they had the right to use the property. And since Robert and Frances Morris had been donated an undivided 1/2000 interest in that property, they also had the right to use the servitude.

Plaintiffs’ counsel argued that the predial servitude was put on the property after the 1979 FHA mortgage was in place; therefore, by operation of LSA-C.C. art. 721, when the mortgaged property was sold to the plaintiffs after foreclosure on the superior FHA mortgage, it was free and clear of that conventional servitude by operation of law. He also argued that the petition stated a claim for declaratory judgment against all the defendants by asking in the prayer for relief that the defendants “be declared to have no right to use the subject property and be found to have unlawfully possessed” plaintiffs’ Tract D-4.

The court took the motions for involuntary dismissal under advisement and asked the parties to brief the issues. On July 21, 2008, the court signed a judgment that granted the defendants’ motions and dismissed the plaintiffs’ claims with prejudice. This appeal followed.

| fiANALYSIS

Louisiana Code of Civil Procedure article 1672(B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The applicable standard to be used by a trial court to determine a motion for involuntary dismissal is whether the plaintiff has presented sufficient evidence to establish his case by a preponderance of the evidence. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 04-1311 (La.App. 1st Cir.6/15/05), 925 So.2d 1, 4. When considering a motion for involuntary dismissal, the trial court is not required to review the evidence in a light most favorable to the plaintiff, nor is the plaintiff entitled to any other special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Jackson v. Capitol City Family Health Ctr., 04-2671 (La.App. 1st Cir.12/22/05), 928 So.2d 129,131.

A trial court has much discretion in determining whether to grant a motion for involuntary dismissal, but it is required to weigh and evaluate all evidence in order to make such a determination. Taylor v. Tommie’s Gaming, 04-2254 (La.5/24/05), 902 So.2d 380, 384. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Boyd v. Allied Signal, Inc., 07-1409 (La.App. 1st Cir.10/17/08), 997 So.2d 111, 118, writ denied, 08-2682 (La.1/16/09), 998 So.2d 105.

After reviewing the pleadings and evidence in this case, we conclude that the plaintiffs established by a preponderance of the evidence that they own the property at issue. Tract D-4 was part of the property transferred to them in the U.S. Marshal’s sale on March 25, 1997. Nevertheless, that does not end the inquiry; the plaintiffs’ ownership of the property does not preclude the possibility that the defendants have |7acquired a right to use the property.

With respect to the Morrises’ claim that they acquired a predial servitude of passage over the easternmost passageway by a juridical act, the plaintiffs argue that any such servitude was extinguished by operation of law, pursuant to LSA-C.C. art. 721. That article states:

A predial servitude may be established on mortgaged property. If the servitude diminishes the value of the estate to the substantial detriment of the mortgagee, he may demand immediate payment of the debt.
If there is a sale for the enforcement of the mortgage the property is sold free of all servitudes established after the mortgage. In such a case, the acquirer of the servitude has an action for the restitution of its value against the owner who established it.

Foreclosure of a mortgage extinguishes a conventional servitude granted by the mortgagor after mortgaging the property. Campbell v. Louisiana Intrastate Gas Corp., 528 So.2d 626 (La.App. 2nd Cir. 1988). In the matter before us, Ashland mortgaged the property to the FHA in July 1979. The Act of Predial Servitude under which the Morrises claim to have acquired a servitude of passage was executed and filed in 1987. Therefore, under the clear terms of Article 721, even if the Act of Predial Servitude were sufficient to convey a right of passage over some of the property to some of the defendants, it was an inferior encumbrance on the property and was extinguished by the sale of the property for the enforcement of the FHA mortgage.

In the alternative, the defendants claim they acquired a servitude of passage by acquisitive prescription. See LSA-C.C. arts. 646, 650(B), 705, 707, 740, and 742. The defendants introduced some evidence in connection with their cross-examinations of the plaintiffs’ witnesses. Yet, possibly because this ease was involuntarily dismissed before the defendants presented their case-in-chief, the record does not clearly show the nature and extent of the defendants’ and their ancestors-in-titles’ possession of the property at issue in this case. Therefore, there is insufficient evidence in the record to determine whether the defendants may have acquired a right to use part or all of Tract D^, either by acquisitive prescription or by some other means. See LSA-C.C. arts. 654 and 741.

Because the plaintiffs established their ownership of the property by a [ ^preponderance of the evidence, the lower court erred in granting the defendants’ motions for involuntary dismissal. Since the defendants did not waive their right to offer evidence in the event the motions for involuntary dismissal were not granted, this case will be remanded to the trial court for a continuation of the trial to allow the defendants to offer evidence in support of their claims.

We note also that it is clear from the record that the plaintiffs experienced mixed signals from the court as to whether testimony from their expert on damages, Fred Stephens, would be admitted in a later hearing. The trial transcript reflects that the court issued a bench warrant for Stephens’ appearance, which could be interpreted as an attempt to require him to appear and testify, but then denied the plaintiffs’ motion for a continuance of the trial to present that testimony. Because of this, the plaintiffs were forced to conclude the presentation of all the evidence they could put before the court and were unable to present the testimony of Stephens. Since we are remanding this case to the lower court for further proceedings, we also order the court to allow the plaintiffs to re-open their case for the admission of Stephens’ testimony.

CONCLUSION

For the above reasons, the judgment of July 21, 2008, granting the defendants’ motions for involuntary dismissal and dismissing the plaintiffs’ claims, is reversed. This case is remanded to the trial court for admission of expert testimony from Fred Stephens as to the plaintiffs’ alleged damages, as well as to allow the defendants to offer evidence on their case-in-chief. Costs of this appeal are assessed to the defendants.

REVERSED AND REMANDED WITH INSTRUCTIONS.

McCLENDON JR., concurs without reason.

      . The record does not indicate who currently owns Lot 6. Lot 7 is owned by Ms. Creer, Lot 11 is owned by Ms. Thomas, and Lot 12 is owned by Keith and Roñada Morris. Robert and Frances Morris own a tract of agricultural land north of Chamberlin Subdivision.

      . The ruling denying the preliminary injunction was not appealed when rendered and was not assigned as error in this appeal.

      . These documents were submitted by the defendants' counsel on cross-examination of Ru-ple.

      . In briefs and oral argument to this court, further information concerning the circumstances surrounding Stephens’ non-appearance was revealed. However, because this information does not form part of the record, we are unable to consider it.


author: BROWN, Chief Judge.

text:
    SANDERS FAMILY, L.L.C., No. 1, and Larry (“Tay”) L. Taylor, III as agent for Linda Sue Sanders, Individually and Derivatively, Plaintiffs-Appellants, v. Colton Alaine SANDERS, Deborah L. Sanders, and Claiborne Timber, L.L.C., Defendants-Appellees.
    No. 44,632-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      The Harper Law Firm by Jerald R. Harper, Shreveport, Joseph W. Hendrix, for Appellants.
    Wiener, Weiss & Madison, A.P.C., by R. Joseph Naus, M. Allyn Stroud, Shreveport, for Appellees.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

11Plaintiffs, Sanders Family, LLC No. 1 (“the LLC”), and Larry L. (“Tay”) Taylor, III, as agent for Linda Sue Sanders, individually and derivatively, appeal a judgment in favor of defendants, Colton Sanders, Deborah Sanders, and Claiborne Timber, LLC, granting their exception of peremption, or, alternatively, prescription, and dismissing the case with prejudice. For the reasons stated herein, we reverse and remand.

Facts and Procedural Background

Plaintiffs brought this action on November 19, 2007, seeking the rescission of four property sales by the LLC to defendants. The four sales occurred on July 30, 2001, September 5, 2003, June 22, 2005, and November 30, 2005. The first sale’s vend-ee was Claiborne Timber, LLC, whose managing partners are Colton and Deborah Sanders. The second sale’s vendees were Colton and Deborah Sanders collectively. And the third and fourth sales’ vendee was Deborah Sanders separately.

All of the properties at issue in this action were the community property of Zack Sanders and Ethel Sanders until Zack Sanders’ death in 1995. Pursuant to the judgment of possession, Ethel Sanders, as surviving spouse, was entitled to ownership and possession of her undivided half interest in the community property, and their three children, Colton Sanders, Galen Sanders, and Linda Sue Sanders, were each recognized as owners of an undivided one-third interest in Zack Sanders’ half interest in the community property, subject to the usufruct in favor of Ethel Sanders. After |2the judgment of possession, however, all of the assets subject thereto were placed in three limited liability companies wholly owned by the members of the family. Ethel Sanders transferred all but 1% of her interest in the LLCs equally to her three children. Ethel Sanders was listed as the managing member of all three LLCs.

On January 4, 2008, defendants filed a peremptory exception of peremption, or, alternatively, prescription. A hearing was held on the exception on February 28, 2008, with Judge Dewey Burchett presiding. At that time Judge Burchett stated that he would like more discovery completed before a final ruling on the exception would be rendered. Subsequent to his ruling, and while discovery was being conducted, Judge Burchett voluntarily re-cused himself, and the case was reassigned to Judge Jeff Cox. After the suit was reassigned to Judge Cox, defendants filed a motion reurging the peremptory exception of peremption, or, alternatively, prescription. This motion also sought to enforce a previous discovery order to allow for the further deposing of the 83-year-old Ethel Sanders.

A hearing was held on the exception on September 29,. 2008. Thereafter, on November 10, 2008, the trial court issued its opinion finding that the one-year peremp-tive period for lesion beyond moiety was applicable to the claims set forth in the petition and further that plaintiffs had failed to allege fraud with particularity. On November 12, 2008, as a result of the trial court’s last finding, plaintiffs filed a motion to amend their petition. The trial court denied plaintiffs’ motion on November 17, 2008, |aand the final judgment dismissing the case with prejudice was signed on November 18, 2008.

Discussion

In the case sub judice, plaintiffs contend that their original petition seeking rescission of the four property sales alleged, among other causes of action, fraud and breach of fiduciary duty. Thus, plaintiffs assert, the applicable prescriptive periods for fraud and breach of fiduciary duty should control. Defendants, however, argue that the petition only sought rescission based upon lesion beyond moiety, and as such, plaintiffs’ claims were perempted in accordance with La. C.C. art. 2595.

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art.1953. 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. This exception, however, does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations. La. C.C. art. 1954. In pleading fraud, the circumstances constituting fraud must be alleged with particularity. La. C.C.P. art. 856.

Plaintiffs’ petition contains neither the word “fraud” nor “lesion.” The petition does, however, mention a pattern of grossly inadequate prices paid by defendants for property owned by the LLC, the reliance and trust Ethel Sanders put in her son, Colton, as a result of his superior business | experience and acumen, and the surreptitious dealings of Colton through Claiborne Timber, LLC. The petition further alleges that all four sales were negotiated by and at the behest of Colton, that the terms of the sales were unfair to the LLC, and that Colton was the only member of the LLC who received monthly compensation for management services performed on behalf of the LLC. More specifically, the petition states, and the attached exhibits show, that a few months after Deborah Sanders purchased the property subject to the fourth sale for $100,000.00, she sold a small fraction of the purchased land for $119,803.32 to the Parish of Bossier for a long-planned road extension, and then shortly thereafter an even smaller portion of the property to Wood & Wood Properties, L.L.C., for $310,552.00.

While we acknowledge that the aforementioned assertions may not reach the level of particularity that is required when pleading fraud, we nonetheless find that the trial court erred by dismissing plaintiffs’ claims against defendants without affording them an opportunity to amend their petition to more fully plead their fraud claims. See B-G & G Investors VI, L.L.C. v. Thibaut HG Corp., 08-0093 (La. App. 4th Cir.05/21/08), 985 So.2d 837. La. C.C.P. art. 934 states:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

In denying plaintiffs’ motion to amend their petition, the trial court denied it as moot. Moreover, during the hearing on plaintiffs’ motion for |snew trial, the trial court stated that it “takes it as its position that even though the judgment had not [been] signed that the judgment was final on the day of November the 10th or was a judgment as far as this court was concerned on November the 10th ....” While the trial court may have taken as its position that its written reasons, issued more than a week before the actual judgment was signed, constituted a final judgment, we cannot. In order for there to be a final judgment, the Louisiana Code of Civil Procedure requires that a judgment, set out separately from the written reasons, be signed. La. C.C.P. arts.1911, 1918. Thus, until a final judgment dismissing plaintiffs’ action was rendered, the trial court could have afforded plaintiffs the opportunity to amend their petition to cure the grounds for granting the peremptory objection. La. C.C.P. art. 934. Accordingly, we find that the trial court should have granted plaintiffs’ motion to amend.

Our finding that plaintiffs’ motion to amend should have been granted is not dispositive as to the validity of plaintiffs’ fraud claims. Our finding merely recognizes that plaintiffs’ petition laid the foundation for a fraud cause of action, and that if it were amended to plead fraud with sufficient particularity, plaintiffs would be afforded a longer prescriptive period. We are not making a determination as to whether the rescission sought on the four property sales was timely. The facts and circumstances of each property sale should be considered as well as a pattern of continuing conduct. Overall, the additional allegations stated in the amended petition will determine which prescriptive/peremp-tive period(s) apply.

|„We do note, however, that there are four members of the LLC-Ethel, Galen, Colton, and Linda-and only the second property sale involved a member of the LLC. Neither Claiborne Timber, LLC, nor Deborah Sanders were members of the Sanders Family LLC No. 1. As such, different prescriptive periods may apply to different sales and to different parties. Moreover, regarding plaintiffs’ causes of action for breach of fiduciary duties, since the trial court only broached the issue of whether a fiduciary relationship existed in arguendo, the issue should be revisited.

In their last assignment of error, plaintiffs claim that the trial court erred in denying its motion for a protective order to prevent the further deposing of Ethel Sanders. Louisiana jurisprudence has long held that a trial court has broad discretion to regulate pretrial discovery, and absent a clear abuse of that discretion its decision will not be disturbed on appeal. Bishop v. Shaw, 43,137 (La.App.2d Cir.03/12/08), 978 So.2d 568. Considering that Ethel Sanders executed all four sales and was privy to the allegedly fraudulent misrepresentations made by defendants, her full and complete deposition seems imperative to both the prosecution and defense of this action, as are the depositions and/or interrogatories of Colton and Deborah Sanders. Therefore, we find that the trial court did not abuse its discretion by denying plaintiffs’ motion for a protective order.

Conclusion

For the reasons stated above, we reverse the judgment of the trial court dismissing this action with prejudice and remand for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . Tay Taylor is Linda Sue Sanders' son.

      . The November 30, 2005, sale was the result of an option agreement executed on May 31, 2005.

      . The action for lesion must be brought within a peremptive period of one year from the time of the sale. La. C.C. art. 2595.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Davy C. HARRIS.
    No. KA 09-62.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      Van Hardin Kyzar, District Attorney, 10th JDC, Billy J. Harrington, Assistant District Attorney, Natchitoches, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Davy C. Harris.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_L¡The Defendant, Davy C. Harris, was charged by bill of information with possession of cocaine, a violation of La.R.S. 40:967, after police found cocaine in his wallet. He was arraigned and entered a plea of not guilty. He filed a Motion to Suppress which was denied following a hearing.

Defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), to possession of cocaine and reserved his right to seek review of the denial of his Motion to Suppress. He was subsequently sentenced to serve three years at hard labor. The sentence was suspended and Defendant was placed on two years supervised probation. He was also ordered to pay a fine of $1,000 or serve six months in jail. He was further ordered to pay fines and fees totaling $2,000.

Defendant is now before this court asserting one assignment of error. He contends the trial court erred in denying his Motion to Suppress. We agree.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Similarly, the Louisiana Constitution provides that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” LA. CONST, art. 1, § 5. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. Warrantless searches and seizures are considered to be per se unreasonable unless they can be justified by one of the Fourth Amendment’s warrant exceptions. See, e.g., State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The state has the burden of showing that one of the exceptions applies. See, e.g., State v. McHugh, 92-1852 (La.1/6/94), 630 So.2d 1259, 1262. We review a trial court[’]s ruling on a motion to suppress under the manifest error standard. State v. Williams, OS-272, p. 3 (La.App. 5 Cir. 12/16/08), 3 So.3d 526; State v. Higgins, 03-1980, p. 20-21 (La.4/1/05), 898 So.2d 1219, 1233, cert, denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

State v. Holmes, 08-719 p. 2 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278.

[2Peputy Roger Henson testified he received information from Lieutenant Brad Walker “in which he stated that he had received information of narcotics activity occurring at the boarding house on Berry Avenue.... ” Deputy Henson was unaware of the source of the information relayed to him by Lieutenant Walker. Several deputies with the narcotics task force went to that location, later established as a “high drug area” by witness testimony. Deputy Henson testified that as the officers pulled up to the boarding house, there were ten to fifteen people in front of the building and Defendant, among others, ran inside the boarding house. Deputy Henson stated that he and two other officers followed Defendant into the boarding house.

Deputy Henson further testified that Defendant ran into his bedroom. An officer knocked on the bedroom door. However, Defendant would not respond. After several “attempts” to get Defendant out of the room, he finally opened the door. Deputy Henson testified that he then “escorted” Defendant out of the boarding house into an area where several others had been “detained.” During that time, Defendant was not handcuffed and was observed trying to give his wallet to someone else several times. Deputy Henson described the subsequent sequence of events as follows:

At that time I grabbed the wallet and asked him if there was anything in it. He said no. I asked him if he minded me looking inside the wallet. He said that’s okay. So I opened the wallet up and observed one rock of crack/cocaine inside the wallet.

Deputy Henson further testified that there were suspected crack pipes and empty wrappers, which were indicative of crack cocaine and marijuana use, on the ground outside the boarding house when the officers arrived. Deputy Henson testified that he did not observe Defendant selling drugs or using drugs.

IsCorporal Jessie Taitano (one of the other officers on the scene) testified that he did not observe Defendant committing a crime. However, he observed Defendant attempt to give his wallet to someone else, but he was not close enough to hear what was said during that time.

ANALYSIS

The procession of the officers’ conduct began with a tip. However, the State did not present any evidence regarding the source of that tip to Lieutenant Walker. Thus, one must presume the information was provided via an anonymous tip. See State v. Young, 99-2120 (La.App. 4 Cir. 9/6/00), 770 So.2d 7, 10, wit denied, 00-2798 (La.9/21/01), 797 So.2d 63. See also State v. Boson, 99-1984 (La.App. 4 Cir. 1/17/01), 778 So.2d 687, writ denied, 01-430 (La.9/13/02), 824 So.2d 1192.

An anonymous tip is actionable if it bears a “sufficient indicia of reliability” Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990). This boils down to two elements. The first is a “tendency to identify a determinate person.” Flonda v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000). The second, and much more important element, is reliability regarding its “assertion of illegality.” Id. Here, we have no evidence that the tip at issue provided any information that would tend to identify Defendant. Furthermore, although Deputy Henson testified there were suspected crack pipes and wrappers on the ground outside the boarding house that were indicative of marijuana and crack cocaine use, he did not testify that he saw Defendant using these items, in possession of these items, or that the items were even close to where Defendant had been upon the arrival of police. Without more, there was simply no reason to believe the tip was reliable as to its assertion of illegality.

Upon the officers’ arrival, Defendant fled to his room in the boarding house. 14“Flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop; however, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable suspicion.” State v. Stanfield, 05-839, p. 5 (La.App. 5 Cir. 3/14/06), 925 So.2d 710, 715.

It is the State’s contention that Defendant’s flight to his room was, indeed, highly suspicious when placed together with the tip, the drug paraphernalia, and the fact that they were in a “high drug area.” In fact, in State v. Hill, 01-1372, p. 6 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 83, the fifth circuit stated, “This court has found that presence in a high crime area, coupled with nervousness, startled behavior, flight, or suspicious actions upon the approach of officers, is sufficient to justify an investigatory stop.” See also State v. Jones, 02-1168 (La.App. 4 Cir. 1/29/03), 839 So.2d 377; State v. Johnson, 01-2081 (La.4/26/02), 815 So.2d 809; State v. Jackson, 26,138 (La.App. 2 Cir. 8/17/94), 641 So.2d 1081; State v. Williams, 613 So.2d 259 (La.App. 1 Cir.1992); State v. Solomon, 93-1199 (La.App. 3 Cir. 3/2/94), 634 So.2d 1330.

However, in State v. Temple, 02-1895 (La.9/9/03), 854 So.2d 856, the supreme court noted that citizens are presumed law abiding, even those in high crime areas. Further, the case at bar is distinguishable from cases where courts have found the presence of a defendant in a high crime area coupled with flight provided a basis for police to conduct an investigatory stop. Defendant lived at the boarding house; thus, he was at his residence when police arrived and he ran into his own room.

Police followed Defendant into the boarding house. They made several attempts to get Defendant out of the room and he eventually opened the door. There |swas no testimony regarding what was said to Defendant during that time, and consequently, no evidence which would allow us to conclude that he willingly left his room.

Additionally, Defendant was “escorted” out of the boarding house into an area where several others had been “detained.” Witnesses did not describe what was meant by the phrase “escort” or if Defendant was free to leave during that time. Again, it is unclear if Defendant was free to leave at the time he was brought to the area where he, along with several others, were being detained.

Deputy Henson did testify that Defendant consented to the search of his wallet after he grabbed it. “[V]oluntary consent is an exception to the warrant requirement.” State v. Phillips, 04-827, p. 9 (La.App. 3 Cir. 11/10/04), 887 So.2d 670, 677. “If consent to search is obtained after an illegal detention or entry, the consent is valid only if it was the product of free will and not the result of exploitation of the previous illegality.” State v. Veals, 07-605, p. 17 (La.App. 5 Cir. 1/22/08), 977 So.2d 1030, 1039-40, wit denied, 08-571 (La.11/26/08), 997 So.2d 543. “The burden is on the state to prove that the consent was given freely and voluntarily.” State v. Cooper, 43,809, p. 9 (La.App. 2 Cir. 1/14/09), 2 So.3d 1172, 1179 (citation omitted).

In State v. Owen, 453 So.2d 1202, 1206 (La.1984) (citations omitted), the supreme court explained:

[I]f the consent was obtained after an illegal detention or entry, the consent was valid only if it was the product of a free will and not the result of an exploitation of the previous illegality. Among the factors considered in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the police officers adequately informed the individual that he need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct.

| fiAlthough we do not find flagrant misconduct by the police, the fact remains that we do not know enough about the initial tip to find it sufficiently reliable. We do not find Defendant’s flight from is own front yard to his own room to be particularly suspicious even though the yard and his room exist within a high crime area and the yard contained possible drug paraphernalia. We cannot determine, based on the record, whether Defendant willingly opened the door to his room. We cannot know if Defendant consented to be escorted from his room or the temporal proximity of this escort to the ultimate consent to search. From Deputy Henson’s testimony, it is clear that Defendant did not willingly give his wallet to the officer. There is also no testimony regarding whether Defendant was told he did not have to comply with the officer’s request to search his wallet.

We agree with the trial court that Deputy Henson obtained consent to search the Defendant’s wallet. However, considering the officers’ conduct, and the many unknown facts surrounding this incident, we must conclude that the State failed to meet its burden to prove not only that Defendant gave his consent, but also that the consent was free and voluntary.

JUDGMENT

The Defendant’s conviction and sentence are set aside. The matter is remanded to the trial court for further proceedings consistent with this ruling.

REVERSED.

AMY, J., dissents and would affirm the ruling of the trial court.


text:
    Joan BEAUREGARD v. STATE of LA, through the DOTD, Et Al.
    No. CA 09-271.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.
    Daniel Elmo Broussard, Jr., Broussard, Bolton, Halcomb, & Vizzier, Alexandria, LA, for Plaintifi/Appellee, Joan Beauregard.
    John Albert Ellis, Assistant Attorney General, LA. Dept, of Justice, Monroe, LA, for Defendant/Appellant, State of LA, through the DOTD.
    Brandon Ashley Sues, Lottie L. Bash, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Third Party/Appellee, City of Alexandria.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|tThe State of Louisiana, Department of Transportation and Development (State), appeals the judgment in favor of the third-party defendant, the City of Alexandria (City). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2006, Joan Beauregard filed suit against the State urging that she was injured when she fell due to a three inch drop-off between sections of the sidewalk and street at the entrance of the Starlight Baptist Church located in Alexandria, Louisiana. In its answer, the State named the City as a third-party defendant asserting that should it be found liable, it should be indemnified by the City because the City owned the sidewalk.

In June 2008, the City filed a peremptory exception of no cause of action urging that no solidary obligation existed between the State and the City and, therefore, the State could not have a claim of indemnification against it. Following a September 2008 hearing, the trial court allowed the State ten days within which to amend its pleadings to state a cause of action against the City. The State timely filed an amended third-party demand. The City thereafter filed a motion to strike the supplemental and amending third-party demand and a peremptory exception of no cause of action. The City again argued that the State again failed to provide any legal basis upon which it could have a claim for indemnification against the City. The trial court granted the City’s motion to strike and exception of no cause of action and dismissed the State’s claims against the City with prejudice. The State now appeals. Its sole assignment of error is that the trial court erred in maintaining the City’s exception of no cause of action.

1 .STANDARD OF REVIEW

In Kinchen v. Livingston Parish Council, 07-0478, p. 2 (La.10/16/07), 967 So.2d 1137, 1138 (quoting Fink v. Bryant, 01-0987, pp. 3-4 (La.11/29/01), 801 So.2d 346, 348-49), the supreme court set forth the role of an appellate court in reviewing a trial court’s sustainment or denial of a peremptory exception of no cause of action:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. (Citations omitted.)

Accordingly, we must determine whether the State has set forth any facts indicating that it would have a valid claim of indemnification against the City.

INDEMNIFICATION

The practice of filing a third-party demand for indemnification is nearly extinct in Louisiana following the 1996 amendments of La.Civ.Code art. 2324 abolishing solidarity among tortfeasors and instituting a system of comparative fault. See La.Civ.Code art. 2323. A solidary obligation is not only not presumed, but only arises if parties conspire “to commit an intentional or willful act” or if parties agree to be solidarily bound from a “clear expression of the parties’ intent.” La.Civ. Code |sarts. 2324 and 1796. A review of the State’s original third-party demand and its amended third-party demand reveals no indication of either. There is no allegation of an agreement between the State and the City to be bound solidarily nor is there any allegation of a jointly committed intentional act. The State’s only allegations, in its original and supplemental third-party demand, are that the City is the owner of the street and sidewalk in question and is responsible for its repair and upkeep and that the City will be unjustly enriched if the State is found liable and has to pay damages to Beauregard.

The State’s brief advances no valid argument in support of its contention that it is due indemnification from the City. Its claim that the City has been unjustly enriched at its expense is unfounded, particularly in light of the fact that the State has yet to be found liable for Beauregard’s injuries.

CONCLUSION

The judgment of the trial court dismissing the State’s third-party demand is affirmed. All costs of this appeal are assessed against the defendant-appellant, the State of Louisiana, Department of Transportation and Development.

AFFIRMED.


author: EZELL, JUDGE.

text:
    Louis D. LALLANDE, Jr., et al. v. Larry VERRET, et al.
    No. CA 09-321.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.

      Porteus Richard Burke, Burke & Cestia, New Iberia, LA, for Defendants/Appellees, Larry Verret, Eva Lena Harrington Ver-ret.
    Roger Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Plaintiffs/Appellants, Anaise L. Falgout, Annette L. Besse, Louis D. Lallande, Jr.
    Terry Ford Hessick, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellee, Charles Carmen Foti, Jr., Attorney General.
    Michael David Lopresto, Attorney at Law, New Iberia, LA, for Defendant/Ap-pellee, Dinah Verret.
    Robert A. Mathis, Newman, Mathis, Brady & Spedale, Metairie, LA, for Defendant/Appellee, Regions Bank.
    Eric Paul Duplantis, District Attorney’s Office, New Iberia, LA, for Defendant/Ap-pellee, Iberia Parish Counsel.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, JUDGE.

_jjln this matter, Louis Lallande, Jr., Anaise Falgout, and Annette Besse (the Plaintiffs) appeal the decision of the trial court finding that Larry Verret acquired a triangular piece of land via ten-year acquisitive prescription. The Plaintiffs also appeal the decision of the trial court granting Mr. Verret a servitude of passage over a private road on their property. For the following reasons, we affirm the decision of the trial court.

In 1967, Susette DeBlanc, the Plaintiffs’ ancestor in title, sold a piece of land to Albert Verret known as Lot 8. Lot 8 was bound on the north by Sugar Mill Road, a public road, and on the west by Bull Tiger Lane, a private road owned by Mrs. De-Blanc. In the sale of Lot 8, Mrs. DeBlanc reserved a small triangular piece of land on the southwest corner of the lot. Albert Verret then divided Lot 8 into six parcels each running east to west. That subdivision left all but the northernmost lot, Lot 8A, as enclosed estates. Bull Tiger Lane was the only means of accessing the remaining lots.

Albert Verret transferred Lot 8F to his son, Lloyd Verret in 1978. Lot 8F contained the triangle reserved by Mrs. De-Blanc. However, the transfer to Lloyd Verret included a plat indicating the triangle was included in Lot 8 and the transfer documents included language that suggesting that the triangle was included in the transfer to Lloyd Verret.

Lloyd Verret and his wife recorded a conventional mortgage upon the property, including the triangle, which they defaulted upon. Pursuant to judgment on that default, the property was then sold via sheriffs sale to Larry Verret, the appellee in this matter. Larry Verret (hereinafter Mr. Verret) purchased Lot 8F in 1984. He owned and possessed Lot 8F, including the triangle, peacefully until this suit was ^brought in 2004.

At trial, the trial court found that Mr. Verret had acquired the triangle by good faith acquisitive prescription. Further, the trial court found that lot 8F was an enclosed estate and granted Mr. Verret a servitude of passage over Bull Tiger Lane, which he had been peacefully using to access his property from 1984 up to and beyond the filing of this suit. From this decision, the Plaintiffs appeal.

The Plaintiffs assert four assignments of error on appeal: that the trial court erred in finding that Mr. Verret acquired the triangle via ten-year acquisitive prescription; that the trial court erred in granting the servitude of passage where Lot 8 was enclosed voluntarily by Mr. Verret’s ancestor in title; that the trial court erred in granting the servitude of passage along Bull Tiger Lane when the shortest distance to the public road was over other property; and that the trial court erred in deviating from the shortest route mandate without extraordinary circumstances. Because the final three assignments of error are closely related, we will address them together.

The Plaintiffs first claim that the trial court erred in ruling that Mr. Verret acquired the triangle via ten-year acquisitive prescription. Louisiana Civil Code Article 3473 provides that ownership of immovable property may be acquired by the prescription of ten years. Corporeal possession must be alleged by the adverse possessor and must be “continuous, uninterrupted, peaceable, public, and unequivocal” for those ten years. La.Civ.Code art. 3476. Additionally, good faith and just title are requirements for ten-year acquisitive prescription. La.Civ.Code art. 3475. Louisiana Civil Code Article 3480 provides that “[f]or purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses.” The Louisiana Civil Code presumes good faith that can be “rebutted on proof that the possessor |3knows, or should know, that he is not the owner of the thing he possesses.” La.Civ. Code art. 3481. “It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of ten years.” La. Civ.Code art. 3482. Louisiana Civil Code Article 3483 defines just title as “a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.”

The record is clear that in 1967 when Susette DeBlanc transferred title to Mr. Verret’s ancestor in title, Albert Verret, the triangle remained her property. However, in 1981 when Albert Verret sold the property to Lloyd Verret, the plat recorded in the Iberia Parish records shows that Lot 8F contained 1.39 acres, including the triangle. When the property then owned by Lloyd Verret was foreclosed upon and sold to Mr. Verret via sheriffs sale, the information supplied by the bank included the plat listing the triangle as part of Lot 8F. Furthermore, the lot was sold as 1.39 acres, which includes the triangle. The deed from the sheriffs sale was written, valid in form, filed for registry in the conveyance records of the parish where the property is situated, and describes the property in such a manner that the triangle is clearly included in the description in the deed. Thus, Mr. Verret acquired what he believed to be good title through the sheriffs sale. Furthermore, there is nothing in the record which indicates that Mr. Verret possessed this property in bad faith. Rather, Mr. Verret testified that he believed that he owned the triangle and good faith is to be presumed in his favor.

Moreover, he possessed the triangle for nearly twenty years by maintaining it openly, as well as placing trailers, pipe, and other things related to his business on the property. Mr. Verret testified that neither Susette DeBlanc nor the Plaintiffs objected to his use of the triangle. He put shell on the road located on the triangle and, more |4importantly, paid taxes on the lot, including the triangle, from the time he purchased the lot in 1984. The trial record indicates that he was still paying taxes on the triangle as late as 2006, two years after the commencement of this suit.

“The purpose of good faith acquisitive prescription is to secure the title of a person who purchases immovable property by a deed translative of title, under the reasonable and objective belief that he is acquiring a valid title to the property, and thereafter remains in peaceful possession of the property for more than ten years without any disturbance by the true owner.” Phillips v. Parker, 483 So.2d 972, 976 (La.1986). It is clear that Mr. Verret not only purchased the triangle in good faith via deed translative of title, but also that he peacefully possessed the triangle for almost twenty years before the Plaintiffs disturbed his possession with this suit. The trial court did not commit manifest error in finding that Mr. Verret acquired the triangle via acquisitive prescription.

The Plaintiffs next contend that the trial court erred in granting Mr. Verret a right of passage over their property, namely, Bull Tiger Lane. The Plaintiffs assert that Mr. Verret’s ancestor in title voluntarily enclosed the property and that, therefore, Mr. Verret was not entitled to a right of passage afforded an enclosed estate. The Plaintiffs further assert that any right of passage awarded should necessarily be over the remainder of Lot 8 rather than Bull Tiger Lane. We disagree with these assertions.

The legal right of passage over a neighbor’s property to an enclosed estate is addressed in La.Civ.Code art. 689 which states: “[t]he owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.” However, a neighbor is not required to provide passage to the owner of |san estate which became enclosed by the voluntary act or omission of its owner. La.Civ.Code art. 693. “Voluntary act or omission” refers to instances where the enclosed estate’s owner caused his dilemma by selling part of his property without reserving a right of passage by which to access his property. Griffith v. Cathey, 99-923, p. 10 (La.App. 3 Cir. 2/2/00), 762 So.2d 29, 36, writ denied, 00-1875 (La.10/6/00), 771 So.2d 85. However, the right to demand gratuitous passage is still available to a purchaser who acquires an estate enclosed as a result of a voluntary alienation of property, even though that right is not available to the seller who voluntarily enclosed the estate. Spotsville v. Herbert & Murrell, Inc., 97-188 (La. App. 3 Cir. 6/18/97), 698 So.2d 31. Louisiana Civil Code Article 693 “does not deny a purchaser who knowingly or voluntarily acquires enclosed property the right of passage over a neighbor’s estate. The prohibition applies to the voluntary acts of the vendor and not to those of the vendee.” 762 So.2d at 36.

It is clear that Mr. Verret did nothing to enclose the property he purchased from the Iberia Parish Sheriff. And while his ancestor in title who did enclose the estate could not seek passage over Bull Tiger Lane, Mr. Verret, as a subsequent purchaser of the property in question, clearly can under Griffith. The trial court did not commit error in finding that Lot 8F was enclosed and that Mr. Verret was entitled to a right of passage from the Plaintiffs under La.Civ.Code art. 689.

Moreover, even if Mr. Verret were merely entitled to a servitude under La.Civ.Code art. 694 rather than La.Civ. Code art. 689, as the Plaintiffs contend, “where passage across the vendor’s land is impossible or highly impractical, an enclosed owner, even though legally entitled to an Article 694 servitude across his | ¿vendor's property, may seek an Art. 689 servitude across a neighbor’s land.” Stuckey v. Collins, 464 So.2d 346, 348 (La. App. 2 Cir.1985). Under Stuckey, the question then for the trial court would become whether the servitude of passage across the remainder of Lot 8 would be so impossible or highly impracticable that Mr. Verret would still be entitled to a right of passage across his neighbor’s property, i.e., Bull Tiger Lane. “This is a fact-intensive question, and depends upon the credibility of the witnesses and the findings of fact of the trial court.” Spruell v. Dudley, 06-15, p. 7 (La.App. 1 Cir. 12/28/06), 951 So.2d 339, 343, writ denied, 07-196 (La.3/23/07), 951 So.2d 1106.

As in Stuckey, construction of a road across the property formerly owned by Mr. Verret’s vendor would be impossible or highly impractical in this case. Here, a thick line of trees on the eastern boundary of Lot 8 as well as houses and other constructions running throughout the remaining properties on Lot 8 prevent a feasible right of passage from being constructed across the vendor estate. The shortest and only practical route from Mr. Verret’s property to the closest public road was Bull Tiger Lane. The road had been in existence for years and was used for a long period of time without interference by the Plaintiffs. Inconvenience and damage to Plaintiffs is minimal at best, especially in light of the fact that Mr. Verret had maintained the road with his tractor and grader and paid roughly $40,000 for limestone between 1976 and 2004 to keep the entire road passable.

After a thorough review of the record and the trial court’s Written Reasons for Judgment, we cannot say that under these circumstances, the trial court was manifestly erroneous in granting Mr. Verret a servitude of passage across Bull Tiger Lane. Even if the Plaintiffs had been correct in their assertion that Griffith, 762 So.2d 29, did not apply in this matter, Mr. Verret would still have been entitled to use Bull|7Tiger Lane under Stuckey, 464 So.2d 346.

Finally, Mr. Verret answered the Plaintiffs’ appeal, claiming the trial court erred in finding that Bull Tiger Lane is not a public road. However, Mr. Verret failed to address this claim in brief and this issue will be considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4

For the above reasons, the judgment of the trial court is hereby affirmed. Costs of this appeal are hereby assessed against the Plaintiffs.

AFFIRMED.

      . Louisiana Civil Code Article 694 provides that in the case of partition or a voluntary alienation of an estate whereby property alienated or partitioned becomes enclosed, "passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised ....”