author: MOORE, J.

text:
    Larry HAWKINS, Plaintiff-Appellant v. CITY OF BOSSIER and Bossier City Municipal Fire & Police Civil Service Board, Defendant-Appellee
    No. 51,082-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017.

      WEEMS, SCHIMPF, HAINES, ET AL., By: Kenneth Patrick Haines, BREEDLOVE LAW FIRM, By: Pamela Breedlove, Counsel for Appellant
    KEAN MILLER, LLP, By: Michael Lowe, Counsel for Appellee
    Before WILLIAMS, MOORE and STONE, JJ.
   MOORE, J.

L Larry Hawkins appeals a judgment of the 26th Judicial District Court which affirmed a decision of the Bossier City Municipal Fire and Police Civil Service Board (“the Board”) to terminate Hawkins from the Bossier City Police Department (“BCPD”) for failing to have an abandoned car towed from the right-hand lane of Walker Road at Arthur Ray Teague Parkway. Finding no abuse of discretion or denial of due process, we affirm.

Factual Background and Prior Appeal

Around 1:00 pm on June 9, 2011, Sgt. Benjamin England was driving to BCPD to conduct a shift meeting at 2:00 pm. Coming down Walker Road toward Arthur Ray Teague Parkway, he saw an elderly African American man walking east on Walker Road. The man motioned back toward the parkway. Sgt. England then saw a Dodge Caliber stopped in the right-hand lane of Walker Road. Concerned that southbound traffic turning left off the parkway onto Walker Road might hit the ear, Sgt. England called dispatch to report a stalled vehicle. The dispatcher told him someone would be sent, so Sgt. England proceeded to his shift meeting.

At 1:05 pm, Cpl. Hawkins, an 18-year veteran of BCPD, responded to the call about a stalled or abandoned vehicle and the elderly man walking away from it. Cpl. Hawkins got there about 1:20 pm, finding a Dodge Caliber with a flat tire parked in the outside travel lane of Walker Road. He ran the tag number on the Thinkstream system and found the car belonged to an elderly man. Cpl. Hawkins drove to the nearest business, a bank, to see if the owner had come in to seek assistance; he had not. Cpl. Hawkins returned to the Dodge and activated his dashcam to document the abandoned Dear and the “extremely light” traffic. He did not deem it an immediate traffic hazard for that time of day, so he did not call to have it towed.

About this time, Cpl. Wayne Benjamin, who had heard the call, came to the scene to see if Cpl. Hawkins needed help. He promptly told Cpl. Hawkins that he (Hawkins) needed to get the car towed. Because he did not think this was necessary, Cpl. Hawkins called his superior, Sgt. Jeff Gay-dos, for advice. Sgt. Gaydos later testified that based on information provided by Sgt. Hawkins, he thought the car was completely off the road. He asked three questions: was the car (1) a road hazard, (2) blocking traffic, or (3) a vision obscurement to other traffic; Cpl. Hawkins replied “no” to each question, so Sgt. Gaydos told him to leave it. Cpl. Hawkins did so, and left the scene about 1:30 pm.

However, a still image from Sgt. Hawkins’s dashcam, admitted as Ex. C-5, shows the Dodge completely on the travel surface, the right wheels perhaps 4-6 inches from the curb. Around 2:30 pm, another officer, Keith Hardin, drove by and immediately had the car towed.

The next day, BCPD filed a complaint against Cpl. Hawkins on grounds that he did nothing to remove the car from the roadway when it was clearly blocking one lane of traffic. He received an “Internal Investigation Warning” on June 15, and notice of a prediseiplinary hearing on June 20.

The five members of the prediseiplinary panel unanimously sustained the complaint and recommended termination. On July 18, the mayor and chief of police formally notified Cpl. Hawkins that because he failed to “take appropriate action” to remove an abandoned car that was “reasonably | adeemed a traffic hazard” under Gen. Order 05-10, he was terminated immediately.

Cpl. Hawkins then filed an appeal to the Board, which held a hearing on September 21. Six witnesses testified, including Chief Patrick McWilliams, who felt that Cpl. Hawkins’s conduct detracted from the efficient and orderly operation of the department, wasted manpower and exposed BCPD to liability if another motorist had rammed into the abandoned car. The chief also described Cpl. Hawkins’s history of dereliction of duty dating from 1994, including a 30-day suspension in 1998 and a demotion to corporal in January 2011, just months before this incident; an officer with a clean record would not be terminated for merely failing to tow. He testified that Ofc. England, who also failed to tow the Dodge, received only a “letter of documentation” (and a 30-day suspension without pay); he had four prior suspensions, but none for insubordination. The chief also admitted that, to his knowledge, no BCPD had ever been disciplined for failing to tow. The Board upheld the termination, stating the disciplinary action was taken in good faith and for just cause.

Cpl. Hawkins then filed an appeal' in the 26th JDC alleging unequal punishment, violations of the La. Police Officers Bill of Rights, Bossier City ordinances and BCPD general orders, and that his termination was arbitrary and capricious and not in good faith. After a hearing, the district court remanded the claim to the Board to establish a complete record and to allow 14Cpl. Hawkins to present additional evidence, in accordance with Atchison v. Monroe Mun. Fire & Police Civil Serv. Bd., 46,178 (La.App. 2 Cir. 5/4/11), 64 So.3d 874. The city took a writ, which this court denied.

The Board reconvened on March 13, 2013. No official transcript was made, but on the audio recording each Board member read a written statement why he had voted to uphold termination. Cpl. Hawkins introduced Sgt. England’s personnel file; the city introduced Cpl. Hawkins’s. The Board upheld its previous decision and forwarded its findings to the district court.

On July 10, 2013, the district court rendered judgment declaring the Board’s findings supported by “sufficient, legal, competent evidence * * * [and] correct as a matter of law.” Notably, the court did not state that it had considered the un-transcribed audio recording of the Board’s March 2013 hearing.

Cpl. Hawkins took a devolutive appeal, resulting in this court’s original opinion, Hawkins v. City of Bossier, 48,959 (La. App. 2 Cir. 4/9/14), 137 So.3d 128. This court reversed and remanded with instructions for the district court to read the transcript of the audio tape and to allow Cpl. Hawkins to offer any additional evidence to support his claims.

Subsequent Proceedings

The district court set a June 9, 2014, hearing for a “full review of the remand hearing, including the * * * audio recording of that proceeding.” After this hearing, the court found the Board had not complied with the prior judgment, and therefore remanded the matter to the Board. The judgment Instated that the parties could offer evidence not previously admitted, call witnesses to testify (except that no witness who had already testified had to do so again), and introduce the transcript of the Board’s September 21, 2011, hearing.

The Board set its hearing for March 18, 2015. Cpl. Hawkins subpoenaed two witnesses who failed to appear, so the hearing was continued to September 16; the two witnesses failed to appear for this hearing as well. At the hearing, each Board member received copies of the prior decisions, transcripts of the two prior Board hearings, and copies of all exhibits previously introduced. Cpl. Hawkins called one witness, Capt. Randy Rufty, who had been on the predisciplinary hearing panel. Capt. Rufty testified that his initial recommendation had been a 90-day suspension, but he changed his mind and joined the others to recommend termination. He. denied he had been “pressured” to change his vote. Another Board member stated that they had tried to serve the absent witnesses, Sgt. England and Ofc. Szyska, but “did not succeed,” Counsel for Cpl. Hawkins did not move to attach them, hold the record open for their depositions or continue the hearing until they could be located. At the close of the hearing, the Board unanimously approved its prior decisions and affirmed the termination.

Cpl. Hawkins took another appeal to the district court, which held a very brief hearing on January 25, 2016. The city introduced copies of the Board’s prior decisions, transcripts of the three prior Board hearings, and copies of all exhibits previously introduced. The court noted that Cpl. Hawkins “tried to get witnesses to that trial” but they did not appear. However, “based on everything I’ve looked at,” the court found the decision Rwas not arbitrary and capricious, and the Board complied with the court’s prior order. Judgment was rendered affirming the Board’s decision; this devolutive appeal followed.

Discussion: Arbitrary and Capricious Board Action

By his first assignment of error, Cpl. Hawkins urges that his termination for failing to tow a vehicle under these circumstances was arbitrary and capricious, without just cause, and grossly disproportionate to the offense. He contends that no officer should be terminated for failing to tow a disabled vehicle when, in his judgment, the vehicle did not create a traffic hazard and the officer was merely trying to give an elderly citizen a chance to retrieve the vehicle or replace the flat tire. He first argues that Gen. Order 05-10, which he allegedly violated, does not state who decides, when it is decided or how to decide if a vehicle disabled on a public street is “deemed to be a traffic hazard,” and urges that neither he nor Sgt. England considered it a hazard, given the light traffic at the time, the open left lane that drivers could use to get around the abandoned Dodge, and the fact that no accident actually happened. He submits that his conduct was at worst neglect of duty, similar to that found insufficient to support a demotion in Austin v. Department of Police, 2007-1261 (La.App. 4 Cir. 3/5/08), 981 So.2d 42 (a police lieutenant failed to supervise his subordinates, an inmate escaped from the station into a nearby park and was apprehended soon after). He also argues that Chief McWilliams’s concern of potential liability is not a valid ground for discipline, citing Roy v. Alexandria Civil Serv. Com’n, 2007-1458 (La.App. 3 Cir. 4/2/08), 980 So.2d 225 (“An appointing authority may not discipline an employee * * * based on its fear of exposure to potential future liability because of the employee’s alleged propensity for |7violence”). He contests the chiefs belief that Cpl. Hawkins “just did nothing,” when in fact he tried to locate the car’s owner, unsuccessfully, and called his supervisor to say the car was not blocking traffic, was not a vision impairment and not a hazard. He concludes that he did not believe he was violating Gen. Order 05-10, and that as an 18-year veteran of BCPD, he should not have been fired for this.

In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor. La. R.S. 32:2500 D. Disciplinary action will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Bannister v. Department of Streets, 95-0404 (La. 1/16/96), 666 So.2d 641; Lensey v. City of Shreveport, 36,934 (La.App. 2 Cir. 3/5/03), 839 So.2d 1032, writ denied, 2003-0997 (La. 6/6/03), 845 So.2d 1091. The district court should not modify a board’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister v. Department of Streets, supra. Appellate review is confined to a determination of whether the decision made by the board was made in good faith and for cause. La. R.S. 33:2501 E; McCoy v. City of Shreveport, 42,662 (La.App. 2 Cir. 12/5/07), 972 So.2d 1178, and citations therein.

The court does not conduct a de novo review of evidence presented to the Board. McCoy v. City of Shreveport, supra. For this reason, we will not address whether the abandoned Dodge posed, or did not pose, a traffic 18hazard. Our appellate function is limited to determining whether the Board’s action was made in good faith and for cause. In our view, Gen. Order 05-10 leaves some discretion to the officer; Cpl. Hawkins (and Sgt. England) may have used poor judgment in failing to order a tow immediately.

More important, however, is that Cpl. Hawkins called Sgt. Gaydos and led him to believe the Dodge was completely off the road. The image from the dashcam totally refutes this, showing the car completely on the paved surface. Sgt. Gaydos asked three questions reasonably calculated to determine whether there was a traffic hazard under Gen. Order 05-10, and Cpl. Hawkins gave answers that were at best misleading, and at worst false. Making a false report to one’s superiors may indeed be a valid basis for termination of an officer. Wyatt v. Harahan Mun. Fire & Police Civil Serv. Bd., 06-81 (La.App. 5 Cir. 7/25/06), 935 So.2d 849, writ denied, 2006-2322 (La. 12/8/06), 943 So.2d 1091.

Moreover, Cpl. Hawkins had, unfortunately, a substantial history of disciplinary issues in BCPD. In his 18-year tenure, he had 20 Internal Affairs complaints, including 12 for dereliction of duty, and a demotion to corporal just months before this incident. The officer’s significant disciplinary history may well justify the imposition of an action, including termination, more severe than would be expected for an officer with a clean history. McCall v. City of Alexandria, 2010-82 (La.App. 3 Cir. 6/2/10), 40 So.3d 472, writ denied, 2010-1900 (La. 10/29/10), 48 So.3d 1090.

We have also considered whether Chief McWilliams inappropriately considered the potential liability of BCPD for failure to remove a car from the road. Unlike the street superintendent in Roy v. Alexandria Civil Serv. Com’n, supra, Cpl. Hawkins was in uniform and on duty when the incident occurred; his acts could indeed reflect poorly on the efficiency and competency of BCPD. Also unlike the plaintiff in Roy, Cpl. Hawkins was not discharged from his city job merely because of his reputation as a violent person, but because of specific conduct. Critically, unlike in Roy, the Board accepted the city’s rationale for termination. In short, the Board did not abuse its discretion in considering potential liability as part of the overall question whether Cpl. Hawkins’s improper conduct had a real and substantial relationship to the efficient operation of BCPD.

We recognize that termination is the ultimate discipline, and that reasonable minds could debate whether it is the appropriate outcome for Cpl. Hawkins. However, the court should modify the Board’s order only on a finding that it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister v. Department of Streets, supra. In light of Cpl. Hawkins’s misrepresentations to his sergeant, his serious disciplinary history, the drain on BCPD manpower and the potential (if unrealized) liability arising from his failure to act, we cannot say that the Board’s decision was arbitrary, capricious or an abuse of discretion. Moreover, our review does not disclose that the Board acted without good faith and without cause. La. R.S. 33:2501 E(3); McCoy v. City of Shreveport, supra. This assignment of error lacks merit.

Denial of Due Process

By his second assignment of error, Cpl. Hawkins urges he did not receive due process. He advances three arguments. First, he reiterates and | inincorporates by reference all the procedural objections to the city’s and the Board’s actions in handling his discipline, concluding that the records of the three Board hearings do not support the termination. Second, he contends that neither the city nor the Board ever considered or allowed him to introduce evidence of disproportionate treatment. He argues that despite the order directing the Board to consider such evidence, he was “not allowed to call any new witnesses” at the Board’s March 2013 hearing, only to introduce Sgt. England’s personnel file, and argues that his subpoenaed witnesses “were not even present at the hearings.” He submits that the failure to admit evidence relevant to a defense at a civil service hearing is reversible error, citing Golphin v. Division of Admin., 314 So.2d 498 (La. App. 1 Cir. 1975). Third, he contends (at oral argument, for the first time) that he was entitled to a “statement in writing of the action and the complete reasons therefor,” La. R.S. 33:2500 D, but did not receive this. His internal investigation warning and notice of predisciplinary hearing referred only to his failure to tow the car, not to the fact that his disciplinary history would be considered in fashioning the remedy. He submits that this inadequate notice impaired his ability to defend the charges and amounted to a denial of due process.

This court recognized in the prior appeal that the district court had not considered the entire available record, and remanded with instructions to do so; the district court, in turn, remanded to the Board to take additional evidence. Since then, much has occurred. The Board held a hearing, on September 16,2015, at which it received evidence, including the testimony Inof one of the witnesses called by Cpl. Hawkins; this resulted in another vote to approve the termination. The district court held another hearing, on January 25, 2016, at which time it received copies of all the prior decisions, transcripts of all hearings and copies of all exhibits previously introduced. Citing the totality of the evidence, the court found no arbitrary and capricious action. Unlike the prior appeal, the instant record does not show that either the Board or the district court overlooked or declined to consider any evidence that was properly introduced. Even though the process has been long, intermittent and somewhat circuitous, we do not find any structural deficiency. The first argument lacks merit.

As for the second argument, the record simply does not support Cpl. Hawkins’s contention that he was not allowed to call any new witnesses at the March 2013 hearing. Cpl. Hawkins subpoenaed two witnesses who failed to appear; at his request, the Board continued the hearing to September. Then, the same two witnesses again failed to appear. Cpl. Hawkins called one live witness, Capt. Rufty, and presented other evidence. The record does not show that counsel objected, or moved to attach the two missing witnesses, continue the hearing until they could be found or hold the record open for their depositions. Without a timely objection to the procedure, the issue is not properly preserved for appeal. La. C. C. P. art. 1635; Oliveaux v. St. Francis Med. Ctr., 39,147 (La.App. 2 Cir. 12/15/04), 889 So.2d 1264, writ denied, 2005-0454 (La. 4/29/05), 901 So.2d 1067; Lafayette City-Parish Consol. Gov’t v. Francis, 2006-0235 (La. App. 3 Cir. 6/28/06), 934 So.2d 258. The second argument lacks merit.

| ^Finally, the appointing authority is required to “furnish the employee and the board a statement in writing of the action and the complete reasons therefor.” La. R.S. 33:2500 D. To satisfy due process, the employer must give the tenured public employee oral or written notice of the charges against him, an explanation of the employer’s evidence, and the opportunity to present his side of the story. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). All the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures. Id.; Baton Rouge Police Dept. v. Morrison, 2004-0057 (La. App. 1 Cir. 2/18/05), 906 So.2d 610. Nothing in R.S. 33:2500 D requires that a “detailed explanation for the disciplinary action must be provided to the employee by the appointing authority before the termination.” Beck v. City of Baker, 2011-0803 (La.App. 1 Cir. 9/10/12), 102 So.3d 887, writ denied, 2012-2455 (La. 1/11/13), 107 So.3d 617. Cpl. Hawkins should have been aware of his own disciplinary history; moreover, after Chief McWilliams introduced this evidence at the first hearing, there were two additional Board hearings at which he could have attempted to rebut or justify his record. Under the circumstances, the notice under R.S. 23:2500 D did not have to include a recital of Cpl. Hawkins’s disciplinary history or advise him that prior infractions would weigh against him. The third argument lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Larry Hawkins.

AFFIRMED.

      . Cpl. Hawkins's appointee to the panel, Ofc. Kary Szyska, added the handwritten notation, "He has shown that he is incompetant [sic] in the simplest duties as a Police ofc.”

      . Gen. Order 05-10 states (with emphasis added)-. "The Police Department shall tow vehicles that have been abandoned on public property. A sticker must be placed on the vehicle windshield directing that the vehicle must be moved in ten (10) days (excluding weekends and holidays) per L.R.S. 32:473.1. After ten (10) days, the vehicle may be removed from public property and stored at the wrecker company storage facility, Vehicles deemed to he a traffic hazard shall be towed immediately."

      . By this time, the Board had two new members; one of these, a Capt. Woodfin, stated that he voted against termination since Cpl. Hawkins was not the only officer who failed to tow.

      . He also argues as part of this assignment that neither the city nor the Board considered, or allowed him to introduce evidence of, disproportionate treatment. As this argument more properly addresses the alleged failure of due process, we will discuss it in the second assignment.

      . As noted, Lt. Rufty changed his initial recommendation of a 90-day suspension to termination, at the June 2011 hearing, and Capt. Woodfin voted against termination, at the March 2013 hearing.

      . This argument was actually advanced and briefed as part of his first assignment.

      . One of the missing witnesses was Ofc. Szys-ka, who had earlier written that Cpl. Hawkins was incompetent “in the simplest duties as a Police ofc.” It is unclear how this witness’s testimony would have benefited Cpl. Hawkins's case.


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano LANDRIEU, J.,

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF A.F.
    NO. 2016-CA-0711
    Court of Appeal of Louisiana, Fourth Circuit.
    January 25, 2017

      Daphne Cross, P.O. Box 3960, New Orleans, LA 70177, PRO SE COUNSEL FOR DEFENDANT/APPELLANT
    Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Donald G. Cassels, III, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, Leslie M. Petty, MENTAL HEALTH ADVOCACY SERVICE, 1450 Poydras Street, Suite 1105, New Orleans, LA 70112, COUNSEL FOR STATE OF LOUISIANA/APPEL-LEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

| Appellant Daphne Cross (“Mother”) appeals the juvenile court’s adjudication of her child A.F. as a child in need of care. Finding that this Court lacks jurisdiction to review the adjudication, we dismiss the appeal.

Factual and Procedural History

In early 2016, A.F. was taken into the custody of the Orleans Parish Youth Study Center (“YSC”), pursuant to outstanding runaway warrants. On April 19, 2016, the juvenile court ordered A.F. released from the YSC without any restrictions. As a result, YSC staff attempted to contact Mother (A.F.’s custodial parent) to inform her of AF.’s release. However, Mother refused to take A.F. home from the YSC.

Tavia Elliot (“Ms. Elliot”), a child welfare specialist with the Louisiana Department of Children and Family Services (“DCFS”), contacted Mother on April 20, 2016. During their conversation, Mother informed Ms. Elliot that she would not assume custody of A.F. unless an ankle monitor was affixed to her. Ms. Elliot explained that an ankle monitor was not a condition of A.F.’s release. Ms. Elliot also informed Mother that if she were to assume custody of A.F. from the YSC, DCFS could assist Mother in seeking services, including a possible ankle monitor, lathe following day. Mother again refused to assume custody of A.F. Ms. Elliot then asked Mother if there was another relative with whom A.F. could be placed. Mother refused to provide the requested information.

The State of Louisiana (“State”), through DCFS, then sought an instanter order to assume temporary custody of A.F. until she could be placed with a family member. The juvenile court issued the instanter order on April 20, 2016. Five days later, the juvenile court held a continuing custody hearing. At the conclusion of the hearing, the juvenile court ordered that A.F. remain in the custody of DCFS.

After the continuing custody hearing, the State, through the Orleans Parish District Attorney’s Office, commenced a child in need of care proceeding in the interest of A.F., alleging that A.F. should be designated a child in need of care due to Mother’s neglect. Mother answered the State’s allegations, and the ease came before the juvenile court for adjudication.

At the child in need of care adjudication hearing, on June 2, 2016, the State called Ms. Elliot as a witness, who testified as to her attempts to convince Mother to take custody of A.F. from the YSC, and Mother’s refusal to do so. Ms. Elliot also testified as to Mother’s refusal to provide DCFS with any information regarding another family member with whom A.F. could be placed. Mother called Gwangi Richardson, who briefly testified that he had provided counseling services to A.F. Mother then called Glen Holt (“Mr. Holt”), who is the superintendent of the YSC. Mr. Holt testified that A.F. was taken into the custody of YSC, and that she was later ordered released without restrictions. Then, Mother called A.F. |aherself. A.F. testified that she called Mother from the YSC and requested that Mother pick her up. She further testified that Mother hung up on her, and would not answer subsequent phone calls. As her final witness, Mother called A.F.’s brother, X.F., who testified that he did not know a T.E. At the conclusion of the hearing, the juvenile court determined that A.F. is a child in need of care. On June 13, 2016, an order for appeal was signed. This appeal followed.

After the order for appeal was signed, on June 30, 2016, a disposition hearing was held. The record does not indicate that the juvenilé court rendered a judgment of disposition.

Jurisdiction of the Court

The State contests this appeal on the basis that this Court is without jurisdiction. The State bases its contention on the fact that Mother filed her motion for appeal after the child in need of care adjudication but prior to the case’s disposition. “La. Const, art. 5 § 10(A)(2) gives us jurisdiction of „matters appealed from family and juvenile courts.... ” State v. Bouvier, 344 So.2d 1168, 1168-69 (La. App. 4th Cir. 1977). However, we find that this set of facts falls under an exception to this Court’s jurisdictional grant. La. Ch.C. art. 330 states:

A. An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
B. In delinquency proceedings pursuant to Title VIII, child in need of care proceedings pursuant to Title VI, and famines in need of services proceedings pursuant to Title VII, an appeal may be taken only after a\ ¿judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition.

(emphasis added); cf. State ex rel. C.J., 2006-1441, pp. 5-6 (La.App. 1 Cir. 2/14/07), 959 So.2d 972, 974-75 (finding that a denial of a motion to vacate a child in need of services determination was not a final ap-pealable judgment). In this case, the motion for appeal was filed after A.F. was adjudicated a child in need of services under La. Ch.O. art. 606 (which appears in Title VI of the Louisiana Revised Statutes), prior to the juvenile court’s disposition. Because this appeal was taken prior to the disposition, we must dismiss it for lack of jurisdiction. Thus, the appeal is dismissed.

APPEAL DISMISSED

LANDRIEU, J., CONCURS WITH REASONS.

LANDRIEU, J.,

CONCURS WITH REASONS

hi concur in the dismissal of the appeal for the reasons assigned by the majority. Additionally, I note that a per curiam submitted by the trial court indicates that subsequent to the filing of this appeal, A.F. was reunited with her mother.

      . The instanter order was initially issued verbally on April 20, 2016, and was reduced to writing on April 21, 2016.

      . Mother appeared at the hearing, where she informed the juvenile court of her intent to proceed pro se.

      . Like A.F., X.F. is a minor. Therefore, his name is abbreviated for the purpose of maintaining confidentiality.

      .T.E. is the relative A.F. was placed with following these proceedings. Initials are used to maintain the confidentiality of the minor.


author: Judge Terri F. Love

text:
    IVY RESTAURANT NEW ORLEANS, LLC, Patrick Singley, Rebecca Singley, Gautreau’s Acquisition Corp., Alberta Pate and Jill Stoutz v. Leonard A. TORRE and Regina V. Torre
    NO. 2016-CA-0777
    Court of Appeal of Louisiana, Fourth Circuit.
    February 1, 2017

      Joseph M. Bruno, Melissa A. Debarbier-is, BRUNO & BRUNO LLP, 855 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT, JILL STOUTZ
    David K. Persons, John E. Unsworth, Jr., HAILEY McNAMARA HALL LAR-MANN & PAPALE, L.L.P., One Galleria Boulevard, Suite 1400, Metairie, LA 70001, AND, R. Joshua Koch, Jr., KOCH AND SCHMIDT, 650 Poydras Street, Suite 2660, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES, LEONARD AND REGINA TORRE
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Regina Bartholomew-Woods)
   Judge Terri F. Love

11 Defendants own commercial property that is leased to varying types of businesses. Plaintiffs are a group of former business owner lessors who filed suit against the defendants for allegedly concealing “a noisome odor” defect in the property that caused damages. The trial court dismissed appellant’s delictual and contractual claims finding that the claims were prescribed. Appellant now appeals contending that defendants “fraudulently” concealed the defect and that the doctrine of contra non valentem applies. Allegations of fraud did not prevent prescription from tolling because a reasonable person exercising reasonable diligence would have known of the cause of action. Likewise, the doctrine of contra non valentem does not apply because appellant was aware of the facts surrounding her cause of action. The continuing tort is also inapplicable, as the alleged harmful acts ceased over ten years prior to the filing of the petition. The trial court did not commit manifest error by dismissing the claims. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Leonard and Regina Torre (collectively “Torres”) own the commercial ^property located at 5015 Magazine Street (“Property”) in New Orleans. The Torres leased the Property to various small business owners. Around November 2002, Jill Stoutz leased the Property to operate a furniture store named Stowell & Stoutz. “Soon after opening” Stowell & Stoutz between November 2002 and November 2003, Ms. Stoutz “encountered an unpleasant odor that was not detected at the time she entered into a lease with” the Torres. Ms. Stoutz burned scented candles during business hours in attempt to hide the odor. The odor remained despite Ms. Stoutz’s attempts at eradication. Ms. Stoutz informed the Torres. However, the Torres’ claimed they had no knowledge of an odor and maintained that Ms. Stoutz was responsible for remedying the situation. Ms. Stoutz asserted that the odor or “preexisting defect ... made it impossible for plaintiff to maintain peaceable possession of the premises ... Stoutz was forced to leave the Premises and relocate her business” around November 2003.

In 2004, Alberta Pate leased the Property and renovated it in order to operate a restaurant. During the renovation, Ms. Pate added a kitchen and a second bathroom to the Property. After opening the restaurant in October 2005, Ms. Pate noticed an odor with an undeterminable origin. Ms. Pate stated that “the smell interfered with ... normal business operations and the restaurant was forced to close for the evening on several occasions.” Ms. Pate also alleged that customers would leave after being seated because of the odor. In 2007, Ms. Pate contends that the odor forced the closure of the restaurant.

Kevin Vizard leased the Property from 2008 to 2012 for the operation of Vizard’s on the Avenue. The odor in the Property allegedly “had a negative effect on Vizard’s business and, along with its concealment by the Defendant, resulted in Vizard’s restaurant ceasing operations prior to the end of the lease term.”

lain March 2013, Ivy Restaurant of New Orleans, LLC (“Ivy”) leased the Property to operate a restaurant. During renovations, a neighbor complained of an odor emanating from the Property. Ivy’s plumber “was unable to identify the source of the smell, but “raised the height of the evacuation pipes at the rear of the Property.” After opening the restaurant, Ivy noticed an odor throughout the restaurant. Then, “[i]n or around early 2015, as a direct and proximate result of Defendants’ failure to maintain and/or repair the pre-existing defect, Ivy was forced to close the restaurant.”

On October 1, 2015, Ivy; the Singleys; Gautreau’s, Ms. Pate, and Ms. Stoutz (collectively “Plaintiffs”) filed a Petition for Damages against the Torres for concealing the defect of “a noisome odor” in the Property. The Torres filed exceptions of prescription, no cause of action, no right of action, improper cumulation, and improper joinder of parties. The trial court granted the Torres’ exception of prescription regarding Ms. Stoutz’s and Ms. Pate’s delic-tual claims, as well as on Ms. Stoutz’s contractual claims. The trial court also granted the Torres’ exception of no right of action in regards to the Singleys and Gautreau. The trial court denied the Torres’ exception of improper cumulation and/or joinder. The trial court’s judgment resulted in the dismissal of all claims against the Torres except for Ms. Pate’s contractual claims.

Ms. Stoutz and Ms. Pate then filed a Notice of Intent to seek supervisory review of the trial court’s judgment. This Court granted the writ in part to remand the matter for the trial court to consider the Notice of Intent as a Motion for Appeal. Ivy Restaurant New Orleans, LLC, et al. v. Leonard A. Torre and Regina V. Torre, 16-0377 (La. App. 4 Cir. 5/20/16). Subsequently, Ms. Stoutz filed a Motion for Appeal Nunc Pro Tunc.

Ms. Stoutz contends that the trial court erred by granting the exception of prescription dismissing her claims.

STANDARD OF REVIEW

“A judgment granting a peremptory exception is reviewed de novo, because the exception raises a legal question, and an appellate court is to determine, whether in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs behalf, the petition states any valid cause of action for relief.” Metairie III v. Poche’ Const., Inc., 10-0353, pp. 3-4 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, 449. “Appellate courts review peremptory exceptions by reviewing the entire record to ‘determine whether the trial court was manifestly erroneous -with its factual conclusions.’” Id., 10-0353, p. 4, 948 So.2d at 449, quoting Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 06-0601, p. 3 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, 251. “The standard of review of a district court’s finding of facts supporting prescription is that the appellate court should not disturb the finding of the district court unless it is clearly wrong.” Albe v. City of New Orleans, 14-0186, p. 6 (La.App. 4 Cir. 9/17/14), 150 So.3d 361, 366. “The standard controlling our review of a peremptory exception of prescription requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished.” Id.

PRESCRIPTION

“[T]he burden of proof is on the party pleading prescription or peremption.” Metairie III, 10-0353, p. 4, 49 So.3d at 449. “However, when prescription or 1 .^peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not been perempt-ed.” Id. “The distinct court is not bound to accept as true the allegations of plaintiffs petition in its trial of the peremptory exception.” Albe, 14-0186, p. 5, 150 So.3d at 366. “Evidence may be introduced at the trial of all peremptory exceptions, except the objection of no cause of action.” Id.

“Delictual actions are subject to a Iterative prescription of one year.” La. C.C. art. 3492. “This prescription commences to run from the day injury or damage is sustained.” Id. The Louisiana Supreme Court explained that:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort, A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription.

Campo v. Correa, 01-2707, pp. 11-12 (La. 6/21/02), 828 So.2d 502, 510-11 (citations omitted). “Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” La. C.C. art. 3499.

Fraud

Ms. Stoutz contends that her claims are not prescribed because the Torres fraudulently misrepresented the truth about the odor in the Property.

“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 may also result from silence or inaction.” Id. “In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity.” La. C.C.P. art. 856. “It is insufficient to plead merely that a defendant defrauded a plaintiff.” Private Connection Prop., Inc. v. Fox Cars, LLC, 08-1129, p. 10 (La.App. 4 Cir. 2/10/09), 6 So.3d 866, 872. “A mere allegation of fraud, unaccompanied by factual allegations setting forth with particularity the circumstances which constitute the same, is a mere conclusion of the pleader and does not set forth a cause of action as to fraud.” Loeb v. Badalamenti, 192 So.2d 246, 249 (La. App. 4th Cir. 1966).

Ms. Stoutz admits that, “no provision contained in any contract covers the instant matter, nor does the petition allege that a specific contractual provision or duty was breached by the Defendants.” As such, the delictual, one-year prescriptive period applies. Ms. Stoutz contends that she “did not learn of the fraud until early 2015 when” the Singleys informed her they also experienced an odor problem in the' Property. Therefore, her October 2015 Petition for Damages was timely. We disagree.

Ms. Stoutz stated in the Petition for Damages that she encountered an unpleasant odor in the Property, but “was unable to determine the origin of the smell.” The odor forced her to burn scented candles while her furniture store was open. Ms. Stoutz informed the Torres that the Property required repair or renovation “to remedy the issue” between November 2002 and November 2003. The Torres then denied any knowledge of an odor and informed Ms. Stoutz that she was responsible for remedying same. At this point, Ms. Stoutz was aware that the Property contained a strong odor that she was unable to remove. Onee the | ./Torres denied any knowledge or responsibility for the odor, Ms. Stoutz possessed constructive knowledge that the Torres were allegedly breaking their duty to her, as- a lessee, and causing her damage. The Torres did nothing to conceal this fact. A reasonable person exercising reasonable diligence would be put on notice that she was a victim of an alleged tort at the latest in November 2003, when Ms. Stoutz permanently left the Property. As such, we find that allegations of fraud did not prevent prescription from tolling. Both the one-year delictual prescriptive period and the ten-year prescriptive periods expired prior to filing the Petition for Damages.

Contra Non Valentum

Ms. Stoutz also asserts that her claims are not prescribed because the doctrine of contra non valentem, applies.

The doctrine of contra non va-lentem was created “as an extension of the general rules of prescription.” Scott v. Am. Tobacco Co., Inc., 04-2095, p. 16 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, 1279. “Contra non valentem is based on the theory that when the claimant is not aware of the facts giving rise to his cause of action against a defendant, the running of prescription is suspended until the plaintiff discovers or should have discovered the facts on which the action is based.” Tenorio v. Exxon Mobil Corp., 14-814, p. 9 (La.App. 5 Cir. 4/15/15), 170 So.3d 269, 274. “It is not necessary to have actual knowledge as long as there is constructive knowledge.” Id. “For purposes of contra non valentem, a plaintiff will be deemed to know what he could have learned with reasonable diligence.” Id.

The Louisiana Supreme Court has

determined the factual situations to which the doctrine |sapplies so as to prevent the running of liberative prescription: “1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of the cause of action; or 4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though the plaintiffs ignorance is not induced by the defendants.”

Scott, 04-2095, pp. 16-17, 949 So. 2d at 1279, quoting Renfroe v. State, ex rel Dep’t of Transp. and Dev., 01-1646, p. 9 (La. 2/26/02), 809 So.2d 947, 963. “The doctrine of contra non valentem only applies in ‘exceptional circumstances.’ ” Renfroe, 01-1646, p. 9, 809 So.2d at 953, quoting La. C.C. art. 3467, Official Revision Comment (d).

Ms. Stoutz asserts that the Torres prevented her “from availing herself of the cause of action” and that the cause of action was “neither known nor reasonably knowable.” As discussed previously, once the Torres denied any knowledge or responsibility for the odor, Ms. Stoutz possessed constructive knowledge that the Torres allegedly breached their duty to her, as a lessee. The Torres did not prevent Ms. Stoutz from investigating the odor further and bringing an action for breach of a duty. As such, she was aware of the facts giving rise to her cause of action no later than November 2003, when she vacated the Property. “Even though she may have been ignorant of, or misunderstood, the extent of’ the odor, Ms. Stoutz “could still have the requisite knowledge to commence prescription.” In re Med. Review Panel of Thomas, 05-0879, p. 6 (La.App. 4 Cir. 5/31/06), 934 So.2d 188, 191. Since Ms. Stoutz was well aware of the facts surrounding her cause of action, we do not find that exceptional circumstances exist such that the doctrine of contra non valentem applies. Accordingly, contrapon valentem did not prevent Ms. Stoutz’s claims from prescribing.

Continuing Tort

The last exception to prescription cited by Ms. Stoutz is the continuing tort doctrine. The continuing tort doctrine “only applies when continuous conduct causes continuing damages.” Scott, 04-2095, p. 18, 949 So.2d at 1280. “Where the cause of injury is a continuous one giving rise to successive damages, prescription does not' begin to run until the conduct causing the damage is abated.” Id. “The scope of application of continuing tort is limited” because “[b]oth conduct and damage must be continuous.” Risin v. D.N.C. Investments, L.L.C., 05-0415, p. 8 (La.App. 4 Cir. 12/7/05), 921 So.2d 133, 138.

For the same reasons discussed in the previous sections, Ms. Stoutz was aware of the Torres’ refusal to remedy the odor. The alleged conduct causing the damage also ceased no later than November 2003, when Ms. Stoutz vacated the Property. Even if the continuing tort doctrine applied, prescription would have begun November 2003, at the latest. Thus, Ms. Stoutz’s claims raised in the 2015 Petition for Damages are prescribed.

After examining the facts and circumstances of the case sub judice, we find that fraud, and the doctrines of contra non valentem and continuing tort are inapplicable to Ms. Stoutz’s claims. Therefore, as her Petition for Damages was, filed in October 2015, almost twelve years after she vacated the Property, all of her claims are prescribed. The trial court did not err by granting the Torres’ exception of prescription. The judgment of the trial court is affirmed,

DECREE

For the above-mentioned reasons, we find that Ms. Stoutz’s claims are | mprescribed. Neither fraud, nor the doctrines of contra non valentem and continuing tort prevented prescription from tolling. Therefore, the trial court did not err by granting the Torres’ exception of prescription. The judgment of the trial court is affirmed.

AFFIRMED

      . The recited facts were gleaned from the Petition for Damages and pleadings.

      . Patrick Singley, Rebecca Singley, and Gau-treau's Acquisition Corp. are the owners and/or creditors of Ivy.

      . Ms. Pate's contractual claims are not at issue on appeal.


author: McClendon, j. WHIPPLE, C.J.,

text:
    STATE of Louisiana v. Cardale GREEN
    2016 KA 0057
    Court of Appeal of Louisiana, First Circuit.
    February 7, 2017

      Hillar C. Moore, III, District Attorney, Baton Rouge, Louisiana, Counsel for Ap-pellee, State of Louisiana.
    Frederick Kroenke, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Cardale Green
    Cardale Green, Angola, Louisiana, In Proper Person, Defendant/Appellant
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

[2The defendant, Cardale Green, was charged by grand jury indictment with second degree murder of Derrick Casey, a violation of Louisiana Revised Statutes 14:30.1 (count one) and attempted second degree murder of Kenneth Cobbs, a violation of Louisiana Revised Statutes 14:30.1 and 14:27 (count two). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on both counts. He filed motions for postverdict judgment of acquittal and new trial, both of which were denied. The defendant was then sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one, and to thirty years at hard labor without the benefit of parole, probation, or suspension of sentence on count two. The sentences were ordered to run consecutively. He now appeals, alleging two counseled and two pro se assignments of error. For the following reasons, we reverse the defendant’s convictions, vacate the defendant’s sentences, and remand for a new trial.

FACTS

On January 13, 2011, Baton Rouge Police Department Sergeant Kevin Adcock was dispatched to 1841 Gracie Street in the Spanish Town neighborhood in Baton Rouge where he found one victim, Derrick Casey, lying dead on a couch in the living room near the front door of the house. Sergeant Adcock took photographs and collected evidence from the crime scene, including one Winchester nine millimeter shell casing located inside the living room, five Winchester nine millimeter shell casings, one PMC nine millimeter live round, and one Winchester nine millimeter live round, all found on the roadway outside of the residence. Also recovered were a projectile found inside of the couch and a cellular telephone located in the backyard of the house. The cellular telephone was registered to the defendant. Detectives subpoenaed the records from that phone and developed Mark Young as an additional suspect. Call records of Young’s cellular telephone were also subpoenaed.

laThe investigation led to a witness, Shermon Mealey, and to a second victim, Kenneth “Troy” Cobbs. According to Mea-ley’s trial testimony, on the day of the incident, he, Cobbs, Casey, and Martin Rogers were “riding around, having fun.” Mealey decided to purchase two Lortab pills, so he contacted the defendant and met him on Hurst Street. The defendant got onto the hood of Meale/s car and instructed Mealey to drive around the corner to Gracie Street Palm prints left on the hood of the vehicle matched the left palm of the defendant.

When they arrived at 1841 Gracie Street, Mealey could not enter the house due to paralysis of his legs, so Casey entered the house. Mealey saw the defendant walk toward the house, but was unsure whether he entered. Mealey was also uncertain whether Cobbs entered the house. After hearing gunshots, Mealey saw Cobbs running. Cobbs then got into Mealey’s vehicle. Mealey drove away with Cobbs and Rogers and called 911 to report the shooting. As they drove away, there were additional shots fired from the backyard of the Gracie Street house.

Cobbs, who received a gunshot wound to his hip during the incident, testified that on the day of the incident, Mealey received a telephone call and thereafter stated that he needed to “handle some business.” Cobbs and Mealey then drove to Spanish Town with Casey and Rogers. At some point, Mealey called someone for directions. When they arrived at Spanish Town Road, Mealey picked up someone who instructed Mealey to drive around the corner. However, Mealey told that individual to get on the hood of his vehicle and direct them to the location. The person did so, and they arrived at 1841 Gracie Street. Mealey gave Casey money and asked Casey to “take care of some business” for him. Casey took the money and entered the house. Cobbs exited the vehicle, stood near it, and talked to Mealey. Cobbs decided Casey was taking too long and proceeded to walk toward the house. As he did so, he heard gunfire. Cobbs began running away and realized that he had been shot in his hip. He got back into the vehicle with Mealey, and as they drove away, someone exited the front of the house, shot at them, and jumped the gate. Cobbs testified that he saw two people in the backyard of the Gracie Street house. Cobbs explained that he knew who he saw | ¿running out of the house, but he did not know who shot him because his back was turned away from the shooter. According to Cobbs, the person that he saw running out of the house was not the defendant.

A records custodian from Verizon Wireless testified at trial. According to the defendant’s cellular telephone records, he spoke with Mealey multiple times on the date of the murder, but starting at 5:55 p.m., all of the calls to the defendant’s telephone were sent to voicemail. The last call from the defendant’s phone was to Young and was placed at 5:41 p.m.

A Taurus .480 revolver was located in a couch at 1332 Wellington Drive, Young’s residence. The projectile located inside of the couch at 1841 Grade Street was determined to have been fired from the Taurus. The two bullets recovered from Casey’s body during his autopsy were not fired from the Taurus. According to the firearms expert who testified at trial, those two bullets were much smaller and a different caliber than that located inside of the couch. The expert was unable to determine whether the two bullets recovered during the autopsy were fired from the same weapon, but he did state that they were of the same caliber and consistent with having been fired from a revolver.

The defendant did not testify at trial, but his video and audio recorded statement were played for the jury. He initially stated that he was in the Spanish Town area with his family on the day of the incident. He later stated that he was there “hanging out” at P.I.’s house, which was located at 1841 Gracie Street, with Young. He stated that he went to P.I.’s house around lunchtime and left approximately two hours later. According to the defendant, he found out about the murder from his mother, who called him on his cellular telephone. He then stated his mother actually called him on his girlfriend’s cellular telephone because his cellular telephone was lost. The defendant explained that he lost his phone on the day of the murder at P.I.’s house while he was playing with dogs in the backyard. He denied getting on the hood of the car and denied any involvement in the murder.

|COUNSELED ASSIGNMENT OF ERROR NUMBER ONE

In cases such as this one, where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence, before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Smith, 03-0917 (La.App. 1 Cir. 12/31/03), 868 So.2d 794, 798. Accordingly, we will first address the defendant’s first counseled assignment of error, which challenges the sufficiency of the State’s evidence.

In his first counseled assignment of error, the defendant argues that the evidence presented by the State was insufficient to prove all of the elements of both offenses beyond a reasonable doubt. Specifically, the defendant contends that although there was evidence that he was present at the scene of the murder, there was no evidence that he shot Casey, wounded Cobbs, or had the specific intent to kill or do great bodily harm to either victim.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821B. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states, in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438; State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 00-0895 (La. 11/17/00), 773 So.2d 732.

|fiWhen a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.

The crime of second degree murder, in pertinent part, “is the killing of a human being: (1) [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” LSA-R.S. 14:30.1A(1). Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625 (La.App. 1 Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. To be guilty of attempted second degree murder, a defendant must have the specific intent to kill and not merely the specific intent to inflict great bodily harm. State v. Maten, 04-1718 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, 716, writ denied, 05-1570 (La. 1/27/06), 922 So.2d 544. Specific intent to kill can be implied by the intentional use of a deadly weapon, such as a knife or a gun. See State v. Brunet, 95-0340 (La. App. 1 Cir. 4/30/96), 674 So.2d 344, 349, writ denied, 96-1406 (La. 11/1/96), 681 So.2d 1258. It has long been recognized that specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 585, opinion supplemented by, 00-1609 (La. 6/14/00), 768 So.2d 592 (per curiam), cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000).

17When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credi-bilities of the witnesses, and this Court will generally not second-guess those determinations. State v. Hughes, 05-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 01-3033 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. LSA-R.S. 14:24. However, the defendant’s mere presence at the scene is not enough to “concern” him in the crime. Only those persons who knowingly participate in the planning or execution of a crime may be said to be “concerned” in its commission, thus making them liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam).

A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and attempted second degree murder, and the defendant’s identity as the perpetrator of those offenses. The verdicts rendered in this case indicate that the jury credited the testimony of the witnesses against the defendant. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is [ 8conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La.App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. The credibility of witnesses will not be reweighed on appeal. State v. James, 02-2079 (La.App. 1 Cir. 5/9/03), 849 So.2d 574, 581.

The verdicts rendered in this case further indicate the jury rejected defendant’s hypothesis of innocence that he was no longer at 1841 Gracie Street at the time of the shooting. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in this case. Further, in reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662.

The jury reviewed the defendant’s audio and video recorded statement wherein he denied riding on the hood of Mealey’s vehicle and being present at 1841 Gracie Street at the time of the incident. He initially stated that he lost his phone while walking to Gracie Street, but later, when law enforcement told him that his phone was recovered at the house, he stated that it fell out while he was playing with dogs at the Gracie Street house on the day of the incident. The defendant claimed that he left the house at approximately 2:00 p.m. to 3:00 p.m. However, the records from his cellular telephone established that he was in control of it at least until 5:55 p.m. on the day of the murder, when calls began being forwarded to voicemail. The defendant’s last phone conversation with Mealey was at 5:26 p.m., and Mealey reported the shooting shortly thereafter at 6:15 p.m. Mealey identified the defendant as the person who he picked up on Hurst Street and who rode on the hood of his car to Gracie Street. The prints left on the hood of the vehicle matched the defendant’s left palm print. Cobbs |9could not identify who shot him, but 'testified that two shooters exited the house. Ballistics evidence indicated that at least two weapons Were used during the crime. ■ One of those weapons, a Taurus .480 revolver, was located in Young’s home and determined to have fired the bullet found lodged inside of the couch in the Gracie Street house. The bullets recovered from Casey’s body during the autopsy were of a different caliber and could not have been fired from that revolver. Smaller caliber shell casings were located on the living room floor as well as on the roadway in front of the Gracie Street house.

An appellate court errs by substituting its appreciation.of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Based on the foregoing reasons, this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first pro se assignment of error, the defendant contends that he was denied his right to counsel of choice, in violation of the .Sixth and Fourteenth Amendments to the United States Constitution, when the district court allowed the withdrawal of “two qualified attorneys.”

At the defendant’s arraignment on June 9, 2011, a public defender was appointed. The public defender’s office subsequently withdrew, citing a conflict with its representation of co-defendant Young. A conflict counselor from the public defender’s office, David Rozas, enrolled to represent the defendant in July 2011. After two defense motions and one joint motion to continue, trial was set for March 5, 2012. That day, defense counsel filed a motion to continue, and the trial date was continued until June 25, 2012. On June 25, 2012, a motion to sever was granted allowing the defendant and Young to be tried separately, and the matter was continued to September 24, 2012. On September 20, 2012, the matter was continued for trial until February 19, 2013, and the September 24, 2012 trial date was cancelled. On February 19, 2013, Rozas was relieved of representation of the defendant, and Carson Marcantel |inwas appointed. On defense counsel’s motion, the matter was continued until July 15, 2013. On June 13, 2013, Marcantel moved to withdraw, and the defendant noted that he was “hiring” new counsel. The defense filed a motion to continue a status conference until July 10, 2013, but the July 15, 2013 trial date was maintained.

On July 10, 2013, Joel Porter was present in court on a motion to enroll as counsel, which was filed jointly with Tiffany Foxworth. The district court canceled the July 15, 2013 trial date and requested that both sides submit memoranda pertaining to the ability of these two defense attorneys to enroll as counsel of record. In the State’s memorandum, it noted that the defendant and co-defendant Young were appointed separate counsel at arraignment, and the defendant filed a motion to sever, which was granted. A jury subsequently acquitted Young, who was represented by Porter and Foxworth. After Young’s acquittal, Foxworth and Porter filed a' motion to enroll as the defendant’s attorneys of record. The parties then returned to court for a hearing on the motion. At the hearing, Porter argued that he did not believe there were antagonistic defenses or conflicts because Young’s case was not being tried simultaneously with the defendant’s and because Young had been acquitted. Porter noted that the defendant executed an affidavit waiving any “actual [or] perceived conflict.” The State responded that it would also need a waiver by Young. However, the State concluded that its position was that even with the two waivers, the enrollment would be in violation of the Rules of Professional Conduct. At the conclusion of the hearing, the district court granted the motion to enroll. On motion of defense counsel, the matter was continued for a status conference on August 15, 2013. The State filed a writ application with this Court seeking review of the district court’s ruling, and this Court denied the writ application. See State v. Green, 2013-1286 (La.App. 1 Cir. 9/9/13), 2013 WL 12120922 (unpublished writ action). The State also sought review with the Louisiana Supreme Court, which also denied the application. See State v. Green, 2013-2278 (La. 11/15/13), 125 So.3d 1112.

However, on July 29, 2013, prior to the rulings of this Court and the supreme court, the State filed complaints with the Louisiana Attorney Disciplinary Board against |T1 Foxworth and Porter. After receipt of letters advising them of the investigation, Foxworth and Porter moved to withdraw as counsel of record for the defendant. After the Louisiana Supreme Court denied writs on the district court’s ruling that no conflict existed, the parties appeared for a hearing on the motion to withdraw on November 21, 2013. At the hearing, the district court specifically asked defense counsel if they were continuing to urge their motion to withdraw to which defense counsel responded affirmatively. The defendant objected to the withdrawal of his attorneys. The district court then noted that both the State and the defense attorneys joined in the motion and granted the motion over the defendant’s objection. On motion of defense counsel, the court ordered that the matter be continued until April 29, 2014, and cancelled the March 24, 2014 trial date.

Immediately after the district court’s ruling granting the motion to withdraw, Porter orally requested the district court to reconsider its ruling. Porter explained that the motion had been filed out of an abundance of caution and that he and Fox-worth did not believe that there was a conflict of interest, “adversary” of defenses, or concurrent representation. He noted that the case was three months away from trial and that “the courts have ruled that there is not a conflict and that [he and Foxworth] can represent” the defendant. He stated that he was “stunned and shocked” that the district court had granted the motion to withdraw. He went on to state:

... when the motion was filed, Your Honor, it was filed months ago in relationship [sic] to a complaint that was filed by [the State], okay. A complaint that had no basis, that was groundless, and was really frivolous, okay. We filed it just to protect ourselves with the bar association. But now, since the court— all the way up to the supreme court— Louisiana Supreme Court—ruled that we can represent this man, it has always been my intent from day one to represent him. To vigorously represent him. I don’t care whether it is in front of a bench trial or in front of 12 little green men from Mars, okay. They don’t have the facts, they can’t win this case, not in this court or any other court in this United States. So we want to reurge— we do not want to be off this case.

Following counsel’s response, the State noted that defense counsel, prior to the district court’s ruling granting the motion to withdraw, specifically informed the court that they were still urging their motion. The court stated that it would “not revisit [its] 1 ^decision” and that the “matter [was] closed, as far as [it was] concerned.” The court noted that Porter was relieved from representation. Porter then indicated that he wanted to file a writ, but it does not appear that he did so.

Porter, along with Foxworth and Elton Heron, subsequently filed a written motion to “re-enroll” on December 3, 2013. At the December 5, 2013 hearing on the motion, the district court denied the motion to re-enroll and maintained the matter for further proceedings on April 29, 2014. Porter filed a writ application with this Court, which was not considered due to rule violations. See State v. Green, 14-0009 (La. App. 1 Cir. 4/21/14) (unpublished writ action). It does not appear that Porter took any further action on this writ.

In this assignment of error, the defendant argues that the district court denied him representation of his counsel of choice in violation of his rights under the Sixth Amendment.

Like the Sixth Amendment to the federal constitution, the Louisiana Constitution ensures the same right to the assistance of counsel for a criminal defendant. Louisiana Constitution article I, section 13 provides in pertinent part: “At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.” State v. Reeves, 06-2419 (La. 5/5/09), 11 So.3d 1031, 1056-57, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). As a general proposition, a person accused in a criminal trial has the right to counsel of his choice. Similar to the federal court, the Louisiana Supreme Court has determined that the right to counsel of choice extends to a criminal defendant who has hired his own counsel. In addition, the right to counsel of choice extends to a defendant who has had an attorney hired for him by a collateral source. Id. at 1057.

The United States Supreme Court has found structural error violating the Sixth Amendment and requiring reversal where a criminal defendant has been denied his right to retained counsel of choice, or where a criminal defendant has been denied the representation of counsel of choice willing to donate his services. Reeves, 11 So.3d at 1056 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 2564, 165 L.Ed.2d 409 (2006)). Where the right to be assisted by counsel of one’s choice is wrongly denied, no harmless-error analysis that inquires into counsel’s effectiveness, or prejudice to the defendant, is required. Reeves, 11 So.3d at 1056 (citing Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. at 2563).

The right to counsel of choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Lee, 364 So.2d 1024, 1028 (La. 1978). The right to counsel cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice. State v. Seiss, 428 So.2d 444, 447 (La. 1983).

Porter and Foxworth were enrolled as counsel of record and subsequently filed a motion to withdraw in response to the State’s complaint filed with the disciplinary board. Porter explained that he and Foxworth filed the motion to withdraw “months ago ... just to protect [themselves] with the bar association.” He indicated that he and Foxworth filed the motion to withdraw solely because the disciplinary complaint had been filed against them; they did not truly wish to be removed from the case. It is somewhat unclear why Porter and Foxworth did not withdraw the motion after receiving favorable rulings from this Court and the Louisiana Supreme Court. Even so, Porter was under the impression that the district court would deny the motion, as indicated by his statement that he was “stunned and shocked” after the motion to withdraw was granted. After his motion to' withdraw was granted, Porter immediately, in the same hearing, orally moved that the district court reconsider its ruling, making it clear that he wished to continue representing the defendant. Shortly thereafter, Porter filed a written motion to re-enroll.

Nothing in the record suggests that Porter or Foxworth were attempting to manipulate the proceedings. Rather, the motion appears to have been filed in an effort to protect defense counsel from possible disciplinary action arising from the State’s complaint. Moreover, the defendant made it abundantly clear that, despite the motion | uto withdraw, he desired defense counsel to continue to represent him. Based on these facts, we cannot conclude that counsel was attempting to manipulate the orderly procedure of the courts or interfere with the fair administration of justice by filing a motion to withdraw, followed by motions to re-enroll.

Given the unique facts presented herein, we are constrained to find that the district court abused its discretion in denying the motions to re-enroll. This is espe-daily true in light of the district court’s ruling finding that no conflict existed to warrant the withdrawal, the higher courts not reversing that finding, and the defendant’s continued expressed desire to be represented by Porter and Foxworth. Compare State v. Brown, 03-0897 (La. 4/12/05), 907 So.2d 1, 12-14, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006) (wherein the court found that allowing the withdrawal of the defendant’s retained counsel, over the defendant’s objection, was proper based on sufficient evidence of an actual conflict of interest to justify the dismissal of the counsel). This error depriving the defendant of his counsel of choice is a structural error that is not subject to harmless error review. See Reeves, 11 So.3d at 1056. Therefore, this assignment of error has merit. Accordingly, we pretermit discussion of the defendant’s second counseled and second pro se assignments of error and remand the matter to the district court for a new trial in accordance with this opinion.

CONCLUSION

For the foregoing reasons, we reverse the defendant’s convictions, vacate the defendant’s sentences, and remand for a new trial.

CONVICTIONS REVERSED; SENTENCES VACATED; MATTER REMANDED FOR NEW TRIAL.

Whipple, C.J., dissents and assigns reasons.

WHIPPLE, C.J.,

dissenting.

| tThe question of withdrawal of counsel largely rests with the discretion of the trial court, and the trial court’s ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. State v. Brown, 2003-0897 (La. 4/12/05), 907 So.2d 1, 15. Upon the trial court’s denial of the motion to re-enroll filed by Porter, Fox-worth, and Heron, although defense counsel Porter filed a writ application of the trial court’s ruling to this court, it was not considered due to rule violations. See State v. Green, 2014-0009 (La. App. 1st Cir. 4/21/14) (unpublished writ action). No further efforts to either file a proper writ application or otherwise obtain appellate review of that ruling were pursued by defense counsel; thus, the matter proceeded to trial. Considering defense counsels’ failure to seek review of the trial court’s ruling, I am constrained to find no abuse of the trial court’s discretion in denying defense counsels’ motion to re-enroll.

For these reasons, I respectfully disagree with the majority’s opinion herein and would affirm the defendant’s convictions and sentences.

      . Co-defendant Mark Young was also charged with both counts in the same indictment, but was subsequently acquitted in a separate trial.

      . A projectile was collected from Casey’s left chest cavity and two fragments were recovered from his right shoulder and right collarbone.

      . On September 18, 2013, on the defense’s motion, trial was continued to March 24, 2014.


author: SAVOIE, Judge.

text:
    Erica SCOTT, et al. v. MAC-RE, LLC, d/b/a Southern Apartments
    16-224
    Court of Appeal of Louisiana, Third Circuit.
    February 08, 2017

      M. Terrance Hoychick, Attorney at Law, 141 South Sixth Street, P. 0. Drawer 391, Eunice, LA 70535-0391, (337) 457-9331, COUNSEL FOR PLAINTIFFS/APPELLANTS: Erica Scott, Individually and on Behalf of the Minor, Alyssa Grace Scott
    David L. Morgan, Stockwell, Sievert, Vi-cellio, Clements & Shaddock, L.L.P., P.O. Box 2900, Lake Charles, LA 70602, (337) 436-9491, COUNSEL FOR DEFENDANT/APPELLEE: MAC-RE, LLC, d/b/a Southern Apartments
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

hln this wrongful eviction suit, Plaintiff Erica Scott (Scott), individually and on behalf of her minor daughter, Alyssa Grace Scott, appeals the ruling of the trial court, dismissing her claims against Defendant MAC-RE, LLC d/b/a Southern Apartments (MAC-RE). MAC-RE also appeals that part of the judgment denying its claim for attorney’s fees and costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

From February 2009 through the summer of 2013, Scott leased an apartment from Southern Apartments, which is owned by MAC-RE, in Iota, Louisiana. The rental period was for one year with an option to renew at the end of the term for an additional one year term thereafter. The lease agreement at issue was signed on February 11, 2013, by Scott and Sherry Hebert (Hebert), the manager of Southern Apartments. Because Scott received federal housing aid, she was required to fill out a USDA Rural Development Tenant Certification. The certification included questions about Scott’s income, assets, and employment. The amount of aid Scott received was determined by her answers in the certification. In addition to the certification, Scott also signed an Affidavit of Non-Employment wherein she certified that she was not employed and did not anticipate a change in her employment status over the next year. Based on this information, the amount of Scott’s rent was calculated to be fifty-one dollars ($51) per month. Scott lived in the apartment with her daughter, Alyssa Grace.

MAC-RE owns 113 apartment complexes in Louisiana, Mississippi, and Texas. On May 29, 2013, Donna Thompson, General Manager of MAC-RE, sent a company-wide memorandum to all of its managers of these complexes. The managers were instructed to pass on the memorandum to the residents of the |2apartment complexes. The memorandum re-iterates that rental payment is due on the 1st of every month. A 10-day grace period is allowed for payment of rent without penalty. On the 11th day of the month, a late fee of ten dollars ($10) or 5% of the gross tenant contribution is charged. The memorandum states:

This notice is to make it understood that beginning June 1st 2013 no longer will any extensions be granted, no longer will any rent be accepted after the 12th when the lease termination is served. Anyone that has not paid rent by the 11th will receive a lease termination and eviction procedures will begin.

Sherry Hebert testified that she printed it out, went door to door, and gave a copy to everyone who answered. If no one answered, she placed it on their door with a note requesting the resident visit the office and sign the document. Scott alleges that she did not receive it.

In her petition, Scott alleges that she attempted to submit her rental payment to Hebert on June 13, 2013, but her payment was refused because it was late. However, in her trial testimony, this date changes to June 11, 2013. Because Scott had paid her rent late in the past, she expected it to be accepted. Scott alleges in her petition that, at the same time payment was refused, Hebert gave her a five day notice to vacate the property. However, in her trial testimony she states that the notice was posted on her door on June 13, 2013. Regardless, the Notice of Lease Termination gave her five days to voluntarily vacate the premises, which she did not do. This notice was signed by Sherry Hebert and Peggy Thi-bodeaux (Hebert’s supervisor) on June 13, 2013.

Justice of the Peace for Ward 4, Acadia Parish, Eldridge Pousson (Pousson) signed a five day notice to vacate directed to Scott and had the constable serve her with it. On July 11, 2013, a five day notice was posted to Scott’s door by Mike Habetz, the constable for Ward 4, Acadia Parish at the time. He testified that he Rmade three attempts to serve her at Southern Apartments at different times of the day, but she was never home. On the last attempt, he posted the paperwork to her door. In her trial testimony, she admitted that she did receive this notice. She also testified that she called Pousson who told her that she had five days to vacate the apartment. On July 25, 2013, Pousson issued a Writ of Ejection ordering the constable to eject Scott and her belongings from the property and place Hebert in full possession.

. Scott found a new residence at the end of July and, over the weekend of August 2-4, 2013, moved some of her belongings from the apartment to the new house. Scott alleges that, when she went to her apartment on Tuesday, August 6, 2013, the locks had been changed. This is disputed by Hebert. Hebert testified that she does not know how to change the locks on a door. Southern Apartments employed a maintenance man to carry out those duties; however, he took a leave of absence in May 2013, because of a family emergency and had not returned by August. Scott also alleges that the same day, August 6, Hebert told her that she could move the remainder of her items on Tuesdays and Thursdays while Hebert was present at the apartment complex (Hebert also manages Acadian Place Apartments for MAC-RE; she works there on Mondays, Wednesdays and Fridays and at Southern Apartments on Tuesdays and Thursdays). This was also disputed by Hebert. She testified that she was sent by her supervisor to help another of MAC-RE’s apartments August 6-8, 2013 and, therefore, she could not have spoken to Scott on August 6.

On August 11, 2013, acting under the legal authority of the Writ of Ejection, Hebert, her son, her grandson, and a friend, entered Scott’s apartment to clean it out. Again there is conflicting testimony. Scott alleges that she had personal ¡¿property worth twenty thousand dollars ($20,000) in the apartment. Hebert states that there was trash on the floor, rotting food on the cabinets, broken toys, a broken chest-of-drawers, an old mattress, and dirty dishes. She testified that there was nothing of value left in the apartment. She filled trash bags and put them in the dumpster on site. Anything that did not fit in the dumpster was hauled to the landfill.

Scott filed the present lawsuit on October 31, 2013, alleging that she sustained damages due to her wrongful eviction from the property. She requested reasonable attorney’s fees for the prosecution of her claim under the Louisiana Unfair Trade Practice and Consumer Protection Law (LUTPA). See La.R.S. art. 51:1409. In its’ Amended Answer and Reconventional Demand, MAC-RE asserts that Scott’s LUT-PA claim is groundless and presented in bad faith and, as a result, MAC-RE is entitled to attorney’s fees and costs. See Id. After a trial on the merits held July 27, 2015, the trial court ruled in favor of MAC-RE on the main demand, dismissing Scott’s claims; however, the trial court denied MAC-RE’s request for attorney’s fees and costs. Both parties appealed.

DISCUSSION

I. Wrongful Eviction

Both parties agree that an improper eviction procedure was used by Justice of the Peace' Pousson to procure Scott’s eviction from Southern- Apartments: The question for the court to decide is whether MAC-RE is legally responsible to Scott for her wrongful eviction after it relied on a judgment signed by the justice of the peace. It is a legal question, and “[questions of law are reviewed by the appellate courts under the de novo standard of review.” Noel v. Noel, 15-37, p. 6 (La.App. 3 Cir. 5/27/15), 165 So.3d 401, 408, writ denied, 15-1121 (La. 9/18/15), 178 So.3d 147. The trial court found that, as a third party, MAC-RE was not responsible to Scott for the wrongful eviction. We agree.

This case presents an interesting issue— in fact, we could not find any cases that have contemplated it before. Certainly, there are wrongful eviction cases that have been reviewed by the appellate courts. In those cases, however, the landlord has done some act toward the eviction process prior to filing for an eviction or in some cases, not filing for eviction at all. See Horacek v. Watson, 11-1345 (La.App. 3 Cir. 3/7/12), 86 So.3d 766; Platinum City, L.L.C. v. Boudreaux, 11-559 (La.App. 3 Cir. 11/23/11), 81 So.3d 780. This is not a case in which the landlord has resorted to self-help. See Pelleteri v. Caspian Group, Inc., 02-2141 (La.App. 4 Cir. 7/2/03), 851 So.2d 1230. MAC-RE gave Scott notice to vacate and, thereafter, instituted eviction proceedings through the justice of the peace. It is the justice of the peace who utilized the incorrect eviction procedure. We must decide whether MAC-RE is at fault.

Louisiana Code of Civil Procedure Article 2004 states, “[a] final judgment obtained by fraud or ill practices may be annulled.” The nullity action must be brought within one year of the discovery of the fraud or ill practice. See Id. “ ‘Ill practice’ includes any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right.” Expert Oil & Gas, L.L.C. v. Mack Energy Co., 16-68, p. 4 (La.App. 1 Cir. 9/16/16), 203 So.3d 1080, 1084. “The ‘legal right’ of which a litigant must be deprived in order to have a judgment annulled includes the right to appear and assert a defense and the right to a fair and impartial trial.” See Id.

Scott admitted that she received MAC-RE’s notice to vacate and the five day notice to vacate signed by Pousson. She also testified that she spoke with Pousson 1 (¡regarding the notice and that he told her she must vacate the premises. She secured housing and, according to Hebert, had moved everything of value out of her apartment. She clearly had constructive notice that she was being evicted from her apartment. However, because an improper eviction procedure was utilized, she was deprived of the right to a hearing. Scott’s proper course of action was to institute a nullity action, which she did not do. As a result, neither the signed five-day notice nor the July 26, 2013 Writ of Ejection was ever overturned. We find that MAC-RE acted under the authority of the Writ of Ejection, which was signed by the justice of the peace, placed them in possession of the premises, and was never nullified. Therefore, it is not responsible to Scott for any damage that she sustained as a result of the eviction.

Furthermore, we agree with MAC-RE’s alternative argument that Scott abandoned the property. Abandonment is a jurisprudential exception to the rule that landlords must follow the statutory eviction procedures found in La. Code Civ.P. art. 4701-4735. Horacek, 86 So.3d 766. Louisiana Code of Civil Procedure Article 4731 states that “[a]fter the required notice has been given, the lessor or owner ... may lawfully take possession of the premises without further judicial process, upon a reasonable belief that the lessee ... has abandoned the premises.” “In determining whether abandonment has occurred, there must be a showing that the lessee voluntarily relinquished the premises and intended to terminate without vesting ownership in another.” Southpark Comm. Hosp., LLC v. Southpark Acquisition Co., LLC, 13-59, pp. 15-16 (La.App. 3 Cir. 10/30/13), 126 So.3d 805, 816, writ denied, 13-2794 (La. 2/28/14), 134 So.3d 1175 (quoting Bill Kassel Farms, Inc. v. Paul, 96-462, p. 5 (La.App. 3 Cir. 12/11/96), 690 So.2d 807, 809, writ denied, 97-712 (La. 4/25/97), 692 So.2d 1095). “[T]he abandonment of ^property by a tenant to such an extent as to vest title and control in the landlord involves both an act of abandonment and specific intent to abandon.” Id. (quoting Powell v. Cox, 92 So.2d 739, 742 (La.App. 2 Cir.1957).

In the present case, Hebert testified that there was nothing of value in the apartment when she entered. Scott admitted that she secured other housing to live in due to the eviction and began to move her things there. She further testified that she had her utilities transferred from Southern Apartments on August 5, 2013. Hebert testified that when she checked the meter on July 24, 2013, it had a yellow tag on it, indicating that the electricity was shut off. Hebert further testified that, on the same day, she entered Scott’s apartment after her knock went unanswered. She smelled an odor and found old food on a plate on the counter. When she opened the freezer, the food was rotten. There were roaches everywhere and there was no water to wash her hands. She called Orkin, a pest control company, due to the fleas and roaches. Scott testified that she did not see Hebert between June 11, 2013, and August 11, 2013. Scott alleges this was due to her work schedule. Hebert also testified that she did not see Scott during that time. Hebert stated that, when she cleaned out the apartment, it was her opinion that Scott was not living there or planning to stay there due to the living conditions. It is our opinion that there is enough evidence in the record to conclude that Scott abandoned her apartment at Southern Apartments.

II. MAC-RE’s claim for attorney’s fees and costs

In Scott’s petition, she asserts that MAC-RE violated LUTPA and requests reasonable attorney’s fees under La.R.S. art. 51:1409. Under this article, LUTPA provides a right of action and damages to a party who suffers “any ascertainable loss of money or movable property” as the result of an unfair deceptive act or | ^practice. La.R.S. art. 1409(A). The article also provides reasonable attorney’s fees and costs to a defendant when the LUTPA claim is found to be “groundless and brought in bad faith or for purposes of harassment.” Id. “This provision is penal in nature and is subject to reasonably strict construction. The court has discretion in determining whether to award attorney fees under the statute.” Double-Eight Oil and Gas L.L.C. v. Caruthurs Producing Co., Inc., 41,451, p. 11 (La.App. 2 Cir. 11/20/06), 942 So.2d 1279, 1286.

The trial court denied MAC-RE’s claim under La.R.S. art. 51:4109(A), finding Scott did not act in bad faith. Based on the record, we find no abuse of the trial court’s discretion.

DECREE

The judgment of the trial court dismissing the claims of Erica Scott, individually and on behalf of her minor daughter, Alyssa Grace Scott, is affirmed. The judgment denying MAC-RE’s request for attorney’s fees and costs is also affirmed. All costs associated with these proceedings are assessed to Erica Scott.

AFFIRMED.