text:
    STATE of Louisiana v. Leroy A. DAVIS.
    No. 09-KA-452.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS, Judges.
   MARION F. EDWARDS, Judge.

12Defendant/appellant, Leroy A. Davis (“Davis”), appeals his conviction for possession of cocaine in violation of La. R.S. 40:967(F). We affirm and remand for the reasons herein.

After his arrest, Davis pled not guilty to the charge. A motion to suppress evidence was filed and, after a hearing, denied. Following a jury trial, Davis was convicted and sentenced to twenty years at hard labor. A multiple bill was filed against him as a fourth felony offender, his original sentence was vacated, and he was re-sentenced to twenty years at hard labor. Davis has taken this timely appeal.

The facts of the case as established at the suppression hearing and trial are as follows:

At the hearing, Detective Wayne Williams (“Detective Williams”) of the Gretna Police Department testified that, on April 13, 2006, a confidential informant (Cl# 1) contacted “us” and stated that he knew of an individual who |scould deliver crack cocaine. Cl# 1 was someone the detective had used in the past and who had proven reliable. Based on that information, the officers conducted an operation whereby this individual was going to deliver crack cocaine.

The officers conducted surveillance, followed the individual, and detained him for investigative reasons. When that individual was heading back to the target location where the transaction with Cl# 1 was going to take place, they stopped him and told him that they knew drugs were being sold from this location. The officers asked that individual if he wanted to cooperate and redeem himself, and he answered affirmatively. That individual, who then became a confidential informant (“Cl# 2”), stated that he could arrange for a delivery of crack cocaine by “Bootsy” who Detective Williams knew was Davis because there was an open investigation involving him. Also, Cl# 2 was shown a photograph of Davis who he positively identified as the person he knew as “Bootsy.”

The officers arranged for Cl# 2 to call Davis and have Davis deliver crack cocaine. Cl# 2 called Davis on his cell phone and requested that he deliver two and a quarter ounces of crack cocaine to the Circle K at 929 Lafayette Street in Gretna, Louisiana. Detective Williams overheard the conversation by putting his head next to Cl# 2’s phone during the call. Davis’ name or nickname was used during that phone call, and the person on the other end of the line responded to it. Davis told Cl# 2, “Okay. I’ll be there shortly.” Detective Williams stated that Cl# 2 was an untested informant.

After Cl# 2 arranged for Davis to deliver cocaine, Detective Williams and other officers began surveillance of 929 Lafayette Street. At some point, Detective Williams observed Davis pulling into the parking lot at that location in a silver Camaro, a car the detective had stopped the day before for a “burned out” taillight. Because the taillight was still broken, Detective Williams conducted a stop on 11,Davis. Detective Williams approached the vehicle, removed Davis, and patted down his outer clothing to determine whether Davis had weapons or contraband. At that time, there was an open investigation on Davis for “narcotics and weapons.”

As he was patting down Davis, he felt a distinct rigid object in his front pocket. The detective testified that it was immediately apparent that the object was the crack cocaine that Cl# 2 had ordered from Davis. He retrieved the object and verified that it was crack cocaine. He also found $4,863 in Davis’ right front pocket. Detective Williams placed Davis under arrest for not having the proper equipment on his vehicle and read him his rights. Later at the police department, Davis said that he would be able to deliver more narcotics in exchange for leniency on his charges.

At trial, Andrea Travis, an expert in the testing, analysis, and examination of controlled dangerous substances, testified that the substance in this case tested positive for cocaine and had a net weight of 60.68 grams, which did not include the baggy in which it was found. She could not testify as to what percentage of that substance was cocaine.

MOTION TO SUPPRESS

Davis argues that the trial court erred by denying his motion to suppress evidence. He contends that there was no valid Terry weapons frisk because Detective Williams never suspected that the object was a weapon, nor could he discern that the object might be contraband. Davis also contends that the search could not be justified by a showing of probable cause to search or indirectly through a search incident to an arrest premised on probable cause. He asserts that his arrest for the broken taillight was a pretext, and that Detective Williams used |fithis minor traffic violation as an excuse for reaching into his pocket and retrieving the object that was not a weapon. He further urges that the detective’s decision to search was based on unconfirmed information which might have given rise to reasonable suspicion, but not probable cause.

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving the admissibility of any evidence seized without a warrant. The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed unless the preponderance of the evidence clearly favors suppression.

VALIDITY OF THE STOP

Law enforcement officers are authorized to conduct investigatory stops, which allow officers to stop and interrogate a person who is reasonably suspected of criminal activity. “Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. Additionally, a violation of a traffic regulation provides reasonable suspicion to stop a vehicle. The Second Circuit has found that the initial stop of the suspects was proper after the officer observed that they violated a traffic violation by having a broken taillight on their vehicle.

| (iIn the instant case, Detective Williams observed that Davis violated a traffic law, in that he had a broken taillight on his vehicle. The Jefferson Parish Sheriffs Office arrest report and probable cause affidavit indicate that Davis was charged with a violation of La. R.S. 32:53, which statute requires proper equipment on vehicles.

Davis contends that the detective used the pretext of the broken taillight to justify a stop. Detective Williams admitted that, although he stopped the vehicle for a broken taillight, the stop was also based on the information he learned from the confidential informant. Police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Generally, the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred, and the standard is purely objective, without taking into consideration the subjective beliefs or expectations of the detaining officer. “Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.” The initial stop of Davis was proper.

VALIDITY OF PAT DOWN SEARCH

After a traffic stop, an officer may conduct a protective frisk of the person if he reasonably suspects he is in danger. It is recognized that there is a close association of weapons and narcotics trafficking.

[yDetective Williams testified that he was familiar with Davis because he had arrested him in the past, knew he had prior felony convictions, and knew there was an open investigation of Davis involving narcotics and weapons. Detective Williams further testified that Davis’ previous arrest would have led him to believe that weapons may have been involved, and that, in his experience, weapons might be present when large amounts of narcotics were involved. After Davis pulled into the parking lot, Detective Williams approached the vehicle and removed Davis for officer safety. He subsequently conducted a pat down of Davis’ outer clothing to determine whether he had weapons or contraband.

The evidence demonstrates that the detective possessed an objective and articula-ble basis for conducting a self-protective frisk of respondent. Thus, the protective frisk of Davis was lawful.

When an officer is conducting a pat down search, the “plain feel” exception allows the seizure of contraband where the incriminating character of the object is immediately apparent to the officer without any additional form of search or examination to identify it as contraband. During the pat down in the present case, Detective Williams felt a distinct rigid object in Davis’ front pocket, which he knew, from past experience, had been found to be crack cocaine. Because he knew that Cl# 2 had ordered two and a quarter ounces of crack cocaine from Davis, it was immediately apparent to him that the object was the crack cocaine that Cl# 2 had ordered from Davis. Under the plain feel exception to the warrant requirement, the evidence was validly seized.

^Accordingly, we find the trial court properly ruled the evidence should not be suppressed. This assignment is without merit.

AMOUNT OF COCAINE

Davis also contends that the trial judge erred by refusing to allow him to argue that the State failed to prove the amount of cocaine necessary for this conviction. He further urges that the trial judge erred by refusing to give an amended jury instruction regarding the definition of the crime, asserting that the instruction should have been given because the State did not prove the amount of pure cocaine in the substance that was analyzed.

The record shows that, at the jury charge conference, defense counsel requested that the trial judge amend the jury instruction regarding the definition of the crime to show that the State had to prove Davis not only knowingly and intentionally possessed cocaine, but that he knowingly and intentionally possessed 28 to 200 grams of cocaine. The trial court stated that it was not the intent of the legislature to require the State, through affirmative evidence, to present proof to satisfy the jury that Davis presumably weighed the substance and knew that it weighed 28 grams or more but under 200 grams. The court found this was not the applicable law and would not allow the instruction. Defense counsel was given the opportunity to proffer evidence for appellate purposes.

Defense counsel also requested that the trial judge allow him to argue to the jury as his defense the same fact, that the State had failed to prove, and that it had a responsibility and burden to prove, that Davis knowingly and intentionally possessed 28 to 200 grams of cocaine. The trial court denied the request for the same reasons he denied the jury charge.

The transcript indicates that the prosecution gave its closing argument, but defense counsel did not. After the jury retired to consider its verdict, defense 19counsel subsequently made a proffer for appellate purposes stating that his basis for the requested jury charge was LSA-R.S. 40:967(F)(l)(a). He argued that there was no evidence to indicate that Davis knowingly possessed any amount of cocaine or that he knew how much cocaine he possessed, and that this was his defense in the case. Because he would not argue to the jury something that would have placed him in contempt of court, he did not argue at all.

Davis did not argue in the trial court that the State did not prove the amount of pure cocaine found in the substance analyzed. A new basis for an objection may not be raised for the first time on appeal. Therefore, the assignment of error is limited to the grounds raised in the trial court.

The jury was instructed, in pertinent part, as follows:

The defendant is charged with possession of 28 grams or more but less than 200 grams of a controlled dangerous substance, to wit: Cocaine.
It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II....
It is unlawful for any person knowingly or intentionally to possess cocaine in the amount of 28 grams or more but less than 200 grams of Cocaine or of a mixture or substance containing a detectable amount of Cocaine or if its analogues as provided in Schedule 1(A)(4) of R.S. 40:964.
Thus, in order to convict the defendant of possession of 28 grams or more but less than 200 grams of a controlled dangerous substance, to wit, Cocaine, you must find:
1. That the defendant knowingly or intentionally possessed cocaine; and
2. That the amount of cocaine possessed was 28 grams or more but less than 200 grams.

1 inDavis argues that no attempt was made to determine how much cocaine was present in the substance and that he should have been charged with having an indeterminate amount of cocaine.

The failure to read a requested special jury charge constitutes reversible error only when there is prejudice to the substantial rights of the defendant or the violation of some constitutional or statutory right.

La.C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law applicable to each case. To support a conviction for possession of cocaine in violation of LSA-R.S. 40:967(F)(l)(c), the State must present evidence establishing beyond a reasonable doubt that: (1) the defendant was in possession of the drug; (2) the defendant knowingly and intentionally possessed it; and (3) the amount possessed was 400 grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964. Although Davis was convicted of a violation of La. R.S. 40:967(F)(l)(a), the elements of the crime are the same, except for the amount of cocaine, or mixture or substance containing a detectable amount of cocaine to be possessed.

The State proved that the substance containing cocaine weighed 60.68 grams. Under the facts of this case, the trial judge stated the applicable law and did not err by refusing to give the amended jury instruction, nor did it err by refusing to allow Davis to make such an argument to the jury.

This assignment of error is without merit.

|„ ERROR PATENT REVIEW

On our error patent review, we note the transcript reflects that, on October 10, 2007, the trial court fined Davis $50,000; however, the commitment is silent with regard to the fine. Second, the transcript reflects that, on October 10, 2007, the State filed a multiple bill alleging Davis to be a fourth felony offender, and Davis denied those allegations. The commitment does not reflect those actions were taken on that date. Third, the transcript reflects that, on December 11, 2008, the trial judge found Davis to be a fourth felony offender after a hearing; however, the commitment indicates that he pled “guilty” under La. R.S. 15:529.1 on count one. Although Davis stipulated on March 10, 2008, that he was the same individual who pled guilty to the offenses in the multiple bill, he objected to the form and content of his prior guilty pleas. Fourth, the commitments reflect that Davis was charged with “poss/witd cds over 28 grams — cocaine.” However, the bill of information shows that he was charged with possession of cocaine over 28 grams but under 200 grams.

We remand the case and order that the district court amend the commitments/minute entries to conform to the transcript and other parts of the record.

Further, the trial judge ordered Davis’ enhanced sentence be served without benefit of probation or suspension of sentence. The underlying statute, LSA-R.S. 40:967(G), provides that the imposition of sentence shall not be suspended, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F. La. R.S. 40:967(F)(l)(a) provides that any person who violates that subsection shall be sentenced to seiwe a term of imprisonment at hard labor of not less than five years, nor more than thirty years. 112Therefore, the trial judge erred by not ordering the enhanced sentence to be served without the benefit of parole for at least five years. Accordingly, we vacate Davis’ sentence and remand for re-sentencing in accordance with the underlying statute.

There are no other patent errors requiring correction.

For the foregoing reasons, the conviction is affirmed. The case is remanded to the trial court with instructions to amend the commitments/minute entries and to re-sentence Davis in accordance with this opinion.

AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

      . Teny v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . La.C.Cr.P. art. 703(D); State v. Parnell, 07-37 (La.App. 5 Cir. 5/15/07), 960 So.2d 1091, 1097, writ denied, 07-1417 (La.1/7/08), 973 So.2d 733.

      . State v. Parnell, supra.

      . La.C.Cr.P. art. 215.1; State v. Gray, 06-298 (La.App. 5 Cir. 10/31/06), 945 So.2d 798, 802, writ denied, 06-2958 (La.9/14/07), 963 So.2d 993.

      . Id.

      . Id.; See also, State v. Savoie, 09-103 (La.App. 5 Cir. 5/12/09) 15 So.3d 207.

      . State v. Cooper, 43,809 (La.App. 2 Cir.1/14/09), 2 So.3d 1172; See also, State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.2d 826.

      . State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764 (citing Whren v. United Slates, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879).

      . State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053; State v. Leonard, supra.

      . State v. Waters, supra.

      . La.C.Cr.P. art. 215.1(B); State v. Cowart, 03-880 (La.App. 5 Cir. 11/25/03), 862 So.2d 225.

      . State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568 (citing State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048).

      . State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 577 (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993)).

      . See, e.g., State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284; State v. Taylor, 06-558 (La.App. 5 Cir. 7/30/07), 966 So.2d 631, 640, writ denied, 07-1902 (La.2/1/08), 976 So.2d 717; State v. Kelley, 08-467 (La.App. 5 Cir. 1/27/09), 8 So.3d 684.

      . State v. Winfrey, 97-427, p. 23 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 77, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481.

      . State v. Winfrey, supra; State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, writ denied, 05-1195 (La.2/3/06), 922 So.2d 1169.

      . State v. Miller, 06-451 (La.App. 5 Cir. 10/31/06), 945 So.2d 773.

      . See, State v. Watson, 08-214, p. 13 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 787.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Carole A. FEIL, Marilyn R. Barry, and Judith Jaffe v. GREATER LAKESIDE CORPORATION, A Louisiana Corporation.
    No. 09-CA-441.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Harry S. Hardin, III, Judith V. Win-dhorst, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, L.L.P., New Orleans, LA, for Plaintiffs/Appellees.
    Charles L. Stern, Jr., Jacklyn C. Hill, Danielle C. Babashoff, The Steeg Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

|2P efen d ant/app ellant, Greater Lakeside Corporation, Inc. (“GLC”), appeals a judgment granting a writ of mandamus in favor of plaintiffs/appellees, Carole A. Feil, Marilyn R. Barry, and Judith Jaffe (referred to herein collectively as “the Feil plaintiffs”).

The Feil plaintiffs are sisters who each own 25 percent of the stock in GLC. Jeffrey Feil, their brother, owns the remaining 25 percent of the stock and selves as GLC’s president. In September 2008, the Feil plaintiffs made a written request to GLC for numerous records and documents, averring that, as shareholders, they were attempting to ascertain the value of the GLC stock. A Confidentiality Agreement was signed by the Feil plaintiffs and included in the request. Among the requests, was a specific demand for documents

relating to fees, salaries, commissions and/or dividends paid within the last five years by GLC or by any entity in which GLC holds an interest, direct or indirect, to Jeffrey Feil or to any entity of which Jeffrey Feil is an Affiliate |:1(i.e., any entity as to which Jeffrey Feil possesses, directly or indirectly, the power to direct or cause the direction of its management and policies, whether through the ownership of voting securities, by contract, or otherwise).

In response to that particular request, GLC answered that

La. R.S. 12:103 authorizes the inspection of particular records of the corporation in which the shareholder owns stock, not records of other entities in which that corporation in turn may hold some interest ... we are producing certain accounting records of GLC, but we are not producing, nor do we believe that we are required to produce, records of other companies or entities.

Certain of the items demanded were, in fact, disclosed. In December of 2008, the Feil plaintiffs filed a supplemental written demand for documents that had not already been released, plus additional documents “the need for which became clear as a result of a review of the First Documents.” The supplemental demand explained that their accountants had advised that it was necessary for them to review all documents in order to formulate an opinion as to the value of their stock.

Our clients’ inspection of the First Documents revealed that the Company is a holding company. It has no significant operating assets other than the interests it owns in other limited liability companies and partnerships, each of which is apparently an operating entity that owns the entirety of a particular real estate property. Unless our clients can inspect the books and records of those underlying operating entities, they will have no means of obtaining the information necessary to enable them to determine the value of their stock in the Company, because that value depends entirely upon the value of the underlying owned entities ... the Company’s [assets] consist almost entirely of ownership interests in operating subsidiaries.

Regarding document request involving Jeffrey Feil, the supplemental demand stated:

Mr. Feil enjoys sole operating control of the Company. Our clients do not have knowledge of all financial transactions or arrangements between Mr. Feil (or his | ¿affiliates) and the Company. If such arrangements were to include, for example, periodic payments by the Company to an affiliate of Mr. Feil in amounts that exceeded the value of the services performed by the Feil affiliate, those arrangements could have a material adverse effect on the value of the stock of the Company, as reflected in its financial statements. Our clients’ request for documents relating to transactions and arrangements of this type is well within the scope of their inspection rights under R.S. 12:103.

Dissatisfied with GLC’s response, in January of 2009 the Feil plaintiffs filed a Petition for Writ of Mandamus for Access to Corporate Records, alleging that GLC had not fully complied with their requests for financial information. Citing La. R.S. 12:103, the Feil plaintiffs contended that they had the right to inspect corporate records, listing numerous documents including, for purposes of this appeal, documents related to entities “in which GLC holds an interest, direct or indirect....” The Feil plaintiffs requested the writ be determined in a summary proceeding. GLC answered the petition, averring that the Feil plaintiffs lacked a “proper and reasonable purpose” for the request, and that it had already produced all corporate records to which the Feil plaintiffs were entitled. GLC also urged that a number of specific documents encompassed records of corporations and legal entities other than its own. Following a hearing, the trial court granted the mandamus without reasons. GLC filed this timely appeal.

At the hearing, Elliott A. Lesser (“Mr. Lesser”), qualified as an expert witness, testified as a Certified Public Accountant. The Feil plaintiffs had asked him to compile a document request so that their respective interests in GLC could be determined. There were twenty-six companies and partnerships in which GLC owned an interest. The percentage of interest varied from company to company. The net value of the ownership interests in 2003 was given for thirteen of the companies, but the net value of the investments for 2007 was unknown for all |stwenty-six entities. Mr. Lesser testified that related party transactions could have an impact on value, depending upon the reasonableness of the matters involved. For example, there could be payments or fees paid to related parties which are not typically at arms length. It would be necessary to know if such payments were reasonable in relation to services rendered, and such information would ultimately impact the value of the property. Similarly, there might be loans or guarantees that would impact the value of the individual entities in which GLC has an interest.

Darrell Longo (“Mr. Longo”), controller of GLC, testified that GLC is a holding company that invests in entities that own real estate, receives distributions from those investments, and also manages and does accounting for some properties that it owns. GLC also manages some properties that it does not own. GLC’s financial statements are generated by a New York management company; however, the accounting staff in Metairie prepares monthly financial statements in order to monitor GLC’s interests in other companies as well as monitoring its own assets. This includes creating ledgers, bank reconciliations, and billings for entities in which GLC owns an interest. GLC creates and maintains monthly folders for each of these entities (except for about six companies) and has records dating to 2002. The documents for the owned entities other than GLC were not produced. With regard to the non-owned properties, GLC bills for management services, and these records are maintained separately.

On appeal, GLC urges that the trial court misconstrued La. R.S. 12:103(D)(l)(a) by requiring GLC to produce not only its own records, but also records of other wholly separate entities in which it owns an interest; that is, a broad range of documents extending far beyond the company’s records and accounts.

| fiIn Louisiana, shareholders’ inspection rights derive chiefly from the provisions of the Louisiana Business Corporation Law. Principally, La. R.S. 12:103 states:

§ 103. Corporate records; right of shareholder to inspect
A. Every corporation shall keep at its registered office or at its principal place of business in or outside of this state:
(1) Books and accounts showing the amounts of its assets and liabilities, receipts and disbursements, and gains and losses; and
(2) Records of the proceedings of the shareholders, of the directors, and of committees of the board.
B. Every corporation shall keep at its registered office, or at its principal place of business or at the office of a transfer agent in or outside of this state, a share register, or a stock certificate record, giving the names of the shareholders, and showing their respective addresses, as and if furnished by each shareholder, the number and classes of shares held by each, and the dates on which the certificates were issued.
C. If the records required by subsections A and B of this section are not kept at the registered office, information as to their location shall be made available at the registered office. Such records may be in written form or in any other form capable of being converted into written form within a reasonable time.
D. (l)(a) Upon at least five days’ written notice any shareholder, except a business competitor, who is and has been the holder of record of at least five percent of the outstanding shares of any class of a corporation for at least six months shall have the right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the records and accounts of the corporation and to make extracts therefrom.
(b) Two or more shareholders, each of whom has been a holder of record of shares for the period aforesaid and whose aggregate holdings equal the percentage aforesaid, may join in such request and jointly exercise these rights.
|7(c) Holders of voting trust certificates representing shares of the corporation shall be regarded as shareholders for the purposes of this Section.
(2) In case of stock held or acquired by, or held by or through an interposed person for, a business competitor or a person who owns stock or is otherwise interested in a corporation that is a business competitor, he or it must own not less than twenty-five percent of all outstanding shares of the corporation for a period of six months before he or it may demand the rights and privileges as set forth in this Subsection.
(3) Nothing contained in this Subsection shall impair the power of the court:
(a) To deny the right of inspection as to confidential matters; or
(b) To order the production of documents pursuant to and subject to the limitations of applicable provisions of the Code of Civil Procedure.
E.Subject to such restrictions or qualifications as may be stated in the articles or by-laws, or in a resolution of shareholders adopted by a majority of the voting power present, a corporation may confer upon the holders of bonds, debentures or other obligations of the corporation, the right of inspection of records and accounts, and any other rights which the shareholders of the corporation may have.

In support of its position, G.LC cites Matherne v. Heffron. In that case, the First Circuit examined the intent of the statute to determine which corporate records are subject to examination by the requesting shareholder and held that the shareholder was entitled to examine the general ledger; cash journal of all receipts and deposits; cash journal of all disbursements showing the individual or corporation to whom funds were disbursed and the amount of disbursement; each unaudited quarterly financial statement of the corporation reflecting revenues, their sources, and expenses; audited financial statements; records of all proceedings of | ^shareholders, directors and committees of the board including minutes, share register book, and all corporate records; and State and Federal tax returns. Under the facts of that case, the court rejected the shareholder’s request to examine the originals of every cancelled check, deposit slip, or invoice of the corporation.

The Feil plaintiffs refers us to Ales v. Seivell for the proposition that the statute is more far reaching than the documents specifically described in Matheme and permits inspection of the documents it seeks.

By definition, a holding company is a company formed to control other companies, usually confining its role to owning stock and supervising management. According to Mr. Longo, GLC is a holding company investing in entities that own real estate. GLC receives distributions from those investments, as well as manages and does accounting for some of the owned properties. “Assets” means all of a corporation’s property and rights of every kind.

From the record, it appears that GLC’s investments are its principal assets. Mr. Lesser testified how transactions between related companies could impact the value of the individual entities in which GLC has an interest and how information regarding these transactions is necessary to value the Feil plaintiffs’ interests.

Matheme discussed certain documents to which the plaintiff was entitled under La. R..S. 12:103, denying the plaintiff access to the originals of every cancelled check, deposit slip, or invoice of the corporation as unreasonable and unjustified by the record. The Matheme court then listed those documents to which the plaintiff was entitled under the facts of that case. We find the holding of Matheme is too narrow to be dispositive of the present matter. Under the statute, |athe shareholder is entitled to inspect any and all of the records and accounts of the company. The right to inspect should extend to all relevant records necessary to inform the shareholder about corporate matters in which he has a valid interest.' We agree with the Fourth Circuit that the scope of the shareholder’s inspection right under the statute is more wide-reaching. Depending on the action before it, the court may order broader access by the production of documents pursuant to, and subject to, the limitations of applicable provisions of the Code of Civil Procedure. As in Matheme, the court may limit requests for indiscriminate or blanket inspection of documents that it considers to be “fishing expeditions.” In other words, the scope of inspection is determined by the “proper and reasonable purpose” for which it is sought.

The matter before us is somewhat atypical in that the Feil plaintiffs are united in requesting information from this closely held corporation, of which they hold a combined 75 percent interest. Although it has been alleged that Jeffrey Feil has sole operating control of the company, we do not have the Articles of Incorporation, contracts, or other corporate documents regarding the management provisions, or any corporate resolutions relative to the Board of Directors, the Feil plaintiffs’ voting powers, Jeffrey Feil’s authority, etc. Under these circumstances, there is some question of GLC’s authority to challenge the right of the majority of stockholders to the information.

The Feil plaintiffs have an inarguably legitímate interest in the worth of GLC. The value of GLC must of necessity include valuations of the companies in which it owns an interest. Thus, the records generated and maintained by GLC related to its assets, consisting of investments in other companies, must be made available to the Feil plaintiffs. We further note that GLC, in turn, has the right |Tnunder La. R.S. 12:103 to request certain records of the companies in which it has at least a 5 percent interest, in order to evaluate its investments.

Under the circumstances, and considering that this is a closely held corporation, records relating to management and accounting performed by GLC or Jeffrey Feil for other corporations in which GLC has less than a 5 percent interest (or no interest whatsoever) and which accounts are kept by GLC should also be made available. The record indicates that the Feil plaintiffs are attempting to ascertain whether or not there exists any conflict of interest between Jeffrey Feil’s transactions with other corporations as they may pertain to GLC. To the extent that Jeffrey Feil has sole operating control, he owes a fiduciary duty to GLC. Any such transaction must be in good faith, negotiated and confected at arms length. The fiduciary cannot take advantage of his position for his personal benefit to the detriment of the corporation or its shareholders. This is a proper and reasonable purpose for disclosure.

In summary, the Feil plaintiffs are entitled to the records generated, maintained, and possessed by GLC as to all companies in which it has ownership interest, or in which it performs accounting and management functions. However, the judgment of the trial court granted the writ as to all the documents outlined in the petition. In that petition, certain things are requested from entities “in which GLC holds an interest, direct or indirect ...” and also asks for “all documents relating to” certain transactions. The phrases “all documents” and “indirect interest” are overbroad and render the scope of the mandamus somewhat ambiguous.

luFor the foregoing reasons, the judgment of the trial court granting the writ of mandamus is affirmed. The matter is remanded to the trial court for clarification, including any necessary amendment in accordance with this opinion.

AFFIRMED IN PART; REMANDED FOR CLARIFICATION IN ACCORDANCE WITH THIS OPINION.

      . 496 So.2d 446, 448 (La.App. 1 Cir.1986).

      . 00-2017 (La.App. 4 Cir. 10/17/01), 800 So.2d 36.

      . Black’s Law Dictionary (8th ed.2004).

      . La. R.S. 12:1 (D).

      . See, Ales v. Sewell, supra.

      . Spruiell v. Ludwig, 568 So.2d 133, 141 (La.App. 5 Cir.1990), writ denied, 573 So.2d 1117 (La.1991).

      . Id.


author: CARAWAY, J.

text:
    Mary GRAHAM, Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 44,994-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      James D. Caldwell, Shreveport, for Appellant.
    Casten & Pearce, A.P.L.C., by Theodore J. Casten, Shreveport, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   CARAWAY, J.

[ pedestrian filed suit against the City of Shreveport for damages for personal injuries she sustained when she tripped and fell on an uneven concrete sidewalk. Finding that the plaintiff failed to prove that the defendant had prior knowledge or constructive notice of the sidewalk’s condition, the trial court granted judgment in favor of the City of Shreveport. Finding no manifest error in the trial court’s judgment, we affirm.

Facts

On June 23, 2001, at approximately 12:30 in the afternoon, Mary Graham, who was 65 years of age at the time, tripped and fell on an uneven portion of a sidewalk located at the 1400 block of Claiborne Avenue in Shreveport, Louisiana. Graham, who had just visited her aunt in a nearby nursing home, was traversing the sidewalk on her way to her sister’s house when she fell. Graham testified that prior to the accident, she had never been on this particular sidewalk and that at the time of the accident, adjacent trees were casting shadows across the sidewalk, making the elevated concrete difficult to see by a pedestrian.

No one witnessed Graham’s fall. Her sister, who was driving by, later found her lying on the sidewalk, unable to get up on her own. Later in the evening, Graham went to the emergency room, complaining of pain in her left wrist. X-rays were taken and interpreted as normal. Graham was diagnosed with a wrist sprain, placed in a splint, and released from the hospital that same night.

| ¡¡The day after the accident, a relative of Graham’s went back to the scene of the fall and took several photographs. These photographs, later admitted into evidence, revealed a lift at a joint between two concrete slabs forming the part of the sidewalk where the accident occurred. Graham contends that the roots of nearby trees underneath the sidewalk caused the concrete to elevate over time.

On June 21, 2002, Graham instituted suit for her injuries resulting from the sidewalk accident, alleging negligence and fault on the part of the City of Shreveport (the “City”), including failure to properly inspect and maintain the sidewalk. The bench trial occurred in February 2009.

James Holt, who was the deputy director for the City’s Office of Public Works at the time of the accident, testified at trial. Holt managed five divisions within the Office of Public Works, including streets and drainage, the division responsible for the construction, maintenance and cleaning of sidewalks in Shreveport. Holt’s testimony revealed that there is no program for routine inspection of sidewalks. Instead, sidewalk repairs are instituted only in response to complaints the City receives. The City utilizes the Citizen Contact and Response (CCAR) computer program, which records a complaint, assigns the complaint a number and tracks the progress of repairs. The CCAR program has been in existence since the |,.¡early 1990s. The testimony of Cassandra Singleton, the custodian of records for the Department of Public Works for the City of Shreveport, stipulated to at trial, revealed that a CCAR records search was instituted after Graham’s fall. The results of this indicated no prior notice, complaints, or requests for sidewalk repair in the 1400 block of Claiborne Avenue.

With respect to the condition of the sidewalk, Holt further testified that once a lift exceeds one-half inch it becomes a tripping hazard. Holt personally went out to inspect the sidewalk where Graham allegedly tripped. His inspection revealed two lifts in the sidewalk, both of which presented tripping hazards. He immediately prepared a work order and the sidewalk was repaired.

After a review of the evidence and witnesses’ testimony, the trial court ruled in favor of the City, dismissing plaintiffs claims at her costs. In its ruling, the trial court stated that “the City of Shreveport did not have any actual or constructive knowledge of any defect at the location prior to Mrs. Graham’s fall.” It further noted that medical causation remained at issue in light of other falls which the plaintiff experienced in 2001.

Discussion

Graham’s claim against the City for damages allegedly resulting from a vice or defect in the sidewalk is rooted in Louisiana Civil Code Articles 1,2317 and 2317.1. More specifically, the special statute for public entities which parallels Article 2317.1 is La. R.S. 9:2800. These provisions establish a duty of care over the property owned by the defendant or property in his custody. Under these provisions, the City, as the owner of a public right of use over the sidewalk, has the duty to ensure the public’s use and possession of the sidewalk. However, “a municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. To render it liable in damages, the defect complained of must be dangerous or calculated to cause injury.” Boyle v. Board of Sup’rs of Louisiana State Univ. and Agric. & Mechanical College, 96-1158 (La.1/14/97), 685 So.2d 1080. Moreover, under La. R.S. 9:2800 the City cannot be liable for damages resulting from a defective condition without proof that it had actual or ^constructive knowledge prior to the occurrence of the particular vice or defect which caused the damage, and that the city had a reasonable opportunity to remedy the defect but failed to do so. La. R.S. 9:2800 B; Campbell v. Louisiana Dept. of Transp. and Dev., 94-1052 (La.1/17/95), 648 So.2d 898.

In Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216, the Louisiana Supreme Court rejected this court’s prior view that the lack of an ongoing inspection plan for a municipality’s public properties may establish constructive knowledge so as to allow for liability under La. R.S. 9:2800. The court ruled:

After considering the foregoing opinions, we find we cannot agree with the second circuit’s position that lack of a plan constitutes constructive knowledge of the defect. The definitions of actual and constructive knowledge are facially incompatible with the implication of knowledge from a lack of a plan to inspect. Actual knowledge has been defined as “knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities.” See, e.g, Fragala v. City of Rayville, 557 So.2d 1118 (La.App. 2 Cir.1990); Boddie v. State, 27,313 (La.App. 2 Cir. 9/27/95), 661 So.2d 617; Purolator Courier Corp. v. City of New Orleans, 93-1068 (La.App. 4 Cir.1994), 635 So.2d 1232. Constructive knowledge is defined by La. R.S. 9:2800 as the existence of facts that infer actual knowledge. The absence of a plan of inspection in no way shows or implies that an employee of the appropriate public entity has actual knowledge of a dangerous defect or condition. Indeed, quite the opposite is true; in the absence of other facts, such as recorded complaints about a defect, lack of a plan implies that employees of the public entity have no actual knowledge of dangerous defects or conditions. Thus, a holding that lack of a plan infers knowledge effectively eviscerates the notice requirement of La. R.S. 9:2800.

| cJd. at 220. The court also held that the municipality’s duty to use reasonable care in the maintenance of its public property does not encompass periodic inspection of such property.

A review of the Jones v. Hawkins ruling nevertheless shows that the court did not reject prior cases involving sidewalk or roadway defects in which liability was found because of the great length of time that the defects had existed. This temporal inquiry surrounding the existence of the defect can establish circumstantially constructive notice to a public entity when the defect is shown to have existed for such a length of time that the public entity should have discovered the defect with the exercise of reasonable care. While this is not the same as a duty to make periodic inspections, which the court rejected, the length of time that an obvious sidewalk defect exists can result in a reasonable conclusion of the municipality’s constructive knowledge.

Additionally, it must be recognized that in the other important ruling of our Supreme Court, in Boyle, supra, a clearly visible sidewalk defect had existed for several years. Nevertheless, the court determined that the uneven sidewalk did not present an unreasonable risk of harm. Discussing the Boyle ruling in Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, we said:

Thus, in Boyle, under the risk-utility balancing test with an openly apparent irregularity being an undisputed fact, our highest court overruled the trier-of-fact and determined on policy grounds that not every visible and discoverable irregularity in a sidewalk results in the imposition of fault. With the issues of constructive notice and unreasonable risk of harm clearly intertwined in the Boyle ruling for visible irregularities in sidewalks, the court partially justified its | conclusion of no liability by stating that “the fact that the first accident did not occur during the defect’s existence of several years while heavy traffic provided the exposure, is a factor to be taken into consideration along with the size of the defect, in determining the relative risk of injury.”

Id. at 896.

Graham first argues that a de novo review of the record is warranted as a result of the misapplication of the legal standard required under La. R.S. 9:2800 by the trial court. She claims that the trial court only examined whether or not the City had actual knowledge of the defect, not whether or not it had constructive notice. This argument lacks merit. As quoted above, the court’s written ruling provides ample evidence that the court took appropriate consideration of the correct legal standard under the statute.

Accordingly, the district court’s findings pursuant to La. R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Johnson v. City of Winnfield, 37,939 (La.App. 2d Cir.12/10/03), 862 So.2d 433. Under this standard, the appellate court will review the entire record to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev’t., 617 So.2d 880 (La.1993). In order to reverse, the appellate court must find that a reasonable basis does not exist for the finding of the trial court and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

From the above guidance of the Jones and Boyle rulings, we agree with the trial court’s conclusion that the record does not support a finding of the City’s negligence in this case. With no evidence of the City’s actual | ^knowledge of the problem, there is also no significant circumstantial basis for a determination of constructive notice. The tree shown in the photos of the accident scene was some distance from the raised joint between the concrete slabs on which Graham tripped. Thus, there is no clear inference that the growth of the tree over a lengthy time period had gradually caused the defect. Other than the photos of the accident site, Graham presented no other evidence concerning the length of time that the problem existed.

Moreover, as in the Boyle case, the raised portion of the slab was less than two inches. While the City admits that this presents a trip hazard, the same trip hazard existed in Boyle. Nevertheless, Boyle’s risk-utility balancing test determined that the trip hazard did not present an unreasonable risk of harm, which is the legal standard for the determination of a defect in the property. That ruling was made concerning a sidewalk on the LSU campus where heavy pedestrian traffic occurred. Here, the sidewalk in question runs in front of residential homes where pedestrian traffic would be considerably less. Thus, the inevitable problem of uneven joints between the concrete slabs of sidewalks according to Boyle does not present an unreasonable risk of harm in every case. Such question of the existence of an unreasonable risk of harm in this case therefore further supports the trial court’s conclusion regarding the City’s lack of constructive notice.

| aConclusion

For the above reasons, the ruling of the trial court is affirmed. Costs of this appeal are assessed to appellant.

AFFIRMED.

      . In October 2002, the City filed a motion for summary judgment arguing diat under a Shreveport City Ordinance the responsibility of maintaining the sidewalk fell to the abutting property owner, not the City. The trial court granted the City's motion, concluding that as a matter of law, the City had no duty to maintain the sidewalk and therefore it was not liable for plaintiff's injuries. In Graham v. City of Shreveport, 38,953 (La.App. 2d Cir.9/22/04), 882 So.2d 718, writ denied, 04-2463 (La. 1/07/05), 891 So.2d 685, the trial court's ruling was reversed, reasoning that the ordinance simply established the legal relationship between the city and the adjoining property owner. It did not confer tort liability on adjoining property owners unless that property owner actually created or caused the defect involved.

      . Art. 2317. Acts of others and of things in custody
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . Art. 2317.1. Damage caused by ruin, vice, or defect in things
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

      .La. R.S. 9:2800 dealing with the limitation of liability for public bodies, provides in pertinent part, as follows:
      A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
      B. Where other constructions are placed upon slate property by someone other than tlie state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state's benefit and use.
      C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
      D. Constructive notice shall mean the existence of facts which infer actual knowledge,

      . The photo of the raised joint with a measuring tape beside it shows that at the very edge of the joint next to the adjoining lawn, the slab was raised two inches. However, the slab was raised at an angle so that the trip hazard was much less in the middle of the sidewalk.


author: MOORE, J.

text:
    Angelique Latrice Pearson BROWN, Plaintiff-Appellee v. Jeams O’Dell BROWN, Defendant-Appellant.
    No. 44,989-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Anita Tennant-Mack, for Appellant.
    Anselm N. Nwokorie, Brian G. Smith, Shreveport, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

1, Pursuant to Jeams Brown’s motion for a reduction or termination of interim spousal support and Angelique Brown’s rule for contempt in this divorce action, a hearing was held on January 28, 2009. By judgment in chambers on April 23, 2009, and signed on May 27, 2009, the court rendered judgment ordering Mr. Brown to pay $500 monthly interim spousal support, thereby denying the motions to reduce or terminate the $500 spousal support previously fixed by interim order. The court also held that Mr. Brown was currently in arrears for payment of interim support, fixed the arrearage at $7,000, and held Mr. Brown in contempt for failing to pay a $2,500 arrearage previously ordered by the court. It imposed a sentence of 90 days in the Ouachita Parish Jail with execution of sentence suspended pending Mr. Brown’s performance of the support obligations and payment of the arrearage at a rate of $500 per month in addition to the support obligation. Additionally, Mr. Brown was cast in judgment for all costs and $1,200 in attorney fees. Mr. Brown appealed. For the following reasons, we affirm.

The sole issue in this appeal is whether the trial court abused its discretion in awarding Angelique Brown $500 per month interim support. Brown contends that the trial court erred in awarding interim spousal support and fixing the amount of support at $500; the trial court erred by not making a finding of fault before awarding her interim spousal support; and, the trial court erred when it included consideration of Mr. Brown’s separate property in determining his ability to pay when only the proceeds from his rental property were used during the marriage.

| .FACTS

Angelique and Jeams Brown were married on May 3, 1997. The couple had five children, one of whom perished in a house fire. Angelique Brown filed this petition for divorce pursuant to La. C.C. art. 102 on October 17, 2006. Mr. Brown filed an answer and reconventional demand seeking sole custody of the children and recognition of a prenuptial separate property agreement. The record does not show that a rule or motion to obtain a final divorce judgment has ever been filed, or that a divorce judgment has been rendered.

The court subsequently issued a hearing officer conference (“H.O.C.”) order because of several disputed issues between the parties. In the first H.O.C. report, hearing officer Lisa Rogers Trammell reported that Mr. Brown verbally stated that he made a profit of approximately $30,000 per year ($2,500 per month) from his rental properties. He supplied no documentation, but said that he was reconstructing his business records with H & R Block. These records were allegedly lost in a fire.

The hearing officer reported that Jeams said his living expenses were approximately $1,575 per month, leaving him a surplus of approximately $1,000 per month. By comparison, Angelique’s monthly living expenses were determined to be $1,640 per month. She was unemployed at the time. The hearing officer concluded that Jeams should pay Angelique $500 per month in interim support. Jeams filed an objection to the award.

A second H.O.C. was held on November 27, 2006, to review, inter alia, Jeams’s financial documentation. The report notes that Jeams supplied |3only an income tax return from 2005 showing an income of $8,259 from three rental houses, although counsel advised that he owned 14 houses, of which four were currently rented. The hearing officer determined to continue using $30,000 as a reasonable income figure for Jeams, and recommended no changes in the interim support award. • The court adopted the these recommendation as its interim order dated December 5, 2006.

On February 13, 2007, Angelique filed a rule for contempt of court for failing to make the monthly payments and other violations of the interim order. The rule alleged that Jeams was in arrears for over $2,000. After a hearing before the court on March 26, 2007, the court rendered judgment on May 2, 2007, finding that Mr. Brown was not in contempt of court, but the court found him to be $2,500 in arrears and ordered him to pay $500 per month interim support.

Mr. Brown filed a motion to reduce interim spousal support and to terminate interim spousal support on May 16, 2008, and an objection to the H.O.C. report on May 21, 2008, wherein he disagreed with, inter alia, the recommendation that he be ordered to pay spousal support and the amount of support to be paid. The court, however, issued an interim order adopting the May 16, 2008, hearing officer recommendations on June 2, 2008.

Angelique filed a second rule for contempt on November 19, 2008, again alleging that Mr. Brown was not paying the court-ordered spousal support. An evi-dentiary hearing on the matter of interim spousal support was set and heard on January 28, 2009. It is this ruling that is the subject of Mr. Brown’s appeal.

| ¿DISCUSSION

By his first assignment of error, Mr. Brown contends that the trial court erred in finding that he should pay $500 monthly in interim support based upon a determination that he made $30,000 per year income. Mr. Brown’s other two assignments, ie., that the court should have determined fault before awarding interim support, and that the court erred by looking to his separate property as a “means” by which he is able to pay interim support, also pertain to the finding that Mr. Brown is responsible for interim spousal support fixed at $500 per month.

The statutory grounds for interim spousal support are La. C.C. arts. Ill and 113. Loftice v. Loftice, 2007-1741 (La.App. 1 Cir. 3/26/08), 985 So.2d 204.

In a proceeding for divorce, the court may award an interim periodic support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. arts. Ill and 113; Kirkpatrick v. Kirkpatrick, 41,851 (La.App. 2 Cir. 1/24/07), 948 So.2d 390. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Id.; Hitchens v. Hitchens, 38,339 (La.App. 2 Cir. 5/12/04), 873 So.2d 882, citing Defatta v. Defatta, 32,636, 32,637 (La.App. 2 Cir.2/1/00), 750 So.2d 503, and Reeves v. Reeves, 36,259 (La.App. 2 Cir. 7/24/02), 823 So.2d 1023. A spouse’s right to | sclaim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage and thus provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85; Kirkpatrick, supra. The needs of the wife have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay. Kirkpatrick, supra.

In order to demonstrate need for interim periodic spousal support, the claiming spouse has the burden of proving that he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the marriage. Kirkpatrick, supra; Clark v. Clark, 84,314 (La.App. 2 Cir. 11/1/00), 779 So.2d 822, writ denied, 00-3196 (La.1/12/01), 781 So.2d 563, citing Thomey v. Thomey, 33,000 (La.App. 2 Cir. 4/7/00), 756 So.2d 698.

Once the claimant spouse has established need, the court must examine the ability of the payor spouse to provide support. Loftice v. Loftice, supra. If the needs of the claimant spouse surpass the ability of the other spouse to pay, interim spousal support should be fixed at a sum that will as nearly as possible be just and fair to all parties involved. Id.

In assessing a spouse’s ability to pay, the court must consider his or her means. “Means” includes any resource from which the wants of life may be supplied, requiring an assessment of the entire financial condition of the payor spouse. Kirkpatrick, supra; Loftice, supra. “Entire financial [(¡condition” is not limited to income, but also includes any resource from which his or her needs can be supplied, including income from labor or services performed, physical property, income from such property, and a spouse’s earning capacity. See Kirkpatrick, supra; Loftice, supra.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Kirkpatrick, supra,. An abuse of discretion will not be found if the record supports the trial court’s conclusions about the needs of the claimant spouse or the means of the payor spouse and his or her ability to pay. Kirkpatrick, supra; Clark, supra; Thomey, supra.

We find no error or abuse of discretion in the award and amount of interim spousal suppoi't. First, Angelique clearly established her need for interim support, inasmuch as she is unemployed. Although Mr. Brown has consistently insisted that he cannot afford to pay spousal support, we agree with the findings of the hearing officer and the trial court that he has sufficient means to make the required payments. Importantly, Brown has never provided any business records, claiming they were destroyed in a house fire. He has provided only an income tax return showing an income of a little over $8,000 and a list of expenses he has incurred over a two-year period.

The record, however, shows Mr. Brown owns a substantial number of houses (somewhere between 9 and 14) and other immovable property. He apparently receives income through renting the houses he owns, as well as 17timber sales. He has also recently received cash for some FEMA claims for hurricane damage, although he insists this money was used to make repairs on the property. Simply stated, Mr. Brown has not adequately submitted proof of his actual income and assets. Accordingly, this assignment is without merit.

By his second assignment of error, Mr. Brown contends that the trial court erred by not making a finding of fault before awarding interim spousal support.

There is no requirement in the Civil Code or our jurisprudence that the court must make a determination of fault prior to awarding interim spousal support. Interim support is based solely on the need of the claimant, the non-claimant’s ability to pay, and the standard of living enjoyed during the marriage. La. C.C. art. 113. See, e.g., Skannal v. Skannal, 25,467 (La.App. 2 Cir. 1/19/94), 631 So.2d 558, unit denied, 94-0697 (La.5/13/94), 637 So.2d 1067 (alimony pendente lite does not depend on the merits of the divorce suit and the obligation to pay alimony pendente lite does not terminate until the divorce is final; the support obligation continues even if the issue of fault, and not the judgment of divorce, is appealed). The duty to pay interim spousal support arises out of the mutual duty of support married persons owe each other. La. C.C. art. 98; Kirkpatrick, supra.

Finally, Mr. Brown contends that the trial court erred in considering his separate property in determining his ability to pay interim support, since the couple used only his rental income during the marriage. We also observe that there is a prenuptial agreement in the record executed by the [ 8couple prior to the marriage in which they renounced the community of acquets and gains provided for in the La. Civil Code. They also declare that they are going to live under a separate property regime and renounce “alimony pendente lite.”

First, the agreement to renounce alimony pendente lite is null and void. The Louisiana Supreme Court held in Holliday v. Holliday, 358 So.2d 618, 620 (La.1978), that prenuptial agreements in which a spouse waives his or her right to alimony pendente lite in the event of separation are null and void as against public policy. Alimony pendente lite, of course, is now called interim spousal support. Loftice, supra.

Regarding the trial court’s consideration of the equity in his rental properties and other separate assets in determining Mr. Brown’s ability to pay interim support, we noted above that the means of the payor spouse includes any resource from which the wants of life may be supplied, which requires an assessment of the entire financial condition of the payor spouse. Kirkpatrick, supra; Loftice, supra. This includes any resource from which his or her needs can be supplied, including income from labor or services performed, physical property, income from such property, and a spouse’s earning capacity. See Kirkpatrick, supra; Loftice stipra. During marriage, a spouse lacking sufficient income for maintenance is entitled to interim support regardless of whether the property regime is community or separate, and one cannot contract out of owing interim support. Vincent v. Vincent, 2005-1175 (La.App. 4 Cir. 1/10/07), 949 So.2d 535, writ denied, 2007-0608 (La.5/4/07), 956 So.2d 621.

| ^Mr. Brown also claims that the hearing officer looked only at his income (and incorrectly determined it to be $30,000 per year) and failed to consider the other two elements, i.e., the needs of Angelique and the standard of living she enjoyed during the marriage. He argues that because Angelique took all the furnishings and appliances from one of the houses that was not totally destroyed by fire, and because he has sole custody of the children right now, she does not need and is not entitled to support. He also contends that Angelique testified that the living conditions during the marriage were deplorable. Accordingly, he argues that Angelique is entitled only to be kept in poverty and deplorable conditions, obviating the need for interim support.

This argument hardly merits consideration. The fact that Mr. Brown has custody of the children is of no consequence in determining the issue of interim spousal support. Nor does the allegation that Angelique took furnishings and appliances from one of the houses have any bearing on the question of spousal support. Finally, we note that “living conditions” are not necessarily indicative of the standard of living one enjoys during a marriage. The fact that the standard of living might have been poor is not a ground to avoid the duty of spousal support.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Terry SMITH, Individually and F & S EMT, Inc. Plaintiff-Appellant, v. RICHLAND PARISH POLICE JURY, Defendant-Appellee.
    No. 44,951-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Theodore J. Coenen, IV, Theo J. Goe-nen, III, Rayville, for Appellant.
    David P. Doughty, Rayville, for Appel-lee.
    Before BROWN, STEWART and CARAWAY, JJ.
   CARAWAY, J.

|tAn unsuccessful bidder sought an injunction against a parish police jury seeking to stop the award of a gravel hauling contract to another bidder on the grounds that the bidding process violated the public works law. The police jury reconvened for a declaratory judgment and filed exceptions to the petition for injunction. The trial court rendered declaratory judgment upholding the action of the police jury and granted both exceptions. The unsuccessful bidder appeals. Finding that the peremptory exception of no cause of action applies to all claims against the police jury, we affirm the dismissal of plaintiffs claims and find the declaratory judgment moot.

Facts

The Richland Parish Police Jury (“Police Jury”) advertised for public bids for a contract for the hauling of gravel. In relevant part, the advertisement read as follows:

Separate sealed bids for furnishing the following materials for a period of one (1) year, effective January 1, 2009, through December 31, 2009, will be received by the Richland Parish Police Jury, Fourth Floor, Courthouse Building, Rayville LA, Until 6:00 P.M. (Local Time), Monday December 01,' 2008. Bids will be opened and publicly read aloud during the regularly scheduled Police Jury meeting to be held December 01, 2008, beginning at 6:00 P.M.
The Richland Parish Police Jury reserves the right to waive any and/or all informalities and accept or reject any or all bids.

F & S EMT, Inc., through its president, Terry Smith (hereinafter “Smith”), submitted a bid in response to the advertisement. The bid contained the following notation: “Fuel surcharges will be applied according to the inflation of fuel cost.”

|gAt the scheduled December 1, 2008 meeting, four bids were received and opened for the 2009 gravel hauling contract. The bids included Smith’s, on behalf of F & S, EMT, Inc., and a bid by Larry Harris (“Harris”), on behalf of Delhi Dump Truck, LLC (“DDT”).

The time of Harris’s submission of the DDT bid became the focus of dispute prompting this litigation. Harris claims that he was present at the meeting at 6:00 p.m. with the bid in hand and turned the bid in to the Police Jury on or before 6:00 p.m. by placing an unstamped and unidentified envelope on the police jury table prior to the beginning of the meeting. Conflicting versions of the event suggest that Harris placed the bid on the jury table just prior to the time that the bids were called, opened and publicly read at approximately 8:30 p.m. The parties agree that the four bids were opened and read at that time.

The Police Jury took the award of the contract under advisement until the next scheduled regular meeting of January 12, 2009. At that meeting the Police Jury unanimously accepted the bid of DDT as the lowest bid for the hauling contract. At the February 2, 2009 regularly scheduled Police Jury meeting, a motion was made and carried “to turn over the acceptance of the hauling bids for 2009 to the District Attorney and call for a Special Meeting with the attorney and Police Jury.” A special meeting of the Police Jury was convened on February 17, 2009. The minutes show that a motion was carried for the Police Jury to enter into executive session “to discuss hauling bids.” Subsequently, a second motion was carried to reconvene the regular session and the meeting was adjourned.

|oOn February 26, 2009, Smith filed this action as a petition for injunction against the Police Jury seeking to enjoin it “from executing any contract with Delhi Dump.” The petition claimed that the DDT bid was not timely submitted before the 6:00 p.m. deadline for submission of bids. No order setting the date of an injunctive hearing was requested, and no date was ever officially set.

In a pleading entitled, “Petition for Declaratory Judgment and Exceptions,” the Police Jury made response to Smith’s injunction action on March 27, 2009. The pleading was filed under the same suit number. Yet, it did not set forth that is was a reconventional claim. The Police Jury named Smith and DDT as defendants in its reconventional claim to determine whether the acceptance of DDT’s bid was proper under Louisiana Public Bid Law. The Police Jury alleged “that at the time of the District Attorney investigation into this matter, the Delhi Dump Truck, LLC bid had already been accepted as the low bid, and hauling was occurring by Delhi Dump Truck.” The Police Jury further alleged that DDT’s bid was not disqualified because all bids were opened together and that Smith’s bid was non-responsive because the fuel surcharge was not defined. The Police Jury requested that the declaratory judgment be heard on April 27, 2009, the date allegedly scheduled for the preliminary injunction hearing.

The Police Jury also filed exceptions to Smith’s petition for injunction on the grounds of prematurity and improper use of summary proceedings. In particular, because the contract was awarded on January 12, |42009, and the Police Jury had begun purchasing gravel from DDT, the Police Jury argued that Smith no longer had a right to seek injunctive relief.

Hearing on the declaratory judgment occurred on April 29, 2009. The case proceeded with the Police Jury calling its witnesses and presenting its case for declaratory judgment despite no answer to that action having been filed by Smith. The record does not clearly indicate that the hearing involved Smith’s preliminary injunction request. Eight of the parish police jurors involved in the subject bidding process, who were present at the December 1 Police Jury meeting, testified. Additionally, both Smith and Harris took the stand.

Harris testified that this was his first public bid and that when he got to the fourth floor, “there was nobody there except for in the meeting.” He testified that he did not “go to any office because nobody was[ ] in the office.” He claimed that he had his bid in hand when he arrived for the meeting before 6:00 p.m. He stated that he walked into a preliminary meeting and a gentleman told him to give the bid to Larry Wheeler, the parish manager. Harris “put the envelope right in front of him on the table” and then sat down. Harris testified that his bid was turned in before 6:00 p.m. Harris explained that the lack of his company’s name on the envelope precipitated Wheeler to ask what the envelope ■was. Hams testified that he informed Wheeler that the bid "was for DDT. Harris also stated that when the issue of the timing of his bid was made, DDT had begun work under the contract.

|r,Terry Smith testified that he recalled Harris arriving at the Police Jury meeting after 6:00 p.m. and that the Police Jury got to the bids at approximately 8:30 p.m. Smith testified that he saw Harris turn in his bid at the time of the opening of the bids.

Larry WTieeler testified that at the subject Police Jury meeting, he opened the bids. Wheeler could not recall whether DDT’s bid was handed to him prior to the meeting, but he knew that the bid was among the other bids that were placed on the table. He also remembered that the envelope was blank which caused him to inquire about what it was.

Each of the police jurors testified to their familiarity with the bidding process in question. The jurors -were inconsistent in their testimony regarding whether Harris was present before the meeting began and when he placed the bid on the table. All agreed that the bids were opened and read together and that Wheeler inquired about DDT’s bid.

After considering the testimony and evidence, the trial court granted declaratory judgment in favor of the Police Jury finding that “the Richland Parish Police Jury properly accepted the bid of Delhi Dump Truck, LLC for 2009 gravel hauling. The bid of Delhi Dump Truck, LLC was the lowest and most definite bid, and it is the Court’s finding that the bid was timely received.” The court also sustained the Police Jury’s exceptions of prematurity and unauthorized use of summary proceedings. Smith now appeals contesting the declaratory judgment and the manner in which the DDT bid was accepted at the December 1 meeting.

| ⅛Discussion

The initial action taken by Smith contesting his unsuccessful bid on a public contract is authorized under La. R.S. 38:2220, which provides, in pertinent part, as follows:

A. Any purchase of materials or supplies, or any contract entered into for the construction of public works, contrary to the provisions of this Part shall be null and void.
B. The district attorney in whose district a violation of this Part occurs, the attorney general, or any interested party may bring suit in the district court through summary proceeding to enjoin the award of a contract or to seek other appropriate injunctive relief to prevent the award of a contract which would be in violation of this Part, or through ordinary proceeding to seek appropriate remedy to nullify a contract entered into in violation of this Part.

The leading case interpreting the right of injunctive relief of an unsuccessful bidder is Airline Const. Co., Inc. v. Ascension Parish School Bd., 568 So.2d 1029 (La.1990). Airline was an action for damages by an unsuccessful bidder against a school board in which the supreme court sustained an exception of no cause of action. The court’s ruling dismissing the suit noted that the petition did not state whether the project was completed when the suit was filed, whether a suit for injunction had been timely filed or whether “circumstances existed which made the filing of a timely suit for injunction impossible.” Id. at 1035. In granting the exception of no cause of action, the court explained:

The public contracts law is a prohibitory law, founded on public policy, which was enacted in the interest of the taxpaying public. The purpose of the law is to prevent public officials from awarding contracts on the basis of favoritism or at possibly exorbitant and extortionate prices.
|7In a public project advertised for public bidding, there is no contractual relationship between an unsuccessful bidder and the public body who advertises for bids. However, although an unsuccessful bidder does not have a cause of action in contract against the public body, the lowest responsible bidder does have a cause of action to challenge timely the rejection of his bid and to compel the award of the contract to him. Louisiana jurisprudence has long recognized that while a public body has some discretion in awarding public contracts, subject to judicial review, an unsuccessful bidder may sue to enjoin the public body from executing the contract or to set aside the award of the contract to another bidder when the public body acted arbitrarily in selecting the successful bidder.
In 1979 the Legislature amended La. R.S. 38:2220 to recognize expressly this right to injunctive relief when a public body violates the public contract law and to authorize a civil penalty against a member of the public body who authorizes the violation. The statute, however, neither authorizes nor denies a cause of action for damages against the public body.
In the present case the Board’s exception of no cause of action asserts that an unsuccessful bidder does not have a cause of action under any circumstances to recover damages against a public body which awards a public contract in violation of the public bid law. We do not reach this broad issue, but rather decide this case on the narrower holding that an unsuccessful bidder on a public contract who fails to resort to the relief granted by statute by attempting to enjoin timely the execution or the performance of the contract, when the facts necessary for injunctive relief are known or readily ascertainable by the bidder, is precluded from recovering damages against the public body.

Airline Const., supra at 1032-1038 (citations omitted).

The overriding question which is therefore presented in this dispute is whether Smith followed the Airline ruling in filing this suit and pursuing his claim. Following the December 1, 2008 opening of the bids at the Police Jury meeting, Smith waited until February 26, 2009, to seek injunctive relief. He did so despite his belief regarding Harris’s late arrival at the December meeting and the untimely submission of the DDT bid. Smith also |sknew that the Police Jury had not rejected DDT’s bid at the December meeting and that it had in fact awarded DDT the contract in January. Smith’s petition for injunctive relief made no allegation that circumstances existed which prevented him from filing the suit before the award of the contract, and indeed his actual testimony confirms his knowledge of DDT’s filing of its bid which he alleges to have been untimely.

In partial response to Smith’s claims, the Police Jury filed an exception which it labeled an “Exception of Unauthorized Use of Summary Proceedings.” The legal reasoning presented in support of the exception, however, claimed that injunctive relief was unavailable to Smith since the public contract had been previously awarded and work on the contract had begun. With such argument, the Police Jury was effectively claiming that Smith no longer had a cause of action in accordance with the ruling in Airline, even though the Airline decision was never specifically cited to the court. In addition, the Police Jury filed a separate claim for declaratory judgment in which it asserted its defense that the public bid law had not been violated.

From this review of Smith’s claim and the narrow relief which the Airline ruling and La. R.S. 38:2220 afford to an unsuccessful bidder on a public contract, we affirm the trial court’s grant of the Police Jury’s exception which substantively raised the peremptory challenge of no cause of action. We further deny any allowance for amendment of Smith’s 19petition under La. C.C.P. art. 934 for any possible damage claim left unanswered by the Airline ruling, since the evidence demonstrates that Smith was not prevented by any circumstances from timely seeking mandatory injunctive relief for the award of the contract in his favor.

With this ruling, the issue of the trial court’s judgment on the Police Jury’s claim for declaratory relief is moot, as the matter has been fully adjudicated by the enforcement of the peremptory exception for the dismissal of all claims arising from this public bid law transaction.

Conclusion

For the reasons noted above, we grant the peremptory exception of no cause of action and affirm the dismissal of Smith’s claims against the police jury thereby mooting the declaratory judgment. Costs of this appeal are assessed to Smith.

AFFIRMED.

      . The court shall give substance to the pleading and exception regardless of its label. Ken Lawler Builders, Inc. v. Delaney, 36,263 (La.App.2d Cir.8/14/02), 837 So.2d 1; Steed v. St. Paul's United Methodist Church, 31,521 (La. App.2d Cir.2/24/99), 728 So.2d 931, writ denied, 99-0877 (La.5/7/99), 740 So.2d 1290. Additionally, the court of appeal on its on motion can raise the peremptory exception of no cause of action. La. C.C.P. art. 927 B.


author: PEATROSS, J.

text:
    Beth PALMISANO, Plaintiff-Appellant, v. Frank TRANCHINA, Defendant-Appellee.
    No. 44,948-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Knapp & Cocus, LLC, by Mary Grace Knapp, Laura Caviness Cocus, Mandeville, for Appellant.
    Louisiana Department of Justice, Litigation Division by James D. “Buddy” Caldwell, Atty. Gen., David G. Sanders, Asst. Atty. Gen., Bridget B. Denicola, Asst. Atty. Gen., Tranchina & Mansfield, L.L.C., by Mark J. Mansfield, Covington, for Ap-pellee.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

| ,In this action for damages, Plaintiff, Beth Palmisano, alleged that Defendant, Frank Tranchina, Jr., was liable for damages caused by him in his performance as the appointed special master over her divorce proceedings. In response to Ms. Palmisano’s petition for damages, Mr. Tranchina filed a peremptory exception of no cause of action asserting that he could not be sued for damages while acting in his capacity as special master in accordance with the Doctrine of Judicial Immunity. Agreeing with Mr. Tranchina’s argument of judicial immunity from suits for damages, the trial judge granted the exception of no cause of action and dismissed Ms. Palmisano’s claims with prejudice. Ms. Palmisano now appeals. For the reasons stated herein, we affirm.

FACTS

In 2004, Ms. Palmisano instituted divorce proceedings in St. Tammany Parish against her husband, Joseph Palmisano, III. The trial judge presiding over the matter appointed Frank Tranchina, Jr. as “special master” over the matter, specifically for the purpose of advising the court wdth regard to issues involving the parties’ community property. Once appointed as special master, Mr. Tranchina made recommendations to the court with regard to the legal status, value and proposed division of the parties’ property. During Mr. Tranchina’s appointment as special master, the parties engaged in considerably lengthy litigation which, as previously stated, ultimately resulted in Ms. Palmisano’s decision to file suit against |2Mr. Tranchina seeking to recover damages she claimed to have suffered as a result of his having exceeded the scope of his authority as special master. Mr. Tranchina filed an exception of no cause of action asserting judicial immunity, which was granted by the trial court. This appeal ensued.

DISCUSSION

In Ms. Palmisano’s sole assignment of error, she challenges the trial judge’s conclusion that Mr. Tranchina is judicially immune from suit. Specifically, she claims that the trial judge erred in failing to hold that she did not have a legally cognizable claim against Mr. Tranchina to recover damages caused by him in his capacity as special master over her divorce proceedings. In support of her argnnent, Ms. Palmisano alleges that, soon after he was appointed as special master, Mr. Tranchi-na personally involved himself in expanding his role in the parties’ community property partition. Ms. Palmisano claims that Mr. Tranchina spoke to an individual, without her permission, about refinancing certain property for the purpose of securing his own interest in the community property. Ms. Palmisano claims that Mr. Tranchina’s actions impeded her ability to secure her own funding. She further claims that Mr. Tranchina threatened to list her property for sale without her consent.

Ms. Palmisano additionally argues that Mr. Tranchina failed to comply with the provisions of La. R.S. 13:4165 by billing the parties’ community an unreasonable and exorbitant fee of more than $27,000 for his work and for the work of his assistant, Mr. Greg Verges, C.P.A. Ms. Palmi-sano also complains that Mr. Tranchina indicated that he would |;{not consider her attorney’s fee interest without the filing of a petition for intervention. When her attorney filed the petition for intervention, however, Mr. Tranchina stated to the trial court that the filing created a conflict of interest between Ms. Palmisano and her attorney, in spite of the fact that it was Mr. Tranchina who prompted the filing in the first place. Furthermore, Ms. Palmi-sano also claims that she was forced to undergo lengthy and expensive legal proceedings as a result of Mr. Tranchina’s actions.

It is Ms. Palmisano’s position that Mr. Tranchina is not entitled to judicial immunity because his objectionable actions were outside of the scope of his judicial capacity and, therefore, are not covered by the Doctrine of Judicial Immunity. In summary, Ms. Palmisano complains that Mr. Tranchina’s lack of professionalism and misuse of his role as special master in these proceedings for his own financial gain caused irreversible damage to her person and property.

We are not persuaded by Ms. Palmisa-no’s argument. La. R.S. 13:4165 provides for the appointment of special masters:

A. Pursuant to the inherent judicial power of the court and upon its own motion and with the consent of all parties litigant, the court may enter an order appointing a special master in any civil action wherein complicated legal or factual issues are presented or wherein exceptional circumstances of the case warrant such appointment.
B. The order appointing a special master may specify or limit the master’s powers. Subject to such specifications or limitations, the master has and shall exercise the power to regulate all proceedings before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties.
C. (1) The court may order the master to prepare a report upon the matters submitted to him and, if in the course of his duties |4he is required to make findings of facts or conclusions of law, the order may further require that the master include in his report information with respect to such findings or conclusions.
(2) The report shall be filed with the clerk of court and notice of such filing shall be served upon all parties.
(3) Within ten days after being served with notice of the filing of the report, any party may file a written objection thereto. After a contradictory hearing, the court may adopt the report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions. If no timely objection is filed, the court shall adopt the report as submitted, unless clearly erroneous.
D. The master’s compensation shall be reasonable, fixed by the court, and taxed as costs of court.

In Marrogi v. Howard) 01-1106 (La.1/15/02), 805 So.2d 1118, the Louisiana Supreme Court addressed the issue of absolute judicial immunity from civil suit in the context of court appointed experts:

In S.T.J. v. P.M., 556 So.2d 244 (La.App. 2nd Cir.1990), the court held that three psychologists appointed by the court during a custody dispute to evaluate an allegation of sexual abuse of a minor were entitled to absolute judicial immunity from any tort liability asserted in a subsequent suit filed by the losing parent. The court reasoned that the appointed professionals were non-judicial persons fulfilling quasi-judicial functions and, pursuant to La. Code Civ. Proc. art. 373, are classified as officers of the court with functions intimately related to the judicial process. Therefore, such court-appointed experts are entitled to absolute judicial immunity, as are judges, protecting them from having to litigate the manner in which they perform these functions. The court opined, “Should they be found unprotected by such immunity, it can be envisioned that psychologists would seek to avoid future court appointments and that fear of civil liability could mar opinions and recommendations given to the court.” (Internal citations omitted).

See also Todd v. Angelloz, 02-1400 (La.App. 1st Cir.3/28/03), 844 So.2d 316.

|sIn the case sub judice, Ms. Palmisano has two specific complaints with regard to Mr. Tranehina’s actions which she claims were outside of the scope of his duties as special master: (1) he charged an unreasonable fee of $27,000 for his services and (2) he made inappropriate comments to the trial judge concerning a purported conflict of interest between Ms. Palmisano and her attorney.

As indicated by La. R.S. 13:4165, the special master’s recommendations and fee must be approved by the trial judge, which they were in this case. If Ms. Palmisano finds that she disagrees with the trial judge’s approval of the special master’s fees and recommendations, the appropriate course of action would be to object to the trial judge’s ruling approving the recommendations and fee, followed by a contradictory hearing, the outcome of which is appealable should she disagree with the final ruling. La. R.S. 13:4165.

Additionally, as asserted by Mr. Tran-china, Ms. Palmisano also has the option of filing a complaint with the judiciary commission if she believes the special master has acted inappropriately or outside the scope of his appointment. Since Mr. Tranchina is a court-appointed expert performing in a quasi-judicial capacity and is entitled to absolute judicial immunity, Ms. Palmisano does not, however, have the option of filing a civil action for damages against him when she disagrees with his recommendations and/or fee as approved by the trial judge. Marrogi v. Howard, supra; Todd v. Angelloz, supra; S.T.J. v. P.M., supra.

| fiIn summary, we find that the trial judge properly maintained Mr. Tranchina’s exception of no cause of action and, therefore, affirm that ruling.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Beth Palmisano.

AFFIRMED.

      . The judges of the Louisiana Supreme Court transferred this case to the Second Circuit Court of Appeal for consideration after the First Circuit Court of Appeal entered an order recusing themselves from the matter.