author: EDWIN A. LOMBARD, Judge. TOBIAS, J.,

text:
    PROVIDENT BANK v. Lorina M. LESLIE.
    No. 2008-CA-1449.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.
    Rehearing Denied March 10, 2010.

      Steven M. Spiegel, Steven M. Spiegel, APLC, Madisonville, LA, for Consolidated Holding, Inc. (Assignee of Rights and Interest of Provident Bank).
    Belhia V. Martin, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|,Appellant, Provident Bank, appeals a judgment from the Civil District Court for the Parish of Orleans, granting a “permanent default” judgment in favor of Ap-pellee, Lorina M. Leslie, in an executory proceeding pertaining to a mortgage agreement between appellee and Provident Bank, as mortgage assignee. For the reasons set forth below, we reverse the decision of the district court and remand for proceedings consistent with this opinion.

Factual and Procedural History

On October 17, 2002, Provident Bank filed a Petition for Executory Process against Lorina M. Leslie, for allegedly being in default of payments on a mortgage agreement pertaining to the property located at 7331 Arbor Drive in New Orleans since August of 1999. Said mortgage obligation was entered into by Ms. Leslie in September 1998. An order granting a writ of seizure and sale was signed on October 21, 2002. Prior to any judicial sale of the property, on February 4, 2003, Ms. Leslie [R p. 35] filed a Chapter 13 petition in the United States Bankruptcy Court for the Eastern District of Louisiana. On May 21, 2003, upon motion by Provident Bank, the Bankruptcy Court ordered a lifting of the automatic stay, fallowing Provident Bank to move forward with the seizure and sale of the mortgaged property.

Pursuant to a writ of seizure and sale, a sale of the property was scheduled for May 20, 2004. On May 18, 2004, appellee filed a “Petition for an Order Suspending the Seizure and Sale Order and/or for a Preliminary Injunction and/or a Permanent Injunction and/or for Damages and/or for the Return of the Seized Property” (hereafter referred to as appellee’s “petition for injunction”) in the same action in Civil District Court. In said petition, ap-pellee alleged that Provident Bank failed to meet the legal requirements for execu-tory process. Ms. Leslie further alleged that the mortgage note at issue was not signed by her and was a forgery. She raised a defense of continued payment and also requested a preliminary injunction halting any sale of the property pursuant to La.Code Civ. Proc. art. 2752. Finally, appellee made claims for monetary damages under La.Rev.Stat. § 51:1401, et seq., the Louisiana Unfair Trade Practices and Consumer Protection Law.

On July 20, 2004, appellee’s bankruptcy action was dismissed. On June 10, 2005, appellant filed a Motion and Order to Reset Sale as a result of the bankruptcy case being dismissed. Said order was granted to Provident Bank by the district court, and the writ of seizure and sale was reissued. On June 27, 2005, Ms. Leslie filed a “Motion and Order for Preliminary Default Judgment,” alleging that Provident Bank failed to file any responsive pleadings to her petition for injunction of May 18, 2004. An order granting a “preliminary default” was signed by the district court on June 28, 2005.

Also on June 27, 2005, appellee filed a Motion to Set Hearing Date and to Nullify Order that Writ of Seizure and Sale be reissued and Served Upon the | ¡¡Defendant. On June 28, 2005, the district court ordered that the reissue of seizure and sale be nullified, and that a hearing on Ms. Leslie’s petition for injunction of May 18, 2004 be set for October 21, 2005.

Although the hearing that appellee requested had been set, appellee proceeded to file a “Motion and Order for a Permanent Default Judgment” on July 18, 2005. The duty judge of the district court entered an order granting “a permanent default” against Provident Bank on the same date. On July 19, 2005, appellee appeared before the duty judge to offer a proces verbal in conjunction with said “permanent default” granted by the duty judge. Ap-pellee stated on record the procedural history since her petition for injunction, and described the service of process of that motion as well as the motion for default judgment on Provident Bank. The transcript does not reflect that any exhibits were entered at this hearing, and the record contains no attachments to the Motion and Order for a Permanent Default Judgment other than a proof of service of the preliminary default on July 12, 2005.

On July 20, 2005, Provident Bank filed a Motion and Order for Extension of Time in which to provide responsive pleadings to Ms. Leslie’s petition for injunction. The district court granted a 30-day extension within which to file responsive pleadings on that same day. On July 25, 2005, Provident Bank then filed a Motion and Order for New Trial on the premise that appellee did not comply with the confirmation of default judgment requirements set forth in La.Code Civ. Proc. art. 1702. A hearing on appellant’s Motion for New Trial was set for August 26, 2005. Provident Bank also filed a Dilatory Exception of Prematurity and Improper Cumulation of Actions. A hearing on the same was set for October 21, 2005.

4On August 17, 2005, appellant filed a Rule to Show Cause why Sheriffs Sale Should Not be Reset, and a hearing on this motion was set for December 2, 2005 by the district court. Because of Hurricane Katrina, the August 26, 2005 hearing, the hearings of October 21, 2005, and the hearing of December 2, 2005 were not held.

On January 31, 2008, appellant filed a Motion and Order to Reset Motion for New Trial. Said hearing took place on July 11, 2008. The district court stated the signed order of July 18, 2005 “does not give you any merit. This judgment is just a recitation of the procedural process ... it has to give some relief. This doesn’t give any relief ... How would a person served with this judgment know what has been adjudicated?”

The district court asked appellee to “put it in the form of a judgment” and seek a “judgment on this default confirmation” of July 18, 2005 from the duty judge who signed it. The presiding judge (Magee, J.) did not consider the signed “permanent default” by the duty judge to be an appropriate confirmation of default. Therefore, the court denied Provident Bank’s Motion for New Trial as premature because “there is no judgment in this case.” Provident Bank then filed a Petition for Devolutive Appeal to appear before this Court.

Assignment of Error

Provident Bank, appellant, raises a sole assignment of error that the trial court erred by entering a confirmation of the default judgment on July 18, 2005 when Lorina M. Leslie presented no supporting evidence. Provident Bank states that it also brought forth this appeal to reverse the denial of its Motion for New Trial, but does not brief this Court on this aspect. Appellee argues that she has | .¡properly proved a confirmation of the default judgment under La.Code Civ. Proc. art. 1702(C).

Standard of Review

Questions of law are reviewed under the de novo standard. Louisiana Municipal Association v. State, 2004-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836; Sarpy v. ESAD, Inc., 2007-0347, p. 4 (La.App. 4 Cir. 9/19/07), 968 So.2d 736. In reviewing a confirmation of a default judgment, an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case. Balakrishnan v. Louisiana State University School of Medicine, 2005-1266, p. 3 (La.App. 4 Cir. 9/13/06), 939 So.2d 595, 597; Mossy Motors, Inc. v. Cameras America, 2002-1536, p. 3 (La.App. 4 Cir. 6/25/03), 851 So.2d 336, 339.

Law and Analysis

“A defendant’s failure to comply with Louisiana Code of Civil Procedure articles 1001 and 1002 exposes the party to a judgment of default.” Arias v. Stolthaven New Orleans, L.L.C., 2008-1111, p. 5 (La.5/5/09), 9 So.3d 815, 818. Specifically, a defendant is required to file an answer within fifteen (15) days after service of the petition. La.Code Civ. Proc. art. 1001. When the defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. La. Code Civ. Proc. art. 1701(A).

Essentially, default judgment is a two-step process. First, the plaintiff or plaintiff-in-reconvention must obtain a judgment by default per Article 1701(A). A judgment of default is sometimes referred to as a “preliminary default.” Arias, 2008-1111 at p. 6, 9 So.3d at 819. A default judgment may be obtained by oral |fimotion in open court or by written motion, entered in the minutes of the court, and the judgment consists merely of a minute entry. La.Code Civ. Proc. art. 1701(A).

Next, though the judgment at issue is a “permanent default,” both parties in this matter fail to recognize that Louisiana jurisprudence does not recognize a “permanent default.” The only appropriate next step after obtaining a default judgment pursuant to Article 1701 is that a party must confirm the default judgment. La.Code Civ. Proc. 1702 provides: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” In this respect, confirmation of a default judgment is “similar to a trial.” Arias, supra, p. 7, 9 So.3d at 820. This Court construes appellee’s Motion and Order for a Permanent Default Judgment of July 18, 2005 as an attempt to confirm a default judgment.

The Louisiana Supreme Court has held that in order for a plaintiff to obtain a confirmation of a default judgment, “he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant.” Sessions & Fishman v. Liquid Air Corp., 1992-2773 (La.1993), 616 So.2d 1254, 1258. Although there is a presumption that the judgment confirming a default is supported by competent evidence, this presumption does not apply when there is a transcript of the confirmation proceeding. Mooring Financial Corporation 401(K) Profit Sharing Plan v. Mitchell, 2008-1250, p. 4 (La.App. 4 Cir. 6/10/09), 15 So.3d 311, 315.

Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in arts. 2751 through 2754 of the Louisiana Code of Civil Procedure, or a suspensive appeal from the order directing the issuance of the writ of seizure and |7sale, or both. La. Code. Civ. Pro. art. 2642. In particular, La.Code Civ. Pro. arts. 2751 and 2752 provide as follows:

Art. 2751. Grounds for arresting seizure and sale; damages
The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an execu-tory proceeding has not been followed.
Art. 2752. Injunction procedure
The petition for injunction shall be filed in the court where the executory proceeding is pending, either in the ex-ecutory proceeding or in a separate suit. The injunction proceeding to arrest a seizure and sale shall be governed by the provisions of Articles 3601 through 3609 and 3612, except as provided in Article 2753. However, a temporary restraining order shall not issue to arrest the seizure and sale of immovable property, but the defendant may apply for a preliminary injunction in accordance with Article 3602. In the event the defendant does apply for a preliminary injunction the hearing for such shall be held before the sale of the property.

In the present action, appellant Provident Bank initiated an executory process action against Lorina M. Leslie, the mortgagor. Appellee filed a responsive petition in which she sought a preliminary injunction and/or order suspending the seizure and sale of the property at issue. Appellee’s petition for injunction also claimed monetary damages in attorney’s fees and damages for unfair trade practices. Appellant Provident Bank did not file responsive pleadings to appellee’s petition for injunction and damages of May 18, 2004. Appellee received an order granting a default on June 28, 2005.

Appellant contends that the “permanent default” obtained by appellee does not meet the requirements set forth in La. Code Civ. Proe. art. 1702 to qualify as a confirmation of default judgment. We agree.

|sThe judgment granting “permanent default” was signed on July 18, 2005. The appellee did not present any evidence to the district court on July 18, 2005 attached to said motion and proposed judgment that would establish a prima facie case. There was not a hearing until July 19, 2005, the following day. The “permanent default” was therefore signed without any entering of evidence by the appellee. Once again, “permanent default” judgment does not exist in Louisiana statutory or case law. For these reasons alone, the “permanent default” signed by the district court does not meet the requirements of a confirmation of default judgment, and is an absolute nullity. Furthermore, under La.Code of Civ. Proc. art. 8605, an order granting a preliminary or final injunction or temporary restraining order “shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.” There was no discernable statement of relief in the “permanent default” judgment of July 18, 2005.

Even if this Court were to overlook the fact that the district weighed no evidence before signing the judgment of July 18, 2005, appellee clearly did not confirm a default judgment during the hearing of July 19, 2005 by proof of the demand sufficient to establish a prima facie case as required by La.Code Civ. Proc. art. 1702. Despite what appellee contends, there is nothing in the record that suggests appel-lee has provided any exhibits, affidavits, or any other evidence of a prima facie case at her proces verbal of July 19, 2005. Appel-lee has presented no competent evidence that convinces the court that it is probable that she would prevail on the merits. Thibodeaux v. Burton, 1988-1566, (La.1989), 588 So.2d 1001, 1004.

| ^Conclusion

Prior to interruption by Hurricane Katrina, the district court had on its docket a hearing on Ms. Leslie’s request for a preliminary injunction pursuant to La.Code Civ. Proe. art. 2752, as well as appellant’s original petition for executory process. The other motions and exceptions not yet heard by the district court as a result of Hurricane Katrina are mentioned above.

The decision of the district court to grant appellee Lorina M. Leslie’s confirmation of default judgment is reversed. The “permanent default” granted to appel-lee on July 18, 2005 is an absolute nullity. This Court declines to determine the merits of Provident Bank’s Petition for Execu-tory Process, as such a determination has never been made by the district court.

Decree

For the aforementioned reasons, we reverse the decision of the district court granting a “permanent default” to the ap-pellee, and we remand the matter for hearing oil the Petition for Executory Process and the appellee’s responsive petition for order and injunction and damages filed by appellee as per La.Code Civ. Proc. art. 2752, as well as any other proceedings consistent with this opinion.

REVERSED; REMANDED.

TOBIAS, J., Concurs and Assigns Reasons.

TOBIAS, J.,

Concurs and Assigns Reasons.

hi respectfully concur.

I agree with the majority that a presumption exists that a judgment confirming a default is supported by legally competent evidence, but the presumption does not apply where a transcript of the confirmation hearing is recorded and part of the record on appeal. I write separately because the authority cited by the majority for this proposition of law, namely, Mooring Financial Corporation 401(K) Profit Sharing Plan v. Mitchell, 08-1250 (La.App. 4 Cir. 6/10/09), 15 So.3d 311, is an absolutely incorrect decision (on the merits of that case) as noted by the dissent therein.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    A & B VALVE AND PIPING SYSTEMS, L.L.C. v. COMMERCIAL METALS COMPANY.
    No. 09-1535.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 27, 2010.

      Edward C. Abell, Jr., Steven C. Lanza, Onebane Law Firm, Lafayette, LA, for Plaintifl/Appellant, A & B Valve and Piping Systems, L.L.C.
    John Zavitsanos, Deborah S. Pacholder, Ahmad, Zavitsanos, & Anaipakos, Houston, TX, for Plaintiff/Appellant, A & B Valve and Piping Systems, L.L.C.
    Richard D. Chappuis, Jr., Hoai T. Haong, Voorhies & Labbe, Lafayette, LA, Michael L. Hood, Phillip B. Philbin, Jacob G. Hodges, Haynes & Boone, Dallas, TX, for Defendant/Appellee, Commercial Metals Company.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

h The Defendant-Appellee, Commercial Metals Company, moves to dismiss the appeal of the Plaintiff-Appellant, A & B Valve and Piping Systems, L.L.C. For the reasons assigned, we grant the motion to dismiss the appeal and deny the request to lift the stay.

Appellant filed suit against Appellee seeking a declaratory judgment that Appellant was not obligated to pay for steel pipe which it had ordered from Appellee. Appellee filed an exception of prematurity seeking to have the matter referred to arbitration pursuant to an arbitration clause in contracts between the parties. At the hearing on the exception of prematurity, the trial court was required to determine whether Texas or Louisiana law applied to this case and whether there was an enforceable arbitration agreement between the parties. The trial court determined that Texas law applied and that pursuant to same, the parties are bound to submit the matter for arbitration. As such, the trial court granted the exception of prematurity and stayed the district court proceedings pending arbitration.

The trial court granted Appellant’s motion to designate the judgment referring the case to arbitration as a final, appeal-able judgment. Although Appellant had filed a motion for appeal and an order of appeal had been signed by the trial court, Appellee proceeded with commencing arbitration proceedings. Appellant sought to have the trial court stay the arbitration proceedings until after the appeal was resolved; however, the trial court denied Appellant’s motion for a stay on the ground that it no longer had jurisdiction over the matter. Therefore, Appellant filed, under this court’s docket number 09-1427, an expedited application for supervisory writs seeking to have this court stay the arbitration proceedings. On November 25, 2009, this court issued an order staying the arbitration proceeding pending the appeal. The 18appeal was subsequently lodged in this court, and Appellee filed the instant motion to dismiss the appeal.

Appellee asserts that this appeal should be dismissed because the judgment requiring the parties to submit the case for arbitration is not an appealable judgment. Pointing out that La.Code Civ.P. art. 1841 defines a final judgment as one that determines the merits of a case, Appellee contends that the judgment compelling arbitration is not final because it does not decide the merits of the case in whole or in part. In support of its position, Appellee cites Collins v. Prudential Ins. Co. of America, 99-1423 (La.1/19/00), 752 So.2d 825, wherein the Louisiana Supreme Court held that a trial court’s order compelling arbitration is an interlocutory judgment which is not immediately appealable. In light of the ruling in Collins, Appellee argues that the trial court erred when it granted Appellant’s motion to certify the judgment at issue as immediately appeal-able pursuant to La.Code Civ.P. art. 1915(B).

Appellee argues that allowing an immediate appeal not only goes against the Louisiana Supreme Court’s ruling in Collins, 752 So.2d 825, but it also goes against the Federal Arbitration Act (FAA), 9 U.S.C. § 1-16. Appellee points out that the pipe that it sells is manufactured in foreign mills and transported to Appellee’s company in Houston, Texas, before being purchased by Appellant’s company which is located in Lafayette, Louisiana. As such, Appellee contends that interstate commerce is affected and, therefore, the FAA applies. Appellee asserts that the FAA favors arbitration agreements and that Section 16 of the FAA prohibits the appeal of an order compelling arbitration. Thus, Appellee contends that the application of La.Code Civ.P. art. 1915(B) to this case would permit an immediate appeal from a judgment which is not appealable under the FAA. According to Appellee, the 18provisions of the FAA should prevail because the FAA preempts La.Code Civ.P. art. 1915(B). To that end, Appellee cites Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), for the proposition that courts must enforce arbitration agreements covered by the FAA and that they cannot use state procedural laws to defeat the purposes advanced by the FAA.

In its opposition to the instant motion to dismiss, Appellant asserts that the judgment at issue is an appealable judgment. Appellant contends that the majority of the evidence and testimony presented at the hearing on the exception of prematurity addressed a choice of law dispute. Appellant further contends that after evaluating the choice of law issue, the trial court made a final, controlling decision that Texas law applies to this case. Also, Appellant points out that the trial court certified the judgment as immediately appealable pursuant to La.Code Civ.P. art. 1915(B). Thus, Appellant contends that the Collins case on which Appellee relies is distinguishable from the instant case because the judgment at issue in Collins was not certified as immediately appealable under Article 1915(B).

Also, Appellant argues that Appellee in incorrect in its assertion that the judgment at issue is not appealable under the FAA. Appellant points out that pursuant to 9 U.S.C. § 16(b), appeals cannot be taken from interlocutory rulings except as provided in 28 U.S.C. § 1292(b). Appellant further points out that pursuant to 28 U.S.C. § 1292(b), federal appeals courts may permit an appeal to be taken from an otherwise unappealable ruling if the district judge states in the ruling that he is of the opinion that the ruling “involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal for that [ruling] may materially advance the ultimate termination of the litigation.” In the instant case, Appellant contends that at the hearing on the exception of prematurity, |4the trial court judge stated that the ruling on the choice of law issue was “not an easy decision.” As such, Appellant contends that this case involves a “substantial ground for difference of opinion” as contemplated by 28 U.S.C. § 1292(b). Therefore, Appellant asserts that this appeal is allowable under federal law as well as state law.

We note that the judgment finding that the parties should submit their case for arbitration does not address any of the merits of Appellant’s petition for a declaratory judgment. We also note that the judgment simply stays the trial court proceedings pending arbitration and does not dismiss the suit in its entirety. Thus, we find that the judgment on its face appears to be interlocutory in nature. Although the trial court designated the judgment as a final judgment, an appellate court is not bound by such a designation. See Mitchell Co. v. Mucavil, Inc., 02-881 (La.App. 3 Cir. 10/1/03), 855 So.2d 426. However, this court is bound by the Louisiana Supreme Court’s holding that “[a] judgment compelling arbitration is interlocutory in nature and not subject to an immediate appeal.” St. Bernard Memorial Funeral Home, Inc. v. Doody Group, Inc., 02-1675 (La.8/5/02), 822 So.2d 599, 599 (citing Collins, 752 So.2d 825). Therefore, in the instant case, we hold that the trial court’s designation of the judgment at issue as final for the purpose of an immediate appeal was improper. As such, we find that the Appellee’s motion to dismiss this appeal should be granted. Inasmuch as we find that the judgment compelling arbitration is a non-appealable interlocutory judgment, not subject to being designated immediately appealable under La.Code Civ.P. art. 1915(B), there is no conflict with the FAA, and we, therefore, pretermit a determination of whether the FAA preempts the application of La.Code Civ.P. art. 1915(B) to certify a judgment as immediately appealable.

While we find that the judgment at issue is not appealable, this does not mean that the judgment is also not subject to supervisory review. See Collins, 752 So.2d 825. As stated by the Louisiana Supreme Court, “[a] court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, according to the discretion of the court.” Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). In the instant case, we note that on November 25, 2009, this court granted Appellant’s motion to stay the arbitration proceedings pending this appeal. When issuing the stay order, this court made a determination that, in the interest of justice, the arbitration proceedings should be stayed until after this court has reviewed the merits of the judgment holding that Texas law applies and that arbitration is required. In light of our prior determination that this case should not be submitted for arbitration until after this court has reviewed the merits of the conflict of law issues raised in this appeal, we find that this court should exercise its supervisory jurisdiction to review these issues.

Therefore, we hereby dismiss the instant appeal at Appellant’s cost. However, we note that after Appellee filed its motion to dismiss the instant appeal, Appellant filed, under this court’s docket number 10-68, an application for supervisory writs seeking review of the same judgment at issue in this appeal. As such, we find that the merits of the challenged judgment will be appropriately reviewed by this court in connection with that writ application.

Furthermore, to the extent that Appellee seeks to have this court lift its stay order of November 25, 2009, we hereby deny the request. As noted above, this court has previously made a determination that the merits of the conflict of law issue, as it pertains to the validity of the arbitration provision at issue, should be subjected to supervisory review before this matter proceeds to arbitration. Inasmuch as Ap-pellee has manifested its intent to proceed with arbitration proceedings before these issues have undergone supervisory review, we decline to lift the stay order at this time.

| fiAPPEAL DISMISSED. REQUEST TO LIFT STAY DENIED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana in the Interest of S.C.J.
    No. 09-1272.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for the Juvenile/Appellant, S.C.J.
    John F. DeRosier, District Attorney-— Fourteenth Judicial District, Carla S. Si-gler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

liOn July 22, 2009, the State filed a petition charging the juvenile, S.C.J., with armed robbery with the use of a firearm and attempted second degree murder. An adjudication hearing was held on August 31, 2009, and the trial court found that the juvenile committed attempted armed robbery and attempted second degree murder.

A disposition hearing was held on September 18, 2009, and the trial court ordered that the juvenile be placed with the “Department” for a period not to exceed two years in a non-secure or secure facility. Additionally, the trial court ordered a psychological evaluation and ordered that the juvenile be brought before the court on January 11, 2010, for reevaluation. S.C.J. appeals the adjudications and disposition.

For the following reasons, we affirm the trial court’s adjudications, vacate the disposition, and remand for the imposition of new and separate dispositions.

FACTS

On June 22, 2009, the victim, twenty-one-year-old Demetrius Mitchell (Demetrius), stole a compact disc (CD) player from S.C-J.’s car. Later that night, while at his home, Demetrius received a call from S.C.J. who told him that he had a bullet with his name on it and that he needed to pay him $200.00. Demetrius gave the CD player to his grandmother, and she returned it.

The next day, Samekia Ceasar (Same-kia) called Demetrius to come to her house to look at some puppies. While looking at the puppies in Samekia’s backyard, Demetrius saw S.C.J. and S.CJ.’s brother, Josh, coming toward him. S.C.J. cocked the gun he was holding and said, “Where [sic] my money at?” or “You got my money?” S.C.J.’s brother punched Demetrius, and Demetrius grabbed him. S.C.J. |2hit Demetrius on the head with a metal object, and Demetrius heard “Pow.” A single bullet struck Demetrius’ arm and back. S.C.J. and his brother fled. Demetrius testified that the brothers patted down his pockets and asked “where is my money,” but they did not take anything because he did not have anything.

ASSIGNMENTS OF ERROR

S.C.J. assigns the following errors:

1) The evidence introduced at the adjudication hearing of this case when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove all of the elements of the offense of attempted second degree murder beyond a reasonable doubt.
2) The evidence introduced at the adjudication hearing of this case when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove all of the elements of the offense of attempted armed robbery beyond a reasonable doubt.
3) Alternatively, prosecution of both attempted second degree murder and the underlying offense of armed robbery violated the Double Jeopardy Clause.
4) The record does not contain a written judgment of disposition as is required by the Children’s Code.

Assignments of Error Numbers 1 and 2:

S.C.J. asserts that the evidence presented by the State was insufficient to support the adjudications.

In State ex rel. J.M., 99-136, pp. 2-3, (La.App. 3 Cir. 6/2/99), 742 So.2d 6, 7, this court held in pertinent part:

In a case involving a juvenile, the State has the burden of proving, beyond a reasonable doubt, the commission of the alleged delinquent act. La.Ch.Code art. 883. This burden of proof is no less strenuous than that required in the criminal proceeding against an adult. State In Interest of Tatom, 463 So.2d 35 (La.App. 5 Cir.1985). On review, the standard for due process, fashioned by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is applicable to determine whether the evidence was sufficient to support an adjudication of delinquency in a Juvenile matter. State In Interest of T.L., 514 So.2d 217 (La.App. 5 Cir.1987). Essentially, while we review whether the evidence in support of the adjudication of a Juvenile is sufficient[,] we must determine, viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could find from the evidence adduced, proof of guilt beyond a reasonable doubt. State In Interest of Wilkerson, 542 So.2d 577 (La.App. 1 Cir.1989). Furthermore, it is well settled that appellate review in juvenile delinquency proceedings extends to both law and facts. La. Const. Art. V, § 10(B) (1974); State In Interest of Batiste, 367 So.2d 784 (La.1979). In Wilkerson, 542 So.2d 577, 581 [citations omitted], the court stated:
In a juvenile case, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review.

Louisiana Revised Statutes 15:438 provides “[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Attempted Armed Robbery

In State v. Stone, 615 So.2d 38, 40 (La.App. 3 Cir.), writ denied, 623 So.2d 1302 (La.1993) (emphasis added), this court explained in pertinent part:

To prove an attempted armed robbery, the State had to prove that the defendant 1) had a specific intent to commit the crime of armed robbery, and 2) did an act for the purpose of and tending directly toward the commission of the crime of armed robbery. State v. Clay, 576 So.2d 1099 (La.App. 3d Cir.), writ denied, 580 So.2d 669 (La.1991).
Article 14:64 requires: 1) a taking, 2) of anything of value, 3) belonging to another, 4) from the person of another or from his immediate control, 5) by use of force or intimidation, 6) while armed with a dangerous weapon.
Intent is a state of mind which need not be proven as a fact, but may be inferred from the facts and circumstances of the transaction and the actions of the defendant. State v. Boyer, 406 So.2d 143 (La.1981). Specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982).
The above evidence does not prove, beyond a reasonable doubt, that defendant possessed the intent to take anything from the store. To convict of attempted armed robbery, there must be sufficient evidence to establish the intent to take something of value even though the act of taking need not be established.

S.C.J. argues that the evidence shows that he attempted to reclaim the money owed to him by the victim and that he did not attempt to rob the victim. In S.CJ.’s brief to this court, counsel points out that “S.C.J. also informed the detective that in addition to the CD player, $200.00 and some CD’s were also taken.” Additionally, S.C.J. asserts that there was no taking and that the State failed to prove that he had the specific intent to take the victim’s property.

The victim testified that the night before, when S.C.J. called, he said to pay him $200.00. According to the victim, when S.C.J. came into Samekia’s backyard holding the gun, he said to the victim, “Where [sic] my money at?” When the State asked the victim if he owed S.C.J. any money, the victim responded, “No, ma’am.” The victim explained that S.C.J. and his brother patted down his pockets and asked where their money was, but he did not have anything for them to take. Additionally, the victim clarified that although the medical records from the hospital where he was taken after the shooting reflected that he stated, “They robbed me,” the correct statement was that they tried to rob him.

Samekia testified that when S.C.J. entered the backyard with the gun in his hand, he asked the victim, “What is up now?” She recalled that when Josh came into the backyard, he asked the victim, “What you got in your pocket?”

Detective Brent Young of the Calcasieu Parish Sheriffs Office testified that the victim told him that Josh patted him down while S.C.J. held the gun. | .^Additionally, Detective Young stated in pertinent part:

Q. Officer, what day did you speak with Demetrius, the victim?
A. It was after the incidence [sic], a couple of days.
Q. Okay. Now, you said that Demetrius admitted to you that he burglarized [S.C.JJ’s car, correct?
A. Yes.
Q. Okay. And Demetrius also admitted to you that he knew [S.C.J.] did not intend to shoot him; is that correct?
A. He stated that, yes.
Q. Now, you had a conversation with [S.C.J.] at the police station; is that correct?
A. Yes.
Q. Okay. And he told you that $200 was also missing; is that correct?
A. Yes. But we had nothing to substantiate that.
Q. Okay. And you also asked [S.C.J.] if Josh patted down Demetrius; is that correct?
A. Correct.
Q. And he denied that; is that correct?
A. Correct.
Q. So his story also is different from Samekia’s in that regard, correct?
A. Correct.
Q. Okay. Now, during your conversation with [S.C.J.], you and him spoke about Josh, also; is that correct?
A. Correct.
Q. Joshua Ardie. Okay. And [S.C.J.] told you that Josh did ask Demetrius if [he] had the money to just give it back; is that correct?
A. Correct.
IsQ. So in other words, he was saying he didn’t pat him down; he just told him to give the money back that he had stolen; is that correct?
Q. Samekia Ceasar told you that Josh patted Demetrius down?
A. Correct.
Q. Correct. But [S.C.J.] is saying that Josh did not pat him down; is that correct?
A. Correct.
Q. Okay. And during your conversation with [S.C.J.], he said that Josh did say, “If you have the money, return it”?
A. Correct.
Q. Okay. Neither [S.C.J.] nor Josh took money from Demetrius; is that correct?
A. Demetrius stated that while it was missing, that it’s unknown if it was taken during the incident or it was just merely misplaced prior to the incident. Q. Okay. And they didn’t take anything else from Demetrius; is that correct? A. It doesn’t appear, no.
Q. Okay. So nothing of value was taken from the victim; is that correct?
A. It doesn’t appear.
THE COURT: What she just asked you about what he told you about the money being taken, what did you say?
MR. YOUNG: At the time when he was interviewed at the hospital, he indicated his wallet was taken. However, later on in the investigation, we had nothing to substantiate whether a wallet was taken during the incident or not. At the time the warrants were issued, we only had the story of the victim saying that he was patted down, [and] that his wallet was missing after the shooting incident,
THE COURT: Okay. What would you be looking for to substantiate that?
|7MR. YOUNG: Well, he later changed his statement, indicating that he didn’t know if the wallet was taken[,] or he merely misplaced the wallet prior to the incident.

When questioned by the State as to the reason S.C.J. and his brother patted down the victim, Detective Young responded, “It appears they were demanding payment for items stolen, yes.”

In State v. Rubin, 04-1531 (La.App. 3 Cir. 4/6/05), 899 So.2d 180, writ denied, 05-1218 (La.12/16/05), 917 So.2d 1106, this court explained that in proving the element of armed robbery of the thing belonging to another, it is not essential that the thing of value be owned by the victim, but that the defendant is not the owner of the thing and that the victim had a greater right to possession of the thing of value at the time of the taking than did the defendant.

A review of the record does not indicate that the thing of value attempted to be taken by S.C.J. from the victim belonged to S.C.J. Although Detective Young testified that S.C.J. claimed that the victim took $200.00 from him, he testified that there was nothing to substantiate that claim. No other testimony was presented to show that the victim took $200.00 from the juvenile. In fact, the victim testified that he returned the stolen CD player to the juvenile and that he did not owe S.C.J. any money. Consequently, S.C.J.’s argument that he was merely reclaiming money he was owed is not supported by the evidence.

However, the record before this court indicates that S.C.J., while armed with a gun, demanded money from the victim and that he and his brother patted down the pockets of the victim in search of something of value. Accordingly, after reviewing the evidence pursuant to the Jackson standard, we find that the State presented sufficient evidence that S.C.J. had the specific intent to take something of value from Rthe victim while armed with a gun even though the act of taking was not established.

Accordingly, this assignment of error lacks merit.

Attempted Second Degree Murder

Louisiana Revised Statutes 14:27(A) defines attempt as:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Louisiana Revised Statutes 14:30.1(A) defines second degree murder as:

[T]he killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

First, S.C.J. argues that the State limited the attempted murder charge to the felony-murder doctrine and points out that the State included in the petition only the language that the victim was shot “during the perpetration of an armed robbery.” However, we find that the State did not limit the charge to La. R.S. 14:30.1(A)(2), the subsection establishing the felony-murder doctrine, but merely recited the facts in this case. See State v. Landfair, 07-751 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, writ denied, 08-1143 (La.1/9/09), 998 So.2d 713.

|nIn the instant matter, the trial court in its reasons for adjudication stated in pertinent part:

All right. After hearing all the evidence, the court does find that the State met their [sic] burden of proof with regards to the attempted arm [sic] robbery, not armed robbery, but attempted armed robbery.
There was discussion of the money before. There was discussion about both the victim and the witness about money that day, and he had a weapon with him. And I find that they did prove that beyond a reasonable doubt.
And the court also[,] pursuant to [La. R.S. 14:30.1(A)(2),] finds that they [sic] met their burden of proof with regards to attempted second-degree murder with an intent to kill or inflict great bodily harm does not have to be present if they were engaged in the perpetration or attempt of the armed robbery, which the court found they [sic] met the burden of proof.

After reviewing the reasons set forth by the trial court, we find that it did not exclude a finding of specific intent, that it had previously found that sufficient evidence was presented to support the attempted armed robbery, and that it had no need to determine if there was sufficient evidence to support specific intent.

Moreover, the State argued specific intent in closing arguments, stating in pertinent part:

Clearly, he had the specific intent. The [statute] provides just by his actions, going there with a loaded gun. And he had already said he had a bullet with his name on it. The threats had already been made. He followed through on his threats. We [have] borne our burden of proof, Your Honor.

Consequently, although the trial court limited its finding to attempted second degree murder based upon the armed robbery, this court is not limited in its review of the sufficiency of the evidence to that specific theory.

S.C.J. argues that, while the record should not be examined for specific intent to kill because the State limited its charge and the trial court limited its ruling to the | ^felony-murder doctrine, there is insufficient evidence to support a finding of specific intent. S.C.J. argues that if he had intended to shoot the victim, he would not have hit him in the head with the gun.

In State v. Corley, 97-235, p. 6 (La.App. 3 Cir. 10/8/97), 703 So.2d 653, 659, writ denied, 97-2845 (La.3/13/98), 712 So.2d 875, this court explained in pertinent part:

“Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” State v. Carroll, 95-859, p. 4 (La.App. 3 Cir. 1/31/96), 670 So.2d 286, 288. “Specific criminal intent is a state of mind and need not be proven as fact, but may be inferred from the circumstances present in the case and from the action of the defendant.” Id. at 289.

In this case, the victim testified that S.C.J. called him the night before the shooting and threatened him by stating that he had a bullet with his name on it. The victim and Samekia testified that on the morning of the shooting, while in the backyard, S.C.J. entered the backyard with a gun in his hand and that he cocked the gun. According to Samekia, S.C.J. walked toward them with the gun cocked to the side, and she feared that he would shoot them. Samekia testified that “[H]e [S.C.J.] hit him one time with the gun and came up with it, and when he was going back down to hit him again with the gun, the gun went off.” Referring to S.C.J. hitting the victim with the gun, the State asked Samelda, “Was he holding it like to discharge it where his finger would touch the trigger?” She responded, ‘Tes, ma’am.”

On cross examination, S.C-J.’s attorney asked the victim, “[Yjou told him [Detective Young] that you knew [S.C.J.] didn’t intend to shoot you, correct?” And the victim responded, “Well, I said he looked shocked after he shot me.”

Sergeant Roy Jones of the Calcasieu Parish Sheriff’s Office testified that S.C.J. 11(admitted bringing the gun to Samekia’s house, but stated that he removed the clip prior to meeting up with the victim.

Officer Christopher Cormier, who testified that he is a “deputy sheriff crime scene I.D. officer with the Calcasieu Parish Sheriff’s Office,” also testified that, based upon a shell casing that was found, he believed that the weapon, which was not recovered, was a .380.

Deputy Lee Greanery, a crime scene technician with the Calcasieu Parish Sheriffs Office, testified that he observed and photographed the shirt the victim was wearing at the time of the shooting. He explained that around the bullet hole in the shirt, there appeared to be powder burns associated with a close range shooting. When asked by the State, ‘Would this be consistent ... with someone who was hit in the head and accidently shot?” he responded, “[fjrom my experience!,] I would say no. But I can’t be 100 percent positive.... ”

The evidence in the record reveals that S.C.J. threatened to shoot the victim the night before and that he sought out the victim while carrying a gun. When he found the victim, he cocked the gun. And, when he hit the victim in the head, his finger was on the trigger. Additionally, in Officer Greanery’s opinion, it was not an accidental discharge. Thus, we find that the State presented sufficient evidence to the trial court for it to find that S.C.J. had specific intent to kill or inflict great bodily harm upon the victim. Having found that S.C.J. had the specific intent to kill the victim, we need not address S.C.J.’s argument in brief that attempted second degree felony murder is a non-crime.

| ^Accordingly, this assignment of error is without merit.

Assignment of Error Number 3:

S.C.J. argues that prosecution of both attempted second degree murder and the underlying offense of armed robbery violated the double jeopardy clause of both the federal and state constitutions.

In State v. Sandifer, 95-2226, p. 5 (La.9/5/96), 679 So.2d 1324, 1329, the court explained: “[T]he Double Jeopardy Clause, under both the ‘additional fact’ and the ‘same evidence’ tests, prevents an offender from being convicted of both a felony murder and the underlying felony. State ex rel. Adams v. Butler, 558 So.2d 552, 553 (La.1990).”

The remedy for a double jeopardy violation involving a felony-murder conviction is that the less severely punishable conviction and sentence are vacated and set aside. State ex rel. Boyd v. State, 98-378 (La.10/9/98), 720 So.2d 667, and State v. Cox, 07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ denied, 08-602 (La.9/4/09), 17 So.3d 948.

However, because we find that sufficient evidence was presented to support the attempted second degree murder conviction based upon the specific intent to kill, and not simply based upon the felony murder doctrine, there is no double jeopardy violation.

Accordingly, this assignment of error is without merit.

Assignment of Error Number 4:

In assignment of error number four, S.C.J. contends that the trial court erred by not setting forth a written disposition in the record. We agree.

| ^Louisiana Children’s Code Article 903 provides in pertinent part:

B. The court shall enter into the record a written judgment of disposition specifying all of the following:
(1) The offense for which the child has been adjudicated a delinquent.
(2) The nature of the disposition.
(3) The agency, institution, or person to whom the child is assigned.
(4) The conditions of probation, if applicable.
(5) Any other applicable terms and conditions regarding the disposition.
(6) The maximum duration of the disposition and, if committed to the custody of the Department of Public Safety and Corrections, the maximum term of the commitment.
D. An extract of the minutes of court specifying the information required by Paragraph B of this Article and signed by the court shall be considered a written judgment of disposition.

Counsel for S.C.J. and the State concede that a Judgment of Commitment and Order Granting Custody setting forth the disposition was prepared but not included in the record. Counsel for S.C.J. attaches a copy of same to her brief. Information from the clerk of court’s office reflects that the original Judgment of Commitment signed by the trial judge has not been received; thus, the document has not been filed in the record.

We now turn our attention to an error patent review. Although the Louisiana Children’s Code is silent as to whether a juvenile proceeding warrants an error patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081.

In our error patent review, we note that the sentence imposed by the trial court is indeterminate. The trial court erred by failing to impose a disposition on each adjudication. See State in the Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633.

S.C.J. was charged with armed robbery with use of a firearm and attempted second degree murder, and he was adjudicated by the trial court on these counts. The transcript of the disposition by the trial court provides in pertinent part:

I am accepting the recommendation to place him with the Department for—not to exceed two years. The only thing I’m going to do differently is place him in the Department for evaluation determining the most appropriate placement....

So, I’m not saying secure now[,] and I’m not saying nonsecure. The trial court also ordered reevaluation of the disposition on January 11, 2010. Hence, there is but one disposition for two adjudications.

Accordingly, we vacate the disposition and remand the matter to the trial court for imposition of a separate disposition for each adjudication. Additionally, we order the trial court to enter into the record a written judgment of the dispositions in accordance with La.Ch.Code art. 903.

DECREE

The Juvenile’s adjudications for attempted armed robbery with use of a firearm and attempted second degree murder are affirmed. The disposition for these adjudications is vacated, and the matter is remanded to the trial court for imposition | isof new and separate dispositions for each adjudication with the trial court entering into the record written judgment of these dispositions.

ADJUDICATIONS AFFIRMED; DISPOSITION VACATED; CASE REMANDED WITH INSTRUCTIONS.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, initials are being used to protect and maintain the privacy of the minor involved in these proceedings.

      . Officer Greaneiy testified that he had been a crime scene investigator for seven years, that he had been with the sheriff's office for fifteen years, and that he had seen his "share” of shootings. There was no discussion of whether Officer Greanery qualified as an expert in this field, but S.C.J. did not challenge or rebut his testimony.


author: PAINTER, Judge.

text:
    Troy A. LOPEZ v. Glenn A. THIBODEAUX and Robin Pierce Thibodeaux.
    No. 09-719.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      S. Stephen Spring, II, Baton Rouge, LA, for Defendants-Appellants, Glenn A. Thi-bodeaux and Robin Pierce Thibodeaux.
    Charles M. Kreamer, Sr., Lafayette, LA, for Plaintiff-Appellee Troy A. Lopez.

      Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

|! Defendants, Glenn and Robin Thibo-deaux appeal the rendition of judgment in favor of Plaintiff, Troy A. Lopez, pursuant to a motion for summary judgment. After reviewing the record herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Gussie Lopez was a client of Glenn Thi-bodeaux’s accounting business. In 2003, Glenn and his wife, Robin, borrowed $350,000.00 at five percent interest from Gussie, signing a promissory note for 120 installment payments of $3,712.29 to her and to her sole heir, Troy A. Lopez, after her death. Defendants further signed an act of pledge of their interest in 100 shares of common stock of Shelly Enterprises, Inc. Gussie having died in the interim, Troy filed a Petition on Promissory Note in September 2006, seeking judgment in his favor and against the Thibodeauxs in the amount of $314,961.41, plus 5% interest from February 21, 2003, and for an attorney’s fee of 25% of the principal and interest due. Plaintiff’s petition alleged that the Thibodeauxs made sixteen payments, then made no further payments. At same time the petition was filed, Plaintiff propounded a Request for Admission of Facts which was served at the same time as the petition.

Defendants filed an exception of failure to join an indispensable party, an answer, and a reconventional demand alleging defamation and slander. A hearing on the exception was set for December 4, 2006. Defendants moved to continue that motion and was reset for February 21, 2007. Plaintiff moved for a continuance and the hearing was again moved to November 19, 2007. There is no indication of record of a further continuance. However, no hearing on the exception was ever held.

|2In October 2008, Plaintiff filed a Motion to Deem Request for Admission of Facts Admitted, and an order deeming them admitted was signed on October 29, 2008. Plaintiff filed a Motion for Summary Judgment on November 21, 2008, asserting that no question of fact remained as to Defendants’ liability for the amount claimed in the original petition and asking for judgment in his favor. The next document of record is Plaintiffs’ Memorandum Opposing Motion to Continue Hearing On Plaintiffs’ Motion for Summary Judgment dated December 30, 2008.

Also filed December 30, 2008 is a Memorandum in Opposition to Motion to Deem Request for Admission of Facts Admitted which included, without so stating in the caption, an opposition to the motion for summary judgment. It is also argued in the memorandum that the Requests for Admission were improperly served on Defendants rather than on their counsel. On the same day, Defendants filed a Response to the Request for Admission of Facts and a Motion to Reset Hearing on the Motion for Summary Judgment. The Motion to Reset Hearing was denied by the trial court. The record also contains correspondence from counsel for Defendants to counsel for Plaintiff asking for an agreement to reschedule as well as counsel for Plaintiffs response stating that he would not agree to a continuance.

A hearing on the motion to continue was held on January 5, 2009, and counsel for Defendants did not appear. His failure to appear was discussed as follows:

LAW CLERK: They’re the ones that called and said that they wanted to they had filed a Motion to Continue, and that there was no opposition. And I think Phyllis had told them since it wasn’t opposed!,] it would be continued but that’s—
THE COURT: You understand what went down? Someone evidently, they called and asked for a continuance saying there was no opposition, and my secretary probably said as long as there’s no opposition, that’s no problem, and they’re not here. You want to—
MR. KREAMER: Judge, I got a phone call from Judge Keaty’s law clerk at the same time that that came in, that request came in. She called me to make sure there was no opposition because his Motion to Continue said and attached my letter saying I did oppose it. She called me to say to see if that in fact was correct. I told her no. We filed an opposition memorandum in opposition to their Motion to Continue. His motion said it wasn’t it was unopposed. The law clerk for Judge Keaty caught that, and that’s why she called me, and I said, oh, no, we oppose it. So, it was my impression that she was calling someone to tell them it was going to go forward.

The matter was moved to last on the docket, but counsel for Defendants did not appear, and the trial court ruled in favor of Plaintiffs. Defendants appeal.

DISCUSSION

Novation

Several of Defendants’ arguments, including the Exception of No Right or Cause of Action filed in this court, turn on an argument that a novation and/or payment occurred in which Gussie Lopez agreed to accept payment of $172,500.00 in fifteen payments of $500.00, ten yearly payments of $10,000.00, and a final payment of $8,750.00 on May 15, 2016. Additionally a policy insuring the life of Glenn Thibodeaux was to be assigned to Gussie and Troy.

“Extinguishment of an obligation in any manner, such as payment or novation, is an affirmative defense and a party asserting such a defense bears the burden of proof. Beasley v. Martin, 258 So.2d 801 (La.App. 2d Cir.1971).” Boon v. Boon, 593 So.2d 1289, 1292 (La.App. 1 Cir.1991).

Louisiana Code of Civil Procedure Article 1005 provides that a defendant’s answer must affirmatively set forth all affirmative defenses. In Dixie Savings and Loan Assoc. v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, the Fifth Circuit addressed this exact issue and held that no proof could be offered in connection with the proposed affirmative defense because the defendant failed to specifically plead the affirmative defense at issue.

Royal Cloud Nine, L.L.C. v. Lafayette Ins. Co., 08-0084, pp. 5-6 (La.App. 4 Cir. 6/11/08), 987 So.2d 355, 359, writs denied, 08-1551 (La.10/10/08), 993 So.2d 1286, 08-1568 (La.10/10/08), 993 So.2d 1287.

Since Defendants failed to plead either novation or payment in their Answer to the original Petition, they could not do so afterwards, and their attempt to do so in connection with their Memorandum in Opposition to Motion to Deem Request for Admission of Facts Admitted was untimely. The trial court was correct in not considering the allegations of novation in ruling on Plaintiffs Motion for Summary Judgment. Further, on appeal we cannot accept Defendants’ documentary evidence with regard to novation in connection with their peremptory exceptions of no cause or right of action, where the evidence was not admitted at the trial court level.

Request for Admission of Facts

Defendants’ arguments further turn on their assumption that their answers to Plaintiffs Request for Admission of Facts were timely answered and that those answers should have been considered in opposition to Plaintiffs Motion for Summary Judgment.

At the trial level, Defendants argued that the Requests for Admission had not been properly served on their counsel. However, a review of the record reveals that the requests were properly served on Defendants at the same time as the petition, on September 6, 2006. La.Code Civ.P. art. 1466 provides that:

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Articles 1422 through 1425 set forth in the request or of the truth of any relevant matters of fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after [ .^commencement of the action and upon any other party with or after service of the petition upon that party.

When served with the petition, a defendant has thirty days to answer or object to the requests for admission. La.Code Civ.P. art. 1467. Failure to do so may result in the matters included being deemed admitted:

Generally, the courts have given full effect to Articles 1467 and 1468 when there has been a total lack of response to requests for admissions. Prestage v. Clark, 97-0524, p. 7 (La.App. 1 Cir. 12/28/98), 723 So.2d 1086, 1090, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800; Vardaman v. Baker Center, Inc., 96-2611, p. 7 (La.App. 1 Cir. 3/13/98), 711 So.2d 727, 732. The language of Article 1467 is very clear; the matter is admitted unless a written answer or objection is served on the party making the request within the specified time after service of the request. Prestage, 97-0524 at p. 7, 723 So.2d at 1090; Vardaman, 96-2611 at p. 9, 711 So.2d at 732-33. However, Article 1467 is not a trap set for the litigant; it provides many options for the party on whom the request is served. For example, if the party cannot answer within the specified time, the court may allow additional time. See LSA-C.C.P. art. 1467; Prestage, 97-0524 at pp. 7-8, 723 So.2d at 1090. Additionally, a party against whom a fact has been deemed admitted has the opportunity to seek to have the fact withdrawn or amended. See LSA-C.C.P. art. 1468; Vardaman, 96-2611 at p. 9, 711 So.2d at 733. However, if a party fails to take any steps available to it, the fact is admitted and, according to Article 1468, is conclusively established. Vardaman, 96-2611 at p. 9, 711 So.2d at 733.

Dan-Cin Constr. Co., Inc. v. Thrasher, 08-1552, p. 5 (La.App. 1 Cir. 2/13/09), 9 So.3d 205, 208.

The determination of whether a withdrawal or amendment should be allowed is within the discretion of the trial court. La.Code Civ.P. art. 1468.

In this case, Defendants had not responded to the Requests for Admissions more than two years after service. On October 28, 2008, the trial court granted a request to have the requests for admissions deemed admitted. On December 30, 2008, Defendants filed a Motion in Opposition to Motion to Deem Request for Admission of Facts Admitted and filed a response to the Request for Admissions. | (¡Defendants did not take the steps set out in the Code of Civil Procedure to prevent the facts being deemed admitted, and even if we take the belated Motion in Opposition and answers as such steps, we find no abuse of the trial court’s discretion in its refusal to withdraw the order deeming the facts admitted.

Summary Judgment

Defendants assert that the trial court erred in granting the Summary Judgment, arguing that the affidavit of Glenn Thibodeaux and their response to the Request for Admission of Facts raise a material issue of fact. However, as we have noted above, the defense of novation not having been pled in the Answer to the Petition herein, the matter was not properly before the court, and the trial court did not err in failing to consider the defense of novation in connection with the Motion for Summary Judgment.

Additionally, the Requests for Admission not having been answered for over two years and judgment having been rendered deeming the facts admitted, the trial court properly considered the facts set forth in the Request to be proven, as follows: request:

1. Both Glenn A. Thibodeaux and Robin Pierce Thibodeaux executed the promissory note for $350,000.00 plus interest at the rate of 5% per annum, together with 25% as attorney’s fee, on February 21, 2003, and made payable in 120 installments of 53,712.29 each, made payable to Gussie Whittington [Lopez] and Troy A. Lopez after her death.
2. The note was not paid as agreed and there remains a balance due of $314,961.41, together with interest and attorney’s fee.
3. The note was secured by a pledge of common stock certificate number 2 representing 100 shares in Shelly Enterprises, Inc.
4. You still own common stock certificate number 2 in Shelly Enterprises.

17Given these facts, there is no question of fact remaining, and Plaintiffs are entitled to judgment as a matter of law. Accordingly, the Summary Judgment was properly granted.

Exception of Failure to Join Indispensable Party

Defendants further assert that the trial court erred in failing to rule on and/or grant their Peremptory Exception of Failure to Join an Indispensable Party. Defendants argue that Shelly Enterprises was an indispensable party because Gussie accepted stock in Shelly Enterprises in satisfaction or partial satisfaction of the debt. However, no evidence of her acceptance of the stock was filed in the lower court and no such evidence could have been accepted since the affirmative defenses of payment and/or novation were not pled. Accordingly, we cannot say that the trial court erred in failing to grant the Exception of Failure to Join an Indispensable Party.

Exception of No Cause and No Right of Action

Defendants filed Exceptions of No Right and No Cause of Action in this court for the first time on appeal.

La.Code Civ.P. art. 2163 (emphasis added) provides that:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

Defendants are again asserting novation and/or payment as grounds for the exceptions. Defendants attempt to introduce evidence by attaching it to the exception. However, this court may not consider evidence not made part of the record on appeal. Therefore, the exceptions are denied.

^Continuance

In their reply brief, Defendants assert that the trial court erred in not granting the Motion for Continuance filed December 29, 2007, asking for a continuance of the hearing scheduled January 5, 2008.

We first note that Defendants did not assign as error the failure to grant the continuance. However, we will address the issue out of an abundance of caution and in the interest of judicial economy.

Defendants cite La. Code Civ.P. art 966(B) for the proposition that Glenn Thibodeaux’s surgery shortly prior to the hearing on the Motion for Summary Judgment constituted good cause requiring that they be given extra time to respond. La.Code Civ.P. art 966(B) provides as follows:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

However, Glenn’s affidavit was attached to the opposition to the motion. We note that “[testimony should neither be received nor considered, even with consent of counsel, to decide motion for summary judgment.” Rapp v. City of New Orleans, 95-1638, p. 2 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, writ denied, 96-2925 (La.1/24/97), 686 So.2d 868. Therefore, even had he been able to attend a hearing, his testimony could not have been elicited. Moreover, Defendants have not explained 19what further evidence they expected to develop with the additional time and have, thus, failed to show that they were prejudiced by the failure to grant further time. Accordingly, the trial court did not abuse its discretion in failing to grant the continuance.

CONCLUSION

For these reasons, we affirm the trial court’s judgment in favor of Plaintiff, Troy A. Lopez. Cost of this appeal are assessed to Defendants, Glenn and Robin Thibo-deaux.

AFFIRMED.


text:
    Darrel WILLIAMS v. HOUSING AUTHORITY OF the CITY OF LAFAYETTE and Walter Guillory.
    No. 09-753.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Roy J. Richard, Jr., Daniel James Stanford, Lafayette, LA, for Defendants-Appellants, Lafayette Housing Authority and Walter Guillory.
    M. Candace Hattan, Lafayette, LA, for Plaintiff-Appellee, Darrel Williams.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| defendants, the Lafayette Housing Authority (LHA) and Walter Guillory, appeal the trial court’s judgment finding it liable for injuries sustained by Plaintiff, Darrel Williams, when he fell in a hole allegedly located on LHA controlled property. After considering the Defendants’ assignments of error, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On August 14, 2006, Plaintiff went to visit his sister, Lois Wells, at 1128 Irene Street in the Irene Street Housing Development in Lafayette, Louisiana. The Irene Street Housing Development is owned and/or controlled by the LHA. The parking place assigned to 1128 Irene Street was occupied, so Plaintiff parked at the curb in front of the house. He got out of his vehicle, and as he walked across the grass between the curb and the sidewalk, he fell into a three foot deep hole and was injured.

On June 6, 2007, Plaintiff filed suit against the LHA and Walter Guillory, its Executive Director. At the same time, Plaintiff filed and served Defendants with Requests for Admissions as follows:

REQUEST FOR ADMISSION NO. 1
Admit or deny that the property as described in the attached Petition is property which you have custody, control and/or a duty to manage.
REQUEST FOR ADMISSION NO. 2
Admit or deny that you own and/or are responsible for maintenance and upkeep of the site of the defective condition described in the attached Petition.

^Defendants answered the petition with a general denial on June 27, 2007. On September 14, 2007, Defendants filed responses to the Requests for Admissions, admitting both.

The matter was tried to the judge on February 25, 2009, and judgment was rendered in favor of Plaintiff on March 20, 2009. Defendants appeal.

DISCUSSION

Custody

Defendants first assert that the trial court erred in finding that their admission that the LHA had custody of the property described in the petition and where the accident occurred is an admission that the LHA had custody of the location of the hole into which Plaintiff fell. Defendants argue that the petition does not make it clear that the hole was located between the curb and the sidewalk and that had they known its actual location, they would have responded differently in that they contend that the area between the sidewalk and the curb was not their responsibility. They further assert that the trial court erred in refusing to allow them to amend their answer and/or pleadings to plead the affirmative defense of third party fault as a result of their receipt from Plaintiff of a photograph showing the location of the hole. They assert that the late production of the photograph denied them the opportunity to develop their case. Defendants had ample opportunity to inspect the property and to depose the parties and/witnesses prior to the exchange of the photograph. Had they done so, they would have discovered the location of the hole into which Plaintiff fell.

The trial court denied Defendants’ motion to amend its answer stating that:

THE COURT: I am going to deny the motion for leave of court to amend as being untimely, counsel for the plaintiff having not received |4a copy until the Court presented it to her this morning in connection with the motion to continue, which was scheduled at 10:00 this morning. And I had this, and I said, well, what about this motion for leave of court to file an amending answer? And she said, what are you talking about? So there’s been no opportunity to do that.
And the admissions I think are admitted. There has been no motion pretrial, other than the day of trial to withdraw those. I mean, rules are rules. We have to follow them. If the housing authority chooses to come to trial with the degree of preparation that they have exhibited in this case then that’s certainly their prerogative.

La.Code Civ.P. art. 1151 provides, in pertinent part that: “A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the ... answer may be amended only by leave of court or by written consent of the adverse party.” La.Code Civ.P. art. 1468, entitled Requests for admissions; effect of admission, provides that:

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Article 1551 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under Articles 1466 and 1467 is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

“The district court has broad discretion in regulating pretrial discovery, and its decisions will not be disturbed on appeal absent a clear abuse of that discretion.” Rodsuwan v. Christus Health Northern Louisiana, 41,043, p. 7 (La.App. 2 Cir. 5/17/06), 930 So.2d 1116, 1120. Given LHA’s failure to investigate before answering the Requests for Admissions, the time that elapsed between the responses to the admissions and the trial, and the last minute motion to amend, we find no abuse |Bof the trial court’s discretion in its decision to disallow the amendment and/or the withdrawal of the admissions.

Knowledge of the Defect

Defendants further assert that the trial court erred in finding that they had actual or constructive knowledge of the defect at the time of the incident. Defendants cite La. R.S. 9:2800 in 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.
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 custody was both admitted by Defendants in the responses to Plaintiffs Requests for Admissions and proven through the uncontradicted testimony of Lois Wells, who stated that the property, including the area in which the hole was located, was maintained solely by employees of the LHA, wearing uniforms identifying them as such, and driving LHA trucks. She further testified that she saw employees of the LHA perform maintenance around the edge of the hole with a weed-eater two or three times during the month prior to the accident and that the hole was later filled in by employees of the LHA. Defendants argue that Wells’ knowledge of the hole does not prove that the LHA had notice unless Plaintiff shows that an actual employee or ^representative of the LHA was actually notified. However, Wells’ un-contradicted testimony was that employees of the LHA did lawn maintenance around the edge of the hole several times prior to the accident. We find that this testimony is sufficient to prove notice to the LHA.

Causal Link

Defendants next assert that Plaintiff failed to show that his post-accident symptoms were related to the fall rather than to his previous disability. Defendants point to Plaintiff’s testimony that he has been disabled since 2001 and has a history of neck and back pain prior to the accident.

Plaintiffs burden in this case is to prove his injuries and a causal connection between the injuries and the accident by a preponderance of the evidence. In spite of Plaintiffs preexisting condition, he is entitled to compensation if the accident aggravated that condition. Plaintiff must, however, establish a causal link between the accident and the aggravation. White v. State Farm Mut. Auto. Ins. Co., 97-1704 (La.App. 3 Cir. 4/29/98), 713 So.2d 618, writ denied, 98-1429 (La.7/2/98), 724 So.2d 741.

Our review of the testimony reveals that Plaintiffs prior disability was the result of heart problems, Hepatitis C, and high blood pressure. Plaintiff testified that prior to the accident, he worked eight hours a day, and was able to ride his bicycle “all day” to do errands for his employer. He further stated that after the accident, he couldn’t ride his bicycle more than half a mile, his neck and back pain occurred more frequently, he had trouble sleeping, and wasn’t able to work a full eight hours.

‘Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Blackshear v. Allstate Ins. Co., 94-765, pp. 10-11 (La.App. 8 Cir.12/7/94); 647 So.2d 589 at 595; citing Mart v. Hill, 505 So.2d 1120 (La.1987).

Viviano v. Progressive Sec. Ins. Co., 05-125, p. 8 (La.App. 8 Cir. 1/11/06), 920 So.2d 313, 319, writ denied, 06-0359 (La.4/28/06), 927 So.2d 290. Given the evidence adduced at trial, we find no error in the trial court’s conclusion that Plaintiff established a causal link between the accident and his injury.

Damages

Finally, Defendants assert that Plaintiff failed to prove the amount of lost income resulting from the accident and injury. The trial court discussed Plaintiffs’ lost income as follows:

At the time of the accident, plaintiff testified that he was employed by Elizabeth Dugal and that he was working 8 hours a day, 5 days a week, at a pay rate of $7.00 per hour. Therefore, plaintiffs pay was approximately $280.00 per week. After the accident, plaintiff testified that he was unable to work and had to take two (2) weeks off of work. Based upon plaintiffs uncontroverted testimony, the court awards plaintiff $560.00 in lost income.
The plaintiff further testified that, since the occurrence complained of in this lawsuit, he has not been able to work the same numbers of hours he was working before the accident.
Plaintiff submits that after the accident, he had to reduce the amount of time he worked for Elizabeth Dugal from 8 hours to 5 hours a day. At the time of the accident, plaintiffs rate of pay was $7.00 per hour. Therefore, plaintiff has lost approximately $21.00 per day because of his diminished capacity to perform the only work he knows. Plaintiff testified that around May of 2007, he quit working for Ms. Dugal because he “had a disagreement with her”. However, plaintiff began employment with another employer doing the same type of work that he used to do for Ms. Dugal.
Plaintiff testified that he continued to only be able to work 5 hours a day, 5 days a week. Due to the lack of medical evidence as to |splaintiffs current level of disability as a direct result of this accident, it is difficult for the court to determine the length of time plaintiff is entitled to loss of earning capacity. Based upon the facts of the case, the testimony given, and the evidence submitted, the court finds that it is fair and reasonable to award plaintiff loss of earning capacity beginning with his return to work approximately 2 weeks after the August 16, 2006 accident and ending with his last appointment with Dr. Cobb on August 13, 2007.
Although it is difficult to discern the extent of plaintiffs injuries as a result of this incident because of his pre-existing condition, plaintiffs uncontroverted testimony is that he could not return to work full time after this accident because of his back and neck pain. Plaintiffs testimony is supported by Dr. Cobb’s December 2006 notation that he is “unable to work at this time, that plaintiff get MRIs of his cervical and lumbar spine, and that plaintiff complete a physical therapy program of 3 days a week for 6 weeks”. The medical records show that at his December 21, 2006 visit at the Physical Therapy Clinic of Lafayette, plaintiffs current level of function was listed as “disabled”.
However, plaintiff testified that he continued to work at this time and the medical records show that plaintiff was seen for therapy only for a total of 6 treatment visits. Moreover, as of the date of trial, plaintiff had not undergone the recommended MRI procedures. At plaintiffs visit with Dr. Cobb on August 13, 2007, Dr. Cobb again recommended a physical therapy program along with cervical and lumbar spine MRIs. Plaintiff was not given an appointment to return at that time. Based upon the above factors, the court finds that plaintiff is entitled to an award for loss of income after his return to work 2 weeks after the accident, on or around September 4, 2006, until his release from Dr. Cobb’s care on August 13, 2007, or approximately 49 weeks. As stated above, plaintiff lost income in the amount of $21.00 per day, or about $105.00 per week. Based upon plaintiffs uncontro-verted testimony and the medical evidence submitted, the court awards the plaintiff an additional $5,145.00 for loss of income due to the injuries suffered in this incident.

“Under Louisiana jurisprudential law, wage losses may be established by any proof which reasonably establishes the claim, including the plaintiff’s own reasonable testimony.” Todd v. Delta Queen Steamboat Co., 07-1518, p. 4 (La.App. 4 Cir. 8/6/08), 15 So.3d 107, 112, (quoting Daniels v. Burridge, 00-1089, p. 7 (La.App. 4 Cir. 3/21/01), 785 So.2d 906, 911). In this case, the trial court clearly found |9Plaintiffs testimony reasonable and credible. On reviewing the record herein, we find that the credibility evaluation had a reasonable basis in the record and, therefore, we will not overturn the award made on that basis.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants.

AFFIRMED.