text:
    IN RE: Medical Review Panel for the Claim of Warren ALBARADO
    Patricia Albarado v. University Healthcare System, L.C. D/B/A Tulane University Hospital and Clinic
    NO. 2018-CC-1888
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Angela JACKSON v. FAMILY DOLLAR STORES OF LOUISIANA INC., S & S Janitorial Services, LLC SMS Assist, LLC
    NO. 2018-C-1892
    Supreme Court of Louisiana.
    January 18, 2019
    Denied.


text:
    STATE EX REL. Christephan M. WESLEY A/K/A Christopher Wesley v. STATE of Louisiana
    NO. 2017-KH-1002
    Supreme Court of Louisiana.
    January 18, 2019
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana IN the INTEREST OF S.M., Jr.
    NO. 2019-CK-0112
    Supreme Court of Louisiana.
    January 18, 2019
    Not Considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE EX REL. Edmond CHAISSON v. STATE of Louisiana
    NO. 2017-KH-1456
    Supreme Court of Louisiana.
    January 28, 2019
    Not considered. See La.S.Ct.R. IX § 6.


text:
    STATE of Louisiana v. Lawrence WILLIAMS
    NO. 2018-KH-1330
    Supreme Court of Louisiana.
    January 28, 2019
    Not considered. See La.S.Ct.R. IX § 6.


text:
    STATE of Louisiana v. Douglas AUGUSTUS
    NO. 2017-KP-1746
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    Steven CAMPBELL v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-0359
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


text:
    STATE of Louisiana v. Chrystal CLUES-ALEXANDER
    NO. 2018-KK-1977
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    STATE of Louisiana v. Santiago Alonso GONZALEZ, Sr. aka Santiago Alonso Gonzalez aka Sontiago Gonzalez
    NO. 2018-K-1224
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   HUGHES, J., would grant.


text:
    Michael LEDET v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-C-1751
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   HUGHES, J., would grant.


text:
    IN RE: Medical Review Proceedings for Kathleen NOELKE
    NO. 2018-CC-1930
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


author: GENOVESE, J., would grant.

text:
    Jamal WRIGHT, et al. v. The STATE of Louisiana, O/B OF Jamie ALLEYE, M.D., Ashley Van Wormer, M.D., Monique Sutherland, M.D., Megan Bina, D.O., and Ashley M. Hirsch, M.D.
    NO. 2018-CC-1931
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    Roger P. WILLIAMS v. Kelly WOOD änd Michael R. Wood, ABC Insurance Company, Paul Dileo and a Home Check by Paul Dileo, LLC
    NO. 2018-C-1946
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


author: WEIMER, J., would grant.

text:
    Diana DERUISE-PIERCE, Surviving Spouse of Roy T. Pierce v. UNIVERSITY HEALTHCARE SYSTEM, L.C. d/b/a Tubane University Hospital and Clinic, University Medical Center Management Corporation d/b/a/ University Medical Center New Orleans, Davis Wendell Ogitani, M.D., Brian Conkerton, R.N. and Danielle Williams-Johnson, R.N.
    NO. 2018-C-1886
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   WEIMER, J., would grant.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Leslie C. THOMPSON
    NO. 2018-KK-1971
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.
   JOHNSON, C.J., would grant.


text:
    Godfrey T. FAGOT v. DOW CHEMICAL COMPANY, The, et al.
    NO. 2018-C-1976
    Supreme Court of Louisiana.
    January 28, 2019
    Denied.


author: PERRET, Judge.

text:
    Donovan Luke FONTENOT v. TOWN OF MAMOU
    18-301
    Court of Appeal of Louisiana, Third Circuit.
    December 19, 2018
    Patrick Hannon Patrick, Patrick, Miller, LLC, 400 Poydras St., # 1680, New Orleans, LA 70130, (504) 527-5400, COUNSEL FOR PLAINTIFF-APPELLANT: Donovan Luke Fontenot
    Jonathan Clyde Vidrine, West & Vidrine, 510 West Magnolia, Ville Platte, LA 70586, (337) 363-2772, COUNSEL FOR DEFENDANT-APPELLEE: Town of Mamou
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   PERRET, Judge.

This appeal requires this court to review a judgment declaring the Town of Mamou ("the Town") the legal owner of a sewerage lift station as well as the legal owner of the tract of land on which the lift station sits. Plaintiff, Donovan Fontenot ("Mr. Fontenot"), appeals the judgment, asserting that he is the lawful owner of both the disputed land and the lift station. We reverse the judgment finding the Town the lawful landowner and remand the case to the trial court for a hearing to determine what rights the Town has in the lift station.

Factual and Procedural Background:

Mr. Fontenot filed a Petition for Declaratory Judgment or to Quiet Title on March 16, 2017. In his petition, Mr. Fontenot alleged he purchased property on December 9, 2015, which included the disputed property. A professional survey was conducted from which Mr. Fontenot learned that the Town's sewerage lift station is partially located on his property. While the lift station access stairs are located on the Town's right of way, not on Mr. Fontenot's property, most of the structure is on Mr. Fontenot's property. Mr. Fontenot alleged that a public records examination showed "no servitudes, right-of-way, grants, easements or any indicia that the lift station structure is or was permitted" to be built. Mr. Fontenot sought a declaratory judgment that he is owner of the lift station. In its Answer, the Town denied Mr. Fontenot's ownership of the lift station and, instead, asserted that it is the owner of not only the lift station, but also the land it sits upon.

At the bench trial on the merits, the evidence, joint stipulations, and testimony established that in 1980 and 1981 the Town was petitioned by the landowners to annex land. In 1981, the Town adopted a resolution and ordinance to incorporate several acres of land, including the area in dispute, within the corporate limits of the Town. In 1981, the Town adopted a resolution to install the sewerage lift station at issue, at the behest of a sub-division developer who wished to be connected to the Town sewerage system.

The parties stipulated that on December 9, 2015, Mr. Fontenot acquired the property in dispute from Robert Miller. The cash sale, which was also submitted into evidence, included an attached plat of survey by Brandon Breaux. The survey notes that "no attempt has been made ... to verify title, actual legal ownership, servitudes, easements, rights of way or other burdens on the property[.]" The parties also stipulated that the Town built the lift station on the property at issue in December of 1981 and has continually operated and maintained the station since then. Lastly, the parties stipulated that testimony from Guy Pucheu, the Town's city clerk, would corroborate that of Mayor Fontenot's, which was that the Town has not received any claims, inquiries, notices, lawsuits, or any other disturbances as to the Town's possession of the lift station or any requests or demands that lease or rental payments be made to the landowner.

Mr. Fontenot testified that his request for public records of permits or easements from the Town concerning the lift station produced no documents regarding the allowance of the lift station on the property. Ricky Fontenot, the current mayor of Mamou and a prior city councilman, also testified that, to his knowledge, the Town has always maintained the lift station and mowed the grass. He further stated that he is unaware of any prior owner disputing the Town's ownership of the lift station or denying access to the lift station. However, he also testified that, to his knowledge, there is nothing filed in the conveyance records of the parish regarding the lift station.

The trial court took the matter under advisement and rendered written reasons and a judgment in favor of the Town. In its written reasons, the trial court found that the evidence presented, including the Town's meeting minutes, ordinances, and public business records proved the Town's "acquisition and ownership of said lift station" and that the lift station has been thus possessed and maintained by the Town since 1982. Additionally, the trial court found that Mr. Fontenot's petition judicially admitted the Town's ownership of the lift station. The trial court also concluded that the land beneath the lift station was "formally and properly annexed and incorporated by the Town of Mamou[,]" and ordered that the Town be "declared the legal and lawful owner of that certain tract of land, along with the said public sanitary sewage lift plant[.]" Mr. Fontenot now appeals the judgment, asserting that the trial court (1) incorrectly applied the law of thirty-year acquisitive prescription to conclude the Town owns the land upon which the lift station is built, and (2) erred in determining Mr. Fontenot is not the owner of the lift station.

Standard of Review:

An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD , 617 So.2d 880 (La.1993), Rosell v. ESCO , 549 So.2d 840 (La.1989). Errors of law are reviewed de novo. Land v. Vidrine , 10-1342 (La. 3/15/11), 62 So.3d 36."

Discussion:

The trial court concluded the Town acquired ownership of immovable property via thirty-year acquisitive prescription. The supreme court has declared that a political subdivision may not acquire full ownership of immovable property for any public purpose through acquisitive prescription, though it may acquire servitudes by prescription. Parish of Jefferson v. Bonnabel Properties, Inc. , 93-276 (La. 9/2/93), 620 So.2d 1168. Therefore, we find that the trial court legally erred in its application of the law, which necessitates a de novo review on appeal.

Boudreaux v. Cummings , 14-1499 (La. 5/5/15), 167 So.3d 559.

Ownership of the Land:

The first assignment of error addresses the ownership of the land beneath the lift station. Mr. Fontenot argues that because all prior landowners permitted both the construction and use of the lift station, the Town did not possess the land under the lift station adversely and is thus a precarious possessor for whom acquisitive prescription cannot run in its favor. The Town argues that it was permitted to annex this property into the city and then permitted to build and operate the lift station without payment, lease, or any signed documents for over thirty-five years. The town further argues that it gave actual notice to the original owner of its intent to use the land as owner, which it asserts is reflected in the Town meeting minutes, letters, and contract for construction in evidence. Therefore, the Town argues that acquisitive prescription commenced in its favor.

The supreme court in Parish of Jefferson , 620 So.2d 1168, determined that political subdivisions may not acquire ownership of immovable property for any public purpose by way of acquisitive prescription. In Parish of Jefferson , the Parish sued to quiet title to certain alleyways in a subdivision. Although the subdivision streets were dedicated to public use, the alleyways were instead dedicated to the use of the adjacent lot owners. Despite these dedications, the Parish included the alleys within their fenced-in area used for a sewerage treatment plant and other constructions. The Parish alleged ownership of the alleys by acquisitive prescription under La.Civ.Code arts. 3446 and 3486. The supreme court determined a governmental subdivision did not have authority to acquire full ownership of immovable property through acquisitive prescription and based this conclusion on the determination that La.Const. art. 6, § 23, which permits political subdivisions to acquire property by "purchase, donation, expropriation, exchange, or otherwise," does not include by way of acquisitive prescription. Id.

Louisiana Constitution Article 6, section 44, defines "political subdivision," for purposes of article 6, as a "municipality" which is further defined as "an incorporated city, town, or village." Thus, we find that the Parish of Jefferson decision is applicable to the case at hand, and that as a political subdivision, the Town may not acquire ownership of the subject property via acquisitive prescription.

Notwithstanding the above decision, we find that the trial court erred in finding the Town was not a precarious possessor, thus preventing acquisitive prescription from commencing. "The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession." La.Civ.Code art. 3437. "Acquisitive prescription does not run in favor of a precarious possessor or his universal successor." La.Civ.Code art. 3477. A precarious possessor "commences to possess for himself when he gives actual notice of this intent to the person on whose behalf he is possessing." La.Civ.Code. art. 3439.

The record evidences that the Town was asked to connect certain land to the Town's sewerage system, which required the construction of the lift station. The Town held town meetings regarding the construction of the lift station and subsequently built the station. The evidence suggests only that the Town was requested to connect the sewerage system; that the landowners permitted the construction of the lift station; and that the landowners never interfered with the Town's maintenance or operation of the lift station. There is no evidence in the record that indicates the Town gave actual notice of its intent to possess the land as owner to any of the landowners. Consequently, we find the Town never terminated its precarious possession.

Additionally, the trial court seems to imply that the Town's annexation of the land may entitle the Town to its ownership. However, annexation merely extended the corporate limits of the Town to include the land owned by the registered landowner. See generally La.R.S. 33:160(A) and La.R.S. 33:179. Therefore, without other documentation or recordings of ownership by the Town, the land under the lift station cannot belong to the Town, but instead belongs to Mr. Fontenot as the recorded landowner.

Accordingly, the trial court's judgment declaring the Town of Mamou to be the lawful owner of the land in dispute is reversed.

Ownership of the Lift Station:

Mr. Fontenot's second assignment of error addresses the ownership of the lift station. The trial court's judgment declared the Town the owner of the lift station. Mr. Fontenot asserts that he is the owner of the lift station because he acquired title in the Cash Sale, which included the tract of land plus all "buildings and improvements thereon." Mr. Fontenot also argues that because he is the owner of the land upon which the lift station is built, he is also owner of the lift station pursuant to La.Civ.Code art. 491. Louisiana Civil Code Article 491 states:

Buildings, other constructions permanently attached to the ground ... may belong to a person other than the owner of the ground. Nevertheless, they are presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located.

La.Civ.Code art. 493 states that "[b]uildings, other constructions permanently attached to the ground ... made on the land of another with his consent belong to him who made them." However, to assert such separate ownership against third persons, the separate ownership must be evidenced "by an instrument filed for registry in the conveyance records of the parish in which the immovable is located." La.Civ.Code art. 493 cmt (b); see also La.Civ.Code art. 491 and La.Civ.Code art. 491 cmt (c). In this case, the lift station is partially on Mr. Fontenot's land, and partially on the Town's right of way that runs adjacent to Mr. Fontenot's property. The record contains no evidence of the Town's having recorded such separate ownership of the portion that is on Mr. Fontenot's land. Thus, the Town cannot assert its ownership of that portion against Mr. Fontenot.

Under the particular facts in this case, because we reverse the trial court's judgment regarding the land ownership, we remand this matter to the trial court for a hearing to determine what other rights, if any, the Town may have in its continued operation and maintenance of the lift station (i.e., an implied dedication for public use, a St. Julien's servitude under La.R.S. 19:14, or possibly a servitude through acquisitive prescription), noting that the Town has operated the lift station and has paid for the function of the lift station for the benefit of the community since 1982.

Conclusion:

For the above reasons, the judgment of the trial court declaring the Town of Mamou the owner of the land in dispute is reversed. Furthermore, the case is remanded to the trial court for a hearing to determine the Town's rights in the operation of the lift station. Costs totaling $1,760.52 are assessed equally against the Town of Mamou and Donovan Fontenot.

REVERSED AND REMANDED.

      Although Mr. Fontenot's petition names the Town as defendant as the "operator and owner of the public sanitary sewerage system[,]" this statement does not equate to the admission that the Town owns the lift station structure.


author: Judge Terri F. Love

text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College v. 2226 CANAL STREET, L.L.C.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 201 South Miro Street, L.L.C. et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2300 Canal Street, L.L.C. et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 125 Galvez Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2330 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. PFD Two, L.L.C. (Formerly Known as Nora Two, L.L.C.) et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. PFD Three, L.L.C. (Formerly Known as Nora Three, L.L.C.), et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2404 Palmyra Street, L.L.C. et al.
    Board of Supervisors, et al. v. 2338 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. PFD One, L.L.C. (Formerly Known as Nora One, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. PFD Three, L.L.C. (Formerly Known as Nora Three, L.L.C.) et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2300 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 220 S. Johnson Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2120 Canal Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2105 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2115 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2113 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2107-09 Palmyra Street, L.L.C., et al.
    Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. PDF Three, L.L.C. (Formerly Known as Nora Three, L.L.C.), et al.
    Board of Supervisors of Louisiana State Agricultural and Mechanical College v. 2123 Palmyra Street, L.L.C., et al.
    NO. 2018-CA-0254 NO. 2018-CA-0255 NO. 2018-CA-0256 NO. 2018-CA-0257 NO. 2018-CA-0258 NO. 2018-CA-0259 NO. 2018-CA-0260 NO. 2018-CA-0261 NO. 2018-CA-0262 NO. 2018-CA-0263 NO. 2018-CA-0264 NO. 2018-CA-0265 NO. 2018-CA-0266 NO. 2018-CA-0267 NO. 2018-CA-0268 NO. 2018-CA-0269 NO. 2018-CA-0270 NO. 2018-CA-0271 NO. 2018-CA-0272 NO. 2018-CA-0273
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Leopold Z. Sher, James M. Garner, Thomas J. Madigan, II, Ryan Adams, Jacob A. Airey, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, 28th Floor, New Orleans, LA 70112-1033, COUNSEL FOR PLAINTIFFS/APPELLEES, 2226 CANAL STREET, L.L.C., ET AL.
    Kimberly K. Smith, Assistant City Attorney, Churita H. Hansell, Deputy City Attorney, Sunni J. LeBeouf, City Attorney, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT, NORMAN FOSTER, DIRECTOR OF FINANCE, CITY OF NEW ORLEANS
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Terri F. Love

This appeal arises from the expropriation of properties in New Orleans for the construction of new medical facilities following Hurricane Katrina. The parties involved reached a confidential settlement agreement. Following the settlement, the property owners moved to release the monies remaining in the registry of the court. The City of New Orleans opposed the release, contending that the monies represented property taxes due and owing. The property owners contended that the settlement agreement allotted them the monies. The trial court found that the settlement agreement did not reserve property taxes, and granted the release of the monies.

The City of New Orleans appealed alleging that the trial court committed manifest error and abused its discretion by releasing the monies in the registry of the court. We find that the settlement agreement entitled the property owners to the monies remaining in the registry of the court, and affirm the judgment of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louisiana State University and the Veterans Administration (collectively "LSU") expropriated properties in New Orleans for the construction of new medical facilities. During the expropriation process and litigation, LSU deposited funds representing the value of the properties into the registry of the court. The property defendants withdrew the funds from the registry except for the amount of alleged property taxes due. The amount of alleged property taxes remained in the registry of the court pending resolution of the amount of taxes owed.

Following negotiations, the parties entered in a confidential settlement agreement ("Settlement"), which was signed by all parties to the litigation. The Settlement provided that the defendants could withdraw the funds remaining in the registry of the court. These funds were previously earmarked for property taxes. The property defendants filed Motions to Enforce Settlement Agreement and to Withdraw Remaining Funds from the Registry. The City of New Orleans opposed the motion to withdraw the funds, asserting that it never waived the right to collect property taxes. The trial court found that the City could have specifically reserved the right to the funds remaining in the registry or property taxes in the Settlement, but did not. The trial court granted the Motions to Enforce Settlement Agreement and to Withdraw Remaining Funds from the Registry. The City's suspensive appeal followed.

STANDARD OF REVIEW

"It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong.' " Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). "[W]here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Id. "[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even" if "it would have weighed the evidence differently." Id. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id. "In applying the manifestly erroneous-clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo ." Id.

"Legal issues are reviewed with the de novo standard of review." Gordon v. Gordon , 16-0008, p. 3 (La. App. 4 Cir. 6/8/16), 195 So.3d 687, 689.

"A district court's 'interpretation of an alleged compromise agreement is subject to manifest error/clearly wrong review.' " Feingerts v. State Farm Mut. Auto. Ins. Co. , 12-1598, p. 4 (La. App. 4 Cir. 6/26/13), 117 So.3d 1294, 1297, quoting Hancock Bank of Louisiana v. Holmes , 09-1094, p. 6 (La. App. 5 Cir. 5/25/10), 40 So.3d 1131, 1134.

SETTLEMENT AGREEMENT

The City contends that the trial court abused its discretion "by reading outside the terms of the settlement agreement" and committed manifest error by not giving effect to the language contained in the Settlement. Thus, the City asserts that the trial court should not have granted the Motion to Enforce Settlement Agreement and Withdraw Fund from the Registry, as it incorrectly interpreted the Settlement provisions. Thus, we must examine and interpret the Settlement.

"A compromise agreement to avoid litigation is favored by law." Borchardt v. Carline , 617 So.2d 970, 973 (La. App. 4th Cir. 1993). "A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship." La. C.C. art. 3071. "A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express." La. C.C. art. 3076. This Court further outlined our law and procedures for interpreting contracts as follows:

In interpreting contracts, we are guided by the general rules contained in La. C.C. arts. 2045 - 2057. La. C.C. art. 2045 states that the interpretation of a contract is the determination of the common intent of the parties. To ascertain the parties' intent, the court must first look to the words and provisions of the contract. Amend v. McCabe , 95-0316, p. 7 (La. 12/1/95), 664 So.2d 1183, 1187. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. When the language of the contract is unambiguous, the letter of the clause should not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 2046, comment (b). Moreover, to determine the meaning of words used in a contract, a court should give them their general prevailing meaning. If a word is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. A provision susceptible to different meanings must be interpreted with a meaning that renders the provision effective, and not with one that renders it ineffective. La. C.C. art. 2049. The meaning and intent of the parties to a written instrument is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms thereof. Ortego v. State, Dept. of Transp. and Development , 96-1322, p. 7 (La. 2/25/97), 689 So.2d 1358, 1363. Contracts, subject to interpretation from the instrument's four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after examination of the four corners of the agreement. Richard A. Tonry, P.L.C. ex rel. Tonry v. Constitution State Service, L.L.C. , 2002-0536, p. 3 (La. App. 4 Cir. 7/17/02), 822 So.2d 879, 881. Therefore, each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Doubtful provisions must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. La. C.C. art. 2053.

French Quarter Realty v. Gambel , 05-0933, pp. 6-8 (La. App. 4 Cir. 12/28/05), 921 So.2d 1025, 1029-30.

The Settlement began with the following language: "The undersigned parties to this Settlement, Stipulation and Release Agreement ("Agreement") agree to compromise and settle the disputes and controversies existing among them on the terms and conditions set forth herein." (Emphasis added). Section 3 provided the following:

Recital . Whereas the Parties have engaged in good-faith negotiations for the purpose of resolving the Actions and Defendants' claims that were raised or that could have been raised in the Actions ; and whereas, an agreement and understanding has been reached and whereas the Parties have agreed to settle and compromise all claims that have been or could have been raised in the Actions, they hereby agree as follows:

(Emphasis added). Further, the Settlement defined "Actions" as:

The consolidated lawsuit styled Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. 2226 Canal Street, L.L.C., et al., et al. , bearing NO. 2010-7575, SECTION "13", DIVISION: "M" Civil District Court, Parish of Orleans, State of Louisiana, C/W Nos. 2010-7576, 2010-7577, 2010-7982, 2010-7983, 2010-7985, 2010-7986, 2010-8005, 2010-8052, 2010-8075, 2010-8313, 2010-8320, 2010-10484, 2010-10486, 2010-10648, 2010-10945, 2010-10946, 2010-10947, 2010-10986, 2010-10987, and 2010-11456, and all related claims raised or that could have been raised therein , whether through any reconventional demand, amended or supplemented reconventional demand, third party demand, or otherwise.

(Emphasis added). The Settlement also contained the following provision:

4.2 In consideration of the mutual promises contained herein the State agrees to pay
* * *
The Parties have executed a Motion to Dismiss the Actions with prejudice on the same dates they have executed this Agreement. The State agrees to hold that Motion to Dismiss in escrow pending the funding of the settlement to Defendants. Once funded, the State will file the Motion to Dismiss the Actions within 3 business days and furnish all Parties with copies of the Order dismissing the Actions. In further consideration of the settlement, Defendants shall be entitled to withdraw any remaining funds in the court's registry for the Actions to the extent permitted by law, and the City of New Orleans and the Board agree not to interpose any objections to this withdrawal. The Parties acknowledge and agree that the sum of ... to be paid in accordance with this Agreement, plus receipt of the amounts previously deposited into the registry of the Court in the Action represent the full extent of Defendants' losses, including the amount of attorneys' and experts' fees, within the meaning of Louisiana Constitutional Article I, Section 4 and all statutory law supplemental thereto.

(Emphasis added).

The City contends that the phrase "to the extent permitted by law" referred to the City's right to collect the funds remaining in the registry for property taxes. Further, the City avers that previous consent judgments between the parties reveal the intent to reserve the money for taxes. The prior consent judgments provided that the Defendants could withdraw all of the funds deposited in the registry of the court except for that allegedly owed to the City for property taxes. Those consent judgments provided that the amount of alleged property taxes "shall remain in the registry of the Court pending resolution of whether those taxes are, in fact, due and owing."

The trial court stated the following during the hearing:

I want to see - - to me, it shouldn't have been that difficult to say taxes are excluded. And it's not like an in proper person; we had lawyers there. It sounds like we had multiple Vity [sic] lawyers there that should have said "wait a minute, we want our taxes". that [sic] is - - to me the purpose of those lawyers being there, to protect the interest of the City. And you need to tell me that I got to kind of figure that that's what it meant?

We agree. A reading of the Settlement shows that the parties intended to settle all of their claims arising out of the expropriations. As outlined above, the parties repeatedly stated that the Settlement resolved all claims.

The central phrase is: "Defendants shall be entitled to withdraw any remaining funds in the court's registry for the Actions to the extent permitted by law, and the City of New Orleans and the Board agree not to interpose any objections to this withdrawal." A plain meaning review of the phrase connotes that the Defendants were entitled to withdraw the remaining monies from the registry of the court. A finding that "to the extent permitted by law" meant that the City was reserving its rights to property taxes would invalidate the entire provision allowing Defendants to withdraw the remaining monies in the registry of the court because the City was well aware that the only monies remaining in the registry were those earmarked for alleged property taxes. A reservation entitling the City to a determination regarding the alleged property taxes could have been incorporated into the Settlement. The provision in Section 4.2 did not state that Defendants were entitled to withdraw the funds after property taxes were determined and paid. Contrarily, in the four sections of the Settlement included above, the City failed to include a reservation of any claims, as the document clearly provides that all claims are being settled.

Thus, interpreting the clear and explicit provisions in the Settlement plainly, we find that the Settlement is unambiguous and that Defendants are entitled to the monies remaining in the registry. This leads to no absurd consequences, as parties on all sides of a settlement agreement make concessions to reach an amicable resolution. Accordingly, we find that the trial court did not commit manifest error by granting the Defendants' Motion to Enforce Settlement Agreement and Withdraw Funds from the Registry. The judgment of the trial court is affirmed.

DECREE

For the above-mentioned reasons, we find that the trial court correctly granted the Defendants' Motion to Enforce Settlement Agreement and Withdraw Funds from the Registry, as the Settlement clearly provided that they were entitled to the monies. The judgment of the trial court is affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT

      "[T]he properties were part of The PFD Group's real estate investment portfolio." Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll. v. 2330 Palmyra St., L.L.C. , 11-0443, p. 2 (La. App. 4 Cir. 12/27/11), 80 So.3d 1234, 1237, writ denied , 12-0270 (La. 3/30/12), 85 So.3d 124.

      The following property defendants are subject to this appeal: 2300 Palmyra Street, LLC; 2120 Canal Street, LLC; 2338 Palmyra Street, LLC; 125 Galvez Street, LLC; 2226 Canal Street, LLC; 201 South Miro Street, LLC; 2404 Palmyra Street, LLC; 2105 Palmyra Street, LLC; 2300 Canal Street, LLC; PFD One, LLC; PFD Three, LLC; 2123 Palmyra Street, LLC; 2107 Palmyra Street, LLC; and 2115 Palmyra Street, LLC (hereinafter collectively "Defendants").

      This law and procedure also applies to compromises/settlements. Brown v. Drillers, Inc. , 93-1019 (La. 1/14/94), 630 So.2d 741, 748.


text:
    Raul-Alejandro RAMOS/Somar, LLC v. LIBERTY BANK AND TRUST COMPANY
    NO. 2018-CA-0612
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
   Raul-Alejandro Ramos, 8400 Oleander Street, New Orleans, LA 70118, PRO SE PLAINTIFF/APPELLANT

Graham H. Williams, Jaimme' A. Collins, ADAMS AND REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )

Judge Roland L. Belsome The Plaintiff, Raul-Alejandro Ramos/Somar, L.L.C., seeks review of the trial court's judgment granting an exception of no cause of action in favor of the Defendant, Liberty Bank. For the following reasons, we affirm the trial court's judgment.

PROCEDURAL HISTORY

The Plaintiff filed a petition against the Defendant asserting numerous claims arising from an alleged breach of contract. In response, the Defendant filed exceptions of no cause of action and no right of action. After a hearing, the trial court granted the exception of no cause of action, denied the exception of no right of action as moot, and dismissed the case with prejudice. This appeal followed.

STANDARD OF REVIEW

This court reviews a trial court's decision sustaining an exception of no cause of action de novo. McKamey v. New Orleans Public Facility Management , Inc. , 12-0716, p. 6 (La. App. 4 Cir. 9/19/12), 102 So.3d 222, 226. The exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon the facts alleged within the four corners of the petition, the law affords the plaintiff a remedy. La. C.C.P. art. 927(A) ; see also Meckstroth v. Louisiana Dept. of Transp. and Dev. , 07-0236, p. 2 (La. App. 4 Cir. 6/27/07), 962 So.2d 490, 492 (citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234, 1235-36 (La. 1993) ). It is triable on the face of the petition, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. Haskins v. Clary , 346 So.2d 193, 194 (La. 1977).

DISCUSSION

The issue presented for review is whether the Plaintiff's petition states a valid cause of action for breach of contract. In order to confect a valid contract, four elements are required: (1) the capacity to contract; (2) mutual consent; (3) a certain object; and (4) a lawful cause. In re Succession of Flanigan , 06-1402, p. 6 (La. App. 4 Cir. 6/13/07), 961 So.2d 541, 544 ; see also La. C.C. arts. 1918, 1927, 1966 and 1971. Consent of the parties is established through offer and acceptance. La. C.C. art. 1927. Thus, an enforceable contract requires a meeting of the minds. Read v. Willwoods Cmty. , 14-1475, p. 5 (La. 3/17/15), 165 So.3d 883, 887.

A review of the petition reveals that the Plaintiff and Liberty Bank began discussions concerning some of the Plaintiff's potential business ventures. Following those discussions, the Plaintiff drafted, signed and mailed a promissory note to the Defendant. The Defendant received the note in the mail without any further action. As a result, the Plaintiff alleges that the Defendant's silence after receiving the note created a contract.

In granting the no cause of action exception, the trial court found that a contractual relationship between the parties did not exist. We agree. The allegations of the Plaintiff's petition do not establish a meeting of the minds, through offer and acceptance, to create a contract between the Plaintiff and the Defendant. Accordingly, the Plaintiff has failed to sufficiently state a cause of action under any theory of law.

CONCLUSION

For these reasons, the trial court's judgment granting the Defendant's exception of no cause of action and dismissing the case with prejudice is affirmed.

AFFIRMED


text:
    1205 ST. CHARLES CONDOMINIUM ASSOC. INC. v. Clifford ABEL, et al
    NO. 2018-CA-0566
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
   James C. Rather, Jr., ALKER & RATHER, LLC, 4030 Lonesome Road, Suite B, Mandeville, LA 70448, COUNSEL FOR PLAINTIFF/APPELLEE

Madro Bandaries, MADRO BANDARIES, P.L.C. P., O. Box 56458, 938 Lafayette Street, Suite 204, New Orleans, LA 70156, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )

Judge Daniel L. Dysart In this eviction proceeding, defendant-appellant, Clifford Abel, appeals a trial court judgment, in favor of plaintiff-appellee, 1205 St. Charles Condominium Association, Inc. (hereafter, the "SCCA"), which ordered that Mr. Abel vacate the premises he leased. For the reasons set forth more fully herein, we affirm the trial court's judgment.

PROCEDURAL AND FACTUAL BACKGROUND

On April 5, 2018, the SCCA filed a Rule for Possession of Premises ("Rule"), seeking to have Mr. Abel and June Abel evicted from 1205 St. Charles Avenue, unit 405, New Orleans, Louisiana. The basis of this Rule was Mr. Abel's alleged violation of several provisions of the lease. Attached to the Rule was a copy of the lease; the SCCA's Declarations, By-Laws and Rules and Regulations; a February 15, 2018 letter to Mr. Abel advising of the SCCA's intent to cancel the lease and commence eviction proceedings on March 19, 2018; and a March 12, 2018 letter to Mr. Abel requiring that he vacate the property no later than March 20, 2018.

In response, on April 12, 2018, Mr. Abel filed exceptions to the Rule. Those exceptions included the following arguments: (1) the Rule was "moot" because of insufficient notice; (2) the "owner of the leasehold" is not the SCCA and therefore, the proceeding lacked an indispensable party; (3) Mr. Abel's mother, who resides in Florida, "is an executor of the lease," and was a necessary party to the proceedings upon whom notice and service of the Rule was required; (4) the SCCA did not establish by what authority it sought to evict him; (5) the events giving rise to the allegations of Mr. Abel's violations of the lease occurred prior to December 1, 2017 and were thus "moot;" (6) Mr. Abel "received no notices oral or written from" the manager or assistant manager; and (7) the allegations against Mr. Abel were false and he "never harassed or intimidated other resident[s]."

After a hearing on the Rule and by judgment dated April 17, 2018, the trial court granted the Rule and ordered that Mr. Abel and Ms. Abel vacate the premises by May 31, 2018. On April 17, Mr. Abel filed a hand-written document in which he requested an order of suspensive appeal. The trial court set a suspensive appeal bond in the sum of $250.00. The appeal was converted to a devolutive appeal after the SCCA moved to dismiss the appeal based on Mr. Abel's failure to answer the Rule, under oath, pleading affirmative defenses pursuant to La. C.C.P. art. 4735.

Standard of Review

In an eviction proceeding, it is the lessor's burden of proof "by a preponderance of the evidence, [of] a valid lease and that the violation of the lease provides sufficient grounds for an eviction." Guste Homes Resident Mgmt. Corp. v. Thomas , 12-0386, p. 8 (La. App. 4 Cir. 5/29/13), 116 So.3d 987, 991.

It is well-settled that appellate courts "review the lower court's eviction ruling under the manifest error/clearly wrong standard of review." Second Zion Baptist Church #1 v. Jones , 17-0926, p. 5 (La. App. 4 Cir. 4/18/18), 245 So.3d 9, 12. Thus, " '[a] judgment of eviction must be reversed when the lessor fails to prove the legal ground upon which the lessee should be evicted.' " Id. , p.4, 245 So.3d at 12, quoting Hous. Auth. of New Orleans v. King , 12-1372, p. 4 (La. App. 4 Cir. 6/12/13), 119 So.3d 839, 842. "If the trial court's factual conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trial court." Interstate Realty Mgmt. Co. v. Price , 11-1131, p. 6 (La. App. 4 Cir. 3/7/12), 86 So.3d 798, 802 (citation omitted). "The reviewing court must always keep in mind that if a trier of fact's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently." Id. (citation omitted).

We note, too, that " '[w]here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable.' " 200 Carondelet v. Bickham , 17-0328, p.4 (La. App. 4 Cir. 10/25/17), --- So.3d ----, ----, 2017 WL 4803954, quoting Rosell v. ESCO , 549 So.2d 840, 844 (La.1989). Thus, "[i]f there are two permissible views of the evidence, 'the factfinder's choice between them cannot be manifestly wrong.' " Id.

Testimony at hearing

At the hearing on the Rule, the trial court initially considered and rejected all of Mr. Abel's exceptions. The trial court then heard the testimony of six witnesses, including Mr. Abel.

The first witness to testify was Victor Zaidain, the president of the board of directors of the SCCA, who authenticated the SCCA's Acts of Declaration and its rules and regulations. Mr. Zaidain then testified regarding a series of meetings that took place after he was elected as president of the board in January, 2018. At the second of these meetings in February 16, 2018, the board, by a quorum of three board members, elected to issue a thirty-day eviction notice to Mr. Abel. This decision, according to Mr. Zaidain, was based on a number of occurrences, and a number of complaints from other condo owners, from November, 2017 through January, 2018. A letter was then sent to Mr. Abel and his landlord advising of the board's intent to proceed with the cancelation of the lease and providing a thirty day notice.

On cross-examination, Mr. Zaidain reviewed some emails from his cell phone. One concerned attempts by the manager to meet with Mr. Abel's landlord to discuss Mr. Abel's behavior (to which the landlord reportedly responded that he had "nothing to do with it, and for the Board to proceed with whatever it wanted to do"). Mr. Zaidain also detailed fines levied against Mr. Abel's landlord for Mr. Abel's infractions, including his leaving cigars on the premises, one of which burned a hole in a chair, and another for verbal abuse.

Trisha Loporto, a resident of the condominiums, testified next. According to Ms. Loporto, she had reserved a community room for a family reunion on Thanksgiving Day. When she went to check on the room, she encountered Mr. Abel, who was watching television in the room. Mr. Abel used profanity and accused Ms. Loporto of having locked him out of the room. He then cursed at Ms. Loporto, calling her an "f---ing b-----." Ms. Loporto left the room and reported the incident to a guard and later, to the property's management.

Paul McNair, a security officer employed by New Orleans Private Patrol, worked as a security guard at the condominiums for four years. On the Thanksgiving Day prior to the hearing, Mr. McNair reported to work and, while sitting at his desk, he encountered Mr. Abel, who called him an "f---ing n---er," accusing him of having locked the door to the party room. Mr. McNair testified that Mr. Abel "continually called [him]" that racial epithet "the whole time while I was in the building." Mr. McNair further testified that Mr. Abel "told [him he was] going to make [his] life miserable." According to Mr. McNair, Mr. Abel "tormented [him] every day."

Ron Martinez, also a security guard for New Orleans Private Patrol stationed at the condominiums, testified that, while he was patrolling the property, he observed Mr. Abel going through a woman's laundry in the laundry room on more than one occasion. He indicated that, on another occasion, he saw Mr. Abel holding a pair of woman's panties (which he knew to be a woman's because it was pink), and on another occasion, he observed Mr. Abel with a woman's bra, which he saw him "rubbing."

In his defense, Mr. Abel called Maude Varela, another condominium resident, who testified that she was one of the board members present at the meeting where the board voted to evict Mr. Abel. According to Ms. Varela, there were five board members, four of whom voted to evict him, while she abstained from voting. Ms. Varela also testified that there is a group of residents at the condominiums who do not like Mr. Abel and who have harassed him and wanted to have him evicted.

After hearing the testimony of the witnesses, the trial court found as follows:

... I did find the people who testified were eletious [sic] and judgmental, but that doesn't, no less, excuse your behavior, Mr. Abel. I'm sorry, you are a nuisance. Accordingly, the Court will grant the rule for possession.

The trial court then ordered Mr. Abel to vacate the property by May 31, 2018.

DISCUSSION

In his first assignment of error, Mr. Abel contends that the trial court manifestly erred in finding that he was a "nuisance" and ordering his eviction. He cites a dictionary definition of nuisance and Robichaux v. Huppenbauer , 258 La. 139, 245 So.2d 385 (1971), in support of his contention that "individual citizens have to submit to some annoyance and inconvenience from the legal exercise of the rights of others within reasonable limit." Robichaux involved a suit by one neighbor to enjoin the other, who provided horses for horse-drawn carriages in the French Quarter, from operating a stable and keeping horses on his property. There, the Louisiana Supreme Court held that "injunctive relief to tenants whose health and safety were threatened by the manner in which the neighboring property was being used" was appropriate. Salter v. B. W. S. Corp ., 290 So.2d 821, 824 (La. 1974). Robichaux is thus, clearly inapplicable to this matter.

We need only look to the terms of the residential lease to determine what is considered to be "nuisance" behavior for which eviction may be ordered. The residential lease executed by Mr. Abel contains a provision whereby a lessee, such as Mr. Abel, would be in default of the lease for "other violations/nuisance[s]." That provision indicates that default can result from the lessee's:

failure to maintain a standard behavior consistent with the consideration necessary to provide reasonable safety, peace and quiet to others, such as but not limited to, being boisterous or disorderly, creating undue noise, disturbance or nuisance of any nature ... or failure [sic] to abide by any Rules and Regulations ....
(Emphasis added).

In such event, the "Lessor shall have the right ... to immediately cancel this lease and obtain possession of the premises."

Similarly, the documents regulating the SCCA provide similar prohibitions from certain behaviors. Under the By-Laws, Article 13, Section 7.4, "[n]o nuisances shall be allowed on the Condominium Property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Condominium Property by its residents ...." Similarly, the Rules and Regulations provide, in subpart 10, that "[n]o unit shall be used or occupied in such a manner as to obstruct or interfere with the enjoyment of other occupants of other units, or shall any nuisance or illegal activity be committed or permitted to occur in or about any unit or any part of the common elements of the condominium property."

The question of whether certain behavior rises to the level of "nuisance" behavior is clearly a fact question, See Robichaux , 245 So.2d at 389 ("[w]hether any particular stable is or is not a nuisance is essentially a question of fact"), and as such, great deference is afforded the trial court. See Plaquemines Par. Civil Serv. Comm'n v. Plaquemines Par. Council , 17-0449, p. 8 (La. App. 4 Cir. 2/14/18), 241 So.3d 1040, 1046 ("great deference [is] afforded the trial court's findings of fact"). This is particularly the case when the findings of fact are based on the credibility of the witnesses "because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Barnett v. Landry , 14-0139, p. 3 (La. App. 4 Cir. 8/20/14), 147 So.3d 1231, 1232.

Under the circumstances of this case, and based upon the testimony of the witnesses, we do not find that the trial court abused its discretion in finding that Mr. Abel violated the lease by being a "nuisance." See Levine v. Allstate Ins. Co. , 17-0896, p. 5 (La. App. 4 Cir. 4/18/18), 243 So.3d 1286, 1289-90 ("[g]iven that there is a reasonable basis in the record to support the trial court's conclusions ..., we cannot say the trial court committed manifest error.").

In his second assignment of error, Mr. Abel contends that the trial court erred in failing to serve his mother, a co-signor of the lease, and in failing to grant his exception of failure to join an indispensable party (the lessor, Ricardo Johnson) to the action. We find no merit to either of these arguments.

While Mr. Abel assigns the trial court's denial of Mr. "Abel's exceptions as to no service as to his mother" as an error, there is no argument as to the lack of service on her. We thus do not address this issue. See Daniel v. Clarion Inn & Suites , 16-0760, p. 2 (La. App. 4 Cir. 2/22/17), 214 So.3d 38, 40 ("assignments of error numbers one and three were not briefed ....; thus, they are deemed abandoned under Uniform Rules - Courts of Appeal, Rule 2-12.4"). However, Mr. Abel does argue that Ms. Abel "was the actual lessee and payee as to the lease [and] was also an indispensable party."

A review of the lease does, indeed, reflect that both Mr. Abel and Ms. Abel are lessees under the lease. Importantly, however, under the section of the lease entitled "Occupants," it is specifically noted "Ms. June Abel will not be residing on the property." We know of no case law, and Mr. Abel cites no case law, indicating that one who signs a lease, but expressly indicates that she will not reside on the premises is an indispensable party to an eviction proceeding.

Under La. C.C.P. art. 927, the objection of nonjoinder of party under Articles 641 and 642 may be raised through a peremptory exception. La. C.C.P. art. 641, referenced therein, provides:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

If joinder of a party "is not feasible," La. C.C.P. art. 642 then provides that the court shall consider whether the action should proceed without that party, taking into consideration the following factors:

(1) To what extent a judgment rendered in the person's absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person's absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

The articles on joinder formerly discussed "necessary" and "indispensable" parties, but as amended in 1995, these terms were removed and replaced with "the concept of 'joinder of parties needed for just adjudication.' " Gettys v. Wong, 13-1138, p. 7 n.2 (La. App. 4 Cir. 5/7/14), 145 So.3d 460, 464, writ denied , 14-1178 (La. 9/19/14), 149 So.3d 247. As the Gettys Court indicated, under " La. C.C.P. art 641(1), a party in whose absence complete relief cannot be accorded among those who are parties 'shall be joined as a party.' " Id. , p. 7, 145 So.3d at 465. The Louisiana Supreme Court explained:

La. Code of Civ. Proc. art. 641 establishes two sets of circumstance under which a third-party may be considered a party needed for just adjudication. A person may be considered indispensable only if one of the two circumstances listed therein exists. First, under La.Code of Civ. Proc. Art. 641(1), a person may be considered a party needed for just adjudication if, absent his presence, "complete relief cannot be accorded among those already parties." Second, under La.Code of Civ. Proc. art. 641(2), a person may be considered a party needed for just adjudication if that person claims an interest relating to the subject matter of the suit and if the other conditions specified in that subpart are present.

Indus. Companies, Inc. v. Durbin , 02-0665, pp. 14-15 (La. 1/28/03), 837 So.2d 1207, 1217. "Courts are to determine whether a party should be joined and whether the action should proceed if a party cannot be joined by a factual analysis of all the interests involved." Tensas Par. Police Jury v. Perritt , 50,123, p. 8 (La. App. 2 Cir. 9/30/15), 181 So.3d 143, 148.

In the instant matter, there is no question that the only person residing in the condominium was Mr. Abel, as the lease expressly states that Ms. Abel would "not be residing on the property." Thus, only Mr. Abel has an actual interest in the eviction proceeding. It follows that "complete relief can[ ] be accorded among those already parties." We note, too, that Ms. Abel has neither appeared or intervened in this litigation, nor "claim[ed] an interest relating to the subject matter of the suit." Accordingly, we find no abuse of discretion in the trial court's denial of Mr. Abel's exception of nonjoinder of parties. See Rayford v. Nat'l R.R. Passenger Corp. , 05-1273, p. 7 (La. App. 4 Cir. 4/13/07), 962 So.2d 5, 9, ("we ... review the findings of the trial court [as to joinder of parties] in accordance with the 'abuse of discretion' standard of review.").

We likewise find no merit to Mr. Abel's contention that his direct lessor, Ricardo Johnson, is a necessary party to this action. The documents regulating the SCCA specifically indicate that the SCAA has the right to terminate a lease. More particularly, Article 8 of the Declarations, concerning leases, provides, in pertinent part, as follows:

Any lease or sublease of a Unit shall include a provision[s] ... (ii) that the lessee shall designate the Association as lessor's agent to enforce compliance with the terms of the lease and the Condominium Documents, and (iii) that any violation of the Condominium Documents shall be a default under the lease. The Association shall have the right to terminate a lease upon thirty (30) days' written notice should the lessee be in violation of the Condominium Documents.

Thus, the SCCA is designated as Mr. Johnson's agent for the purposes of enforcing the provisions of the lease. Moreover, the SCCA had the explicit right to terminate the lease upon thirty days written notice. Here, the SCCA provided written notice to Mr. Abel on February 15, 2018 that it intended to terminate the lease and commence eviction proceedings on March 19, 2018. Thereafter, on March 12, 2018, it sent a letter to Mr. Abel requiring that he vacate the property no later than March 20, 2018. The SCCA therefore complied with the thiry-day notice requirement for terminating the lease.

In his final assignment of error, relying on Sarpy v. de la Houssaye , 217 So.2d 783 (La. App. 4 Cir. 1969), Mr. Abel argues that the trial court erred in ruling on the motion to dismiss the suspensive appeal as it lost jurisdiction over the matter once the appeal bond was filed. The trial court judgment granted the motion to dismiss the appeal on the basis that Mr. Abel "failed to comply with La. C.C.P. art. 4735 by filing his answer under oath," and thereby converted the appeal to a devolutive appeal.

We note that Mr. Abel made the identical argument on this issue in his writ application, which this Court denied on June 15, 2018. See footnote 2. No new arguments have been raised.

"[W]hen an appellate court considers arguments made in supervisory writ applications or responses to such applications, the court's disposition on the issue considered becomes the 'law of the case,' foreclosing relitigation of that issue either in the trial court on remand or in the appellate court on a later appeal." Reed v. St. Charles Gen. Hosp. , 08-0430 (La. App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145. We note that our jurisprudence also indicates that "any prior 'determination' in a request for a supervisory writ is not necessarily binding on a subsequent appeal." Armstrong Airport Concessions v. K-Squared Rest., LLC , 15-0375, p. 8 (La. App. 4 Cir. 10/28/15), 178 So.3d 1094, 1100 (citation omitted). The Armstrong Court also reiterated that "[a]pplying the 'law of the case' doctrine to supervisory writs decisions is discretionary." Id., p. 7, 178 So.3d at 1100 (citation omitted). However, "where a prior disposition is clearly erroneous and will create a grave injustice, it should be reconsidered." Louisiana Land & Expl. Co. v. Verdin , 95-2579, p. 4 (La. App. 1 Cir. 9/27/96), 681 So.2d 63, 65.

In the instant case, we see no palpable error or manifest injustice as a result of our prior ruling and we decline to reconsider that prior ruling. Mr. Abel admits that he no longer resides in the condominium and the effect of a reversal of the trial court's ruling converting the appeal to a devolutive appeal at this stage would have no effect.

Moreover, the trial court's ruling is not clearly incorrect. Pursuant to La. C.C.P. art. 4735, "[a]n appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction."

In the instant matter, the record does not show that Mr. Abel fulfilled the first requirement of Article 4735 - answering the rule for eviction, under oath, and pleading an affirmative defense which would have entitled him to retain possession of the premises. To the contrary, Mr. Abel only filed hand-written exceptions to the Rule for Possession of Premises, and while there is a certificate of service attesting to his having "faxed a copy" of the exceptions to counsel for the SCCA, there is no "answer to rule under oath" pleading affirmative defenses. See Sarpy v. de la Houssaye , 217 So.2d 783, 785 (La. App. 4 Cir. 1969) (answer was not filed under oath because, while it "conclude[d] with an appropriate prayer and [was] signed by his attorney" and was followed by "a 'Certificate of Service' signed by the attorney which was merely to the effect that a copy of the 'foregoing answer' had been mailed to plaintiff's attorney," there was "no supporting affidavit nor any other instrument of attestation, under oath or otherwise, either attached to the answer or filed separately.").

In Interstate Realty Mgmt. Co. v. Price , 11-1131, p. 9 (La. App. 4 Cir. 3/7/12), 86 So.3d 798, 803, this Court found that, where tenants evicted from a property "did not answer the Rule for Possession under oath and sign it personally" they "were not entitled to a suspensive appeal." See also , Boudreaux' Estate v. Verdin , 425 So.2d 873, 874 (La. App. 1 Cir. 1982) ("[a]n affirmative defense in an eviction proceeding must be pleaded under oath personally sworn to by defendant in order to permit the subsequent taking of a suspensive appeal by defendant."); McMillan v. Chauvin , 281 So.2d 181, 182 (La. App. 4 Cir. 1973) ("[o]ur jurisprudence has held that the provisions of Article 4735 are clear and unambiguous and provide a mandatory condition for the maintenance of a suspensive appeal from a judgment of eviction that the tenant must have filed an answer setting forth an affirmative defense verified personally by the tenant's affidavit. Neither the sworn testimony of the tenant on trial, nor the filing of an answer under oath of the attorney after trial but before judgment, fulfills the requirements.").

Thus, because Mr. Abel was not entitled to a suspensive appeal, the trial court properly converted the suspensive appeal to a devolutive appeal. See e.g. , Freemin v. Coglaiti , 411 So.2d 471, 472 (La. App. 1 Cir. 1981) ("[a]lthough an appeal for an eviction judgment cannot be maintained as suspensive, the appeal may be maintained as a devolutive appeal if the requirements of the general law for a devolutive appeal are met."); Weiland v. Mosby , 30,111 (La. App. 2 Cir. 1/21/98), 707 So.2d 1285, 1286 (where an appellant is not entitled to a suspensive appeal, and the trial court improperly allowed a suspensive appeal, the matter should be maintained as a devolutive appeal).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      The handwritten exceptions are unclear. It appears that Mr. Abel's argument centers on his contention that the owner of the unit he leased was not made a party to the action.

      Mr. Abel filed an application for a supervisory writ, seeking expedited consideration of the trial court's ruling which converted the suspensive appeal to a devolutive appeal. This Court denied the writ application on June 15, 2018. 1205 St. Charles Condominium Association Inc. v. Clifford Abel , 19-C-0551 (La. App. 4 Cir. 6/15/18)(unpub.).

      Mr. Zaidain was president from 2012-2016, and again in 2018. He was not president in 2017.

      One of the complaints was that, on one occasion, Mr. Abel followed a woman "up the stairs and ... kept pursuing her regarding some medication." Another complaint was that, on another occasion, a resident complained that he was "dressed in an improper way ... because his derrière was showing at some points." In his closing argument to the trial court, Mr. Abel explained that his pants had fallen down and that he "picked them up;" he was not "attempting to expose [his] rear end to any woman." Mr. Zaidain also testified about generally receiving complaints from residents that Mr. Abel made them fearful for their security.

      Mr. Abel admitted to the trial court that he cursed Ms. Loporto in this very manner.

      While Mr. Abel denied having made this statement, in his argument to the trial court, he admitted that he called him "a stupid M-F."

      In his closing argument at the hearing, Mr. Abel indicated that he has serious health issues which cause him to be disoriented at times and he would forget which washer and dryer he used, thus explaining why he had other person's clothing in his hands.

      Those documents include the Act of Declaration Creating and Establishing A Condominium Regime; Articles of Incorporation; By-Laws; and Rules and Regulations.

      Additionally, in the exceptions initially filed in the record, Mr. Abel does note that "June Abel is a necessary party ...." While Mr. Abel does not specifically raise this objection through a peremptory exception, "the nature of an exception should be determined by its substance." Judson v. Davis , 04-1699, p. 8 (La. App. 1 Cir. 6/29/05), 916 So.2d 1106, 1114.


author: Judge Paula A. Brown

text:
    STATE of Louisiana IN the INTEREST OF C.D. & C.D.
    NO. 2018-CA-0834
    Court of Appeal of Louisiana, Fourth Circuit.
    December 19, 2018
    Andrew Lewis Kramer, Attorney at Law, 201 St. Charles Avenue, Suite 2504, New Orleans, LA 70170, COUNSEL FOR APPELLANT
    LaKeisha N. Jefferson, JEFFERSON LAW FIRM, APLC, 4238 Poche Court West, New Orleans, LA 70129, COUNSEL FOR APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   Judge Paula A. Brown

This matter arises out of petitions for protection from abuse filed in Civil District Court for the Parish of Orleans ("civil district court") and in Orleans Parish Juvenile Court ("juvenile court"). Appellant, Eleanor Dymond ("Ms. Dymond"), appeals the juvenile court's August 23, 2018 judgment which denied her motion to dismiss for lack of subject matter jurisdiction and granted the petition for protection from abuse filed by Appellee, Christian Culotta ("Mr. Culotta"). For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Ms. Dymond and Mr. Culotta are the parents of two minor children, C.D, born July 12, 2012, and C.D., born July 7, 2013 (collectively, "the minor children"). Ms. Dymond and Mr. Culotta never married.

In December 2013, Ms. Dymond filed a petition for custody of the minor children in civil district court. On October 6, 2016, the district court signed a stipulated consent judgment ("Consent Judgment"). The parties agreed to joint custody. Primarily, Ms. Dymond had physical custody of the minor children during the school week and Mr. Culotta had physical custody on most weekends. The Consent Judgment also contained a proviso that prohibited Antoine Saacks, III ("Mr. Saacks") -Ms. Dymond's boyfriend at that time-from being in the presence of the minor children.

On April 23 2018, Mr. Culotta, appearing pro se, filed a petition for protection from abuse in civil district court (the "CDC Petition") pursuant to the Domestic Abuse Assistance statues promulgated in La. R.S. 46:2131 et seq. Mr. Culotta alleged, in part, that Mr. Saacks and Ms. Dymond engaged in physical altercations with one another; the minor children witnessed these acts; Ms. Dymond allowed Mr. Saacks to spank the youngest daughter; and Ms. Dymond had violated the Consent Judgment by permitting Mr. Saacks to be around the children. Mr. Culotta obtained an ex parte Temporary Restraining Order ("TRO"), which granted Mr. Culotta immediate temporary custody of the children, pending a show cause hearing on the merits on May 22, 2018.

On May 17, 2018, Mr. Culotta, through counsel, filed a supplemental petition and amended petition for protection from abuse (the "Amended Petition") in civil district court. In contrast to the original CDC Petition, the Amended Petition was filed under La. Ch.C. art. 1564, et seq. , the Children's Code Domestic Abuse Assistance Chapter. Mr. Culotta alleged in the Amended Petition that Ms. Dymond allowed Mr. Saacks to physically abuse the youngest child, and to physically harm and discipline the minor children. Mr. Culotta also alleged the Department of Children and Family Services ("DCFS") had launched an on-going investigation into these abuse allegations.

On May 22, 2018, Ms. Dymond and Mr. Culotta appeared in civil district court on a motion to clarify, enforce, and/or modify consent judgment ("Motion to Modify"), filed by appointed counsel on behalf of the minor children. Mr. Culotta's TRO was also fixed on the same day. During the pre-trial conference on both matters, Mr. Culotta's counsel informed the district court that Mr. Culotta intended to seek relief on his CDC and Amended Petitions in juvenile court as she did not believe civil district court had jurisdiction over the allegations raised in the Amended Petition.

Following the conference, the district court conducted a hearing only on the Motion to Modify. The district court, after hearing argument of counsel, ordered the removal of the provision within the Consent Judgment which barred Mr. Saacks from being in the presence of the minor children.

As to the TRO, again, counsel for Mr. Culotta urged that his petitions be transferred to juvenile court due to civil district court's lack of jurisdiction. Thereafter, on May 29, 2018, the district court denied Mr. Culotta's proposed judgment to transfer the CDC and Amended Petitions to juvenile court. The district court judge also wrote the word "moot" on the Amended Petition as it pertained to the order for Ms. Dymond to show cause on May 22, 2018 why the TRO should not be made a protective order. The TRO expired on May 22, 2018 at 11:59 p.m.

On May 25, 2018, three days after the expiration of the TRO, Mr. Culotta filed a petition for protection from abuse in juvenile court (the "JC Petition") pursuant to La. Ch.C. art. 1564, et seq. The JC Petition raised essentially the same allegations as pled in the Amended Petition. In response to the JC Petition, Ms. Dymond filed a motion to dismiss based on exceptions of lis pendens and res judicata . On June 19, 2018, after a hearing on the exceptions, the juvenile court denied the motion to dismiss and the exceptions.

On July 11, 2018, the juvenile court conducted a hearing on the merits of the JC Petition. The juvenile court took the matter under advisement and allowed the parties to submit post-trial memoranda. Ms. Dymond's post-trial memorandum included a motion to dismiss for lack of jurisdiction pursuant to La. Ch. C. art. 303(9). In his opposition, Mr. Culotta filed a motion to strike Ms. Dymond's post-trial memorandum.

Following an August 23, 2018 hearing on the post-trial motions, the juvenile court denied Ms. Dymond's motion to dismiss for lack of jurisdiction and granted Mr. Culotta's JC Petition. The protective order-made effective through January 23, 2019-granted Mr. Culotta temporary custody of the children. Ms. Dymond was awarded unsupervised visitation rights and physical custody on most weekends, with the caveat that Mr. Saacks was not to be present when Ms. Dymond exercised her visitation/custodial rights.

Ms. Dymond timely filed a devolutive appeal from the judgment.

DISCUSSION

Ms. Dymond's assignments of error maintain the juvenile court erred in refusing to dismiss the JC Petition on the grounds of lis pendens ; the juvenile court lacked jurisdiction over the JC Petition; and the evidence was insufficient to support a protective order.

Lis Pendens

In accord with La. C.C.P. art. 929(A), Ms. Dymond's exception of lis pendens was tried and decided on June 29, 2018-in advance of the trial on merits on the JC Petition. As noted, supra , Ms. Dymond did not seek appellate review of the denial of her lis pendens exception. The only judgment appealed by Ms. Dymond is the juvenile court judgment dated August 23, 2018. That judgment does not address the exception of lis pendens . Therefore, the validity of the juvenile court's denial of the exception of lis pendens is not properly before this Court in this appeal. Consequently, our review is limited to whether the juvenile court retained subject matter jurisdiction to grant the JC Petition and whether the evidence supported the issuance of a protective order.

Jurisdiction

"Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted." La. C.C.P. art. 2. "A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void." La. C.C.P. art. 3.

A district court shall have original jurisdiction of all civil and criminal matters unless otherwise authorized by the Louisiana Constitution. LSA-Const. Art. 5, § 16 (A). Article V, § 18 of the Louisiana Constitution provides that "[n]otwithstanding any contrary provision of § 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law."

While a district court's factual findings on appellate review are subject to the manifest error standard of appellate review, jurisdiction itself is a question of law subject to de novo review. See Law Office of Paul C. Miniclier, PLC v. Louisiana State Bar Ass'n , 2014-1162, p. 4 (La. App. 4 Cir. 5/27/15), 171 So.3d 1013, 1014 (citation omitted).

Louisiana provides two parallel statutory schemes under which litigants may bring domestic abuse proceedings-La. R.S. 46:2131, et. seq. in the district courts and La. Ch.C. art. 1564, et. seq. for courts exercising juvenile jurisdiction. In the case sub judice , Ms. Dymond argues the juvenile court lacked subject matter jurisdiction to hear Mr. Culotta's JC Petition because he had initially brought the CDC Petition. She iterates that although the juvenile court ordinarily has exclusive original jurisdiction over children and minors, La. Ch. C. art. 303(9) expressly provides a jurisdictional exception for proceedings initially brought in district court pursuant to La. R.S. 46:2131, et seq. , as was done in the present case. In support, Ms. Dymond relies on Martin ex rel. K.M. v. Harrison , 37, 891 (La. App. 2 Cir. 9/26/03), 855 So.2d 950.

In Martin ex rel. K.M. , the Second Circuit found that the juvenile court lacked jurisdiction over the father's petition for protection from abuse where the father had previously filed domestic abuse assistance proceedings based on the same allegations in the district court pursuant to La. R.S. 46:2131, et seq. The facts indicated the father filed his juvenile court petition for protection from abuse after he became dissatisfied with a ruling from the district court. In deciding that La. Ch.C. art. 303(9) had deprived the juvenile court of jurisdiction, the Second Circuit opined that one of the purposes of Article 303(9) is to prevent "forum shopping" by a litigant dissatisfied with a ruling in the district court to then turn to the juvenile court to obtain a more favorable result. Martin ex rel. K.M. , 37, 891, p. 6, 855 So.2d at 953.

Upon our de novo review of the record, we find the facts of this case compel a different outcome than the result reached in Martin ex. rel. K.M. We initially note that the record does not show Mr. Culotta engaged in forum shopping because of dissatisfaction with any civil district court judgment. Indeed, the district court did not conduct a hearing nor did it render a decision on the merits of his pro se CDC Petition or the Amended Petition. Moreover, the record shows Mr. Culotta's counsel brought the domestic abuse proceedings under the Children's Code due to her legitimate concern that Ms. Dymond's boyfriend did not meet the definition of a family member under La. R.S. 46:2132 ; which, if true, could preclude Mr. Culotta from seeking relief under that statute.

Next, and most importantly, at the time the JC Petition was filed-May 25, 2018-the CDC Petition was no longer pending. The TRO, which was only effective through May 22, 2018, had expired. On May 29, 2018, the district court had marked as "moot" the need to conduct the May 22, 2018 show cause hearing on the TRO. Therefore, Mr. Culotta had to file another, separate petition for protection from abuse to regain the relief and protection that had been provided to his children by the expired TRO, pending a show cause hearing on the merits. This Court knows of no statutory authority that would have required Mr. Culotta to bring a subsequent petition for protection from abuse proceeding in civil district court when there was no decision rendered on the merits of the first CDC Petition.

We find the La. Ch.C. art. 303(9) jurisdictional exception does not permanently divest the juvenile court of jurisdiction over a domestic abuse action initially filed under La. R.S. 46:2131, et seq. when that action is no longer pending. The stated purpose of both La. R.S. 46:2131 and La. Ch.C. art. 1564 is to give domestic abuse victims remedies which afford "immediate and easily accessible protection." Mr. Culotta's election to bring his petition for protection from abuse pursuant to the Children's Code comported with the stated purpose of either domestic abuse assistance statutes. Consequently, Mr. Culotta had the right to bring his petition in the venue he believed had jurisdiction to afford his children "immediate and easily accessible protection" from abuse.

Based upon our de novo review of the facts and circumstances of this case, the statutory exception provided by La. Ch.C. art. 303(9) did not apply to deprive the juvenile court of jurisdiction. Therefore, the juvenile court properly denied Ms. Dymond's motion to dismiss.

Sufficiency of the Evidence

Ms. Dymond argues that the evidence was insufficient to support a protective order.

Our jurisprudence is well-settled that the standard for an appellate court to review a domestic protective order is abuse of discretion. Vallius v. Vallius , 2010-0870, p. 3 (La. App. 4 Cir. 12/8/10), 53 So.3d 655, 657 (citations omitted). To reverse a district court's determination in a protection from abuse proceeding, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. See Munger v. Sirenko , 2016-0778, p. 7 (La. App. 4 Cir. 7/12/17), 224 So.3d 445, 449. The issuance of a protective order under the Children's Code requires proof by a preponderance of the evidence. See La. Ch. C. art. 1569(B) and (D).

At the trial, Ms. Dymond, Rachel Cullota (Mr. Culotta's wife), Mr. Culotta, Peter Dymond (Ms. Dymond's brother), and Shirley Dymond (Ms. Dymond's mother) were called to testify. The juvenile court also interviewed the minor children.

On cross-examination, Ms. Dymond testified that she had obtained a protective order against Mr. Saacks less than a month before the scheduled hearing on the JC Petition. She admitted that the request for the protective order included allegations of physical abuse. Ms. Dymond acknowledged that Mr. Saacks had kicked her while she was pregnant with their son and that the minor children were present in the house when the altercation happened. She declared, however, that the minor children did not actually witness the altercation. Ms. Dymond also described an incident where Mr. Saacks kicked her while she held their one-month old son. Ms. Dymond admitted she was not truthful during the civil district court Motion to Modify hearing when she denied physical abuse at the hands of Dr. Saacks. She testified that she had a two-year long period of abuse with Mr. Saacks, but urged that the abuse was not all "physical."

On examination by her counsel, Ms. Dymond testified that she did not currently live with Mr. Saacks; had no intention of resuming their relationship; and denied that Mr. Saacks had ever physically abused the minor children. On re-examination, Ms. Dymond admitted that she had moved in with Mr. Saacks in January 2018, notwithstanding the October 2017 Consent Judgment that prohibited Mr. Saacks from being in the presence of the minor children. Ms. Dymond also said she believed children who are present or in the vicinity of domestic violence are subject to abuse.

Rachel Culotta ("Mrs. Culotta") testified that the minor children were the subject of a DCFS investigation. She said the minor children told her that they had witnessed countless incidents of physical abuse between Ms. Dymond and Mr. Saacks, including a stabbing. On cross-examination, Mrs. Culotta said she did not have personal evidence of abuse outside of incidents told to her by the minor children.

Mr. Culotta testified that he had no additional evidence to introduce in support of the JC Petition, other than the testimony offered by Mrs. Culotta.

On direct examination, Peter Dymond ("Mr. Dymond") testified that he had never witnessed his sister allowing Mr. Saacks to abuse the minor children. He admitted on cross-examination that he had told Mr. Culotta that he was concerned about his sister's relationship with Mr. Saacks after learning she and Mr. Saacks had a physical altercation. He also testified he had recently become concerned about the minor children's welfare in their interactions with Mr. Saacks.

Shirley Dymond ("Mother Dymond") testified that Ms. Dymond and the minor children presently resided with her, where she believed they were safe. She said she was not aware of any abuse of the minor children and had only observed positive interaction between Mr. Saacks and the minor children. On cross-examination, however, Mother Dymond did recall an incident where she had to retrieve the minor children when Ms. Dymond had been arrested after an altercation with Mr. Saacks.

Ms. Dymond argues Mr. Culotta was not entitled to a protective order on behalf of the minor children because he failed to prove that either Mr. Saacks or Ms. Dymond had physically abused the minor children or that the children were in any danger of on-going abuse. In support, Ms. Dymond cited her testimony wherein she testified that she had filed a protective order against Mr. Saacks; she had moved out of the residence they shared; and her assertion that she would not reconcile with Mr. Saacks.

Contrariwise, Mr. Culotta argues the evidence demonstrated the juvenile court properly issued the protective order. Mr. Culotta cites Ms. Dymond's verified domestic abuse complaint against Mr. Saacks which detailed a long history of domestic violence between Ms. Dymond and Mr. Saacks, including an incident where the minor children were present in the residence. Mr. Culotta emphasizes that Ms. Dymond permitted Mr. Saacks to interact with the minor children at a time when their Consent Judgment prohibited such contact and Ms. Dymond's failure to acknowledge the physical abuse between she and Mr. Saacks at the May 22, 2017 Motion to Modify hearing in civil district court. Mr. Culotta also maintains that Mrs. Culotta's testimony supported that the minor children witnessed physical violence between Ms. Dymond and Mr. Saacks and were harmed when they intervened to break up the fights.

Upon our careful review of the testimony and evidence presented, we find that a reasonable factual basis exists for the juvenile court's decision to issue a protective order. In addition to hearing the testimony of numerous adult witnesses who testified and weighing their credibility, the juvenile court also interviewed the minor children. The juvenile court evaluated documentary evidence, such as Ms. Dymond's protective order against Mr. Saacks and the transcript of Ms. Dymond's domestic abuse testimony from the Motion to Modify hearing. The totality of the evidence provided proof by a preponderance of the evidence sufficient to rule in favor of Mr. Culotta. Accordingly, the juvenile court did not abuse its discretion in granting the protective order.

CONCLUSION

For the foregoing reasons, we find the juvenile court had subject matter jurisdiction and affirm the judgment granting the protective order.

AFFIRMED

JENKINS, J., DISSENTS WITH REASONS

      Mr. Saacks is a doctor. He is alternately referenced in the record as "Dr. Saacks" or "Mr. Saacks." For purposes of this opinion, he will be referenced as "Mr. Saacks."

      The CDC Petition was assigned to Domestic Relations Section 1, Division "K."

      La. R.S. 46: 2131provides:
      The purpose of this Part is to recognize and address the complex legal and social problems created by domestic violence. The legislature finds that existing laws which regulate the dissolution of marriage do not adequately address problems of protecting and assisting the victims of domestic abuse. The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enforcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family members, household members, or dating partners and those occurring between strangers. It is the intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Furthermore, it is the intent of the legislature that the official response of law enforcement agencies to cases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated.

      La. Ch. C. art. 1564 states that "[t]he purpose of this Chapter is to recognize and address the complex legal and social problems created by domestic violence and to provide a civil remedy in the juvenile courts for domestic violence in homes in which children reside which will afford the victim immediate and easily accessible protection.

      At some point prior to the hearing, the CDC Petition had been consolidated with the on-going custody proceedings arising out of civil district court Case No. 2013-11204, Division "K."

      As will be discussed, infra , a transcript of Ms. Dymond's testimony from the May 22, 2018 hearing on the Motion to Modify reveals Ms. Dymond denied allegations of physical abuse by Mr. Saacks.

      Ms. Dymond did not seek appellate review of the juvenile court's denial of the lis pendens or the res judicata exceptions.

      La. Ch.C. art. 303(9) states that a court exercising juvenile jurisdiction has exclusive jurisdiction over "[a]ny special proceeding authorized by Title XV, except domestic abuse assistance proceedings brought in a district court pursuant to R.S. 46:2131 et seq. "

      La. C.C.P. art. 531 provides, in part, that "[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925."

      La. C.C.P. art. 929(A) states that "[t]he declinatory exception, the dilatory, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case."

      Both La. Ch. C. art. 1569(B) and (D) provide, in part, that to obtain a protective order, "the petitioner must prove the allegations of abuse by a preponderance of the evidence...."

      Narais Black, Mr. Saacks' former domestic partner and mother of two of his children, also testified. She testified that she obtained a protective order against Mr. Saacks in 2008. However, testimony regarding Mr. Saacks' alleged abuse of their minor children was excluded based on hearsay.

      Counsel for Mr. Culotta offered a copy of the June 29, 2018 petition for protection from domestic abuse Ms. Dymond had filed against Mr. Saacks into evidence.