text:
    STATE of Louisiana v. Larry ROBERTSON a/k/a Harry Lucas a/k/a Kevin Brown a/k/a Tommy Green a/k/a Harry Johnson a/k/a Harry Reed a/k/a Loren Starns a/k/a Mike Starns.
    No. 03-KA-1062.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Nancy Miller, Assistant District Attorneys, Gret-na, LA, for the State of Louisiana, Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Larry Robertson, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

On January 25, 2001, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Larry Robertson, with theft of goods valued over $100 and less than $500 from J.C. Penny’s, a violation of LSA-R.S. 14:67.1o. The Indigent Defender Board (IDB) was appointed to represent him and the defendant pled not guilty at arraignment. On April 10, 2002, the defendant’s attorney informed the trial judge that the defendant desired to represent himself, but the trial judge denied the request. The defendant filed a motion to appoint a sanity commission on June 18, 2002, and the trial judge subsequently found the defendant was competent to stand trial.

After a trial before a six-person jury, the defendant was found guilty as charged on July 25, 2002. On July 31, 2002,, the trial judge sentenced the defendant to two years of imprisonment at hard labor. On October 23, 2002, the State filed a multiple offender bill of information alleging the defendant to be a | ..second felony offender based on a 1984 armed robbery conviction, and the defendant denied the allegations therein.

On June 25, 2003, the State filed another multiple offender bill of information alleging the defendant to be a third felony offender based on the 1984 armed robbery conviction and a 1980 theft conviction. That day, the court vacated the defendant’s original sentence, found the defendant was a second felony offender based on the 1984 armed robbery conviction, and resenteneed the defendant to four years at hard labor to run consecutively with a sentence the defendant received for contempt.

FACTS

On January 15, 2001, Yvette Morris and Debra Billiot, loss prevention officers for J.C. Penny’s at Oakwood Mall, were monitoring the store’s security cameras. Both ladies testified that the defendant brought six pairs of jeans into a fitting room, but exited the fitting room carrying only two pairs of jeans. Ms. Morris left her post to check the fitting rooms for the other pairs of jeans. When she discovered the fitting rooms were empty, Ms. Morris advised security of the situation. Meanwhile, the defendant exited the store, but he was subsequently stopped by the store’s personnel in the parking lot.

Ms. Morris and Ms. Billiot met the group in the parking lot and discovered that the defendant was wearing the missing jeans under his own pants. The defendant was asked to return to the loss prevention room, where four pairs of jeans, which still bore the store’s price tags, were removed from the defendant. According to Ms. Morris, the total value of the jeans was $104.96. Both Ms. Morris and Ms. Billiot positively identified the defendant at trial.

DISCUSSION

|4In his sole assignment of error, the defendant contends that the trial judge improperly denied his oral motion to represent himself. The State responds that the trial judge properly denied the motion because defendant did not unequivocally urge his right of self-representation.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant in a criminal prosecution the right to counsel and the right to represent himself. The right to counsel may be waived, but only when a defendant makes an unequivocal request to represent himself and voluntarily and intelligently waives the right to counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975); State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). A defendant who vacillates between self-representation and representation by counsel will be considered to have forfeited the right to represent himself. State v. Bridgewater, supra.

Once a defendant makes an unequivocal request for self-representation, the trial judge should determine whether the defendant is competent to waive the right to counsel. Faretta v. California, supra. Although no minimum requirements have been established for judging the sufficiency of a waiver of counsel, there must be a reasonable inquiry to establish on the record a valid waiver under the overall circumstances. State v. Strain, 585 So.2d 540, 542 (La.1991); State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1065, writ denied, 97-2151 (La.3/13/98), 712 So.2d 869.

In this case, the record reveals that the defendant did not unequivocally assert his right to self-representation. The defendant, who had been represented by IDB since February 26, 2002, first indicated that he wanted to represent himself through his attorney on April 10, 2002. That day, the matter was set for a pre-trial hearing, and the defendant began addressing the court about his multiple offender | Sstatus. During this discussion, the defendant voiced his displeasure with his appointed attorney, Anthony Angelette, because Mr. Angelette had not discussed the case with him since the defendant’s incarceration. Mr. Angelette explained that he was not sure when he was appointed to the case. The record reflects that the defendant became so animated that the court warned him to quiet down or face contempt charges. The discussion between the court, the defendant, and Mr. Ange-lette continued, and then the trial court handled other matters on the docket.

Later, Mr. Angelette informed the court that the defendant had “expressed the wish to represent himself, so to speak.” Thereafter, the defendant was sworn and the trial judge informed the defendant that he had a constitutional right to counsel. The court also informed the defendant that he had a right to represent himself, but recommended against it. The court asked the defendant what was his “desire,” and the defendant responded, “My desire is to represent myself.” During the colloquy, the defendant revealed that he was literate and answered affirmatively when the court asked if he understood the legal system. He also stated that he could perform legal research.

The defendant explained that his strategy was to disprove the State’s theory of his aliases and prior convictions. However, the defendant told the judge his name was really Harry Lucas. The defendant reiterated that he did not believe it was fair that he should be multiple billed when had already served his time for the prior armed robbery conviction. Thereafter the trial judge denied the defendant’s request to represent himself:

THE COURT:
Mr. Lucas, I certainly can empathize with the fact that you think it’s unfair; but that’s not what makes the law. And therefore I’m going to deny your request to represent yourself. Because it’s an interesting argument, but it’s an argument — not an argument in law. And I’m going to order that Mr. Angelette continue to represent you.

IfiAt a contempt hearing on June 10, 2002, the defendant characterized his former motion as one for “corepresentation,” not self-representation:

BY THE DEFENDANT:
Okay. The only problem is that when I file a motion, I file a motion for the corepresentation. The motion was denied because maybe you was [sic] under the impression I was asking to represent myself. I was asking for corepresentation.
BY THE COURT:
You have got court representation. Mr. Angelette is your lawyer.
BY THE DEFENDANT:
To help my attorney I felt as though I had a Constitutional [sic] right to corepresentation.
BY THE COURT:
You’ve got court representation.
BY THE DEFENDANT:
I’m saying C-0 representation, to help.
BY THE COURT:
Corepresentation. You mean you want to represent yourself and you want Mr. Angelette to help you?
BY THE DEFENDANT:
No, I want to be allowed to also file petitions to the Court, but in reality—
BY THE COURT:
If you want to file a petition on your own behalf, you can.

Thereafter, the defendant asked for a “reassignment of attorney” because he felt Mr. Angelette had a “personal vendetta” against him, since the defendant had previously cursed at Mr. Angelette in court. The defendant explained that he wanted a new attorney so that he would not continue to lose his temper in court and continue to be found in contempt of court.

17Based on the foregoing, we find that the defendant did not unequivocally assert his right to represent himself. Rather, it is clear that the defendant wanted an attorney, but not Mr. Angelette. At best, the defendant’s remarks indicate that he wanted to actively participate in the legal process, which the court assured him that he could do. In State v. Treadway, 97-901 (La.App. 5 Cir. 3/25/98), 710 So.2d 1121, 1123, writ denied, 98-1634 (La.9/25/98), 725 So.2d 490, this Court found that the defendant abandoned his motion to represent himself because he requested alternative counsel after he filed the motion to proceed pro se. In State v. Bridgewater, supra, the Louisiana Supreme Court held that the trial judge did not err in denying the defendant’s motion to represent himself because the request was not clear and unequivocal. Rather, the Bridgewater court concluded that the defendant’s request was grounded in his desire to obtain a different appointed attorney. State v. Bridgewater, supra at 895.

In Bridgewater and in the instant case, the defendants specifically stated that it was current counsel with whom they were dissatisfied. While an indigent defendant has the right to an attorney, he does not have the right to any particular attorney. State v. Bond, 94-509 (La.App. 5 Cir. 1/31/95), 650 So.2d 354, 358. Considering that the defendant told the judge that he wanted the assistance of counsel and specifically stated that the judge had misunderstood his former motion, we conclude that the trial judge did not err in denying the motion for self-representation. As pointed out by the State, the judge could have inferred that the defendant’s request was grounded in his desire to remove Mr. Angelette, not to unequivocally assert his right for self-representation. Accordingly, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following errors requiring corrective action were noted.

First, it is noted that the minute entry and the sentencing transcript conflict in that the minute entry reflects that the trial judge advised the defendant of the prescriptive period for post-conviction relief in accordance with LSA-C.Cr.P. art. 930.8, whereas the transcript does not. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the matter and instruct the trial court to send appropriate written notice to the defendant of the prescriptive period for post-conviction relief, and to file written proof in the record that defendant received the notice within ten days of the rendering of the opinion. State v. Stelly, 98-578 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

Second, there are numerous discrepancies between the multiple offender minute entry/commitment and the corresponding transcript of June 25, 2003. First, the transcript reflects that the State filed an amended multiple offender bill of information, whereas the minute entry/commitment does not. Further, the transcript reflects that, after the amended bill was filed, the defendant denied the allegations therein, whereas the minute entry does not. Additionally, the minute entry reflects that the defendant “pleaded GUILTY [sic]” to the multiple bill, but the transcript reflects the trial judge determined the defendant’s status based on records introduced by the State of the defendant’s predicate convictions and transcripts of pre-trial proceedings.

There is an additional discrepancy between the transcript and multiple offender minute entry/commitment. While the transcript reflects that the State introduced evidence at the multiple offender hearing, the minute entry/transcript | fldoes not so reflect. The prosecutor stated that she would “reoffer, file and introduce” transcripts of the April 10, 2002 and June 10, 2002 proceedings in which the defendant admitted he had a previous armed robbery conviction. The prosecutor also stated that she would “submit” a certified copy of the defendant’s conviction for the armed robbery. Finally, the prosecutor stated she would “offer, file and introduce” a certified copy of the second predicate, a 1980 theft conviction. None of this evidence is listed on the minute entry.

Accordingly, we remand the matter and order the district court to correct the minute entry/commitment to reflect that the State filed an amended multiple offender bill of information, that the defendant denied the allegations in the amended multiple bill, and that the trial court found the defendant to be a second felony offender. The reference in the minutes that the defendant pled guilty to the multiple bill should be deleted, and the exhibits introduced into evidence should be noted on the minute entry.

DECREE

For the reasons set forth above, we affirm the defendant’s conviction and sentence. We remand the matter and order the trial court to send written notice to the defendant of the prescriptive period for filing post-conviction relief. We further order the trial court to correct the errors in the minute entries in this case, as specified in this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The bill of information was subsequently amended to add seven aliases of the defendant.

      . The record reflects that the defendant denied allegations in a multiple bill again on June 18, 2003.

      . It should be noted that the appellate record does not contain the amended bill.

      . The exhibit envelope lodged with the appellate record contains a packet of documents relating to the defendant’s prior convictions. There is a yellow note dated September 8, 2003, stating that "these papers were found in the record immediately behind the Multiple Offender Bill.” However, the documents do not contain any indication that they were marked or introduced as exhibits at the multiple offender hearing.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Kentrisha DAVIS, John Mierl, Phyllis Brown, Carolina Mendoza, Mark Maier, Lois Irick, and Karen Porter v. JAZZ CASINO COMPANY, L.L.C.
    No. 2003-CA-0005.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.
    Rehearing Denied Feb. 6, 2004.

      Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Jeffrey C. Vaughan, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Plaintiffs/Appellees.
    Leslie A. Lanusse, William J. Kelly III, Robert E. Couhig, Jr., Louis C. LaCour, Jr., Raymond P. Ward, Adams and Reese LLP, Harry T. Lemmon, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

The defendants, Jazz Casino Company, L.L.C., appeal the trial court’s judgment, which granted class certification in favor of the plaintiffs. We affirm for the following reasons:

Statement of Facts and Procedural History

Approximately one hundred and forty-eight plaintiffs filed a lawsuit against the Jazz Casino Company, L.L.C. (“JCC”), which alleged that JCC’s termination of their employment violated a unilateral contract to employ them for at least four years after April 1, 2001. At the time, JCC sought Chapter 11 bankruptcy protection and a tax reduction from the state to relieve some its financial woes. The class alleges that JCC required that they actively lobby the state legislature in order to secure tax relief on behalf of the casino. The class alleges that JCC guaranteed that if the legislature granted tax relief to the casino, the plaintiffs would be employed for the length of time that the tax relief was in effect. The class argues that JCC made it clear to them via various written communications and meetings; that if the tax relief were not secured from the state, then Harrah’s Casino would close and they would lose their jobs.

LAs part of the lobbying process, the plaintiffs contend that they were required to participate in letter writing campaigns in addition to talking to the legislature and the media about obtaining a reduction in Harrah’s tax obligation. The class alleges that the oral and written communications from Harrah’s constituted an offer in which their participation in the lobbying and media campaign was an acceptance of the offer, which resulted in the formation of a unilateral contract. In April 2001, the state legislature granted the casino tax relief for a four-year period. This tax relief resulted in a reduction of the casino’s tax obligation from $100,000,000.00 to $50,000,000.00 in the first year and $100,000,000.00 to $60,000,000.00 for years two through four. In July 2001, the plaintiffs were terminated. Harrah’s Casino asked all of the class members to sign a separation agreement, which only entitled them to receive a week’s salary in exchange for relinquishing all rights including their rights to compensation for the four-year tax relief period.

The plaintiffs filed a petition for breach of contract and damages with a jury demand against JCC, which alleged breach of a unilateral contract and claiming that the separation agreement was contra bo-nos mores or executed under duress and therefore, should be declared null and void. The plaintiffs also filed a motion for certification as a class action, which was granted by the trial court. JCC filed an order of suspensive appeal, which contended that certification of the plaintiffs as a class would cause irreparable injury. The trial court granted the order for suspen-sive appeal.

13Discussion

JCC contends that the trial court erred in certifying the class based on the plaintiffs failure to make a prima facie showing that all of the class certification prerequisites were met.

A class action is nothing more than a procedural device. It confers no substantive rights. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who bring the action, but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion there from. La. C.C.P. art. 597; Williams v. State, 350 So.2d 131, 137-38 (La.1977).

Louisiana courts have vast discretion to determine whether to certify a class. See Billieson v. City of New Orleans, 98-1232, p. 8 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 152-53. A trial court must be afforded wide latitude when making factual and policy determinations as to the appropriateness of a class. The decision of the trial court, therefore, should not be reversed absent manifest error. See Adams v. CSX Railroads, 615 So.2d 476 (La.App. 4th Cir.1993).

Louisiana trial courts are afforded broad discretion in determining the class certification issues, and have wide latitude in considerations involving policy matters, and those requiring a preliminary analysis of the facts. Davis v. American Home Products Corp., 2002-0942 (La.App. 4 Cir. 3/26/03) 844 So.2d 242, 257.

|4The purpose and intent of the class action is to “adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are similarly situation.” See Ford v. Murphy Oil U.S.A., Inc., 96-2913 p. 4 (La.9/9/97), 703 So.2d 542, 544. The trial court’s decision therefore must not be reversed absent manifest error. See Adams v. CSX Railroads, 615 So.2d 476 (La.App. 4th Cir.1993).

Recently, there has been a tendency to require class certification when the statutory requirements have been met. See Billieson v. City of New Orleans, 98-1232, p. 8 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 152-53. This places the burden on the party seeking the class certification to demonstrate that all of the necessary elements for the certification exist. Specifically, the plaintiff must show that the class is definable and that it satisfies the requirements of numerosity, commonality, typicality and adequacy of representation. Billieson, 98-1232, p. 8, 729 So.2d at 152. The plaintiff must also demonstrate that the class action procedure is superior to other forms of adjudication.

Louisiana Code of Civil Procedure Articles 591-597 governs the class action procedure. Article 591(A) provides the general rule for certification of a class. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that join-der of all members is impracticable;
(2) There are questions of law or fact common to the class;
ls(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) The representative parties will fairly and adequately protect the interests of the class; and
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of. the conclusiveness of any judgment that may be rendered in the case.
If all of these criteria are not met, then the class should not be certified.

In its written reasons for judgment, the trial court stated:

This Court has allowed the parties to do extensive discovery regarding class certification issues. The parties have conducted written discovery and Defendant deposed all Plaintiffs sought to be made class representatives. The court has reviewed the pleadings, memoranda, the written discovery and transcripts of the deposition testimony of the class representatives as well as the entire record of this proceeding and is satisfied that the elements provided for by Articles 591(A)(1) through (5) and (B)(3) of the Louisiana Code of Civil Procedure are clearly satisfied. The court intends to maintain this class action as one pursuant to Article 591(B)(1).
With respect to Article 591(A), the court finds:
(1) The potential class is numerous enough, there being approximately 148 members of the class.
(2) Common issues of facts and law exist, primarily the factual and legal relevance of Defendant’s communications to the class members. A key issue is whether Defendant’s communications were sufficient to form the basis of a unilateral contract or commitment of employment.
(3) The named class representatives claims are typical of [t]he class. Those claims arise out of the same alleged conduct of Defendant and rely on the same legal theory.
(4) There has been presented no reason as to why the named class representatives or proposed class counsel are inadequate to represent the class representatives or proposed class counsel are inadequate to represent the class and none appear from the record.
(5) The class is objectively defined because it consists of an objectively identifiable group.
| fiWith respect to Article 591(B)(1), the court finds:
As pointed out above, common issues of fact and law exist, primarily the factual and legal relevance of Defendant’s communications to the class members, i.e. whether those communications were sufficient to form the basis of a unilateral contract and/or commitment of employment. There is evidence that absent certification of a class herein individual lawsuits will be brought. Certainly, individuals prosecuting separated actions on their own behalf under the facts and law at issue could conceivably result in varying interpretations. Such differing results have the effect not only of establishing different standards of conduct with respect to Defendant’s alleged actions, but will almost inevitable affect the interests of other class members and impede their ability to protect those interest.

We agree with the trial court’s reasoning.

Numerosity

The defendant asserts that joinder is appropriate in this case, because none of the proposed class members have stated that they would not bring forth an individual claim if the trial court denied class certification.

The first prerequisite for maintaining a class action established by La. C.C.P. art. 591(A)(1) is that the members of the class be so numerous that joinder is impracticable; this is sometimes called the “impracticality” or “numerosity” requirement. The numerosity requirement has been explained as follows:

This requirement reflects the basic function of the class action as a device for allowing a small number of persons to protect or enforce rights or claims for the benefit of many where it would be inequitable and impracticable to join every person sharing an interest in the rights or claims at issue in the suit.

Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085 (1998).

17Generally, a class action is appropriate whenever the interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would “clearly be more useful and judicially expedient than the other available procedures.” Cotton v. Gaylord, 96-1958 p. 13 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 768. Determination of whether this requirement has been fulfilled depends on the facts and circumstances of each individual case. Cotton, 96-1958, p. 13, 691 So.2d at 768; Dumas v. Angus Chemical Co., 25,632, p. 5 (La.App. 2 Cir. 3/30/94), 635 So.2d 446, 450.

No set number of plaintiffs is required in order to fulfill this requirement. Davis, 2002-0942, p. 19, 844 So.2d at 257, citing Cotton, supra 691 So.2d 760. In fact, difficulty in identifying the claimants is one of the factors that make joinder impracticable and a class action appropriate; thus, the plaintiffs are not required to identify every member of the class prior to certification. Davis, 2002-0942, p. 19, 844 So.2d at 257. The class must, however, be definable. Dumas, 635 So.2d at 450.

The determination of numerosity in part is based upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Davis v. American Home Products Corp., 2002-0942, p. 19 (La.App. 4 Cir. 3/26/03) 844 So.2d 242, 257.

In the instant case, it is alleged that approximately one hundred and forty-eight employees of Harrah’s Casino were fired after the tax reduction was obtained | ¿from the state. The class is limited to that number of people. The plaintiffs argue that out of the one hundred and forty-eight potential class members approximately sixty have agreed to become a part of the class action. If joinder is a practical alternative, then the class should not be certified. The record reflects that there are a sufficient number of class members. Since there are a significant number of plaintiffs involved in this case, joinder would be an impractical alternative. We find that the plaintiffs have satisfied the numerosity requirement for class certification.

Adequacy of Representation and Typicality

The second prerequisite for maintaining a class action is proof of adequate representation for the absent class members. This element requires that the proposed class representatives prove that their claims are “a cross-section of, or typical of, the claims of all class members.” Johnson v. Orleans Parish School Board, 2000-0825 (La.App. 4 Cir. 6/27/01) 790 So.2d at 734, quoting Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 6 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1130.

The following are “factors which may be relevant” to the adequacy of representation inquiry:

(1) The representative must be able to demonstrate that he or she suffered an actual — vis-a-vis hypothetical — injury;
(2) The representative should possess first hand knowledge or experience of the conduct at issue in the litigation;
la(3) The representative’s stake in the litigation, that is, the substantiality of his or her interest in winning the lawsuit, should be significant enough, relative to that of other class members to ensure that representative’s conscientious participation in the litigation; and
(4) The representative should not have interests seriously antagonistic to or in direct conflict with those of other class members, whether because the representative is subject to unique defenses or additional claims against him or her, or where the representative is seeking special or additional relief.

Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085 (1998).

The record shows that each of the representatives of the class allege that they entered into a unilateral employment contract with the defendant, JCC, for a period of four years. The representatives also argue that each one of them attended mandatory meetings led by Harrah’s management team. The representatives testified that in the mandatory meetings Har-rah’s management team consistently promised that if the employees helped Harrah’s obtain the tax reduction there would be no lay-offs and the employees would keep their jobs for the duration of the tax reduction. Each class representative also alleges that in July of 2001, contrary to the unilateral employment contract, they were laid off from their jobs. The class representatives’ claims are typical of all class members, therefore they are adequate representatives of the class.

The element of typicality requires that the claims of the class representatives be a cross-section of, or typical of, the claims of all class members. Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 5 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129. Louisiana jurisprudence does not require a “Noah-like” tabulation of class representatives and claims. Johnson v. Orleans Parish School Board, 2000-0825, p. 10 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, 742. The plaintiffs are not required to produce two, or even one, of every kind of claim or of every person included in the class. The law only requires that the plaintiffs “typically” and “adequately” demonstrate that they represent a cross-section of the claims asserted on behalf of the class. Johnson, 2000-0825, p. 10, 790 So.2d at 742; Andry, 97-0793 at p. 6, 710 So.2d at 1131.

The defendants argue that the class representatives do not have claims typical of one another and only demonstrate that each one of their claims is unique. We disagree.

The representatives of the proposed class allege that their claims are based on Harrah’s communications during the mandatory meetings and other interactions with Harrah’s management team during a specific period of time. The representatives’ claims rely on the same legal theory based on whether Harrah’s communications in various manners and at various times constituted the formation of a unilateral contract. Based on the record, we find that the typicality criterion is satisfied.

Commonality

JCC argues that each plaintiff must rely on facts that are unique to each one of their claims. Specifically, JCC alleges that the trial court must engage in a highly individualized inquiry into the oral representations allegedly made by JCC on several different occasions to different plaintiffs to determine whether the ^elements of a contract were met. Therefore, common issues do not prevail over individual issues in this case.

The requirement of commonality is met when the common questions of fact and law predominate over issues or defenses affecting only individual class members. See Cotton v. Gaylord Container, 96-1958, p. 19 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 771. The Supreme Court of Louisiana has concluded that when the plaintiffs’ individual liability issues predominate over the issue of the defendant’s duty, a class action certification is not appropriate. See Banks v. New York Life Insurance Co., 98-0551 (La.7/2/99), 737 So.2d 1275, 1281, cert. denied, Major Banks v. New York Life Insurance Co., 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000). When there are a myriad of individual complaints that ultimately will require plaintiff-by-plaintiff adjudication of liability issues, this will militate against a finding of predominance of common character and the superiority of the class action procedure. Banks, 98-0551, 737 So.2d at 1281. If the plaintiffs’ claims are such that individual adjudication will be required, the basic purpose of the class action judicial economy will be thwarted. Therefore, it is important for the court to insure that the common issues in the case predominate before it certifies the class.

The requirement of a “common character” restricts the class action to those cases in which it would achieve economies of time, effort and expense, and promote uniformity of decision as to persons similarly situation. See McCastle v. Rollins Environmental Services of La., 456 So.2d 612, 616 (La.1984). When a common character of rights exists, a class action will be superior to other adjudicatory methods in effectuating substantive law, promoting judicial efficiency and individual fairness.

Once the damage has occurred and the class solidified, the tortfeasor cannot thereafter escape liability by correcting the problem with respect to some members of the class, and then claiming that damages as to those class members have ceased. Chamberlain v. Belle of New Orleans, 1998-1740 p. 5 (La.App. 4 Cir. 4/7/99),731 So.2d 1033, 1035.

We find that a “common character” of rights exists in this case and the typicality requirement is satisfied. This court established in McCastle that situations involving multiple or long-term incidents do not preclude class certification. McCastle v. Rollins Environmental Services of La., 456 So.2d 612, 616 (La.1984). In McCastle, a class action was brought against the operator of a chemical waste disposal site. The plaintiffs alleged that the activities of the defendant between 1980 and 1981 caused them to suffer physical injuries. In McCastle, each plaintiff would be required to individually show that the defendant’s conduct injured him or her in some way. However, this Court held that the plaintiffs met the “commonality” requirement because they were all injured by the same conduct. The fact that this conduct occurred during a period of one year, rather than involving one incident, did not preclude this Court from certifying the class in McCastle. McCastle, 456 So.2d at 616.

The instant ease is similar to McCastle as well. The class members in this case claim that they were all injured by the same conduct. Although they must prove individual injuries, they allege that their injuries were caused by the same “common” conduct. Each member of the class in this case alleges that they participated in the meetings led by Harrah’s Employee Action Team (“HEAT”). Each of the class members alleges that HEAT repeatedly pledged to honor Harrah’s promise of job security whereby the employee’s term of employment was |1sto be measured by the number of years in which the state granted Harrah’s a tax reduction. The class members also allege that they participated in letter writing campaign to the legislature and they were also told what to say to the media and to the legislature. Each of the class members argues that a unilateral contract was formed for a specific term of employment on April 1, 2001, when the legislature granted Harrah’s the reduction in its tax obligation.

According to the unilateral contract, the term of employment was to end upon the expiration of the four-year tax relief from the State. The claims are asserted against one defendant, Jazz Casino Company, L.L.C., which owns Harrah’s Casino. The class was solidified between April 1, 2001, when the tax reduction was granted to Harrah’s, and July 17, 2001, when all of the class members were laid off. There are no unique facts for each member of the class.

Furthermore, individual questions of quantum may differ among each member of the class, but the “common character” of rights exists to justify the trial court’s certifying this suit as a class action. Mayho v. Amoco Pipeline Co., 99-620 (La.App. 4 Cir. 12/15/99), 750 So.2d 278. Even though the trial court certified this case as class action, the trial court still has the discretion to amend or recall certification under La. C.C.P. art. 592.

Therefore, we hold that plaintiffs have demonstrated that the claims asserted are of common character between the class representatives and the class members as a whole. Based on the existence of common character between the class members, a class action serves the court’s goal of “(1) effectuating substantive law; (2) judicial efficiency; and (3) individual fairness.” Chamberlain v. Belle of New Orleans, 1998-1740 p. 6 (La.App. 4 Cir. 4/7/99), 731 So.2d 1033, 1036 citing McCastle v. Rollins Environmental Services of La., 456 So.2d 612, 620(La.1984).

| u.Definition of the Class

Harrah’s argues that the plaintiffs do not define with specificity which individuals would be included or excluded from the proposed class. We disagree.

Definability of the class by objective criteria is essential given the res judicata effect of the class action procedure. A precise geographic definition of the class is not absolutely necessary. In light of the purpose of the class action procedure, it is objectively reasonable for the geographic area to be defined broadly so as to encompass all potential class members. See Andry, 710 So.2d at 1130.

The trial court stated that the proposed class is limited to the one hundred and forty-eight employees, who were terminated without cause on July 17, 2001. Contrary to the defendant’s argument, the proposed class is sufficiently defined in order to give potential class members enough information to decide whether they are included within the class and to enable class members to decide whether to opt out of the class. Therefore, the plaintiffs have satisfied the definability requirement necessary for class certification.

JCC also asserts that the trial court erred in certifying the case as a class action based on the lack of trial plan. This argument has no merit. The record contains two class certification scheduling orders in addition to several amendments to those orders, which govern time limitations and the parameters of discovery process in the instant case.

Based on the foregoing, we find that plaintiffs have fulfilled both the statutory and jurisprudential requirements for a class action. If an error is to be made, it should be in favor of, and not against the maintenance of, the class action |1Bbecause the class is always subject to modification should later development during the course of the trial so require. Davis v. American Home Products Corp., 2002-0942 (La.App. 4 Cir. 3/26/03) 844 So.2d 242.

A certification hearing does not determine liability. Davis, 844 So.2d at 253. It is not the correct venue to decide the merits of the case or defenses the defendants may allege. Those matters are to be resolved at the trial on the merits.

Accordingly, the trial court judgment is affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Brian COOPER, Appellant.
    Nos. 38,011-KA, 38,012-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.
    William R. Warren, John M. Lawrence, Paula C. Marx for Appellant.
    J. Schuyler Marvin, District Attorney, Louis C. Minifield, Robert L. Pittard, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

The defendant, Brian Cooper, was indicted by a Webster Parish grand jury with one count of first degree murder, a violation of LSA-R.S. 14:30(A)(6), and the state filed a formal notice of its intent to seek the death penalty. The state also charged the defendant with conspiracy to distribute cocaine, a violation of LSA-R.S. 40:967 and 14:26. Pursuant to a plea bargain, the defendant pled guilty to the amended charges of manslaughter, a violation of LSA-R.S. 14:31, and attempted distribution of cocaine, a violation of LSA-R.S. 40:967 and 14:27. The state also agreed to a ten-year cap on the attempted distribution of cocaine charge.

Subsequently, the district court sentenced defendant to serve twenty-five years at hard labor on the manslaughter conviction, and imposed a concurrent sentence of ten years on the attempted distribution of cocaine conviction. Following the denial of his timely motions for reconsideration, defendant challenges the twenty-five-year sentence as excessive. He also argues that the trial court did not give adequate consideration to certain mitigating matters and did not adequately articulate its reasons for sentence. We affirm.

The matters of record show that on February 14, 2000, Correando Thompson, Darrick Tubbs and the victim, Tina Meadows, went to the Minden residence of A1 Cooper to sell cocaine. At the residence, A1 Cooper and Thompson had an argument about the quality of the cocaine. According to one witness, Mario West, who was with Cooper, pulled a gun. At that point defendant stabbed the unarmed victim, Meadows. She staggered into the street, and ultimately bled to death from a cut jugular vein. Tubbs, AlpCooper, Mario West and the defendant surrendered themselves to the police two days later. At that time, defendant and his brother A1 said Meadows had pulled a gun first. Defendant claimed he tried to take the gun from her and then stabbed her.

Defendant now argues that his manslaughter sentence is excessive and that the court did not give adequate consideration to the mitigating factors of his young age, his first offender status and his mental condition which included a lack of insight and social skills, but which, although characterized by appellate defense counsel as “paranoid,” was not delusional. We also note that the psychologist who examined defendant found his judgment was “generally good.”

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). Here, the record shows an adequate factual basis for the sentence imposed.

laWhether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates LSA-Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Prior to imposing sentence, the court listened to a statement from the victim’s family members and read to them a letter from defendant in which he expressed his remorse. The court pointed out to the family members that the law requires the defendant to serve at least 85 percent of the sentence imposed. The court then considered the facts of the case, noted there was no evidence of a hostile act on the victim’s part, and concluded that this was “basically a drug deal that went bad.” The court noted that defendant, then 21, was a first felony offender, but also noted that the taking of a human life was a serious offense.

|/There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. The record clearly demonstrates the trial court was aware of the mitigating matters urged by the defense prior to imposing sentence.

On this record, we do not find constitutional error. Defendant was of adult age when he committed the instant offense. The sentence imposed is a mere five years more than one-half of the sentencing range which was available to the court. The sentence imposed is lawful. Considering defendant’s record and the totality of the circumstances of this ease, we find the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence. It is not constitutionally excessive.

The defendant’s convictions for manslaughter and attempted distribution of cocaine, and their respective sentences are affirmed.

AFFIRMED.


text:
    Susan VINSON, Plaintiff-Appellee, v. Rhonda HENLEY, Defendant-Appellant.
    No. 38,006-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Donald C. Douglas, Jr., for Appellant.
    G. Larry Arbour, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

This action arises out of a dispute over a landlord’s retention of a tenant’s security deposit because of the condition of the leased premises when vacated by the tenant. Defendant/Appellant, Rhonda Henley (“Henley”), seeks reversal of the trial court’s judgment awarding plaintiff the sum of $1,050 with legal interest from the date of judicial demand and attorney’s fees in the amount of $750. Plaintiff/Appellee, Susan Vinson (“Vinson”), answered the appeal seeking an increase in the award of attorney’s fees to $2,500. For the following reasons, we amend the judgment and, as amended the judgment is affirmed.

FACTS

Plaintiff, Susan Vinson, entered into a contract with Rhonda Henley on October 12, 2001, to lease the premises located at 3011 John Cole Place in Monroe, Louisiana. Vinson sought a temporary residence while repairs were being made to her townhouse for damages suffered in a fire. The term of the lease was three months and provided for a monthly rent of $1,100. The lease also required Vinson to provide a deposit equivalent to one month’s rent as a damage deposit. The provision in the lease regarding the damage deposit read as follows:

Tenant has deposited with Lessor the sum of $1,100 dollars as a deposit against damages. The Tenant does not have the option to apply this damage deposit against the final month’s rent, unless outstanding, then said deposit shall be forfeited to Lessor. The deposit shall be returned to Tenant if, at the termination of the lease, the premises are left undamaged and broom clean. If it is necessary for the Lessor to repair any damage or to have the premises cleaned, an itemized statement shall be submitted by Lessor to Tenant within 30 days after the property has been vacated, if Tenant requests said statement and provides Lessor with his/her address for mailing such notice, and the balance of the deposit (if any) will be returned |gat that time. Any deficiency shall be paid to Lessor within 30 days of receipt of the notice.

The lease does not contain any prohibitory language with regard to whether the lessee is allowed to smoke in the rental property.

Vinson vacated the premises when the lease expired on January 16, 2002. Vinson’s belongings were moved in and out of the rental property by a company operating under the name, ServiceMaster. On both occasions, Chadwick Lloyd, an employee of ServiceMaster, was a member of the crew moving Vinson’s belongings. Vinson returned the keys to Henley at her beauty parlor on January 16, 2002, and asked Henley to mail her damage deposit.

On January 31, 2002, Henley’s attorney forwarded a letter to Vinson indicating that “substantial damage” had been done to the rental property during her occupancy and that the damage deposit was going to be applied to repair those damages. The letter indicated that if any portion of the deposit remained after the repairs had been made, the balance would be returned to her. On February 6, 2002, Vinson’s attorney sent a letter to Henley’s attorney requesting an itemized statement of the proceeds, which Henley contended needed to be retained for repairs to the leased premises. Vinson’s attorney forwarded a follow-up letter on February 21, 2002, reiterating that request. Neither the amount deposited nor an itemized statement of the damages or necessary repairs was sent to Vinson.

On May 8, 2002, Vinson filed suit against Henley in Monroe City Court for the return of her damage deposit, statutory penalties and attorney’s fees under LSA-R.S. 9:3251, et seq. Henley answered and reconvened [.^alleging that Vinson’s deposit was insufficient to cover the costs of the substantial damage done to the property and requested that Vinson be ordered to pay the expenses which Henley incurred in repairing the premises that were over and above the amount of the damage deposit. The matter was tried on January 15, 2003.

At trial, Vinson, a smoker, testified that she resided in the rental property for three months between October 16, 2001 and January 16, 2002. She admitted that while living there, she smoked inside the home. However, Vinson stated that because she worked all day, she was ordinarily only in the house during the evenings. Vinson testified that she vacated the property at the end of the lease, returned the keys to Henley at the beauty parlor where she worked and asked Henley to return her deposit to her at her townhouse address. She testified that although she moved in with a friend for a period of time because the repairs on her townhouse had not been completed, she continued to receive all of her mail at her townhouse address, where she received the aforementioned letter from Henley’s attorney.

Also testifying on Vinson’s behalf was ServiceMaster employee, Lloyd Chadwick. He testified that as part of his work for ServiceMaster, he does smoke repair work almost every day. Mr. Chadwick stated that he had taken part in moving Vinson both into and out of the rental property. He testified that when ServiceMaster came to move Vinson out of the property _jjin January 2002, he went in every room of the house to retrieve Vinson’s belongings. He did not recall noticing any smoke damage in the house or smelling any unusual smoke odor in the home when they moved Vinson out of the home. He also testified that had there been a smoke odor saturating the carpet, the problem could have been resolved by shampooing the carpet. He stated the approximate cost of shampooing the carpet in the home was $45 for the carpet in the bedroom and $18 for the carpet in the hallway.

Lastly, the plaintiff called the owner of ServiceMaster, Rupert Lange. Mr. Lange testified that an ozone machine could be used as an alternative to shampooing a carpet to eliminate smoke odors. He testified that using an ozone machine is an almost foolproof way of eliminating smoke odors from a carpet and that an ozone machine can be rented at an approximate cost of $45 per day.

Both the defendant and her husband, Brett Adams, testified on her behalf. Mr. Adams testified that he had entered the rental property on a couple of occasions prior to the date Vinson vacated the premises. In doing so, he observed that the house was littered with dinner plates with extinguished cigarette butts on them. He testified that there was a pervasive smoke odor in the home which had not been there prior to Vinson’s tenancy. He attested to the fact that he, Henley’s mother and stepfather cleaned the house for Henley because she is sensitive to odors. On cross-examination, Mr. Adams admitted that no attempt was made to shampoo the carpet prior to replacing it.

| ¡^Henley testified that when Vinson indicated that she was going to move out at the end of the lease term, Henley entered the house so that she could show it to potential new renters. According to Henley, she entered the house the morning before she was scheduled to show it to a potential tenant and found that the house was filthy. She testified that she had to take the rest of the day off from work to scrub the floors and remove “everything from the walls and ... the commode, and the floors, that I possibly could get it in shape to see, for the renter to see.” Vinson moved out approximately two weeks later.

Henley testified that after Vinson vacated the property, she steam cleaned the carpet with her own carpet cleaner on two separate occasions and tried to air out the house every day by leaving the windows open all day. She admitted that she never had the carpet shampooed and did not contact anyone about having the carpet professionally treated, despite Vinson’s recommendation that she contact Service-Master. Henley testified that she did not have the carpet professionally cleaned because she did not want to go through the expense of doing something with which she was unfamiliar.

Despite Henley’s testimony that various realtors and potential renters and buyers had complained of the pervasive smoke odor in the home before the carpet was replaced, she did not call any such witnesses to testify to that fact. Henley replaced the carpet in April 2002 at a cost of $1,232.46. She presented a receipt from Lowe’s evidencing this amount.

|fiAt the conclusion of the testimony, the court rendered judgment in favor of the plaintiff, finding that Henley was indebted to plaintiff for $1,050, plus attorney’s fees and court costs. A judgment to that effect, which fixed the amount of attorney’s fees at $750, was signed on January 21, 2003. This appeal followed.

DISCUSSION

Henley contends the trial court erred in finding that the damage deposit could not be properly applied to the replacement of the carpet. Henley also argues that because she was in “good faith” in withholding the damage deposit to replace the carpet, the trial court erred in ordering her to pay Vinson’s attorney’s fees. Vinson has answered the appeal requesting that the attorney’s fee award be raised from $750 to $2,500.

LSA-R.S. 9:3251 provides, in pertinent part:

A. Any advance or deposit of money furnished by a tenant or lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of residential or dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit which is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefor. The tenant shall furnish the lessor a forwarding address at the termination of the lease, to which such statements may be sent.

LSA-R.S. 9:3252(A) provides:

A. The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor, or from the lessor’s successor in interest. Failure to |7remit within thirty days after written demand for a refund shall constitute willful failure.

LSA-R.S. 9:3253 provides:

In an action brought under La. R.S. 9:3252, the court may in its discretion award costs and attorney’s fees to the prevailing party.

Accordingly, under the provisions of LSA-R.S. 9:3251(A), the landlord may retain all or any portion of the deposit which is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of the deposit is retained, the landlord must forward to the tenant, within one month after the date the tenancy terminates, an itemized statement accounting for the retained proceeds and giving the reasons thereof. If the landlord willfully fails to do so, the tenant shall be entitled to actual damages or two hundred dollars, whichever is greater. Furthermore, the court may in its discretion award attorney’s fees and costs to the prevailing party. Nwokolo v. Torrey, 31,412 (La.App.2d Cir.1/20/99), 726 So.2d 1055.

An appellate court may not set aside a trial court’s factual findings absent clear or manifest error. Chisholm v. Clarendon National Insurance Company, 37,022 (La.App.2d Cir.7/9/03), 850 So.2d 1070. To reverse a trial court’s factual determination, a court of appeal must find from the record that there is no reasonable factual basis for the findings and that the findings are clearly wrong or manifestly erroneous. Chisholm, supra.

Henley argues that the trial court erred in concluding that the damage deposit could not be applied to the replacement of the carpet after its initial finding that “substantial” and “severe” damage had been done by the |stenant’s smoking in the leased premises. Her argument is rooted in the following statement by the trial judge:

Based on the testimony heard this morning and this afternoon, this Court does not find that the damages described here, and the substantial damage or severe damage, is the type that is contemplated uh, by this contract and further finds that defendant is justly and fully indebted unto Ms. Susan Vinson in the amount of $1,050, plus attorney’s fees and all court costs.

We do not interpret this statement as reflecting a factual finding by the trial court that “substantial” or “severe” damage was done to the leased premises. While the trial court’s statement could have been more clearly stated with respect to the phrase “and the substantial damage or severe damage,” a literal reading of the statement does not reflect the factual finding suggested by Henley on appeal. To the contrary, the trial court’s ruling reflects a finding that the evidence presented did not substantiate the allegation that damage had been done to the carpet which warranted its replacement.

LSA-R.S. 9:3251 and the instant lease allow the landlord to retain any portion of the damage deposit which is necessary to repair or remedy any damage or unreasonable wear to the premises. While there was testimony from Henley and her husband that there was a pervasive smoke odor in the home after Vinson occupied it for three months, there was also testimony by Chadwick, the ServiceMaster employee, that there was no such odor. Furthermore, even assuming such an odor was present, the trial court would have been correct in denying reimbursement for the replacement of the carpet at a cost exceeding $1,200 when the landlord admits that she did not attempt the less costly alternatives of a professional cleaning or the use of |3an ozone machine. The evidence at trial suggested that these measures would have cost approximately $50.

Therefore, we find that the trial court was not manifestly erroneous in concluding that Henley failed to show that the replacement of the carpet was necessary to remedy the alleged damage to the house. Further, the trial court’s deduction of $50 from the amount of the deposit was not manifestly erroneous, given the testimony that a professional cleaning of the carpeted areas would have cost approximately $63 and rental of an ozone machine would have cost approximately $45.

For these reasons, we also find that the trial court did not err in awarding attorney’s fees to Vinson in the amount of $750. Henley argues that the award was erroneously made because there was no evidence that Henley acted arbitrarily or capriciously. We disagree. The evidence clearly shows that Vinson’s attorney made a written demand for an itemized statement, accounting for the deposit proceeds retained by Henley on February 6, 2002. No evidence was presented that such a statement was ever forwarded by Henley nor does Henley allege that she mailed one. Under LSA-R.S. 9:3252, Henley’s failure to provide such a statement within thirty days of written demand constitutes willful failure to comply with the requirements of LSA-R.S. 9:3251. This failure gives rise to the action for damages and for an award of attorney’s fees in favor of the prevailing party. LSA-R.S. 9:3252.

Accordingly, we affirm the trial court’s judgment, finding that Henley is indebted to Vinson for all but $50 of the initial damage deposit and | inordering her to pay Vinson $750 in attorney’s fees. Since Vinson did not include a request for the $200 statutory damages in her answer on appeal, we cannot award that amount.

Vinson has answered the appeal, seeking additional attorney’s fees for defending the appeal. As we have recognized in the past, an increase in attorney’s fees for services rendered on appeal is appropriate when the defendant appeals and obtains no relief. Haynes v. Shumake, 582 So.2d 959 (La.App. 2d Cir.1991). This policy takes on added importance when dealing with a law such as the Lessee’s Deposit Act, LSA-R.S. 9:3251 et seq., which provides for attorney’s fees to make it feasible for a lessee to take legal action to recover sums which may not otherwise be practical to pursue judicially. Accordingly, we conclude that Vinson is entitled to an additional award of attorney’s fees for work associated with this appeal in the amount of $1,250.

CONCLUSION

For the foregoing reasons, we amend the judgment to include an award in the amount of $1250 for attorney’s fees incurred by the plaintiff/appellee in connection with this appeal. In all other respects, the trial court judgment is affirmed. Costs of this appeal are assessed to the defendant/appellant.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

      . While Vinson's testimony indicates that she moved in with a friend until June or July 2001, we assume that she meant 2002. Since she did not move out of the rental property until January of 2002, the context of the colloquy between Vinson and Henley's counsel makes it clear that Vinson’s stay with her friend post-dated her vacating the rental property.

      . Rupert Lange's name was incorrectly spelled "Ruford” in the trial transcript.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Clinton POOLE, Appellant.
    No. 38,000-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Louisiana Appellate Project by Bertha M. Hillman, for Appellant.
    Walter E. May, Jr., District Attorney, Douglas Stokes, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

Clinton Pool (“Pool”) was convicted and sentenced for the illegal use of a weapon. La. R.S. 14:94(E). He now appeals his conviction. For the following reasons, we affirm.

Facts

The facts regarding the offense are not disputed on appeal. On the night of August 10, 2002, Pool was a passenger in a car traveling west on La. Highway 4, approximately four miles east of Chatham, Louisiana. As that car began changing lanes with another car, Pool retrieved a 9-mm caliber pistol from under the car seat, stuck it out the window, and fired it approximately ten times. The other car was hit at least once. When the other car reached Chatham, the police were alerted and Pool was arrested. When questioned by the police, Pool claimed that the other car had run them off of the road, and the discharge of the pistol was in self-defense. Pool also stated that he had pointed the pistol away from the other car when it was fired.

Discussion

In his sole assignment of error, Pool has raised a claim relating to the exclusion of an African-American juror he argues was in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In this case, during the voir dire, the racial composition for the prospective jurors was white, except for two African-Americans. One prospective juror, a black female, was excused for cause, at the request of both the defendant and the state. The defendant peremptorily excused four white females. The state peremptorily excused a white male and Rosa |2Bolds Finis-ter (“Finister”), the remaining black female. Finister is the juror at issue in this appeal.

During Finister’s examination by the state, it was revealed that she knew the assistant district attorney prosecuting the case. Finister testified that she had consulted him regarding a civil legal matter, but ultimately she had not retained him. As noted, the state peremptorily excused Finister. Voir dire continued with other prospective jurors being excused. Before the jury was sworn in, the defendant made a Batson challenge regarding the state’s exclusion of Finister, arguing that the state had shown a pattern of racial discrimination. The trial court denied the motion, to which the defendant objected. After the trial court’s ruling on the motion, the assistant district attorney noted, “Your Honor, the State is so confident that Mr. Beal’s Batson challenge is beyond any possibility of merit. I’m not even going to put on the record my racially neutral reasons. I’ll roll the dice.”

On appeal, Pool argues that the state failed to provide any non-racial reasons for excusing the only remaining black on the jury panel. In response, the state argues that since Pool failed to make a prima facie showing of purposeful discrimination, it was not required to state its reasons for excusing that juror. We agree.

The Batson holding is codified in our law as La.C.Cr.P. art. 795(C), which provides:

|;iC. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

To make a Batson claim against the state, the defendant must first establish a prima facie case that the state exercised its peremptory challenges to exclude members of the jury venire solely on the basis of their cognizable race. Batson, supra; State v. Green, 94-0887 (La.05/22/95), 655 So.2d 272; State v. Thornton, 36,757 (La.App.2d Cir.01/29/03), 836 So.2d 1235, 1240, writ denied, 2003-0861 (La.10/31/03), 857 So.2d 474. If the defendant fails to make out a prima facie case, then the challenge fails, and it is not necessary for the prosecutor to articulate neutral explanations for the strikes. State v. Givens, 99-3518 (La.01/17/01), 776 So.2d 443.

Only upon a defendant establishing a prima facie case will the burden shift to the state to come forward with a race-neutral explanation. This second step of the process does not demand an explanation from the state that is persuasive, or even plausible. The reason offered by the state will be deemed race-neutral unless a discriminatory intent is inherent within that explanation. The persuasiveness of the state’s explanation only becomes relevant at the third and final step which is when the trial court must decide whether defendants have proven purposeful discrimination. Thus, the ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

On appellate review, this court must analyze whether the reasons were race-neutral and whether the trial court properly assessed the weight and credibility of each explanation. State v. Thornton, supra, citing, State v. Mamon, 26,337 (La. App.2d Cir.12/16/94), 648 So.2d 1347, writ denied, 95-0220 (La.06/02/95), 654 So.2d 1104.

In State v. Green, supra at 288, the Louisiana Supreme Court discussed how a defendant may establish his prima facie case. The defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

The state need not give an explanation for its use of a peremptory challenge if the trial court does not find that the defense has made a prima facie case, although many trial courts require this to create a complete record. State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992).

Although the trial court mistakenly noted that the state had articulated “a nonracial reason” for is exclusion of Finister, such an error by the trial court does not necessarily lead to the conclusion that Pool should have | ¡¡prevailed on his motion. Primarily, we note, Pool never made the threshold showing, i.e., a prima facie case of purposeful discrimination in excusing Finister. Nothing in the questioning of Finister was out of line with the questioning of the other potential jurors. Nor were her answers out of line with the other potential jurors. This is not a case where the state created a line of questions to exclude a particular race of jurors. Nothing in the record suggests that Finister was targeted by the state. Moreover, although the state (along with Pool) excluded another black prospective juror, there was certainly no obvious pattern of purposeful racial discrimination by the state. Thus, Pool failed to meet his primary burden and make a prima facie case that the state exercised its peremptory challenges to exclude members of the jury venire solely on the basis of their cognizable race. This failure to make his prima facie case technically made it unnecessary for the state to articulate a race-neutral reason for the exclusion.

However, although we conclude that this assignment of error is without merit, the statements of the assistant district attorney in connection with Pool’s Batson motion cannot go left unnoticed. Specifically, in regard to Pool’s Batson challenge, the assistant district attorney stated, “I’m not even going to put on the record my racially neutral reasons. I’ll roll the dice.” This assistant district attorney, as well as the trial court, is pointed to State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992), wherein we stated the advisability of making a clear and complete record for review of Batson claims. The courtroom is not a casino. Criminal procedures involve serious ^issues regarding an individual’s constitutional rights, and that individual is entitled to the respect due the proceedings.

Conclusion

For the forgoing reasons, Clinton Pool’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Prior to the jury being sworn in, the state made a reverse Batson challenge to the defendant’s peremptory challenges, noting that the defendant had excused four white females. The trial court then addressed the four prospective jurors excused by the defendant. After the defendant's counsel provided reasons for them being excused, the trial court found neutral reasons for excusing all four. The state’s reverse Batson challenge was denied.