author: .BROWN, C.J. MOORE, J.,

text:
    Diane BOSWELL, Plaintiff-Appellant, v. Sokhan (SUE) IEM, Defendant-Appellee.
    No. 37,713-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2003.

      Rick Fayard, for Appellant.
    Amy L. Greenwald, for Appellee.
    Before BROWN, PEATROSS, and MOORE, JJ.
   .BROWN, C.J.

The trial court granted defendant’s exception of no cause of action and dismissed plaintiffs lawsuit. Plaintiff appeals. We affirm and remand.

Factual and Procedural Background

Defendant, Sokhan (Sue) Iem, owned a business known as Sue’s Drapery, located on East 70th Street in Shreveport, Louisiana. On November 2, 1999, defendant sold to plaintiff, Dianne Boswell, all of the assets of the business for a recited consideration of $15,000, of which $10,000 would be paid at closing, with the balance to be paid quarterly “at the rate of 3% of gross revenue commencing April 1, 2000.” The instrument, entitled “Sale and Transfer of Business,” contained a non-competition provision “that defendant would not compete in this or any similar business with purchaser for a period of three (3) years in the Shreveport-Bossier City area, and in the area within the radius of 50 miles thereof.” The document further listed ten specific clients of the business and defendant agreed that contacting any of the named clients for the purpose of any type of fabric, curtain or interior work would constitute a breach of the agreement not to compete and would subject her to the immediate return of the purchase price.

Following the purchase, plaintiff hired defendant to work in the business. Plaintiff claims that on April 27, 2001, she discovered that, notwithstanding the non-compete clause, defendant was providing window treatments and draperies for clients in the Shreveport-Bossier City area. Plaintiff filed this action on September 25, 2001, to rescind the agreement | ¡.and seek the return of the $10,000 cash paid at closing as well as money paid on the promissory note executed contemporaneously therewith.

Defendant answered the suit, generally denying the allegations of plaintiffs petition and affirmatively asserting that the non-competition provision of the contract was null, void, and of no effect. Specifically, defendant asserted that La. R.S. 23:921(B) limits non-competition provisions to a period of two years and to parishes specifically named. Defendant also asserted that the contract executed between the parties did not have a savings or severability clause. Defendant concluded that the non-competition language in the contract was a violation of Louisiana law, and thus null, void, and unenforceable.

In March 2002, defendant moved for summary judgment. No affidavits, deposition excerpts, answers to interrogatories, etc., were submitted in support of the motion for summary judgment, but rather, defendant urged that, as a matter of law, plaintiffs suit should be dismissed.

Plaintiff filed an opposition memorandum to the motion for summary judgment, wherein, inter alia, she contended that the non-compete agreement was not between an employer and employee; that both parties were on equal footing and negotiated equally; and that neither was forced or coerced into the agreement. Plaintiff executed an affidavit in support of her opposition to summary judgment.

On April 29, 2002, Judge Crichton denied defendant’s motion for summary judgment. Thereafter, counsel for defendant took a supervisory | ¡¡writ to this court, which, on July 11, 2002, was denied based on the showing made.

On August 28, 2002, defendant filed a reconventional demand, now alleging that the purchase price was $20,000, rather than $15,000, and that only $12,820 had been paid toward the total purchase price, with no payments having been made since October 2000.

Following discovery, Judge Crichton issued a recusal on the basis that at least one of the potential witnesses in the case was his spouse’s close personal friend, and that defendant had in fact done work for Judge Crichton’s wife. The case was then assigned to Judge Thaxton.

On December 5, 2002, defendant filed a peremptory exception of no cause of action with an accompanying memorandum, asserting that the non-competition language in the agreement violates applicable law, specifically La. R.S. 23:921, and as such was null, void, and unenforceable. Plaintiff responded by filing a “Motion for Sanctions for Filing Frivolous Pleading,” asserting that defendant was making the same arguments in her peremptory exception of no cause of action as were made in her motion for summary judgment, which was denied by the trial court and this court.

Conclusions of the Trial Court

In granting the exception of no cause of action, Judge Scott, who apparently inherited the case when Judge Thaxton retired, ruled that the non-compete language in the contract was overly broad and violated La. R.S. 23:921 in that its term exceeded two years, and that the non-competition agreement had to be strictly construed as per SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.06/29/01), 808 So.2d 294. Judge Scott also stated the following:

The fact that this argument was made in support of a motion for summary judgment which was denied and on which writs were also denied does not create a cause of action in the law in favor of the plaintiff. Accordingly, as to any claim of plaintiff under the non-competition clause of the agreement between the parties, the exception of no cause of action is granted.

Counsel for plaintiff filed a motion for new trial which was denied.

Discussion

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. It questions whether the law provides a remedy to the plaintiff against the defendant for the complaints set forth in the petition. Fortenberry v. Hibernia National Bank, 37,266 (La.App.2d Cir.08/20/03), 852 So.2d 1221; Robertson v. Caddo Parish, La., 36,540 (La.App.2d Cir.12/11/02), 833 So.2d 1139. All well-pleaded allegations must be assumed as true, and any doubt is to be resolved in favor of the petition. Fortenberry, supra. Appellate review is de novo because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. McCoy v. City of Monroe, 32,521 (La.App.2d Cir.12/08/99), 747 So.2d 1234, writ denied, 00-1280 (La.03/30/01), 788 So.2d 441.

Resolution of the issues raised in this case rests upon whether the provisions of La. R.S. 23:921 apply. The pertinent provisions of La. R.S. 23:921 as it read at the time the contract was entered into are as follows:

La. R.S. 23:921. Restraint of business prohibited; restraint on forum prohibited; competing business; contracts against engaging in; provisions for.
|flA. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
* * *
B. Any person, including a corporation and the individual shareholders of such corporation, who sells the goodwill of a business may agree with the buyer that the seller will refrain from carrying on or engaging in a business similar to the business being sold or from soliciting customers of the business being sold within a speciñed parish or parishes, or municipality or municipalities, or parts thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, not to exceed a period of two years from the date of sale. (Emphasis added).

Historically, Louisiana courts have been opposed to the enforcement of agreements in restraint of trade or competition. Courts strictly construe agreements limiting competition whether the agreement is in the form of restrictions on competition by a former employee, restrictions on competition by the seller of a business, or some other variation which has the effect of limiting competition. See Standard Brands, Inc. v. Zumpe, 264 F.Supp. 254 (E.D.La.1967); Target Rental Towel, Inc. v. Byrd, 341 So.2d 600 (La.App. 2d Cir.1977); National Oil Service Inc. v. Brown, 381 So.2d 1269 (La.App. 4th Cir.1980).

Defendant argues that the non-competition provisions restricted her ability to seek employment for a period of three years in the Shreveport-Bossier City area, as well as within the radius of 50 miles thereof and therefore were in direct conflict with the statutory requirements of La. R.S. 23:921. In support, defendant cites SWAT 24, supra.

| r,Plaintiff points out that the sale and transfer of the business in this matter is not an employment contract and thus the SWAT 24 case and La. R.S. 23:921 are inapplicable. Plaintiff relies on Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.07/01/97), 696 So.2d 1373, to support her argument.

In Louisiana Smoked Products, supra, a corporation, Louisiana Smoked Products (“L.S.P.”), agreed to market meat products manufactured by another corporation, Savoie. After the contract ended, L.S.P. sued Savoie claiming it stole L.S.P.’s customers and undercut L.S.P.’s prices. At issue was a clause prohibiting competition with the other party’s business activity for three years after termination of the contract. The supreme court held that La. R.S. 23:921, which invalidates contract provisions restraining one from exercising a lawful profession, trade, or business, did not apply to non-competition agreements between independent corporations on equal footing. Id. The court reasoned that prohibiting two independent corporations from executing a non-competition clause would unduly infringe on the parties’ freedom to contract. Id. Furthermore, the court reasoned that a non-competition clause will be deemed fair in all respects when: (1) individuals are on an equal footing; (2) both parties benefit from the contract; (3) the contract was prepared, reviewed, and approved by objecting party’s attorney; and (4) each individual consented to the clause and was equally bound to terms therein at the time the corporations signed the agreement. Id.

17AH the factors listed in Louisiana Smoked Products are present in the action sub judice; however, that case did not involve the sale of the goodwill of a business and did not discuss La. R.S. 23:921(B), which directly limits non-compete clauses in such a sale to two years. We note that the dissenting justices used La. R.S. 23:921(B) as an example of its application to other than employment contracts. The language of La. R.S. 23:921(B) is clear and expresses the intent of the legislature. Thus, we feel that the granting of the exception of no cause of action was proper.

Additionally, plaintiff argues that the denial of defendant’s motion for summary judgment in this suit precluded the trial court from granting an exception of no cause of action in this matter based upon principles of res judicata. We do not agree.

For res judicata to apply, there must be: (1) an identity of the parties; (2) an identity of “cause;” and (3) an identity of the thing demanded. Thurston v. Thurston, 31,895 (La.App.2d Cir.08/20/99), 740 So.2d 268. However, for a judgment to have res judicata effect, La. R.S. 13:4231 requires that the judgment be “valid and final.” In this case, the denial of a motion for summary judgment is not a final judgment; it is merely an interlocutory judgment which does not terminate the action or decide the merits in part. Kemper v. Don Coleman, Jr. Builders, Inc., 34,671 (La.App.2d Cir.01/18/01), 779 So.2d 1001; Ward v. Hermitage Ins. Co., 28,236 (La.App.2d Cir.04/03/96), 671 So.2d 1229, writ denied, 96-1141 (La.09/03/96), 678 So.2d 554.

| sBecause peremptory exceptions of no cause of action may be pleaded at any stage of the proceeding either in the trial or appellate court, and we have found no authority supporting the idea that the denial of a motion for summary judgment is res judicata as to a subsequently filed exception of no cause of action, we, find that the denial of defendant’s motion for summary judgment does not bar the subsequently filed peremptory exception of no cause of action. La. "C.C.P. arts. 927 and 2163.

The trial court’s ruling was proper; however, the matter is remanded to allow plaintiff the opportunity to amend her petition to state a cause of action. La. C.C.P. arts. 934 and 1151. This ruling make plaintiffs/appellant’s request for damages and/or sanctions moot.

Conclusion

For the reasons set forth above, the judgment of the trial court granting defendant’s exception of no cause of action is affirmed. This case is remanded to allow plaintiff the opportunity to amend her petition to state a cause of action.

AFFIRMED and REMANDED.

MOORE, J., concurs with written reasons.

MOORE, J.,

concurs.

I respectfully concur. I agree that the non-competition clause in this sales contract exceeds the statutory authority of La. R.S. 23:921 B. Normally, litigants seeking relief from non-competition agreements proceed by suit for injunction, declaratory judgment or nullity. I have reservations about interpreting a contract by means of an exception of no cause of action. It is undisputed that Ms. Boswell bought a business from Ms. Iem, paying at least $12,830 which she now seeks to recover. Even if the non-competition clause is facially invalid, the law affords Ms. Boswell the remedy of rescinding the sale. Tri-Millennium Corp. v. Jena Band of Choctaw Indians, 98-612 (La.App. 3d Cir.12/16/98), 725 So.2d 533, writ denied, 99-0547 (La.04/09/99), 740 So.2d 637. Because the majority is remanding the case to allow Ms. Boswell to amend her petition and state her actionable claims, I respectfully concur.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    John F. JOHNSON v. Amanda B. HOWARD, et al.
    No. 03-0557.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Rehearing Denied Dec. 10, 2003.
    Neal G. Johnson, Lafayette, LA, for Plaintiff/Respondent: John F. Johnson.
    Daniel G. Brenner, Bolen, Parker & Brenner, Alexandria, LA, for Defendant/Respondent: Coregis Insurance Company.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Applicant: Concordia Parish Police Jury.
    Court composed of NED E. DOUCET JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   DECUIR, Judge.

The Concordia Parish Police Jury seeks supervisory writs from a judgment of the Seventh Judicial District Court denying its motion for partial summary judgment and/ or, alternatively, exceptions of no right of action and/or no cause of action. We granted the writ for the purpose of calling the case up for full briefing, argument, and an opinion.

FACTS

On December 15, 1999, John Johnson’s vehicle was rear-ended by a vehicle operated by Amanda Howard. Johnson was driving a 1997 Ford Expedition owned by the Parish of Concordia, and provided to him in his capacity as District Attorney for the Seventh Judicial District. Johnson sustained extensive back injuries as a result of the accident.

The Howard vehicle was insured by State Farm under a policy with limits of $25,000.00 per person. Johnson’s vehicle was insured under a policy issued by Core-gis Insurance Company to Louisiana Rural Parish Insurance Cooperative. Concordia was an insured under the policy. The Coregis policy provided liability and UM coverage with limits of $1,000,000.00. Under the terms of the policy, the insured had a self-insured retention of $100,000.00 on both the liability and UM coverage.

Johnson files suit against Howard, State Farm, and Coregis. Concordia was added after Coregis invoked the self-insured retention provision of the policy. Johnson settled with Howard and State Farm for the policy limits. Concordia filed a motion for partial summary judgment and/or, alternatively, exceptions of no right of action and/or no cause of action. The trial court denied the motion and Concordia filed this writ application.

| ¡.DISCUSSION

Concordia argues that the trial court erred in denying its motion. Specifically, Concordia argues that as a self-insured political subdivision, it is not required to provide UM coverage and calls our attention to Tybussek v. Wong, 96-1981 (La.App. 4 Cir. 2/26/97), 690 So.2d 225, writ denied, 97-766 (La.5/1/97), 693 So.2d 731, writ denied, 97-795 (La.5/1/97), 693 So.2d 734, and Hebert v. Williams, 526 So.2d 835 (La.App. 3 Cir.), writ denied, 532 So.2d 150 (La.1988).

In Tybussek, the court said:

Under Louisiana law, self-insurers have no obligation to provide UM coverage because self insurance is not considered an insurance policy and UM coverage is only required if an insurance policy is purchased.
Here, the policy issued by Carolina Casualty to the Board clearly states that the Board is self-insured for the first $100,000. Accordingly, as a self-insured, the Board is not required to provide UM coverage within the self-insured retention limit.

Tybussek, 690 So.2d at 230.

Likewise, in Hebert, we said, citing Jordan v. Honea, 407 So.2d 503 (La.App. 1 Cir.1981), writ denied, 409 So.2d 654 (La.1982): “The court held that a certified self-insured does not afford uninsured motorist coverage.” Hebert, 526 So.2d at 838.

Johnson does not seriously dispute the holdings in these cases. Instead he argues in opposition to the writ application that nothing prohibits a self-insured from providing UM coverage even though it is not mandated. Specifically, he contends that prior to 1997 the Coregis policy contained no self-insured retention for UM coverage and that by amending its policy to provide for a self-insured retention, Concordia elected to provide UM coverage. This argument is not persuasive.

The amendment to the Coregis policy provides:

13We will pay all sums the “Insured” is legally entitled to recover as compensatory damages from the owner or driver of an “Uninsured Motor Vehicle” in excess of the Insured’s Self Insured Retention.

A parallel amendment makes these limits applicable to underinsured coverage as well.

Johnson directs us to no particular portion of the amendment, and we find nothing in the language that indicates Concor-dia was electing to provide UM coverage within its self-insured retention. The amendment was clearly intended to make UM coverage consistent with the remainder of the policy. Thus, Coregis is relieved of coverage for up to the $100,000.00 self-insured retention, while remaining ha-ble for damages in excess of the self-insured retention up to the policy limits.

Johnson also argues that Tybussek is distinguishable because the plaintiff there was an employee covered by workers’ compensation law whereas he is a public official and, therefore, not covered by workers’ compensation law. He contends the basis of the Tybussek ruling was based solely on the exclusivity of workers’ compensation law. We disagree with that assessment.

In Tybussek the court said:

To require Carolina Casualty to pay UM damages under $100,000 would impose a liability that Carolina Casualty did not contractually agree to. Additionally, if Carolina Casualty were required to pay, subject to indemnification from the Board, the Board in effect would become the UM insurer of its automobiles, contrary to Louisiana law. Moreover, Plaintiffs would be allowed to do indirectly what they could not do directly— recover damages from the Board in excess of workers’ compensation benefits.

(Emphasis added.) Tybussek, 690 So.2d at 231.

Clearly, the court included the issue of UM coverage within the self-insured retention as a part of the basis for its decision. In any event, we find in this case that Concordia was not required to provide UM coverage within its self-insured retention and did not elect to do so by amendment to its policy. Accordingly, the trial court erred in denying Concordia’s motion.

UDECREE

For the foregoing reasons, we grant the writ, render summary judgment in favor of the Concordia Parish Police Jury, and dismiss Johnson’s claims against the Concor-dia Parish Police Jury. All costs of these proceedings are taxed to John Johnson.

WRIT GRANTED AND MADE PEREMPTORY.


author: 11 JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    WALK HAYDEL & ASSOCIATES, INC. v. COASTAL POWER PRODUCTION COMPANY, La Casa Castro S.A. De C.V. and Latin American Energy Development, Inc.
    No. 2003-CA-1121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2003.
    Rehearing Denied Dec. 9, 2003.

      Edward F. Downing, III, John W. Houghtaling, II, Gauthier, Downing, La-Barre, Beiser & Dean, Metairie, LA, for Plaintiff/Appellee.
    Frederick W. Bradley, Oreck, Bradley, Crighton, Adams & Chase, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge EDWIN A. LOMBARD).
   11 JOAN BERNARD ARMSTRONG, Chief Judge.

STATEMENT OF THE CASE

On September 1, 1995, Walk Haydel & Associates, Inc. sued Coastal Power Production Company, La Casa Castro S.A. de C.V. and Latin American Energy Development, Inc. (DELASA) to recover professional engineering fees for services rendered to the defendants in connection with the Nejapa Power Project located in El Salvador. DELASA answered and filed a cross claim against Coastal and La Casa and third party demands against Tenneco Gas International and Trigen Energy Corporation.

On November 2, 1995, Trigen, with the consent of La Casa, Coastal and Tenneco, removed the case to the United States District Court for the Eastern District of Louisiana pursuant to the general removal provision of 28 U.S.C. § 1441 et seq. and the All Writs Act, 28 U.S.C. § 1651. The case as among La Casa, Coastal, Tenneco and DELASA has proceeded in State court.

In September 1996, La Casa, Coastal and Tenneco filed dilatory exceptions of lack of personal jurisdiction and insufficiency of service of process and a peremptory exception of no cause of action, together with a motion for a protective order to stay or limit discovery in the case. Extensive contested discovery was | ¡¡taken subsequently. The trial court denied the dilatory exceptions of lack of personal jurisdiction and insufficiency of service of process and the peremptory exception of no cause of action on January 22, 1997, staying the trial court proceedings and allowing defendants the opportunity to apply for supervisory review in this Court. The court clarified the judgment on February 3, 1997, denying La Casa’s exceptions of insufficiency of service, lack of personal jurisdiction and no cause of action; denying Coastal’s exceptions of lack of personal jurisdiction and no cause of action; and denying Tenneco’s exceptions of lack of personal jurisdiction and no cause of action. On the same day, the trial court granted in part DELASA’s first, second and third motions to compel, requiring La Casa to produce three witnesses at the United States Embassy in El Salvador for deposition prior to establishment of personal jurisdiction; granted in part DELA-SA’s fourth motion to compel requiring La Casa to respond to discovery in accordance with the parties’ agreement on the record; denied La Casa’s first motion to compel; and granted in part La Casa’s second motion for protective order concerning the taking of employee depositions in El Salvador.

During the pendency of the stay, DE-LASA filed a reconventional demand, cross-claim and third party demand against defendants, Tenneco, Coastal and El Paso Energy Corporation in a related pending case, Fink v. Latin American Energy Development, Inc., et al, Case No. 95-17816 on the docket of the Civil District Court for the Parish of Orleans, asserting the same claims asserted in the instant case against those defendants. In response, La Casa, Coastal and Tenneco filed a motion to enforce stay and for sanctions.

On May 9, 1997, this Court denied La Casa’s and Coastal’s applications for supervisory writs, holding that in light of the numerous contacts of each of the ^relators with Louisiana, there was no error in the trial court’s overruling of the exceptions to personal jurisdiction. The Louisiana Supreme Court denied La Casa’s, Coastal’s and Tenneco’s writ applications on September 5,1997.

On August 22, 1997, DELASA moved for a temporary restraining order, preliminary and permanent restraining orders and moved to enforce a settlement agreement dated June 24, 1997, executed in connection with the Nejapa power plans by John Wheelock, DELASA’s president, and Roberto and Alex Vilanova, president and vice-president of La Casa. The memorandum of settlement provided for payment by La Casa to DELASA of $500,000 no later than July 24, 1997 and transfer of 17% passive equity stock in the power plant. La Casa agreed to pay DELASA an additional $400,000 when related cases were resolved. The 'agreement also provided for each party to indemnify the other in the related cases in certain proportions. The trial court granted the temporary injunction on August 22, 1997. The trial court set a hearing on a rule to show cause why the settlement agreement should not be enforced on September 12, 1997. On August 26,1997, DELASA filed an amended petition seeking temporary, preliminary and permanent injunctive relief to enforce the settlement agreement. Roberto Vila-nova responded by affidavit denying that the settlement agreement had been finalized.

Following a hearing on DELASA’s rule to show cause why the settlement agreement should not be enforced, the trial court entered judgment in DELASA’s favor on September 18, 1997, granting the rule and enforcing the settlement agreement in accordance with its terms. La Casa moved for new trial and rehearing. Tenneco’s successor in interest, EPEC Gas International, filed exceptions of no cause of action, res judicata and/or law of the case to DELASA’s amended petition.

|4On October 15, 1997, Coastal filed an answer and exception of no cause of action to DELASA’s cross claim. On October 20, 1997, La Casa filed a motion and order to appeal suspensively the trial court’s orders of October 1, 1997, denying its motion for rehearing and of September 18, 1997. On November 7, 1997, EPEC sought rehearing of its exceptions. On November 10, 1997, the trial court denied the exceptions. EPEC filed a notice of intention to apply for supervisory writs on November 13, 1997. On the showing made, this Court denied writs on November 25,1997.

On DELASA’s motion, the trial court increased the appeal bond from $25,000 to $750,000 on November 21,1997.

James McCaffery, former counsel for DELASA, intervened to collect attorney’s fees, and DELASA answered the intervention on April 1, 1998, including affirmative defenses of fraud, illegality and failure of consideration. EPEC filed exceptions of lack of personal jurisdiction and no cause of action to the intervention. In June 1998, Roderick Christopher Patrick filed a petition of intervention for his own attorney’s fees in connection with the instant case. Defendants filed answers and exceptions to that petition as well. Mr. McCaf-fery subsequently amended his petition of intervention to add a claim of assault, battery and defamation against DELASA and its president, John Wheelock.

La Casa did not post the court-ordered suspensive appeal bond. On December 30, 1997, the trial judge ordered a judgment debtor rule be set for February 27, 1998.

Effective July 30, 1998, DELASA, EPEC, Coastal and La Casa entered into a confidentiality stipulation and protective order to protect trade secrets or other confidential research, development or commercial information.

IsOn September 30, 1998, this Court issued its opinion on appeal, affirming the judgment of the trial court. We found:

1] In the instant ease the parties were involved in a full day of mediation at the end of which they signed a memorandum of settlement which contained several handwritten terms upon which the parties had agreed. The fact that a whole day of negotiations was capped off by the signing of a document that memorialized the agreement between the parties signifies that there had been a meeting of the minds, otherwise the document would not have been signed;

2] Although the terms of the settlement are handwritten and may encompass less than all the issues among all the parties, this does not negate its enforceability. The document in question was in writing and evidenced a meeting of the minds. Therefore, the memorandum of settlement is a legally binding agreement.

In May, 1999, DELASA filed an amended cross-claim and third party demand against the defendants. On June 24, 1999, DELASA dismissed without prejudice its claims against Trigen. On July 16, 1999, EPEC filed exceptions of lis pendens and res judicata.

The Fink case was ultimately consolidated with the instant case, and EPEC filed a motion for summary judgment and exceptions of lis pendens, res judicata no cause of action and improper service of process seeking dismissal of the Fink plaintiffs’ suit. La Casa filed an answer and declina-tory exception of lis pendens together with exceptions of improper cumulation of actions and no cause of action in the Pink suit.

On February 25, 2000, DELASA filed a motion for partial summary judgment or alternatively for declaratory judgment consistent with a prior court [ (¿ruling holding that the settlement does not release Coastal and EPEC. On May 25, 2000, La Casa moved for partial summary judgment on the question whether DELASA also agreed in the settlement to release its claims against Coastal and EPEC.

On June 23, 2000, the trial court signed a judgment denying the motions for partial summary judgment filed by DELASA and by La Casa. DELASA filed its notice of intention to apply for supervisory writs on June 27, 2000. On January 16, 2001, this Court denied writs, finding that there were genuine issues of material fact as to the parties’ intent in the settlement precluding summary judgment. Judges Armstrong and McKay dissented from the writ denial. The Louisiana Supreme Court denied writs on April 12, 2001.

On August 2, 2002, the trial court entered judgment granting DELASA’s motion for judgment debtor rule. On September 6, 2002, this Court granted La Casa’s application for supervisory writ, holding that while the settlement agreement is effective among the parties, there is nothing in the record indicating that the settlement agreement has been reduced to a money judgment. Until such reduction, a judgment debtor examination is premature. DELASA moved for a clarification, rehearing and rehearing en banc. This Court issued a per curiam opinion granting the motion for clarification. We confirmed that our ruling goes only to the mechanics of enforcement of the settlement agreement. In the interest of judicial economy, we restated the limits of the ruling:

As Judge Ciaccio noted in his concurrence in Addison v. Regional Transit Authority, 97-2289, p. 7 (La.App. 4 Cir. 12/2/97), 703 So.2d 810, 813:
The plaintiffs are entitled to have the settlement agreement reduced to a money judgment. After judgment is rendered, they have the right to enforce the |7judgment as provided by law. The trial court has no authority to enforce collection of a money judgment except by the issuance of a writ of Fieri Facias when appropriate.

On December 12, 2002, DELASA filed a rule to show cause why the settlement agreement should not be enforced as a money judgment under LSA-C.C. art. 3071. La Casa opposed the motion, claiming DELASA has not presented evidence that La Casa breached its settlement obligations. Furthermore, DELASA failed to execute formal releases of La Casa, Tenne-co and Coastal as promised as part of the overall settlement.

Following a hearing on the DELASA motion, the trial court entered judgment on January 29, 2003. The trial judge found that DELASA proved its entitlement to have the settlement agreement reduced to a money judgment in accordance with its terms. The trial court rendered judgment in favor of DELASA and against La Casa for its past due obligations in the amount of $500,000 in cash plus seventeen percent of the passive equity income of the plant. Furthermore, the court ordered La Casa to pay DELASA $400,000 upon resolution of the Fink case, and required the parties to comply with the indemnity provisions of the agreement as such payments become due. La Casa filed a motion for reconsideration and new trial on February 11, 2003, which the trial court denied the next day. La Casa filed a notice of intention to apply for supervisory writs on February 26, 2003. This Court denied the application on April 21, 2003, finding that La Casa had an adequate remedy on appeal. La Casa filed its motion for devolutive appeal on April 10, 2003.

On April 25, 2003, DELASA filed another motion to examine La Casa as judgment debtor.

|sLa Casa appeals from the judgment of January 29, 2003 and the trial court’s denial of its motion for new trial. We affirm.

ASSIGNMENT OF ERROR: The trial court erred in rendering a money judgment against one of the parties in the absence of a trial or the presentation of evidence on the questions of meaning and breach of the settlement agreement.

La Casa’s position during the extended course of litigation has been consistent: that the settlement memorandum agreement is ambiguous and cannot be enforced. However, this court in the earlier appeal rejected this argument. Our opinion of September 30, 1998 held that the agreement evidences a meeting of the minds of the parties and that the written memorandum of settlement agreement constituted an enforceable settlement agreement as between La Casa and DELASA. It does not appear from the record that La Casa sought review of our decision.

The only open issue remaining at this time is the extent to which the settlement agreement released EPEC (formerly Ten-neco Gas) and Coastal. This is a separate claim, apart from the basic settlement agreement that the trial court reduced to judgment in January, 2003. The parties are free to pursue the EPEC/ Coastal issues irrespective of the enforcement of the settlement agreement. We held that DELASA had the right to reduce its settlement agreement to a money judgment on which a judgment debtor rule could be enforced. That is the law of the case.

|gThe trial court’s hearing held on January 29, 2003 satisfied the notions of fundamental fairness and due process required by our constitution. The parties were given notice and the opportunity to be heard on the issue of the reduction of the settlement agreement to money judgment. If La Casa had evidence showing that the settlement agreement was defective or that the terms set forth therein were ambiguous or incorrect, it had the opportunity to introduce the evidence at that hearing. It did not do so and cannot now be heard to complain. This Court’s previous holding that the settlement document is enforceable precludes La Casa’s argument that the agreement is ambiguous.

The trial court complied with the provisions of our opinion and per curiam clarification. At no time during the lengthy procedural journey of the case has any court of competent jurisdiction held that the settlement agreement is ambiguous as between DELASA and La Casa. The terms as between those parties are clear and consistent: La Casa owes DELASA $500,000 plus seventeen percent of the plant’s passive equity, plus a substantial sum due upon resolution of the related Fink case.

La Casa also contends that the settlement agreement cannot be enforced summarily under the provisions of LSA-C.C. art. 3071, which provides in pertinent part:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement |inrecited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

La Casa contends that where a settlement agreement is not honored by one of the settling parties, the aggrieved party must bring a separate action alleging breach of the agreement. For this principle, La Casa cites Morehouse Parish Hospital Service District v. Pettit, 630 So.2d 1338 (La.App. 2 Cir.1994). However, that case does not support La Casa’s conclusion. Morehouse does not require that a new trial be held, but only that DELASA may not pursue La Casa for any damages except those provided for by the settlement agreement. To the same effect are the cases cited by La Casa in its brief, Palmer v. Lanco Construction, Inc., 665 So.2d 1217, 1221 (La.App. 4 Cir.1995) and Lastie v. Warden, 611 So.2d 721 (La.App. 4 Cir.1993). DELASA does not seek in these proceedings to obtain any damages outside the four corners of the settlement agreement. Therefore, the trial court judgment is not inconsistent with the jurisprudence cited by DELASA.

The assignment of error is without merit.

CONCLUSION AND DECREE

For the foregoing reasons, we affirm the judgment of the trial court and assess the costs of this appeal to the appellant.

AFFIRMED.

      . We note that the judgment reducing the memorandum of settlement to a money judgment is not a final judgment because it does not dispose of all the claims among all the parties and was not certified by the trial court as a final judgment pursuant to LSA-C.C.P. art.1915. However, it is an interlocutory judgment that may cause irreparable injury and is immediately appealable under LSA-C.C.P. art.2083.

      . Apparently, La Casa admits it has not honored its settlement agreement with DELASA.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Kenneth WILSON, Appellant.
    No. 37,555-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 2003.

      Louisiana Appellate Project by Carey J. Ellis, III, Rayville, for Appellant.
    Paul J. Carmouche, District Attorney, Donna Y. Frazier, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

Defendant was convicted of first degree robbery and sentenced as a fourth-felony offender to life imprisonment. He appealed the conviction and sentence. This court reduced defendant’s conviction to simple robbery and affirmed the prison term without remand. State v. Wilson, 34,857 (La.App.2d Cir.08/22/01), 796 So.2d 45. The Louisiana Supreme Court vacated the sentence and remanded to district court for re-sentencing, holding that defendant was entitled to have the district court impose sentence anew and to challenge the constitutionality of the mandatory sentence as applied to him. State v. Wilson, 01-2815 (La.11/22/02), 836 So.2d 2. Thereafter, the trial court conducted a sentencing hearing and imposed the mandatory sentence of life imprisonment without benefits and denied a timely motion for reconsideration of sentence. Defendant filed the instant appeal alleging that the mandatory life sentence without benefits is unconstitutional as applied to him. For the reasons that follow, we vacate the life sentence without benefits and remand to the trial court for re-sentencing.

Facts

The defendant robbed a teller at the Minden Bank and Trust by holding his hand in his pocket and giving the teller a note instructing her to put large bills in a bag quickly. The district court convicted defendant of first degree robbery, his fourth felony offense. The version of the Habitual Offender Law in effect at that time mandated a life sentence without the benefit of parole, probation, or suspension of sentence if “the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime | gof violence under R.S. 14:2(13).” La. R.S. 15:529.1(A)(1)(c)(ii). Although defendant’s three prior offenses were all non-violent (two convictions for issuing worthless checks and one for illegal possession of stolen things), the first degree robbery of which he was convicted is defined as a crime of violence under La. R.S. 14:2(13). Accordingly, the district court imposed the mandatory life sentence.

On appeal to this court, we concluded that the evidence was insufficient to support a first degree robbery conviction, and accordingly reduced defendant’s conviction to simple robbery, which is also a crime of violence under R.S. 14:2(13). Consequently, we concluded that since the original life sentence without the benefit of parole, probation, or suspension of sentence would apply to the new conviction, we affirmed the prison term without remanding the case to the trial judge for sentencing.

Defendant applied for a writ of certiora-ri to the Louisiana Supreme Court contending that this court should have reduced the sentence, or remanded his case for re-sentencing after reversing the first degree robbery conviction and affirming a simple robbery conviction. The supreme court held that it was error not to remand the case for re-sentencing because the trial judge has the authority and the duty to impose the sentence fully cognizant of the nature of the crime for which the defendant is being sentenced.

The Court further stated that “the defendant was entitled to have the district court impose the sentence anew, and in connection therewith, to present evidence and/or argument to the district court judge that a sentence 13of life imprisonment without the benefit of parole, probation, or suspension of sentence is unconstitutionally excessive because of the reduced conviction, the non-violent nature of the prior offenses, and the fact that the legislature has amended the Habitual Offender Law to provide a more lenient punishment for crimes committed after June 15, 2001.” State v. Wilson, supra, 836 So.2d at 4.

On remand to the district court, defense counsel argued the fact that the Habitual Offender Law had changed and urged his view that under the facts and circumstances of this case, a life sentence without benefits would be constitutionally excessive, to which the court responded:

All right. The defendant was found guilty of first degree robbery. Subsequently the 2nd Circuit found that it should be simple robbery and amended his conviction to reflect that conviction.
The charge of simple robbery is listed as a crime of violence and according to the habitual offender statute if your fourth felony is a crime of violence then it is a mandatory life imprisonment reflecting the time of his conviction.
Therefore, the court will deny the defense’s request to enter a lesser sentence and enter a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Credit given for time served.

Defendant now appeals again to this court contending that the life sentence imposed under the former version of the Habitual Offender Law is unconstitutionally excessive when applied to him because his three prior felonies were non-violent; because he was depressed due to the death of his son when he committed the offense; because he is addicted to cocaine; and, because the legislature has recently amended the Habitual Offender Law to | ¿mandate a life sentence in those cases only where the fourth felony and two of the prior offenses are defined as crimes of violence.

Discussion

“The imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979); see also State v. Dorthey, 623 So.2d 1276 (La.1993) (case remanded to district court to determine whether minimum sentence mandated by Habitual Offender Law was unconstitutionally excessive). In State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672, the supreme court held that the mandatory minimum sentence of twenty years imprisonment was not unconstitutionally excessive for possession of cocaine by defendant as fourth-felony offender, even though defendant had no history of prior violent crimes. However, in Johnson, the court was presented with the question of “under what rare circumstances a sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Law.” The court noted that the analysis should begin with the presumption that mandatory sentencing guidelines adopted by the legislature are constitutional. Id. at 676. The Johnson court sought to clarify the holding of State v. Dorthey, supra, and to make it understood that a downward departure from the mandatory sentences of R.S. 15:529.1 is only available in truly rare situations and cannot be premised solely on the nonviolent nature of the current or prior offenses. Instead, the defendant must clearly and convincingly show that “[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Id. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the mandatory minimum of R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, 709 So.2d at 677.

In reviewing a sentence for ex-cessiveness, the appellate court must first determine whether the trial court complied with La. C. Cr. P. art. 894.1 when it imposed the sentence and then determine whether the sentence is too severe given the circumstances of the case and the defendant’s background. State v. Lobato, 603 So.2d 739, 751 (La.1992). If the sentence needlessly imposes pain and suffering and is grossly out of proportion to the gravity of the offense so as to shock our sense of justice, |fithen it may be determined to be unconstitutionally excessive as violative of La. Const. art. 1, § 20 (1974). Id. However, a sentence will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. Id. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even when there has not been full compliance with La. C. Cr. P. art. 894.1. Id.

Defendant asserts that the court articulated no reasons for the sentence imposed. During sentencing the trial court noted that the court of appeal reduced the first degree robbery conviction to simple robbery, but it remained a fourth felony and a crime of violence mandating a sentence of life imprisonment without benefit of parole, probation or suspension of sentence at the time of conviction. As we noted in our prior opinion in this case, compliance with La. C. Cr. P. art. 894.1 is not mandated where the sentence is statutorily required. State v. Wilson, 34,857 (La.App.2d Cir.08/22/01), 796 So.2d 45.

We note, however, that the Louisiana Supreme Court remanded this case to the district court for re-sentencing in light of several factors. The Court stated that “the trial judge in this case has the duty to examine the reduced conviction and determine, in accordance with the principles this court enunciated in Sepulvado, Dorthey, and Johnson, whether the mandatory sentence is constitutional as applied to this defendant.” State v. Wilson, 836 So.2d at 4. We discern no such analysis in this record.

17As noted above, R.S. 15:529.1(A)(l)(c)(ii) at the time of original conviction, subjected defendant to a mandatory life sentence as a fourth felony offender convicted of simple robbery even though his three priors were non-violent offenses. The penalties provided by La. R.S. 15:529.1 are not unconstitutional on their face. State v. Pollard, 93-0660 (La.10/20/94), 644 So.2d 370. The trial court has the authority to reduce the mandatory minimum sentence provided by the statute for a particular offense and offender when such a term would violate the defendant’s constitutional protection against excessive punishment. Id. Because the minimum sentence is presumed constitutional, a trial court exercising its discretionary power under Johnson should depart from the statutory minimum only upon a finding of clear and convincing evidence to rebut the presumption of constitutionality. State v. Johnson, supra at 677. In Johnson, the supreme court did not believe that the mandatory minimum sentence of 20 years was excessive for a defendant whose current offense was possession of cocaine residue in a crack pipe and whose prior convictions were all nonviolent felonies.

Here, however, defendant has much more at stake than did the defendant in Johnson. In this case, the defendant will spend the rest of his life in jail because of the mandatory life sentence imposed. Whenever a defendant is faced with a mandatory life sentence as a multiple offender, heightened scrutiny is triggered when determining if defendant falls within those “rare” circumstances where a downward departure is warranted. State v. Burns, 97-1553 (La.App. 4th Cir.11/10/98) 723 So.2d 1013, writ denied, 98-3054 (La.04/01/99), 741 So.2d 1282.

On the instant record, we conclude that the defendant falls within that rare category of the “atypical” defendant, where the defendant’s situation is not adequately addressed by the legislature’s prescribed sentence of life imprisonment without benefit of probation, parole, or suspension of sentence. That is, the legislatively mandated sentence is not tailored to the culpability of this offender, the gravity of his offenses and the circumstances of this case. State v. Johnson, supra; State v. Wilson, supra.

We have reviewed the entire criminal history of this defendant. The |flthree convictions prior to instant simple robbery conviction, while serious, resulted in prison terms of six months (suspended and revoked), 10 months (ordered to be served concurrently), and two years (suspended with probation extended and later revoked to be served concurrently). The six-month and two-year sentences were, in fact, initially suspended, but eventually served because defendant failed to report monthly to his probation officer. While these convictions are serious, they clearly do not reach a level of culpability and gravity warranting a life sentence. The facts and circumstances of the instant offense, however, are more serious:

On April 13, 2000, defendant went into a Shreveport branch of the Minden Bank and Trust at the 3400 block of Line Avenue. Defendant went to a service island in the bank and remained there for several minutes. Subsequently, he walked up to a bank teller, Tiffany Cone, and gave to her a green savings withdrawal slip on which he had printed the following words:

“This is a holdup 100 50 & 20 s quick”

Ms. Cone gave the defendant some money (apparently in an envelope) along with a purple dye pack explosive. Defendant walked out the front door and turned right, heading South on Line Avenue. Naomi Reeves, another teller next to Ms. Cone, witnessed the robbery and went to the back door of the building when defendant left the building. She described the defendant as running down Line Avenue with a cloud of purple dust following him. The dye pack had exploded. Wilson was | mapprehended shortly thereafter in a nearby ditch with the money.

Defendant is 42 years old and homeless. After he was arrested, he gave the police a recorded statement admitting he was depressed over the death of his son in a train accident on June 29, 1999. He admitted that he has a history of drug and alcohol abuse. He stated that he was drunk at the time he committed the robbery, and felt “hopeless.”

Our jurisprudence believes that age is a factor to be considered when the statutes impose such harsh penalties. State v. Taylor, 96-1843 (La.App. 4 Cir. 10/29/97), 701 So.2d 766, 773, writ denied 98-2233 (La.01/08/99), 734 So.2d 1224; State v. Hayes, 97-1526 (La.App. 1st Cir.5/15/98), 712 So.2d 1019, 1022, writ granted, cause remanded 98-1603 (La.12/11/98), 729 So.2d 584, on remand 97-1526 (La.App. 1st Cir.06/25/99), 739 So.2d 301, writ denied 99-2136 (La.06/16/00), 764 So.2d 955. The defendant in this instance indeed deserves serious punishment, including lengthy imprisonment, but a sentence less than life would afford him at least some opportunity to overcome his problems while incarcerated and offer him a modicum of hope.

The supreme court in Johnson, supra, made clear that the fact that defendant’s felonies are non-violent alone is not sufficient to override the legislatively designed sentences of the Habitual Offender Law. Johnson, 709 So.2d at 676. But, it did note that, “the classification of a defendant’s instant or prior offenses as nonviolent should not be discounted.” Id. Three of defendant’s four felonies were non-violent. Even his fourth felony, while classified as a violent offense, involved no actual violence. Cf. State v. Hayes, supra, There is also no evidence in the record that defendant ever possessed a dangerous weapon, and Ms. Cone, the victim, testified that she never felt threatened.

Furthermore, this particular life imprisonment imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. State v. Hayes, 739 So.2d at 303. As defendant ages, these costs will only increase due to the need for geriatric health treatments.

The defendant in this case obviously needs lengthy incarceration. We believe that a severe sentence in this case, for example, a sentence of not less than 20 years, in conformity with La. R.S. 15:529(A)(l)(c)(i), but not more 30 years at hard labor, would meet all of the societal goals of incarceration and be constitutional in this case.

For all the reasons above, and after a review of the facts and circumstances of this particular defendant and the instant crime, we find clear and convincing evidence that this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. A sentence of life imprisonment for this defendant, on this record, is “disproportionate” to the harm done and shocks “one’s sense of justice.” State v. Lobato, supra. Thus, we are unable to conclude that this life sentence is not excessive under the constitutional standard.

| ^Accordingly, we vacate the life sentence imposed by the district court and remand to the trial court for re-sentencing, consistent with this opinion.

SENTENCE VACATED AND CASE REMANDED FOR RE-SENTENCING.

      . Act 403 of 2001 amended R.S. 15:529.1 (A)(1)(c)(ii) to provide that, if the fourth felony and two of the prior felonies are defined as crimes of violence under R.S. 14:2(13), the offender shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. Under the present Habitual Offender Law, defendant’s crime would be punishable by a term ranging from 20 years at hard labor to life imprisonment at hard labor. R.S. 15:529.1 (A)(1)(c)(ii).

      . Defendant's first offense consisted of a guilty plea to one count of issuing a worthless check to Sears on February 21, 1987 in the amount of $166.58. The state agreed not to prosecute the defendant on several other counts arising out of issuing worthless checks in exchange for the guilty plea. Additionally, defendant agreed to make restitution in the total amount of worthless checks he issued, $1938.44. The court sentenced the defendant to six months in the parish jail, but suspended the sentence and ordered the defendant to serve two years supervised probation with special conditions, among them restitution of the total amount of worthless checks he issued, report monthly to his probation officer and pay a $10 per month supervising fee. The probation period ran from January 20, 1989 to January 20, 1991.
      On January 26, 1990, defendant's probation officer caused a bench warrant to be issued for the defendant, who had not reported to his probation officer since February 9, 1989, just three weeks after receiving the probated sentence. Defendant was arrested on April 3, 1991 on another charge. While that charge was being prosecuted, on May 21, 1991, defendant's probation was revoked and defendant was ordered to serve the original six-month sentence with credit for time served.
      Defendant was arrested on April 3, 1991 for possession of stolen things, a violation of La. R.S. 14:69. Defendant was in possession of a stolen Fender Stratocaster electric guitar and case valued at $650. Defendant pled guilty to the charge and was ordered to serve 10 months at hard labor concurrent with any other sentence to be served.
      Between April 15, 1994 and April 25, 1994, defendant issued three worthless checks: $32.27 to Price Lo; $34.89 to Price Lo; and $90.99 to Kroger. Defendant was subsequently arrested and charged for Issuing Worthless Checks in violation of La. R.S. 14:71. Defendant entered a guilty plea to the charge on May 3, 1996. He was sentenced to 5 days in jail in lieu of paying court costs with credit for time served, and sentenced to two years at hard labor, which was again suspended, and defendant was placed on two years supervised probation. This was an agreed sentence.
      Probation revocation proceedings were instigated on April 4, 1998 for reasons undisclosed. The case was taken up on May 6, 1998. Defendant admitted the allegations, and the court ordered the probation period extended for one year from May 6, 1998.
      The following month, probation revocation proceedings were again initiated by defendant's probation officer. Defendant denied the allegations of violation of his probation. After a hearing on August 19, 1998, defendant’s probation was revoked, and he was ordered to serve the original two-year sentence at hard labor concurrently with any other sentence and with credit for time served.

      . The defendant in Hayes had a criminal history of thefts and issuing bad checks similar to the defendant in this case, none of which involved the use of a dangerous weapon. His fourth felony, a simple robbery, involved pushing a minor from his bicycle and stealing it. The court of appeal concluded that a life sentence was constitutionally excessive under State v. Johnson, supra, and that a sentence between 20 and 40 years was appropriate, and remanded the case to the trial court for re-sentencing in accordance therewith.


author: BAGNERIS, Judge.

text:
    Thomas KIRSCH v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2003-CA-0822.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.
    Rehearing Denied Dec. 9, 2003.

      Gary M. Pendergast, New Orleans, LA, for Plaintiff/Appellant.
    Sherry Landry, Acting City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Joseph V. DiRosa, Jr., Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge LEON A. CANNIZZARO, JR.)
   BAGNERIS, Judge.

Thomas Kirsch (“Officer Kirsch”), a New Orleans Police Department (“NOPD”) Officer with permanent status, seeks to reverse a decision of the Civil Service Commission (“the Commission”), and the City of New Orleans that denied his appeal and affirmed his termination by NOPD. Finding no error of fact or law in the Commission’s decision, we affirm.

STATEMENT OF FACTS

On May 18, 2001, Keith Hoffman, an Orleans Parish Criminal Sheriffs Deputy was on patrol in the French Quarter in New Orleans, Louisiana. He testified that he responded to a call at the intersection of Royal Street and Canal Street. Upon arrival he discovered an unknown male slumped over his steering wheel in his vehicle. He awakened the unknown male by tapping on the vehicle window. The unknown male stepped out of the vehicle and identified himself as a New Orleans Police Officer. Deputy Hoffman testified that he found Officer Kirsch to be compliant but he appeared to be intoxicated. Deputy Hoffman notified his supervisor and within a short period EMS and several NOPD Officers were on the scene.

l2Sergeant Tyrone Beshear of the New Orleans Police Department testified he arrived on the scene and that Officer Kirsch appeared ill and was possibly under the influence of an illegal substance or prescription drugs. He testified that Officer Kirsch’s vehicle was searched. The searched revealed a prescription bottle bearing Officer Kirsch’s name. The label indicated a prescription for Vicodin (Hy-droncodone). EMS arrived and transported Officer Kirsch to Charity Hospital. Also, the EMS technician transported the prescription bottle to Charity Hospital.

Officer Kirsch was terminated by NOPD effective December 13, 2001, for violation of internal rules concerning adherence to law. The Appointing Authority found that Officer Kirsch possessed an illegal scheduled drug and that Officer Kirsch was taking a prescription medication without informing his supervisor. The matter was assigned by the Commission to a Hearing Examiner. On April 15 the Commission rendered a decision that denied Officer Kirsch’s appeal and affirmed the Appointing Authority’s decision to terminate.

Officer Kirsch appeals.

DISCUSSION

On appeal Officer Kirsch contends that the Commission’s decision is arbitrary, capricious and clearly wrong. Officer Kirsch argues that the chain of custody is the critical issue in this case. He further argues that this most critical issue of chain of custody has not been proven by the Appointing Authority citing Guggenheim v. New Orleans Police Department, 1999-2804 (La.App. 4 Cir. 7/12/00), 773 So.2d 752.

| -¡The Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The Commission’s decision is subject to review on any question of law or fact upon appeal to the Court of Appeal. La. Const. art. X, Sec. 12(B).

The Louisiana Supreme Court has formulated jurisprudential precepts to guide the Commission and the courts of appeal in applying these constitutional principles. “Cause” for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (1958); Jais v. Department of Finance City of New Orleans, 228 La. 399, 82 So.2d 689 (1955); Gervais v. New Orleans Police Department, 226 La. 782, 77 So.2d 393 (1954).

The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. See Brickman v. New Orleans Aviation Board, supra, 107 So.2d at 434 (1958) (McCaleb, J., dissenting). A reviewing court should not reverse a Commission conclusion as to the existence or absence of cause for dismissal unless the decision is arbitrary, capricious or an abuse of the Commission’s discretion. Jones v. Louisiana Department of Highways, 259 La. 329, 250 So.2d 356 (1971); Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24 (1954). On the other hand, the judicial review function is not so limited with respect to the Commission’s decisions as to jurisdiction, procedure, and interpretation of laws and regulations. Konen, supra.

The standard to be applied by a court in reviewing the commission’s factual findings has changed over the years. Under the previous constitution, which provided that the Commission’s findings of fact were final, La. Const. art. XIV Sec. 15(0)(1) (1921), this court held in a variety of decisions that the agency’s factual findings would not be disturbed if there is of record “any evidence,” Leggett v. Northwestern State College, supra; “substantial evidence,” Konen v. New Orleans Police Department, supra; “some evidence,” Gervais v. Department of Police of the City of New Orleans, supra or “probative evidence,” Mayerhafer v. New Orleans Police Department, 235 La. 437, 104 So.2d 163 (1958), to support them. See H.F. Sockrider, Dismissal of Louisiana State Civil Service Employees, 23 La.L.Rev.121 (1962). These standards of review of factual determinations, however, have been superseded by the new constitutional rule that the Commission’s decision is subject to review on any question of law or fact. La. Const. art. X Sec. 12.

Accordingly, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the Commission’s factual findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). See Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980); Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4th Cir.1978); Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir.1976).

Thus a multifaceted review function is committed to the court in civil service disciplinary cases. In reviewing the Commission’s procedural decisions and interpretations of law the court performs its traditional plenary functions of insuring procedural rectitude and reviewing questions of law. Due concern both for the intention of the constitution and for the boundaries between the functions of the Commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the Commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. Cf. La.R.S. 49:964; Save Ourselves, Inc. v. The Louisiana Environmental Control Commission, 452 So.2d 1152 (La.1984); Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978); K. Davis, Administrative Law (1982 Supp.) at 536 et seq., Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984).

IfiAn employee with permanent status in the classified civil service, like Officer Kirsch, may be disciplined only for cause expressed in writing. La. Const. Art. X, section 8(A); Walters v. Department of Police of the City of New Orleans, 454 So.2d 106, 113 (La.1984). “Cause” exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). Stated differently, disciplinary action against a civil service employee will be deemed arbitrary and capricious, unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983). The Appointing Authority, in this case the NOPD, must prove to the appropriate Civil Service Board, by a preponderance of the evidence that this correlation exists. Neff v. City Planning Commission, 95-2324 (La.App. 4 Cir. 9/11/96), 681 So.2d 6, 7, writ denied, 96-2465 (La.12/6/96), 684 So.2d 934; Blappert v. Department of Police, 94-1284 (La.App. 4 Cir. 12/15/94), 647 So.2d 1339, 1342.

Once the Civil Service Board (in this case the Commission)makes it’s ruling, either party may appeal to the appellate court for a review of that ruling. La. Const. Art. X, section 12(B).

In Burckel v. Department of Fire, 97-0635 (La.App. 4 Cir. 9/17/97), 700 So.2d 553, we concluded that the fire department proved that the appellant was intoxicated and thus, violated departmental rules, even though the department failed to introduce the results of appellant’s blood alcohol test. We said:

“This is not a case in which the only evidence of substance abuse is a random blood or urine test, such as Sciortino v. Department of Police, 94-0356 (La.App. 4 Cir. 9/29/94) 643 So.2d 841, or Bourque v. Louisiana State Racing Commission, 611 So.2d 742 (La.App. 4 Cir.1992). Blood alcohol test results are required only ‘where the only damming evidence against an employee is the results of a drug test and no corroborating evidence of substance abuse exists.’ Blappert v. Department of Police, 94-1284 (La.App. 4 Cir. 12/15/94), 647 So.2d 1339, 1342. Other competent evidence of Burckel’s violation of policy was presented in the instant ease.”

Burckel, supra.

In Officer Kirsch’s case, there was no evidence presented by the NOPD to establish that Appellant had a substance abuse problem. However, several witnesses testified he exhibited signs that he was under the influence of drugs on May 18, 2001. Thus, the “damning evidence” that existed consisted of the prescription bottle found in Officer Kirsch’s vehicle which contained four pills determined to be the illegal drug “Ecstasy”. Consequently, “the chain of custody becomes the critical issue and must be proved by the appointing authority with great care.” Murray v. Department of Police, 97-2650 (La.App. 4 Cir. 5/27/98), 713 So.2d 838, 843 (quoting Blappert, 647 So.2d at 1343). In this case we find no legal error insofar as defendant’s due process rights. Also, we find no defects in the chain of custody.

In its decision, the Commission delineated a clear chain of custody. The Commission stated that:

“.... A prescription bottle containing pills was retrieved from Officer Kirsch’s vehicle. The ambulance transported Office Kirsch to Charity hospital. The pill bottle was in the custody of the Emergency medical technicians while in route to the hospital. Once at Charity Hospital, Sgt. Beshears took possession of the pill bottle. He maintained custody of the pill bottle until Sgt. Robert Harrison of the Public Integrity Bureau arrived. The Emergency Room Doctor examined the pills. The Doctor identified all but four of the pills as Vico-din (Hydrocodone). The doctor could not identify the other four pills. Sgt. Harrison delivered the pills to Central Evidence for storage and |stesting. He interviewed Officer Kirsch and the other witnesses, and obtained Officer Kirsch’s blood from the hospital for testing. The unknown pills were tested and identified as an illegal substance called Ecstasy. The only substance found in Officer Kirsch’s blood was Vicodin. The Appointing Authority terminated Officer Kirsch after it determined that he violated the law by possessing Ecstasy (Emphasis our).

Clearly, the Commission believed the accounts given by the witnesses who handled the pill bottle found in Officer Kirsch’s vehicle on May 18, 2001. Officer Kirsch admitted he had possessed the prescription bottle and that it was in his vehicle on May 18, 2001. However, Officer Kirsch denies any knowledge of the four illegal pills that were contained in his prescription bottle. He had no explanation as to how the illegal pills found their way into his prescription bottle for Vicodin.

Officer Kirsch testified that he went to Pat O’Brien for a drink in the French Quarter. He stated that an unknown female approached him and invited him to have a drink with her. He stated that after a short period, he became dizzy. The unknown female left allegedly to find a friend. Officer Kirsch testified that he did not remember anything that happened subsequently until he was awakened at Charity Hospital. He testified that his money and credit card were missing. He stated that he suspected that the woman in the bar drugged him, and took his money and his credit card.

The Commission found that the Appointing Authority established that Officer Kirsch possessed Ecstasy, which was a violation of the law and the basis for his termination from NOPD. The Commission stated that Officer Kirsch was |9not disciplined for his intoxication but rather he was disciplined for possession of an illegal drug.

The Commission opined the alleged drugging does not explain how the Ecstasy came into Officer Kirsch’s possession. Officer Kirsch did not take his prescription bottle into the bar, and there was no evidence offered that the women entered his vehicle, placed the illegal drugs into his prescription bottle and then left the scene. Further, the Commission did not find Officer Kirsch’s allegations that he did not know he possessed Ecstasy credible. The four pills were found in his vehicle in his prescription bottle. Accordingly we find no merit to Officer Kirsch’s contention.

CONCLUSION

After careful review of the record, we conclude that the Commission did not commit manifest error in its factual findings nor was its decision arbitrary and capricious. The evidence shows that Officer Kirsch possessed the prescription bottle, which contained the four Ecstasy pills that were found in his vehicle on May 18, 2001. Therefore, the Commission’s decision to dismiss Officer Kirsch’s appeal and to affirm his termination is not manifestly erroneous or clearly wrong.

AFFIRMED.