author: WILLIAM H. BYRNES, III, Chief Judge.

text:
    David TALLEY v. The MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS, Charity Campus.
    No. 2002-CA-2488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2003.
    Joseph W. Thomas, Law Offices of Joseph W. Thomas, New Orleans, LA, for Plaintiff/Appellant.
    Richard P. Ieyoub, Attorney General, Susan H. Lafaye, Assistant Attorney General, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   WILLIAM H. BYRNES, III, Chief Judge.

The Medical Center of Louisiana at New Orleans, Charity Campus (“State”) filed a motion to dismiss the devolutive appeal filed by plaintiff, David Talley, in this medical malpractice action.

Motion to Dismiss Considered as Exception of Prescription

An exception of prescription must be presented in a formal, written manner; the exception presented only in argument either orally or by way of memorandum or brief is not sufficient. Alomang v. Freeport-McMoran, Inc., 97-1349 (La.App. 4 Cir. 3/4/98), 718 So.2d 971, writ denied, 98-1352 (La.7/2/98), 724 So.2d 734. It is the substance rather than the caption of a pleading that determines its effect. Brown v. Harrel, 98-2931 (La.App. 4 Cir. 8/23/00), 774 So.2d 225, writ denied 2000-2665 (La.11/17/00), 774 So.2d 981.

La. C.C.P. art. 865 provides that every pleading shall be so construed as to do substantial justice. A pleading is classified by virtue of what it contends rather than what it is called. Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La.App. 1 Cir.1977), application denied, 349 So.2d 1269 (La.1977). In that case, where the “Motion for Summary Judgment” stated all of the essential allegations for an exception of prescription and the relief sought was dismissal of the suit on that ^account, the First Circuit held that the motion should be characterized and considered as a peremptory exception of prescription.

In the present case, the State’s motion to dismiss is a separate, formal pleading that suffices to raise the exception of prescription. The pleading is adequate to put the plaintiff on notice of the State’s claim of prescription.

Second Claim of Prescription

In its motion to dismiss, the State contends that the plaintiffs action has prescribed because the plaintiff took no action to secure an attorney chairman within two years of filing his claim with the medical review panel. La.R.S. 40:1299.39.1(A)(2)(c) provides that the commissioner of administration shall dismiss a claim ninety days after giving notice to the plaintiff if no action has been taken to secure the appointment of the attorney chairman two years from the date the plaintiff filed a request for review of his medical malpractice claim.

The prescription claim presented in the State’s motion to dismiss the appeal is brought in addition to the prescription issue that was brought before the trial court and was appealed. The trial court maintained the State’s exception of prescription based on the finding that the plaintiffs claim was prescribed on its face under La. R.S. 9:5628 because the plaintiffs claim was not filed within a one year period from the date of the alleged offending act, omission or neglect.

The health care provider can assert a prescription exception in a court of competent jurisdiction and proper venue at any time without regard to whether the medical review panel process is complete. La. R.S. 5628; La. R.S. 40:1299.39.1(B)(2)(a); Dixon v. Louisiana State University Medical Center, 33,036 (La.App. 2 Cir. 1/26/00), 750 So.2d 408, writ denied, 2000-0627 (La.4/20/00), 760 So.2d 350.

In White v. West Carroll Hosp., 598 So.2d 1134 (La.App. 2 Cir.1992), The Second Circuit held that the plaintiffs were not entitled to supplement the record on appeal with transcripts or other filings that were neither in evidence or otherwise part of the record before the trial court. On granting writs in that case, the Louisiana Supreme Court also noted that receiving the record for a prior medical malpractice action into the record on appeal to determine whether the prior action interrupted the running of prescription on a subsequent action, would amount to the taking of evidence and would go beyond the scope of articles permitting correction of erroneous records of supplementation of deficient records on appeal. White v. West Carroll Hospital, Inc., 613 So.2d 150 (La.1992).

La. C.C.P. art. 2163 provides:

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

In Bibbins v. Boh Bros. Const. Co., 98-172 (La.App. 5 Cir. 7/28/98), 716 So.2d 467, remand was justified by the mover’s request for remand to the trial court for trial of the exception of prescription filed for the first time in the appellate court.

In Joseph v. Vanguard Ins. Co., 99-1475 (La.App. 3 Cir. 3/1/00), 758 So.2d 893, 895-896, the Third Circuit noted:

In Willett v. Premier Bank, 97-187, pp. 9-10 (La.App. 3 Cir. 6/4/97); 696 So.2d 196, 201, we stated:
Article 2163 clearly states that the plaintiff may demand a remand of the case for trial of the prescription exception. The Lplaintiff therefore had discretion to make such a demand. The article, however, is silent as to any mandate on the appellate court to remand the case upon the plaintiffs demand. We conclude that the article does not grant plaintiff an automatic right to remand upon his demand for such action. The appellate court has discretion to do so should the interests of justice require a full hearing.
This language is consistent with other decisions of this court permitting a remand for trial of an exception of prescription in the interests of justice. See Carmouche v. City of Marksville, 94-122 (La.App. 3 Cir. 10/5/94); 643 So.2d 392. However, other jurisdictions have concluded that an appellate court is without discretion in the matter of a remand and must do so upon the plaintiffs request. See Blanchard v. Southern Pac. Transp. Co., 93-1155 (La.App. 1 Cir. 4/8/94); 635 So.2d 742.
In McKeithen v. LeBlanc, 491 So.2d 807, 808 (La.App. 3 Cir.1986), we concluded that justice would be best served by a remand, where “[t]he question of prescription has never been tried, evidence concerning possible interruption of prescription has never been presented, and the issue of prescription turns out to be the only real controversy in the case.” Finding that these considerations are present in this ease, we hereby grant Jesse’s Motion to Remand.

In the present case, in its motion to dismiss the appeal, the State attached a copy of the June 26, 2000 letter to the office of the commissioner of administration from the plaintiff. A copy of this letter was attached as Exhibit 1 to the State’s original exception of prescription, order to show cause, and supporting memorandum that was filed in the trial court on December 17, 2001, and is part of the record on appeal.

However, in its motion to dismiss the appeal on the second additional issue of prescription, the State attached another letter dated June 28, 2002 from the office of the commissioner of administration to the plaintiff. This letter was not before the trial court, is not part of the record, and cannot be reviewed on appeal.

laThe evidence in the record is insufficient to rule on the State’s claim. The plaintiff requests that this court deny the State’s motion to dismiss but preserve the State’s right to make a similar motion in the trial court if the case is remanded after the appellate opinion is rendered.

If this Court affirms the trial court’s dismissal of the plaintiffs claim based on prescription, the State’s second claim of prescription will be moot.

Accordingly, the State’s motion to dismiss, based on an additional claim of prescription, is not considered. The State has the right to bring its second exception of prescription in the district court if the case is remanded after consideration of the plaintiffs appeal.

MOTION TO DISMISS DENIED.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Donald ROBERTSON.
    No. 2002-KA-0156.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2003.

      Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   TERRI F. LOVE, Judge.

Defendant was convicted of possession of cocaine, and sentenced to seven years without benefit of probation or suspension of sentence. On appeal, defendant alleges the trial court erred by denying his motions to suppress evidence seized from his person and his residence, denying his motion for a mistrial, and imposing a sentence that was excessive. For the reasons assigned below, we affirm the defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Detective Robert Ferrier (“Detective Ferrier”), of the New Orleans Police Department Sixth District Narcotics Unit, testified that on May 4, 2000, he received information from a confidential informant that an individual known as “Red”, who walked with a limp and drove a gray Chevy Corsica, would arrive at the corner of Lasalle and Josephine Streets and sell cocaine while sitting in front of an abandoned house. The informant also told the detective that “Red” kept more illegal drugs inside his residence at 8025 Toleda-no Street. Based on the informant’s information the detective decided to conduct surveillance the next day.

On May 5, 2000, Detective Ferrier drove to 3025 Toledano and observed a gray Chevy Corsica parked in front of the residence. The detective then drove to the intersection of Lasalle and Josephine Streets. Detective Ferrier arrived at the | ¡¡location at approximately 9:25 a.m., and parked his surveillance van nearby. Within ten minutes of his arrival the detective observed the gray Chevy Corsica pull up and park in the middle of the 2100 block of Lasalle Street. The detective observed a man, later identified as the defendant Donald Robertson (“Robertson”), step out of the vehicle, walk across the street, and go to a shed at the rear of an abandoned shotgun style house. The front of the house faced Josephine Street located at the corner of Lasalle Street. Detective Ferrier testified that when he observed Robertson walk to the shed he walked with a distinct limp. Detective Ferrier further testified through his binoculars he observed Robertson remove a plastic bag from his pants pocket, and place it on the sidewalk at the rear of the shed. The detective then observed Robertson walk over and sit on some steps located on the Lasalle Street side of the abandoned house. Detective Ferrier testified he then observed Robertson conduct two separate drug transactions with two different unknown males. In each of the transactions, the unknown males approached Robertson; they had a brief conversation; the unknown male handed Robertson currency; Robertson walked to the rear shed area retrieved a small object; and Robertson returned giving the object to the unknown male who then walked away. Detective Ferrier testified after he observed Robertson conduct the two transactions Robertson was then joined by a third male, later identified as Albert Holloway, Jr. (“Holloway”). Robertson and Holloway walked to the rear shed area and retrieved the plastic bag put there by Robertson. Robertson showed the bag to Holloway, and Robertson then removed a small object from the bag and placed it in his right sock. Robertson then walked over to the Chevy Corsica while Holloway sat on a red milk crate next to the steps Robertson had been sitting on. |4 Detective Ferrier testified he observed Holloway conduct a drug transaction in the same manner as Robertson had done.

Detective Ferrier then observed a woman, Rochelle Bannister (“Bannister”), join Holloway and sit on the steps. Detective Ferrier contacted Detective Kyle Hinrich (“Detective Hinrich”) to pick him up at a designated location. The two detectives approached the three individuals, conducted pat down searches, and informed the three they were under investigation for drug violations. The detectives also advised the three individuals of their Miranda rights. Detective Hinrich then retrieved a zip-loc bag containing a white powder-like substance from Robertson’s sock. Detective Hinrich walked to the shed area and retrieved a plastic bag containing seven smaller bags also containing a white powder-like substance. The detectives then placed Robertson and Holloway under arrest, and read them their rights. The detectives conducted a search incident to arrest on Robertson and Holloway, and recovered two hundred sixty-seven dollars, a cell phone, a walkie-talkie, and a set of keys from Robertson. Seventy-two dollars were recovered from Holloway. Bannister was released on the scene.

After Robertson and Holloway were arrested, Detective Ferrier contacted his supervisor, Sergeant Stephen Gaudet (“Sergeant Gaudet”), and advised him of the need for a search warrant for 3025 Toleda-no Street. Sergeant Gaudet obtained the keys taken from Robertson and verified that they in fact opened the door to the Toledano residence. Sergeant Gaudet called for a narcotics unit, and Detective Raymond Veit (“Detective Veit”) and Detective Andy Roccaforte went to Robertson’s residence.

Detectives Ferrier and Hinrich obtained the search warrant and returned to the Toledano address. Once there, the officers called for the assistance of a |ficanine unit with a drug-sniffing dog. Once the canine unit of Officer Keith Debarbieras (“Officer Debarbieras”) and dog Layla arrived, Robertson’s residence was searched. The officers confiscated empty zip-loc baggies, like those on the scene, a plate, razor blade, and a straw along with another small baggie of white powder under the cushion of the sofa. The officers also retrieved some of Robertson’s mail to verify it was in fact his place of residence.

Sergeant Gaudet, Detective Veit, and Officer Debarbieras all gave corroborating testimony of these facts at trial.

Officer Harry O’Neal (“Officer O’Neal”), of the New Orleans Police Department, was qualified as an expert in drug analysis. Officer O’Neal testified he conducted two separate tests on the white powder-like substance found on the scene and in Robertson’s residence. The tests were positive for cocaine.

Robertson and his co-defendant, Holloway, were charged by bill of information, with one count each of possession with the intent to distribute cocaine in violation of La. R.S. 40:967(B)(1). They each pleaded not guilty at their arraignment. After a hearing, the trial court found probable cause and denied motions by both defendants to suppress the evidence.

A twelve-person jury found Robertson guilty of the lesser-included offense of possession of cocaine, and the jury found Holloway not guilty.

The state filed a multiple bill, and Robertson pled not guilty. After a hearing on the multiple bill, the trial court found Robertson to be a second felony offender. The trial court ordered a pre-sentence investigation.

The trial court sentenced Robertson as a second felony offender to seven years at hard labor without the benefit of probation or suspension of sentence. On that same date, the trial court granted Robertson’s oral motion for appeal.

| <¿AWAND DISCUSSION

On appeal, Robertson alleges four assignments of error by the trial court. First, Robertson alleges the trial court erred by finding the warrantless search of his person was justified and denying his motion to suppress the evidence. Second, Robertson alleges the trial court erred by denying his motion to suppress evidence seized from his residence because the search warrant lacked probable cause or in the alternative that a good faith exception was applicable. Third, Robertson asserts the trial court abused its discretion by denying his motion for a mistrial because the prosecutor made inflammatory remarks during closing arguments. Lastly, Robertson asserts the sentence of seven years for possession of cocaine was excessive.

ASSIGNMENT OF ERROR NUMBER 1

Robertson complains the trial court erred by denying his motion to suppress the evidence seized from his sock because the warrantless search was not justified.

The trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914.

La.C.Cr.P. art. 215.1 provides in part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and demand of him his name, address, and an explanation of his actions.

This Court in State v. Anderson, 96-0810, p. 2 (La.App. 4 Cir. 5/21/97), 696 So.2d 105, 106, noted:

A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct. Reasonable suspicion for an ^investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual’s right to be free from governmental interference. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct.

(Citations omitted)

In reviewing the totality of the circumstances, the officer’s past experience, training, and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Short, 96-1069, p. 4 (La.App. 4 Cir. 5/7/97), 694 So.2d 549, 552.

When a law enforcement officer has probable cause to believe that a person has committed a crime, he may place that person under arrest. Incident to such lawful arrest, the officer may lawfully conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. State v. Morgan, 445 So.2d 50, 51 (La.App. 4 Cir.1984).

In State v. Morales, 583 So.2d 129 (La.App. 4 Cir.1991), this Court found that a tip from an anonymous informant was sufficient to create reasonable suspicion to stop the defendant and probable cause to arrest him when the information from the tip was corroborated by independent police work.

Probable cause to arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Wilson, 467 So.2d 503 (La.1985); cert. denied, Wilson v. Louisiana 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Blue, 97-2699 (La.App. 4th Cir.1/7/98), 705 So.2d 1242, writ denied, 98-0340 (La.3/27/98), 716 So.2d 887.
Whether an informant’s tip establishes probable cause to arrest or reasonable suspicion to stop must be considered under the totality |sof the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Corroboration of details of an informant’s tip by an independent police investigation is valuable when applying the totality of the circumstances analysis. State v. Raheem, 464 So.2d 293 (La.1985).
Although the reliability of the informant here was not established at the motion to suppress hearing, corroboration of the informant’s tip was made by the officers. Officer Schnapp testified that his partner, Officer Lampart, observed the defendant conduct what appeared to be a drug transaction prior to the defendant’s arrest and seizure of the black bag from the vehicle.
The defendant argues, however, that the independent police investigation was insufficient to establish probable cause because there was no testimony indicating that the defendant appeared to be nervous or suspicious and because the officers could not identify the object taken out of the black pouch. In support of his claim, defendant likens his case to that in State v. Thornton, 621 So.2d 173 (La.App. 4th Cir.1993), writ denied 93-2109 (La.9/23/94), 642 So.2d 1307, but the case may be distinguished.
In Thornton, this court found that the police lacked probable cause based solely on the officers’ observation of an exchange of money for an unknown object wrapped in white paper between the defendant and another man in an area known for drug trafficking. Neither of the two men attempted to elude the officers or act in an otherwise suspicious manner, and the men were not known to the officers. Yet, unlike Thornton, here, Officer Lampart observed the transaction after receiving the informant’s tip and establishing a surveillance.
Based on the corroboration of the informant’s tip by Officer Lampart, it appears that the officers had probable cause to believe that the pouch inside the vehicle contained contraband. Therefore, the warrant less search of the vehicle was justified. State v. Tatum, 466 So.2d 29, 31 (La.1985). Once the crack cocaine was found, the officers had probable cause to arrest the defendant.

[Footnotes omitted.]

State v. Bryant, 98-1115, pp. 5-6 (La.App. 4 Cir. 8/4/99), 744 So.2d 108, 110-111.

In the instant case, the corroboration of the informant’s information by independent police surveillance gave the officers not only reasonable suspicion to stop Robertson, but probable cause to arrest him. At the time Detectives Ferrier and Hinrich stopped Robertson and informed him he was under investigation for a|9drug violation there was probable cause to arrest him based on Detective Ferrier’s observance of apparent hand-to-hand drug transactions conducted by Robertson and Holloway coupled with the informant’s tip. Therefore, the seizure of the drugs found in Robertson’s sock was valid based on the facts Detective Ferrier had that Robertson had committed a crime. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Robertson complains the trial court erred in denying his motion to suppress the evidence seized from his residence because the application for the search warrant lacked probable cause to believe that there was contraband in the residence, and the trial court erred in finding that the good faith exception applied if probable cause was lacking.

La.C.Cr.P. ait. 162 provides:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

The Louisiana Supreme Court set forth the applicable law in State v. Casey, 99-0023, pp. 3-4 (La.1/26/00), 775 So.2d 1022, 1027-1028, as follows:

A person is constitutionally protected against unreasonable search and seizure of his house, papers and effects. Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and thing(s) to be seized. U.S. Const. amend. IV; La. Const. art. I, § 5 (1974). The general rule is that probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affi-ant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” La. C.Cr. P. art. 162; State v. Johnson, 408 So.2d 1280, 1283 (La.1982). The issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exits that the evidence of a crime will be found in a particular place. State v. Byrd, 568 So.2d 554, 559 (La.1990). Additionally, a search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. State v. Weinberg, 364 So.2d 964, 968 (La.1978). Further, an affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. State v. Duncan, 420 So.2d 1105, 1108 (La.1982).

The defendant bears the burden of proving that the evidence should be suppressed. La.C.Cr.P. art. 703(D). A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Mims, 98-2572, p. 3 (La.App. 4 Cir. 9/22/99), 752 So.2d 192, 193-194. In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Nogess, 98-0670, p. 11 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

In U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the U.S. Supreme Court enunciated the “good faith” exception, which held that evidence seized pursuant to a search warrant issued without sufficient probable cause need not be suppressed if the officers who executed it believed it had been validly issued. See State v. Shortridge, 98-2060, pp. 4-6 (La.App. 4 Cir. 12/22/99), 750 So.2d 339, 341.

In the instant case the search warrant application is missing from the record. Robertson does not make any argument concerning the absence of the search warrant application. Rather he argues the application did not provide sufficient facts to establish probable cause to believe that there would be contraband at 3025 lnToledano Street. At the time Detective Ferrier applied for the search warrant, all of the information given to the detective by the confidential informant had been corroborated by independent police work. Detective Ferrier observed a gray Chevy Corsica parked outside of Robertson’s residence; he observed the Chevy Corsica pull up to the location given by the informant; he observed a male, fitting the description given by the informant, exit the vehicle; Detective Ferrier observed the defendant conduct two drug transactions; drugs were found on the defendant’s person at the time of the arrest; and drugs in a bag similar to the one found on Robertson were also found on the scene. Therefore, there was probable cause to believe the informant’s information that more drugs were in the defendant’s residence would be true also. Consequently, Robertson has failed to prove that the evidence seized pursuant to the search warrant should have been suppressed for lack of probable cause. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3

Robertson complains the trial court abused its discretion by denying his motion for mistrial based on inflammatory remarks made during the prosecutor’s closing argument.

La.C.Cr.P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
|1s>An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

La.C.Cr.P. art. 775 provides in part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

Mistrial is a drastic remedy, which should be declared when unnecessary prejudice results to the defendant. State v. Lewis, 95-0412 (La.App. 4 Cir. 9/28/95), 662 So.2d 77, 78. The trial court has discretion to determine whether a fair trial is impossible, or whether an admonition is adequate to assure a fair trial when the alleged misconduct does not fit into the provisions for mandatory mistrial, and the ruling will not be disturbed on review absent an abuse of discretion. Id.

During the State’s closing argument the following exchange took place:

STATE: The defense took pictures of the neighborhood. There is one— Those are real people that five in that neighborhood. I mean this is residential. You have got Woodson Elementary just right down the—
DEFENSE: Objection move for mistrial, trying to inflame the jury.
STATE: It’s a fact.
DEFENSE: No, its inflammatory as it relates to what has happened.
COURT: Your words sir, I couldn’t hear exactly what you said.
STATE: I just pointing out the different schools that are right—
COURT: I would sustain that, please.
INSTATE: Well, my point being is that this is a residential neighborhood. This is where people live, and there are people that have an actual stake in that neighborhood, and one person who has no stake in that neighborhood is Mr. Robertson. So, when I told you this was about two people getting caught up in the drug game, I want to correct myself and say it’s about more than that. It’s about people that live in that area around the corner of La-salle and Josephine and it’s about them deserving police protection just like everybody else.

In State v. Mims, 524 So.2d 526, 543 (La.App. 2 Cir.1988), the Second Circuit found that the prosecutor’s comment of “who else in the community are these serious charges to” was in response to defense counsel’s argument that the charges involved in the case were serious. The court found in context the comment was not inflammatory. Therefore, the trial court did not err in denying a mistrial based on the statement.

In the instant case, there were no objections during the closing argument by Holloway’s defense counsel, and that portion of the transcript was not provided. However, the trial court noted that it was defense counsel who made statements about the community in which the drug transactions took place, and that the State’s comment was simply a rebuttal. Based on the information given it does not appear the trial court erred in denying Robertson’s motion for mistrial. Additionally, the comment does not fit into one of the criteria given in La.C.Cr.P. art. 770, and therefore the trial court had great discretion in deciding to grant or deny the motion. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 4

Robertson complains the trial court imposed an excessive sentence. Specifically, Robertson’s sentence of seven years for possession of cocaine as a second felony offender was closer to the maximum for the offense.

i4 Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739, 751 (La.1992).

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983).

If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112, p. 4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534-535, citing, State v. Howard, 414 So.2d 1210 (La.1982).

La. R.S. 15:529.1(A)(2)(a) provides:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one half the longest term and not more than twice the longest term prescribed for a first conviction.

liiiLa. R.S. 40:967(0(2) provides that any person who commits the violation of possession of a controlled dangerous substance shall be imprisoned for not more than five years.

In State v. Joseph, 99-1161 (La.App. 5 Cir. 3/22/00), 759 So.2d 141 the Fifth Circuit found a sentence of eight years for a defendant convicted of possession as a second offender was not excessive.

In the instant case, the sentence range the defendant faced as a second offender was a minimum of two and one-half years and a maximum of ten years. The trial court considered the information found in the pre-sentence investigation before sentencing Robertson. The court considered the fact that the defendant’s previous felony conviction was a drug offense. Also, the trial court considered the fact that Robertson was on probation when he committed the offense in the instant case. Robertson has failed to prove the trial court abused the liberal discretion allowed in sentencing. This assignment of error is without merit.

CONCLUSION

For the above mentioned reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: McCLENDON, J.

text:
    James H. SCHULTZ v. Dr. Richard M. HILL, Barbara Stice Hill, Stice-Hill Town & Country Shopping Center Partnership, Dewanna Atkins, J.L. Mallett, Belleview Shopping Center Partnership, Stice-Hill Edgewood Plaza Partnership, and Tioga Oaks Shopping Center General Partnership.
    No. 2002 CA 0835.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Rehearing Denied April 3, 2003.

      John Dale Powers, Neil H. Mixon, Baton Rouge, Counsel for Appellant James H. Schultz.
    Robert L. Kleinpeter, Baton Rouge, Counsel for Appellee Dr. Richard M. Hill, et al.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McCLENDON, J.

This appeal arises from the trial court’s dismissal of the majority of an action for real estate commissions against the landlord(s) on numerous leases of immovable property. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Beginning in the early 1970’s and continuing through April 1994, the plaintiff, James H. Schultz, a licensed real estate agent and broker, established and maintained a business relationship with Dr. Richard M. Hill in which Mr. Schultz assisted Dr. Hill in the acquiring, developing, and leasing of various shopping center interests throughout Louisiana. Dr. Hill, individually and as managing partner for the partnerships owning the various shopping centers, and Mr. Schultz formalized their agreement for compensation to Mr. Schultz by virtue of numerous commission agreements, combined with attached and/or referenced lease agreements, in which Dr. Hill agreed to pay Mr. Schultz a percentage of the lease revenues from various shopping center tenants who had been procured by Mr. Schultz.

Following the 1994 formal termination of Mr. Schultz’s employment with Dr. Hill, a dispute arose as to Mr. Schultz’s continued right to collect commission on the leases at issue. On October 10, 1997, Dr. Hill’s attorney forwarded a letter to Mr. Schultz, stating that notice was being given therein under LSA-C.C. art.2024, terminating any and all commission agreements by and between Dr. Richard M. Hill and James H. Schultz under the following conditions:

1) Dr. Richard M. Hill will continue to pay a commission to James H. Schultz on all rental agreements where a ^written commission agreement was executed and presently occupied by the tenant on a month-to-month basis for a period of three (3) months commencing November 1, 1997.
2) Dr. Richard M. Hill will continue to pay the commission to James H. Schultz on any commission due on any written lease still in existence for the primary term provided in the written lease and if the written lease is still in existence by virtue of a renewal for a specific lease period not to exceed three (3) years.

Mr. Schultz filed suit on April 8, 1998, seeking to recover alleged accumulated, unpaid commissions and future commissions. A trial on the matter was held on October 24, 2001. Judgment was signed on January 16, 2002, ordering the continued payment of lease commissions and accounting with regard to six tenants, but rejecting all of plaintiffs other demands. From this judgment, Mr. Schultz appealed and on appeal makes the following assignments of error:

(1) The trial court committed legal error in finding and holding that the Lease Commission Agreements sued upon are contracts of unspecified duration that are subject to being terminated at the will of either party pursuant to the provisions of La. Civ.Code Art.2024.
(2) The [trial court] erred in not holding and finding that defendants-appellees breached the Lease Commission Agreements sued upon and in not holding defendants-appell[ees] liable to plaintiff-appellant Schultz for breach of contract damages, and in not holding that defendants-appellees’ obligations are continuing and on-going on the “active” and “continuing” Lease Commission Agreements, pursuant to the terms thereof.
(3)The [trial court] erred in not casting defendants-appellees for all costs of court, including expert witness fees of plaintiff-appellant’s expert Ben Johnson.

DISCUSSION AND ANALYSIS

The trial court denied the majority of plaintiffs claims based on a finding that the contracts between the parties were of unspecified duration and therefore under LSA-C.C. art.2024 could be terminated upon ^reasonable notice by either party. Having made a determination that reasonable notice was given by Dr. Hill to Mr. Schultz, the court found that no further commissions were owed, with the exception of six leases wherein Dr. Hill had agreed to continue payment of commissions.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541, p. 6 (La.2/6/98), 708 So.2d 731, 735; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993), citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 97-0541 at pp. 6-7, 708 So.2d at 735, citing Ferrell v. Fireman’s Fund Insurance Company, 94-1252, p. 7 (La.2/20/95), 650 So.2d 742, 747.

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 at p. 7, 708 So.2d at 735; Lasha v. Olin Corporation, 625 So.2d 1002, 1006 (La.1993); Rosell v. ESCO, 549 So.2d at 844 n. 2. See also Gonzales v. Xerox Corporation, 320 So.2d 163, 165 (La.1975); Ragas v. Argonaut Southwest Insurance Company, 388 So.2d 707, 708 (La.1980).

DURATION OF COMMISSION CONTRACTS

The decision of the trial court is based on its application of LSA-C.C. art. 2024 to the contracts between the parties; article 2024 provides as follows:

A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party.

The parties agree that the pertinent language in these commission agreements is the same, and states:

Landlord hereby agrees to pay to JAMES H. SCHULTZ, his heirs, successors or assigns, a real estate commission equal to five (5%) percent of all monies collected during the initial term, options, renewals, extensions, assignments or additional leases with the Tenant. Landlord hereby binds and inures to the benefits of the parties hereto his legal representatives, heirs, successors and assigns to pay said commission. In the event the Landlord sells, assigns or transfers the leased premises during the term of this agreement, then Landlord’s obligation to pay commissions shall continue and Landlord further agrees to require any purchaser or future owner of said property to assume the obligation to pay commissions. Said commission to be paid monthly as Landlord receives the payments as required by the lease. [Emphasis added.]

The determinative legal question is whether this contractual language is of “unspecified duration” or had a definite term.

Although LSA-C.C. art.2024 was enacted as a new article by 1984 La. Acts, No. 331, effective January 1, 1985, the comments to that article indicate that it did not change the law. LSA-C.C. art.2024, Comment (a). Further, the comments to Article 2024 indicate that by “unspecified” duration, it is meant “indefinite” duration, when in Comment (c) it is stated, | f“Under this Article, a contract of employment for an indefinite duration may be terminated at the will of either party.”

Since, with respect to the instant contract, the “duration” of the contract is its “term,” Article 2024 should be read in pari materiai, pursuant to LSA-C.C. art. 13, with LSA-C.C. art. 1778, which provides:

A term for the performance of an obligation is a period of time either certain or uncertain. It is certain when it is fixed. It is uncertain when it is not fixed but is determinable either by the intent of the parties or by the occurrence of a future and certain event. It is also uncertain when it is not determinable, in which case the obligation must be performed within a reasonable time.

Comment (b) to Article 1778 states, “Under this Article, a term may be fixed not only by a period of time allowed for the performance of an obligation but also by an event which is certain, such as a person’s death.”

In essence, LSA-C.C. art. 1778 describes three different types of scenarios concerning the term of a contract: (1) a certain or fixed term; (2) an uncertain but determinable term; or (3) an uncertain and undeterminable term. Taking the comments and text of Article 1778 together, one concludes that an uncertain term that is determinable by reference to the happening of a future event is valid and enforceable, even though the date of the happening of that future event cannot be known until its occurrence.

We reconcile Article 2024 and 1778 by concluding that Article 2024 can only be applied to contracts of “unspecified duration;” i.e., contracts having an uncertain and undeterminable term. We further conclude that since Article 1778 allows the term of a contract to be fixed with reference to the happening of a future event, that the term or duration is thereby specified and LSA-C.C. art.2024 is inapplicable. In the case currently before us, we find the commission agreements do not contain an uncertain and undeterminable term, but rather an uncertain but determinable term. In these |7agreements, the.term is fixed by the happening of a future event; i.e., the termination of the applicable lease.

Only one case has been cited by the parties that directly addresses the issue presented herein: State ex rel. Guste v. Orkin Exterminating Company, 528 So.2d 198 (La.App. 4 Cir.), writ denied, 533 So.2d 18 (La.1988). In the Orkin case, the contracts at issue were for pest control and repair services with guarantees for the lifetime of the treated structures so long as the customers paid a specified annual renewal fee. There was no provision in the contracts for an increase in the annual renewal fees unless the structures had been altered after treatment. When Orkin began raising the annual renewal fees by forty percent or $25, whichever was greater, legal action was instituted. In ruling that the increased renewal fees constituted a breach of the contracts, the Fourth Circuit found the contracts to be of definite duration, stating:

A contract for the lifetime of the structure is for a definite and ascertainable period. Contractual obligations dependent on an ascertainable fact or event is [sic] sufficient to render the duration of the contract definite and certain. Contracts may be uncertain as to point of time when they will terminate, so long as there is no uncertainty as to the event which will bring about their termination. [Citations omitted.]

State ex rel. Guste v. Orkin Exterminating Company, 528 So.2d at 201.

We construe the contracts at issue in the instant case to have a determinable term because the payment of commission is specified as being due “during the initial term, options, renewals, extensions, assignments or additional leases with the Tenant.” It is clear that when the tenancy ends, the contract for the payment of commission ends. Therefore, LSA-C.C. art. 2024 is inapplicable and the trial court committed legal error in finding the | sdefendant/landlords had the right to terminate the commission contracts upon reasonable notice under the provisions of Article 2024.

We reject defendants’ argument that it is inappropriate in the instant case to look beyond the “four corners” of the commission agreement to define the extent of the agreement between the parties. Whereas in the instant case the contract makes specific reference to and incorporates another document, that document becomes part of the contract and as such is within the “four corners” of the contract and not considered extrinsic evidence. We distinguish the cases cited by defendant in this respect, particularly Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, which dealt with a transaction/compromise agreement and an attempt to vary from the plain language of that document on a claim that the intended scope of the release was less than it appeared from the language therein. In the instant case, as indicated the lease agreements at issue were not extrinsic evidence of a contrary intent of the parties, and were not in fact contradictory, but rather were incorporated by specific language into the main commission agreement, giving only additional details of that agreement.

The holding of this court in Succession of Lindsey, 477 So.2d 148 (La.App. 1 Cir.1985) lends support to our conclusion herein. In the Lindsey case, at issue was the admissibility of exhibits to a mineral rights revenue sharing agreement. Attached to that agreement were exhibits listing the particular pieces of property owned by the parties and covered by the agreement. In holding these exhibits admissible, we stated:

When in doubt, the agreement may be explained by reference to other contracts on the same subject between the same parties, either before or after this one, with preference for the interpretation which gives the agreement effect. ...
| sAppellant argues that parol evidence may not be used to supply the missing identification since parol evidence may not be used to establish title to immovable property. By codal definition, a mineral right is an incorporeal immovable, subject to codal articles respecting immovable property. All transfers of immovable property must be in writing and parol evidence is not admissible to vary, alter or contradict the written terms of a contract. While there are exceptions to the parol evidence rule, they are not applicable in this case, since the language in the written agreement is clear and the parol evidence is not being used to vary the agreement, but to further substantiate it. The agreement describes the land owned by the parties by township, range and section and covers all the property owned in St. Helena Parish by the parties. Therefore, the exhibits are not offered to vary the contract or to establish title, but to provide a more precise property description. We find no manifest error in the trial judge’s holding that there was no dispute about the identification of the property covered in the agreement. [Footnotes omitted; citations omitted.]

Succession of Lindsey, 477 So.2d at 156-57.

Since the incorrect application of law in this case caused the trial court to preter-mit an examination of the lease commission agreements and reach a determination as to which tenancies continued past the last, date commission was paid and as to what amount was due plaintiff therefor, we turn now to a de novo examination of the evidence presented at trial.

TERMINATION OF TENANCIES

In order to ascertain when a particular tenancy terminated and thereby ended the right of plaintiff to collect commission on rental payments of the premises leased, the provisions of the commission agreements must be examined. At the outset, we note that while the commission agreements particularly named the payee of commission as “JAMES H. SCHULTZ, his heirs, successors or assigns,” the terms “Landlord” and “Tenant” were not otherwise defined. However, each commission agreement referenced a lease agreement by naming the purported tenant and a brief description of the leased premises. The name of the “Landlord” was not specifically disclosed though each agreement is signed at the bottom as follows: “By: [signature of |inRichard M. Hill] (Landlord).” The capacity in which Dr. Hill signed the documents, whether representative or as an individual, was further not disclosed. Since the lease agreements were incorporated by reference into the commission agreements, the two must be read together and the lease agreements serve to fill the gaps in the commission agreements with respect to identity of the landlord, tenant, premises leased, and duration of the lease.

The identity of the tenant, in some of the leases under consideration, is an issue in this case since the juridical identity of the tenant changed and new leases were signed to that effect. Because the commission agreement(s) obligate(s) the landlord of the referenced lease only with respect to the particular tenant named therein, we reject plaintiffs claim to receive commission payments where the juridical identity of the tenant changed in subsequent leases. Had the parties desired to make the commission payments extend to successors of the tenant, then the lease could have so specified as easily as it was specified that the commission payments would be made to the “heirs, successor or assigns” of Mr. Schultz or by the “legal representatives, heirs, successors and aséigns” of the landlord.

We further reject any claim by plaintiff that the commission agreements apply to subsequent leases of other premises/locations, though between the same landlord and tenant. The commission agreements reference payment of commission for the “leased premises” and specifically provide for compliance with the commission agreement by any subsequent owners of the “leased premises.” Although the agreement provides for payment of commission on “additional leases with the Tenant,” the clear meaning of that provision applies with respect only to the “leased premises;” i.e., the physical location named in the lease agreement. The words of a contract must be given their generally prevailing meaning. LSA-C.C. art. In2047. If the parties had contemplated that commission payments would extend to any other premises owned by the landlord and subsequently leased to the tenant, the agreement could have so stated.

Aso in dispute in this proceeding is Mr. Schultz’s claim that he is entitled to collect commission on rental payments due under the terms of a lease, that were voluntarily abated, waived, or for which no collection efforts were made. We find the language of the commission agreements dispositive of this issue, as it was stated that Mr. Schultz was to receive a percentage of “all monies collected” from the tenant. (Emphasis added.) Since the rental amounts that were “abated” were not collected from the tenant and the tenant was in effect excused from paying the rent due during the abatement period, Mr. Schultz was not contractually entitled to collect a percentage of money not collected. The testimony of Mr. Schultz that Dr. Hill had actually paid him a commission on abated rent in the past cannot serve to extend the written agreement of the parties.

We will examine each claim for commission for each particular lease, in turn, grouped under the following categories: (1) Ongoing/Unchanged Leases; (2) Ongoing/Unchanged Leases with Abated Rent; (3) Unchanged Leases Subsequently Terminated with Abated Rent; (4) Leases with Subsequently Altered Tenant or Premises; and (5) Ongoing Leases with No Claim for Future Commission.

yPngoing/Unchanged Leases

With respect to the following lessees, there was at the time of the trial of this matter, no change in the status of the original lease agreements upon which Mr. Schultz was entitled to collect commissions under the contracts he had with the landlord in question: Jules Madere Creative Jewelers, Inc. (A — 07); Cindy Lee Waters (A. — 14); Shelton S. and Loretta S. Watts (A-33); Michael T. Abadie (A-35); Robert E. and Virginian P. Sinclair (A-50); Sammy Joseph Panino (A — 53); and Huey and Chongsuk Toups (A-55). For these leases, the tenant and leased premises remained the same. Therefore, plaintiff is entitled to recover the percentage commission as provided in the pertinent commission agreement on the monies collected from these tenants from the time such commission payments were discontinued through the time of trial and thereafter until such time as either the tenant or leased premises change.

Nevertheless, we found upon inspection of plaintiffs exhibits tallying the amount owed under these and the other leases listed hereinbelow that legal interest was inappropriately calculated in violation of LSA-C.C. arts. |132000 and 2001, in that interest on accrued interest was added into the calculation of the amount due. Therefore, we will remand this matter to the trial court for a determination of the exact amount owed on each of these leases with interest to be determined only on each sum that became due from the date that it was due, and with the direction that interest not be calculated and included on accrued interest. See Chittenden v. State Farm Mutual Automobile Insurance Company, 2000-0414, pp. 15-17 (La.5/15/01), 788 So.2d 1140, 1151-52.

Ongoing/Unchanged Leases with Abated Rent

As to the lease involving tenants, Francis Ralston McLavy, Jr., Mónita Gayle Jackson McLavy, Edward Young Easterly, Jr., and Katherine Louise Kuntz Easterly, doing business as McLavy & Easterly (A-08), the testimony revealed that one or more of the originally named tenants may have sold out his interest in the business in question; however, at least one of the original tenants continues the lease. It was further admitted at trial that some $17,000 in rent payments were abated by the landlord in exchange for the tenant making improvements to the leased premises. As previously indicated, we reject plaintiffs claim to commission on abated rent. However, since the lease in all other respects remained unchanged at the time of trial, plaintiff is entitled to recover commission in the percentage as stated in the commission agreement on the amounts collected from this tenant from the time such commission payments were discontinued (January, 2000) through the time of trial and thereafter until such time as either the tenant or leased premises change. On remand, we instruct the trial court to calculate this amount with legal interest in accordance with LSA-C.C. arts.2000 and 2001.

_Jj^Unchanged Leases Subsequently Terminated with Abated Rent

The record reveals that the following tenants maintained an ongoing lease with the landlord, in the same premises, until the premises were vacated and the payment of rent was discontinued; Yvonne C. Berry (A — 01); Anna Davis (A-04); Earl J. Savoie, Margaret Ann Lynch Sa-voie and Keith G. Morris (A-ll); D.J. Shelby, II, Inc d/b/a Books, Etc. (A-12); Michael F. Shortess and Robert J. Shor-tess (A-13); Frank J. Johnson; Robert Wade Minarik and Laurie Powell Mi-narik (A-42); Thomas D. Lively and Beverly L. Lively (A. — 58); and, BVM, Inc. (A-61). On these |1Kleases, plaintiff is entitled to recover the percentage commission as provided in the pertinent lease commission agreement on the monies collected from these tenants from the time such commission payments were discontinued through the time the leased premises were vacated, but not including any abated or uncollected rent.

Leases with Subsequently Altered Tenant or Premises

In each of the following leases, subsequent to the original lease between the landlord and tenant either the original tenant or premises were changed with a new lease having been executed to that effect: George Leon Collier & Jeannette G. Collier (A — 02); Wine & Cheese Shop of Baton Rouge, Inc. (A — 03); Robert Quaid, Nona Robillard, and Alex Dugas (A-05); Premier Paging, Inc. (A-06); Miller-Norfolk, Inc. d/b/a Four Seasons Travel Serviees/Norfolk Tours (A-09); Classic Jewelers, Inc. (A — 10); |1f;Don In-zenga and Steven Inzenga (A-32); James M. and Carol Guerin (A-37); Jerome Quarterman (A-41); Michael W. and Kathleen C. Simpson, and Charles W. and Judy L. McDonald (A. — 43); Michael J. and Cynthia F. Nicaud (A-44); and, Tuesday Morning, Inc. (A-45). We conclude, with respect to these leases, that plaintiff is entitled to commission only until a new lease became effective, changing the tenant or the leased premises.

Ongoing Leases with No Claim for Future Commission

With respect to the leases to Winn-Dixie of Louisiana, Inc. and Volume Shoe Corporation, although both these leases appear to be ongoing, based on the evidence presented to the trial court, plaintiff sought recovery of commissions of only $150.34 and $31.50 on these leases, respectively. [17No evidence was presented to overcome this claim; therefore, these amounts should have been awarded.

Remand for Calculation of Amount Due

Having found that plaintiff incorrectly calculated amounts due under the leases in question, particularly in that interest was added onto accrued interest, we find that justice would best be served by remanding the matter for a determination by the trial court of the exact sums due for commissions found to be owing, as stated herein. On the commissions found due and owing, interest should only be calculated on the amount owed from the date it was due and not on accrued interest, as set forth in LSA-C.C. arts.2000 and 2001. On remand, the trial court is directed to determine the amount owed on these leases in accordance with the foregoing.

COURT COSTS AND EXPERT WITNESS FEES

Since the trial court made no award in plaintiffs favor, no award was made for court costs and expert witness fees. In plaintiffs final assignment of error, he argues that the trial court erred in failing to assess court costs and expert witness fees to defendants. Having found herein that plaintiffs claim has merit in part, we also find it appropriate that the landlord/defendants, cast in judgment, also be cast for costs and plaintiffs expert witness fees in accordance with LSA-C.C.P. art.1920. Upon remand, the trial court is directed to determine the amount owed by each respective landlord/defendant and apportion costs correspondingly.

CONCLUSION

For the reasons assigned herein, the judgment of the trial court dismissing the suit of plaintiff, James H. Schultz, is hereby reversed, and the matter is remanded to the trial court for a determination of the exact amounts due from the respective defendants, applying legal interest and apportioning |1scosts in accordance with the foregoing. All costs of this appeal are to be borne by defendants herein.

REVERSED AND REMANDED.

      . Although in most of the commission agreements at issue the stated commission rate was five percent, there were a few in which the commission rate was two and one-half percent, one at three percent, and another one at six percent.

      . The issue of notice was never in dispute, as Dr. Hill, through counsel, had written a letter attempting to terminate the commission agreements.

      . These six leases were listed by the trial court as: A-15 TCBY — Heflin/Webb—to Smith, et al. — Young—d/b/a TCBY; A-36 Wy-man & Martha Dunlap d/b/a Chef Products, Inc.; A-40 Kean’s the Cleaner, Inc. (Town & Country Shopping Center); A-63 Dollar General — Edgewood Plaza Shopping Center; A-64 Radio Shack — Edgewood Plaza Shopping Center; and A-67 Dollar General — Tioga Oaks Shopping Center.

      . The Orkin court distinguished the cases of Baynard v. Guardian Life Insurance Company of America, 399 So.2d 1200 (La.App. 1 Cir.1981) and Jones v. Crescent City Health and Racquetball Club, 489 So.2d 381 (La.App. 5 Cir.1986), which dealt with lifetime contracts of employment and lifetime health club memberships, respectively, because the invalidity of lifetime contracts in those particular instances has been legislatively provided for by LSA-C.C. art. 2746 and LSA-R.S. 51:1578.

      . In some instances, the tenant failed to pay the rent due while continuing to occupy the leased premises or after the premises were vacated and the lease term had not expired. In other instances, the tenant was allowed to forgo making lease payments, for a time, in exchange for making improvements to the leased premises. In these instances, no rent was collected by the landlord though rent would otherwise have been owed.

      . In so doing, we list each lease by the name of the tenant as given in the original lease agreement, filed into evidence with the trial court, and in parenthesis indicate the letter and number designation for each of these leases as used by plaintiff in his exhibits showing the amount of commissions he claimed were owed.

      . Plaintiff claimed that commissions remained unpaid and due on this lease from February, 1998 and thereafter.

      . Plaintiff claimed that commissions remained unpaid and due on this lease from August, 1999 and thereafter.

      . Plaintiff claimed that commissions remained unpaid and due on this lease from August, 1999 and thereafter.

      . Plaintiff claimed that commissions remained unpaid and due on this lease from February, 1998 and thereafter.

      . Plaintiff claimed that commissions remained unpaid and due on this lease from February, 1998 and thereafter.

      . Plaintiff claimed that commissions remained unpaid and due on this lease from August, 1999 and thereafter.

      . In the original lease, the landlord was named as “Bellview Shopping Center Partnership;” however, in May of 2001, a new lease was signed changing the name of the landlord to “Stice-Hill Belleview Plaza Partnership.” Plaintiff claimed commissions remained unpaid and due for the month of August, 1999 and thereafter. Although the name of the landlord was changed in May of 2001, as a successor to the originally named landlord, the obligation to pay Mr. Schultz's commission continued under the terms of the commission agreement. Thus, plaintiff should recover commissions for the months of August, 1999 and thereafter.

      . Additionally, a few of these tenants failed to pay rent during their occupancy of the leased premises, for which no commission is due plaintiff.

      . Plaintiff claimed that commissions remained unpaid and due from February, 1998 and thereafter. Since the tenant vacated the premises in April of 2001, commissions were only due plaintiff between February, 1998 and March, 2001.

      . Although there was some general testimony at trial that this tenant passed away during the term of her lease and that her heirs assumed responsibility for the lease; there was no evidence that the actual tenant was changed by the signing of a new lease. As plaintiff's lease commission agreement encompassed lease assignments, a commission was due him on this lease even though it may have been assigned. Plaintiff claimed that although he was paid some commission in August, 1999, it was only on the rental amount collected and on a $2,000.00 percentage payment collected; however, plaintiff claims that the amount of percentage payment actually collected was $2,500.00 and that for this month, he is owed commission on the difference of $500.00. We have examined the records and defendants' ledger for that month does in fact show the tenant paid the amounts of $1,116.38 and $2,500.00, while defendants' commission report shows that plaintiff was paid commission only on the amounts of $1,116.38 and $2,000.00. Plaintiff is therefore entitled to collect commission on the $500.00 difference. Additionally, plaintiff claimed that he was not paid commission for amounts collected from January, 2000 through August, 2000, or for amounts abated in May of 2000 and after the premises were vacated in September of 2000. As indicated herein, we do not find plaintiff to be entitled to collect commission payments on abated rent; however, he is entitled to commission on the amounts collected from the tenants between January, 2000 and August, 2000.

      . Plaintiff claimed that commissions remained unpaid and due from February, 1998 and thereafter. Since the tenant vacated the premises in November, 2000, commissions were only due plaintiff between February, 1998 and October, 2000.

      . Plaintiff claimed that commissions remained unpaid and due from January, 1998 and thereafter. Since the tenant vacated the premises in June, 1998, commissions were only due plaintiff between January, 1998 and May, 1998.

      . Plaintiff claimed that commissions remained unpaid and due from January, 2000 and thereafter. Since rent was abated for the months of September, 2000 through December, 2000, and in part for January, 2001 and thereafter until the premises were vacated in April of 2001, commissions were due only on the monies collected from the tenant between January, 2000 and August, 2000 and during the month of January, 2001.

      . Plaintiff claimed that commissions remained unpaid and due from February, 1998 and thereafter. Since the tenant vacated the premises in August of 2001, commissions were only due plaintiff between February, 1998 and July, 2001.

      . Plaintiff claimed that commissions remained unpaid and due from February, 1998 and thereafter. Since the tenant vacated the premises in June of 1998, commissions were only due plaintiff between February, 1998 and May, 1998.

      . Plaintiff claimed that commissions remained unpaid and due from December, 1994 and thereafter. Since no monies were collected from the tenants after June, 1995, commissions were only due plaintiff between December, 1994 and June, 1995.

      . Plaintiff claimed that commissions remained unpaid and due for January, 1995. Since the neither the tenant nor the leased premises had changed and no monies were collected from the tenants after January, 1995, plaintiff is entitled to a commission on the amount paid in January, 1995.

      . A new lease became effective on October 1, 1998 changing the tenant from the Colliers to Alicia Beckcom Paxton. Plaintiff claimed commissions remained unpaid and due for the month of April, 1998 and thereafter. Thus, plaintiff is entitled to commission only during the months of April, May, June, July, August, and September of 1998.

      . A new lease became effective on June 1, 1998 changing the tenant from the Wine & Cheese Shop of Baton Rouge, Inc. to Charles R. Lalonde. Plaintiff claimed commissions remained unpaid and due for the month of November, 1998 and thereafter. Since the tenant changed prior to that time, plaintiff is entitled to no further commission on this lease.

      . A new lease became effective on March 1, 1997 changing the tenants from the individuals, Quaid, Robillard, and Dugas, to Alex Du-gas, Inc. Plaintiff claimed commissions remained unpaid and due for the month of March, 1997 and thereafter. Since the tenant changed beginning in that month, plaintiff is entitled to no further commission on this lease.

      . Plaintiff claimed commissions remained unpaid and due from February, 1998 and thereafter. We note that this tenant originally executed two leases to occupy two shops in Bocage Village Shopping Center, one with a physical address on Jefferson Highway and the other with a physical address on Old Hammond Highway. The Old Hammond Highway location was vacated in December, 1998, while the Jefferson Highway space continued to be occupied at the time of trial. However, in April of 1998, a new lease was effected changing the tenant from Premier Paging, Inc. to Satellink Paging, L.L.C. While there was some evidence submitted that there was a merger between the two companies as well as other companies, it was insufficient to disprove that as of April, 1998, a new juridical entity had become the tenant of the leased premises at issue. Thus, on both leases, plaintiff is only entitled to collect commissions on monies collected in February and March of 1998.

      . A new lease became effective on April 25, 1997 changing the tenant from Miller-Norfolk, Inc. d/b/a Four Seasons Travel Services/Norfolk Tours to Merrill Holdings, L.L.C. Plaintiff claimed commissions remained unpaid and due for the month of May, 1997 and thereafter. Since the tenant changed prior to that time, plaintiff is entitled to no further commission on this lease. We note that prior to the signing of the lease by Merrill Holdings, L.L.C., the original lease was assigned to them; however, plaintiff does not assert he did not receive his commission during the assignment period.

      . The original lease signed by these tenants was for the premises located at 7610 Old Hammond Highway; however, in August of 1995, a new lease was executed changing the leased premises to 7643 Jefferson Highway. Although plaintiff continued to receive commission payments through December of 1999, they were not due under the terms of the lease commission agreement after August of 1995. Thus, plaintiff is not entitled to any further commission on this lease.

      . A new lease became effective on September 1, 1994 changing the tenant from Don Inzenga and Steven Inzenga to S & J Corporation. Plaintiff claimed commissions remained unpaid and due for the month of October, 2000 and thereafter. Since the tenant changed prior to that time, plaintiff is entitled to no further commission on this lease.

      . A new lease became effective on October 1, 1998 changing the tenant from the Guerins to JJL, L.L.C. Plaintiff claimed commissions remained unpaid and due for the month of February, 1998 and thereafter. Thus, plaintiff is entitled to commissions only during the months of February through September of 1998.

      . A new lease became effective on July 1, 1998 changing the tenant from Mr. Quarter-man to Jiangdi Fan and Kaiyuan Yu. Plaintiff claimed commissions remained unpaid and due for the month of February, 1998 and thereafter. Thus, plaintiff is entitled to commissions only during the months of February through June of 1998. We note that prior to the signing of the lease by Jiangdi Fan and Kaiyuan Yu, the original lease was assigned to them in 1989; however, since plaintiffs lease commission agreement encompassed lease assignments, commissions were due him on this lease during the assignment period.

      . A new lease became effective in August of 1999 changing the Simpson/McDonald tenants to Landshark, Inc. Plaintiff claimed commissions remained unpaid and due for the month of February, 1998 and thereafter. Thus, plaintiff is entitled to commissions only during the months of February, 1998 through July of 1999. We note that prior to the signing of the lease by Landshark, Inc., the original lease was assigned to Leonard and Kimberly Pitre in 1993; however, since plaintiff's lease commission agreement encompassed lease assignments, commissions were due him on this lease during the assignment period.

      . A new lease became effective on June 1, 1994 changing the tenant from the Nicauds to Jacqueline Doran, Janet Pendergast, and John Pendergast. Plaintiff claimed commissions remained unpaid and due for the month of June, 1994 and thereafter. Since the tenant changed beginning in that month, plaintiff is entitled to no further commission on this lease. We note that prior to the signing of the lease by Ms. Doran and the Pendergasts, the original lease was assigned to them, along with George Doran in 1993; however, plaintiff does not assert that he failed to receive commissions during the assignment period.

      .In the original lease, the tenant leased the premises located at 12688 Perkins Road. Effective May 1, 1998, the location of the leased premises was changed to 12674 Perkins Road. When the leased premises changed, plaintiff was no longer entitled to a commission under his agreement with the landlord, and since plaintiff did not claim the landlord had failed to pay any commissions prior to May 1, 1998, plaintiff is not entitled to any further commission on this lease.


author: «JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Paul C. LOKEY.
    No. 02-KA-1087.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Rehearing Denied March 31, 2003.
    Holli Herrle-Castillo, Marrero, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Counsel of Record on Appeal, Alan D. Alario, II, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   «JAMES L. CANNELLA, Judge.

The Defendant, Paul C. Lokey, appeals from the sentence after conviction of one count of driving while intoxicated (DWI), fourth offense. We conditionally affirm the conviction, vacate the sentence and remand for evidentiary hearing and resen-tencing, if appropriate.

The Defendant was charged on October 4, 2001 with one count of DWI, fourth offense, in violation of La.R.S. 14:98(E) which allegedly occurred on April 16, 2001. He pled not guilty and after a bench trial was found guilty. The Defendant was sentenced on April 1, 2002 to ten years imprisonment at hard labor.

Officer Nicholas Cottone of the Westwe-go Police Department testified that in response to a call on April 16, 2001, at approximately 9:07 p.m., he was traveling eastbound on Fourth Street in Westwego. The Defendant’s vehicle was traveling westbound on Fourth Street. The officer started to turn right when he preached the traffic signal at Avenue A. Before he could make the turn, the Defendant turned left in front of him onto Avenue A, almost striking the officer’s marked police unit. The Defendant continued traveling on Avenue A and almost struck a utility pole.

Officer Cottone followed the Defendant for three-quarters of a mile, activated his overhead lights, and stopped him at Avenue A and Tenth Street. Officer Cottone testified that when the Defendant got out of the vehicle, he had difficulty standing, smelled heavily of alcohol, and his speech was extremely slurred. Although Officer Cottone is qualified to administer the state field sobriety test, he was not qualified to administer the intoxilyzer test. Following procedure, Officer Cottone requested a Louisiana State trooper to come to the scene.

Trooper Donald Hebert testified that he arrived at the scene and met with Officer Cottone. Trooper Hebert observed that the Defendant had urinated on himself. He detected a strong odor of alcoholic on the Defendant’s breath and noticed that the Defendant’s speech was very slurred. After agreeing to submit to a standardized field sobriety test, the Defendant failed the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. As a result, the Defendant was arrested, advised of his rights, handcuffed, placed in the back of Trooper Hebert’s unit, and brought to the correctional center.

At the correctional center, the Defendant refused to sign the intoxilyzer rights form, take the intoxilyzer test, or answer questions related to possible medical conditions that would explain his conduct. Trooper Hebert testified that the intoxilyzer machine was working that day.

Roy Vinnett (Vinnett), the Defendant’s next door neighbor, testified that he lived on Avenue A near Tenth Street on April 16, 2001. Although he knew the Defendant from the neighborhood, he did not know the Defendant personally. On the date of the arrest, Vinnett was standing outside his home, talking to a |4Westwego police officer, when he noticed the Defendant drive by his house. At the time, Vinnett was making a report about a problem with a drug dealer who had teenagers selling crack cocaine on the corner near his home. According to Vinnett, after the Defendant passed, he stopped at the stop sign, went down three houses, turned around, and came back. Vinnett did not observe anyone following the Defendant, but saw the police officer approach the Defendant when the Defendant stopped.

Officer Cottone, dispatched to the area because of a report of gunshots being fired, did not recall Vinnett making a report but, when he arrived, numerous other police officers were already there. Officer Cottone followed the Defendant because of his driving maneuvers.

On appeal, the Defendant does not challenge his conviction, but only claims that his ten-year sentence is illegal based on the 2001 amendment to La.R.S. 14:98E(l)(a) and State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526. He is correct. The State also agrees that the sentence is illegal.

The statute was amended by Act 1163, of 2001, which was effective August 15, 2001. Prior to the amendment, the penalty for a fourth DWI offender was ten to thirty years imprisonment at hard labor, at least two years of which were without benefit of suspension of sentence, parole, or probation. See: Pre-amendment La.R.S. 14:98E(1) and (3)(a). A fourth DWI offender receiving suspension of sentence and probation on the remaining portion of his sentence was required to participate in court-approved driver-improvement and anti-substance-abuse programs.

The amendment in 2001 did not change the penalty ranges, but reduced the mandatory jail time for fourth DWI offenders to 60 days. Under the amended provisions, the trial court is required to suspend the remaining portions of the sentence and order the offender to undergo an evaluation to determine the nature Land extent of his substance abuse disorder. R.S. 14:98E(1). This evaluation entails in-patient treatment at a facility approved by the Department of Corrections for not less than four weeks and not more than six weeks. Id. After the offender successfully completes the in-patient substance abuse treatment, he shall be sentenced to home incarceration for not less than one and not more than five years in accordance with R.S.14:98E(3), and shall be fined five thousand dollars. R.S. 14:98E(l)(d).

In Mayeux, the Louisiana Supreme Court determined that the amendment was to be applied to convictions obtained after the effective date. The Supreme Court’s decision was based on the legislative intent of the statute in favoring treatment over incarceration, the words “upon conviction” in the statute, and the provision allowing home incarceration for those previously convicted. Mayeux, 01-3195 at p. 6, 820 So.2d at 530.

The Defendant committed the offense on April 16, 2001, the law was effective August 15, 2001 and he was convicted on January 23, 2002. Because of this error, we will vacate the sentence and remand for resentencing in accordance with amended La.R.S. 14:98 and Mayeux.

PATENT ERROR

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198. The review reveals several patent errors.

First, the record fails to reflect that the Defendant waived his right to a jury trial. La.C.Cr.P. art. 782 and La. Const, art. I, § 17 provide that a defendant is entitled to a trial by jury of six persons when the sentence is with or without hard labor. The sentence for one count of DWI, fourth offense is with or without hard labor. La.R.S. 14:98(E). Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. La. C.Cr.P. art. | fi780A. Waiver of this right is never presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976).

Where no valid jury waiver is found in the record, Louisiana appellate courts have traditionally set aside the defendant’s conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5th Cir.1987), writ denied, 523 So.2d 1335 (La.1988). However, the Louisiana Supreme Court, in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963-964, set out a procedure by which the case is initially remanded to the trial court for an eviden-tiary hearing on the question of whether the defendant validly waived the right to a jury trial. The Nanlal Court held that, if the evidence shows that the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. The Supreme Court reserved the defendant’s right to appeal any adverse ruling of the waiver issue. Id. This Court has followed the procedure set out in Nanlal. See: State v. Hampton, 00-1002, p. 12 (La.App. 5th Cir.1/23/01), 782 So.2d 1045, 1054; State v. Vortisch, 00-67, p. 9 (La.App. 5th Cir.5/30/00), 763 So.2d 765, 770; State v. Pierre, 98-1123, p. 8 (La.App. 5th Cir.4/14/99), 733 So.2d 674, 679.

Based on the foregoing, we will remand for an evidentiary hearing on whether the Defendant validly waived his right to a jury trial. If he did not, the trial judge must set aside the conviction and sentence. If he did, then the trial judge should rule that he did and this Court affirms the conviction and enhanced sentence. In this last instance, we reserve the Defendant’s right to appeal the adverse ruling of the waiver issued.

Accordingly, we hereby conditionally affirm the Defendant’s conviction and we remand for an evidentiary hearing on the question of whether the Defendant in this case validly waived her right to a jury trial and for further proceedings, Unnecessary, pursuant to Nanlal. The trial judge is ordered to resentence the Defendant in the event that a new trial is not necessary, in accordance with La.R.S. 14:98, as amended on August 15, 2001, and State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526

CONVICTION CONDITIONALLY AFFIRMED; SENTENCE VACATED AND EVIDENTIARY HEARING ORDERED, REMANDED FOR RESEN-TENCING, IF APPROPRIATE.

      . The Defendant filed various pro se motions following his conviction and sentence, which were denied. His motion for appeal was granted on July 1, 2002 and counsel from the Louisiana Appellate Project was appointed to represent him. Defense counsel made an oral motion to correct illegal sentence. The motion was denied and on July 19, 2002 the Defendant filed an application for post-conviction relief seeking reinstatement of his right to appeal. The motion was granted on August 12, 2002. On August 16, 2002, the Defendant filed a pro se motion to correct illegal sentence that was again denied on August 29, 2002 for the reason that the appeal was pending.

      . When the trial judge sentenced the Defendant, he failed to advise him of the two year prescriptive period for post-conviction relief under La.C.Cr.P. art. 930.8, which he can remedy in the resentencing.