author: |,LEON A. CANNIZZARO, JR., Judge.

text:
    Myra HARRIS v. FEDERAL FIBRE MILLS CONDOMINIUM ASSOCIATION, INC.
    No. 2002-CA-1715.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.
    Writ Denied June 6, 2003.

      Robert M. Rosenberg, Polack, Rosenberg & Endom, L.L.P, New Orleans, LA, for PlaintiffiAppellant.
    Thomas G. Buck, Blue Williams, L.L.P., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   |,LEON A. CANNIZZARO, JR., Judge.

The plaintiff, Myra Harris, appeals from a trial court judgment dismissing her suit on an exception of no cause of action.

FACTS AND PROCEDURAL HISTORY

Harris is the owner and resident of condominium Unit 429 in the Federal Fibre Mills building located at 1107 South Peters Street in New Orleans. Janice Padwa, the owner of condominium Unit 329, which is located directly below Harris’ unit, leased her unit in September 2001. From September 24, 2001 through January 15, 2002, Harris sent seventeen letters to the Board of Directors (“Board”) of the Federal Fi-bre Mills Condominium Association, Inc. (“Condominium Association”), complaining of unreasonable noises and other disturbances that emanated from Unit 829, which interfered with the use and enjoyment of her unit. She claimed that the tenant in Unit 329 had played the television and stereo at full volume between 12:00 midnight and 6:00 a.m.; had hosted several loud parties that lasted until 6:00 a.m.; had wailed and screamed on numerous occasions in the early [ ¡>morning hours; and had banged routinely on the ceiling and pipes of Unit 329. Harris also reported the disturbances to the budding’s security and the New Orleans Police Department. Dissatisfied with the response to her complaints, she filed suit against the Condominium Association on March 26, 2002.

Harris avers that the Condominium Association is the governing body of the unit owners at the Federal Fibre Mills Condominium and is responsible for the administration, operation, and enforcement of all covenants and restrictions applicable to the condominium units located on the property. She further avers that pursuant to the provisions of the Declaration of Condominium Regime (“Declaration”), the Board has promulgated, adopted, and disseminated rules and regulations pertaining to all condominium units. Specifically, Harris’ petition states, in part:

V.
Janice L. Padwa (“Padwa”) is the owner of Unit No. 329 located in the Property (“Owner”). On or about September, 2002[sic], Owner leased Unit No. 329. In accordance with Section 36.25 of the Declaration and Paragraph 18 of the Rules, all unit leases must, among other things, be in writing and must contain a clause requiring the lessee to comply with the Rules and the terms contained in the Declaration and failure to do so shall constitute a default under the lease.
VI.
Section 36.7 of the Declaration states: “No Unit Owner or Occupant shall play, or permit to be played, any musical instrument, or permit to be operated a phonograph or radio loudspeaker in any Unit or on the Property between the hours of 11:00 o’clock P.M. [sic] and the following 9:00 a.m., if the same may tend to disturb or annoy other Occupants of the Buildings nor shall any Occupant or Unit owner commit or permit any | ¡¡nuisance, or immoral or illegal act in his Unit or on the Property.”
VII.
Section 36.9 of the Declaration states: “No noxious or offensive activity shall be carried on in, on or about any Unit or the Common Elements;”. Section 36.20 of the Declaration states, in part: “No immoral, improper, offensive or unlawful use shall be made of the Property ...” and Article VIII, Section 1 of the Association’s By-Laws provides: “No unlawful, noxious or offensive activities shall be carried on in any Unit or elsewhere on the Property, nor shall anything by [sic] done therein or thereon which, in the judgment of the Board, constitutes a nuisance, causes unreasonable noise or disturbance to others, or unreasonably interferes with other Unit Owners’ use of their Units and the Common Elements.” Identical language may be found in Paragraph 1 of the Rules.
VIII.
Section 36.17 of the Declaration states: “No nuisances shall be allowed upon the Property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Property by its residents;”
IX.
Section 36.23 of the Declaration states, in part: “No Unit Owner shall ... operate any machines, appliances, accessories or equipment in such manner as to cause, in the sole judgment of the Board, an unreasonable disturbance to others, ... ”.
X.
Section 37 of the Declaration confers upon the Association the right to enforce the foregoing restrictions (See also Section 8, subparagraph i of the By-Laws). Paragraph 23 of the Rules authorizes the Board, “... after notice and an opportunity to be heard, ... ” to “... levy reasonable fines for violations of the Declaration, by-laws, and Rules and Regulations of the Association.”

pHarris alleges that the Board instructed the building’s security to ignore her complaints and took no action to remedy the violations by Padwa’s lessee until January 15, 2002, when it sent a letter to Padwa and her lessee informing them that it would enforce its rules. Last, she alleges that:

[T]he Board knowingly and deliberately, through its acts and/or omissions, directly or indirectly, condoned the illegal and violative actions of the Owner’s lessee and knowingly and deliberately ignored the resultant egregious consequences to Plaintiff. Plaintiff avers that this constitutes an intentional infliction of emotional distress, a breach of contract, a nuisance and actions in consummate bad faith causing general and special damages to Plaintiff, including attorney’s fees and all costs of these proceedings, all of which shall be proven at trial.

APPLICABLE LAW

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords the plaintiff a remedy on the facts alleged in the pleading. Jackson v. State ex rel. Dept. of Corrections, 2000-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C. Pr. Art. 931. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff legally is entitled to the relief sought. Hall v. Zen Noh Grain Corp., 2001-0324, p. 2 (La.4/27/01), 787 So.2d 280.

| Jn reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court conducts a de novo analysis because the exception raises a question of law. City of New Orleans v. Board of Commissioners of the Orleans Levee Dist., 93-0690, p. 29 (La.7/5/94), 640 So.2d 237, 253. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. See Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).

DISCUSSION

Applying the aforementioned principles to the instant case, Harris’ petition fails to state a cause of action for which the law affords her a remedy. As stated in paragraph X of the petition, section 37 of the Declaration merely confers upon the Condominium Association the right to enforce its rules, regulations and restrictions, while paragraph 23 of the rules authorizes the Board to levy reasonable fines for violations thereof. As such, the Condominium Association has no duty to enforce rules, regulations, or restrictions to ensure unit owners the peaceful possession of their units. Furthermore, the petition sets forth no statute or theory of law that imposes a duty on the Condominium Association to protect unit owners from disturbances created by third parties. Interestingly, Harris named neither Padwa nor her lessee, the persons alleged to have violated the Condominium Association’s rules and regulations, as a defendant in the suit.

| fiIn her appeal brief, Harris cites La. R.S. 9:1121.101 et seq., the Louisiana Condominium Act, in support of her argument that she has a cause of action against the Condominium Association for violations of its rules and regulations by Padwa and her lessee. La. R.S. 9:1123.102, which sets forth the powers of the unit owners’ association, is strictly permissive. Nothing in the statute mandates the Condominium Association to enforce rules and regulations to protect unit owners from disturbances created by other unit owners and/ or their lessees, tenants, or occupants. As to the contents of a condominium declaration, La. R.S. 9:1122.105 |7B(7) provides that the condominium declaration may contain use restrictions. Similarly, La. R.S. 9:1123.106 C, relative to a condominium association’s bylaws, provides that the bylaws may include provisions deemed necessary or desirable for the administration of the condominium property. Thus, the Condominium Association was not obligated to adopt use restrictions in its Declaration or to implement measures in its bylaws to protect unit owners from disturbances created by other unit owners, tenants, lessees, or occupants.

Harris also cites the Louisiana Supreme Court’s decision in Mary v. Lupin Foundation, 609 So.2d 184 (La.1992), for the proposition that La. R.S. 12:226 A of the Louisiana Nonprofit Corporation Law provides a unit owner a cause of action against a condominium association for a breach of its fiduciary duty.

The Lupin case involved a derivative action brought by Dr. Charles Mary, a member and director of the Lupin Foundation, individually and on behalf of the foundation against three other directors (inside defendants) for allegedly breaching their fiduciary duties by arranging an undervalued sale of the St. Charles General Hospital in exchange for an agreement by the purchaser to acquire three other companies owned by the inside defendants. The Lupin Foundation, a nonprofit corporation, owned and operated the St. Charles General Hospital. The issue before the Court was whether the plaintiff had a cause of action against the three Rinside defendants premised upon a breach of fiduciary duties set forth in La. R.S. 12:226 A.

No Louisiana court had ever interpreted this statute; the Supreme Court referred to cases under the provisions of the Louisiana Business Corporation Law, La. R.S. 12:1 et seq., for guidance in its interpretation. In Levy v. Billeaud, 443 So.2d 539 (La.1983), the Supreme Court held a corporate liquidator stands in a fiduciary relationship with the corporation and its shareholders and must adhere to the fiduciary duty standard applicable to officers and directors of business corporations set forth in La. R.S. 12:91. The Court also noted that lower courts recognized a cause of action arising under La. R.S. 12:91 for the failure of a business corporation’s directors to comply with their fiduciary duties in Robinson v. Snell’s Limbs and Braces, 538 So.2d 1045 (La.App. 4 Cir.1989) and Dunbar v. Williams, 554 So.2d 56 (La.App. 4 Cir.1988). The jurisprudence, the Court opined, provided a persuasive indication that a cause of action may be premised on a director’s breach of the standard of conduct set forth in La. R.S. 12:226. It further observed that allowing a cause of action for such breaches comports with the general intent of La. R.S. 12:226 A to prohibit all types of fiduciary breaches by officers and directors. Thus, the Court concluded a cause of action may be premised on a violation of the standard of conduct set forth in La. R.S. 12:226 A.

Harris’ reliance on the Lupin case is misplaced. In Lupin, Dr. Mary clearly alleged that the inside defendants, who constituted a majority of the board of directors of the corporation, devised and carried out a scheme to sell the hospital | flfor $5 million less than its actual value in order to sell to the same purchaser three essentially worthless corporations, which they owned, at the highly inflated price of $5 million, the amount corresponding to the undervaluation in the sale of the hospital. The plaintiff alleged the inside defendants’ self-dealing scheme involved negligent and intentional misrepresentations and omissions, failure to act in good faith, and other unlawful conduct all of which constituted a breach of their fiduciary duties to the nonprofit corporation.

In the instant case, Harris fails to allege any act or omission on the part of the Condominium Association or the Board that can be interpreted as a breach of a fiduciary duty. As previously stated, the Condominium Association had no duty to adopt and/or enforce any use restrictions, rules, or regulations to protect unit owners from disturbances created by third parties. The only factual allegation of an act or omission on the part of the Condominium Association and/or the Board is in paragraph XII of the petition, which states, “[o]n information and belief, [the building’s] security was subsequently instructed by the Board in October 2001, not to witness plaintiffs noise/disturbance reports any longer.” Even accepting this allegation as true, the Board’s action cannot be construed as a breach of a fiduciary duty or a failure to act in good faith.

Harris’ argument that her petition states a cause of action for the intentional infliction of emotional distress is without merit. To recover damages under this theory, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; hnand (3) that the defendant desired to inflict severe emotional distress or knew that severe emotioqal distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991). The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. King v. Phelps Dunbar L.L.P., 98-1805 (La.6/4/99), 743 So.2d 181. Harris’ petition contains no factual allegations on the part of the Condominium Association and/or the Board sufficient to meet these standards.

Likewise, Harris’ claim that her petition states a cause of action for nuisance is without merit. The petition clearly alleges that Padwa and her lessee created the nuisance, not the Condominium Association.

Finally, Harris’ petition does not state a cause of action for breach of contract as it fails to allege that any contract existed between her and the Condominium Association.

CONCLUSION

Accordingly, for the above reasons, the judgment of the trial court dismissing Harris’ suit is affirmed.

AFFIRMED.

      . La. R.S. 9:1123.102 provides:
      Subject to the provisions of the declaration, the association, even if unincorporated, may:
      (1) Adopt and amend bylaws and rules and regulations.
      (2) Adopt and amend budgets for revenues, expenditures, and reserves and make and collect assessments for common expenses from unit owners.
      (3) Hire and terminate managing agents and other employees, agents, and independent contractors.
      (4) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the condominium.
      (5) Make contracts and incur liabilities.
      (6) Regulate the use, maintenance, repair, replacement, and modification of common elements.
      (7) Cause additional improvements to be made as a part of the common elements.
      (8) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property.
      (9) Grant easements, leases, licenses, and concessions, through or over the common elements.
      (10) Impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements.
      (11) Impose charges for later payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association and, when the violation is a failure to pay for services, interrupt those services until the violation has ceased.
      (12) Impose reasonable charges for the preparation and recordation of amend-merits to the declaration, resale, certificates required by Section 1124.107, or statements of unpaid assessments.
      (13) Provide for the indemnification of its officers and executive board and maintain directors' and officers' liability insurance.
      (14) Exercise any other powers conferred by the declaration or bylaws.
      (15) Exercise all other powers that may be exercised in this state by legal entities of the same type as the association, and
      (16) Exercise any other powers necessary and proper for the governance and operation of the association.

      . La. R.S. 12:226 A provides:
      Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its members and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions.

      . La. R.S. 12:201 et seq.


source: Caselaw Access Project

author: JjLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Carl L. COMENA.
    No. 2002-KA-1562.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Harry F. Conniek, District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    John M. Standridge, Meraux, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

STATEMENT OF THE CASE

On September 27, 2001, the State of Louisiana filed a bill of information charging the defendant, Carl Comena, with possession of four hundred or more grams of cocaine (count one), possession with intent to distribute cocaine (count two), and possession of marijuana third offense (count three). Following a motion hearing, the trial court found probable cause to arrest the defendant for the above stated charges and denied the motion to suppress the evidence.

On July 16, 2002, the State amended count one of the bill of information to charge the defendant with possession of twenty-eight to two hundred grams of cocaine. The defendant waived a reading of the bill of information and pled guilty to all charges under State v. Crosby, 338 So.2d 584 (La.1976) and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court sentenced the defendant to fifteen years in the custody of the Department of Corrections on each count. The defendant appealed.

\9FACTS

On March 11, 2000, Detective Wayne Jacque received a telephone call from a concerned citizen that narcotics activity was occurring in Room 313 of the Comfort Suite Hotel on Bullard Avenue. The citizen related that a black male and a female were occupying the hotel room.

Several officers went to the hotel where Detective Demetrius Jackson established surveillance from another hotel room. Approximately thirty minutes into the surveillance, Detective Jackson observed the defendant exit the hotel room and enter a nearby elevator. The defendant descended to the first floor and exited the front door of the hotel. At this point, Detective Jackson abandoned his position and relocated to Room 313 where he smelled marijuana emanating from the room; he alerted Detective Jacque.

Detective Jacque and the other officers stopped the defendant as he was entering a vehicle in the hotel parking lot. Detective Jacque advised the defendant of his rights and the reason for the stop. While talking to him, Detective Jacque detected the odor of marijuana on his breath. At Detective Jacque’s request, the defendant gave the officers permission to search the room and signed a consent form.

Upon entering Room 313, the officers encountered a female and observed a plastic bag containing marijuana. They also found documents in the name of Carl Comena in the room and subsequently obtained documentation from the hotel staff that the defendant had reserved the room from March 9, 2000 through March 12, | ;;2000. The search further uncovered approximately one-half of a kilogram of cocaine in a drawer and more than one hundred dollars in U.S. currency.

ERRORS PATENT

A review of the record shows two errors patent with regard to the defendant’s sentences. The defendant was convicted of possession of cocaine in an amount of twenty-eight grams or more, but less than two hundred grams, a violation of La. R.S. 40:967 C. The version of La. R.S. 40:967 F(l)(a) that was in effect at the time of the offense provided for a sentence upon conviction of imprisonment at hard labor for not less than ten years, nor more than sixty years, and a mandatory fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars. The trial court’s failure to impose a mandatory fine on a defendant sentenced under this provision constitutes an illegally lenient sentence. An illegally lenient sentence can be noticed by the appellate court sua sponte. State v. Williams, 2000-1726 (La.11/28/01), 800 So.2d 790.

In State v. Major, 2002-0133, p. 1 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, this Court considered the issue of an illegally lenient sentence resulting from the trial court’s failure to impose a fine as required by statute, stating:

Although we recognize that State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, arguably calls into question the jurisprudential rule against correcting a patent sentencing error favorable to the defendant when the state fails to appeal, we read the holding in Williams as applying only to sentencing errors subject to automatic correction under La. R.S. 15:301.1(A). Our holding is consistent with that espoused by the dissent in State v. Paoli, 2001-1733, p. 1 (La.App. 1 Cir. 4/11/02), 818 So.2d 795, 800-01 (Guidry, J., dissenting); as Guidry, joined by Judge Pettigrew, aptly stated:
Although State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, arguably cast some doubt upon the reasoning in State v. Fraser, 484 So.2d 122 (La.1986), it does not overrule Fraser; and I do not interpret Williams as applicable to sentencing errors of a type different than those subject to automatic correction under La. R.S. 15:301.1.
In this case, the patent sentencing error — a mandatory fine — falls under La. R.S. 15:301.1(B). See Williams, 2000-1725, pp. 10-11, 800 So.2d at 799 (citing, by way of example, failure to impose mandatory fine). La. R.S. 15:301.1(B) provides that an amendment of a sentence to conform with an applicable statutory provision may be made on the trial court’s own motion or if the district attorney seeks such an amendment; however, La. R.S. 15:301.1(D) provides that such action must be taken within one hundred and eighty days of the initial sentencing. Construing those provisions together, the appellate court in State v. Esteen, 2001-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, declined to remand to correct an illegally lenient sentence resulting from failure to impose a mandatory fíne given the state’s failure to object before La. R.S. 15:301.1(D)’s one-hundred eighty day period elapsed. We likewise conclude, that given the state’s failure to seek relief in either the trial court or this court, it is inappropriate to remand for correction of the illegally lenient sentence resulting from the failure to impose a fine.

Id., 2002-0133, pp. 6-7, 829 So.2d at 631.

In the instant case, the State made no objection in the trial court to the illegally lenient sentence imposed by the judge and it failed to raise the issue on appeal. Therefore, this Court will not remand this case to the trial court for imposition of the fine.

The defendant was also convicted of possession with intent to distribute cocaine (count two). The version of La. R.S. 40:967(B) that was in effect at the time the crime was committed required that a defendant serve a mandatory minimum term of five years without eligibility for probation, parole, or suspension of sentence. The sentence imposed by the trial court did not restrict the probation, parole, or suspension of sentence eligibility of the first five years of the defendant’s sentence. In Williams, supra, the Louisiana Supreme Court acknowledged that |fiparagraph A of La. R.S. 15:301.1 addresses those instances where sentences contain statutory restrictions on parole, probation, or suspension of sentence, stating:

In instances where these restrictions are not recited at sentencing, [La. R.S.] 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.
Initially, we find that the time limitation recognized in Paragraph D of [La. R.S.] 15:301.1 is inapplicable to Paragraph A; to rule otherwise would eviscerate the intent of this element of the legislative enactment. To the extent that Paragraph C of [La.R.S.] 15:301.1 may be applicable to restricted criminal sentences to be served without benefit of probation, parole, or suspension of sentence, the thrust of Paragraph A of [La. R.S.] 15:301.1, or any one or a combination of those restrictions, we likewise find Paragraph D of [La. R.S.] 15:301.1 inapplicable.... Simply stated, the provisions of Paragraphs A and C do not call for amendment as no correction is required. Rather, that which was legislatively mandated at the time of sentencing is recognized as having existed statutorily without pronouncement being necessary.

Id., at 2000-1725, pp. 10, 14-15, 800 So.2d at 799, 801.

As previously noted, the trial court did not restrict the probation, parole, or suspension of sentence eligibility of the first five years of the defendant’s sentence on count two as mandated by the applicable version of La. R.S. 40:967(B). In view of the holding in Williams, the correction of a sentence as mandated by La. R.S. 15:301.1(A) “self-activates” and a remand of the case for the amendment of the defendant’s sentence is unnecessary. Thus, this Court recognizes that the first | ¿five years of the defendant’s sentence on count two is to be served without the benefit of probation, parole, or suspension of sentence.

The errors patent review also reflects that the defendant was never arraigned. However, by pleading guilty, the defendant waived all non-jurisdictional defects in the proceedings prior to entry of the guilty plea and precludes review of such defects either by appeal or by post-conviction remedy. State v. Jenkins, 419 So.2d 463 (La.1982).

ASSIGNMENT OF ERROR

The defendant alleges that the trial court erred in denying the motion to suppress the evidence. Specifically, he argues that the police lacked reasonable suspicion to stop him and, therefore, the subsequent consent to search was invalid.

La.C.Cr.P. art. 215.1(A) allows law enforcement officers to conduct an investigatory stop without a warrant or probable cause. The officer need only have a reasonable suspicion that the person “has been, is, or is about to be engaged in criminal conduct.” State v. Belton, 441 So.2d 1195, 1198 (La.1983).

While “reasonable suspicion” is something less than the probable cause needed for an arrest, it must be based upon particular articulable facts and circumstances known to the officer at the time the individual is approached. State v. Smith, 94-1502, p. 4 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078, 1082. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. 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. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1232. If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

When a search is made with consent, the State must prove the consent was freely and voluntarily given, as shown by the facts and circumstances of the individual case. State v. Wilson, 467 So.2d 503 (La.1985). If consent to search is obtained after an illegal detention or entry, consent is valid only if it was the product of free will and not the result of exploitation of the previous illegality. State v. Owen, 453 So.2d 1202, (La.1984).

The detection of marijuana by means of smell does not constitute a search, and no reasonable expectation of privacy exists from lawfully positioned officers with inquisitive nostrils. See State v. Coleman, 412 So.2d 532, 535, n. 4 (La.1982).

In State v. Traylor, 31-378 (La.App. 2 Cir. 12/9/98), 723 So.2d 497, while patrolling a college campus, officers smelled marijuana coming from a parked car in which the defendant was sitting and which several other men were standing near. The officers investigated and again noticed the smell of marijuana coming from the car. The officers obtained consent to search the car, and found what they believed to be marijuana residue on the floorboard. The officers directed the defendant and the others to place their hands on the car and empty their pockets. After the defendant acted suspiciously by reaching for his left leg, the officers searched him for weapons and discovered cocaine. In affirming the trial court’s finding of probable cause, the Second Circuit held that “the odor of marijuana lsemanating from the car allowed the officers to reasonably suspect that [the defendant] was smoking, and thus possessing, marijuana” and that the defendant’s suspicious actions justified the weapons search. State v. Traylor, 31-378, p. 3 (La.App. 2 Cir. 12/9/98), 723 So.2d 497, 499.

In State v. Wyatt, 99-2221 (La.App. 4 Cir. 9/27/00) 775 So.2d 481, a vehicle in which the defendant was a passenger was stopped for a motor vehicle violation. The defendant opened his door when the officer approached, and the officer immediately smelled the strong odor of marijuana coming from the car and observed the defendant trying to hide something with his hand. The defendant was immediately removed from the vehicle and handcuffed. As in Traylor, this Court found that “the officer had probable cause to believe the defendant was smoking marijuana and therefore had probable cause to arrest him” and to search the car.

In this case, moments after the defendant exited Room 313, Detective Jackson smelled marijuana emanating from it and corroborated the anonymous tip regarding narcotics activity at that location. At that point, he had probable cause to believe that marijuana was in the room and reasonable suspicion to believe that the defendant had been engaged in criminal activity. In light of these facts, the officers had the requisite “reasonable suspicion” to conduct an investigatory stop of the defendant. Once Detective Jacque engaged the defendant and detected the odor of marijuana on his breath, he had probable cause to believe that the defendant had been smoking and possessing marijuana in the hotel room. Accordingly, the defendant’s claim that the consent to search was obtained after an illegal detention is without merit.

Moreover, nothing in the record indicates that the defendant’s consent was not free and voluntary. The signed consent form clearly states that the defendant 19could refuse consent and that he had been advised of his constitutional rights per Miranda. Finally, at the motion to suppress hearing, the defense offered no evidence that the defendant had been coerced into giving his consent. The assignment of error is without merit.

CONCLUSION

Accordingly, for the reasons stated herein, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Count two of the bill of information arose from facts that occurred on June 14, 2000, while counts one and three arose from activities that occurred on March 11, 2000. The defendant has not alleged any assignment of error with respect to count two. Thus, the facts giving rise to count two are not relevant to this appeal.


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

text:
    STATE of Louisiana v. Javan MARSHALL and Alfred D. Williams.
    No. 2002-KA-1453.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Harry F. Connick, District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Javan Mar-shall.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, Kevin B. Boshea, New Orleans, LA, for Alfred D. Williams.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge TERRI F. LOVE and Judge DAVID S. GORBATY).
   |-WILLIAM H. BYRNES, III, Chief Judge.

STATEMENT OF CASE

The State indicted Javan Marshall, Alfred D. Williams and Albert Odds on July 26, 2001, with five counts each of attempted first-degree murder, relative to a shootout between the defendants and five New Orleans Police Officers, violations of La. R.S. 14:(27)30. The sixth count of the indictment additionally charged Javan Marshall with being a felon in possession of a firearm, a violation of La. R.S. 14:95.1.

Marshall and Williams pled not guilty at their arraignments on July 31, 2001. On March 6, 2002, Marshall and Williams proceeded to a joint trial on the five counts of attempted first-degree murder. The State nolle prossed counts two and six against Marshall on May 14, 2002. On March 7, 2002, the jury found Marshall guilty of attempted first-degree murder on count three, and guilty of attempted manslaughter on count four. The jury found Williams guilty of attempted first-degree murder on counts one, three and five, and guilty of attempted manslaughter on counts two and four.

ls>On May 7, 2002, the court sentenced Williams to twenty years at hard labor on each of counts two and four, with credit for time served, sentences to run concurrently, and to fifty years at hard labor without benefit of parole, probation or suspension of sentence on each of counts one, three and five, sentences to run concurrently, and consecutively to the sentences on counts two and four. The court denied Williams’ motion for reconsideration of sentence but granted his motion for appeal.

On May 14, 2002, the court sentenced Marshall on count three to fifty years at hard labor, without benefit of parole, probation or suspension of sentence, with credit for time served, and on count four to twenty years at hard labor, with credit for time served, sentences to run consecutively. The court denied Marshall’s motions for post verdict judgment of acquittal and to reconsider sentence but granted his motion for appeal. Also, on that date, the State multiple billed Marshall.

On June 18, 2002, after a full hearing, the judge adjudicated Marshall a second felony offender, vacated his sentence on count three, and sentenced him to fifty years at hard labor, without benefit of parole, probation or suspension of sentence, with credit for time served, sentence to run consecutively to the sentence on count four.

Both defendants have appealed their convictions and sentences. For the reasons set forth herein, we affirm the sentences and convictions of both defendants.

,| «STATEMENT OF FACT

On the night of May 30, 2001, the NOPD was looking for Alfred Williams pursuant to an arrest warrant. The police received information that Williams was riding in a Rollins Cab in the vicinity of Foy Street and Elysian Fields Avenue. Officers Michael Keating and John Barbetti were in the area, and ordered to affect a traffic stop of the cab.

Officers Keating and Barbetti testified that they observed a cab that met the description near the Rite Aid Drug Store on Elysian Fields, and activated the lights on their marked unit. They parked the front end of their unit facing the front of the cab, and exited their vehicle. As Officer Keating approached the driver’s side of the cab, he noticed that the driver was holding a gun, and ordered him to drop it. Officer Keating cautioned Officer Barbetti, who by that time was approaching the passenger side of the cab. The front seat passenger fired upon Officer Barbetti, who returned fire. Then, the driver and the rear seat passenger shot at Officer Keat-ing, who fired back twice. As the shooting started, Officer Dan Anderson arrived on the scene, blocking the rear of the cab with his vehicle. The cab backed into Officer Anderson’s vehicle, and then pulled forward, knocking Officer Keating to the ground. The suspects fled in the cab toward the river on Elysian Fields with Officer Anderson in pursuit, followed by the unit manned by Sgt. Bryan Lampard and Officer Matthew McCleary.

Ms. Diane Banks, an employee of the Rite Aid store on Foy Street and Elysian Fields Avenue, testified that on the night of the incident she was manning the cash register in the front of the store, near the door. From her vantage point, Ms. Banks saw what she described in her original statement as a dark colored car and a police vehicle drive up to the front of the store from opposite directions. Ms. |4Banks testified at trial that the car, a yellow cab, stopped, and she saw an arm with a gun extend from the front passenger seat of the cab and begin shooting at the police. As the police fired back, the cab backed up, and sped from the area out of Ms. Banks’ line of vision.

Officer Dan Anderson testified that on the night of the incident, he responded to information concerning defendant Williams’ presence in the area of the Rite Aid store on Elysian Fields near Foy Street. After Officers Keating and Bar-betti stopped the cab in which Williams was riding, Officer Anderson parked his vehicle behind the cab, to thwart escape. As Officers Keating and Barbetti exited their unit, Officer Anderson saw the left front and rear doors of the cab open, and saw two suspects shooting at the police. Officers Keating and Barbetti sought cover, and exchanged gunfire with the suspects in the cab. As the shoot out began, the cab backed up, and rammed Officer Anderson’s unit, then veered forward knocking down Officer Keating. The cab fled toward the river on Elysian Fields Avenue. Officer Anderson activated his unit’s lights and siren, and pursued the speeding cab. As the chase ensued, the front seat passenger in the cab leaned out of the window, and began to shoot at Officer Anderson. When the cab passed Pleasure Street, Officer Anderson observed the front seat passenger discard a gun, which later proved to be a 9-millimeter Beretta. Officer Anderson radioed dispatch his location, details of the chase and the discarded weapon. Sgt. Bryan Lampard and Officer Matthew McCleary joined in the chase in their marked unit. The cab failed to negotiate a turn onto a side street, hit a tree, and stalled in some shrubbery. Officers Anderson, Lampard and McCleary approached the cab on foot. Defendant Williams exited the front passenger set of the cab, and began shooting at Officers Lampard and McCleary, as he fled on foot. Officers Lampard | Kand McCleary followed Williams in their vehicle, and apprehended him a few blocks from the crash site. Officer Anderson notified other units in the area of the foot pursuit of the fleeing suspects. Officer Anderson and other units arriving on the scene set up a perimeter of the area. In the meantime, the driver of the cab managed to free the cab from the shrubbery, and drive away. The cab crashed, however, into a police unit about a block away. Once other officers secured Williams and Marshall, Officer Anderson retraced the areas of the high-speed chase and initial confrontation to assist in securing the scenes for collection of the discarded weapons. The driver of the cab was transported to Charity Hospital.

Officer Matthew McCleary testified and corroborated Officer Anderson’s testimony.

Sgt. Bryan Lampard, the task force commander of the operation to apprehend defendant Williams, testified that he received information from Detective Brazley concerning Williams’ status as a wanted person and his presence in the area of Elysian Fields Avenue and Foy Street. Sgt. Lampard set up surveillance of that area. Officer Lampard and Officer Matthew McCleary were stationed at Foy and Frenchman Streets, while Officers Keating and Barbetti were across Elysian Fields at Foy Street. Officer Lampard and his team received word from undercover officers that Williams was in the area riding in a cab. Officers Lampard and McCleary drove around the block so their marked vehicle would not alert the suspect to police presence. As Officers Lampard and McCleary drove around the block, they heard gunshots. They observed Officers Keating and Barbetti engaged in a gun battle with the suspects in the cab. Officer Lampard radioed dispatch of the situation, and joined Officer Anderson in vehicular pursuit of the cab. Sgt. Lampard’s testimony of the facts of the chase corroborated Officer 1 (Anderson’s testimony. Officer Lampard added that he and Officer McCleary chased Williams by car and foot, apprehending him in a neighborhood yard. Once he secured Williams and returned to the crash scene, Officer Lampard called for medical assistance for the cab driver, who had been shot.

Detective Joseph Catalanotto investigated the incident, and recovered three semiautomatic handguns discarded by the suspects — one .9 millimeter Beretta, one High Point .45-caliber and one Smith and Wesson .10 millimeter.

Officer Theresa Meunier testified that she and her partner Officer Steve Villere participated in the perimeter search of the area into which defendant Williams fled. As she and Officer Villere stood beside their vehicle parked on Benefit Street, she observed a cab approaching at an excessive rate of speed. Unable to stop, the cab crashed into the Meunier/Villere police vehicle. Officers had to break the windows of the cab to unlock the front doors to remove the two occupants. Defendant Marshall, who was seated in the back of the cab, was arrested and handcuffed. Because the driver of the cab was unconscious, and bleeding from a gunshot wound, police called for medical assistance.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

WILLIAMS’ AND MARSHALL’S COUNSELS FIRST ASSIGNMENT OF ERROR: The trial judge’s refusal to grant them a continuance of trial denied them their sixth amendment right to counsel of their choice.

As a general proposition a person accused in a criminal trial has the right to counsel of his choice. State v. Jones, 97-2593 (La.3/4/98), 707 So.2d 975, 977, (quoting State v. Harper, 381 So.2d 468, 470-71 (La.1980)); La. Const. art. I, § 13. 17 However, this right is not absolute, and it must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 188, (quoting State v. Leggett, 363 So.2d 434, 436 (La.1978)). Thus, the Louisiana Supreme Court has repeatedly upheld the trial court’s denial of motions made on the day of trial based upon the defendant’s dissatisfaction with appointed counsel. See State v. Seiss, 428 So.2d 444, 447 (La.1983) and cases cited therein.

Although the defendants herein couch this assignment of error in terms of violation of sixth amendment rights, the thrust of their complaint is that the trial court abused its discretion by denying their motions for continuance.

As a general matter, the decision to grant or deny a motion for continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb a trial court’s determination absent a clear abuse of discretion. La.C.Cr.P. art. 712; State v. Strickland, 94-0025, p. 23 (La.11/1/96), 683 So.2d 218, 229. Whether a refusal is justified depends on the circumstances of the case. In general, a reviewing court will decline to reverse a conviction based on the denial of a motion for continuance absent a showing of specific prejudice. State v. Simpson, 403 So.2d 1214, 1216 (La.1981).

In this case, OIDP attorney Joseph Meyer and non-OIDP counsel Warren McKenna represented Marshall and Williams, respectively. Meyer and McKenna had been representing the defendants for months throughout these proceedings. Both attorneys are experienced litigators and were aware of the trial date, and both were well prepared to proceed with trial on the day appointed.

|sOn the morning of trial, defendants retained private attorney, Donald Ray Pryor, to represent them. Mr. Pryor appeared for trial after voir dire examination of jurors was well under way and asked for a continuance, explaining that he had just been retained, and needed time to prepare for trial. The trial court denied his request, but offered to allow him to sit with defense counsel and the defendants in an advisory position. Mr. Pryor accepted.

Denying the defendants’ motions for continuance, the trial court noted:

... Mr. Pryor approached the bench around 11:30 this morning and said he had just been retained last night to represent [the defendants]. I want the record to reflect that when he approached the bench to tell me this, we had been voir diring this jury for approximately one hour ... I denied you the right to take over the representation of — of both of these men ...
The motion to continue is denied. The jury, as I said, had been in the courtroom for over one hour. Voir dire examination had been going on for over one hour when Mr. Pryor happened to walk in at some time after eleven o’clock this morning. Mr. Prior had no input into the selection made by defense counsel as to whether or not they even wished to have— he had no input into whether or not he wished to have a judge or a jury trial since that was done at some time between 9:30 and 9:40 when they were asked if they were ready for trial and they were asked to — they were dressed to be presented in front of the jury so they would not be clothed in prison clothing in the presence of the jury-
Mr. Pryor approached the bench approximately sometime after eleven o’clock and told me that the defendants’ family (sic) had called him late last night and that he was being retained to represent them. Now, I haven’t received any phone calls from Mr. Pryor at any time prior to sometime after eleven o’clock this morning to tell me that he was involved in representing these [defendants] ... Now, I was home all night last night. I was here this morning at about eight o’clock. No one called this court to say — and I can overlook the fact that the — I don’t know if it’s rudeness or impoliteness or conflict of scheduling which caused you to be elsewhere and not here but at eleven o’clock when lawyers are voir diring the jury, I cannot have a lawyer walk in the courtroom and say all of a sudden, “Now, I’m going to try the case.” Again, I had not heard from |nMr. Pryor about this case until the jury was in this courtroom for over one hour being voir dired.
I also say that — with regard to Mr. Meyer and Mr. McKenna, the record should reflect this case has been in this courtroom since July the 31st of 2001, well over six months, and then after six — and it should also be noted that the trial has been continued on a number of occasions, on several occasions, by the State, by the defense, and sometimes joint motions ... Mr. McKenna has been preparing this case, as has Mr. Meyer ... for [Mr. Pryor] to come in on the morning of trial after the jury is in the courtroom while being selected and say that he is ... going to substitute for [Meyer and McKenna] ... I think is seriously questionable ... it would not be fair to either side today to continue this thing or declare a mistrial or put the thing off when you walk in like this

In this case, the trial judge did not abuse his discretion. The defendants were aware of the trial date three months in advance, yet they waited until the evening before trial to retain counsel. Moreover, retained counsel’s appearance in court on the day of trial, after proceedings were well underway, with no explanation for why he did not notify the court of his retention earlier, was an affront to the court. The trial judge weighed the inconvenience of continuance with judicial economy, considering the outstanding careers and competence of appointed counsel as well as retained counsel’s ability to try the case, in the context of the constitutional requirement to safeguard the defendants’ rights and concluded that neither the defendants’ nor the State’s interests would be served by delaying the trial. This assignment is without merit.

WILLIAMS’ PRO ASSIGNMENT OF ERROR

In this pro se assignment, defendant Williams complains he received ineffective assistance of counsel.

Generally, the issue of ineffective assistance of counsel is a matter more properly raised in an application for post-conviction relief to be filed in the trial |incourt where an evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Sparrow, 612 So.2d 191 (La.App. 4 Cir.1992). Only when the record contains the necessary evidence to evaluate the merits of the claim can it be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

The appellate court analyzes ineffective assistance of counsel claims under the two prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced him. With regard to counsel’s performance, the defendant must show that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment. As to prejudice, the defendant must show that counsel’s errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Id. 466 U.S. at 687, 104 S.Ct. at 2064. Both showings must be made before it can be found that the defendant’s conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id. A claim of ineffective assistance may be disposed of on the finding that either of the Strickland criteria has not been met. State v. James, 555 So.2d 519 (La.App. 4 Cir.1989). If the claim fails to establish either prong, the reviewing court need not address the other. Murray v. Maggio, 736 F.2d 279 (5 Cir.1984).

In this case, Williams claims he was prejudiced by his appointed counsel’s refusal to cross-examine witnesses using the list of questions propounded by his retained counsel.

The transcript of the trial indicates that Mr. Pryor proffered a list of questions he maintained appointed counsel refused to ask during cross-examination of the State’s witnesses. However, that list is not included in the record on appeal. In Williams’ pro se brief argues that the proffered questions were designed to highlight the discrepancies between the police officers’ testimony and lack of evidence linking the discarded weapons to the defendants.

Appointed defense attorneys in this case subjected all of the State’s witnesses to rigorous cross-examination. Mr. Meyer and Mr. McKenna closely scrutinized the testimony of the State’s witnesses, and highlighted contradictions for the jury. Further, defense counsel emphasized any evidence contracting the testimony of the witnesses and the lack of evidence supporting certain points of the State’s case. A review of the record amply supports the fact the defendants received effective assistance of counsel at trial. It is worth noting that although both defendants were tried on five counts of attempted first-degree murder, neither was convicted of all five counts. Marshall was convicted of just one count and Williams was found guilty as charged on only three counts of attempted first-degree murder, further testament to effective assistance of counsel. This assignment is without merit.

WILLIAMS’ AND MARSHALL’S COUNSELS’ SECOND ASSIGNMENT OF ERROR: the trial court abused its discretion in imposing maximum consecutive sentences.

Article 1, Section 20 of the Louisiana Constitution of 1974 provides in pertinent part that no law shall subject any person to cruel, excessive or unusual punishment. A sentence within the statutory limit is constitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir.1985).

|1gThe trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D). 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); State v. Quebedeaux, 424 So.2d 1009 (La.1982). If there is adequate compliance with La.C.Cr.P. art. 894.1, 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. Guajardo, 428 So.2d 468, 473 (La.1983). The goal of the statute is the articulation of the factual basis for the sentence, not rigid or mechanical compliance with its provisions; and, where the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even where there has not been full compliance with Article 894.1.

Although La.C.Cr.P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Williams, 445 So.2d 1171, 1182 (La.1984). Following their convictions, the trial judge ordered pre-sentence investigation reports on both defendants.

|13In sentencing defendant Alfred Williams on May 7, 2002, the trial judge noted:

[Williams] was found guilty by a jury of three counts of attempted first-degree murder and two counts of attempted manslaughter. It involved a high-speed chase and a shoot-out with members of the [NOPD] back in May of last year ...
... Mr. Williams has a prior arrest for the charge of aggravated rape as a juvenile. He has a conviction as a juvenile for a theft, another arrest for possession of stolen property, another arrest for aggravated assault. As an adult he has an arrest for a simple battery, he has a conviction for a Possession of Marijuana which was reduced from - a marijuana distribution charge. He has an arrest for a simple robbery, he has an arrest for a second-degree murder, which was nolle prosequied ... in 1999 because witnesses failed to appear. He has an arrest for a domestic violence charge. He has an arrest for a burglary of an inhabited dwelling. He has another arrest for simple battery. He has another arrest since this incident for a simple robbery, which was also nolle prosequied ... The court again in considering other background factors looks at his education. He is expelled from school in the 9th grade for again fighting with other students, he drops out of school in the 11th grade ... I also note in the pre-sentence investigation he is single, he is not married. He has fathered two children with two different women and he does indicate that he supports them when he can. I assume, I interpret that to mean he unfortunately does not give anything to the women who are responsible for the caring of his children.
... Due to the subject’s history of violence and his total disregard for human life the Probation Department indicates to me they believe the subject is a danger to society. I wholeheartedly agree.... They also believe that he should be sentenced to a significant period of incarceration at hard labor ...
It should be noted that this incident involved although five counts, five different members of the Police Department. It also involved three separate incidents ... Although you are a young man ... at this point you’ve sort of crossed the mountain top, you’ve crossed the line, you’ve gone to the top of the mountain with regard to criminal activity and there has been a significant amount of criminal activity in your life time and a significant history of violence ...

| uWhen the trial judge sentenced Javan Marshall on May 14, 2002, he reasoned:

... Count three, the defendant was found guilty of the charge of attempted first-degree murder; count four involves the charge of attempted manslaughter.
I do find from the presentence report he is a second felony offender. He has a prior felony conviction for the charge of car jacking. That charge was reduced — I’m sorry. I see a — June 28, 1999, he was arrested ... for car-jacking, armed robbery, and first degree robbery. The D.A.’s office billed him with a charge of car jacking. He pled guilty in February of 2000, was given a two-year DOC sentence. The sentence would have been completed — the total good time release date would have been June 28, 2001. He still would have technically been on supervision by the DOC when this offense occurred in May of 2001.
Prior to the car jacking, he has a conviction for carrying a concealed weapon, 1997, given a suspended sentence and placed on probation. He also has a simple battery conviction, unfortunately, in 1996, battery of a schoolteacher, given a one-year probated sentence. Other simple battery arrests and then the charges here, which occurred in May 2001.
The probation department concludes that he has a disregard for the lives of people in the community, police officers, as is evidence by his prior criminal history. He’s not eligible to receive any suspended sentence or be placed on probation ...
... this is an unfortunate incident. It shows a total disregard for the safety of other people in the community by the reckless and callous manner in which these acts were carried out ... you were involved in shooting in at least two incidents throughout the city, one at the initial stop when the officer goes to the car where there were shots fired at the officers, and this chase throughout the city in the Gentilly. are, again shots were fired ... you did discard the weapon prior to the car crashing. Coupling that with the fact that you’re 21 years old and you have a conviction for a car jacking, ... for carrying a gun, ... for battery on a schoolteacher, ... I do not believe that if you were given any lesser sentence ... that you will not commit other crimes ...
hsSince these incidents involve two separate and distinct incidents, two separate courses of criminal conduct, ... sentences shall be made to run consecutive ...

On appellate review of sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 959.

In this case, considering Williams’ and Marshall’s lengthy and violent criminal histories, there is no substance to their complaints of excessive sentences. The trial judge did not abuse his sentencing discretion. Moreover, because the trial court found that the defendants committed not one, but three separate crimes, occurring at different times and different places with different victims, there is no error in the order that the defendants’ sentences be served consecutively. This assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm the convictions and sentences of Javan Mar-shall and Alfred D. Williams.

CONVICTIONS AND SENTENCES AFFIRMED AS TO BOTH DEFENDANTS.

      . Albert Odds pled guilty to accessory after the fact on counts one through five, and was sentenced to four years on each count, sentences to run concurrently. Odds was the driver of the vehicle in which Williams and Marshall were passengers.


author: | .MICHAEL E. KIRBY, Judge.

text:
    Richard C. TRAHANT v. Howard A. PEREZ, Geoffrey Longenecker, XXX Insurance Company and YYY Insurance Company.
    No. 2002-CA-1414.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Jack E. Morris, Metairie, LA, for Plaintiff/Appellee.
    Geoffrey H. Longenecker, Longenecker & Associates, Ltd., Covington, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY.
   | .MICHAEL E. KIRBY, Judge.

The defendant, Geoffrey H. Longenecker, a member of the bar, appeals the Judgment of the trial court granting plaintiff Richard C. Trahant’s rule for contempt and sanctions against Mr. Longenecker.

STATEMENT OF THE FACTS

Richard C. Trahant is an attorney who represented the defendant Howard A. Perez in a personal injury action in the Twenty-Second Judicial District Court in St. Tammany Parish through trial and appeal. See Perez v. Liberty Mutual Ins., 1997-2532 (La.App. 1 Cir. 11/6/98), 728 So.2d 31. On June 25, 1999, four months after the Louisiana Supreme Court denied the writ application which Attorney Trahant filed on Perez’s behalf, Attorney Longenecker sent a letter to Trahant, two other attorneys, and two law firms stating in pertinent part as follows:

We have been retained by Howard Perez to advise him relative to potential malpractice claim arising out of your failure to settle this claim for $120,000.00 when directed to do so.

|?On July 6, 1999, Trahant filed a Petition for Damages against Perez and Lon-genecker in the Civil District Court of Orleans Parish. In the petition, Trahant alleges that Longenecker’s statement that Trahant failed “to settle this claim for $120,000.00 when directed to do so” is false, that Longenecker made the statement without probable cause, with knowledge of its falsity, and with reckless disregard for the truth, and that Trahant has suffered and will suffer damages.

Thereafter, on September 14, 1999, Perez, represented by Longenecker, filed a suit in St. Tammany on behalf of Perez against Trahant alleging malpractice. See Perez v. Trahant, 22nd Judicial District Court, No. 99-13899, Division “C”. The St. Tammany Parish trial court subsequently granted Trahant’s exception of prescription and/or peremption and dismissed Perez’s suit, and on December 28, 2001 the First Circuit Court of Appeal affirmed the trial court’s judgment on the issue of prescription and/or peremption. Perez v. Trahant, 2000-2372 (La.App. 1 Cir. 12/28/01), 806 So.2d 110, writs denied, 2002-0847, 2002-0901 (La.8/30/02), 823 So.2d 953. However, the First Circuit remanded the case to the trial court “to allow Perez to specially plead the particularized facts supporting his contention that La. R.S. 9:5605 is unconstitutional, and for the issue to be fully briefed and litigated.” Id. at p. 12, 806 So.2d at 119.

Meanwhile, in this first-filed litigation, Longenecker and Perez filed exceptions— including the exception of no cause of action — on November 22, 1999, and the trial court denied all of the exceptions in a Judgment dated February 28, 2001. Also, between February 9, 2001 and March 11, 2002, the trial court rendered no less than three Judgments in favor of Trahant and against Longenecker as a result of Longe-necker’s delaying the discovery process and failure to comply with orders of the Court. Although only the last of those Judgments has been 13appealed, the pertinent procedural facts surrounding all three judgments are as follows:

On March 20, 2000, Trahant propounded “Plaintiffs Combined Discovery Requests to Defendant Geoffrey H. Longenecker,” including interrogatories, requests for production of documents, and requests for admissions, and served the discovery on Longenecker the same day.

On or about April 18, 2000, plaintiffs counsel for Trahant received from Longe-necker a document entitled “Answer to Interrogatories and Response to Request for Production of Documents” purporting to be Longenecker’s response to Trahant’s first set of discovery. However, not only was Longenecker’ s purported discovery response unsigned, but Longenecker objected therein to every single discovery request on various vague grounds ostensibly based on Longenecker’s representation of Perez.

On May 4, 2000, Trahant propounded “Plaintiffs Second Combined Discovery Requests to Defendant Geoffrey H. Longe-necker” and served the discovery on Lon-genecker the same day. The discovery included an interrogatory requiring Lon-genecker to “please set forth a description of any withheld documents and things sufficient to allow formulation of a court order that the documents and things be produced for in camera inspection by the Court, and sufficient to allow judicial resolution of your obligation to produce the requested documents and things.... ”

On or about May 11, 2000, counsel for Trahant received from Longenecker a document entitled “Answer to Plaintiffs Second Combined Discovery Requests to Defendant Geoffrey H. Longenecker” purporting to be Longenecker’s response |Ato Trahant’s second set of discovery. Therein Longenecker again objects to every single discovery request on the grounds of attorney-client privilege.

In a letter to Longenecker dated May 22, 2000, counsel for Trahant pointed out to Longenecker that his purported responses to Trahant’s first set of discovery “are not even signed and therefore, as a matter of law, do not exist.” Counsel for the plaintiff further objected to the nonre-sponsiveness of Longenecker’s purported responses, advised Longenecker that Tra-hant would “have to file a motion to compel discovery responses and for sanctions against you unless you serve signed discovery responses which fairly address the matters requested,” and, pursuant to Rule 9, § 4 of the Civil District Court Rules, requested that Longenecker “contact me by telephone on or before Wednesday, June 7,2000 for purposes of amicably resolving the discovery and other issues raised herein.”

In a letter to plaintiffs counsel dated June 7, 2000, Longenecker advised: “Relative to meeting with you concerning discovery issues, I am free on June 29 and 30 in the morning here in Madisonville to discuss whatsoever discovery issues you desire”. Plaintiffs counsel replied to Lon-genecker in a letter dated June 8, 2000 as follows: “I will contact you by telephone at 10:00 a.m. on Thursday, June 29, 2000 to discuss outstanding discovery issues”. On June 29,2000 at 10:00 a.m., Plaintiffs counsel telephoned Longenecker’s office and was told “Mr. Longenecker’s not in.” Accordingly, plaintiffs counsel left a message for Longenecker to contact him for the scheduled conference. Longenecker never returned the counsel for plaintiffs call or otherwise responded to Trahant’s demands for signed and complete discovery responses.

On October 4, 2000, Trahant filed “Plaintiff s Motions to Strike Discovery Response, to Deem Requests for Admissions Admitted, to Compel Discovery, and |Rfor Expenses and Sanctions Against Defendant Geoffrey Longenecker”. The Trial Court set the motions for hearing on January 12, 2001, and the St. Tammany Parish Sheriff served the motion, order, memorandum, and twenty-one pages of exhibits on Longenecker “in person” on November 29, 2000. Longenecker then filed a “Motion and Order for Continuance” on December 22, 2000, which the trial court first granted on January 2, 2001, then denied on January 3, 2001. The next day, the Clerk mailed a “Notice of Signing of Judgment,” with the January 3, 2001 Order denying Longenecker’s motion for continuance, to both Longenecker and counsel for Trahant. Nevertheless, Longenecker failed to appear for the scheduled hearing on January 12, 2001, and the trial court rendered a Judgment on February 9, 2001, granting Trahant’s motions to strike discovery response, to deem requests for admissions admitted, and to compel discovery against Longenecker, and granting Trahant’s motion for expenses and sanctions against Longenecker and ordering Longenecker to pay the amount awarded “within thirty (30) days from the date he receives a certified copy of this Judgment”. The trial court signed an identical Judgment on February 28, 2001. In the interim, on February 6, 2001, Longenecker filed an “Opposition to Motion to Strike Discovery Response, to Deem Requests for Admissions Admitted, to Compel Discovery, and for Expenses and Sanctions” to which he attached copies of the same discovery responses counsel for Trahant had received on April 18, 2000 and May 11, 2000 and which were the subjects of the motions Trahant filed on October 4, 2000.

On February 15, 2001, Longenecker filed a “Motion for Rehearing and New Trial of Plaintiffs Motion to Reconsider Plaintiff s Motion to Compel Answers to Interrogatories” in which he argued that the January 12, 2001 hearing had been continued even though both he and plaintiffs counsel were served only with the | ^January 3, 2001 Order denying his motion to continue. In any event, following a hearing on April, 20, 2001, the trial court rendered Judgment on April 23, 2001 granting Longenecker’s motion to reconsider Trahant’s motions to compel discovery and to deem requests for admissions admitted. In the same Judgment, the trial court reconsidered Trahant’s motions and this time denied Trahant’s motion to deem requests for admissions admitted but ordered Longenecker to serve a signed response to the requests for admissions within fifteen days from the mailing of the notice of judgment, and again granted Tra-hant’s motion to compel discovery against Longenecker and ordered Longenecker to comply with Trahant’s discovery requests within fifteen days from the mailing of the notice ofjudgment. The trial court also added “that in connection with any future discovery motions between the parties, the Court will impose a sanction of ONE HUNDRED ($100.00) DOLLARS for each discovery request or response which the Court finds to be improper”. The Clerk mailed a “Notice of Signing of Judgment” with the April 23, 2001 Judgment to both Longenecker and counsel for Trahant on April 30, 2001.

In a letter to Longenecker dated August 7, 2001, plaintiffs counsel advised Longe-necker:

Additionally, in the Judgment dated April 23,2001, the Court ordered you to serve a signed response to Mr. Tra-hant’s requests for admissions and to comply with Mr. Trahant’s discovery requests within fifteen days from the mailing of the notice of judgment, which the Clerk of Court mailed to you on April 30,2001. As of this date, you have not served a signed response to Mr. Tra-hant’s requests for admissions or otherwise complied with Mr. Trahant’s discovery requests.
Accordingly, unless you comply with all orders of the Court by close of business on Friday, August 17, 2001, Mr. Trahant will have no choice but to file a motion forjjcontempt and sanctions pursuant to La. C.C.P. arts. 1470 and 1471.

Longenecker responded in a letter dated August 13,2001 in pertinent part as follows:

The signed original of our discovery responses has been filed in the record. I have already forwarded to you a copy of the signed original. I have reprinted the discovery responses for you and have gone even further and had them again signed so that you may have your very own personalized and signed copy of the discovery responses to keep in your file. Please do let us know if we can assist you in any other significant manner in your ability to have and to hold these discovery responses.

Enclosed with Longenecker’s letter was a copy of Perez’s “Answer to Plaintiffs Combined Discovery Requests” with a certificate of service dated August 13, 2001, but still Longenecker had not complied with Trahant’s discovery to Longenecker as ordered in the April 23, 2001 Judgment.

On November 2, 2001, Trahant filed “Plaintiffs Rule for Contempt and Sanctions Against Defendant Geoffrey H. Lon-genecker” seeking “a judgment holding defendant Geoffrey H. Longenecker in contempt of Court and ordering appropriate sanctions against him pursuant to La. C.C.P. art. 1471” on the grounds that Lon-genecker “has wilfully failed and refused to comply with the Court’s Judgment dated April 23, 2001.”

Following a hearing on January 11, 2002, the trial court signed a Judgment dated March 11, 2002 granting Trahant’s motion for contempt and sanctions, finding “that Geoffrey Longenecker is guilty of contempt of this court by his refusal to comply with the order issued by this court, dated April 23, 2001,” and ordering Longe-necker to “pay sanctions totaling $4,400.00, ONE HUNDRED ($100.00) DOLLARS for each request that- he has failed to respond to as ordered by this court” in the April 23, 2001 Judgment. In separate Reasons for Judgment, |sthe trial court found that Longenecker “has offered no proof of compliance” with the Court’s April 23, 2001 Judgment and that therefore Lon-genecker “has failed to comply with its order.” The trial court further stated:

Refusal to comply with court ordered discovery is a serious matter; the Louisiana Code of Civil Procedure article 1471 sets out the sanctions available against a party for failing to comply with discovery orders. For the reasons stated, this Court finds Geoffrey Longe-necker in contempt and orders sanctions against Mr. Longenecker in the amount of $4,400.00.

Longenecker filed a “Petition for Sus-pensive Appeal” on March 28, 2002, in which he appealed only from the trial court’s Judgment dated March 11, 2002. Longenecker then filed an Exception of No Cause of Action in this Court on or about October 2, 2002.

DISCUSSION:

Pending before this court is an exception of no cause of action submitted by the defendant/appellant, Geoffrey Longe-necker. Due to our lack of jurisdiction, we dismiss this exception of no cause of action.

The Louisiana Code of Civil Procedure article 1915(A)(6) now permits the appeal of a judgment that imposes sanctions or disciplinary action pursuant to La. C.C.P. article 191, 863, or 864. Therefore, all contempt judgments are now considered final judgments, subject to immediate appeal.

Nevertheless, the defendant’s exception of no cause of action goes to the merits of this case. The trial court’s denial of the defendant’s exception of no cause of action is an interlocutory judgment. “Generally speaking, there is no appeal from a judgment overruling exceptions because such a judgment is simply interlocutory in nature.” Allied Nav. Co. v. International Org. of Masters, Mates & Pilots, 272 So.2d 23, 25 (La.App. 4 Cir.1973). And although the jurisprudence “allows appeals from otherwise unappealable interlocutory judgments when they form part of an unrestricted appeal from a final judgment in the cause,” Walters v. Canal Motors, Inc., 240 So.2d 101, 103 (La.App. 4 Cir.1970), this appeal is not “an unrestricted appeal” but rather an appeal restricted by La. C.C.P. art. 1915(A)(6) to the March 11, 2002 Judgment which, unlike the February 28, 2001 Judgment on Exceptions, imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864. For this reason, Longenecker can validly appeal the Judgment which found him in contempt of court, but has no right as of yet to appeal the interlocutory judgment on the exception of no cause of action.

Furthermore, La. C.C.P. art. 2163, which provides in pertinent part that “[t]he appellate court may consider the peremptory exception filed for the first time in that court,” is inapplicable under the circumstances of this case. As explained in Toledo Bend Proprietors v. Sabine River Authority, 395 So.2d 429, 432, La.App. 3 Cir. (1981):

An appellate court may consider and dispose of a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if the proof of the ground of the exception appears of record. (LSA-C.C.P. Article 2163) This grant of authority however, assumes that at the time the exception is filed the appellate court has jurisdiction over the action or proceeding to which exception is taken.
The exceptions filed by appellants with this court seek dismissal of the principal demand, i.e., the demand of plaintiffs for an injunction.
The appeal in this case is solely from the judgment of the trial court which dismissed appellants’ third party demand. The principal demand has not been tried on its merits and no final judgment has been rendered thereon. Therefore, jurisdiction over such demand vests exclusively in the trial court (Art. V, Sec. 16, La. Const, of 1974; LSA-C.C.P. Articles 2082, 2083 and 2088), |insubject only to the exercise by this court of the supervisory powers granted by LSA-C.C.P. Article 2201.

Similarly, in this case, the principal demand has not been tried on its merits and no final judgment has been rendered thereon; therefore, jurisdiction over such demand, including Longenecker’s exceptions to that demand, vests exclusively in the trial court.

The second issue before this court is the appeal from the Judgment imposing sanctions and finding the defendant in contempt of court. The Louisiana Code of Civil Procedure article 253 states that the clerk of court shall include in the record all pleadings or documents filed in an action or proceeding after they have been filed and endorsed.

We find as a matter of law, that an attorney who possesses a stamped and filed copy of a document into the record by a clerk of court’s office, can rely on said document to be contained in the récord. A clerical error in the clerk of court’s office, such as a document that was properly stamped and filed not being added to the record, cannot be held against the attorney. Or stated otherwise, an attorney who has a filed and stamped copy from the clerk of court’s office, should be able to rely on such a document being present in the record for purposes of a hearing at the trial court level.

At the time of the hearing to determine whether Mr. Longenecker was in contempt his response was not in the record due to an error by the clerk of court’s office. Mr. Longenecker has provided this court with a stamped response to discovery properly dated, endorsed and filed prior to the trial court’s hearing on the question of sanctions. Because the defendant’s response was not in the record due to no fault of his, the trial court did not have the benefit of viewing all the |n evidence. For this reason we reverse and remand to the trial court for a determination as to whether, in light of said response, the trial court would still find the defendant in contempt of court.

REVERSED AND REMANDED.


author: | PATRICIA RIVET MURRAY, Judge.

text:
    Dodiyi William WEST v. Ronald MELANCON, Catherine Melancon, Robert Drouant, and Associates, Allstate Insurance Company and Associates, et al.
    No. 2002-CA-1335.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Dodiyi J. William West, New Orleans, LA, In Proper Person — Plaintifi/Appel-lant.
    Harold G. Toscano, Law Offices of Harold G. Toscano, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   | PATRICIA RIVET MURRAY, Judge.

This is a nullity action. Granting defendants’ declinatory exception of insufficiency of service of process, the trial court dismissed this action. From that ruling, the plaintiff, Dodiyi William West, filed this pro se appeal. For the reasons that follow, we affirm the trial court’s ruling sustaining the exception, but remand for further proceedings pursuant to La. C.C.P. art. 932.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. West commenced this action seeking to nullify this court’s decision in West v. Melancon, 99-1980 (La.App. 4 Cir. 10/4/00), 772 So.2d 166. In our opinion in Melancon, supra., we set forth the factual and procedural background of the underlying personal injury action. Simply stated, Mr. West filed the underlying action against Ronald and Catherine Melancon and Allstate Insurance Company (collectively “Defendants”) seeking to recover damages arising out of a June 25, 1983 motor vehicle accident. Although Mr. West ultimately prevailed in the trial court, this court found the evidence insufficient to support his claim for damages and thus reversed. Mr. West then applied for rehearing, which this court denied, and applied for writs to the Louisiana Supreme Court, which that court refused to | ^consider because the writ was untimely filed. 2001-281 (La.3/23/01), 787 So.2d 1006.

In October 2001, Mr. West commenced the instant action seeking to annul this court’s October 2000 decision in Melancon, supra, based on various allegations of fraud and ill practice. In his petition, he requests that service be made on Defendants (“Mr. Melancon, et al”) through counsel, Mr. Harold Toscano. Defendants responded by filing an exception of improper service of process. Initially, Defendants’ exception was set for hearing on February 8, 2002. On Defendants’ motion, the hearing date was rescheduled to March 22, 2002. Apparently due to Mr. West’s claim that he had not received a copy of the exception, Defendants filed another copy into the record on March 18, 2002 and requested that the exception be served on Mr. West. On that copy of the exception, March 22nd is typed in the order as the hearing date, but that date is scratched through and April 26th handwritten in its place.

On March 22nd, defense counsel appeared and argued the exception; Mr. West failed to appear. Following the hearing, the trial court sustained the exception and signed a judgment to that effect on April 1st. However, on April 26th, the same exception appeared on the trial court’s docket. On that date, Mr. West appeared. Given the circumstances — a possible computer error coupled with Mr. West’s absence from the prior hearing and pro se representation— the trial court allowed oral argument by both sides on the exception. Following those arguments, the trial court again sustained the exception.

Mr. West filed the instant pro se appeal, enumerating seven assignments of error. Opposing the appeal, Defendants argue that the sole issue is whether service |aof the nullity petition on Defendants’ attorney in the underlying tort suit was sufficient.

DISCUSSION

A nullity action is an ordinary proceeding and therefore must be commenced by petition and citation on the adverse party. O’Neill v. Sumrall, 481 So.2d 157, 159 (La.App. 4 Cir.1985). Essential elements in an ordinary proceeding are citation and service of process; “[without them, the proceeding against that defendant is an absolute nullity.” 1 Frank L. Mariast and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 8.2 (1999).

The requirements for service of process in a nullity action are the same as in an ordinary action. Although the Code of Civil Procedure provides that subsequent pleadings may be served on the adverse party’s counsel of record, it mandates that the original petition be served on the defendant or his legal representative. “La. C.C.P. arts. 1312 and 1314 allow service of pleadings, except the original petition, upon the attorney of record. Implicit in the exclusion of the original petition in arts. 1312 and 1314 is the fact that the original petition and citation must be served on the named defendant.” Richardson v. O’Neal, 30,599, p. 3 (La.App. 2 Cir. 5/13/98), 716 So.2d 26, 28.

In the instant case, Mr. West’s service of the original nullity petition on Mr. Toscano, Defendants’ counsel of record in the underlying tort suit, was insufficient service on Defendants. The trial court thus correctly sustained Defendants’ exception of insufficiency of service of process. Our finding that the trial court correctly sustained that declinatory exception, however, does not necessarily dictate dismissal. Dismissal is a “drastic remedy” reserved for extreme | ¿circumstances in which all procedural safeguards have been followed. Richardson, 30,599 at p. 4, 716 So.2d at 29.

A procedural safeguard provided by the Code for this context is set forth in La. C.C.P. art. 932, which provides: “[w]hen the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.” La. C.C.P. art. 932 (emphasis supplied). When the grounds for the exception is insufficiency of service of process, “the plaintiff usually can cure the defect by having a new citation issued and served.” Maraist & Lemmon, supra at § 8.2. For that reason, “the issue of improper citation usually arises in contests over the validity of a default judgment, and not by declinatory exception.” Id.

Applying these principles, we find that since the grounds for the objection — improper service of the original petition on former defense counsel — could be cured by Mr. West requesting and obtaining service of process on Defendants, the trial court erred in failing to allow him an opportunity to do so as required by La. C.C.P. art. 932.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court sustaining the declinatory exception of improper service of process, but remand for further proceedings consistent with.this opinion.

AFFIRMED AND REMANDED.