author: JACHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Louis WILLIAMS.
    No. 2002-KA-1815.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2002.

      Harry F. Connick, District Attorney of Orleans Parish, C. Adriana White, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Louis Williams.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   JACHARLES R. JONES, Judge.

This appeal concerns a resentencing only.

Louis Williams was convicted of violating La. R.S. 14:67(A), theft of merchandise valued over five hundred dollars. Williams was found to be a fourth felony-offender and sentenced under La. R.S. 15:529.1 to serve twenty years at hard labor, without the benefit of probation or suspension of sentence. He appealed, and in an unpublished opinion, this Court affirmed his conviction and vacated his adjudication as a multiple offender and his sentence. The case was remanded to the district court for resentencing. State v. Williams, 98-2144 (La.App. 4 Cir. 5/24/00, 761 So.2d 830).

On September 14, 2001, another multiple bill hearing was held, and Williams was found to be a second felony offender. He was sentenced on April 23, 2002 to serve twenty years at hard labor. His Motion for Reconsideration of Sentence was denied, and his Motion for an Appeal was granted.

The facts of the case were presented in the earlier appeal. (See Williams, supra.)

| ¡/Williams presents two assignments of error in this appeal, first arguing that the district court erred in sentencing him as a second felony offender, and second that his sentence is excessive.

Williams contends that the district court erred in finding him to be a second felony offender because the State failed to introduce sufficient evidence to prove his prior conviction, and also because the State did not prove that ten years had not elapsed between his last two convictions. He first maintains that the conviction on which he was billed as a multiple offender was never clearly specified. However, the State filed a multiple bill on August 28, 2001, charging Williams with three convictions: (1) case number 277-222 “E,” a violation of La. R.S. 14:67, in which he pleaded guilty on July 2, 1980; (2) case number 317-891 “L,” a violation of La. R.S. 40:967, in which he pleaded guilty on March 19, 1987; and (3) case number 365-614 “G,” a violation of La. R.S.40:966, in which he pleaded guilty on November 12, 1993. At the hearing on September 14, 2001, the defense attorney objected, arguing that the record in the 1993 case (365-614 “G”) did not indicate a proper waiver of rights by Williams, and the record on the 1980 case (277-222 “E”) did not contain a minute entry indicating that the district court interrogated Williams as to his constitutional rights. The district court then asked the defense attorney if he questioned the remaining conviction, and the attorney answered that he had “no specific objection.” The court then stated that Williams would be sentenced as a second offender on the remaining conviction, i.e., in case 317-891 “L”.

Our review of the record indicates that the State offered the following documentation in case number 317-891 “L”: a bill of information charging | ¡¡Williams with possession of cocaine, a waiver of constitutional rights/plea of guilty form, a docket master, a minute entry listing constitutional rights, and an arrest register. Because the district court stated that insufficient evidence was offered on two of the cases listed on the multiple bill of information, and referred to sentencing Williams as a second felony offender on the completely documented third case, we find no ambiguity as to which case served as the prior offense in the multiple bill adjudication.

Williams also challenges the sufficiency of the State’s documentation of the prior offense. In State v. Alexander, 98-1377 (La.App. 4 Cir. 2/16/00), 753 So.2d 933, this court stated:

LSA-R.S. 15:529.1 D(l)(b) states that the district attorney has the burden of proving beyond a reasonable doubt any issue of fact and that the presumption of regularity of judgment shall be sufficient to meet the original burden of proof. In State v. Shelton, 621 So.2d 769, 779-780 (La.1993), the Supreme Court stated:
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than the “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated Lwaiver of the three Boykin rights, (footnotes omitted).

98-1377 at pp. 5-6, 753 So.2d at 937.

In the matter sub judice, the State introduced a waiver of rights form listing all three Boykin rights. The form is dated and signed twice by Williams, his counsel and the district judge. The form also states that “[t]he judge has addressed me personally as to all of these matters and he has given me the opportunity to make any statement I desire.” The docket master indicates that Williams was represented by counsel. The minute entry states:

The Defendant appeared before the bar of the Court attended by counsel, CAROL SKARPETOWSKI and through counsel withdrew the former plea of not guilty and entered a plea of guilty as charged. The Court interrogated the defendant as to the right to have a trial by jury, the right to face his accusers, the right against self-incrimination and the right to an appeal and the defendant answered in the affirmative and announced to the Court he understood the rights set before him.

We find that the State offered sufficient proof that Williams made a voluntary plea to the predicate offense.

Additionally, Williams maintains that the State did not prove that ten years had not elapsed between his prior and current offenses. La. R.S. 15:529.1(C), the Habitual Offender Law, provides that the statute does not apply when more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, and the time of the commission of the last felony for which he has been convicted. The State has the burden of proving that ten years has not elapsed between the defendant’s release from custody on the prior offense and the new offense. State v. Lorio, 94-2591 (La.App. 4 Cir. 9/28/95), 662 So.2d 128; State v. Brown, 598 So.2d 565 (La.App. 4 Cir.1992) writ denied, 605 So.2d 1092 (La.1992). However, in the present case, Williams’ failure to object contemporaneously or file a Motion for Reconsideration of Sentence concerning the ten-year period between prior offenses used to enhance the multiple offender sentence precludes review of his claim on appeal. La. C.Cr.P. art. 841; State v. Carter, 589 So.2d 1212, 1214 (La.App. 4 Cir.1991); La. C.Cr.P. art. 881.1; State v. Alford, 99-0299, p. 11 (La.App. 4 Cir. 6/14/00), 765 So.2d 1120, 1127; State v. Washington, 98-0583, pp. 16-17 (La.App. 4 Cir. 11/17/99), 747 So.2d 1191, 1200.

There is no merit in this assignment.

Williams argues in his second assignment of error that his sentence is excessive and violates his right to due process. He received a sentence of twenty years as a second felony offender, the same sentence imposed after he had been adjudicated a fourth felony offender.

Article I, Section 20 of the Louisiana Constitution of 1974 provides 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). 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).

|fiIf 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. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Guajardo, 428 So.2d 468 (La.1983).

At the resentencing hearing, the district court, noting that Williams’ many offenses involved theft, battery, and drugs, stated:

I truly believe that you have exhibited a total commitment to violation of the law, and, ... it’s my belief that you’ll continue to jeopardize the operation of commercial establishments where the rest of us stand in line to pay our bill. You jeopardize others as you run from these stores with merchandize that doesn’t belong to you. You haven’t paid for it.
The court has noted the reasons it feels that the sentence is appropriate based on the record of the gentleman, the seriousness of the most recent event, including the high-speed chase, the hit-and-run incidents, the endangerment to police and others during the course of this attempted escape, the fleeing of these gentlemen from the car, the co-defendant, as well, causing the police to engage in a foot chase, as well.

For a second offender convicted under La. R.S. 15:529.1, the sentencing range for theft of goods worth more than $500 is five to twenty years. The defendant received the maximum term. The district court ordered a presentencing investigatory report which indicated that Williams had been arrested fifty times as an adult and convicted of nineteen offenses in the past twenty-four years. Considering the facts of the case, Williams’ criminal history, and the absence of mitigating factors, the record supports the sentence, and the district court did not abuse its sentencing discretion in imposing the twenty-year sentence in this case.

Williams cites State v. Neville, 96-0137(La. App. 4 Cir. 5/21/97), 695 So.2d 534, where this Court vacated a twenty-year sentence imposed on a fourth felony offender convicted of shoplifting and other non-violent offenses. This Court noted that the defendant had one additional felony and two arrests for which charges were refused, and the district court had given no reasons for imposing the sentencing; thus, the sentence appeared excessive. Williams contends that he too is not a violent offender and certainly not the worst of offenders. However, State v. Neville may be distinguished from the case at bar because the district court did articulate reasons for this sentence, and because Williams’ record is more extensive.

Williams also argues that it is unfair that his co-defendant, who was also sentenced as a second offender, received the minimum five-year term. However, the district court had the advantage of a pre-sentencing investigatory report as to Williams, and that report provided a basis for the sentence. Moreover, the multiple bill filed against co-defendant Bell lists only one prior conviction, and Bell pleaded guilty to the multiple bill. Under any circumstances, Williams’ extensive criminal history supports the maximum sentence.

Williams’ final argument is that his twenty-year sentence violates due process of law in that it imposes a more severe sentence than that originally imposed. He cites State v. Franks, 391 So.2d 1133, 1137 (La.1980), and State v. Soco, 508 So.2d 915 (La.App. 4 Cir.1987), for authority; however, in those eases the defendants’ sentences were initially illegally lenient because parole eligibility had not been denied. When the defendants were resentenced with parole eligibility prohibited, the sentences as “corrected” were more severe than they were originally. In the case at bar, Williams received the same sentence on the basis of his criminal history. Under [sthe sentencing guidelines, La.C.Cr.P. art. 894.1, the district court may consider an offender’s criminal history that is not part of the multiple offender bill.

There is no merit to this assignment.

DECREE

Accordingly, for the reasons stated herein, the sentence of Louis Williams is affirmed.

AFFIRMED.

      . The defendant was charged and convicted with Ronald Bell, who pleaded guilty to the multiple bill and was sentenced as a second offender to serve five years in DOC.

      . When Williams was originally charged as a multiple offender the State relied upon cases 277-222, 317-891, and 85-596 from Jefferson Parish.

      . The defense attorney made a general objection to the documentation in case 317-891, thereby preserving the issue for appeal.

      . The waiver of rights/plea of guilty form does not have a space next to each right for the defendant's initials; however, such a form in combination with a minute entry indicating a proper voluntary plea by the defendant has been held to be sufficient. State v. Robair, 93-0835 (La.App. 4 Cir. 7/27/93), 622 So.2d 829.


source: Caselaw Access Project

author: | PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Larry THOMPSON v. MACY’S EAST SOUTH, INC.
    No. 2002-CA-1163.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2002.

      Larry Thompson, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    John F. Deas, Borrello, Olinde & Dubu-clet, Metairie, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III).
   | PATRICIA RIVET MURRAY, Judge.

The plaintiff, Larry Thompson, appeals the dismissal of his suit by the workers’ compensation court. For the reasons that follow, we affirm.

Mr.Thompson, was working for defendant, Macy’s East South, Inc., on December 30, 1998 when he had a work-related accident: a rolling clothes rack struck him on the head and shoulder while he was changing a light bulb. Mr. Thompson reported the injury to his supervisor and sought treatment at Tulane University Hospital Emergency Room. Steri-strips were placed on a small laceration above his left eye. Later, complaining of injury to his left arm, head and both eyes, Mr. Thompson sought treatment from Dr. D’Souza (a neurologist) and Drs. Friedlan-der and Kastl (ophthalmologists). Macy’s paid workers’ compensation benefits to Mr. Thompson for approximately five months, from the date of the injury until May 16, 1999. After Macy’s terminated his benefits, Mr. Thompson filed the instant suit to recover additional benefits, claiming that he was still suffering from the injuries he sustained in the accident. Mr. Thompson contended he was having vision problems, including the loss of the ability to focus, and might be developing glaucoma, all of which he believed were related to the accident.

|2After a trial on the merits, the workers’ compensation judge held that the plaintiff had failed to meet his burden of proving that his eye problems were related to the December 30, 1998 accident. Mr. Thompson has filed a pro se appeal alleging four assignments of error.

In the first assignment of error, Mr. Thompson complains of disagreements he and his counsel allegedly had at the “first hearing” and attempts by his counsel to settle the case against Mr. Thompson’s wishes. The appellate record does not contain a transcript of the hearing in question. However, the record does indicate that the trial of this matter had been continued twice. There is nothing to indicate that the trial court abused his discretion by refusing to allow further time for discovery. Plaintiffs counsel withdrew from the case after the first continuance was granted, and Mr. Thompson represented himself when trial was eventually conducted; therefore, disagreements between him and his counsel were not a factor in the trial. As the record is devoid of any evidence supporting plaintiffs contentions, we reject this assignment of error.

In his second assignment, Mr. Thompson argues that the trial court erred by not requiring Drs. D’Souza, Kastl and Friedlander to testify at trial. In his third assignment, with regard to Dr. D’Souza alone, Mr. Thompson contends that the doctor should have been required to appear at trial because plaintiff did not have the opportunity to cross-examine him at his deposition. However, the depositions of all three physicians were introduced into evidence at trial without objection. Further, Dr. Kastl’s and Dr. Friedlander’s depositions were specifically taken for perpetuation and use at trial in lieu of their presence at trial. Mr. Thompson was present at those depositions and had the opportunity to cross-examine each witness. As for Dr. D’Souza, at the beginning of his deposition, a stipulation ^reveals that the plaintiffs counsel waived his presence. Further, the appellate record is devoid of any subpoena directed to Dr. D’Souza requiring his presence at trial. We therefore conclude that the trial court did not err by failing to require these witnesses to appear at trial.

Finally, Mr. Thompson argues that the trial court erred by dismissing his claim for additional benefits without having allowed him more time to find a physician who would authorize further testing concerning his eye problems. Drs. Fried-lander and Kastl, both board-certified ophthalmologists who treated plaintiff for his eye problems, testified that Mr. Thompson had no injury to his eyes from the accident at Macy’s. Both physicians opined that the plaintiff suffers from a genetic macular disease, which is the cause of his complaints. Furthermore, they confirmed that the laceration above Mr. Thompson’s eye was healed by April 8, 1999 and did not cause his current vision problems. In addition, Dr. D’Souza, a board certified neurologist who treated the plaintiff after the accident, testified that an exam of Mr. Thompson’s left shoulder and arm was normal on April 12, 1999. All three expert witnesses, who were plaintiffs treating physicians, therefore concurred that Mr. Thompson was fully recovered from the injuries he sustained in the accident by April of 1999. Drs. Friedlan-der and Kastl also concurred in the opinion that plaintiffs continuing eye problems were not caused by the accident.

| Considering this evidence, the workers’ compensation judge did not err by concluding that the plaintiff had failed to meet his burden of proof on the issue of causation.

Accordingly, the judgment of the workers’ compensation court is affirmed.

AFFIRMED.


author: I .PATRICIA RIVET MURRAY, Judge.

text:
    Ted SCARBROUGH v. J. RAY McDERMOTT, A Subsidiary of McDermott International, Inc. and McDermott, Inc.
    No. 2002-CA-1235.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2002.
    Rehearing Denied Jan. 7, 2003.

      Louis R. Koerner, Jr., Law Offices of Louis R. Koerner, Jr., New Orleans, LA and Kenneth W. Jacques, Law Offices of Kenneth W. Jacques, New Orleans, LA, for Plaintiff/Appellant.
    Patricia A. Krebs, Bryan J. De Tray, Allan C. Crane, King, LeBlanc and Bland, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY).
   I .PATRICIA RIVET MURRAY, Judge.

This is a maritime personal injury case. The principal issue presented is whether venue is proper in Orleans Parish. Finding venue improper, the trial court ordered this case transferred to Assumption Parish. From that decision, the plaintiff, Ted Scarbrough, appeals.

In this court, the defendants, J. Ray McDermott, Inc. (“J.Ray”), McDermott Incorporated, McDermott International, and J. Ray McDermott International Vessels, Ltd. (“J. Ray Vessels”), filed a motion to supplement the record, which we grant. For the reasons that follow, we clarify and affirm the trial court’s judgment as clarified.

FACTUAL AND PROCEDURAL BACKGROUND

On February 8, 2001, Mr. Scarbrough, a Mississippi resident, filed a petition for damages in the Civil District Court for the Parish of Orleans. In his petition, Mr. Scarbrough named as defendants J. Ray, McDermott Incorporated, and McDermott International, and described those defendants as “foreign corporations licensed to do and doing business in the State of Louisiana, with their respective principal places of business in the Parish of Orleans.”

| j>The petition alleges that Mr. Scarb-rough was injured on or about March 1, 2000, while employed by McDermott as a seaman aboard the D/B 50, a vessel registered under the flag of Panama. The injury allegedly occurred when he was bitten by a brown recluse spider aboard the D/B 50. At that time, the D/B 50, a derrick barge, was docked in Mobile, Alabama, where it was being refurbished. The petition alleges that this is an action pursuant to the Jones Act, the “savings to suitors clause,” and general maritime law for unseaworthiness and maintenance and cure. According to the petition, McDermott’s alleged acts of negligence included failing “to fumigate or otherwise exterminate the brown recluse spiders, after being on notice that the vessel had suffered an infestation of such spiders.” The presence of such insects, the petition alleges, rendered the D/B 50 unseaworthy.

In response, J. Ray asserted a declinato-ry exception of improper venue, arguing that venue is improper in Orleans Parish for the following reasons. First, contrary to the allegations of the petition, J. Ray employed Mr. Scarbrough, and its designated principal place of business in this state is in Amelia, Louisiana, which is in Assumption Parish. See Dorsey v. J. Ray McDermott, Inc., 99-0840 (La.App. 4 Cir. 5/19/99), 750 So.2d 996 (specifically finding that J. Ray’s primary place of business is Assumption Parish). Second, neither McDermott International nor McDermott Incorporated employed Mr. Scarbrough, owned or operated the D/B 50, or had any involvement with the job on which he was working at the time of the alleged injury; hence, those entities are not proper parties to this matter, and | ¡¡venue as to them is irrelevant in determining the proper venue of this matter. Finally, Mr. Scarbrough’s alleged injuries occurred outside of this state in Mobile, Alabama. J. Ray, therefore, requested that this matter be transferred to a court of proper venue in Assumption Parish.

On September 14, 2001, Mr. Scarbrough filed a Verified Supplemental Petition for Issuance of Conservatory Writ of Attachment as to Non-Resident and for Issuance of Garnishment Under Writ of Attachment and First Amended Petition for Damages. The amended petition asserted that Mr. Scarbrough was employed by defendant McDermott Incorporated either directly or indirectly through its subsidiary J. Ray, as a seaman aboard the D/B-50, which was owned by J. Ray Vessels, a wholly owned subsidiary of J. Ray.

In an apparent attempt to assert a claim directly against McDermott International and McDermott Incorporated, the amended petition asserted the following claim against those two entities:

On or about May 22, 2000, plaintiff received by check no. 4120000311 in the amount of $7,460.53 on the account of McDermott Incorporated by United States Mail. This check was sent from defendant’s New Orleans office.... [C]heck no. 4120000311 was stopped by action taken on May 23, 2000 by McDer-mott International, Inc. from its New Orleans office.

The amended petition acknowledged that Mr. Scarbrough subsequently received a second check for $4,114.28, yet claimed that McDermott International and McDer-mott Incorporation were liable to him for the difference between the two checks and for the damages caused by stopping payment on the first check.

l/Fhe amended petition added J. Ray Vessels as a fourth defendant, describing it as follows: “a corporation organized under the law of the Cayman Islands with its principal place of business in the Parish of Orleans” and which “owns a watercraft, the D/B 50, which operates in this state.” The amended petition further asserted that J. Ray Vessels, as owner of the D/B 50, entered into an oral charter party agreement with J. Ray, as operator, and that periodic payments were due pursuant to that agreement and that “such payments are made and/or received at the McDermott offices at 1450 Poydras Street,” which is in the Parish of Orleans. Those periodic payments are the property that Mr. Scarbrough seeks to garnish and attach in Orleans Parish so as to obtain quasi in rem jurisdiction over J. Ray Vessels.

Answering the garnishment interrogatories that were served on it, J. Ray asserted two general objections: improper venue (for the same reasons asserted above) and prematurity (given the lack of a judgment on which Mr. Scarbrough seeks to collect). Subject to those exceptions, J. Ray admitted the following:

• It is in possession of a derrick barge, the D/B 50, owned by J. Ray Vessels.
• It “is indirectly billed for its use of the D/B 50 through McDermott Holdings, Inc. However, the billing is done on a non-cash settlement basis, and no cash is exchanged.”
• It “has sufficient funds to satisfy any judgment plaintiff may obtain.”

Hearing on the exceptions was continued to January 11, 2002 to allow Mr. Scarbrough to conduct discovery. On January 14, 2002, the trial court entered judgment, granting J. Ray’s exception, finding venue improper in Orleans Parish, and ordering that “the above numbered cause of action” be transferred to Assumption Parish. In its judgment, the trial court stated that it based its decision on the supporting memorandum, the parties’ arguments, and the law. On February | s27, 2002, the trial court denied Mr. Scarb-rough’s Motion for Reconsideration and granted Mr. Scarbrough’s Motion for Sus-pensive Appeal.

DISCUSSION

This matter seeks appellate review of a judgment sustaining a declinatory exception of improper venue and transferring the case to a proper venue. We have previously classified such a judgment granting a venue exception and transferring a matter to a proper forum as an interlocutory judgment. McCrea v. Mobil Oil Corp., 95-0537 (La.App. 4 Cir. 9/28/95), 662 So.2d 143. Although interlocutory, the judgment at issue is one that may cause irreparable injury. It follows then that this case is properly before us an appeal. See La. C.C.P. art.2083; Winninger v. State, Through Dep’t of Social Services, 32,086, p. 1 n. 1 (La.App. 2 Cir. 8/18/99), 740 So.2d 236, 237 (citing Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981)). The narrow issue before us is whether venue is proper in Orleans Parish for Mr. Scarbrough’s claim against J. Ray.

Venue is defined as “the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” La. C.C.P. art. 41. The general rules governing venue are set forth in La. C.C.P. art. 42, which provides various rules (based on the nature of the defendant) for venue at the defendant’s “home base.” Despite the departure from the “home base” approach to venue enunciated in Kellis v. Farber, 523 So.2d 843 (La.1988), “the defendant’s ‘home base’ still remains the starting point in the determination of where venue is proper, and in some cases is the only proper venue.” 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise, Civil Procedure § 3.4 (1999). The trial court, in its written reasons for judgment, concluded that such is the case here, stating:

| fiThe plaintiff was at all pertinent times employed by J. Ray McDermott, which is a foreign corporation authorized to do business in Louisiana. J. Ray McDer-mott’s principle [sic] business establishment is not in Orleans Parish, but rather in Amelia, Louisiana, which is located in Assumption Parish. Additionally, the plaintiff is a resident of Mississippi and the vessel was docked in Mobile, Alabama when the plaintiff was allegedly injured. Therefore, the only bases of venue here are the location of J. Ray McDermott’s principle [sic] business establishment or the place in which it maintains its primary place of business, both of which are in Assumption Parish.

Mr. Scarbrough concedes that J. Ray’s principal place of business, as this court held in Dorsey, supra, is Assumption Parish and does not contest that J. Ray’s “home base” venue under La. C.C.P. art. 42(4), is in Assumption Parish. Mr. Scarbrough, however, contends that venue is proper as to J. Ray in Orleans Parish based on the exception provided for in La. C.C.P. art. 76.1. Alternatively, he contends that venue is proper under the concept of ancillary venue; he contends that he has a claim against one or more of the other three named McDermott entity defendants as to which venue is proper in Orleans Parish so as to create ancillary venue over his maritime claims against J. Ray.

La. C.C.P. art. 76.1 Venue

The “home base” venue rules of Article 42 are expressly made subject to the exceptions provided in Articles 71 through 85. La. C.C.P. art. 43. The pertinent exception here, relied upon by Mr. Scarbrough, is Article 76.1, which provides: “[a]n action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.” La. C.C.P. art. 76.1. Mr. Scarb-rough contends that this exception applies because his employment contract with J. Ray |7was orally executed in Orleans Parish. In support of his position, Mr. Scarb-rough asserts in his amended petition the following regarding the formation of the employment contract in Orleans Parish:

“Plaintiff entered into his verbal contract of employment relationship with McDermott by means of an interview in the New Orleans offices of McDermott with Alan J. Bulot, who approved his hiring and the terms and conditions of his employment as a medical [sic] technician. Plaintiff was paid for his - employment services by means of checks written from J. Ray McDermott, Inc. in New Orleans and automatically deposited to his bank account at his home in Mississippi.”

For purposes of deciding a venue exception, the plaintiffs allegations in the petition are “taken as true.” Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479, p. 6 (La.6/30/00), 764 So.2d 41, 45.

To rebut Mr. Scarbrough’s allegations, J. Ray relies upon an affidavit of Mr. Bulot, an electrical maintenance supervisor employed by J. Ray, who attests:

• As a convenience to plaintiff, who is a Mississippi resident, he interviewed Mr. Scarbrough in New Orleans, Louisiana.
• At the time of the interview, and currently, his office is located in Amelia, Louisiana.
• He did not offer plaintiff, Ted Scarb-rough, a job during the interview in New Orleans and has no authority to make such offers of employment on behalf of J. Ray McDermott, Inc. Such hiring decisions are made by J. Ray McDermott’s marine operations office in Amelia, Louisiana.

J. Ray further relies upon the deposition testimony of Mr. Scarbrough in which he acknowledges that he not was offered the position during the interview in New Orleans. Rather, he concedes that he was not offered the job until after he returned home to Mississippi. Once he returned home, he received a phone call from Dana Ourso, who was located in Amelia, and offered the position. After accepting that | soral offer, Mr. Scarbrough states that he filled out a “stack” of paper work in Amelia.

Given that Mr. Scarbrough’s own deposition testimony refutes his allegation that he was hired in Orleans Parish, his argument that Article 76.1 applies is unpersuasive. Nor is the fact that his paychecks apparently originated in Orleans Parish sufficient to make venue proper under Article 76.1. See Barham v. Richard, 97-0186, p. 6 (La.App. 4 Cir. 4/9/97), 692 So.2d 1357, 1360 (holding that “work or service” under Article 76.1 was not intended to include “an act as insubstantial as mailing a check to a certain address in payment of a promissory note.”)

Mr. Scarbrough also asserts several procedural arguments. First, citing La. C.C.P. art. 930, which provides that “evidence may be introduced to support or controvert any of the [declinatory] objections pleaded,” he asserts that he should have been allowed to put on evidence in support of his contention that the employment contract was entered into in Orleans Parish and that the trial court erred in relying on affidavits in resolving this disputed factual issue.

J. Ray replies that the district court held a hearing and considered evidence filed by the parties. To the extent the objection is that live testimony was not permitted, J. Ray argues that Mr. Scargb-rough failed to object to the lack of such an evidentiary hearing on the exception and thus waived the right to one. J. Ray further argues that live testimony was unnecessary. J. Ray still further argues that it was only after the trial court granted its exception of improper venue that Mr. Scarbrough argued a hearing with live testimony was required.

In Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301, p. 5 (La.App. 2 Cir. 11/1/00), 779 So.2d 817, 821, which J. Ray cites in support of its waiver argument, an argument similar to that asserted by Mr. Scarbrough was rejected. In |9that case, the court reasoned that the plaintiff waived the right to seek an evidentiary hearing by failing to raise such an objection in the trial court and thus could not complain on appeal. The Nitro court also rejected the plaintiffs argument that the trial court erred in considering affidavits in support of defendant’s venue exception. In so doing, the court stressed that “the record reveals no objection by Nitro to the use of the affidavits in support of the venue exception.” 34,301 at p. 5, 779 So.2d at 821. The court thus concluded that Nitro’s failure to object to such hearsay evidence when it was admitted constituted a waiver of the objection and that “[t]he aggrieved party may not subsequently, upon appeal, urge that such evidence was actually inadmissible.” Id. Such is the case here. Despite Mr. Scarbrough’s contentions to the contrary, the record contains no proof that he raised such an objection in the trial court. We find, therefore, that this objection was waived.

Second, citing La. C.C.P. art. 932, Mr. Scarbrough asserts that the trial court erred in failing to allow him leave to amend to cure the exception. Mr. Scarb-rough’s sole basis for this argument is his assertion that he could, and did, cure the objection to venue by personally serving Robert Stumpf, an officer of J. Ray Vessels, in Orleans Parish, albeit the day after the venue exception was maintained. That argument, however, was rejected by the trial court in denying Mr. Scarbrough’s motion for reconsideration. Moreover, as discussed elsewhere, we conclude that such service on J. Ray Vessel’s officer was insufficient to cure the venue exception at issue. We find this argument unpersuasive.

Mr. Scarbrough next asserts that federal maritime law preempts the narrower Louisiana state law venue provisions. Stressing Mr. Scarbrough’s failure to cite any case law in support of that argument, J. Ray counters that the jurisprudence has |inuniformly held to the contrary. We agree. Indeed, in American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994), the United States Supreme Court stated that “venue is a matter that goes to process rather than substantive rights — determining which among various competent courts will decide the case” and that “state courts, in deciding admiralty cases, are not bound by the venue requirements set forth for federal courts in the United States Code.” 510 U.S. at 454, 114 S.Ct. at 989, 127 L.Ed.2d at 298 (Emphasis supplied). The trial court thus did not err in applying the Louisiana Code of Civil Procedure venue rules.

ANCILLARY VENUE

Ancillary venue was acknowledged, yet not necessarily embraced as a solution to all multiparty litigation venue problems, by the Louisiana Supreme Court in Underwood v. Lane Memorial Hosp., 97-1997, p. 8 (La.7/8/98), 714 So.2d 715, 719; the Court stated:

Ancillary venue applies when separate claims involving common or identical questions of fact share no common venue. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one party.

This concept has been invoked by Louisiana appellate courts “primarily in cases involving cumulated claims against a single defendant.” 97-1997 at p. 9, 714 So.2d at 719. Appellate courts have extended this concept to the multiparty setting when venue is proper as to only a single defendant and there is “ ‘one claim against two [or more] parties arising out of one factual circumstance. ’ Id. (quoting Katherine Shaw Spaht, Persons, 46 La. L.Rev. 613, 618 (1986)(emphasis in original)). Moreover, “ ‘the Code of Civil Procedure adopts this concept in article N73 by permitting solidary obligors to be sued in any parish where venue is proper as to one of them.’ ” 97-1997 at p. 9, 714 So.2d at 719.

Appellate courts, however, have declined attempts to extend ancillary venue to situations in which a plaintiff brings different claims against different defendants. J & L Industries, L.L.C. v. Reeves, 31,742 (La. App. 2 Cir. 1/7/99), 723 So.2d 541, is instructive as to such situations. In that case, the court rejected the plaintiffs argument that proper venue for a contract claim against one defendant was sufficient to provide venue for a separate tort claim against a different defendant. In so doing, the court noted that appellate courts have applied the ancillary venue concept in the multiparty context “when there is one claim against two parties arising out of one factual circumstance.” 31,742 at p. 6, 723 So.2d at 544. Distinguishing the situation presented before it, the court noted that “[a]lthough the action arises out of a common factual circumstance, the plaintiff has asserted two different claims against separate defendants. In addition, a lack of common venue has not been demonstrated.” Id. The court thus concluded that ancillary venue was not applicable.

Similarly, in Hebert v. Myers, 449 So.2d 185 (La.App. 3 Cir.1984), the court declined to apply the concept of ancillary venue to cover different claims arising from different factual circumstances against the same defendant. Noting “only hints of possible interrelated facts concerning the allegations of trespass and house rental,” the court concluded that “[t]here are no allegations that qualify as interrelated facts which would permit venue to lie in any other court than the defendant’s domicile.” 449 So.2d at 188.

With those principles in mind, we turn to Mr. Scarbrough’s two-pronged ancillary venue argument. First, he argues that ancillary venue is proper in Orleans h ^Parish based upon the claim for stopping payment on a maintenance check that he asserted in his amended petition against McDermott International and McDermott Incorporated, two entities that undisputedly have their “home base” venue in Orleans Parish. Second, he argues that ancillary venue is proper in Orleans Parish based on his claim against J. Ray Vessels as owner of the vessel or, in the alternative, as owner of garnished property located in the Orleans Parish. J. Ray counters that McDermott International, McDermott Incorporated, and J. Ray Vessels have no obligation whatsoever to Mr. Scarbrough and that J. Ray Vessels is not subject to jurisdiction in this state. It follows then, J. Ray contends, that the inclusion of these three entities in the suit does not establish venue. We separately address these two ancillary venue arguments.

First, Mr. Scarbrough has alleged a creative theory of liability under the negotiable instrument law against McDermott International and McDermott Incorporated for stopping payment on a maintenance check. He argues that because venue is proper as to that negotiable instrument law claim in Orleans Parish, the concept of ancillary venue renders venue proper as to his maritime claims against J. Ray. We disagree.

To the extent Mr. Scarbrough asserts a viable negotiable instrument claim against McDermott International and McDermott Incorporated, such claim is |13neither factually nor legally interrelated to the maritime claims he seeks to maintain against J. Ray. Mr. Scarbrough’s negotiable instrument claims are different claims against different defendants and thus, as in J & L Industries, supra, the ancillary venue concept is inapplicable.

The second prong of Mr. Scarb-rough’s ancillary venue argument is based on his assertion that venue is proper as to his claim against J. Ray Vessels, a foreign corporation not licensed to do business in this state, which he has attempted to serve in various manners. As a result of such service, he claims he has obtained either quasi in rem or personal jurisdiction over J. Ray Vessels in Orleans Parish and that venue likewise is proper there as to both J. Ray Vessels and J. Ray.

Without definitively deciding the issue of whether the clever attempt at establishing quasi in rem jurisdiction by attaching or garnishing an intangible credit — the periodic charter payments — alleged to exist in Orleans Parish is valid, we find under the facts of this case such an attempt to create ancillary venue in Orleans Parish over this claim against J. Ray invalid. As noted above, ancillary venue in the multiparty context is primarily based on La. C.C.P. art. 73. Article 73 provides that an action against joint or solidary obligors may be brought at the “home base” — Article 42 venue — of any obligor who is named a defendant. La. C.C.P. art. 73. Even assuming quasi in rem jurisdiction can be obtained over J. Ray Vessels’ property in Orleans Parish, such jurisdiction would not establish “home base” venue over J. Ray Vessels under La. C.C.P. art. 42(5), which provides that venue for a foreign corporation not licensed to do business in the state, is “in the parish where the service may be, and subsequently is, served on the defendant.” See J & L Industries, supra.

luNor do we find Mr. Scarbrough’s attempt to create ancillary venue by service of process through the Louisiana long arm statute on J. Ray Vessels valid. Mr. Scarbrough’s argument is strikingly similar to the argument we rejected in a line of recent cases. See Head v. Brent Transp. Corp., 98-1308 (La.App. 4 Cir. 6/24/98), 715 So.2d 698; Lopez v. Afram Lines (USA) Co., 96-2832 (La.App. 4 Cir. 6/11/97), 696 So.2d 273; see also Garcia v. Poseidon Shipping Co., 99-0322 (La.App. 4 Cir. 10/6/99), 746 So.2d 633. In that line of eases, we rejected the argument that venue was proper in Orleans Parish in a case brought by a foreign plaintiff against a foreign defendant arising from an accident occurring in a foreign place.

In Head, supra, we noted that the plaintiff was attempting to avoid the venue issue by invoking the Louisiana long arm statute and equating service under that statute with service of process on the defendant in Orleans Parish and thereby come under the “home base” venue rule of La. C.C.P. art. 42(5). Rejecting that argument, we reasoned that it overlooks the obvious fact that such service is delivered to the defendant outside this state and thus Article 42(5) is inapplicable. Mr. Scarbrough’s service on J. Ray Vessels through the long arm statute in the Cayman Islands is therefore insufficient to give rise to venue against it in Orleans Parish.

Nor does his attempt to serve J. Ray Vessels through the Watercraft Statute, La. R.S. 13:3479, dictate a different result. Indeed, that statute, on its face, does not appear to apply given that the vessel, the D/B 50, was docked in Mobile, Alabama at the time of the alleged injury being refurbished. Regardless, even assuming such service was proper, we find the apparent lack of personal jurisdiction over J. Ray Vessels, discussed next, renders that issue moot.

11KThe final argument Mr. Scarb-rough makes (one noted earlier in this opinion) is that by personally serving Mr. Stumpf, an officer of J. Ray Vessels, in Orleans Parish he cured the objection to improper venue. More precisely, he argues that such service created personal jurisdiction over J. Ray Vessels, and made venue proper under La. C.C.P. art. 42(5). This argument erroneously equates venue with personal jurisdiction.

Countering, J. Ray argues that such service is proper only if Louisiana courts may exercise personal jurisdiction over J. Ray Vessels. Continuing, J. Ray argues that Mr. Scarbrough’s personal service on Mr. Stumpf was improper because personal jurisdiction is lacking over J. Ray Vessels in this state. In support, J. Ray relies upon Mr. Stumpfs affidavit in which he attests to the following facts that clearly establish J. Ray Vessels’ lack of minimum contacts with this state; to wit:

• It is a foreign corporation registered in the Cayman Islands. Although it has corporate officers, it has no payroll employees. Its president is located in Houston, Texas.
• It does not now, nor did it at the time of the alleged injury (March 2000) have any offices or employees in Louisiana.
• It has never been registered, qualified, or licensed to do business in Louisiana.
• It does not now, nor did it at the time of the alleged injury own property in Louisiana.
• It did not advertise in Louisiana through any medium at the time of the alleged injury and has not done so through the present time.
• It has not entered into any contracts in this state from 1995 through the present time.
• It does not currently pay any taxes in this state and did not pay taxes in this state at the time of the alleged injury.
• It does not currently have a bank account in this state and did not have a bank account here at the time of the alleged injury.

J. Ray further points out that J. Ray Vessels is simply a holding company.

lifiGiven the strong support for finding personal jurisdiction lacking over J. Ray Vessels coupled with the fact this is a case involving a Mississippi plaintiff, an Amelia employer-defendant over whom personal jurisdiction is not contested, and an accident occurring in Mobile, Alabama, we find no error in the trial court’s refusal to find the personal service on Mr. Stumpf created “home base” venue under Article 42(5) against J. Ray Vessels and ancillary venue over J. Ray Vessels.

These creative attempts to maintain venue in Orleans Parish are illustrative of the following scenario a commentator notes in discussing the use of broad state venue provisions in maritime cases:

In Texas, for example, venue is proper against a nonresident corporate defendant in any county where the cause of action arose or where the corporation has an agent or representative. Moreover, if venue is proper as to one defendant, venue is proper as to all defendants. These rules have led to the questionable practice of joining “venue defendants,” that is, defendants that may have little potential exposure, solely for the purpose of laying venue in a county the plaintiff believes to be advantageous.

Harold K Watson, Modern Practice Considerations in Maritime Personal Injury Litigation: Procedural Weapons for Venue Battles, 68 Tul. L.Rev. 473, 478 (1994). Under the facts of this case, McDermott International, McDermott Incorporated, and J. Ray Vessel are “venue defendants.” Venue of these three entities is not relevant in determining the proper venue of this matter.

In conclusion, we affirm the trial court’s holding that venue is improper as to Mr. Scarbrough’s claim against J. Ray. We, however, clarify that the sole ruling before us is the judgment maintaining J. Ray’s exception of improper venue. Although the other defendants have asserted various exceptions and motions, those have not yet been decided, and we do not address them. To the extent the trial 117court’s judgment transfers Mr. Scarbrough’s claims asserted against the other defendants, we clarify and limit it to transfer the case only as to Mr. Scarbrough and J. Ray. See Winninger, 32,086 at p. 5, 740 So.2d at 239.

DECREE

For the foregoing reasons, we clarify the trial court judgment and affirm that judgment as clarified at appellant’s cost.

CLARIFIED AND AFFIRMED AS CLARIFIED.

WALTZER, J., concurs in the result.

      . J. Ray officially changed its designated principal business establishment from Orleans Parish to Assumption Parish (Amelia, Louisiana) in August 1997. It did so by forwarding to the Louisiana Secretary of State an Amended Annual Report for the period ending August 7, 1997. With that amended report, J. Ray included a notarized statement signed by J. Ray’s vice-president, notifying the Secretary of State of that change in its principal business establishment. The Secretary of State certified that J. Ray's principal business establishment is in Amelia.

      . These two entities also filed motions for summary judgment seeking dismissal on that basis; to wit: neither entity could be liable to Mr. Scarbrough because neither entity was his employer, owned the vessel, or had any involvement in the job on which the alleged injury occurred. Mr. Scarbrough also filed a Motion for Partial Summary Judgment to Compel Payment of Maintenance and Cure. Those motions are still pending.

      . La. C.C.P. art. 42(4) presently provides for "home base” venue of a foreign corporation that is licensed to do business in this state in the parish where either "[1] its primary business office is located as designed in its application to do business in the state, or, [2] if no such designation is made, then in the parish where its primary place of business in the state is located.” La. C.C.P. art. 42(4).

      . Countering the merits of that claim, J. Ray relies upon the deposition testimony of Tim Hebert, the senior human resources supervisor for J. Ray, who testified that regardless of what name was reflected on the maintenance check, it actually was drawn on J. Ray’s account. Explaining, Mr. Hebert stated that the McDermott entities "share a system" and that "the money for any individuals who receive maintenance benefits or anything that are paid on claims is J. Ray McDermott's." Mr. Hebert further testified that Mr. Scarbrough's sole affiliation with McDermott Incorporated or McDermott International Incorporated was that they issued a check to him on J. Ray’s behalf. Mr. Hebert still further testified that it was J. Ray that made the decision to stop the check and that it did so because the check was erroneously issued for the wrong amount. Contrary to Mr. Scarbrough's contention, Mr. Hebert testified that J. Ray contacted Mr. Scarbrough through his mother to inform him of that reason for stopping payment of the check and that it was going to reissue a check for the correct amount. Although we do not reach the merits of this claim, we note that it apparently is premised simply on the contention that McDermott International and McDermott Incorporated had some accounting involvement in issuing and stopping payment on a maintenance check; neither of those entities employ him and thus neither of those entities has any liability for maintenance and cure.

      . We note that Mr. Scarbrough cites this law review article in his brief to this court in support of his arguments.


author: | .MARION F. EDWARDS, Judge.

text:
    PREMIER RESTAURANTS, INC., et al. v. KENNER PLAZA SHOPPING CENTER, L.L.C.
    Nos. 02-CA-296, 02-CA-297.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Edward P. Gothard, Francis B. Mulhall, Metairie, LA, for Appellant.
    Robert A. Kutcher, Nicole S. Tygier, Patricia D. Tunmer, Metairie, LA, for Ap-pellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .MARION F. EDWARDS, Judge.

In this case, defendant, Kenner Plaza Shopping Center, L.L.C., appeals the trial court’s finding that it had breached its commercial lease contract with plaintiff, Premier Restaurants, Inc. Kenner Plaza and Premier both further appeal the trial court’s award of damages. For the following reasons, we reverse the trial court’s determination of liability and accordingly vacate the award of damages to the plaintiff.

FACTS AND PROCEDURAL HISTORY

This case was originally filed as one of two consolidated suits brought by Premier Restaurants, Inc., (“Premier”), and Creative Foods, Inc., against Kenner Plaza Shopping Center, L.L.C., (“Kenner Plaza”), to enforce separate commercial leases for parcels of property upon which Premier and Creative Foods would construct two restaurants, a “Copeland’s Of New Orleans” and a ‘Wrap and Roll Café.”

|aKenner Plaza Shopping Center, L.L.C., is the owner of the property and improvements located on Williams Boulevard in Kenner between West Esplanade Avenue and 33rd Street, bearing the municipal address 3300-3400 Williams Boulevard. On January 22, 1998, Premier filed a petition for declaratory judgment, specific performance and damages, claiming that on July 15, 1997 it entered into a lease agreement with Kenner Plaza in conjunction with the development of a Copeland’s of New Orleans restaurant.

Premier alleged that, shortly after the lease was executed, its project was faced with objection from other Kenner Plaza tenants and that Kenner Plaza then asked Premier to “swap” its location with that reserved for a Wrap & Roll Café being developed by Creative Foods, Inc. Premier stated that as an accommodation to Ken-ner Plaza it agreed to exchange locations as requested.

Kenner Plaza responded with an exception of no cause of action, which was denied. Following Kenner Plaza’s answer, Premier filed a Motion for Partial Summary Judgment on liability, asserting that Kenner Plaza breached the Lease by refusing to allow Premier to begin construction. On January 13, 1999, the trial court granted Premier’s Motion for Summary Judgment on the issue of liability, finding that the Lease contained a covenant by Kenner Plaza that the Shopping Center had sufficient parking, and contained no provisions that would require approval of any other tenant of the shopping center before construction or use of the leased premises could begin. Kenner Plaza appealed.

DWhile the prior appeal of the liability judgment was pending, plaintiff had filed a Motion for Partial Summary Judgment on specific performance. Plaintiff argued that because the court had already found judgment in its favor on liability under the lease, it was entitled to specific performance as a matter of law. On August 12, 1999, the trial court granted plaintiffs Motion for Partial Summary Judgment on specific performance, “[f]or the reasons assigned in plaintiffs memorandum and oral argument, and also due to defendant’s failure in demonstrating the existence of a genuine issue of material fact as to why plaintiff is not entitled to specific perfor-manee, the preferred remedy for breach of contract under Louisiana law.”

Motions for new trial on both partial summary judgments were heard on August 27, 1999 and denied by judgment of September 15,1999, culminating in Kenner Plaza’s second appeal. In that appeal, we reversed both summary judgments, finding that the attachments provided in support of Premier’s Motion for Summary Judgment on the issue of liability were insufficient to establish not only that there was a valid lease but also that the lease was breached. Because the second summary judgment was predicated upon the trial court’s finding of liability, we accordingly reversed the trial court’s Summary Judgment on the issue of specific performance as well.

While the above referenced appeals were pending in this court, a trial on damages was held in the district court resulting in a 1.25 million dollar damage award, with interest and attorney’s fees, in favor of Premier | ¡^Restaurants, Inc. That judgment was rendered on March 9, 2000, and a third appeal was taken by Kenner Plaza. Then, on August 29, 2000, this court set aside the two prior summary judgments regarding liability and remanded the case to the district court for a trial on that issue. In light of our holding in the third appeal, that summary judgment on the issue of liability was erroneous, we found that there was no basis for a damage award to Premier. Accordingly, we vacated the award of damages as premature and remanded the case for further proceedings.

On December 11, 2000, Kenner Plaza filed an Amended Answer, alleging, in part, that it never informed Premier that it could not build a restaurant, that it never breached the lease, and that Premier breached the lease by failing to begin construction and failing to provide plans and specifications as well as the necessary permits.

The trial forming the basis of the present appeal was held on June 20, 2001. The trial court issued its Judgment and Reasons for Judgment on September 10, 2001, awarding Premier $702,585.00, in addition to $17,682.92 per month for lost profits and 12 percent contractual interest per annum for each additional month of delay thereafter. The trial court further awarded $183,493.75 for attorney’s fees and $8,693.44 for costs.

On November 6, 2001, Kenner Plaza timely filed a Motion for Appeal, which was granted on November 13, 2001. On November 13, 2001, Premier also timely filed a Motion for Appeal from the damages portion of the judgment, which was granted on November 15, 2001.

RLAW AND ANALYSIS

In its second, third, and fourth assignments of error, Kenner Plaza argues, in essence, that the district court erred in finding that it had breached the lease at issue. Specifically, Kenner Plaza asserts that the trial court erred in finding that it was required under the lease to provide additional approval for the proposed site of Premiere’s “Copeland’s” restaurant prior to construction.

As we noted in DiBenedetto v. Automotive Cas. Ins. Co. , our appellate re view is what is commonly referred to as an Arceneaux review in that we must determine from the record whether there was a reasonable factual basis for the trial court’s factual findings and further determine whether the trial court erred as a matter of law. Additionally, as the Louisiana Supreme Court noted in Stobart v. State, DOTD, “a Court of Appeal may not overturn the Judgment of a Trial Court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong.” In regard to appeals involving contractual disputes however, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply.

|7La. C.C. art. 2670, defines the essential elements of a lease contract as the thing, the price, and the consent. In our independent review of the lease in this case, we note that while the requirements of price and consent under Art. 2670 are clearly delineated, the “thing” of the lease is less clearly defined.

Subsection One of the lease describes the leased premises as being situated at:

Kenner Plaza Shopping Center
3300-3400 Williams Boulevard
Kenner, Louisiana 700062[sic],

Section One further states:

Lessor and Lessee mutually agree that the drawings or description attached hereto as Exhibit “A” constitutes the Leased Premises to the best of their knowledge, but that the same do not constitute a legal description of the Leased Premises. Lessor and Lessee further agree that upon completion of the survey and, if applicable, plan of subdivision pursuant to subsection C of Section 9 hereof, this Lease shall be amended by attaching the description of the Leased Premises from said survey as Exhibit “A-I which Exhibit “A-I” shall be for the same property described in Exhibit A and shall be deemed to be the legal description of the Leased Premises for the purpose of this Lease. [Emphasis provided].

Subsection C of Section 9 states, in relevant part:

Following the effective date of this Lease, Lessee shall order a current certified survey of the Leased Premises, bearing a legal description of the Leased Premises, made and prepared by a reputable and competent licensed surveyor ... In addition to the foregoing, if deemed necessary by Lessee, Lessee shall order a plan of subdivision for the Leased Premises made and prepared by a reputable and competent licensed surveyor in the jurisdiction in which the Leased Premises are located showing the Real Property and any and all easements and restricted property set forth in this Lease. [Emphasis provided]

|sNo further written identification or physical description is provided in the lease document regarding the dimensions of the property leased by Premier. We find that the description of the leased premises, as to the property leased, with a physical description to be provided at a later date, is ambiguous as written. We therefore turn to the parol evidence established at trial to confirm the original intent of the parties as to the actual leased property.

In this case, Denise Gaines, an employee of Kailus Management, the owner Kenner Plaza, who also negotiated the lease with Premier, testified that the parties intended for the leased property to be located “Up against the Taco Bell in front of Burlington”, which is at the south western edge of Kenner Plaza’s property. This testimony is consistent with the indication made on the site map attached to the lease. The record reflects, however, that Premier never had the leased premises surveyed in order to generate a legal description, as required under Subsection C of Section 9, and therefore, the precise location of the leased premises was never ascertained.

The record next shows that after signing the lease, the parties entered into negotiations to “swap” the original location referred to in the lease for another location on Kenner Plaza’s property for which A1 Copeland, Jr.’s other business, Creative Food Concepts, had also entered into a lease for the purpose of building a restaurant. At trial, Gaines testified that A1 Copeland, Jr. had suggested swapping the location of the Copeland’s restaurant for the site of another lease on the Kenner Plaza | sproperty, upon which a “Wrap and Rolls” restaurant would be built. Gaines also testified, however, that Kenner Plaza was reluctant to allow Premier to build Copeland’s on the proposed “swap” site because of negotiations that were ongoing with a prospective tenant, Albertson’s. Specifically, Gaines agreed that Kenner Plaza did not want the Copeland’s, on the proposed “swap” site, to “block” the storefront of the perspective Albertson’s.

At trial, A1 Copeland, Jr., testified that Gaines had called him and asked if he would consider switching the site of the Copeland’s restaurant from the site designated in the lease. Copeland further testified that he had no objection to switching the sites, as proposed. Copeland then testified that he received an indication that the “back tenants” in Kenner Plaza took issue with the proposed “swap” site regarding “ingress and egress” and “view corridor.” Copeland also stated. that at one point in time, Kenner Plaza suggested buying out a Church’s franchise located on the property, and building Copeland’s Restaurant there instead. Finally, Copeland testified that he feared that Kenner Plaza would never allow him to build on their property, and that he would not “build a $2 million dollar project on a pad without approval of where it should — exactly it should be from the landlord.”

We next review the terms of the lease that relate to Premier’s construction of a restaurant on the leased premises. Section 10 of the lease provides:

During the original term or any renewal term of this Lease, Lessee may make alterations, additions and improvements |into the Leased Premises. Lessee shall have the right to erect and install such other or additional improvements, and equipment on the Leased Premises as Lessee may, with Lessor’s written permission which shall not be unreasonably withheld, deem desirable for conduction its business thereon or for such other business as Lessee may deem advisable. [Emphasis provided].

In its Reasons for Judgment, the trial court indicated that it relied on Section 10 to make it ruling:

The evidence presented at trial indicates that subsequent to the execution of •the lease, there was some discussion amongst the parties as to a “swap” in locations on the Kenner Plaza property of the proposed Copeland’s Restaurant and the Wrap and Roll restaurant then being developed pursuant to a separate lease also dated July 15, 1997. As a result of the proposed “swap” in locations and the alteration the proposed swap caused to the lease, Premier Restaurants forwarded two demand letters to Kenner Plaza requesting authority to begin construction. This request was properly made pursuant to Article 10 of the lease ... At the trial of the matter, both Al Coperland, Jr., Premier Restaurant’s principal and Denise Gaines, Kenner Plaza’s representative testified that, despite the demand letters requesting the authority to begin construction, it was never communicated to Mr. Copeland that he could begin construction on his restaurant, either on the proposed “swap” site or the original site.

In regard to the trial court’s finding that discussions over possible “swap” locations and proposed alterations to the lease somehow changed the lease site location, we first take note of section nine of the lease, which provides:

This Lease contains the entire agreement between the parties and any agreement hereafter made shall be ineffective to change, modify or discharge it in whole or in part unless such agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. [Emphasis added].

By the very terms of the lease, any proposed “swap’ location that was not in writing and signed by Kenner Plaza would not be effective against it. Thus, in spite of any discussions that took place between the parties, we find that the location of the restaurant site, as defined by the lease, did not | X1 change, and therefore no additional approval for construction by Kenner Plaza was necessary on those grounds.

Finally, we review the trial court’s determination that, under Article 10 of the lease, Kenner Plaza was required to provide authority to begin construction on the restaurant, beyond that which it had already provided. Our reading of the first sentence of Article 10 leads us to the conclusion that the lease clearly allowed Premier to make alterations, additions and improvements to the Leased Premises. The second sentence, however, pertaining to the erection and installation of other or additional improvements and equipment after a written request, appears to be the trial court’s basis for an award of damages.

La. C.C. Art.2056 provides that, “In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.” After an independent review and examination of the lease, we find the second sentence of Article 10, as it is written, requires written permission from Kenner Plaza for construction only as it pertains to additional improvements and equipment, not initial construction.

Based on the foregoing, we find that, although it certainly would have made perfect sense for the lease to require Kenner Plaza to give written permission to begin initial construction on the Copeland’s Restaurant, as the lease is presently written, no such written permission by Kenner Plaza was required. Therefore, we conclude that Kenner Plaza did not breach the terms of the lease and reverse the trial court’s finding on this issue. Because the trial court’s finding of Kenner Plaza’s liability must |12be reversed, we further vacate the trial court’s award of damages to Premier Restaurants, Inc.

For the foregoing reasons, the judgment on appeal is reversed and vacated.

REVERSED AND VACATED.

      . Creative Food Concepts, Inc., v. Kenner Plaza Shopping Center, L.L.C., bearing Civil Action No. 519-542, pertaining to the Wrap and Roll Café, was voluntarily dismissed.

      . Upon the motion of Kenner Plaza, this Court dismissed the first appeal without prejudice, as the liability judgment upon which it was based was not a final judgment.

        . Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, L.L.C., 99-1310 (La.App. 5 Cir. 8/29/00), 767 So.2d 927.

      . Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, L.L.C., 00-1700 (La.App. 5 Cir. 1/30/01), 778 So.2d 1180.

      . 94-35 (La.App. 5 Cir. 5/31/94), 638 So.2d 385, 387; writ denied, 94-1776 (La. 10/28/94), 644 So.2d 650.

      . See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

      . 617 So.2d 880 (La.1993).

      . Conoco, Inc. v. Tenneco, Inc., Tennessee Gas Pipeline Company, 524 So.2d 1305, 1312 (La. App. 3rd Cir.); writ denied, 525 So.2d 1048 (La.1988).

      .Exhibit "A” to the lease, entered into evidence by Premiere at trial, is comprised of a photocopied survey map upon which a single corner, of what appears to be identified as the corner of a parking lot, is marked in highlighter with an inverse "L”, presumably showing the boundary of the leased premises.

      . Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087, 1089 (La.1981).

      . Albertson's never became a tenant of Ken-ner Plaza.


author: [.EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Jean S. Zapalowski, Wife of/and Donald ZAPALOWSKI, Individually and on Behalf of their Minor Son, Stephen Zapalowski v. Kenneth S. CAMPBELL, Donna Gauthier Walker, Wife of/and Michael Joseph Walker and Allstate Insurance Company.
    No. 02-CA-829.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.
    Boggs, Loehn & Rodrigue, Charles A. Boggs, New Orleans, LA, for Plaintiffs-Appellees.
    E. Ross Buckley, Jr., Kingsmill, Riess, L.L.C., New Orleans, LA, for Defendants-Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and MARION F. EDWARDS.
   [.EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Jean and Donald Zapalowski, plaintiffs-appellants, from a summary judgment dismissing their claims against Kenneth Campbell, defendant-ap-pellee. Campbell was the prior owner of a residential property upon which the Zapa-lowski’s minor son was injured. For the following reasons we affirm that judgment.

The facts are as follows. On October 20, 2000, plaintiffs’ son Stephen was injured when a brick wall in the back yard of a house fell on him. Plaintiffs sued Donna and Michael Walker, the homeowners, who had purchased the property in 1995, as well as Campbell, who had then sold it to them. In July of 1991, Campbell had hired a tree trimming company to remove some trees. During the work the brick wall was knocked down, but subsequently rebuilt. Plaintiffs alleged in their suit that the wall was defective from the time Campbell had owned the property and that he was therefore liable for their son’s injuries.

Campbell and his insurer moved for summary judgment. They filed affidavits from Campbell in which he stated that the wall had been knocked down in 1991 by the tree trimmers, and that they had hired masons to rebuild it. He | .further said that he knew of no defect in the reconstructed wall when he sold the property, and that the Walkers had never complained of any defect.

Plaintiffs filed an affidavit from a neighboring property owner in which this person stated that the wall had been laid down by the tree trimmers to remove debris. He further said that the wall had then been stood back up on the foundation, but he did not know how it had been reattached. No mention of any defect is made in this affidavit.

On the above showing the trial judge granted summary judgment in favor of Campbell and his insurer. This appeal followed.

Appellants assert here that there are contested issues of fact in the following three particulars concerning whether Campbell had actual or constructive knowledge that: 1) the wall was defectively repaired, 2) that it had deteriorated between the time that it was repaired and the house was sold to the Walkers, and 3) that the soil under the wall was subject to shrinkage thus causing settling with consequent cracking of the mortar.

Article 966 of the Code of Civil Procedure provides that when the moving party does not bear the burden of proof at trial, as is the case here, it is sufficient for that party to show that there is an absence of factual support for one or more of the essential elements of the adverse party’s claim. Article 967 of that Code further provides that when a motion for summary judgment is urged, the adverse party may not simply rely on the averments of his petition, but must come forward with affidavits or as otherwise provided showing that there are contested issues of fact for trial.

Here, all three of plaintiffs’ theories of liability are based upon assertions of facts not supported by any evidence appearing in the record. Campbell’s papers show that he knew of no defects in the wall from the time it was rebuilt until he sold the property, and that he never learned of any later developing defects from |4the Walkers or anyone else. Plaintiffs’ only evidence concerning the wall was the affidavit of the neighbor who said that the wall had been knocked down in one piece by the tree trimmers and had been raised back into place. This affidavit says nothing about whether it was improperly reattached to the foundation, or about any defects from .construction, soil subsidence, cracked mortar, or any other type of problem appearing in the wall. Thus, there were simply no facts asserted by plaintiffs’ that cast any doubt on Campbell’s affidavit testimony that the wall was sound when he owned the property, and that he had never been told of any defects occurring thereafter. On this showing summary judgment in favor of Campbell was properly entered.

For the foregoing reasons the judgment dismissing this suit against Kenneth Campbell and his insurer is hereby affirmed.

AFFIRMED.


author: | .EDWARDS, Judge.

text:
    STATE of Louisiana v. Noel DUQUESTRADA.
    No. 02-KA-0665.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Appellee.
    Holli Herrle-Castillo, Marrero, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .EDWARDS, Judge.

Defendant, Noel Duquestrada, appeals his conviction and sentence for a violation of La.R.S. 40:967(C). We affirm as follows.

Duquestrada was charged with one count of possession of cocaine, and after initially entering a plea of not guilty, a motion to suppress the evidence was heard and denied. Subsequently, Duquestrada withdrew his former plea and entered a plea of guilty as charged, pursuant to State v. Crosby, reserving the right to appeal the denial of his motion to suppress.

The same day, the trial judge sentenced Duquestrada to serve one year in parish prison, suspended the sentence, and ordered him to be placed on active probation for one year. The court also ordered him to pay a fine of $1000, a drug court fee of $150, as well as costs and fees. Duques-trada also pled guilty pursuant to State v. Crosby, to possession of an open container in violation of the Jefferson Parish Municipal Ordinance in district court case number 02-0046. However, that case is not at issue on this appeal.

| .The facts are drawn from the testimony of the arresting officer, Deputy Michael Kinler, at the suppression hearing.

On December 24, 2001, at approximately 1:15 p.m., Deputy Kinler of the Jefferson Parish Sheriffs Office was on patrol with a deputy trainee. Deputy Kinler testified that they observed two men in a car in the parking lot of DC’s Lounge, which is located at the corner of Wright Avenue and Terry Parkway. At first, Deputy Kinler only saw the front seat passenger, later identified as Duquestrada, sitting in the car drinking a bottle of Budweiser beer. However, as Deputy Kinler continued to watch, the driver sat up, looked around, and passed something to the passenger. The driver then sipped a beer while Du-questrada leaned over in the car. According to Deputy Kinler, Duquestrada “brought something to his face” as he bent down. When Duquestrada sat up, he looked around, “in a lookout manner.” Deputy Kinler stated that he could clearly see the beer’s label, since the label faced his vantage point.

Because Deputy Kinler believed that the occupants’ actions were indicative of smoking marijuana or using cocaine, he decided to initiate a “suspicious person stop.” However, the vehicle left the parking lot and entered Terry Parkway before Deputy Kinler could reach the vehicle. After Deputy Kinler activated his lights and siren on the marked police unit, the vehicle reentered the parking lot at DC’s Lounge. The driver exited, and Deputy Kinler requested his operator’s license. According to Deputy Kinler, the driver said, “You know I’ve (sic) to run,” and fled. Deputy Kinler and the deputy trainee ultimately caught the driver and returned him to the car where Duquestrada had remained.

Through the open driver’s side door, Deputy Kinler observed a brown vial containing white powder on the floorboard. According to Deputy Kinler, he could see into the vial because the vial did not have a lid and was facing the driver’s side |4door. Deputy Kinler testified that both the driver and Duquestrada were arrested for violating the open container law and for possession of cocaine.

Duquestrada contends that the cocaine should have been suppressed because Deputy Kinler unlawfully stopped the vehicle in which he was a passenger. According to Duquestrada, the vehicle had to be on a public road in order for the occupants to violate the municipal open container law. Duquestrada asserts that the trial judge should not have believed the' deputy’s uncorroborated testimony that the vehicle had left the parking lot and entered Terry Parkway when it was stopped.

The Fourth Amendment and Article I, Section V of the Louisiana Constitution protects individuals from unreasonable searches and seizures. However, the right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime is recognized by state and federal jurisprudence.

An investigatory stop, authorized by LSA-C.Cr.P. art. 215.1 and Terry v. Ohio, supra, must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is something less than probable cause to arrest. Rather, it requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual’s right to be free of government interference.

The reviewing court must consider the totality of the circumstances, according deference to the inferences and deductions of a trained police officer that might elude an untrained person. The reputation of a neighborhood as a |Bhigh-crime area is an articulable fact upon which an officer may legitimately rely in making a determination as to reasonable suspicion for an investigatory stop.

Duquestrada concedes in brief that Jefferson Parish Municipal Code Article 1, Sec. 4-5 prohibits an operator or a passenger in or on a motor vehicle from possessing an alcoholic beverage in an open container when the vehicle is on a street or highway. Further, he admits that “[t]he observation of a violation of a municipal ordinance would clearly fall within the scope of behavior for which 215.1 would be applicable.”

He contends, however, that no violations of the municipal ordinance occurred because the vehicle was not operated upon a street or highway.

The thrust of Duquestrada’s argument is that the trial judge should not have believed Deputy Kinler’s testimony that the vehicle left the parking lot and entered Terry Parkway. Duquestrada urges that it is not believable that the driver would leave the parking lot, only to re-enter the parking lot, since the driver ultimately fled the scene. Further, Duquestrada points out that the police report does not indicate that the car entered Terry Parkway.

At the hearing, Deputy Kinler acknowledged that the report did not so indicate, but explained that fact was mistakenly left out of the report. The report was not introduced at the hearing. After the hearing, the trial judge denied the motion to suppress as follows:

THE COURT:

The Court finds Reasonable Suspicion of illicit activities have been committed within the purview of this Officer; both on private property and public property.

In denying the motion, the trial judge obviously believed Deputy Kinler’s testimony. This Court has stated that the “[cjredibility of witnesses is best determined by the trial judge and is not to be upset on appeal unless the trial judge | fiabuses his or her discretion.” We find nothing in the record indicates that the judge abused his discretion in crediting the testimony of Deputy Kinler.

Even if the vehicle had not entered the street with the occupants in possession of open containers, we find that reasonable suspicion of criminal activity existed under the present circumstances. Deputy Kinler testified that the actions of the passenger and the driver , were indicative of either marijuana or cocaine use. Further, Deputy Kinler, a police officer since 1993, stated that the parking lot of DC’s Lounge was known for drug use, and that he had personally made arrests involving ecstasy and cocaine at that location. An officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop.

The vial containing cocaine residue was discovered in plain view as Deputy Kinler looked into the car through the open door after the driver had fled. In order for the plain view exception to the warrant requirement to apply, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband. Because Deputy Kinler lawfully stopped the vehicle and observed the vial containing cocaine in plain view, the trial court properly denied defendant’s motion to suppress the evidence. This assignment of error is without merit. The record was reviewed for errors patent according to La. C.C.r.P. art. 920. The minute entry/commitment reflects that the trial judge imposed the fine, costs, and 17Commissioner’s Fee as conditions of probation, whereas the transcript does not. In sentencing Duquestrada, the trial judge stated:

... [T]he Court Sentences you, pursuant to your Crosby Plea, Article 893; one year in the Parish Prison, suspended; one year active probation, a thousand-dollar fine, $150 drug court fine, cost and fees.

The trial judge did not state that he was imposing the monetary requirements as special conditions of probation.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. Accordingly, we remand the matter to the district court and order it to delete from the minutes/commitment the reference to the monetary conditions of Duquestada’s probation.

For the foregoing reasons, the conviction and sentence are affirmed, and the matter remanded for proceedings consistent with this opinion.

CONVICTION AND SENTENCE AFFIRMED; REMANDED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Keller, 403 So.2d 693, 696 (La.1981).

      . State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

        . State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049; State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

      . State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 527, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117.

      . State v. Snavely, 99-1223 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, 957, writ denied, 00-1439 (La.02/16/01), 785 So.2d 840 (citation omitted).

        . State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102.

        . Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 116, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464.

      . Also State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Haynes, 96-84 (La.App. 5 Cir. 5/25/96), 676 So.2d 1120, 1123


author: J^CHEHARDY, Judge.

text:
    STATE of Louisiana v. Rene J. DECAY.
    No. 02-KA-705.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Rene J. Decay.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   J^CHEHARDY, Judge.

Defendant is before us on second appeal. On October 2, 2000, defendant was convicted of one count of possession of over 400 grams of cocaine, one count of attempted possession of over 400 grams of cocaine and carrying an illegal weapon by a convicted felon. Defendant was sentenced to forty years imprisonment and fined $250,000 for possession of cocaine; twenty years imprisonment at hard labor and fined $125,000 for attempted possession of cocaine; and fifteen years at hard labor for possession of a firearm by a felon, with the sentences to be served consecutively.

After a hearing, the trial judge found that the defendant was a habitual offender, vacated his original sentence of forty years imprisonment at hard labor and fine of $250,000.00 for possession of cocaine, and sentenced him to life in prison, without benefit of parole, probation, or suspension of sentence. Defendant filed a timely motion for appeal.

On appeal, this Court affirmed his convictions and sentences for attempted possession of over 400 grams of cocaine and felon in possession of a firearm. State v. Decay, 01-192 (La.App. 5 Cir. 9/13/01), 798 So.2d 1057, writ denied, 01-2724 (La.8/30/02), 823 So.2d 939. Because two Judges on this Court found that |.<¡the record was unclear as to the number of previous felony convictions the State proved at defendant’s multiple offender hearing, his enhanced sentence was vacated and the case was remanded for resentencing. Id. at 1078.

On April 19, 2002, the defendant appeared before the trial judge for resen-tencing. That day, the trial judge determined that the defendant was a third felony offender, vacated the defendant’s original sentence for possession of cocaine, and imposed an enhanced sentence of life imprisonment without probation, parole, and suspension of sentence, to run consecutively with the other two sentences. Defendant orally objected to the sentence.

On appeal, defendant’s sole assignment of error is that his life sentence is excessive and constitutes cruel and unusual punishment. He contends that he is not the worst offender nor is this the worst offense. Additionally, he alleges he received the maximum sentence and there were not sufficient aggravating circumstances to warrant such a sentence. Interestingly, his arguments in this appeal duplicate those in the fourth assignment of error of his first appeal. We note, that, as in his first appeal, defendant failed to file a written motion to reconsider sentence.

In our opinion on defendant’s first appeal, we stated:

In his fourth assignment of error, the defendant contends that the trial judge erred in denying his motion to reconsider a constitutionally excessive sentence because he did not adequately consider the guidelines set forth in La.C.Cr.P. art. 894.1 in particularizing his life sentence. He argues that the maximum sentence was unwarranted in his case because he is not the worst type of offender and his was not the most serious offense.
The State responds that, although the defendant filed a motion to reconsider his underlying sentence, he did not file a motion to reconsider his enhanced sentence. The State also points out that, after finding that the defendant was a third felony habitual offender, the trial judge imposed the minimum mandatory sentence, not the maximum sentence. The State notes that the defendant did not present evidence at the habitual offender sentencing hearing to rebut the presumption of constitutionality 14of the minimum prison sentence mandated by La. R.S. 15:529.1.
The record reflects that the defendant failed to file a motion to reconsider his enhanced sentence, but he did verbally object when it was imposed.
La.C.Cr.P. art. 881.1 provides that a defendant may file a motion to reconsider sentence within 30 days of sentencing, but requires that the motion be made orally at the time of sentencing, or in writing, and that it set forth the specific grounds on which the motion is based. The failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, precludes a defendant from raising those grounds on appeal. State v. Mims, 619 So.2d 1059 (La.1993); State v. Holmes, 94-907 (La.App. 5 Cir.3/15/95), 653 So.2d 642, 646. In Mims, the Louisiana Supreme Court was silent as to whether the failure to comply with Article 881.1 precludes even a claim of constitutional excessiveness. However, in similar circumstances, this Court has considered the issue of whether the sentence was constitutionally excessive. State v. Tribbit, 00-153 (La.App. 5 Cir.8/29/00); 767 So.2d 901, 903; State v. Stec, 99-633 (La.App. 5 Cir.11/30/99), 749 So.2d 784, 789; State v. Richmond, 98-1015 (La.App. 5 Cir.3/10/99), 734 So.2d 33, 38.
Both the United States and Louisiana constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const.Amend. 8 La. Const. of 1974, Art. I, Sect. 20. Richmond, 734 So.2d at 38. A sentence is generally considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id.; State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. However, the sentence will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. Richmond, 734 So.2d at 38. The trial judge is afforded wide discretion in determining a sentence and, if the record supports the sentence imposed, the court of appeal will not set aside a sentence for excessiveness. La.C.Cr.P. art. 881.4(D); Richmond, 734 So.2d at 38. Furthermore, a sentence may be reviewed for excessiveness even though it is within statutory range. Id.

La. R.S. 15:529.1(A)(l)(b)(ii) provides that:

If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person |Bshall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Here, the trial judge found that the defendant was a habitual felony offender with an underlying felony drug offense and sentenced him as a third felony offender under La. R.S. 15:529.1(A)(1)(b)(ii). Further, the Louisiana Supreme Court has repeatedly upheld the constitutionality of Louisiana’s Habitual Offender Law. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). Nonetheless, the courts have the power to declare a sentence excessive under Article I, § 20 of the Louisiana Constitution even though it falls within the statutory limits provided by the Legislature. State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339, 342; Johnson, 709 So.2d at 676.

In Johnson, the Court established guidelines on downward departures from the minimum sentence mandated by the Habitual Offender Law:

A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.

Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.

Instead, to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Id. at 676, 677. (Citations omitted).

In affirming the defendant’s conviction and mandatory sentence in Lindsey, the Louisiana Supreme noted:

In fact, he is exactly the type of offender that the Habitual Offender Statute intends to punish so severely. I fjie is sentenced to life imprisonment because he continues to commit felony after felony. The fact that his last felony was the only violent crime against a person is not an “unusual circumstance” that would support a downward departure. A person with three prior non-violent felony convictions who then proceeds to commit a felony involving violence against a person has shown that his criminal conduct is becoming worse. The goals of the Habitual Offender Statute, to deter and punish recidivism, are satisfied by imposing a life sentence against such a person.

Lindsey, 770 So.2d at 344.

At the sentencing hearing, the defendant did not argue for downward departure from the mandatory minimum sentence in his case. He did not present any evidence, much less clear and convincing evidence, sufficient to rebut the presumption that the mandatory minimum sentence mandated by the legislature is constitutional. In addition, the defendant was found to be a habitual felony offender with an underlying felony drug conviction. According to Lindsey, the defendant in this case is “exactly the type of offender that the Habitual Offender Statute intends to punish so severely.”

While the defendant claims that he was not the worst type of offender and his was not the worst type of offense, the State read his rap sheet entailing nine prior felony convictions at the defendant’s original sentencing. At that time, the trial judge stated:

Mr. Decay, stand up.
I have listened to your rap sheet, Mr. Decay, and I’ve also presided over the trial in which you were found guilty on these three counts. I’m particularly aware of the fact that you were convicted in Judge Sullivan’s court of the conspiracy to commit a bribe of a public official, namely a D.A. investigator. That, to me, is as serious as your other offenses, because with that conviction, it established that you tried to subvert and destroy the confidence of the criminal justice system, the D.A.’s office, the Judiciary, and all other aspects of the system. I find that most grievous ...
Consequently, we find no merit in the defendant’s assertion that he is not the type of offender that should be given the minimum mandatory sentence. Furthermore, he failed to produce any evidence that would rebut the presumption of constitutionality of the minimum sentence as required by State v. Johnson, 709 So.2d at 676. Finally, although the defendant 17complains that the trial judge failed to articulate reasons for sentence, it was unnecessary for the trial judge to do so because this sentence was mandatory. State v. Windham, 99-637 (La.App. 5 Cir.11/30/99), 748 So.2d 1220, 1224 (citing State v. Haynes, 98-588 (La.App. 5 Cir.2/23/99), 729 So.2d 104, 109). Thus, we find that the trial court did not abuse its wide discretion in imposing the mandatory minimum sentence on the defendant and, further, we find that the sentence was not excessive.

Decay, 798 So.2d at 1075-1077.

We adopt the reasoning set forth in our first opinion and find, here as we did previously, that the minimum mandatory sentence imposed was not excessive. For a second time, we conclude that defendant’s assignment of error lacks merit.

Finally, we have reviewed the record on remand for errors patent and found none that require remand. Defendant’s enhanced sentenced is affirmed.

AFFIRMED.