author: [¶ KIMBALL, Justice. |!VICTORY, J.,

text:
    Charlene MILLER, Individually and on behalf of her minor children, v. Matthew & Shirley MARTIN, Department of Social Services, State of Louisiana and Methodist Home for Children.
    No. 2002-CC-0670.
    Supreme Court of Louisiana.
    Jan. 28, 2003.
    Rehearing Denied March 21, 2003.

      David R. Fine, Donata T. Boutte, Richard L. Ducote, New Orleans, Counsel for Applicant.
    Richard P. Ieyoub, Attorney General, M. Chadwick Pellerin, New Orleans, Stephen F. Babin, Baton Rouge, Matthew Martin, William J. Sommers, Jr., James R. Sutter-field, New Orleans, Shirley Martin, Counsel for Respondent.
   [¶ KIMBALL, Justice.

We granted certiorari to consider whether the Department of Social Services (“the Department”) can be held vicariously liable for abuse inflicted by foster parents upon children in the custody of the Department. For the following reasons, we find that when the Department is awarded legal custody of a child, the law imposes upon the Department a duty of care and protection of that child. Further, we find that the Department’s custodial duty is non-delegable. Therefore, we conclude that when a child is abused by foster parents, the Department may be held vicariously liable for the abuse.

Facts and Procedural History

Plaintiff, Charlene Miller, is the biological mother of two children, C.V.M., a female, who was born on July 25, 1989, and C.M., a male, who was born on February 9, 1987. On October 23, 1996, Charlene Miller, individually and as the administrator 12of the estates of her minor children C.V.M. and C.M., filed a petition in district court against Matthew and Shirley Martin and the Department, alleging that these defendants are liable for injuries sustained by her children. Specifically, plaintiffs petition alleges that from August 1994 through July 1996, the Department was given both legal and physical custody of the children by the Jefferson Parish Juvenile Court. During that time, the children were placed in the foster home of the Martins, who are alleged to be the agents and/or employees of the Department. The petition further alleges that during the time period in which the children were in foster care, Matthew Martin sexually abused C.V.M. and physically abused C.M. In addition to alleging the liability of the Martins, plaintiff asserts that the children’s injuries were caused by the negligence of the Department, its agents, and employees in failing to properly screen, investigate, train, supervise, and monitor the foster parents, failing to investigate reports of abuse from its foster children, and failing to promulgate policies and procedures to ensure that foster children are not abused by foster parents. Additionally, plaintiffs petition alleges in paragraph 12:

Furthermore, [the Department] is strictly liable and vicariously liable to these plaintiffs for all of their damages resulting from the abuse by a foster parent, as a matter of law.

On January 17, 1997, plaintiff amended her petition to add Methodist Home for Children (“MHC”) as an additional defendant. Plaintiff alleged that MHC had a contract with the State of Louisiana to share the responsibility for screening, investigating, approving, and/or supervising the Martins as foster parents. Thus, plaintiffs petition alleged MHC was negligent on the same grounds as those asserted against the Department in the original petition.

|oOn January 4, 2001, plaintiff amended her petition for a second time, substituting the following language for former paragraph 12:

Furthermore, [the Department] and Methodist Home for Children, Inc. are strictly liable and vicariously liable to these plaintiffs for all of their damages resulting from the abuse by a foster parent, as a matter of law, as both entities shared the responsibility for the well-being of the children, who were in the State’s custody, in the Martin Home, and served as joint employers and/or supervisors of the Martins.

On March 22, 2001, summary judgment was granted in favor of MHC, dismissing MHC as a defendant in this case.

On September 12, 2001, the Department filed a motion for summary judgment seeking to dismiss plaintiffs strict liability claims. In its motion, the Department argued that the law does not permit the Department to be held strictly liable for alleged acts of foster parents against foster children in the custody of the state. The Department also maintained it is neither the employer nor the principal of the Martins. Plaintiff opposed the motion for summary judgment, relying on Vonner v. State Through Dept. of Public Welfare, 273 So.2d 252 (La.1973), and Cathey v. Bernard, 467 So.2d 9 (La.App. 1 Cir.1985), for the proposition that the Department is vicariously liable for the abuse foster parents inflict upon foster children. After a hearing on the motion, the district court denied the Department’s motion for summary judgment based on this court’s decision in Vonner.

The court of appeal granted in part the Department’s application for supervisory writs, finding that the district court should have granted the motion for summary judgment on the issue of whether the Department can be held strictly liable for the torts of the foster parents. Miller v. Martin, 01-1425 (La.App. 5 Cir. 2/6/02) (unpublished decision). The court of appeal analyzed the language used by the courts |4in Vonner and Cathey and concluded that those cases suggest that a negligence standard, rather than one of strict liability, applies to the determination of whether the Department is liable in this case. The court of appeal found, however, that because genuine issues of material fact exist regarding the Department’s negligence, summary judgment on this issue would be inappropriate.

We granted certiorari upon plaintiffs application to consider the legal issue of whether the Department can be held vicariously liable for abuse inflicted by foster parents upon children in its custody. Miller v. Martin, 02-0670 (La.6/7/02), 818 So.2d 773.

Discussion

Plaintiff assigned one error to this court: '

The fifth circuit court of appeal clearly-erred as a matter of law in interpreting Vonner v. State as imposing a negligence standard upon [the Department] for [the Department’s] liability for damages resulting from sexual and physical abuse of foster children in the legal custody of [the Department] at the hands of foster parents.

Plaintiff argues that under Vonner, the Department is liable for the abuse of foster children in its custody without regard to fault. Plaintiff further maintains that the court of appeal’s narrow interpretation of Vonner ignored this court’s statement that the Department’s liability in that case rested “upon a broader base than negligent compliance with its own regulations for the health and care of the children in its custody.”

In response, the Department argues that the court of appeal correctly granted summary judgment dismissing plaintiffs strict liability claim against it. The Department asserts that foster parents are not agents or employees of the Department. Further, the Department contends that Vonner was statutorily overruled by the passage of the Louisiana Children’s Code in 1991 and the advent of the Juvenile |sCourt system. The Department argues that its duty is defined in the Children’s Code and requires the use of reasonable efforts in providing services to children and their families. According to the Department, this duty, which is based on a reasonableness standard, does not encompass vicarious or strict liability.

Appellate review of the granting of a motion for summary judgment is de novo. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A court may grant summary judgment that is “dispositive of a particular issue, theory of recovery, cause of action or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” La. C.C.P. art. 966(E).

In this case, defendant requested summary judgment dismissing plaintiffs strict liability claims on the theory that Louisiana law does not permit the Department to be held strictly or vicariously liable for the intentional torts of foster parents committed against children in its custody. This court, however, has previously interpreted Louisiana law to impose vicarious liability on the Department for abuse inflicted upon children in its custody by foster parents. Vonner v. State Through Dept. of Public Welfare, 273 So.2d 252 (La.1973). Therefore, the specific issue to be addressed in the instant case is whether the legislature has changed the governing statutes such that this interpretation is no longer viable.

In Vonner, a five-year-old child in the legal custody of the Louisiana Department of Public Welfare was beaten to death by his foster mother. Plaintiff, |fithe child’s natural mother, sued the foster parents and the Department for the death of her son. The lower courts found the Department was not liable, but this court reversed that determination, holding that the Department was vicariously liable for the tortious acts of the foster parents insofar as they breached the Department’s duty to ensure the well-being of children in its custody.

Addressing the liability of the Department, this court initially noted that the Department failed to comply with its own regulations for the health and care of children in its custody. However, this court clearly declined to rest the Department’s liability on its negligence in failing to adhere to such regulations, stating that “the Department’s liability rests upon a broader base than negligent compliance with its own regulations,” and that the scope of the Department’s liability is not limited to that fixed by compliance with its own regulations. Vomer, 273 So.2d at 255.

Instead, this court based its decision that the Department was vicariously liable for the foster parents’ tortious acts on the fact that Louisiana law imposed a non-delegable duty upon the Department to provide for the well-being of a child in its custody. We began our analysis by looking at the definition of “custody” in former La. R.S. 13:11569(5), which provided that custody “means the control of the actual physical care of the child and includes the right and responsibility to provide for the physical, mental, moral and emotional well-being of the child and all other rights and responsibilities of a parent toward his child except those pertaining to custody.” From this definition, we concluded that when the Department is given custody of children, it becomes directly responsible for their care and well-being.

We then recognized that the Department chose to fulfill its custodial responsibility by entering into a foster home contract with the foster parents as authorized by former La. R.S. 46:52(8). That statute permitted the Department to |7“contract with private individuals to hold their homes open for and to care for children in need of temporary or long time foster care * * However, we found that former La. R.S. 46:52(8) did not authorize the Department to divest itself of the responsibilities of custody by such contracts. Therefore, we determined that although the Department contracts with foster parents to care for the children entrusted to its custody, the foster parents fulfill the Department’s responsibilities to provide for the well-being of the children and act in its stead. We concluded that the law does not authorize the Department to delegate its legal responsibility to care for children in its custody.

Summarizing our conclusion, we stated: The children of our state are its most precious resource. Those charged with the duty of physical care arising out of the legal custody of a child cannot, on the ground that this duty had been delegated by them to another, evade their civil responsibility for the physical abuse of the child caused by the breach of such duty. Whether the party with legal custody (and thus the ultimate responsibility for the care of the child) chooses to exercise this responsibility of care himself or through an employee, agent, or independent contractor, the ultimate duty of care is non-delegable and remains his legal responsibility.

Id. at 256 (footnote omitted).

Thus, this court held that the Department is vicariously liable for a foster parent’s abuse of a child in the Department’s custody because the Department’s custodial duty to care for and to provide for the well-being of the child is non-delegable. In so holding, we relied primarily upon the definition of custody in former La. R.S. 13:1569(5). At the time Vomer was decided, La. R.S. 13:1569(5) defined “custody” as:

the control of the actual physical care of the child and |sincludes the right and responsibility to provide for the physical, mental, moral and emotional well-being of the child and all other rights and responsibilities of a parent toward his child except those pertaining to property. “Custody,” as herein defined, relates to those rights and responsibilities as exercised either by child’s parent or parents or by a person or organization granted custody by a court of competent jurisdiction. It shall not exist by virtue of mere physical possession of a child.

By Act No. 726 of 1977, the definition of “legal custody” was added to La. R.S. 13:1569. That Act provided that “legal custody” means:

a legal status created by court order which vests in a custodian the right to have physical custody of the child or minor and to determine, where and with whom he shall live within or without the state, and the right and duty to protect, train, and discipline him and to provide him with food, shelter, education and ordinary medical care, all subject to the powers, right, and duties and responsibilities of the guardian of the person of the child and subject to any residual parental rights and responsibilities; provided that when the state of Louisiana is the party to whom custody is given, the state may authorize emergency major medical treatment, if the attending physician certifies the health problem as an emergency medical situation. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by the court.

The definition of “custody” used by the Vonner court was repealed in 1979 by Act No. 172 of 1978. The definition of “legal custody” remained in La. R.S. 13:1569(11).

Upon the enactment of the Children’s Code, La. R.S. 13:1569 was repealed in its entirety by Act No. 235 of 1991, effective January 1, 1992. Today, however, La. Ch.C. art. 116(12) contains a definition of “legal custody” whose source was La. R.S. 13:1569(11). The definition is applicable for the term as used throughout the Children’s Code. La. Ch.C. art. 116(12) states:

(12) “Legal custody” means the right to have physical custody of the child and to determine where and with whom the child shall reside; to exercise the rights and duty to protect, train, and discipline the child; the authority to consent to major medical, psychiatric, and surgical | fltreatment; and to provide the child with food, shelter, education, and ordinary medical care, all subject to any residual rights possessed by the child’s parents.

In Vonner, this court, relying on the legislative definition of custody, characterized the Department’s legal custody of a child as a direct responsibility for that child’s care and well-being. Specifically, we stated that the Department had a “legal responsibility that the children be adequately fed, clothed, and protected from intentional physical abuse causing serious injury.” Vonner, 273 So.2d at 256. The current definition of “legal custody” charges a custodian with the “duty to protect, train, and discipline the child; ... and to provide the child with food, shelter, education, and ordinary medical care.... ” The custodial duty in the current legislation to protect, train, and discipline the child, along with the duty to provide the child with food, shelter, education, and ordinary medical care is substantially the same as the custodial duty to provide for the physical, mental, moral and emotional well-being of the child found in former La. R.S. 13:1569(5) as interpreted in Vonner. In essence, the two definitions place the same responsibility or duty upon a custodian. Therefore, we find that when the Department is awarded legal custody of a child by the juvenile court, the law imposes upon the Department the duty of care and protection of the child.

Having determined the custodial duty placed upon the Department, we must now determine whether the legislature intended to change the nature of the duty that this court has previously determined to be non-delegable. In finding the Department’s custodial duty non-delegable, the Vonner court considered the provisions of former La. R.S. 46:52(8), which authorized the Department to fulfill its custodial responsibility by entering into a contract with foster parents for the care of children in its custody. We read this provision along with the definition of custody Imand concluded that although the Department was authorized to form the contract for the care of the children with the foster parents, former La. R.S. 46:52(8) did not allow the Department to divest itself of its custodial responsibility.

The identical provision interpreted in the Vonner decision is now contained in La. R.S. 46:51, which provides the duties of the Department. Subsection (8) of that statute provides that the Department shall administer the public assistance and welfare laws as follows:

(8) Administer and supervise all public child welfare activities relating to children who are dependent, neglected, delinquent, or physically or mentally handicapped; establish, extend, and strengthen services for such children in parish or regional offices; license and supervise all parish, municipal, and private agencies, institutions, and individuals, caring for children, including visitorial powers, under the rules and regulations of the department; contract with private individuals to hold their homes open for and to care for children in need of temporary or long time foster care and provide such other services for children as may be authorized by law.

(emphasis added). Following our decision in Vonner, the legislature moved the provision authorizing the Department to contract with foster parents to care for children to a different section of Title 46, but it did nothing to indicate such contracts allow the Department to delegate its custodial duties to foster parents. We therefore adhere to our interpretation given to this subsection in Vonner that “[t]his statute does not authorize the Department to divest itself of the responsibility of custody by such contracts.” Vonner, 273 So.2d at 256.

Underlying the Vonner rationale is the recognition of our state’s policy regarding the importance of children. The very purpose of placing children in the state’s custody is to protect those children who were not adequately cared for by their natural parents. Thus, once the state obtains custody of a child, the law imposes upon the state the ultimate duty of care. In furtherance of the policy of ensuring the | ^protection of vulnerable children, this court has previously determined that the state cannot delegate its custodial duty to another. When the legislature enacted the definition of “legal custody” in the Children’s Code and retained the Department’s authorization to contract with foster parents, it evinced no intent to change the law as interpreted in Vonner. Additionally, we find no indication in other portions of the Children’s Code or the relevant statutory law that the legislature intended to change the status of the Department’s non-delegable custodial duty. We therefore conclude that the Department’s custodial duty remained non-dele-gable upon the passage of the Children’s Code.

The theory of non-delegable duties is reflected in § 214 of the Restatement (Second) of Agency, which provides:

A master or other principal who is under a duty to provide protection for or to have care used to protect others or then-property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.

When the duty of protection is non-delega-ble, this duty “is not satisfied by using care to delegate its performance to another but is satisfied if, and only if, the person to whom the work of protection is delegated is careful in giving the protection.” Comment a, 1 Restatement (Second) of Agency § 214 (1958). Furthermore, in such situations, “a master or other principal may be hable, although without personal fault, for conduct of his agents or servants, whether or not they are acting in scope of employment. In fact, a person who has undertaken a specific piece of work is also hable for the failure of those not his servants or agents to carry out the terms of the undertaking.” Id. Noted commentators have explained the basis of the imposition of a non-delegable duty as follows:

It is difficult to suggest any criterion by which the nondelegable^ character of such duties may be determined, other than the conclusion of the courts that the responsibility is so important to the community that the employer should not be permitted to transfer it to another.

W. Page Keeton et al, PROSSER and Keeton on the Law of Torts § 71, at 512 (5th ed.1984).

In cases such as those presented here, we find that once the Department is granted legal custody of children in need of care, its custodial duty to those children is so great that it cannot be delegated to foster parents. While the Department may contract with foster parents to care for children in its custody, it is ultimately responsible for the protection of those children. Thus, if the foster parents fail in their own duty and abuse the children, the Department is vicariously liable for those acts of the foster parents that caused a breach of the Department’s custodial duty.

Instead of analyzing the duty imposed on the Department once it receives legal custody of a child, the Department argues that the passage of the Children’s Code and the overarching authority of the Juvenile Court system “overruled” the Vonner decision. As explained above, however, the legislature gave no indication it intended to change the non-delegable nature of the Department’s custodial duty when it enacted the Children’s Code. La. Ch.C. art. 622 authorizes the placement of a child taken into custody as a child in need of care “[i]n foster care under the supervision of the department until further orders of the court.” The fact that the Department is charged with the supervision of foster children is not incompatible with its ultimate responsibility to care for and protect children in its custody. In fact, it reinforces the notion that the Department must be vigilant in ensuring that children in its custody are protected. Similarly, the provisions in Title 46 relating to the Department’s responsibility to investigate potential foster parents does not indicate a legislative intent to change the nature of the Department’s custodial duty.

113The Department contends its duty can be found in La. Ch.C. art. 603(17), which defines “reasonable efforts” as “the exercise of ordinary diligence and care by department caseworkers and supervisors .... ” This definition, however, does not specifically address the duty of the Department owed to children in its custody, and, while it might be construed to impose a duty of reasonableness in some circumstances, it does not serve to invalidate the specific responsibilities incurred by the Department when it obtains legal custody of a child. Finally, the Department contends this court’s recent decision in Todd v. State Through Dept, of Social Sens., 96-3090 (La.9/9/97), 699 So.2d 35, compels a contrary result because it looked to the Children’s Code to define the duties of the Department without regard to the physical or legal custody issues involved. Todd, however, involved a situation in which the Department did not have legal custody of the child, and, consequently, this court could not look to the definition of legal custody to examine the duties involved.

We recognize that our conclusion herein is contrary to that reached by the courts of other states in similar situations. See e.g., Mitzner v. Kansas Dept. of SRS, 257 Kan. 258, 891 P.2d 435 (1995); Maguire v. State, 254 Mont. 178, 835 P.2d 755 (1992); Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381 (1991); Stanley v. State Indus., 267 N.J.Super. 167, 630 A.2d 1188 (1993). But see Stropes v. Heritage House Childrens Ctr., Inc., 547 N.E.2d 244 (Ind.1989). We find, however, that our legislature has determined our policy of protecting children is best furthered by the imposition of a non-delegable duty of care upon the Department once it obtains custody of vulnerable children. Unlike the situation present in some other states, the imposition of a non-delegable duty is not foreign to our law. See Foster v. Destin Trading Corp., 96-0803 (La.5/30/97), 700 So.2d 199 (finding that an owner has a non-delegable duty to maintain a seaworthy vessel); Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978) (finding, prior to the 1996 |14tort reform amendments, that an owner has a non-delegable duty to keep his building and its appurtenances in repair); Rozell v. Louisiana Animal Breeders Co-op., Inc., 434 So.2d 404 (La.1983) (finding, prior to the 1996 tort reform amendment, that an owner has a non-delegable duty to prevent his animal from injuring others). Additionally, although other jurisdictions analyze and resolve similar issues based on whether the foster parents are employees, agents, or independent contractors of the state, we need not address this distinction since the imposition of a non-delegable duty makes such inquiry irrelevant. See Vonner, 273 So.2d at 256 n. 3.

Our conclusion today that the Department undertakes a non-delegable custodial duty such that it becomes vicariously liable when foster parents intentionally abuse children in its custody is not affected by the role MHC played in placing the children in the Martin’s home. According to the Department, the Adoption Assistance and Child Welfare Act of 1980 (“the Act”) was enacted to provide reimbursement to States for foster care maintenance and adoption assistance for eligible children. The Department is the agency authorized to administer the federal funds from the Social Security Administration, Title IV-B, that are used to reimburse states for foster care maintenance and adoption assistance pursuant to the Act. As authorized by the Act, the Department licensed MHC as a private “Child Care Facility and Child-Placing Agency” pursuant to La. R.S. 46:1401 et seq. As a licensed agency, MHC contracted with the Department to provide Therapeutic Foster Care training to the Martins. In addition to the foregoing, the Department also asserts that MHC recruited, trained, certified and supervised the Martins as foster care parents according to guidelines ^provided by the Department and based upon the provisions of the Act. Assuming the Department’s statements related to the history between itself and MHC are correct, such an arrangement does not affect the Department’s vicarious liability for any abuse inflicted upon the children by the foster parents. If the State can be held vicariously liable for the intentional torts of foster parents, then clearly it cannot relieve itself of this liability merely by contracting with another agency to provide for the placement of children in its custody. In fact, the parties concede as much and do not argue to the contrary.

Conclusion

When the Department obtains legal custody of a child, the law imposes upon it a duty to care for and protect that child. This duty is one of ultimate responsibility for the care of the child and cannot be delegated to others. Thus, when a child is abused by foster parents, the Department can be held vicariously liable for the abuse.

In the instant case, plaintiffs petition alleges the Department is vicariously liable to her and her children for damages resulting from the abuse of her children by a foster parent. We conclude that if it is determined that the children were abused by their foster parent or parents, then the Department may be held vicariously liable in light of its non-delegable custodial duty. For this reason, we reverse the court of appeal’s judgment insofar as it grants the Department’s motion for summary judgment on the issue of whether vicarious liability is applicable to this case. The judgment of the trial court is reinstated, and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED.

VICTORY, J., dissents and assigns reasons.

WEIMER, J., dissents for the reasons assigned by J. VICTORY.

|!VICTORY, J.,

dissenting.

In my view, Vonner v. State Through Dept. of Public Welfare, 273 So.2d 252 (La.1973), was wrongly decided and should be overruled. Therefore, I must dissent from the majority’s conclusion, based on Vonner, that when the Department of Social Services obtains custody of an abused child it assumes the “ultimate” and “non-delegable” duty of care for the child. As pointed out by the majority, only a handful of states, when presented with the situation at hand, impose liability without fault on the state. I believe we should join the vast majority of states that hold the state responsible only for its own negligence.

In its opinion the majority is attempting, quite admirably, to protect children of this state who are placed into foster care after being removed from the custody of their abusive biological parents. There can be no doubt that these children deserve to be protected. Nor is there any doubt that the DSS becomes responsible for the well being of those children whom they take into their custody and must carry out this responsibility in a non-negligent manner. However, as defined by Vonner, the duty placed upon DSS amounts to nothing more than the unjustified and unfounded imposition of vicarious liability, i.e., liability without regard to fault, on the DSS for | ^intentional torts committed against foster children.

As correctly pointed out by the majority, the duty assumed by DSS when it obtains legal custody of a child is to “protect, train, and discipline the child.” La.Ch.C. art. 116(12). This duty appears to be no different than that of any parent with respect to their children. See La.C.C. arts. 235, 227. However, if the holding of the majority is followed to conclusion, it will impose a burden on the DSS far in excess of that imposed on parents for protection of their children. Assume, for example, that a child’s mother and father are divorced and the mother has full custody of the child. Because the mother must work in order to provide for her child she may find herself in the position of having to hire a nanny to take care of the child when she is not home. Because the mother does not want to leave her child in the hands of a dangerous person, she conducts extensive interviews and runs a criminal background check on all applicants. After finding what appears to be the perfect nanny, the mother goes to work so that she can provide for her child. Unfortunately, upon returning home from work the mother finds that the nanny has sexually and physically abused her child. Could then, the child’s father, after securing custody of the child, obtain a judgment on behalf of the child against the mother under the theory that the mother is vicariously hable for the torts committed against the child by the nanny?

The answer to the above question is undoubtedly no, but why? Surely the biological mother of a child has a “non-delega-ble” and “ultimate” duty to protect and provide for her child. The reason is because the tort law of Louisiana does not authorize the imposition of vicarious liability on custodians for torts committed against those in their care. The Civil Code only authorizes the imposition of vicarious liability for the tortious acts committed by those in their custody. See La. C.C. arts. 2317-2320. There is nothing in statute defining the DSS’ rights and duties with respect to foster children which indicates the legislature intended to | ¡impose a duty of care more stringent than that imposed on parents.

Nor does the relationship between foster parents and the DSS exhibit any of the established characteristics of the employer-employee relationship, which would allow for the imposition of vicarious liability under the theory of respondeat superior. The majority attempts to address this problem by resorting to “non-delegable duty;” however, the fact remains that there is absolutely no legislative authority for imposing on DSS a burden of vicarious liability above and beyond that provided for in the Civil Code.

Finally, I would like to note that plaintiffs in cases such as the one at hand are not without recourse. They may sue DSS for its own negligence, if any, in selecting the foster parents, or for not following DSS regulations as to periodic monitoring of the foster children in question.

      . The petition identifies defendants as Matthew and Shirley "Morton.” However, later court documents identify these defendants as Matthew and Shirley "Martin.”

      . This judgment dismissing MHC is now final and is not before this court.

      . The Louisiana Department of Public Wei-fare was a predecessor of the Department of Social Services. See La. R.S. 36:478.

        . La. R.S. 13:1569 contained definitions of terms used in the general provisions of the revised statutes applicable to juvenile courts.

      . The Department’s filings explain that "Therapeutic Foster Care is a contracted program of foster care and treatment services governed by Chapter 6 of the Department's Program Policy Manual, in which a private provider such as Methodist Home, recruits, trains, certifies and supervises the Therapeutic Family Care Foster Parents and case workers."


source: Caselaw Access Project

author: 11 JOHNSON, Justice. ItWEIMER, J.,

license: Public Domain

text:
    Jennifer Midkiff HUBER, v. Alice Siegmund MIDKIFF and Ronald Edward Midkiff.
    No. 2002-CA-0664.
    Supreme Court of Louisiana.
    Feb. 7, 2003.
    Rehearing Denied March 21, 2003.

      Brett A. Bonin, for Applicant.
    Timothy W. Hassinger, Debra M. Kes-ler, Metairie, for Respondent.
   11 JOHNSON, Justice.

In this case, the district court declared LSA-C.C. art. 136(B) unconstitutional as applied “to the situation where grandparents are attempting to gain the visitation of their grandchild from their own child.” Alice and Ronald Midkiff appealed that judgment to this Court pursuant to La. Const. Art. V, § 5(D).

FACTS AND PROCEDURAL HISTORY

The record is replete with highly inflammatory allegations of outrageous conduct by both sides in pleadings and in briefs filed with this Court. There has been no trial on the merits, so there are few facts we can glean as true from the record.

We do know that Jennifer Midkiff married Rodney Huber in January 1997, and Raven Frost Huber was born to that union. Following Rodney’s arrest and incarceration, Jennifer filed for divorce. In the divorce proceedings, she was granted sole custody with Rodney having supervised visitation. She later moved in with her parents, Alice and Ronald Midkiff, where they lived for three years. The battle over custody and visitation with Raven began in October 2000, when Jennifer rented her own apartment, and she and Raven moved out.

This action began in the district court as a Petition for Domestic Abuse | ¡^Protection, filed on November 22, 2000, where Jennifer Huber sought a restraining order against her parents, alleging that they physically and verbally abused, threatened and harassed her. On January 9, 2001, the Midkiffs answered the petition, denying Ms. Huber’s allegations, and filed a Reconventional Demand for custody/visitation, suggesting that they had been the primary caregivers for their granddaughter Raven for three out of the five years of her life and that Ms. Huber was angry with them because they had “admonished” her for her “continued disregard” for Raven’s well being. Also, in the reconventional demand, the Midkiffs requested the following: 1) joint custody with Ms. Huber, or in the alternative, visitation; 2) the appointment of a mental health evaluator according to LSA-R.S. 9:331; and 3) interim visitation pending the appointment of the evaluator.

The record indicates that the protective order was dismissed on January 17, 2001, and that Judge Craig Cimo, the domestic commissioner for the district court, granted a preliminary injunction against the Midkiffs for six months, preventing them from harassing, contacting, and/or interfering with Ms. Huber’s custody of Raven or her employment. The Midkiffs asserted that they voluntarily consented to the six months protective order in exchange for an informal visitation with Raven, which never took place. According to the Midkiffs, Ms. Huber initially requested that a family member or friend supervise the visitation, to which the Midkiffs consented. [¡/Then, Ms. Huber requested that she supervise the visitation. The Midkiffs disagreed with this plan. After several unsuccessful attempts to visit with Raven, the Midkiffs filed, on February 12, 2001, an Ex-Parte Motion for Temporary Visitation Pending Hearing; Motion for Expedited Hearing on Rule for Interim Visitation and for Appointment of a Mental Health Professional, alleging that “immediate and irreparable injury has resulted and will continue to result” from Ms. Huber’s refusal to allow the Midkiffs to visit with Raven.

On March 5, 2001, Ms. Huber filed Peremptory Exceptions of No Cause of Action and No Right of Action due to the Unconstitutionally of Civil Code article 136(B). In support of the exceptions, Ms. Huber contended that the Midkiffs’ claim for custody of Raven should be dismissed as a matter of law because under LSA-C.C. art. 136(B), a non-parent may only petition for visitation and not custody. Ms. Huber also contended that this article is unconstitutional under the Fourteenth Amendment-Due Process Clause (La. Const, art. 1 § 2) and the Louisiana Constitution-Right to Privacy Clause (Art. 1 § 5). In relying upon Troxel v. Granville, 530 U.S. 57,120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), Ms. Huber argued that LSA-C.C. art. 136(B) was | unconstitutional because “it interferes with a parent’s fundamental right to raise his child and is not narrowly tailored to serve the compelling state interest of protecting the welfare of minors.”

On March 6, 2001, District Judge Her-nán A. Hand denied the Midkiffs’ request for temporary visitation pending the hearing. On March 28, 2001, the record indicates that a Consent Judgment was read into the record where Ms. Huber consented to allow the Midkiffs one two-hour visitation with Raven.

On May 14, 2001, the district court appointed Gail Pesses, MSW, LCSW, as custody evaluator, ordered all parties to participate in any interview and/or testing conducted by the evaluator, and ordered the evaluator to submit a written report of her findings. Ms. Pesses interviewed Ron and Alice Midkiff, Ms. Huber, Raven, Ms. Huber’s fiancé, Steve Creech, Melissa Mid-kiff and John Midkiff (Jennifer’s biological sister and brother) to determine the most appropriate domiciliary and visitation arrangements for Raven. She interviewed with these parties from April 4, 2001 to August 22, 2001, and then prepared a report of her findings. Ms. Pesses summarized her findings and recommendations as follows:

This custody action appears to have everything to do with the dynamics in the extended family and actually little to do with Raven’s day to day care.... Jennifer’s philosophy of child rearing seems appropriate and reflects her educational level. She expresses a commitment to her child’s welfare even under the extreme stress of fighting her own family for her child.... Ron and Alice’s insistence that Raven is being harmed by Jennifer has little factual foundation .... The emotional overtones in this custody fight overshadow their ability to be objective in applying their knowledge of how children thrive in the elementary grade classroom to their grandchild’s situation.... They did not present any solid evidence that Raven was being mistreated or hurt by her mother and that they could do a better job in raising her....
The central issue here is more likely about control. Ron and Alice, feeling rejected by Jennifer’s insistence that she be able to make her own decisions for Raven and for herself, are attempting to regain control in whatever way |fithey can. This includes marshaling the family into taking sides, identifying Gerald Heausler (Jennifer’s biological father) as the enemy, harassing Jennifer, Steve, Steve’s family as well as sitters for Raven and continually keeping things stirred up to such an extent that the entire family system suffers from the stress and pressure....

As a result, Ms. Pesses recommended that Ms. Huber retain sole custody and the Midkiffs be granted supervised visitations with Raven.

On May 16, 2001, the Midkiffs filed a supplemental and amending Reconventional Demand, requesting sole custody of Raven or, in the alternative, joint custody with Ms. Huber. In response, on May 25, 2001, Ms. Huber filed an Exception of No Cause of Action and Vagueness, asserting that the Midkiffs have no right to custody pursuant to LSA-C.C. art. 133 because they failed to prove that the award of sole custody to Ms. Huber would result in substantial harm to Raven. On September 6, 2001, Ms. Huber filed a Rule for Contempt against the Midkiffs, arguing that Alice Midkiff contacted Raven’s sitters and harassed them, which violated the temporary restraining order executed in November 2000.

On October 26, 2001, the Midkiffs filed a Motion to Enforce Visitation, alleging that Ms. Huber violated the initial Consent Judgment which allowed them to visit Raven. On November 14, 2001, the Midkiffs filed a memorandum in opposition to Ms. Huber’s Exceptions, alleging that grandparents may be granted custody and/or visitation under LSA-C.C. art. 131, et seq.

[fiOn November 15, 2001, the district court granted Ms. Huber’s Exceptions of Unconstitutionality and No Cause of Action, finding it “unconstitutional to apply LSA-C.C. art. 136(B) to the situation where grandparents are attempting to gain visitation of their grandchild from their own child.” In oral reasons for judgment, the district court noted that article 136(B) is found within Title V (Divorce) of the Civil Code, and specifically, within Chapter 2 of that title, addressing provisional and incidental proceedings, and stated:

Therefore, it is clear that Article 136 contemplates a grant of reasonable visitation to relatives upon the divorce of the child’s parents, if there are extraordinary circumstances and upon finding by the court that such an award is in the best interest of the child.
It is the opinion of the Court that the legislature, in drafting the provisions of the Civil Code which deal with grandparent visitation, intended for the mandates of Article 136(B) to apply to those situations where the minor child’s parents are divorced and the grandparents of the parent without custody are attempting to gain visitation privileges in an effort to keep the extended family of the minor child intact. This Court does not feel that the Legislature intended for Article 136(B) to apply to grandparents attempting to gain visitation of their grandchild from their own child. By allowing this, the legislature and the Court would be overstepping the authority of a parent granted custody of a minor child.

DISCUSSION

In considering the constitutionality of a statute, this jurisprudence recognizes the general presumption of a statute’s constitutionality. Brown v. State, Department of Public Safety & Corrections, 96-2204 (La.10/15/96); 680 So.2d 1179. The party that challenges the statute’s constitutionality carries the burden of proving specific constitutional infirmities. Id. Once the statute’s constitutionality is assailed, this Court requires that the attorney general be notified by certified mail of the proceeding and, at his discretion, he shall be allowed to represent the state’s interest. Specifically, LSA-R.S. 13:4448 provides that:

|7Prior to adjudicating the constitutionality of a statute of the state of Louisiana, the courts of appeal and the Supreme Court of Louisiana shall notify the attorney general of the proceeding and afford him an opportunity to be heard. The notice shall be made by certified mail. No judgment shall be rendered without compliance with the provisions of this Section; provided where the attorney general was not notified of the proceeding, the court shall hold adjudication of the case open pending notification of the attorney general as required herein.

In Vallo v. Gayle Oil Co., Inc., 94-1288 (La.11/30/94); 646 So.2d 859, this Court held that the attorney general must be served with a copy of the proceeding and is entitled to represent the state’s interest in the proceeding when the constitutionality of a statute is questioned. In Vallo, a claimant bought a workers’ compensation action against his employer for failure to pay compensation and medical expenses. In the pre-trial memorandum, the claimant, who underwent surgery at Baylor Medical Center in Dallas, Texas, challenged LSA-R.S. 23:1203(A), which required that all medical services and treatment be performed at facilities within the state of Louisiana when available. The trial court declared that the workers’ compensation statute was unconstitutional. Both the claimant and the employer appealed. This Court held that when the constitutionality of a statute is challenged, the Attorney General must be served with a copy of the proceeding and is entitled to be heard and/or, at his discretion, to represent or supervise representation of the state’s interest in the proceeding. This Court concluded that the plaintiff’s procedure, which resulted in the statute being declared unconstitutional without notifying the Attorney General, unfairly prejudiced the state’s and the defendants’ interests. Thus, this Court remanded the matter to the trial court for further proceedings.

In Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308 (La.1984), this Court declined to consider the constitutional challenge of whether LSA-C.C.P. art. 1812 barred jury trials against governmental subdivisions when: 1) the statute’s | ^constitutionality was not questioned in trial court; 2) the plea of unconstitutionality was not specifically pled in a petition, exception, motion, or answer; and 3) the Attorney General was not served a copy of the pleading which contests the constitutionality of the statute.

Although Louisiana’s long-standing jurisprudence requires that a statute’s constitutionality be questioned in the trial court and specifically pled and the grounds particularly claimed in a pleading, jurisprudence also mandates that the attorney general be served a copy of the pleading challenging the statute’s constitutionality. Chamberlain v. State through the Department of Transportation and Development, 624 So.2d 874 (La.1993); Reeder v. North, 97-0239 (La.1997); 701 So.2d 1291; In Re Medical Review Panel of .Hams, 97-1970 (La.App. 1st Cir.9/28/98); 725 So.2d 7; Jeter v. Shamblin, 32,618 (La. App. 2 Cir.2000); 750 So.2d 521.

This challenge to the constitutionality of LSA-C.C. 136(B) is not in the proper posture for this Court’s review. There is clearly no evidence in the record to indicate that the Attorney General was served or notified of the challenge to the constitutionality of the statute so that the Attorney General could elect whether or not to exercise his statutory right to represent the state’s interest in the proceeding prior to the declaration of unconstitutionality. Specifically, the record demonstrates that at the inception of this matter, Domestic Commissioner Judge Cimo suggested that “since there are some questions of constitutionality, ... the Attorney General’s office ... need to be joined and ... the definitive ruling should come from the district judge, not the commissioner.” At that hearing, both attorneys replied that they “understood” the commissioner’s ruling. The record also indicates that the order attached to Ms. |9Huber’s Peremptory Exceptions of No Cause of Action and No Right of Action requested that the Midkiffs and the Honorable Richard P. Ieyoub, Attorney General, be served. Although this order was signed by Judge Hand, the word “Moot” was written across the page and the service instruction was crossed out with the note “Do Not Issue per T. Hassinger,” (counsel for Ms. Huber) inscribed on it. When this motion was reset, Ms. Huber’s attorney failed to request that the Attorney General be served with a copy of the proceeding.

Additionally, prior to signing the final judgment, Judge Hand issued an order holding this matter open for an additional thirty (30) days so that the Attorney General’s office would be given appropriate notice to this judgment. Despite the representation by counsel, it is clear that the Attorney General’s office was not notified with a copy of this proceeding, which related to the constitutionality of LSA-C.C. art. 136(B). If the Attorney General’s office was notified, there is no evidence within the record to substantiate such.

For the above reasons, we find that this constitutional challenge is not properly before this Court according to LSA-R.S. 13:4448. Therefore, the trial court’s ruling that LSA-C.C. art. 136(B) is unconstitutional is vacated, and this matter is remanded to the district court to give the Attorney General notice of the issue and an opportunity to exercise his discretion in representing the state’s interest. The district court judge was required to make certain that the Attorney General was notified of this matter prior to ordering this family to undergo months of evaluation by a court appointed expert and incurring legal expenses.

DECREE

REVERSED and REMANDED.

WEIMER, J., concurs and assigns reasons.

VICTORY, J., concurs in result.

ItWEIMER, J.,

concurring.

I concur in the result, but write separately regarding the following.

The provision at issue, La. C.C. art. 136, provides in pertinent part:

B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandpar-ent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.

No trial was conducted in this matter. Thus, we cannot determine from the record whether “extraordinary circumstances” exist or whether reasonable visitation with the grandparents would be “in the best interest of the child.”

I do not believe the provision is facially unconstitutional. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054,147 L.Ed.2d 49 (2000), in a plurality decision, the United States Supreme Court held the Washington statute unconstitutional because the statute was “breathtakingly broad.” This provision is more limited. Additionally, I do not believe the trial court was required to reach the | ^constitutionality of the provision. Dauzat v. East Baton Rouge Parish Metropolitan Council, 2001-1168, p. 4 (La.5/25/01), 785 So.2d 812, 815. If the trial court does not find the existence of “extraordinary circumstances” or finds that the visitation is not “in the best interest of the child,” then there is no need to address the constitutionality of the provision.

To avoid any constitutional issues related to Article 136(B) and in recognition of the constitutionally based fundamental right of parents to make decisions concerning the care, custody, and control of their children, I also believe that the “extraordinary circumstances” must be those which are “[a] highly unusual set of facts that are not commonly associated with a particular thing or event.” Blacic’s Law Dictionary 236 (7th ed.1999). Not every unique set of circumstances will justify imposing visitation, only those circumstances which are truly extraordinary.

      . Alice is Ms. Huber's biological mother, and Ronald is her adopted father.

      . LSA-R.S. 9:331 provides that:
      A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
      B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

      . LSA-C.C. art. 136 provides, in pertinent part, that:
      A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
      B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or step grandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
      (1) The length and quality of the prior relationship between the child and the relative.
      (2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
      (3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
      (4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.

        (5) The mental and physical health of the child and the relative.

      . Specifically, Ms. Pesses recommended that the Midkiffs be awarded supervised visitation on the last Saturday of each month from 10:00 a.m. until 6:00 p.m. and every Wednesday from after school until 8:00 p.m.

      . LSA-C.C. art. 133 provides that "if an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.”

      . LSA-C.C. art. 131 provides that "in a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.”

      . In Chamberlain, the plaintiffs challenged the constitutionality of LSA-13:5106(B)(1), which imposed a $500,000 cap on general damages recoverable in a personal injury suit against the state. This Court noted that LSA-R.S. 13:4448 requires that the Attorney General be served, and the plaintiffs satisfied this requirement by sending a certified letter to the Attorney General, who exercised his discretion to represent the state in this matter.

      . Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).


author: hPER CURIAM.

text:
    STATE of Louisiana v. Joseph L. BROOKS.
    No. 2002-K-0792.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
    Rehearing Denied March 21, 2003.

      Richard P. Ieyoub, Attorney General, Douglas P. Moreau, District Attorney, Richard C. Nevils, Dana K. Jones, Assistant District Attorneys, for Applicant.
    Kathryn Flynn Simino, for Respondent.
   hPER CURIAM.

The charges in this case arose from an altercation that occurred outside a birthday party held at the American Legion Hall in Baton Rouge which resulted in respondent shooting and killing the victim. Respondent stood trial for second degree murder and a jury returned the responsive verdict of manslaughter. He was represented at trial, and in his subsequent appeal, by Jesse Hearin. The First Circuit reversed, finding the trial court erroneously excluded evidence which would have corroborated respondent’s testimony concerning a prior threat made by the victim. State v. Brooks, 98-1151 (La.App. 1st Cir.4/15/99), 734 So.2d 1232. The court of appeal remanded the case with instructions directing the trial court to conduct a hearing as to the admissibility of evidence proffered by respondent during a pre-trial hearing in support of his claim of self-defense. Brooks, 98-1151 at 17-18, 734 So.2d at 1241. The state sought review in this Court, which denied writs. State v. Brooks, 99-1462 (La.11/12/99), 749 So.2d 651. The state thereafter had one year in which to bring respondent to trial again. See La.C.Cr.P. art. 582 (“When a defendant obtains a new trial or there is a mistrial, the state must ^commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.”). We granted the present application to consider whether the state carried its heavy burden of justifying a delay in the prosecution of several months beyond the expiration of the original one-year time limit. State v. Joseph, 93-2734, p. 1 (La.6/3/94), 637 So.2d 1032; State v. Rome, 630 So.2d 1284, 1286 (La.1984). For the reasons that follow, we find that the trial court correctly denied respondent’s motion to quash and that the court of appeal erred in overturning that ruling and in ordering respondent discharged from prosecution.

At the hearing conducted on respondent’s motion to quash, Dana Cummings, the assistant district attorney who tried the case against Hearin and was responsible for retrial, detailed the events following reversal of the case by the First Circuit. After this Court denied the state’s application for review on November 12, 1999, Cummings had the case placed on the status docket for purposes of “touching] base with whoever was representing the defendant at that time and also for plea negotiation.” The victim’s family had prompted Cummings’s interest in a plea by urging her to resolve the case without subjecting them to a second trial. See R.S. 46:1844(D)(2)(a)(requiring a prosecutor to obtain the advice of the victim or a designated family member regarding “[t]he disposition of the criminal case by dismissal, plea, or trial.”). Hearin remained respondent’s attorney of record; he had last appeared in the case on August 31, 1999, at a hearing for purposes of setting post-conviction bond following reversal of respondent’s conviction and sentence by the First Circuit. Shortly thereafter, respondent secured his release from jail and remained free on bond throughout the subsequent proceedings.

| sCummings testified that Hearin had then contacted her personally on November 30, 1999, the date set for a status conference, and told her that “he had not yet been retained by Mr. Brooks [for the second trial] and would like to continue the matter.” Hearin repeated that statement in open court and the matter was reset for another status conference on January 27, 2000. On that date, in response to Cummings’s offer to begin plea negotiations, Hearin again stated that he had not yet been retained by respondent and his family and that plea negotiations were not appropriate because he did not formally represent respondent. Hearin also informed Cummings that “after he was retained he did want to entertain and speak to his ... client about a plea.”

The status conference was reset for March 22, 2000. On that date, Hearin appeared in court and formally enrolled as counsel for respondent. At that time, Cummings again spoke with Hearin and proposed a plea bargain in which respondent would plead to manslaughter in return for a specific sentence. However, Cummings was uncertain whether she would need to file a superceding bill of information charging respondent with manslaughter or whether she could proceed under the original and unamended grand jury indictment charging second degree murder. Given the assistant district attorney’s uncertainty, the arraignment and status conference set for that date were continued by mistake until May 1, 2000, Law Day in the district court, which required rolling over the conference date to June 21, 2000. At this point in the case, no trial date had been set, and the case began to run on parallel tracks after Cummings filed a new bill of information on May 3, 2000, charging respondent with manslaughter.

14At some point after March 22, 2000, it became clear to Cummings that Jesse Hearin would not be responding to her plea offer and that “there was a problem with representation in the case.” In fact, Hearin had faded to appear on behalf of several of his clients and Cummings had learned from someone who shared office space with the attorney that Hearin “had in fact disappeared, for lack of a better word.” On June 21, 2000, respondent appeared in proper person for arraignment set on the superceding bill and confirmed on the record that he had retained new counsel, Mr. Tommy Damico, who was busy in another court and could not attend the proceedings. Damico had previously called both Cummings and the trial judge to convey the same information. Damico also requested Cummings to reset the case for the following week. However, because of a conflict with Cummings’s schedule, the trial court reset the status conference and arraignment for July 26, 2000. On that day, Damico appeared in court and respondent was formally arraigned on the su-perceding bill. Plea negotiations began immediately but broke down when Damico informed Cummings at a status conference on August 10, 2000, that respondent had rejected her plea offer. A trial date of November 13, 2000 was then set. The state ultimately continued the trial on that date because another trial was still in progress.

On January 5, 2001, or well over one year from this Court’s denial of review in the appeal, respondent filed a pro se motion to quash the indictment, claiming that the time limit under La.C.Cr.P. art. 582 for commencing a new trial had expired. On February 2, 2001, respondent, accompanied by Damico, appeared in court on his pro se motion. After a hearing, the trial court denied the motion without giving reasons. The court then accepted respondent’s guilty plea, under the original indictment for second degree murder after Cummings dismissed its | ^superceding bill. As part of his guilty plea respondent reserved the right to appeal from the court’s adverse ruling on his motion to quash. See State v. Crosby, 338 So.2d 584, 586 (La.1976). The court sentenced respondent to 10 years imprisonment at hard labor.

In a split decision, the First Circuit reversed and vacated respondent’s conviction and sentence, finding that “for one year prior to the filing of the motion to quash on January 5, 2001, no interruption or suspension of the time period for institution of prosecution occurred, and the trial court erred in denying respondent’s motion to quash.” State v. Brooks, 01-0640, p. 4 (La.App. 1st Cir.12/28/01), 807 So.2d 325, 328 (Whipple, J., dissenting). The court of appeal acknowledged that the minute entry of March 22, 2000, indicated that the matter was continued on a joint motion, but based on its own examination of the transcript concluded otherwise. Specifically, the majority concluded that defense counsel’s reference to the lack of a formal bill charging respondent with manslaughter did not constitute his acquiescence to a continuance and thus could not be chargeable to respondent for purposes of suspending the prescriptive period. Accordingly, it found that no | fisuspension of the time period for institution of prosecution had occurred and thus that the trial court had erred in concluding otherwise. Brooks, 01-0640 at 3-4, 807 So.2d at 327-28.

The controlling provision for suspension of the applicable time limits appears in La.C.Cr.P. art. 580, which states:

When a respondent files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling . to commence trial.

The grounds for suspension under La.C.Cr.P. art. 580 also apply to the time limits specified by La.C.Cr.P. art. 582 after a new trial or a mistrial has been granted. State v. Falkins, 395 So.2d 740, 741 (La.1981). For purposes of art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Cranmer, 306 So.2d 698, 700 (La.1976); State v. Elfert, 247 La. 1047, 175 So.2d 826, 828 (1965). These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks, 505 So.2d 714, 725 (La.1987); State v. Fabacher, 362 So.2d 555, 556 (La.1978). Joint motions for a continuance fall under the same rule. State v. Jones, 620 So.2d 341, 342 (La.App. 5th Cir.1993) (citing State v. Simpson, 506 So.2d 837 (La.App. 1st Cir.1987), writ denied, 512 So.2d 433 (La.1987)); see also State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284,1288-89.

In Elfert, this Court held that the delays occasioned by the defendants’ attempts to secure counsel justified continuing trial set only two weeks before prescription was due to expire, whether the defendants themselves moved for a continuance or the court upset the trial date ex proprio motu for purposes of 17effectuating the defendants’ Sixth Amendment right to counsel. We specifically observed that “[i]f the continuance was granted to permit [defendants] to secure an attorney of their choice, the period of limitation was suspended until such time as they made known to the court that they had employed counsel.” Elfert, 175 So.2d at 828.

However, the continuance granted by the court in Elfert had the effect of upsetting the trial scheduled for that day, and we subsequently clarified that the delays occasioned by a defendant’s efforts to secure counsel do not invariably constitute grounds for suspension of the time limits for trial specified by La.C.Cr.P. art. 578 when they have not “affected the State’s efforts to prosecute in any respect.” State v. Carr, 271 So.2d 871, 872 (La.1973) (motion to withdraw by counsel did not suspend running of time limits); see also State v. Cooper, 389 So.2d 1124 (La. 1980)(same); State v. Garbo, 442 So.2d 685, 688 (La.App. 1st Cir.l983)(same); but see State v. Jones, 34,542, p. 6 (La.App. 2nd Cir.2/28/91), 780 So.2d 1234, 1239 (oral motion to withdraw suspended prescription). Respondent argues in this Court that the resetting of a status conference is not the equivalent of granting a continuance of trial, particularly in a case in which the state had not set a trial date until nearly three-quarters of the prescriptive period had already elapsed.

We agree with respondent to the extent that the resetting of status conferences may have no impact on a trial date and should therefore not invariably provide the state with an additional year in which to bring the defendant to trial. See Jones, 34,542 at 6, 780 So.2d at 1239 (“Although the status conference was continued, the trial date remained the same. This did not act as a suspension of time as it was not a preliminary plea.”). Although Cummings had acted reasonably in delaying matters to accommodate Hearin in working out the details of | ¡^representing respondent through a second trial, the attorney had formally enrolled in the case on March 22, 2000. Hearin was therefore in a position to convey her plea offer to respondent, and Cummings’s uncertainty over the question of whether prosecution should proceed under the original or new bill of information, whether or not shared by Hearin, had no bearing on the selection of a trial date. Without regard to whether Hearin acquiesced in delaying the arraignment for a month while the state pondered its charging alternatives, the resetting of the status conference did not constitute a preliminary plea for purposes of La. C.Cr.P. art. 580 providing the state with an additional year to bring the case to trial because it had no apparent impact on the state’s ability to prosecute the case.

However, we take an entirely different view of the proceedings conducted on June 20, 2000. Although a formal motion may not have been filed on that date, and it is not clear from the record when Damico formally enrolled as counsel for respondent, it is clear that the trial court continued the status conference and arraignment set for that day for purposes of providing respondent with the opportunity to substitute counsel for the missing Hea-rin. The continuance on that date, solely for purposes of effectuating respondent’s Sixth Amendment right to counsel and to accommodate the confusion in the defense caused by Hearin’s baffling disappearance, suspended the running of the time limits because the state’s ability to prosecute the case was actually affected until the matter of representation was settled and respondent again had counsel. Louisiana imposes on a prosecutor the ethical duty to “[mjake reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel, and has been given reasonable opportunity to obtain counsel .... ” La. State Bar Ass’n Rules of Professional Conduct, Rule 3.8(b)(emphasis added); see also Model Rules of Prof 119Conduct R. 3.8(b). As a matter of that ethical constraint, the state could not push this case forward until the question of respondent’s representation by counsel was settled. Cummings could not have communicated or bargained directly with respondent regarding her open plea offer while he was ostensibly still represented by Hearin although attempting to retain other counsel, La. Rules of Professional Conduct, Rule 4.2; she could not have set a hearing on the open defense motion in limine which the First Circuit had directed the trial court to retry; nor, finally, could she have unilaterally set a trial date with any reasonable likelihood it would take place as scheduled to justify the issuing of subpoenas for the state’s witnesses and preparing them for trial. The rapid pace with which plea negotiations were completed and a trial date was selected after Damico enrolled as respondent’s counsel indicates that all this case needed in order to move forward in a manner consistent with the time limits imposed by La.C.Cr.P. art. 582 was a defense attorney.

Under these circumstances, we conclude that the continuance of the status hearing on June 20, 2000, on respondent’s behalf, for purposes of allowing him to substitute other retained counsel for the inexplicably missing Hearin, constituted a preliminary plea within the scope of La.C.Cr.P. art. 580 and gave the state at least until June 20, 2001 to bring the case to trial. The trial court therefore properly denied respondent’s motion to quash the prosecution. Accordingly, the decision of the First Circuit is reversed, the trial court’s ruling denying the motion to quash is reinstated, as are respondent’s conviction and sentence, and this case is remanded to the district court for execution of sentence.

DECISION OF THE COURT OF APPEAL REVERSED; RULING OF THE TRIAL COURT DENYING THE MOTION TO QUASH REINSTATED; RESPONDENT’S CONVICTION AND SENTENCE REINSTATED; CASE REMANDED.

      . Evidently, there existed some confusion concerning whether La.C.Cr.P. art. 598(A)(conviction for a lesser grade of the charged offense operates as an acquittal on all greater degrees of the crime) required the state to file another bill of information, this time charging defendant with manslaughter.

        . The majority referred to the following exchange between the parties:
      Hearin: There has not been a formal bill of information but — and I guess we need a — a thirty — what do you want to do as far as him coming back?
      DA: If we could just get a thirty-day date. We can get him arraigned when he comes back for status as well.
      Clerk: What charge are y’all arraigning? There’s no bill in this — I mean, there’s a file.
      DA: Right. He's going to be re-billed with manslaughter. This is the case that was appealed and then came back. So if we could just reassign this for about thirty days.
      Clerk: You just want a status?
      DA: Just put it in for status.


text:
    STATE of Louisiana v. Roosevelt CANADA, Jr.
    No. 2001 KA 2674.
    Court of Appeal of Louisiana, First Circuit.
    May 10, 2002.

      Doug Moreau, D.A., By Aaron Brooks, Asst. D.A., Baton Rouge, Counsel for Ap-pellee State of Louisiana.
    Frederick Kroenke, Baton Rouge, Counsel for Defendant/Appellant Roosevelt Canada, Jr.
    Before: FITZSIMMONS, DOWNING, and LANIER
       JJ.

      . The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeals, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I «WALTER I. LANIER, Jr., Judge Pro Tern.

The defendant, Roosevelt Canada, Jr., was charged by bill of information with four offenses: (1) simple criminal damage to property of a value greater than $500 and less than $50,000, in violation of La. R.S. 14:56; (2) armed robbery, in violation of La. R.S. 14:64; (3) attempted carjacking, in violation of La. R.S. 14:27 and 14:64.2; and (4) carjacking, in violation of La. R.S. 14:64.2. He entered into a plea agreement with the State and trial court, and pled guilty to one count of carjacking with the understanding that he would receive a sentence in the range of 3 to 40 years and the other three charges against him would be dismissed. (The sentencing range for carjacking under La. R.S. 14:64.2 is actually 2 to 20 years.) He was sentenced to 15 years imprisonment at hard labor. He filed a motion for reconsideration of the sentence that was denied.

This appeal followed. Appellant’s only assignment of error is that the sentence imposed is unconstitutionally excessive.

FACTS

At the May 8, 2001 Boykin hearing, the trial court judge asked the assistant district attorney to state the factual basis for the defendant’s plea. The record reflects the following:

THE COURT: A FACTUAL BASIS FOR THE PLEA?
MR. BROOKS: YOUR HONOR, THIS INDIVIDUAL WALKED INTO JEFF’S FOOD MARKET AT APPROXIMATELY SEVEN O’CLOCK ON THE DATE OF JUNE 17TH. HE PLACED SOME COLD DRINKS AND CIGARETTES ON THE COUNTER AND WAS ASKED TO PAY FOR THE CIGARETTES AND COLD DRINKS. HE DECIDED HE WASNT. HE PULLED OUT A CRESCENT WRENCH AND THREATENED THE OWNER OF JEFF’S FOOD MARKET AND SAID, “GO AHEAD AND CALL THE POLICE,” AND RAISED THE WRENCH AS IF TO HIT THEM. HE THEN WALKED OUT AND PROCEEDED TO BREAK WINDOWS ON CAR DOORS IN AN ATTEMPT TO GET THEM. WHEN HE COULD NOT GET THOSE TWO CARS TO OPERATE HE THEN CAME INTO CONTACT WITH ANDREE LEFEVERE, WHO IS PRESENT IN THE COURT ROOM AND WISHES TO MAKE A VICTIM STATEMENT AT THIS INDIVIDUAL’S SENTENCING AT A FUTURE DATE, — UH—WHEREUPON HE THREATENED HER AND FORCEFULLY TOOK HER CAR FROM HER WITHOUT HER PERMISSION.
BY THE COURT:
Q. SIR, DO YOU UNDERSTAND THE FACTS THAT HAVE BEEN READ INTO THE RECORD BY THE STATE OF LOUISIANA?
A. YES, SIR.
LQ. ARE THOSE THE FACTS THAT YOU DESIRE TO PLEAD GUILTY TO TODAY?
A. YES, SIR.

VALIDITY OF THE PLEA BARGAIN

In his only assignment of error, the defendant asserts the sentence imposed pursuant to the plea agreement “is unconstitutionally excessive.” He contends he is 35 years old, his prior arrest record occurred when he was 20 years old, he took responsibility for his conduct by pleading guilty and his conduct “did not involve the use of great force, or violence, though the victims were frightened.” He asserts a “trial court cannot allow its dislike for the emotional trauma of the crime to influence its sentencing” and the trial court failed to properly consider the appropriate factors.

The Nature of a Plea Agreement

A discussion of the legal relations between the State, the defendant and a court in a plea agreement is necessary to properly decide this case.

In State v. Lewis, 539 So.2d 1199, 1204 (La.1989), appears the following:

We relied on contract principles to reach a decision in Nall, reasoning that a plea bargain is a contract between the state and one accused of a crime. Nall, 379 So.2d at 733. Such an approach has been looked upon with approval in the federal jurisprudence, especially where a promise of immunity from prosecution is at issue. See e.g., Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir.1982). Although the code provisions we interpreted in Nall have been revised, their substance remains unchanged. Compare former La. C.C. arts. 1779, 1819, 1823-24 with current La. C.C. arts. 1927, 1948-50. Thus, the principles enuciated in that decision remain viable.
A long-standing rule of contract law is that consent of both parties is required for a valid contract. La. C.C. art. 1927. Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. Finally, the Civil Code provides:
Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object ..., or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation. La. C.C. art. 1950.

In State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144, 1148 and 1149 appears the following:

\Jn determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law. State v. Nall, 379 So.2d 731 (La.1980); State v. Lewis, 539 So.2d 1199 (La.1989). Contractual principles may be helpful by analogy in deciding disputes involving plea agreements. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987); Cf Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). However, the criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract laws. State v. Nall, 379 So.2d at 734 (Dennis, J., concurring). Moreover, commercial contract law can do no more than to serve as an analogy or point of departure, since “plea agreements are constitutional contracts.” Ricketts v. Adamson, 483 U.S. at 16, 107 S.Ct. at 2689. The Court further stated in Rick-etts:
The values that underlie commercial contract law, and that govern the relations between economic actors, are not coextensive with those that underlie the due Process Clause, and that govern relations between criminal defendants and the State. Unlike some commercial contracts, plea agreements must be construed in light of the rights and obligations created by the Constitution. 483 U.S. at 16, 107 S.Ct. at 2689.
In the present case, we refer first to the law of contracts for application by analogy in determining whether a contract was formed. A contract is formed by the consent of the parties established through offer and acceptance. La. Civ. Code art. 1927. The offer and acceptance may be verbal unless the law prescribes a requirement of writing. Id.; Laroussini v. Werlein, 52 La.Ann. 424, 27 So. 89 (1900). Once there is an offer and acceptance, the agreement is subject to specific performance. La. Civ. Code art. 1986. The party demanding performance of a contract has the burden of proving its existence. Phillips v. Insilco Sports Network, Inc., 429 So.2d 447 (La.App. 4 Cir.1983). Moreover, the obligation may be dependent upon an uncertain event. La. Civ.Code art. 1767. A lawful cause is also necessary to the existence of a contract. La. Civ. Code art. 1966. The cause is the reason why a party obligates himself. La. Civ. Code art. 1967. (Emphasis added)

In Lewis v. State, Department of Public Safety and Corrections, 602 So.2d 68, 74 (La.App. 1 Cir.), writ denied, 604 So.2d 1312 (La.1992), appears the following:

The charge of theft in violation of La. R.S. 14:67 brought against Lewis in the bill of information is clearly a criminal matter. As a criminal matter, it is controlled by the substantive criminal law and the Louisiana Code of Criminal Procedure. Pleas in criminal matters are provided for in La.C.Cr.P. arts. 551-561. A plea of guilty is one of the four kinds of pleas authorized by La. C.Cr.P. art. 552. Plea bargaining is defined in Black’s Law Dictionary p. 1037 (5th ed.1979) as follows:
Plea agreement. See Plea bargaining. Plea bargaining. The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi- | ñcount indictment in return for a lighter sentence than that possible for the graver charge. Plea bargaining procedures in the federal courts are governed by Fed.R.Crim.P. 11(e). (Emphasis added)
Under the substantive criminal law, there are only two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Chalaire, 375 So.2d 107 (La.1979); State v. Wade, 364 So.2d 575 (La.1978); State v. Greer, 572 So.2d 1166 (La.App. 1 Cir.1990). At the time Lewis sought specific performance of his state plea bargain in state court, he had already served his state sentence, and the State had no authority to compel the federal authorities to give him credit for his state time on his federal sentence. In this procedural posture, the State could not give specific performance and the question of granting that remedy was moot. Lewis has never asked for the remedy of nullification or withdrawal of the guilty plea (with the attendant reinstatement of the parties in their pre-plea positions). (Emphasis added)

A criminal plea agreement is analogous to a civil compromise. La. C.C. art. 3071 et seq.

The Plea Agreement

The transcript of the Boykin hearing shows the following about the plea agreement herein:

Q. IT IS MY UNDERSTANDING THAT YOU ARE GOING TO BE PLEADING GUILTY TODAY BECAUSE OF DISCUSSIONS BETWEEN YOURSELF, AND YOUR ATTORNEY, AND THE STATE OF LOUISIANA, IS THAT CORRECT?
A. YES, SIR.
Q. AND WHAT ARE THE TERMS AND CONDITIONS OF THE PLEA?
MR. BROOKS: YOUR HONOR, HE IS GOING TO PLEAD GUILTY AS CHARGED TO CARJACKING. HE WILL HAVE A SENTENCING RANGE OF BETWEEN THREE AND FORTY YEARS. THE FURTHER CONDITION IS THAT HE NOT HAVE ANY CONTACT WITH HIS STALKING VICTIM EVER OR THAT WILL BECOME A VIOLATION OF THIS PLEA AGREEMENT.
MR. SIMMONS: AND ALL OF THE REST OF THE CHARGES ARE GOING TO BE DROPPED?
MR. BROOKS: CORRECT.
MR. SIMMONS: THERE ARE THREE OTHER FILES, YOUR HONOR.
Q. IS THAT YOUR UNDERSTANDING MR. CANADA?
| A- YES, SIR.
Q. BEFORE I CAN MOVE FORWARD I MUST EXPLAIN CERTAIN RIGHTS THAT ARE GRANTED TO YOU BY THE CONSTITUTION OF THIS STATE AND THE UNITED STATES. YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY AT EVERY STAGE OF THE PROCEEDINGS AGAINST YOU. IN FACT, YOU ARE REPRESENTED BY COUNSEL AND COUNSEL IS IN OPEN COURT WITH YOU AT
YOUR SIDE TODAY, IS THAT CORRECT?
A. YES, SIR.
Q. OKAY. DO YOU UNDERSTAND THE POSSIBLE PENALTIES THAT ARE PROVIDED FOR BY STATUTE? THAT IS THREE TO FORTY YEARS ACCORDING TO THE PLEA AGREEMENT THAT HAS BEEN REACHED, DO YOU UNDERSTAND?
A. YES, SIR.
Q. DO YOU ANY [sic] QUESTIONS REGARDING THE PENALTIES?
A. NO, SIR.
Q. HOW DO YOU PLEAD TO ONE COUNT OP CARJACKING?
A. GUILTY.
Q. BY PLEADING GUILTY YOU ARE ALSO WAIVING YOUR RIGHT TO ANY APPEAL OF ANY CONVICTION THAT MAY RESULT AT YOUR TRIAL. DO YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHT TO AN APPEAL?
A. YES, SIR.
Q. DO YOU HAVE ANY QUESTIONS FOR ME REGARDING THE CHARGES OF WHICH YOU ARE PLEADING GUILTY TO?
A. NO, SIR.
Q. DO YOU HAVE ANY QUESTIONS FOR ME AS TO THE PENALTIES THAT YOU ARE EXPOSED TO?
A. NO, SIR.
Q. DO YOU HAVE ANY QUESTIONS FOR ME REGARDING THE CONSTITUTIONAL RIGHTS THAT YOU ARE WAIVING HERE TODAY BY PLEADING GUILTY?
A. NO, SIR.
Q. YOU HAVE THE RIGHT TO ASK ME ANY QUESTIONS YOU HAVE IN REGARDS TO THE CONSTITUTIONAL RIGHTS, SIR?
A. NO, SIR.
Q. YOU TOTALLY UNDERSTAND THEM?
A. YES, SIR.
LQ. AND YOU ARE WAIVING THE RIGHTS THAT I HAVE EXPLAINED TO YOU?
A. YES, SIR. (Emphasis added)

Prior to the plea agreement, the defendant was charged with four offenses: (1) armed robbery in violation of La. R.S. 14:64 with a sentencing exposure of not less than 10 nor more than 99 years of confinement at hard labor without benefit of probation, parole or suspension of sentence; (2) carjacking in violation of La. R.S. 14:64.2 with a sentencing exposure of not less than 2 nor more than 20 years of confinement at hard labor without benefit of probation, parole or suspension of sentence; (3) attempted carjacking in violation of La. R.S. 14:27 and 14:64.2 with a sentencing exposure of hot less than 1 nor more than 10 years confinement at hard labor without benefit of probation, parole or suspension of sentence; and (4) simple criminal damage to property in an amount greater than $600 but less than $50,000 with a sentencing exposure of not more than 2 years with or without hard labor, or a fine of not more than $1,000, or both. Thus, his maximum sentencing exposure was 131 years, of which 129 years was mandatory with hard labor and without benefit of probation, parole or suspension of sentence. Further, his minimum sentencing exposure was 13 years at hard labor without benefit of probation, parole or suspension of sentence. The sentence actually imposed was only 2 years greater than his minimum sentencing exposure prior to the plea agreement. This plea agreement had substantial benefits for the defendant.

La. C.C. art. 1983 provides as follows:

Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.

The record reflects that the parties to the plea agreement performed their obligations in good faith. The defendant pled guilty to one count of carjacking; the state dismissed the three other charges against the defendant; and the trial judge imposed a sentence within the range agreed upon by the parties (and within the legal sentencing range for carjacking).

|sThis court was not a party to the plea agreement. Nevertheless, the defendant is asking this court to modify the plea agreement by amending the sentence imposed by the trial court pursuant to the agreement. As previously indicated, the jurisprudence considers a plea agreement as analogous to a contract that “is formed by the consent of the parties established through offer and acceptance.” Thus, it must logically follow any amendment or change to the agreement also must require the mutual consent to the change or amendment; without mutual consent to the change or amendment, the parties are not bound by it. Accordingly, it is arguable, under general contract law, that if this court, as a juridical person not a party to the plea agreement, orders a change (uses duress) in the agreement, then a party to the agreement whose consent has been vitiated by the change can withdraw from and/or rescind the original agreement. In this posture, the State could refuse to agree to the amendment or change and reinstate the three charges against the defendant that were dismissed as part of the original agreement.

THE SENTENCE

The trial court sentenced the defendant to “15 YEARS AT HARD LABOR IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS, CREDIT FOR TIME SERVED.” See La. R.S. 15:301.1 A.

As previously indicated, at the Boy-kin hearing, the assistant district attorney stated that the agreed upon sentencing range was between 3 and 40 years. (This is the sentencing range for first degree robbery. La. R.S. 14:64.1 B.) Pursuant to La. R.S. 14:64.2 B, the authorized sentence for carjacking is imprisonment “at hard labor for not less than two years and for not more than twenty years, without benefit of parole, probation, or suspension of sentence.” This statement was made in the presence of the trial court judge, the defense counsel and the defendant. There was no timely objection to this statement by any party.

The State and the defendant in their appellate briefs acknowledge that the correct sentencing range for carjacking is 2 to 20 years. At page 2 of his brief, the defendant states that “[t]he defendant changed his plea to guilty of carjacking, with the |9understanding that he would receive a sentence in the range of 3—40 years.” The defendant has not assigned error to the statement of the sentencing range given at the Boykin hearing. Accordingly, this error is not considered pertinent to this appeal. La.C.Cr.P. art. 841; Uniform Rules—Courts of Appeal, Rule 2-12.4. See also La. C.C. arts. 5, 1950 and 3078.

Finally, a plea of guilty waives all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976). In the instant case, the erroneous statements about the sentencing range for carjacking were made prior to the guilty plea and were not reserved for review on appeal.

Right to Contest the Sentence Imposed Pursuant to the Plea Agreement

La.C.Cr.P. art. 881.2 A(2) provides as follows:

The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

In State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171, 1174, appears the following:

The Legislature passed La.C.Cr.P. art. 881.2(A)(2) in 1991 (after State v. Smack, 425 So.2d 737 (La.1983)) to help implement the Louisiana Sentencing Guidelines. Although the Guidelines have been repealed, they still provide evidence of the legislative intent behind the passage of La.C.Cr.P. art. 881.2(A)(2). La. S.G. § 301(A) and (B) anticipated a plea agreement in which the defendant could plead guilty in exchange for imposition of a sentence within a grid cell or for a specific sentence. Comment (8) to La. S.G. § SOI explained “[t]he defendant cannot appeal from a sentence imposed in conformity with a plea agreement set forth in the record. See LSA-C.Cr.P. art. 881.2(A)(2).” This comment shows the legislature clearly intended for 881.2(A)(2) to preclude review of all plea bargains that are set forth in the record. Further support of this legislative intent is found in the Introduction to the Louisiana Sentencing Guidelines Manual, 1994 Edition at p. 11 which states:
[N]o further justification is required under the Guidelines if a guilty plea agreement is reached by the parties and submitted to the court with a recommendation regarding a particular sentence or a range or “cap.” The Guidelines and the 1991 implementing legislation adopt the view that a sentence in a particular case, which is acceptable to the prosecutor, defense counsel, and the trial court, should not be subjected to scrutiny by a reviewing court.
Based upon the evidence presented above, it is clear the legislature intended La.C.Cr.P. art. 881.2(A)(2) to apply to plea agreements involving both specific sentences and sentencing caps. (Emphasis added; footnote omitted)

linThe standard rules for interpreting laws are found in La. C.C. art. 9 et seq. and La. R.S. 1:1 et seq. See also Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). Article 881.2 A(2) is clear and unambiguous. La. C.C. art. 9; La. R.S. 1:4.

The Instant Case

The facts show that the sentence imposed herein was in conformity with the plea agreement that was set forth in the record at the time of the plea. The defendant is precluded from appellate review of the sentence. State v. Smith, 99-0946 (La. App. 1 Cir. 2/18/2000), 755 So.2d 351; State v. Sorenson, 98-0520 (La.App. 1 Cir. 12/28/98), 725 So.2d 604; State v. Lewis, 633 So.2d 315 (La.App. 1 Cir.1993). If the defendant wanted to appeal the sentence, he should have reserved the right to do so as part of the plea agreement as was done in State v. Shipp, 98-2670, p. 7 (La.App. 1 Cir. 9/24/99), 754 So.2d 1068,1072.

Conclusion

The assignment of error is not considered pursuant to the authority of La. C.CrJP. art. 881.2 A(2).

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

FITZSIMMONS, J., concur.