author: h CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. David PANNELL, Appellant.
    No. 37,620-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      Jack W. Slaid, Minden, for Appellant.
    David Pannell, Pro Se.
    John Schuyler Marvin, District Attorney, L. Charles Minifield, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   h CARAWAY, J.

Defendant pled guilty to attempted disarming of a peace officer, a violation of La. R.S. 14:34.6, for which he received the maximum sentence, and a DWI first offense, a violation of La. R.S. 14:98, for which he received a sentence of six months to run concurrently with the other offense. At the time of his conviction, the defendant was on probation or parole for a crime committed in the State of Georgia. The trial court ordered that the Louisiana sentences would run concurrently with defendant’s Georgia time. The defendant believed extradition to Georgia would occur shortly after the convictions. When extradition did not occur, he moved for reconsideration of the sentence after he remained incarcerated in this state. Following denial of the motion for reconsideration of the sentence, defendant appealed. For the following reasons, we reverse defendant’s convictions and sentences and remand to the trial court.

Facts and Procedural History

David Pannell (“Pannell”) was arrested near Minden on September 5, 2002, after the local police stopped Ms vehicle. Pan-nell allegedly refused to give police his name and was placed under arrest when he failed a field sobriety test. As he was advised of the charge against him, Pannell attempted to grab the officer’s weapon, and then fled. He was apprehended moments later and arrested.

Pannell appeared in court with counsel on December 13, 2002. The transcript discloses that the assistant district attorney (“ADA”) advised the trial court that Pannell was charged with attempted disarming of a police | .¿officer, first offense DWI, resisting arrest, driving under suspension and no proof of insurance. The ADA stated the following:

It’s my understanding that Mr. Pannell wishes to enter a guilty plea to the attempted disarming of a police officer with an agreed upon 2% year sentence, which would be the maximum, a DWI 1st he would also plead guilty to and the State would, as a result of that, dismiss the resisting arrest, driving under suspension, and no insurance. It’s also my understanding that Mr. Pannell is backing up 6 years in Georgia and the State has no objection to that sentence running concurrent should the judge so decide that.

The trial court advised Pannell of the following during the plea colloquy:

If you plead guilty to the attempted disarming a police officer, the Court would sentence you to the maximum wMch is 2jk years at hard labor and I will run that sentence concurrent, at the same time with any other sentence in this state or any other. If you plead guilty to the DWI 1st, I’ll give you 6 months, run that sentence concurrent, that’s the maximum, and run that sentence concurrent with the other sentence that I’ve just spoken to you about. The other two would be nol prossed and so that total would be 2]é years to run concurrent with any other sentence.

Thereafter, the trial court accepted Pan-nell’s guilty plea on both of the above offenses and his waiver of the sentencing delays and imposed sentences as stated above.

After sentencing, the ADA indicated to the trial court that Pannell wished to “waive any extradition and have his sentence served in Georgia.” The following exchange between the trial court, counsel and the defendant ensued:

Mr. Sentell: Your Honor, it’s my understanding also Mr. Pannell wishes to waive any extradition and have this sentence served in Georgia, is that correct?
Mr. Slaid: That is correct, sir.
The Court: Well, he’s going to have to sign the waiver of extradition or we’re not going to be able to do that.
l3Mr. Sentell: Yes, I understand. I’m just making the court aware and I believe the sheriffs department will provide him with that paperwork.
The Court: Where is it?
Defendant: May I speak? Automatically from the State of Georgia, if you’re released from prison, on your parole conditions or probation conditions, you automatically waive extradition rights.
Mr. Slaid: But you’re not getting out.
Defendant: Oh, I understand. They’re presently waiting for me, that’s the reason I want to go ahead and get this over with.
The Court: Yeah, I understand.
Defendant: And put this in the process of extradition.
The Court: Okay. Well, I understand. But we’ll have to require that you sign a waiver of extradition here, too.
Defendant: Okay.

On January 2, 2003, the defendant moved for reconsideration of his sentence on the grounds that he was misled as to outcome of his guilty plea, that he misunderstood the trial court as to what would happen during the period of time he served out his sentence in Louisiana, and that he understood that he would be allowed to serve his 6 year sentence in Georgia. The trial court denied the motion on January 7, 2003 without a hearing. Thereafter, the trial court granted defendant’s appeal of this ruling.

The record next reflects that the defendant appeared in court for a March 17, 2003 hearing to again reconsider the sentence at which time the transcript reflects that the district attorney gave the following description of the plea agreement:

Mr. Sentell: Your Honor, what I have, I do recall the conversation. What I show is that he did get a 2j¿ year hard labor sentence and then, I guess, 6 months on the DWI, and those were made concurrent with any other sentence. It |4was all of our understanding at that time that he would then be sent to Georgia to do that time....

The court was then informed that there had been a problem with the Louisiana Department of Corrections concerning Pannell’s release to return to Georgia. Following a short recess during which the ADA contacted the Department of Corrections, the problem was apparently resolved and the hearing ended with the expectation that Pannell would return to Georgia.

Pannell has not returned to Georgia and now pursues this appeal of the denial of his motion to reconsider sentence.

Discussion

The record indicates that at the time of his arrest in Louisiana, Pannell was either on probation or parole from the State of Georgia. Whether Pannell’s supervision had been transferred to Louisiana is not revealed. However, in any event, his arrest in Louisiana apparently exposed him to serve an existing six-year sentence in Georgia because of a probation or parole violation. Although the defendant apparently expected to return immediately to Georgia, the authorities in Georgia have not acted to obtain his extradition.

Pannell assigns as error the trial court’s failure to grant his motion to reconsider sentence and further argues that his guilty plea should be set aside for the State’s failure to extradite him to Georgia. Pan-nell argues that the State intended to return him to Georgia to serve all of his time concurrently and that he entered his plea based on that condition.

Withdrawal of a guilty plea after sentence is discretionary with the trial court, subject to reversal only if that discretion is abused or arbitrarily 1 ^exercised. State v. Anderson, 27,356 (La.App.2d Cir.9/27/95), 661 So.2d 542; State v. Hall, 26,006 (La.App.2d Cir.5/4/94), 637 So.2d 645, writ denied, 94-1373 (La.9/30/94), 642 So.2d 868. A trial court may set aside a guilty plea and sentence when the facts surrounding the guilty plea show it to be constitutionally deficient. State v. Smith, 406 So.2d 1314 (La.1981). A guilty plea is constitutionally infirm when a defendant is induced to enter that plea by what he justifiably believes was a plea bargain, and that bargain is not kept. State v. Dixon, 449 So.2d 463 (La.1984); State v. Anderson, supra.

The prison authorities of the first sovereign, the state that granted parole, properly determine what effect any new conviction will have upon the sentence imposed there. State v. Smith, 595 So.2d 813 (La.App. 2d Cir.1992). In like manner, upon revocation of probation after another offense, the authority to order consecutive service rests with the court that originally imposed the probated sentence, rather than with the judge who presided over the second conviction. La.C.Cr.P. art. 901; Smith, Id.

The record of the guilty plea and the subsequent hearing of March 17, 2003, discloses that all parties have proceeded under the assumption that Pannell would be returned to Georgia. Nevertheless, state officials from Georgia exercise their own authority over matters of parole violations and extradition, and they have not acted. The plea and agreed upon sentence, therefore, were arguably based in part on circumstances beyond the trial court’s control, thus calling into question the voluntariness of the plea. Recognizing this, the trial court offered at one point during the March hearing to allow Pannell to withdraw his plea. Nevertheless, after the ADA [r,solved the problem with the Louisiana Department of Corrections, the hearing once again concluded with the erroneous assumption that Georgia would act.

Under these circumstances, a withdrawal of the guilty plea pursuant to La.C.Cr.P. art. 559 could not have been made at the time that the defendant learned that he would not return to Georgia. Nevertheless, the record reveals that the trial court would allow the withdrawal of defendant’s plea in this case if the bargain of the plea agreement could not be kept. Accordingly, we reverse the conviction and sentence and remand to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The State's brief characterizes this hearing as held at the defendant’s request and the transcript describes it as a motion to reconsider sentence. However, the record reflects that when the second hearing occurred, Pan-nell had already appealed the denial of the motion, thereby divesting the trial court's jurisdiction under the provisions of La.C.Cr.P. art. 916.


source: Caselaw Access Project

author: I,STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. James TOWNSEND, Appellant.
    No. 37,628-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.
    Rehearing Denied Dec. 4, 2003.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, J. Thomas Butler, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   I,STEWART, J.

Following a bench trial, James Townsend was convicted of illegal use of a weapon while committing a crime of violence. He was sentenced as a second felony offender to 25 years at hard labor without benefit of parole, probation or suspension of sentence. The defendant now appeals the multiple offender conviction and his sentence. For the following reasons, we vacate the defendant’s sentence and remand for resentencing consistent with this opinion.

FACTS

On January 14, 2000, Shreveport police were dispatched on an “unknown trouble” call to the Queensborough area. As the first officer to arrive at the scene, James Tipton (“Tipton”) was flagged down by Carrie Bates (“Bates”) as he approached 3829 Morrow Street. Bates told him that her daughter had been shot and was lying in the front yard of her house. When Tipton arrived at that residence another officer, David Heaser (“Heaser”), pulled up behind him. Tipton saw that a teenage girl was lying on her back about 15 feet from the front door. He ran up to her and saw that she had some gunshot wounds. The victim was later identified as D.B., a 14-year-old girl.

Tipton told Heaser to go secure the back of the residence. As, he knelt down to check the girl’s wounds, he heard Heaser tell someone to drop a weapon. Tipton ran to the back to assist him, but when he got to the back of the house, Heaser reported that the suspect had gone into the house. The officers then requested additional police back up. When the back up arrived, D.B. was moved to the side of the house for safety and an off-duty | gfireman rendered first aid to her. The suspect, defendant James Townsend, eventually surrendered and came out of the house unarmed and without incident.

D.B. was taken to LSU Medical Center where she underwent surgery for wounds to her abdominal area. She remained hospitalized for over a month.

A search warrant was obtained for the residence and officers found a silver semiautomatic handgun. Carrie Bates said she was the owner of the gun, but that she had given it to Townsend’s mother for safekeeping.

At trial, D.B. testified that prior to the shooting, she and Townsend were inside the residence with her sister, Renika, who is also a minor, Renika’s infant, and a friend of the young girls identified only as “Muffin.” Townsend was her mother’s boyfriend and had lived in the residence with them for over a year. Townsend and D.B. had an argument over her behavior with boys, and he threatened to tell her mother. When Bates arrived at the house, Townsend was telling her about the altercation when he grabbed D.B. by her shorts and slammed her up and down on the floor. Bates and Renika tried to stop him.

Bates ran outside to go to a neighbor’s house to call the police. D.B. and Renika also ran out of the house. However, D.B. realized that her infant niece and Muffin were still in the house so she went back into the residence to get them. As she was walking out of the door, Townsend started shooting D.B., hitting her in the side and in her leg.

|sOn April 18, 2001, the trial court found the defendant guilty as charged of illegal use of a weapon while committing aggravated battery. The state filed a third felony habitual offender bill on June 19, 2001. Counsel for the defendant filed a motion to quash on the grounds that the two predicate offenses occurred on the same day. The trial court allowed the defendant to argue several motions pro se and evidence was taken at several different hearings. These pro se motions were denied on September 3, 2002. Counsel for the defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal on November 11, 2002. These motions were never argued or ruled on.

On September 3, 2002, the trial court found Townsend to be a second felony offender after the state concurred that only one of the convictions could be used to enhance the penalty. At the sentencing hearing on December 10, 2002, the trial court allowed the defendant to argue his pro se motion to quash the habitual offender bill he filed on the same day. The defendant raised two new issues that had not been presented at the original habitual offender hearing. The trial court denied his motion. The trial court sentenced the defendant to 25 years at hard labor without the benefit of parole, probation or suspension of sentence. He filed this timely appeal.

DISCUSSION

Townsend argues that the district court erred in adjudicating him as a second felony offender. He argues that the documentation was insufficient to indicate that he knowingly and voluntarily pled guilty to the predicate offense.

l/The state argues that the document admitted into evidence showed that Townsend was represented by counsel and waived his rights under Boykin in the proceedings of the prior offense.

La.R.S. 15:529.1 allows for enhanced sentencing for persons convicted of second and subsequent offenses. It reads:

A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
* * *

In Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969) the United States Supreme Court held on appeal of a criminal conviction that “it was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea, without an affirmative showing that it was intelligent and voluntary.” Concerning the record of such a guilty plea on appeal, the Court found that because a guilty plea constitutes a waiver of several constitutional rights, including the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s ^accusers, the prosecution was required to “spread on the record the prerequisites of a valid waiver.” Id. Thus, the Court held that it could not presume a voluntary and knowing waiver of these rights from a silent record.

In an attempt to comply with Boykin, the Louisiana Supreme Court held in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), a post conviction proceeding, that a guilty plea will be considered knowingly and voluntarily made only if the accused was informed of and made an articulated waiver of his right to jury, his right to his confront his accusers, and his privilege against self-incrimination. Because the transcript of the colloquy with the judge in Jackson showed that the accused was not informed of and did not waive his three Boykin rights, the plea of guilty was set aside. However, the Jackson court pretermitted deciding whether a contemporaneous record must be made of the examination. In State v. Lewis, 367 So.2d 1155 (La.1979), the court was faced with deciding whether to extend its requirements under Jackson to the determination of guilty pleas sought to be used at habitual offender hearings. The court held that in a multiple offender hearing, only those previous pleas of guilty may be used to enhance a sentence which are supported by a contemporaneous record which shows the “accused was informed of and made a knowing waiver of his right to jury trial, his right to confront his accusers, and his privilege against self incrimination. Id. (Emphasis added).

To use a prior guilty plea to enhance punishment, the state has the initial burden to show that there was a conviction and that the defendant | fiwas represented by counsel (or waived counsel) at the time he entered his plea. State v. Shelton (La.1993), 621 So.2d 769. Once the state produces such proof, the burden then shifts to the defendant to prove “a significant procedural defect in the proceedings.” Once a defendant makes an affirmative showing of an infringement of his rights or a procedural irregularity in the plea transcript, the burden reverts to the state and it must prove the constitutionality of the predicate plea. State v. Zachary, 2001-3191 (La.10/25/02), 829 So.2d 405.

The trial court in effect allowed Townsend two attempts to quash the multi-felony offender bill. Counsel for Townsend timely filed a motion to quash the bill of information on the grounds that the two predicate offenses arose on the same day and out of the same criminal act. At the hearing on November 14, 2002, the state conceded this point and the matter proceeded as a second habitual offender hearing.

The evidence produced was a certified copy of a document titled, “Judgment of Plea of Guilty or Nolo Contendere Before Court Waiver of Jury Trial.” The state had a fingerprint expert take prints from Townsend in open court. The expert then testified that the thumb print matched the print on the document.

The trial court admitted the document from a Texas court into evidence. The form-style judgment stated that the defendant was present in court with his attorney and that he had specifically waived his right to trial by jury and his rights to confront witnesses. The form was silent as to a waiver of a right to remain silent. It only referenced a waiver of rights form |7that the defendant had supposedly signed. It further referenced that the court found the defendant to be competent and that the guilty plea was being entered into freely and voluntarily. The form indicated he pled guilty to theft on August 25,1987.

Townsend’s trial counsel then argued that the state’s use of a waiver form alone was insufficient to overcome the burden to show the plea was free and voluntary under Boykin. He further argued that the state failed to offer any minutes or a transcript of the plea. Moreover, he also argued that the name on the document was James Henry Townsend, II, and that the habitual offender bill and other proceedings refer to the defendant as James Henry Townsend, III.

The state rebutted these arguments by showing that the fingerprint identification proved he was the same person as the one convicted in Texas in 1987. The state then argued that the form was adequate to show that the defendant was advised of and waived his rights and that the burden was on the defense to show that “in fact it was not freely and voluntarily made.” The trial court ruled that Townsend was a second felony offender “based upon the evidence and argument of counsel.”

However, Townsend correctly states in brief that the judgment showing the conviction does not contain any information to show that he waived his right to remain silent. Since this is the only piece of evidence the state submitted, this document on its face is enough to meet the defendant’s burden to show there was a procedural defect in the ^documentation. The burden then shifts to the state to produce more evidence to prove the constitutionality of the plea.

Under the precepts formulated in Zachary, supra, the state has not met the burden of proving the appellant waived his right to remain silent. That case states:

If the State produces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

By the term perfect transcript, we mean one which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin. State v. Shel ton, supra. A guilty plea form which excludes one of the three rights enunciated in Boykin unsupported by a minute entry or guilty plea colloquy is insufficient for the state to meet its burden of proof that the predicate plea was entered into knowingly and voluntarily for the purposes of a multiple bill. As such, we reverse the habitual offender conviction and remand this matter to the trial court for re-sentencing. This finding pretermits any discussion of the defendant’s second assignment of error asserting that his sentence was excessive.

CONCLUSION

For the foregoing reasons, the defendant’s conviction as a habitual offender is vacated and the matter remanded to the trial court for sentencing.

VACATED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS, and DREW, JJ.

Rehearing denied.


text:
    SECURITY NATIONAL PARTNERS, LIMITED PARTNERSHIP, Plaintiff-Appellee, v. Earnest BAXLEY and Carolyn C. Baxley, Defendants-Appellants.
    No. 37,747-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      Charles B. Bice, Winnfield, for Defendants-Appellants, Earnest Baxley and Carolyn C. Baxley.
    William A. Fogleman, for Plaintiff-Ap-pellee, Security National Partners Limited Partnership.
    Robert A. Thrall, for Defendant-Appel-lee, Assistant U.S. Attorney United States of America.
    Before BROWN, GASKINS and CARAWAY, JJ.
   h CARAWAY, J.

The makers of a promissory note secured by a collateral mortgage question in this appeal the trial court’s grant of summary judgment in favor of a party that was not the named payee of the note. Finding no material issue of fact concerning the plaintiffs right to enforce the promissory note and the mortgage, we affirm that portion of the judgment setting forth the amount of the debt. The remaining portion of the judgment concerning attorney’s fees and escrow payments lists no amounts for those items. We therefore reverse that portion of the judgment pertaining to escrow payments and attorneys fees, and remand.

Facts

Security National Partners, Limited Partnership (“Security National”) filed suit in November, 2001, against Earnest Bax-ley and Carolyn C. Baxley, husband and wife (“the Baxleys”), alleging the Baxleys’ default on a 1990 loan which had been the subject of a Modification Agreement between the parties dated December 16, 1996. The agreement recited the following: .

[The Baxleys] acknowledge that as of September 1, 1996, they are indebted to [Security National] in the principal amount of $134,596.52, plus accrued interest at the rate of 9.00%, for a total balance as of December 1, 1996 of $181,106.92, which indebtedness is evidenced by the Note. (Emphasis added). NOW, THEREFORE, in consideration of the premises and in order to induce [Security National] to forebear and modify the Note, the parties hereby covenant and agree as follows:
1. [The Baxleys] have requested and [Security National] agrees to accept the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 ($150,-000.00) DOLLARS, plus interest on the unpaid principal balance at the rate of ten (10%) | ¿percent per annum from date until paid. The modified payment schedule is as follows: Thirty-six (36) payments; payments 1 through 12 will be in the sum of $2,450.00 each beginning December 1, 1996 and each subsequent monthly payment will be due on the first day of each month thereafter; payments 13 through 35 will be in the sum of $1,450.00 each and payment 36, the final payment, will be for the entire principal balance plus accrued interest still remaining due and payable.
sí * *
9. [Security National] and [the Bax-leys] agree that all provisions of the Note and any Collateral Documents not specifically amended herein shall remain in full force and effect.

During the course of the proceedings, the parties stipulated that the Baxleys paid five installments pursuant to the Modification Agreement, with the last payment occurring in 1997.

Security National’s petition also alleged that it was the holder of the two promissory notes. The two notes were filed in the record. The first note (hereafter the “Handnote”), for $675,273.81, dated February 22, 1990, was signed by the Baxleys and payable to Jonesboro Federal Savings and Loan Association (“Jonesboro Federal”). The Handnote set forth no provisions for the manner in which it would be paid nor specified an interest rate. The Handnote did state that it was “secured by the pledge of that collateral mortgage note dated February 22, 1990 in the amount of $675,273.81 bearing interest at the rate of 12.00% per annum from date.” The Hand-note contains no endorsement from Jones-boro Federal or any other party. The second note (hereafter the “Collateral Mortgage Note”), for $675,273.81, dated February 22, 1990, was signed by the Bax-leys and payable to “ourselves,” on demand. Security National further alleged that Lthe Collateral Mortgage Note was paraphed for identification with a collateral mortgage also executed by the Baxleys on February' 22, 1990, in the amount of $675,273.81, and recorded in the mortgage records of Winn Parish.

On November 29, 2001, Security National filed this suit against the Baxleys. The United States was made a necessary party because of two federal tax liens recorded in Winn Parish. Security National prayed for judgment against the Baxleys for $144,378.56 plus interest, fees and costs, and recognition of the collateral mortgage. It further prayed that its mortgage be recognized as superior to the federal tax liens.

Security National moved for summary judgment, submitting affidavit testimony showing that $144,378.56 was owed on the debt. The Baxleys opposed the motion on the ground of various deficiencies in the exhibits evidencing the indebtedness. Nevertheless, they filed no affidavits or documents in opposition to the motion.

The evidence supporting the motion revealed that the Baxleys filed a voluntary petition for Chapter 11 bankruptcy protection on October 22, 1990. The record contains the plan of reorganization which listed $180,000 as the secured portion of Jonesboro Federal’s claim and recognized a 20-year payout pursuant to the plan at 10% interest per annum. The plan designated the remainder of Jonesboro Federal’s debt, estimated to |4be $455,000, as an undersecured claim and listed it among the other unsecured claims. '

Thereafter, Jonesboro Federal went into receivership. On June 29, 1992, the Resolution Trust Corporation assigned all of its rights in the Baxleys’ notes to Alaska Southern Partners, a Limited Partnership (“Alaska”). During the pendency of the Baxleys’ bankruptcy, Alaska obtained a $40,000.00 payment in 1993 on the indebtedness in exchange for its release of one of the two tracts of land encumbered by the mortgage.

An assignment of the Handnote from Alaska to Security National was executed on November 27, 2001. This was long after the time that Security National obtained the Modification Agreement from the Baxleys in December, 1996.

The Baxleys answered the petition, admitting their execution of the Modification Agreement. In an answer to an interrogatory regarding the relationship between the Handnote and the Modification Agreement, the Baxleys stated:

Further answering, affiants state that they were contacted by a company named Security National Partners concerning the indebtedness they owed Jonesboro Federal Savings and Loan and affiants agreed to enter into the modification agreement with Security National Partners, acknowledging they were indebted to Security National Partners for the amount set forth in the modification agreement. Affiants’ purpose of entering into the modification agreement was to allow themselves to structure a payment schedule to Security National Partners for the amount Security advised them they owed it and which they believed they could manage to repay.

After a hearing on Security National’s motion, the trial court granted summary judgment on January 8, 2003. On the same day as the ruling, the | ^Baxleys filed a peremptory exception of prescription, urging that both notes were prescribed on their face. Although it had already obtained summary judgment, Security National opposed the exception of prescription and appeared at the hearing on March 11, 2003. At the hearing, Security National elicited the following testimony from Earnest Baxley:

Q. On the two documents that are identified as P-2 [Handnote] and P- , 3 [Collateral Mortgage Note], the notes in this matter, the back of the note that is payable to ourselves, is marked, the note is given in pledge of a debt in the amount of $675,273.81? Do you recall that?
A. Jonesboro Federal?
Q. Yes.
A. Yes.
Q. And that note was given in pledge for the other note, the hand note, which is marked P-2 in this matter?
A. Yes, sir.
Q. And the mortgage that you executed is given to secure that noted marked P-3 as security for that note.
A. Yes, sir.
Q. Did you ever regain possession of these notes?
A. No, sir.
Q. You ever paid the debt represented by these notes?
A. No, sir.

The summary judgment was signed by the trial court on January 13, 2003. The judgment denying the exception of prescription was signed by the trial court on March 12, 2003. It is from these two judgments that the Baxleys appeal.

Discussion

By two non-specific assignments of error, the Baxleys contest the trial court’s grant of summary judgment for the money debt and for recognition of the mortgage against their property. Without citation to any authority, they question that Security National has the status as “the holder of the hand note.”

1 fiThe Handnote obtained by Jonesboro Federal is a negotiable instrument. La. R.S. 10:3-104. It set forth an unconditional promise to pay a fixed sum of money, and since it did not set forth any time of payment, the Handnote is considered as payable on demand. La. R.S. 10:3-108(a).

Security National demonstrated its possession of the Handnote by (i) presenting it into evidence, (ii) presenting evidence of a chain of assignments to the Handnote, culminating in Alaska’s assignment to Security National, and (iii) proving the Hand-note’s acknowledgment in the Modification Agreement. Under La. R.S. 10:3-301, Security National is clearly a “person entitled to enforce” the Handnote instrument. First Nat’l Bank v. Carr, 572 So.2d 1106 (La.App. 1st Cir.1990); FGB Realty Advisors, Inc. v. Riedlinger, 95-2276 (La.App. 4th Cir.4/3/96), 671 So.2d 560, writ denied, 96-1299 (La.7/1/96), 676 So.2d 101; see also La. R.S. 10:3-203 regarding transfer of an instrument. Whether a holder in due course, holder or nonholder in possession, the above jurisprudence and Section 3-301 of Louisiana’s Commercial Laws (La. R.S. Title 10) indicate that Security National may enforce the Baxleys’ obligation under the Handnote. It is incumbent upon the Baxleys to allege and prove the existence of any claim or defense to the Handnote, and in response to the motion for summary judgment, they have made no such allegations or proof.

The Baxleys further question whether the Note referenced in the Modification Agreement was clearly identified in the evidence as the Handnote. Security National brought this suit on the Handnote debt as modified by the actions of the bankruptcy court and the Modification [7Agreement. The Baxleys’ answer to the interrogatory admitted the relationship between the Modification Agreement and the Jonesboro Federal indebtedness. They presented no opposition evidence disputing their agreement to alter the repayment of that indebtedness under the terms of the Modification Agreement.

Additionally, the Baxleys vaguely question Security National’s right to maintain its security rights by virtue of the pledged Collateral Mortgage Note. The Collateral Mortgage Note is a bearer instrument which was pledged to secure the Handnote. Security National is the holder of the Collateral Mortgage Note and as indicated above has established itself as the party entitled to enforce the indebtedness represented by the Handnote. The accessory right, represented by the pledged Collateral Mortgage Note, follows with the transfer of the principal obligation, the Handnote. See, La. C.C. art. 2645 and the newly revised U.C.C. Chapter 9 provisions, La. R.S. 10:9-101, et seq,

|sNext, the Baxleys belatedly raised the exception of prescription challenging the viability of the two notes. The trial court, before the lapse of time for the running of the new trial delays, allowed a hearing on the peremptory exception.

The Collateral Mortgage Note and the Handnote initially were due on demand and were subject to a liberative prescriptive period of five years that commenced in 1990. This prescription commences to run from the day payment is exigible. La. C.C. art. 3498; McGill v. Thigpen, 34,386 (La.App.2d Cir.2/28/01), 780 So.2d 1224. Partial payment on a promissory note is an acknowledgment of the debt which interrupts prescription. La. C.C. art. 3464; Anders Prod., Inc. v. Stream Farms, Inc., 502 So.2d 175 (La.App. 3d Cir.1987). Prescription does not run in favor of the debtor whose debt is secured by a pledge, and it remains interrupted as long as the thing pledged is in the possession of the pledgee. Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956). It is not the contract or act of pledge that interrupts prescription but rather the detention by the pledgee of the thing pledged, such possession serving as a constant acknowledgment of the debt and hence a constant renunciation of prescription. Id. This rule, which may be referred to as the “constant acknowledgment” rule, constitutes one of the unique advantages of the collateral mortgage. See, Kaplan v. University Lake Corp., 381 So.2d 385 (La.1980).

Regarding prescription on the Handnote, the Baxleys acknowledge in their brief and the evidence indicates that in 1993 a payment on the Handnote was made during the pendency of their bankruptcy. This payment ^occurred within the initial five-year prescriptive period of the debt. Thereafter, on December 16, 1996, the Modification Agreement was executed and a series of payments were made by the Baxleys pursuant to the agreement during 1997. Accordingly, these last payments occurred within five years of the date of filing of this suit. Therefore, the trial court properly denied the exception of prescription regarding the Handnote. Additionally, the Collateral Mortgage Note was shown to have been held in pledge continuously as security for the Handnote indebtedness. Therefore, the “constant acknowledgment” rule cited above serves to prevent the running of prescription on that note.

Finally, the only issue of merit raised by the Baxleys concerned the summary judgment’s indeterminate awards for “advanced escrow payments and late fees” and “reasonable attorney fees.” No evidence was included in the motion for summary judgment that would identify the amount allocable to any such escrow payments, and while the Handnote provided for not less than 10% attorney’s fees, the trial court may have found that amount unreasonable and intended to make a different award. Louisiana courts require that a judgment be precise, definite and certain. Vanderbrook v. Coachmen Indus., Inc., 01-809 (La.App. 1st Cir.5/10/02), 818 So.2d 906. The specific nature and amount of damages should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Id.

Accordingly, we amend the judgment to delete those awards, and as amended, affirm the judgment as a partial summary judgment for |in$144,378.56 plus interest, and costs, and the recognition of Security National’s rights in the mortgage as set forth therein. The case is remanded for any further assertions by Security National for escrow amounts and attorney’s fees, with costs of appeal assessed to appellants.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . A consent judgment recognizing Security National’s mortgage as outranking the federal tax liens was signed by the trial court on March 11, 2003.

      . We note that the Baxleys did not raise an affirmative defense asserting any discharge in bankruptcy.

      . Chapter 9 of Title 10 of the Revised Statutes addresses U.C.C. Secured Transactions in Louisiana. La. R.S. 10:9-702 indicates that Chapter 9 applies to a transaction or lien within its scope, even if the transaction or lien was entered or created before July 1, 2001, and to proceedings commenced after July 1, 2001. Likewise, La. R.S. 9:3192 indicates that Chapter 9's provisions shall prevail over the assignment provisions of the Civil Code’s chapter on sales in the event of conflict. A review of Chapter 9 indicates to us that Security National is a secured party, which is defined in La. R.S. 10:9-102(72) as a person to which a promissory note has been sold. Likewise, after consideration of the U.C.C. definitions for "security interest’’ [R.S. 10:1— 201(37)] and "collateral” [R.S. 10:9-102(12)], the sale of a promissory note, which occurred in this case regarding the Handnote, is a transaction that gives rise to a security interest and the application of Chapter 9. La. R.S. 10:9-109(a)(3). Then specifically, Section 9-203(f) provides that the creation of the security interest in the buyer/assignee of a promissory note gives the buyer/assignee the rights to a "supporting obligation” for the promissory note. Supporting obligation is defined in Section 9-102(77) as a secondary obligation that supports the payment of an instrument, such as the Handnote. The Official Revision Comment (b) to Section 9-203 states that the section's intent is to provide that the transfer of an obligation (the Handnote) secured by a security interest or lien on movable or immovable property also transfers the security interest or lien. Thus, with the transfer and possession of the Handnote into Security National, as discussed above, and with Security National’s possession of the Collateral Mortgage Note, these principles of Chapter 9 reflect that the security interest in the Collateral Mortgage Note and the mortgage right to the immovable property have been transferred to Security National.


author: |, CARAWAY, J.

text:
    Edward GAJESKE, Plaintiff-Appellee, v. INTEGRATED ELECTRICAL SERVICES, INC., Defendant-Appellant.
    No. 37,777-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      Hudson, Potts & Bernstein, L.L.P., by Jan P. Christiansen, Monroe, for Appellant.
    Street & Street, by C. Daniel Street, Monroe, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   |, CARAWAY, J.

In this worker’s compensation action, the employee received injuries while working as a lineman. After the employee was released to return to work with restrictions, the employer offered him a job in the city of its home office located approximately 180 miles from the employee’s home. When the employee refused the job offer, the employer terminated supplemental earnings benefits (“SEBs”). The employee sought reinstatement of his benefits, penalties and attorney’s fees, and filed a motion for partial summary judgment on the ground that the job offered was not in a reasonable geographic area. The employer also sought summary judgment, urging that the offered employment satisfied the geographic requirements of the law. After the workers’ compensation judge (“WCJ”) granted the employee’s partial summary judgment and certified it as a final judgment, the employer and its insurer appealed. After de novo review, we reverse and remand.

Facts

Edward Gajeske, a resident of Monroe, Louisiana, was employed by Integrated Electrical Services, Inc. d/b/a/ Ernest Breaux Electrical (“Breaux”) as a journeyman lineman. Breaux is headquartered in New Iberia, Louisiana. Gajeske worked for Breaux at different job sites which were located not more than 50 miles from his home in Monroe. On March 6, 2001, Gajeske sustained injuries to his lower back, shoulder and neck while attempting to drill through a piece of steel. American Casualty Company of Pennsylvania, Breaux’s compensation insurer, paid temporary Rtotal disability and supplemental earnings benefits to Gajeske who was subsequently released to work with restrictions by his physician.

In August of 2002, Gajeske’s physician approved Gajeske for an electrician’s job offered by Breaux which the physician found to be within Gajeske’s medical restrictions. The form signed by the doctor indicated that although Gajeske would remain at the same pay level the geographic location would change. This job would be located near New Iberia, with the company paying for hotel accommodations and a per diem allowance for expenses. By letter dated August 22, 2002, Breaux offered the job to Gajeske. On October 9, 2002, Breaux again forwarded the written job offer to Gajeske, although this offer erroneously specified that the work would be located in either Mississippi or Arkansas, because Breaux had no work around Monroe. The job offer expired on October 14, 2002. After Gajeske declined the employment offer, Breaux terminated his SEBs. Gajeske filed a disputed claim for compensation on October 29, 2002, seeking reinstatement of either temporary total disability benefits or SEBs and penalties and attorney’s fees.

Breaux’s subsequent letter dated November 20, 2002, explained that the previous letter erroneously specified jobs in Mississippi and Arkansas because Gajeske would have been working there had he not been injured. Breaux further clarified that Gajeske’s employment offer was, as stated in the initial correspondence, for the Lafayette/New Iberia area. Nevertheless, Gajeske continued to refuse the work offer.

[3After Breaux answered the plaintiffs demand, Gajeske filed a motion for partial summary judgment contending that Breaux could not terminate his SEBs because the offered employment was not in the geographical area required by law. Likewise, Breaux sought a summary judgment on the basis that the offered employment was within a reasonable geographic location as required by La. R.S. 23:1221(3) (c) (i).

The WCJ heard arguments on the conflicting motions for summary judgment and ruled in favor of Gajeske. Specifically, the WCJ determined that it was unreasonable to require Gajeske to travel and essentially relocate 180 miles from home. Additionally, the WCJ found that because Gajeske was hired in Monroe, the reasonable geographic location for both the employer and the employee would also be in the vicinity of Monroe. The judgment was certified under La. C.C.P. art. 1915(B) and this appeal by the defendant ensued.

Discussion

The parties do not contest Gajeske’s entitlement to SEBs before October 9, 2002. Rather, their dispute centers on whether the offered employment, some 180 miles from Gajeske’s home, but in the employer’s home office location, qualifies as a reasonable geographic location for purposes of La. R.S. 23:1221(3), thereby justifying the termination of benefits.

In setting forth the measure for SEBs under La. R.S. 23:1221(3)(a), the law provides that wages “earned,” or which “the employee is able to Learn,” during the disability period are used in the calculation. Section 1221(3)(c) then provides as follows:

(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region. (Emphasis ours.)

Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn ninety percent or more of his wages at the time of injury under the facts and circumstances of the individual case. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claims for supplemental earnings benefits or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. Actual job placement is not required. Caparotti v. Shreveport Pirates Football Club, 33,570 (La.App.2d Cir.8/23/00), 768 So.2d 186, writ denied, 00-2947 (La.12/15/00), 777 So.2d 1230.

| sIn evaluating the issue of the reasonable geographic region for available employment, the courts have noted that the determination depends upon such factors as the nature of the employment region, whether a city or rural area, and the transportation requirements and availability to and from the job site. Courts have also considered the employment agreement and work history of the employee in determining the reasonable geographic region. Finally, the economic impact of the offered employment upon the employee has been considered by the courts in determining the reasonableness of a geographic region.

| (¡Additionally, we must distinguish a recent decision by the Louisiana Supreme Court where the employer’s offer to the injured employee of a light-duty job at its place of business was found to be inappropriate for the employee. Fontenot v. Reddell Vidrine Water Dist., 02-0439, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14. Although the job offer was for 100% of the pre-injury wages, the employee had been required to move for economic purposes from the employer’s place of business in Pineville, Louisiana to Breaux Bridge, Louisiana during his period of disability. The case also involved vocational rehabilitation services, and the court therefore construed Section 1226(B)(2) of the Act which addresses such services with Section 1221(3)(c) in reaching its decision. The court indicated that because of the passage of time since the date of injury and the employee’s relocation to Breaux Bridge for financial reasons, a focus solely on the offered employment in Pineville was inappropriate. Given the fact specific nature of each determination under Section 1221(3)(c), we do not find that Fontenot gave a construction to the law that eliminates consideration of available employment with the employer when the employee’s residence differs from the employer’s place of business. In this case, Gajeske makes no claim for rehabilitation services and has not moved from the place he resided at the time of injury.

The evidence presented in support of the opposing motions for summary judgment included the affidavit of Breaux’s safety manager who 17stated that the main office of Breaux is located in New Iberia, Louisiana. Breaux offered Gajeske a job “in the Lafayette / New Iberia area” which was approved by Gajeske’s doctor. The job was offered to Gajeske at his same rate of pay and included room and board, a per diem and training for the position. Other relevant evidence in the record before us includes two letters sent to Gajeske from Breaux which indicated that, had Ga-jeske not been injured, continuing his work would have required out of state travel to either Mississippi or Arkansas.

Gajeske’s affidavit stated that he declined the New Iberia work because he took the job with Breaux so he could work in the Monroe area, near his children. Additionally, Gajeske claimed that while he worked for Breaux, he had never traveled more than fifty miles from Monroe.

In this case, much about the parties’ employment agreement is not explained by the evidence, thus giving rise to competing inferences which favor the assertions of both sides. The evidence does not reveal how long Gajeske was employed with Breaux and whether the nature of Breaux’s work at the two North Louisiana job sites was only temporary or long term. There are implications that Breaux’s work in North Louisiana was not permanent. The evidence shows that Gajeske was required to travel some distance from Monroe to work. However, whether he was expected at the time of his injury to travel distances that would not allow for his daily return- to Monroe is not explained. Breaux’s evidence implies that it expected Gajeske to travel and remain away from Monroe, while Gajeske’s affidavit indicates that such was not his understanding of the employment | srelationship. Additionally, there is no information explaining whether the employment offered in New Iberia was temporary or whether similar work would eventually become available closer to Monroe. Finally, the record is unclear regarding the overall economic impact of the offered employment on Gajeske.

The reasonableness of the geographic region of available work in this case, when considered from the perspective of the “employer’s community,” will require a weighing of various factors, many of which are disputed and explored rather vaguely in the record before us. Therefore, the measurement of the reasonableness of Breaux’s offer is inappropriate on motions for summary judgment in this case.

For these reasons, we reverse the partial summary judgment in favor of Gajeske and remand for further proceedings. Cost of this appeal are assessed to Gajeske.

PARTIAL SUMMARY JUDGMENT REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

        .See Daugherty v. Domino’s Pizza, 95-1394 (La.5/21/96), 674 So.2d 947, which held that light duty employment thirty miles from claimant's home was not reasonable due to his physical inability to drive more than a short distance from his home; Joyner v. Davison Transport, Inc., 28,880 (La.App.2d Cir. 1/22/97), 688 So.2d 623, which determined that an eighty-four mile commute four days per week for claimant who had no reliable transportation and complained of back pain was not within reasonable geographic region; Mayeux v. Kentucky Fried Chicken, 28,163 (La.App.2d Cir.4/3/96), 671 So.2d 1261, writ denied, 96-1133 (La.6/7/96), 674 So.2d 966, which held that jobs in Vicksburg were within reasonable geographic region of employee who lived in Tallulah, Louisiana, twenty miles away; Henry v. Schwegmann Giant Supermarkets, Inc., 95-327 (La.App. 5th Cir. 12/13/95), 665 So.2d 740, writ denied, 96-0410 (La.3/29/96), 670 So.2d 1235, which held that a job located within the same city, but which would require the employee to catch at least two buses, wait for 20 minutes between buses and walk from her home to the bus and vice versa was not within the reasonable geographic region for employee whose disability prevented her from performing such physical activities; Bailes v. BE & K Construction, 26,528 (La.App.2d Cir.1/25/95), 649 So.2d 167, which affirmed penalty and attorney fees award in a case where the employer offered a special job in Virginia to a Clarks, Louisiana claimant after the determination that the job offer was not within a reasonable geographic region despite the fact that claimant had previously worked in Alaska, had traveled eighty miles to his place of employment, was unsure if he could physically perform the offered job, was not aware of duration of Virginia employment and had not been offered transportation expenses by the employer; Henton v. Walker & Wells Contractors Inc., 25,821 (La.App.2d Cir.5/4/94), 637 So.2d 672, writ denied, 94-1491 (La.9/23/94), 642 So.2d 1295, which found that jobs located fifteen and forty (Delhi, Rayville) miles from claimant’s home in Tallulah were not reasonable because the claimant lived in a rural area, had previously been provided transportation by his employer and had no means of transporting himself to the jobs.

      . See Joyner, supra at 628, where concurring/dissenting judge urged consideration of previous work habits in the ultimate determination of reasonable geographic region. See discussion infra in Bailes, supra, regarding claimant's previous work in Alaska; Bankston v. Scaffolding Rental & Erection Services, Inc., 513 So.2d 307 (La.App. 1st Cir.1987), which held that jobs located in Baton Rouge, approximately thirty miles from the claimant’s residence, were within the reasonable geographic region because the claimant had previously worked in Baton Rouge and was physically capable of commuting that distance.

      . See Romero v. Grey Wolf Drilling Co., 594 So.2d 1008 (La.App. 3d Cir.1992), wherein the court considered that the gasoline consumption required of a Lafayette Louisiana pizza delivery job would likely use up any profit of the employee who resided in Crowley, Louisiana; Kennedy v. Commercial Union Ins. Co., 572 So.2d 319 (La.App. 3d Cir.1990), where the court noted in dictum that it would consider the economic advantages or disadvantages required of an employee who suffered from back pain and was obligated to drive 80-100 miles per day for a job that paid only $125.00 $150.00 per week.

      . Additionally, we note that while we have addressed this appeal under the auspices of La. C.C.P. art. 2164, the recent Supreme Court's holding in Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64 casts doubt on the authority of the WCJ to certify the subject partial summary judgment as a final judgment. Moreover, we question the piecemeal pre-trial resolution of issues when the remaining claims of penalties and attorney's fees will necessarily involve a reexamination of the evidence. Thus, there remains a significant relationship between the unadjudicated claims and the adjudicated partial claims indicating the impropriety of a decision on the merits at this time. Brantley v. State Farm Ins. Co., 33,386 (La.App.2d Cir.5/10/00), 760 So.2d 603.


author: | .MOORE, J. | ¶ CARAWAY, J.,

text:
    Inez L. ANDING, et al., Plaintiff-Appellant, v. Alvin B. ANDING, Sr., et ux., Defendant-Appellee.
    No. 37,778-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.
    Noah, Smith, Mitchell & Johnson, L.L.P., by Jay B. Mitchell, for Appellant Inez L. Anding, et al.
    Hayes, Harkey, Smith & Cascio, LLP, by C. Joseph Roberts, III, for Appellee Albert B. Anding, Sr., et ux.
    Before CARAWAY, DREW and MOORE, JJ.
   | .MOORE, J.

Plaintiffs appeal a judgment granting the defendant’s motion for summary judgment to uphold a dation en paiement by which they conveyed to him their interest in the immovable property of their father’s succession and denying their own motion for summary judgment declaring that the dation was an absolute nullity. For the reasons set forth below, we affirm.

Facts

The plaintiffs, Inez L. Anding, Ray Randolph Anding, Sr., Beatri Anding Albrit-ton, Gloria Anding Albritton, and the defendant, Alvin “Burt” Anding, Sr., are children of Lee Randolph Anding, who died on May 6, 1999. The deceased left a will directing the children to “share and share alike.”

On June 16, 1998, approximately one year prior to his father’s death, defendant obtained a judgment against his father. The judgment remained unsatisfied at the time of Lee Anding’s death, and, as a result, the defendant is the prime creditor of the succession. It is alleged that the amount of the judgment exceeds the value of the succession.

Plaintiffs allege that in December of 1999, several months after the death of their father, and after their sister Inez was qualified as executrix of the succession, defendant approached his brothers and sisters regarding his status as the primary judgment creditor of their father’s succession. He offered to release each of his brothers and sisters from “their share” of their father’s debt if they would relinquish their interest in the immovable property of the succession, which consisted of several tracts of land totaling | ^approximately 650 acres, while leaving the remaining movable property among them to “share and share alike.” Four of the brothers and sisters, the plaintiffs in this action, agreed to the proposal and during the three-day period of December 21-23, 1999 executed a dation en paiement, which was captioned “Act of Giving in Payment” (hereinafter, “Act” or “dation ”). In the Act, each legatee conveyed his or her interest in the described tracts of immovable property to the defendant in exchange for “extinguishment” and “full acquittance and discharge” by defendant “of each of their respective virile portions of the indebtedness” ... “by virtue of their status as the legal heirs of Lee Anding.”

For reasons undisclosed, plaintiffs subsequently filed a petition alleging several grounds to have the Act declared null and void. These claims, except one, have since been abandoned. Plaintiffs’ sole claim upon which they based their motion for summary judgment is that, as a matter of law, the dation or Act is an absolute nullity because it purports to convey “a specific piece or pieces of property” belonging to the succession of their father after the succession representative was qualified, but before the administration of the succession was complete, citing Succession of Stoufflet, 95-0116 (La.App. 1st Cir.11/9/95), 665 So.2d 98, writ denied, 95-2937 (La.2/16/96), 667 So.2d 1052.

^Defendant opposed the motion, arguing that the rule of Succession of Stoufflet was legislatively supplanted by La. C.C. art. 938 which took effect on July 1, 1999 and filed a cross-motion for summary judgment declaring that the December 1999 dation is valid and enforceable.

The trial court granted the defendant’s cross-motion for summary judgment and upheld the dation, stating in the judgment that the “retroactivity aspect” of the case favored the defendant. The court was referring to the legislatively mandated retroactive application of a 2001 amendment to La. C.C. art. 938. No separate written reasons for judgment were assigned. Plaintiffs filed this appeal.

Discussion

Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98), 707 So.2d 459. The burden of proof remains with the mover. La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his | ¿response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587; Yarbrough, 731 So.2d at 487; Bookman v. Caraway, 29,436 (La.App.2d Cir.04/02/97), 691 So.2d 815.

In this instance, both sides concede there are no material facts in dispute and both sides submit that the legal question, namely, the alleged absolute nullity of the dation, is governed by La. C.C. art. 938. Article 938 was enacted as part of the 1997 Revision of the Louisiana Law of Successions that became effective July 1, 1999. Although this article was not in the Code of 1870, the comments make it clear that the new article is consistent with the principles expressed in Civil Code Articles 2513 and 2650 which deal with warranty in the sale of succession rights. These sales were expressly permitted under former Civil Code article 2449 (1870), now Civil Code article 2448.

As originally enacted in 1997, and at the time the dation was executed, Article 938 read:

Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in the estate. Upon qualification of a succession representative, the exercise of those rights is subject to administration of the estate.

1 ^Defendant argues that the statutory language in Article 938 and the comments to the article support their position that the article authorizes an heir to exercise his ownership rights with respect to his or her interests in the estate, including entering into the type of transaction and conveyance that occurred in this case dealing with a thing of the estate. In support of this reading of the article, the legislature amended Article 938 by 2001 Act No. 556, clearly authorizing an heir to deal with a “thing” in the estate. The amended version of Article 938 reads:

A. Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.
B. If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate.

Section 3 of 2001 Act No. 556 declared that the amendment was interpretative, meant to clarify the original version, and “shall be applied retroactively.” Thus, if the original enactment of Article 938 was intended to authorize an heir to exercise his rights of ownership with respect to particular things in an estate, then the transaction or compromise that occurred in this ease is valid, and we need not reach the question of | /‘retroactivity” because there was no substantive change in the meaning of Article 938 by the 2001 amendment.

Plaintiffs contend that when it was enacted, Article 938 simply codified existing jurisprudence holding that the sale by an heir of his or her entire interest in a succession is permitted, but the sale of a particular thing or part of his interest in a succession is an absolute nullity, citing Succession of Stoufflet, supra. In Stouf-flet, Paul Stoufflet sought to sell his undivided interest in his parents’ succession to his brother, Oswald, on September 1, 1988 by an act of sale which specifically described the real estate comprising the family home. Three years later, on June 25, 1991 Houma Mortagage obtained a judgment against Paul Stoufflet and recorded the judgment on that day. On November 25, 1991, Paul and his brother executed a second act of sale in which they acknowledged that the September 1, 1988 sale was intended to transfer Paul’s entire interest in the succession of his parents and not simply his undivided interest in the immovable property of the estate.

The petition to open the succession was filed on February 12, 1993 and Oswald was named succession representative. Houma Mortgage sought to intervene in the proceeding as a judgment creditor of Paul, but Oswald filed an exception of no right of action urging that Paul had sold his interest in the succession prior to the date Houma had recorded its mortgage. The district court overruled the exception, and the First Circuit affirmed the ruling, holding that the September 1988 sale of the family home constituted the sale of an heir’s undivided interest in a specific piece of property |7beIonging to the succession and was therefore an “absolute nullity.” The court went on to hold that, because the sale of a particular part of a succession was an “absolute nullity,” the brothers’ attempt on November 25, 1991 to ratify the 1988 sale could not be accomplished since the absolutely null original sale was deemed never to have existed. Therefore, the court concluded that the judicial mortgage attached to the heir’s interest in the unopened succession when it was recorded on June 25, 1991, and, because this occurred prior to the second sale on November 25, 1991, that sale was burdened with the Houma Mortgage’s lien.

| sThus, the dispute over the interpretation of Article 938 is whether the phrase, a “successor may exercise rights of ownership with respect to his interests in the estate,” can be construed to mean his “interest in a particular thing,” or must it mean that a successor may deal only with “his entire interest in the succession” as required by Succession of Stoufflet, supra, and other cases decided prior to the 1997 Revision. The former interpretation is consistent with and clearly authorized by the 2001 amendment to Article 938, while the latter interpretation would represent a codification of prior law. For the following reasons, we conclude that the phrase above means a successor may exercise rights of ownership with respect to his interest in a particular thing.

Although the 1997 Revision Comments do not contain the familiar Reporter’s expression that the revised article “does not change the law” or “changes the law,” as is customary when such is the case, the 1997 Revision comments state that the article recognizes “the ownership of estate property enjoyed by a successor prior to a formal judgment of possession, and affords a basis for his binding acts with respect to his own interests.” La. C.C. art. 938 Comment (a). Comment (a) further states that “[a] person dealing with a successor may acquire such title or interest as the successor [ ahas; in particular, the rights of creditors may supersede that of a purchaser from the successor if timely asserted.” Finally, although Comment (b) states that “this revision” of the succession articles “preserves the important functional distinction that has been made in prior law with reference to acts prior to and acts subsequent to qualification of a succession representative,” it neither states nor implies that the new article codified existing jurisprudence or the rule of Succession of Stoufflet, supra.

We further note that the article itself refers the successor’s interests in the estate, using the plural, rather than the singular, implying that the successor may deal with his various interests in the succession, rather than be limited to dealing only with his entire interest in the succession. Moreover, the legislature’s act amending Article 938 clearly expressed how it intended the 1997 version of Article 938 to be construed. No doubt it wanted to loosen those restrictions against hems dealing with their succession interests imposed by some prior jurisprudence.

According to La. C.C. art. 935, “[i]mme-diately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.” Comment (b) to this article states that while the estate is under administration, the universal successors may not exercise the rights of the deceased, such as the right to alienate or encumber the property of the deceased, without first terminating the administration. A successor may, however, alienate or encumber his own interest in the estate even while the estate is under administration.

I min this instance, four of the legatees gave his or her undivided 1/6 interest in the immovable property of the estate in exchange for remission of the succession debt attributable to their respective shares. We hold that this transaction, subject to the administration of the succession, is permitted under Article 938, as originally enacted.

Accordingly, we affirm the judgment of the trial court at appellants’ costs.

AFFIRMED.

CARAWAY, J., concurs with written reasons.

| ¶ CARAWAY, J.,

concurring.

Because of the cloud placed upon innumerable titles to immovable property caused by the Stoujflet decision, I respectfully concur to add the following:

I agree that Article 938 as originally enacted in 1997 was sufficient in its language to affirm the validity of the parties’ dation. The heir’s “exercise” of “rights of ownership” is not restricted in the original enactment to the use or transfer of the whole of the inheritance, but can apply to a specific piece of property that comprises a part of the inheritance. The only restriction listed in Article 938 is that the heir’s exercise of ownership is “subject to administration of the estate.”

I also agree that Article 938 expresses principles which were already indicated in the Civil Code before 1997. Nevertheless, by loose language in the jurisprudence pri- or to the enactment of Article 938 and through confusion over the former concept of seizin, the notion of the exercise of ownership “subject to administration of the estate,” which is now express in Article 938, was occasionally misconstrued as “absolute nullity” in certain decisions. Thus, while this court in Succession of Griffin v. Davidson, 125 So.2d 30 (La.App. 2d Cir.1960) was eminently correct in ruling for the administratrix and setting aside the sale of the heir’s interest as being “subject to administration of the estate,” its misuse of the lethal language of absolute nullity led to the later erroneous ruling in Stouf-flet. The creditor in Stoufftet was not an administrator or even a creditor of the estate, so that the power of administration could not have been invoked to set aside the sale of | gthe heir’s interest. Instead, the concept of absolute nullity was improperly applied in Stoufflet. It was not the law and has no application in this case.

      . Defendant's wife, Dorothy Harris Anding, is also a named defendant.

      . One of the defendant’s sisters, Vivian And-ing Bennett, declined to participate in the agreement.

      . Stoufflet is the latest of a sporadic line of pre-1997 Revision cases beginning in the early nineteenth century which held that an heir may sell his entire interest in a succession, subject to the charges with which his interest is burdened, but the sale of an heir's undivided interest in a specific piece of property belonging to a succession is an "absolute nullity.”

      . Former Civil Code article 2449, in identifying the proper objects of a sale provided that "an inheritance, the rights, titles and interests to an inheritance or to any parts therof" "may be sold.”

      . Additionally, Section 2 of Act 556 also enacted La. R.S. 9:2503 states:
      § 2503. Exercise of succession rights; remedial provisions
      A. Any alienation, lease, or encumbrance of immovable property made by a successor prior to the date that Civil Code Article 938, as amended and reenacted by Acts 2001, No. 556, becomes effective, that would be valid under the provisions of Civil Code Article 938, is valid.
      B. An action to annul an alienation, lease, or encumbrance of immovable property owned by a decedent at his death made by a successor prior to the appointment of a succession representative must be brought within a peremptive period of one year from the effective date of this Section.

      . The Stoufflet court relied on an earlier case from this circuit, Succession of Griffin v. Davidson, 125 So.2d 30 (La.App. 2d Cir.1960), for the proposition that the sale of an heir's undivided interest in a particular piece of property belonging to a succession is an absolute nullity, although the sale of his entire interest in the succession, subject to the charges with which his interest is burdened, can be legally accomplished. It was the "absolute nullity” characterization of the sale in Succ. of Griffin, supra, concerning the succession administrator’s power to set aside a sale subject to administration that the Stoufflet court used as a vehicle to allow a stranger to the succession, a third party creditor of an heir, to nullify and set aside the 1988 sale of Paul StoufHet’s interest in the family home to his brother.
      In Succ. of Griffin, supra, J.L. Griffen died intestate, survived by his wife Thelma and his son James. The estate consisted of some movable property and a parcel of real estate. After his father died, but before letters of administration were issued, James was adjudicated a bankrupt. One of his assets listed in the bankruptcy proceeding was his interest in his father’s estate. The trustee sold the property, subject to Thelma's usufruct, at auction to one Davidson $850.
      Thelma, as administratrix of the succession, subsequently obtained an order to sell the property at private sale to cover the debts owed by the succession. Davidson opposed the sale, claiming ownership of an undivided one-half interest in the property free of all succession debt and subject only to Thelma's usufruct. The trial court declared the sale to Davidson to be an absolute nullity on grounds that the trustee in bankruptcy could not seize and sell succession property.
      On appeal, this court noted that while normally a trustee in bankruptcy is vested with title to any properly owned by the bankrupt and can sell same a public sale, it is obvious that the trustee can only obtain such title as the bankrupt owned, and not better. Here, the bankrupt owned an undivided one-half interest in the succession of James L Griffen, subject to the usufruct of the deceased’s widow, Thelma Griffen. He did not own an undivided interest in the particular piece of immovable property belonging to the succession which the trustee attempted to sell lo E.J. Davidson.

      . Succession of Griffin v. Davidson, supra at note 6; Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir.1976), writ denied 343 So.2d 201 (La.1977); Fortson v. Lake, 176 So.2d 703 (La.App. 4th Cir.1965); Armstrong v. Bates, 61 So.2d 466 (La.App. 1st Cir.1952); Mayo v. Stroud, 12 Rob. 105 (La.1845), 1845 WL 1688. But cf. Wolf v. Carter, 131 La. 667, 60 So. 52 (La.1912); Saucier v. Crichton, 147 F.2d 430 (5th Cir.1945); see also, Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (La.1966).

      . Although the comments to the code cannot supersede the clear language of a code article, they are often used for guidance. The lack of a statement in this regard by the reporter regarding this new article implies that the question of whether the article changes existing law is an open question.


author: hBROWN, C.J.,

text:
    Susie Hall BRYANT, et al, Plaintiffs-Appellants, v. CITY OF MONROE, et al, Defendants-Appellees.
    No. 37,811-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      Brenda F. Ford, Shreveport, for Appellants.
    Nanci Summersgill, La Koshia Roberts, Assistant City Attorney, for Appellees.
    Before BROWN, GASKINS and CARAWAY, JJ.
   hBROWN, C.J.,

Plaintiff, Susie Hall Bryant, appeals from a judgment which effectively dismissed her tort suit as abandoned under La. C.C.P. art. 561. For the reasons set forth below, we affirm.

Facts

On September 30, 1996, plaintiff filed suit on behalf of her 16-year-old son, Kenyon Bryant, alleging that he was beaten and unlawfully arrested by two policemen while attending the Ark-La-Miss Fair in Ouachita Parish, Louisiana. Named as defendants were the two police officers; the Monroe Police Department; the City of Monroe; and the Ark-La-Miss Fair.

On January 2, 1997, all defendants but the Ark-La-Miss Fair filed an answer denying plaintiffs allegations. On July 23, 1997, the Civitan Club of West Monroe, erroneously identified in the petition as the Ark-La-Miss Fair, filed a motion for summary judgment asserting that it was not vicariously liable for the teenager’s injuries inasmuch as it was not the employer or principal of the defendant police officers at the time of the alleged beating and arrest. On October 9,1997, the trial court granted the Civitan Club’s motion for summary judgment and signed a judgment to that effect on October 14, 1997. On November 6, 1997, plaintiff appealed the grant of summary judgment.

For the purposes of this opinion, the critical time period is from November 6, 1997, to March 19, 2001. Plaintiffs counsel sent a letter and | ^motion to the Oua-chita Parish Clerk of Court requesting to set the case for trial. The motion and letter were dated March 19, 2001, and stamped as received by the clerk’s office on March 21, 2001.

Between November 6, 1997, and March 19, 2001, the following occurred: Plaintiff filed a motion for extension on December 2, 1997, seeking additional time within which to pay the costs of the (Civitan Club) appeal; she also filed a motion to proceed in forma pauperis that was denied by the trial court on December 8, 1997. On March 3, 1998, the Civitan Club filed a motion to dismiss plaintiffs appeal for failure to pay costs. The next day, the trial court set a hearing on the motion to dismiss for April 3, 1998. The minutes of court for April 3, 1998, show that plaintiff was not present in court and that the trial court ordered her appeal dismissed with prejudice at her cost. The written order dismissing plaintiffs appeal was signed by the trial court on April 3,1998.

The record reflects that between April 3, 1998, and April 25, 2002, the only filings in the suit record were a September 14, 1998, motion by plaintiffs attorney to withdraw as counsel of record and a September 16, 1998, notation by the trial court, a copy of which was sent to counsel, 13iuforming him that local court rules required either the signature of the client on the motion to withdraw or a proceeding by contradictory rule.

On April 25, 2002, the remaining defendants filed a motion to dismiss the suit as abandoned. On that same date, the trial court signed an ex parte order granting the motion and dismissing plaintiffs action. Plaintiff timely filed a motion to set aside the order of abandonment and attached to her motion several exhibits showing that her attorney had sent a letter to the Ouachita Parish Clerk of Court which included a motion to set the case for trial on the merits.

On August 28, 2002, the motion to set aside the order of abandonment came up for hearing. The exhibits attached to the motion to set aside were introduced into evidence at that hearing and there was testimony by a deputy clerk of court concerning the general procedure for filing matters with the Ouachita Parish Clerk of Court’s Office. Plaintiffs counsel essentially argued that the motion to set the matter for trial, received and stamped as received by the clerk and then returned to plaintiff, was sufficient as a step in the prosecution of the case for purposes of preventing abandonment. Counsel also argued that the April 3, 1998, order dismissing the appeal of the grant of summary judgment in favor of the Civitan Club occurred less than three years prior to plaintiffs attempt to set the matter for trial, thereby preventing the running of the three-year period necessary for abandonment. However, the trial court concluded that there was no action |4in the case for a period of three years and refused to set aside the dismissal for abandonment. This appeal ensued.

Discussion

La. C.C.P. art. 561 provides that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, but that any formal discovery as authorized by the Code of Civil Procedure and served on all parties shall be deemed to be a step in the prosecution or defense of an action.

Article 561 requires three things: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court on the record of the suit, with the exception of formal discovery; and (3) that the step be taken within three years of the last step taken by either party. James v. Formosa Plastics Corp. of Louisiana, 01-2056 (La.04/03/02), 813 So.2d 335; Clark v. State Farm Mutual Automobile Insurance Co., 00-3010 (La.05/15/01), 785 So.2d 779.

On appeal, plaintiff argues that the trial court erred in concluding that the correspondence and motion forwarded to the Ouachita Parish Clerk of Court and stamped “received,” but not filed into the suit record, were not “steps” in prosecution sufficient to set aside the dismissal. On the other hand, defendants contend that the last formal step taken in this action was on April 3, 1998, and that plaintiffs failure to adhere to the local rules and procedures of the Fourth Judicial District Court, along with her failure to pay the required fees, led to the dismissal of her case as abandoned.

IsFor the purposes of argument, we assume that plaintiffs letter of March 19, 2001, was a formal step in the prosecution of the case; however, based upon the recent supreme court decision in James, supra, the three-year period had already run. In James, an employee filed suit on June 7,1993, against Formosa Plastics and the XYZ Insurance Company for injuries she claims to have sustained from exposure to a hazardous material during the course and scope of her employment. Subsequently, she amended her petition to include her employer, Wesb-Paine Laboratories, Inc., and to add a claim for punitive damages. Wesb-Paine then filed an exception of prescription which the trial court granted on March 23, 1995. On April 18, 1995, the trial court signed the plaintiffs motion and order for a devolutive appeal, and, approximately one year later, on April 4, 1996, the appellate court affirmed the trial court’s judgment on the exception of prescription. Writs were denied by the Louisiana Supreme Court on November 22,1996.

Thereafter, on June 1, 1999, Formosa Plastics filed a motion to dismiss James’ suit on the grounds of abandonment. The trial court granted the motion ex parte and dismissed plaintiffs claims against Formosa. The court of appeal reversed, reasoning that the abandonment provision was inapplicable while the prescription ruling was on appeal.

In reversing the appellate decision, the supreme court acknowledged that while the parties were litigating the suit in the trial court prior to the granting of the exception of prescription, the abandonment period was interrupted as to all parties when any party took formal action in the trial | fiCourt. The devolutive appeal of the prescription judgment, however, divested the trial court only of jurisdiction as to the parties and issue that were the subject of the judgment on appeal; the trial court retained jurisdiction over the remainder of the litigation. Thus, the court in James concluded that the abandonment period was not interrupted as to Formosa Plasties when plaintiff took action in the appellate and supreme court on the West-Paine dismissal.

The supreme court emphasized that the judgment on appeal dealt solely with West-Paine’s exception of prescription and did not touch upon or adjudicate plaintiffs claims against Formosa Plastics; therefore, nothing prevented plaintiff or Formosa from taking steps in the prosecution or defense of the action in the trial court while the judgment dismissing Wesb-Paine was on appeal. The court further stated that its denial of writs to plaintiffs application could not serve to interrupt the abandonment period because it was not a step in the prosecution or defense of the action involving Formosa in the trial court. The same was true of the filing of the supreme court’s notice of the denial of writs.

In the case sub judice, we observe that even if the March 19, 2001, letter and motion seeking to set the matter for trial were considered a “step” in the prosecution of plaintiffs claim, there needed to have been another “step” within the three-year period prior to March 19, 2001. We conclude that the last formal step in the trial court to advance the prosecution before the March 19, 2001, letter and motion was the grant of summary judgment to the Civitan Club by the trial court on October 14, 1997 (the date the | judgment was signed) and the appeal taken on November 6, 1997. Thereafter, the trial court was divested of jurisdiction as to the Civitan Club appeal except for certain administrative matters. The only other filing within the three-year time frame was the April 3, 1998, trial court order dismissing plaintiffs appeal of the summary judgment in favor of the Civitan Club.

Under the reasoning set forth in James, supra, the order dismissing plaintiffs appeal did not serve to interrupt the abandonment period as to the remaining defendants. This order simply dismissed the Civitan Club appeal for plaintiffs failure to pay costs and did not further the prosecution of the case; it was not a formal action with respect to the remaining parties.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to plaintiff-appellant.

      . Plaintiff is referred to by both "Susie Hall Bryant” and "Susie Bryant Hall” throughout the record. Hereinafter, she will be referred to as "plaintiff.”

      . The record also contains an identical motion for appeal filed by plaintiff on November 10, 1997, and two orders signed by the trial court granting plaintiff a devolutive appeal.

      . However, on March 21, the clerk's office sent a statement to plaintiff's counsel and returned the motion, informing the attorney for plaintiff that the motion would be filed upon receipt of a $125 filing fee. The exhibits attached to the motion to set aside the judgment of abandonment also show that plaintiff's counsel subsequently sent a letter to the Ouachita Parish Clerk of Court which included a check for $125, along with the motion to set the matter for trial on the merits. The letter was stamped as received by the clerk’s office on April 3, 2001. However, the local court rules apparently required that a slip of a certain color accompany the motion and plaintiff’s motion did not include the right color slip, further delaying the filing of the motion until May 2001.

      . The record contains no evidence that plaintiff ever signed a motion to withdraw or that a contradictory hearing was set.

      . In this context, "step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment.

      . The motion to withdraw as counsel was clearly not a step in the prosecution.