text:
    STATE of Louisiana v. James R. SKIPPER.
    Nos. KA 2003-842, KA 2003-844, KA 2003-845.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Honorable John Frederick Johnson, District Attorney, Vidalia, LA, Counsel for appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, Counsel for Defendant/Appellant, James R. Skipper.
    James R. Skipper, Winn Correctional Center, Winnfield, LA, pro se.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   hAMY, Judge.

The defendant was convicted of three counts of distribution of cocaine and one count of attempted possession of cocaine with intent to distribute. A sentence of three twenty-five-year terms and one five-year term was imposed, to be served concurrently. The defendant appeals. We affirm.

Factual and Procedural Background

The record of the proceedings below indicates that in late August 2001, the Ferriday, Louisiana (Concordia Parish) police department received complaints that James Skipper, the defendant herein, was selling drugs. Acting on this information, the Concordia Parish Narcotics Task Force began to investigate the defendant’s activities. During the initial phases of the investigation, a Task Force confidential informant successfully purchased cocaine from the defendant on several occasions. An officer testified at trial that after these initial successes with the confidential informant, the Task Force decided to gather more evidence in the matter by way of an undercover operation. The officer further explained that the Task Force was aware that its members were too widely known to perform such operations in Concordia Parish; as such, a Vernon Parish police officer was asked to join the investigation as an undercover agent for the purpose of entering into drug transactions with the defendant. Another confidential informant introduced the officer to the defendant in the context of a cocaine deal.

The record reflects that at first, the defendant would not sell to the undercover officer because the two had just met. However, after this initial encounter, the officer was successful in purchasing cocaine from the defendant on three separate occasions. According to the investigating officers’ testimony at trial, the undercover officer purchased cocaine from the defendant just outside the defendant’s apartment on |2October 2, 2001; on October 5, 2001, the deal transpired inside the defendant’s apartment; and on October 18, 2001, the undercover officer encountered the defendant in town, whereupon the defendant got into the officer’s vehicle and instructed him to drive around town. The deal then took place during the drive. The record indicates that upon the conclusion of the October 18 deal, the defendant informed the undercover agent that he could come by the defendant’s apartment if he ever needed more cocaine.

On October 19, 2001, an arrest warrant for the defendant and a search warrant for his apartment were issued, and the search warrant was executed later that day. Officers recovered several individual baggies of cocaine, scales, empty baggies, a police scanner, and $300 in cash from the defendant’s apartment, and the State later introduced these items into evidence at the defendant’s trial. However, the defendant was not at home when the search warrant was executed, and several days passed before officers were able to locate him and make an arrest.

The defendant was charged by two separate bills of information with three counts of distribution of cocaine and with one count of possession of cocaine with intent to distribute, all in violation of La.R.S. 40:967(A)(1). A jury trial was held in the matter, and the defendant was found guilty as charged on all counts of distribution of cocaine. On the count of possession of cocaine with intent to distribute, the jury entered a responsive verdict of attempted possession of cocaine with intent to distribute. The defendant was initially sentenced to three twenty-five-year terms, with the first two years of each to be served without benefit of parole, probation, or suspension of sentence, corresponding with the distribution offenses, and a five-year term, with the first year to be served without benefit of parole, probation, or | «suspension of sentence, for the offense of attempted possession with intent to distribute. After a subsequent hearing on a motion to reconsider, the trial judge amended the defendant’s sentences to run concurrently.

Numerous motions have been filed in this matter that have been disposed of before rendering our opinion herein. The defendant’s original appeal was placed on our May 2003 docket. However, during this month, it was brought to this court’s attention that parts of the record were missing. On May 28, 2003, we issued an order returning the appeal record and all supplemental records to the lower court clerk’s office for preparation of a complete record complying with the Uniform Rules — Courts of Appeal, the Third Circuit Internal Rules of Court, and the Louisiana Code of Criminal Procedure. The parties were informed by letter that all briefs had been stricken. New records were lodged with this court on June 30, 2003, and new briefs were later received from the State, appellate counsel for the defendant, and from the defendant, pro se.

The defendant was granted an out-of-time appeal. Appellate counsel for the defendant asserts five assignments of error, as follows:

1. The trial court did not fully comply with the sentencing mandates outlined in La.Code Crim.P. art. 894.1.
2. The three twenty-five-year sentences imposed on the defendant are unduly harsh and constitute excessive punishment for this offender and offense.
3. The trial court erred in denying the defense’s motion for a mistrial when, at the close of evidence but before deliberation, the court removed juror Dixon without affirmative proof of his disqualification.
4. The trial court erred in denying the defendant’s voir dire challenges for cause concerning Mark Davis and Linda Delaughter, prospective jurors.
|45. The trial judge erred in denying the defendant’s motion to suppress the evidence obtained through the search of the defendant’s apartment.
a. The search warrant was defective in that the confidential informant’s reliability was not adequately established therein.
b. The affidavit fails to establish probable cause to support the belief that any controlled dangerous substances, paraphernalia, cash received from drug transactions, or corresponding documentation would be found at the defendant’s apartment fourteen days after the final alleged deal between the defendant and the undercover officer at that location.

The defendant lists five additional assignments of error in his pro-se brief:

1. The trial court erred in denying the defendant’s motion to recuse.
2. The trial judge held an improper ex-parte discussion with a prospective juror.
3. The trial court violated La.Code Crim.P. art. 831(3) by conducting an in-camera meeting addressing the dismissal of a prospective juror.
4. The State withheld information pertaining to a seated juror’s felony convictions until the close of trial.
5. The court reporter “committed fraud” and attempted to mislead this Court of Appeal as to the identities of those comprising the defendant’s jury.
6.The trial court erred in finding that a “sticky note” was a ruling.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find no such errors.

Failure to Consider Mitigating Factors Pursuant to La.Code Crim.P. art. 891 and Excessiveness of Sentence Imposed

The first two assignments of error that appellate counsel for the defendant advances are interrelated, so we address them together. Counsel contends that the Ifitrial judge erred in not fully complying with the sentencing mandates outlined in La.Code Crim.P. art. 891.4 in imposing sentence. Counsel insists that careful scrutiny of the record reveals nothing that would support imposing a sentence of twenty-five-years upon the defendant. In fact, counsel argues, several mitigating factors are present in the defendant’s case, such as his health problems, his son’s need for financial and emotional support, the strong support given him by his family and the community, his involvement in the community, and his steady employment. In addition, counsel notes, the defendant has only one prior felony conviction, and the instant convictions arose from an ongoing sting operation. When one considers these mitigating circumstances, Counsel argues, the twenty-five-year sentence imposed is excessive. We disagree.

The defendant was convicted of three counts of distribution of cocaine and one count of attempted possession of cocaine with intent to distribute. The penalty for distribution of cocaine is given in La.R.S. 40:967(B)(4)(b) as follows:

a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

The penalty for an inchoate offense, in this case, attempted possession with intent to distribute cocaine, is set forth in La.R.S. 14:27 as follows:

D. Whoever attempts to commit any crime shall be punished as follows:
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

The punishment for possession with intent to distribute cocaine is identical to the punishment for distribution, excerpted above, viz., two to thirty years at hard labor, | (¡the first two years of which are to be served without benefit of parole, probation, or suspension of sentence, with an optional fine of up to $50,000.

It is well settled that the trial judge has considerable discretion to impose sentence within statutory guidelines, and, accordingly, sentences will not be disturbed absent a showing of manifest abuse of that discretion. See, e.g., State v. Lobato, 603 So.2d 739 (La.1992). Also, with respect to La. Code Crim.P. art. 894.1 in particular, a panel of this court has noted that if an adequate factual basis for the sentence is found in the record, a trial judge’s inadequate articulation of the sentencing factors alone will not require remand for resentencing. State v. Butler, 98-1258 (La.App. 3 Cir. 2/3/99), 734 So.2d 680.

In the instant matter, the trial judge noted in his reasons for sentencing that the defendant has a prior conviction for distribution of cocaine, and the judge further observed that the defendant was not charged with several other distribution offenses. The judge commented that the defendant’s “habitual and ongoing distribution of drugs” mandated a strict sentence, although he did not give the defendant the maximum sentence of thirty years, as was recommended. The trial judge noted that the defendant had never acknowledged his responsibility or expressed remorse for the offenses for which he was convicted.

Based upon our examination of the record, it is evident that the trial judge considered the guidelines listed in La. Code Crim.P. art. 894.1 in determining the defendant’s punishment and that he found that the defendant’s “habitual” drug offenses warranted a strict sentence. We do not find that the trial judge manifestly abused his discretion in sentencing the defendant to twenty-five years at hard labor.

\7Denial of Defendant’s Motion for a Mistrial upon the Removal of Juror betiveen the Close of Evidence and Deliberation

Counsel next asserts that the trial court erred in denying the defendant’s motion for a mistrial in response to the removal of a seated juror between the close of evidence and deliberation. Counsel contends that the “summary removal of [the juror] on ... flimsy proof at this late stage of the proceeding was improper” — viz., that this removal occurred without affirmative proof of disqualification, and therefore, a mistrial should have been granted.

The record does, in fact, reflect that between the close of evidence and deliberation, it was brought to the trial judge’s attention that a seated juror had a rap sheet that indicated possible felony convictions. The convictions in question were under California law, and the statute under which convictions were obtained was listed as “484F.” According to the record, the State had learned of the rap sheet three hours before the trial judge was apprised of the situation, and attempts were being made to contact the court in which the conviction was handed down in order to ascertain whether it was, in fact, a felony. The trial transcript indicates that it was after 6pm when the situation was brought before the court, and no response had been received from California. The trial judge and attorneys for both the State and the defendant interviewed the juror in chambers, where the juror admitted that the rap sheet was his, but he thought the convictions at issue were misdemeanors.

In support of the assertion that the juror was improperly removed, Counsel stresses that the juror at issue denied that he had, previous felony convictions. Furthermore, Counsel points out that although the statute of conviction, 484F, contains a capital “F,” this did not necessarily mean the violation in question was a felony— instead, “F” could have referred to a court division or statute subpart. | sCounsel also notes that the rap sheet was in error with respect to at least one of the juror’s identifying characteristics in that it listed the juror as a female when the juror was male. Counsel asserts that the court should not have denied the defendant’s right to be tried by the seated jury on the basis of “economics and conjecture” regarding the juror’s qualifications.

In response to Counsel’s arguments on the issue, the State insists that the error concerning the juror’s gender was the sole mistake in the rap sheet and that the name therein and the vital statistics given were otherwise correct. Furthermore, the State notes, when the juror was questioned in chambers after the rap sheet surfaced, the juror admitted that the rap sheet was his. The State notes that the juror was fingerprinted and that inquiries as to his criminal convictions in California were made via telephone, but without result, due to the late hour.

Louisiana Code of Criminal Procedure article 401(A)(5) outlines the qualifications for jurors. In particular, the article prohibits from serving on a jury those who are under indictment for a felony or who have previous felony convictions that have not been pardoned. With respect to those seated jurors who subsequently become unable to perform or who are disqualified, La.Code Crim.P. art. 789 provides that alternate jurors are to serve as replacements. Furthermore, La.Code Crim.P. art. 796 states that if it is found that a juror is incompetent to serve after he has been accepted and sworn, the court may remove the juror and complete the panel in the ordinary course.

It is apparent from the record that the trial judge was not made aware of the true import of the “F” in “484F” during the evening on which the rap sheet was brought to light. The record also reflects that both sides had rested and that the verdict in this |9matter was rendered later that same evening. Although it was eventually ascertained that California Penal Code Title 13, Section 484F (forgery of an access card) is not a felony, this discovery is immaterial in our determination that the trial judge did not abuse his discretion in removing the juror.

In State v. Fuller, 454 So.2d 119 (La.1984), the Louisiana Supreme Court reviewed the propriety of a trial court’s decision to remove a seated juror during a capital trial. The jury selected to try the case was sequestered in a motel throughout the proceedings, and, one evening, after the close of evidence, a juror violated the sequestration order by going to the motel bar. A bailiff happened along after an hour and escorted the juror back to his room. Subsequently, the trial judge conducted a hearing concerning the juror’s violation of the sequestration order. At this hearing, the juror stated that while he was at the bar, he spoke only to the barmaid, and he had neither discussed the case nor divulged his status as a juror to her. The judge determined that removal was warranted and replaced the juror with an alternate. The matter was appealed to the Louisiana Supreme Court, who determined that the judge acted properly in holding an evidentiary hearing with all parties present to determine whether a violation of the sequestration order had occurred, the nature of the violation, and what action to take. In its opinion, the supreme court commented as follows:

The juror assured the judge that he did not, while in the bar, compromise his position by discussing the case or his status as a juror. Although a judge under some circumstances may have been satisfied that such a showing overcame the presumption of prejudice flowing from a sequestration violation, the judge in this instance determined that the essential fairness of the proceeding could best be preserved by replacing the juror with the properly qualified and duly selected alternate.
[inThe trial court has discretion to utilize the service of an alternate juror, rather than to grant a mistrial, upon a proper finding that this is the best course of action. Thus, when it was shown that a juror was unable to continue to serve because of the physical disability that was involved in State v. Spencer, 446 So.2d 1197 (La.1984), or was “disqualified” from further service because of the blatant display of prejudices and partiality that was involved in State v. Marshall, 410 So.2d 1116 (La.1982), the replacement of the juror with the alternate has been approved by this court.

Id. at 122-23.

In the instant matter before us, we find that the trial judge did not abuse his discretion in removing the juror at issue, and the motion for mistrial was properly denied. The juror’s rap sheet did not state outright that he was a convicted felon, but considering the circumstances, the trial court felt that it was a possibility. The record reflects the trial judge’s concern that if the juror was, in fact, a felon, the entire proceedings would be null. After three and one-half hours of fruitless attempts to ascertain the nature of the juror’s convictions, and instead of gambling that the juror was not a convicted felon and proceeding with deliberation, the trial judge opted to remove the juror, replacing him with an alternate who met the established criteria. We do not find that this action constituted an abuse of discretion. This assignment is without merit.

Faiktre to Sustain the Defendant’s Challenges for Cause as to Two Prospective Jurors

Counsel for defendant further contends that the trial judge erred in denying the defendant’s voir-dire challenges for cause with respect to two prospective jurors. It is noteworthy that an examination of the record on voir dire reflects that neither of these jurors were seated.

The first challenge for cause at issue in the instant appeal involved Mark Davis, who was an active state trooper. The defendant was concerned that Trooper Davis’s In close ties to Concordia Parish law enforcement would prevent him from being impartial. During voir dire, the defendant’s trial counsel asked Trooper Davis whether he knew two of the scheduled witnesses who were law enforcement officers. Trooper Davis was then asked if he would find these law-enforcement witnesses more credible than other witnesses. Trooper Davis stated that he did, indeed, know the law-enforcement witnesses involved; nevertheless, he insisted that he could be fair and impartial. Defense counsel then challenged Trooper Davis for cause, citing, inter alia, State v. Simmons, 390 So.2d 1317, 1318 (La.1980), in which the supreme court determined that “an actively employed criminal deputy sheriff is not a competent criminal juror.” During a brief recess, the trial judge reviewed the Louisiana Supreme Court’s decision in State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002), which stated that a law enforcement officer may serve on a jury if he or she is otherwise competent to sit, thereby overruling Simmons. The trial judge noted that LaCaze disposed of the defendant’s challenge for cause, but the record indicates that defense counsel desired to question Trooper Davis further. Those jurors who had been seated were removed from the courtroom, and counsel then asked Trooper Davis about his work relationship with the district attorney’s office and the sheriffs office, about his affiliation with various law-enforcement officials, and about a case in which Trooper Davis was a crime victim. After this line of questioning, the trial judge commented, “I suppose you’re [sic] abandoned your [challenge for cause],” to which defendant’s trial counsel responded, “Yeah, I will use a preempt on him, Your Honor.” The record reflects that the defense used its tenth peremptory challenge on Trooper Davis.

| ^During voir dire, challenges as to potential jurors may be one of two types, peremptory or for cause. Regarding challenges for cause, La.Code Crim.P. art. 797 provides that:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict. ...

A panel of this court has previously held, with respect to challenges for cause, that “[t]o succeed on appeal with the claim that the trial court erroneously denied the challenge of a prospective juror for cause, a defendant must exhaust his peremptory challenges and show that the trial court’s denial of his challenge for cause was an abuse of discretion.” State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, 148, writ denied, 2000-2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002). Moreover, in State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612, 616, writ denied, 97-2761 (La.2/20/98), 709 So.2d 773, a panel of this court noted that:

The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. State v. Robertson, 630 So.2d 1278. “A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, where subsequently, on further inquiry or instruction, [the juror] has demonstrated a willingness and ability to decide the case impartially h?,according to the law and the evidence.” [State v.] Cross, 658 So.2d at 687.

In this assignment of error, Counsel argues that the challenge for cause as to Trooper Davis was not waived because “[t]he court’s ruling on the challenge had been made and to pursue the cause challenge further at this point was fruitless.” Furthermore, Counsel argues, the State and the trial judge did not equate trial counsel’s statement with a waiver, pointing to the following comments made by the trial judge in dismissing a new-trial motion: “[T]his is apparently rehashing basically previously known testimony in the record and the Appellate Courts have the transcript and have the matter before them....”

We find that the trial judge did not err in denying the defendant’s challenge for cause of Trooper Davis. Counsel would have us reach a decision in this matter based not upon a statement made at voir dire, but rather upon a statement made at a new-trial hearing. It is clear from the transcript of voir dire proceedings that the trial judge denied the defendant’s challenge for cause as to Trooper Davis in light of State v. LaCaze. Despite the fact that trial counsel did not complete his statement at this time, it is apparent that he desired to continue his examination of Trooper Davis to determine whether he should reurge. After trial counsel finished this examination, he did not reurge the challenge for cause, and he responded in the affirmative when the trial judge asked if he chose to abandon, stating that he would opt to use a peremptory challenge.

Furthermore, Counsel asks us to consider Trooper Davis’s close connection to various law enforcement officials, as well as the fact that the defendant’s trial counsel represented the accused in the trial of the crime in which Trooper Davis was the | uvictim. Based upon the above analysis of the challenge for cause, we decline to entertain these suggestions.

The second contested denial of a challenge for cause pertained to Ms. Linda Delaughter. The day before being questioned on voir dire, Ms. Delaughter was approached by an unknown woman during a break. Upon examination, Ms. De-laughter related that the woman told her that the drugs had been planted in the defendant’s house. When Ms. Delaughter told the woman that she was a prospective juror in the matter, the woman made further comments about the defendant’s case. Ms. Delaughter stated that the woman’s remarks were “hearsay” because she did not state that she was present at the time the evidence was “planted” and that she presumed the woman was one of the defendant’s family members. Upon further questioning, Ms. Delaughter indicated that she felt she could remain impartial and give the defendant a fair trial in spite of what the woman told her because “there’s always two sides to any story,” and “[f]am-ily members is [sic] going to be for their family anyway.”

The defendant’s trial counsel raised a challenge for cause to remove Ms. De-laughter for “taint.” The trial judge denied this challenge but indicated that he would allow counsel to object for the record and make the arguments at a later time. Subsequently, when the attorneys were allowed to make their elections, Ms. Delaughter was excused. At the end of voir dire, counsel for the defendant addressed the challenge for cause of Ms. Delaughter for the record, stating that he had raised the challenge in response to the perceived taint involved. It is worth noting that the defense raised this challenge, but the information imparted to Ms. De-laughter was favorable to its case. The trial judge again denied the challenge for cause, stating that|1fiMs. Delaughter maintained on voir dire that she would not be affected by the unknown woman’s comments and that she could still be fair and impartial. Counsel challenges this ruling on appeal.

A survey of the relevant jurisprudence indicates that potential jurors need not be dismissed solely because they have been approached with information on the case. If the jurors indicate that they can remain impartial, the trial judge may decide to let them remain on the jury. For example, in State v. Smith, 96-261 (La.App. 3 Cir. 12/30/96), 687 So.2d 529, writ denied, 97-0314 (La.6/30/97), 696 So.2d 1004, a .potential juror in the matter was told by a co-worker that the defendant had killed not only his present wife, but also a former wife. Upon questioning, the prospective juror commented that he did not give this comment much credence due to the co-worker’s unreliability. The defendant’s challenge for cause as to the potential juror was denied, and the issue was raised on appeal. A panel of this court affirmed the trial court’s ruling, noting that although the information given to the prospective juror was inadmissible and incriminating, the juror’s statement to the trial court that he took the information with a grain of salt indicated that he had been rehabilitated.

In the matter before us on appeal, Ms. Delaughter insisted that she could remain fair and impartial in spite of her encounter with the unknown woman during voir dire. As such, the trial judge did not abuse his discretion in denying the defendant’s challenge for cause as to Ms. Delaughter. This assignment is without merit.

\ genial of the Defendant’s Motion to Suppress the Evidence Obtained through the Search of the Defendant’s Apartment on Grounds that the Search Warrant was Defective and the Information in the Supporting Affidavit was Stale.

Counsel’s final argument on appeal is that the trial court erred in denying the defendant’s motion to suppress evidence obtained through the search of his apartment. Counsel contends that the search warrant was defective in that it did not sufficiently establish the identity of the confidential informant and also because fourteen days had passed between the defendant’s transaction with the undercover officer in his apartment and the date the search warrant was issued.

We first address Appellate Counsel’s contention that the search warrant in this matter was defective in that it did not sufficiently establish the identity of the confidential informant. Counsel points out that the informants’ identities were never revealed to the defendant even though information gathered by the informants was used in support of the search warrant at issue. Counsel cites State v. Byrd, 568 So.2d 554 (La.1990) in support of the assertion that if the reliability of a confidential informant has not been established, as in the instant matter, then probable cause fails.

The Louisiana Supreme Court discussed probable cause at length in State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, in which the supreme court issued the following summary of the relevant jurisprudence in this area:

Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280 (La.1982). A magistrate must be given enough information to make an independent judgment that probable cause exists to issue a warrant. See, e.g., State v. Manso, 449 So.2d 480, 482 (La.1984), cert, denied sub nom., Manso v. Louisiana, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984). The United States Supreme Court held that “[sjufficient information must be presented to the magistrate to allow that official to determine probable cause; his action |17cannot be a mere ratification of the bare conclusions of others.” United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citations omitted). Moreover, this Court previously held: “[t]he process [of determining probable cause] simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious .and are sufficiently supported to justify bringing into play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983) (citing Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965)).

Id. at 968-69.

It is likewise well settled that the basis of probable cause to issue a search warrant must appear within the four corners of the supporting affidavit. State v. Williams, 608 So.2d 266 (La.App. 3 Cir.1992).

An examination of the record reveals that the trial judge ruled that the Task Force had established probable cause without further explanation. However, a plain reading of the application for the search warrant at issue reveals that it contains a significant amount of information developed or obtained by the Task Force officers -themselves. The record indicates that the two confidential informants facilitated the officers’ initial contact with the defendant, but they were not involved in the transactions upon which the charges against the defendant were based, namely the drug transactions on October 2, 5, and 18, 2001. The information in the search warrant application was given to the Task Force by the undercover agent, who had engaged in three separate cocaine deals with the defendant. This information stands as an independent basis for probable cause in this matter, but at the very minimunij the undercover agent’s activities corroborate the information provided initially by the confidential informants. In this respect, the trial court did not err in denying the defendant’s motion to suppress.

| ^Counsel’s second argument regarding the sufficiency of the search warrant is that the information listed in the supporting affidavit was stale. Counsel observes that the affidavit, dated October 19, 2001, describes transactions occurring on October 3, 5, and 18, ■ 2001. However, Counsel notes, the October 18 transaction occurred in the undercover agent’s vehicle, not at the defendant’s apartment; therefore, a period of fourteen days elapsed between the last transaction at the defendant’s apartment and the issuance of the search warrant. Counsel contends that after fourteen days, no foundation would exist for probable cause to sustain a belief that cocaine was present at the defendant’s apartment.

Louisiana jurisprudence regarding stale information indicates that in certain circumstances, information used in obtaining warrants may not be stale despite the passage of several days. In State v. Williams, 00-0011 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, the fourth circuit determined that although fifteen days had passed between the first time information was received regarding pertinent drug deals and the subsequent application for a search warrant, the warrant was not stale. In addition, five days’ time separated the last transaction and the warrant application. The fourth circuit held that the warrant was not stale, noting that the informant had indicated that the drug sales were ongoing, and the transaction ten days later confirmed this information. As such, the court held, law enforcement officers had probable cause to believe that contraband would still be in the defendant’s residence by virtue of his continuing activities.

Similarly, in State v. Ginorio, 619 So.2d 790 (La.App. 4 Cir.), unit denied, 625 So.2d 1039 (La.1993), law enforcement officers witnessed drug transactions on two consecutive dates. After the second sale was completed, the dealer told an 119undercover agent that he could obtain larger quantities of drugs in the future. Surveillance indicated that the seller was getting his drugs from a certain location. Officers obtained a search warrant for this location seven days after the second observed transaction and executed the warrant three days later. Officers had arranged another transaction for the date on which the warrant was executed, but this information was absent from the affidavit. The fourth circuit held that the warrant was valid in these circumstances.

In the present matter, an examination of the record reveals that although the October 2, 2001 transaction occurred outside the defendant’s apartment, it nevertheless took place in close proximity to the residence. The October 5, 2001 transaction took place inside the defendant’s apartment. The record indicates that during this transaction, the defendant retrieved numerous small bags of contraband from a kitchen cabinet. Finally, the October 18, 2001 deal took place in the undercover agent’s vehicle while he and the defendant were driving around Ferriday. In this instance, the defendant produced the contraband from his pocket. When the undercover agent inquired about future purchases of cocaine, the defendant instructed him to stop by his apartment. This information was provided in the affidavit attached to the search warrant application in the instant matter, and it supports a logical inference that the defendant was engaged in ongoing narcotics transactions, with his apartment as a base of supply. Therefore, the information in the search warrant was not stale. This assignment is without merit.

_J^Denial of the Defendant’s Motion to Re-cuse; Determination that a “Sticky Note” was a Ruling

Because the defendant’s pro-se assignments of error numbers one and six are related, we address them together. First, the defendant contends that 7th JDC Judge Kathy Johnson erred in denying his motion to recuse Judge Leo Boothe. The defendant’s argument focuses on two issues in particular, namely, that Judge Johnson erred in determining that recusal would require Judge Boothe to be called as a material witness in the defendant’s case, and that Judge Johnson’s ruling denied him the right to call Judge Boothe as a witness in his trial.

Louisiana Code of Evidence article 605 provides that “[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.” In addition, La.Code Crim.P. art. 671 states, in pertinent part, as follows: “A. In a criminal case a judge of any court, trial or appellate, shall be recused when he: ... (4) Is a witness in the cause.... ”

On March 27, 2002, the defendant filed a written motion to recuse Judge Boothe, stating that a judicial complaint against the judge, filed by the defendant, was still pending. Judge Kathy Johnson was assigned to hear arguments on the recusal motion. During the hearing, the defendant’s trial counsel notified the court that the defendant intended to call Judge Boothe as a witness at his trial. The defendant explained that he had begun a recall effort against Ferriday Mayor Glenn McGlothin, but the petition was never filed because of the defendant’s subsequent imprisonment. The defendant claimed that part of an audio tape featured a conversation in which he spoke to Mayor McGlothin in which the two discussed the mayor’s assisting the defendant if the defendant would drop the recall petition.

Initially, the defendant claimed that he had filed a complaint with the “Office of the Judiciary Committee” in which he alleged that Judge Boothe “not only knew Dt about the circumstances around [his] case, but [he] would present a tape played that [sic] you will hear a discussion that someone talked to Judge Boothe concerning [his] case.” The defendant indicated that he wished to call Judge Boothe as a witness at his trial to inquire as to whether or not he knew anything about this. It was eventually ascertained that Judge Boothe was not actually on the tape, and no one was recorded who had talked to Judge Boothe about the defendant’s case. Instead, the evidence adduced at the hearing indicates that the conversation on the tape amounted to the repetition of an unsubstantiated courthouse rumor.

When asked a second time about his purpose for calling Judge Boothe as a witness, the defendant explained that he intended to show at trial that the drug charges were a set-up and that he was the victim of a conspiracy. In response to Judge Johnson’s query regarding who was involved in the conspiracy, the defendant offered the following: “[T]he person they’re saying come to me and never — you know, I’ve never seen him and said that I sold him drugs.”

Eventually, the defendant acknowledged that Judge Boothe was not an alibi witness, nor was he a confidential informant. Moreover, he stated that he did not believe that Judge Boothe was involved with a confidential informant in any way. When asked again what purpose he had for calling Judge Boothe, the defendant cited State v. Wille, 595 So.2d 1149, 1156(La.), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992), for the proposition that he was not required to inform the court of his intended | agquestions. However, when Judge Johnson asked the defendant whether he wished to call Judge Boothe to testify at the hearing, the defendant answered in the negative.

At the hearing’s conclusion, Judge Johnson ruled that the conversation on the tape was, essentially, rumor, and that no evidence had been presented that would support the defendant’s motion to recuse. Judge Johnson again told the defendant that Judge Boothe would have to be a material witness in the case in order to be recused. Judge Johnson further ordered that, given proper notice, she would entertain any motion by which the defendant could illustrate the necessity of Judge Boothe’s testimony on April 8, 2002, the date of jury selection.

On appeal, the defendant has offered only vague arguments in explanation of the probative value of Judge Boothe’s possible testimony at trial. State v. Witte clearly states that a judge does not have to be a material witness for his recusal to be warranted. However, it is likewise apparent that the supreme court did not intend its holding in Witte to allow defendants to force recusals by simply arguing that they would call the judge as a witness in their respective cases.

Additionally, the defendant’s claim that Judge Johnson deprived him of his right to call Judge Boothe as a witness at his trial is not supported by the record. As stated above, Judge Johnson gave the defendant an opportunity to supplement the evidence in support of his motion to recuse Judge Boothe on April 8, 2002. Although [¡¡¡¡the defendant filed two more motions on this topic, no new evidence was presented that would support the recusal claim. This assignment is without merit.

Furthermore, the defendant asserts that Judge Johnson erred in allowing Judge Boothe to attend the recusal hearing. The defendant did not object to Judge Boothe’s presence at the hearing, and he does not offer any evidence on appeal that indicates that he was prejudiced by Judge Boothe’s attendance.

Finally, the defendant asserts that Judge Johnson erred in failing to inform him that he had a right to appeal her ruling. There is no requirement that the judge so inform the defendant. This claim is without merit.

With respect to the defendant’s assertion on appeal regarding the “stieky-pad ruling,” he claims that this “sticky-pad ruling” was not a proper ruling because it did not include a date, did not include a ■written ruling giving reasons for denial, was not served, and was not filed.

In analyzing this claim, it is necessary to draw context from the record. The day after the hearing on the motion to recuse, the defendant was back in court with Judge Boothe presiding. At this time, the defendant presented an “Emergency Motion to Reconsider Ruling on Motion to Recuse,” and he requested that the motion be heard that same day. Judge Boothe explained to the defendant that he could not rule or take any other action with respect to the motion and instructed the defendant to file it in the record. The written motion on record indicates that in this motion, the defendant contested Judge Johnson’s ruling that the defendant could not call Judge Boothe as a witness. A handwritten note stating, “Judge Boothe is still on this. KJ” was affixed to the order prepared by the defendant.

On April 8, 2002, the day that trial was scheduled to begin, the defendant filed a pro-se motion to continue, arguing, inter alia, that the trial should be continued because he still had outstanding motions concerning Judge Boothe’s recusal. The 134next day, April 9, 2002, a suppression hearing was held before the trial began. At the hearing, the defendant’s trial counsel stated that the motion to suppress was the only matter pending before the court at that time. The defendant’s case then proceeded to trial, and the defendant was convicted. On a later date, the defendant and his attorney were in court on a motion for new trial, and defense counsel argued that the motions filed after the recusal hearing were pending at the time of trial. Counsel claimed that the sticky note stating “Judge Boothe is still on this” was not an affirmative ruling on the motion for reconsideration.

We are not aware of any provision in the Code of Criminal Procedure expressly allowing reconsideration of a motion to re-cuse. Nonetheless, the record indicates that the motion to reconsider essentially reiterated the arguments made at the first hearing on the matter, with the exception of the defendant’s new challenge to Judge Johnson’s handling of the motion. This claim is without merit.

Improper Ex-Parte Discussion with a Prospective Juror

In this pro-se assignment of error, the defendant argues that the trial judge erred in holding an “improper ex parte discussion” with Mark Davis, a prospective juror. The defendant argues that this communication violated his right to a fair trial and his right to be present for proceedings pursuant to La.Code Crim.P. art. 831(3).

Louisiana Code of Criminal Procedure article 831(3) provides, in pertinent part, that “A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present: ... (3) At the calling, examination, challenging, im-panelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror....” In State v. Guin, 444 So.2d 625, 631 (La.App. 3 Cir.1983), a panel of this court commented that:

| ¡.¡¡However, the Louisiana Supreme Court has stated on numerous occasions that the trial court is authorized to excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. LSA-C.Cr.P. art. 783; State v. Brown, 414 So.2d 726 (La.1982). A defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Lowdins, 412 So.2d 1349 (La.1982); State v. Meriwether, 412 So.2d 558 (La.1982); State v. Cass, 356 So.2d 936 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 258 La. 801, 248 So.2d 295 (La.1971). A juror is not “called” or “examined” within the meaning of LSA-C.Cr.P. art. 831(3) until he is called for examination in the trial of that particular defendant. The defendant need not be present when the trial judge excuses prospective jurors before his own case is called for trial. Lowdins, supra; Merkuether, supra; Williams, supra; State v. McGuire, 254 La. 560, 225 So.2d 215 (1969).
[Footnotes omitted.]

During the voir dire questioning of Trooper Davis, the defendant’s trial counsel raised a challenge for cause based on State v. Simmons, 390 So.2d 1317 (La.1980), which held that law enforcement officers may not serve on criminal juries (a topic discussed above). The record reflects that in the ensuing discussion, the prosecuting attorney noted that there should be an exception available to law enforcement officers allowing them to get out of jury duty instead of having them sit through voir dire until they are released after questioning. The trial judge observed that Trooper Davis “was wanting to get out of here.” Defense counsel asked the judge if he had spoken to Trooper Davis the previous day about letting him off jury duty, and the judge responded in the affirmative. The defendant asserts in this pro-se assignment of error that this statement constituted an admission by the trial judge to an ex parte communication that should not have taken place without the knowledge and consent of the defense. At the hearing on the defendant’s motion to reconsider sentence, the defendant indicated that he had filed a motion to reconsider reopening the motion for new trial, focusing on this ex parte communication. The trial judge then informed the defendant that although he couldn’t remember the conversation exactly, Trooper ¡^Davis had asked if he had to serve on the jury, and the judge had told him that he had “to be here like everybody else.”

The record indicates that Judge Boothe acknowledged speaking to Trooper Davis on April 10, 2002; this signifies that the conversation at issue must have occurred on April 9, 2002, according to the excerpted conversation above. Jury selection in the defendant’s trial also began on April 9. We do not know when the conversation between Trooper Davis and Judge Boothe occurred — whether it took place before of after the defendant’s case was called for trial. The defendant has failed to establish that the conversation took place after the case was called, at which point La. Code Crim.P. art. 831(3) would take effect. As such, the defendant is not entitled to relief on this claim.

Violation of La.Code Crim.P. art. 831(3) in Conducting an In-Camera Meeting Addressing the Dismissal of a Prospective Juror

The defendant argues in his prose brief that the trial court violated La. Code Crim.P. art. 831(3) when it held a meeting in chambers regarding the dismissal of prospective juror Robert Wyatt in the defendant’s absence. The record indicates that the defendant’s trial counsel was present at this meeting, but the defendant insists that he never gave his attorney permission to attend such meetings without him. In essence, the defendant argues that La.Code Crim.P. art. 831(3) mandates a defendant’s personal presence at every meeting pertaining to his case.

The record indicates that during voir dire, Mr. Wyatt was having problems hearing the questions posed to him. Consequently, the trial judge called for a five-minute recess, after which he explained to the court that an in-camera meeting was held, and the parties had agreed that Mr. Wyatt would be excused for hearing difficulties. The defendant did not object at this time to being excluded from the meeting. As such, this objection was not preserved for appeal. See State v. Broaden, 99-2124 (La.2/21/01), 780 So.2d 349, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). This assignment is without merit.

Withholding of Information Pertaining to a Seated Juror’s Felony Convictions until the Close of Trial

The defendant further asserts in his prose brief that the State withheld information about Mr. Dixon’s felony convictions until the last possible minute, after the close of evidence and before deliberation. This is not a proper assignment of error and, from our examination of the record, appears to be an unsubstantiated allegation. This claim does not permit further review.

The Court Reporter “Committed Fraud” and Attempted to Mislead the Court of Appeal as to the Jury’s Identity

The defendant insists that the court reporter responsible for transcription of his trial “committed fraud” and attempted to mislead this court as to the identities of those who served on the jury. The defendant points out that certain pages of the transcript were missing when the record was lodged on appeal, and these pages pertained to voir dire examination. This situation has since been remedied. On May 28, 2003, this court issued an order returning the appeal record and all supplemental records to the lower court clerk’s office for preparation of a complete record complying with the Uniform Rules— Courts of Appeal, the Third Circuit Internal Rules of Court, and the Louisiana Code of Criminal Procedure, and new records were lodged with this court on June 30, 2003, including those portions of the record that were previously missing.

This is not properly reviewed on appeal, as it presumes the development of further evidence. Any argument in this regard will be more appropriately considered in post-conviction relief. This assignment is without merit.

| ^DECREE

For the foregoing reasons, the convictions and sentences of the defendant, James Skipper, are affirmed.

AFFIRMED.

      . In the relevant portion of State v. Wille, cited by the defendant, the Louisiana Supreme Court stated as follows: "Thus, reading LSA-C.E. Art. 605 and LSA-C.Cr.P. Art. 671 in conjunction with each other, we conclude that a judge is disqualified in any trial over which he presides, including any eviden-tiary hearing at which the defendant's liberty is at stake, such as the evidentiaiy hearing conducted in this case on the issue of ineffective assistance of counsel. . Further, if a judge is to take the stand as a witness, regardless of the nature or materiality of his testimony, he should be recused from presiding at the trial or hearing. Testimony of a judge as to formalities or matters not in dispute can be stipulated, or any objection can be waived by the parties. Any problems that might arise from a party calling a judge to testify in order to force a recusal can be dealt with by the judge as they arise, and are not without solution.” In Wille, the presiding judge testified at an evidentiary hearing held to address the issue of whether there was an actual conflict of interest between the defendant and his attorney. Although the supreme court found it weis error for the judge to testify at the hearing and in failing to recuse himself when he testified, it concluded that the error was harmless, as the defendant was not prejudiced.


source: Caselaw Access Project

author: 1 .THIBODEAUX, Judge.

license: Public Domain

text:
    Russell E. GAHAGAN, Jr. v. Sydney THORNTON.
    No. 03-851.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Charles Raymond Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Plaintiff/Appellant, Russell E. Gaha-gan, Jr.
    David Anthony Szwak, Bodenheimer, Jones & Szwak, Shreveport, LA, for Defendant/Appellee, Sydney Thornton.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   1 .THIBODEAUX, Judge.

The plaintiff, Russell E. Gahagan, Jr. (Gahagan), appeals the trial court’s judgment dismissing his claim to seize property the defendant, Sidney Thornton (Thornton), pledged to him to secure a debt. The trial court held that Gahagan failed to state a right of action and granted Thornton’s peremptory exception of no right of action. We disagree with the trial court’s conclusion and reverse.

I.

ISSUE

The issue in this case is whether Gaha-gan has the right to seize property pledged to him by Thornton as security for two loans made to Thornton by Gahagan when that property was pledged to secure a loan from Gahagan personally, and a second loan was made by a finance company owned by Gahagan, that was subsequently dissolved while the loan was still outstanding, where the property, two Super Bowl rings, was not in the possession of Gaha-gan.

II.

FACTS

On July 10, 1991, Gahagan made a personal loan to Thornton in the amount of $5,567.46 representing principal and interest. In connection with the loan, the parties entered into a written promissory note. Thornton also pledged his 1978 and 1979 Super Bowl rings as security for the note. The rings were physically delivered by Thornton to Gahagan. On September 26, 1991, Valley Finance Company, Inc. (Valley Finance) made a loan to Thornton in the amount of $2,988.34. At the time of the loan, Gahagan was president and co-owner of Valley Finance. To secure this loan, the previously pledged Super Bowl rings were pledged to Valley LFinance. The rings were kept in a lock box at a bank. Some time after getting the loans, Thornton petitioned for and was granted a judgment in bankruptcy.

Gahagan and Valley Finance instituted litigation against Thornton in rem to seize, and eventually sell, the pledged Super Bowl rings to satisfy the debt due Gaha-gan and Valley Finance. In response, Thornton filed a peremptory exception of no right of action. Thornton asserted that Gahagan instituted the litigation in his individual capacity and that the loans were created in favor of a corporation; thus, the rings were pledged in favor of Valley Finance, not Gahagan.

The trial court granted Thornton’s exception. The trial court found that the rings were first pledged to secure the debt owed to Gahagan personally and were physically delivered to Gahagan in connection with the first loan. The trial court further found that the rings were presented to Valley Finance, not Gahagan, at the time of the second loan. The bank which kept the rings in a lock box no longer wanted to hold the rings and physically gave them back to Gahagan. The trial court held that although Gahagan may have a right to sue on the note, since Gahagan instituted an in rem proceeding, “delivery [of the items pledged] and continued possession are essential to maintain a pledge.” Ultimately, in ruling against Mr. Gahagan and sustaining Thornton’s exception of no right of action, the trial court stated:

[T]he rings were first delivered to Mr. Gahagan and then delivered to the finance company on the occasion [sic] of the second loan. Later [sic] apparently the finance company delivered the rings to Mr. Gahagan. Therefore, since the defendant did not give the rings to Mr. Gahagan, the subsequent delivery by the finance company to Mr. Gahagan does not avail Mr. Gahagan. It was not delivery by the defendant to him. Mr. Gaha-gan had early possession which he relinquished, therefore in this court’s view he may not now enforce the pledge.

JjIII.

LAW AND DISCUSSION No Right of Action

An action can only be brought by a person having a real and actual interest which he asserts. La.Code Civ.P. art. 681. In Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885, the supreme court noted that the function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The issue of whether a plaintiff has the right to judicially assert a cause of action is a question of law. Accordingly, we review an exception of no right of action de novo. Mississippi Land Co. v. S & A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200. Since the function of this exception is to terminate the suit, we should deny the exception if we can reasonably “construe the pleadings in a way that enables them to ‘afford litigants their day in court, to arrive at the truth, and to do substantial justice’ ... so as to afford the litigant an opportunity to present his evidence.” Goulas v. Denbury Management, Inc., 00-935 pp. 4-5 (La.App. 3 Cir. 12/6/00), 774 So.2d 346, 349. To prevail on the peremptory exception of no right of action, the defendant bears the burden of showing that the plaintiff either does not have an interest in the subject matter of the suit or the legal capacity to proceed with the suit. Moyers v. Altmann, 594 So.2d 6 (La.App. 3 Cir.1992). However, the defendant may present evidence to show that the plaintiff does not have a right of action. Arcadian Corp. v. Olin Corp., 97-174 (La.App. 3 Cir. 6/18/97), 698 So.2d 9, writ denied, 02-1930 (La.10/25/02), 827 So.2d 1174.

14Pledge/Uniform Commercial Code, Article 9

There is no dispute regarding the dates that the parties entered into both loans. The first loan was made on July 10, 1991, and the second loan was made on September 26, 1991. By Act 135 of 1989, the legislature enacted into law a modified version of Chapter 9 of the Uniform Commercial Code (U.C.C.) as Chapter 9 of the Louisiana Commercial Laws. La.R.S. 10:9-101, et seq. As a general rule, Article 9 applies to contractual security interests affecting personal or movable property entered into or granted on or after January 1, 1990. La.R.S. 10:9-102. Further, La.Civ.Code art. 3133.1, an article under Title XX “Of Pledge,” provides:

This Title shall apply to pledges of movables that are delivered prior to the time Chapter 9 of the Louisiana Commercial Laws[] becomes effective, including without limitation those pledges that may secure future obligations and lines of credit, as well as to pledges entered into on or after the time Chapter 9 of the Louisiana Commercial Laws becomes effective that are exempt or otherwise excluded from coverage thereunder.

Thus, it is clear that the old law of pledge under Title XX of the Civil Code are inapplicable to the present case because both loans were confected after the effective date of Chapter 9 of the Louisiana Commercial Laws. The law under La.R.S. 10:9-101, et seq is determinative of the rights of parties in the present case. Therefore, whether Gahagan has a right of action in rem against Thornton is dependent upon whether the rules and regulations with respect to obtaining a security interest in the Super Bowl rings were properly done.

As we noted above, because Thornton raised the peremptory exception of no right of action, the burden is on him to prove that Gahagan has no legal interest in pursuing a claim against him to seize and sell the Super Bowl rings. Chapter 9 of the Louisiana Commercial Laws, applies to transactions that create, by contract, a security interest in, among other things, personal property. La.R.S. 10:9-109. The | ¡^parties must also enter into a security agreement and file a financing statement. The financing statement must contain certain information such as the name of the debtor, the name of the secured party and a proper description of collateral covered by the financing statement. La.R.S. 10:9-502, 10:9-503, 10:9-504 and 10:9-108. The secured party of record is the person whose name is provided on the financing statement. La.R.S. 10:9-511. Louisiana Revised Statutes 10:9-609 provides that one way a secured party may take possession of the collateral securing his interest is pursuant to judicial process. There is nothing in the record indicating that Gaha-gan did not follow the Louisiana Commercial Laws in securing his interest in the two Super Bowl rings. It was Thornton’s burden to prove Gahagan’s noncompliance. He failed to do so. Thus, the trial court’s grant of Thornton’s peremptory exception of no cause of action was erroneous.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court granting Thornton’s peremptory exception of no right of action is reversed. Costs of this appeal are assessed to the defendant-appellee, Sidney Thornton.

REVERSED AND REMANDED FOR TRIAL ON THE MERITS.


author: | .DECUIR, Judge.

text:
    James LANDRENEAU v. ST. LANDRY FIRE DISTRICT III.
    No. 03-0870.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    James S. Gates, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Plaintiff/Appellant: James Landreneau.
    Jeffrey J. Warrens, Baton Rouge, LA, for Defendants/Appellees: St. Landry Fire District III, Louisiana and Workers’ Compensation Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   | .DECUIR, Judge.

Workers’ compensation claimant, James Landreneau, appeals a judgment finding that he failed to carry the burden of proof necessary to establish that he contracted bladder cancer as a result of his work as a firefighter.

FACTS

James Landreneau has been employed as a firefighter with St. Landry Fire District III since 1973. Landreneau is presently the Assistant Fire Chief.

Landreneau was initially diagnosed with recurrent bladder cancer on August 2, 1989, after he had served as a firefighter for approximately sixteen years. There have been three recurrences of the bladder cancer, for which Landreneau has undergone prompt and successful surgery for removal of the tumors. He is not currently disabled, and the payments for medical expenses associated with the recurrent bladder cancers have been made through his private health insurance company, with his personal payments of deductibles and copayments. LWCC and the employer have declined to pay the expenses through workers’ compensation.

Landreneau responded to fires regularly throughout the years. In the early years, from 1973 through 1980, protective equipment was infrequently used, and the safety equipment was not as comprehensive as the respirators currently used. He is a non-smoker, is not obese and has no history of bladder cancer in his family. The only apparent risk factor for bladder cancer for Landreneau is his exposure to chemicals, fire and smoke. The workers’ compensation judge found that these facts were insufficient to establish that his bladder cancer was caused through occupational exposure and, therefore, denied his claim for medical payments. Landreneau lodged this appeal.

| ¡.DISCUSSION

Landreneau contends that the workers’ compensation judge’s conclusion that he failed to establish that he contracted bladder cancer as a result of his work as a firefighter is manifestly erroneous. We disagree.

A previous panel of this court found that La.R.S. 33:2011 is not applicable to this case because Landreneau is not disabled. Accordingly, his claim is based on the theory that bladder cancer is an occupational disease under La.R.S. 23:1031.1. Louisiana Revised Statute 23:1031.1 states, in pertinent part:

B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

In Coats v. American Telephone & Telegraph Co., 95-2670, p. 7 (La.10/25/96), 681 So.2d 1243, 1247, the supreme court said:

In examining the merits of an occupational disease claim, the threshold question is whether or not the claimant has sustained an occupational disease resulting from causes and conditions characteristic of and peculiar to his particular trade, occupation, process, or employment. LSA-R.S. 23:1031.1; Peck v. Procter & Gamble Manufacturing Co., 586 So.2d 714 (La.App. 3 Cir.1991). Proof of such a causal connection need not be shown to an absolute certainty. It is sufficient that the claimant establish the cause of his disability by a reasonable probability.

The parties stipulated prior to trial that Landreneau is not disabled by his condition. Therefore, the compensability of his medical expenses under La.R.S. 23:1203 is the only issue in dispute. Thus, Landre-neau had the burden of proving, by a reasonable probability, that he contracted bladder cancer as a result of his employment. The workers’ compensation judge found that he had not met that burden of proof. This is a factual finding that this court will reverse only upon a ^showing that the workers’ compensation judge was manifestly erroneous or clearly wrong. See Rosell v. ESCO, 549 So.2d 840 (La.1989).

To support his claim, Landreneau testified to his twenty-eight years as a firefighter; his exposure to toxic chemicals, smoke and fire; and the lack of any other pertinent risk factors for bladder cancer. In addition, Landreneau put on evidence, which the parties stipulated to be accurate, as to the number of fires during the period when he contracted his bladder cancer. There was no evidence that he had bladder cancer before he began working for the department.

The workers’ compensation judge apparently gave great weight to the testimony of Landreneau’s doctor, Dr. Frank Bacque. When asked whether Landreneau’s work as a firefighter had any role in the development of his bladder cancer, he indicated that he would “have a hard time proving anything like that.” When pressed for his opinion, the doctor responded that he did not think that Washington, Louisiana, suffered from the type of major fires on a recurring basis that are usually associated with this particular occupational hazard. Moreover, the doctor testified that in his twenty-one years of urology practice in the Lafayette area, he has never treated another firefighter with the same type of cancer.

While Landreneau established that there is a possibility that he contracted the disease as a result of his employment, the evidence presented supports the workers’ compensation judge’s finding that Landre-neau failed to establish a reasonable probability that he contracted bladder cancer as a result of his employment. Thus, this assignment of error lacks merit.

| .DECREE

For the foregoing reasons, the decision of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to appellant, James Landreneau.

AFFIRMED.


author: LEZELL, Judge.

text:
    Taylor KAOUGH d/b/a Kaough & Associates, v. Hazel HENRY d/b/a Henry Tax Service.
    No. CA 03-0917.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Robert William Codings, Codings & Codings, Lake Charles, LA, for Plaintiff/Appedee, Taylor Kaough.
    Genia Coleman-Lee, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Hazel Henry.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   LEZELL, Judge.

The issues in this case are whether there was personal service of process and sufficient evidence to support a default judgment. Hazel Henry d/b/a as Henry Tax Service says there was not in both instances and appeals the default judgment entered in favor of Taylor Kaough d/b/a Kaough & Associates.

FACTS

Kaough filed a petition for damages on March 13, 2002, against Henry and Lisa Madden alleging that they were indebted to it for $150,000. Kaough’s petition alleged that it hired the Defendants to prepare its tax returns, compute taxes, and deliver the tax returns so the appropriate amount of taxes could be paid. Kaough claimed that it discovered that the Defendants breached their contract and failed to perform these duties resulting in additional taxes, penalties, and interest. It alleged that these errors and omissions by the Defendants resulted in Kaough’s inability to accurately determine the costs of several construction contracts, which projects were being billed on a cost-plus basis, resulting in a loss of income to Kaough.

No answer was filed by either Henry or Madden. A preliminary default was entered on April 15, 2002. A default judgment was entered on May 21, 2002. On August 27, and December 19, 2002, Kaough filed petitions to examine the judgment debtor. On January 9, 2003, Henry filed a petition to annul the default judgment, alleging that she was never served with the original petition. In response, Kaough filed a motion for summary judgment. A hearing was held on April 17, 2003, resulting in judgment rendered in favor of Kaough on April 24, 2003. Henry appeals this judgment.

SERVICE OF PROCESS

Henry argues that the default judgment should be annulled pursuant to La.Code Civ.P. art. 2002(A)(2) because she was not personally served with process. On the 12other hand there is a return of a citation in the record indicating that personal service was made on Hazel Henry on March 13, 2002.

Louisiana Code of Civil Procedure Article 2002(A)(2) provides:

A final judgment shall be annulled if it is rendered:
Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

There is a presumption that a sheriffs return is prima facie correct. La. Code Civ.P. art. 1292. The plaintiff, in an action to nullify a default judgment, has the burden of proving his case by a preponderance of the evidence. Roper v. Dailey, 393 So.2d 85 (La.1980)(on rehearing), 400 So.2d 898(Dennis, J., dissenting); Technisonic Research, Inc. v. Technical Indus., Inc., 03-38 (La.App. 3 Cir. 10/1/03), 856 So.2d 149; Hall v. Folger Coffee Co., 02-920, 02-921 (La.App. 4 Cir. 4/9/03), 843 So.2d 623.

The deposition of Arthur Guillory, the deputy who signed the service return, is in the record. Guillory testified that he worked for the Calcasieu Parish Sheriffs Office for two years serving civil papers, though by the time of the deposition he had voluntarily left his employment with the sheriffs office. Guillory specifically remembered serving papers on Henry because he made a wrong turn and did not realize that Iris Street, where Henry’s business was located, was a one-way street. He stated that he delivered the lawsuit “in her hand.” He was very certain of this.

In support of her position, Henry introduced her affidavit, her co-defendant’s affidavit, and that of three other workers who worked with her into the record. All of these affidavits stated that Henry “WAS OUT OF THE OFFICE DUE TO ILLNESS DURING THE WEEK OF MARCH 11TH THRU THE 15TH, 2002.” | aSubsequently, another affidavit by Madden was submitted that stated that she “ACCEPTED THE PAPERS ON MARCH 13, 2002 AND [SHE] DID NOT GIVE THE PAPERS TO MRS. HENRY. MRS. HENRY FOUND OUT ABOUT THE LAW SUIT [sic] AT THE TIME OF THE SALE OF PROPERTY IN NOVEMBER 2002.”

We note that none of the affidavits, except for the subsequent affidavit by Co-defendant Madden, state anything about whether or not Henry was served with papers. We also observe that there is a letter from Henry’s doctor, Dr. Craig Broussard, which states that “the patient was on therapy at home with antibiotics for two weeks and a subsequent third week of antibiotics was ordered on March 5, 2002,” which would have been completed on March 12, 2002. However, the lawsuit was served the day after her home therapy was complete.

We also observe that there is a sheriffs return in the record indicating that the same deputy made personal service of notice of the default judgment on Henry on May 29, 2002. Guillory also remembered serving these papers, while Henry claims she never received personal notice of the judgment either.

We agree with the trial court that there was insufficient proof to rebut the presumption of prima facie validity accorded the sheriffs return.

INSUFFICIENT EVIDENCE

Henry has argued on appeal that there was insufficient evidence to support the default judgment. However, Henry never appealed the default judgment which was rendered on May 21, 2002. She has appealed the judgment which denied her motion for nullity and granted summary judgment in favor of Kaough. “A failure of proof must be raised in a motion for new trial or by appeal, not by an action for nullity.” Nat’l Income Reality Trust v. Paddie, 98-2063, p. 3 (La.7/2/99), 737 So.2d 1270, |41271. Henry failed to appeal the default judgment and, therefore, this issue is not properly before this court on an appeal from a judgment denying a motion for nullity.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Hazel Henry d/b/a Henry Tax Service.

AFFIRMED.


author: liAMY, Judge. LEZELL, J.,

text:
    SOLA COMMUNICATIONS, INC. v. Tony BAILEY.
    No. CA 03-905.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Michael Dean Hebert, Hebert Law Frim, Lafayette, LA, for Defendant/Appel-lee, Tony Bailey.

      Randal Paul McCann, Lafayette, LA, for PlaintiflyAppellant, Sola Communications, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   liAMY, Judge.

The plaintiff employer filed a petition for an injunction, asserting the validity of a non-competition clause entered into by the defendant, a former employee. The defendant filed a motion for summary judgment, alleging that the clause was ineffective. The trial court granted the summary judgment. The employer appeals. For the following reasons, we affirm.

Factual and Procedural Background

At issue in this case is the validity of a non-competition agreement entered into between the plaintiff, Sola Communications, Inc., and the defendant, Tony Bailey. The agreement was entered into in August 2000 when the Employee Acquisition Company, LLC, an employee group of which Mr. Bailey was a part, purchased Sola from its original owner. At the time of the group’s purchase of Sola, Mr. Bailey received an 8% interest. In turn, Mr. Bailey paid $800, became a personal guarantor, and signed a non-competition agreement. Following the employee group’s | ^acquisition of Sola, Mr. Bailey served as Vice President of Operations until July 2002, when his employment was terminated by President Gordon Rice.

The instant matter arose when Mr. Bailey was hired as a Project Manager on October 7, 2002, by Jelec USA, Inc., a business involved in fire and gas detection systems and alarm/paging systems. On November 26, 2002, Sola sought enforcement of the non-competition agreement, filing a “Petition for Declaratory Judgment and Rule to Show Cause to Why Sola Communications, Inc. is Not Entitled to Preliminary and Permanent Injunctive Relief.” Mr. Bailey responded to the petition and filed an Exception of No Cause of Action and Motion for Summary Judgment.

At the hearing on the request for the preliminary injunction, the exception of no cause of action, and motion for summary judgment, Mr. Bailey argued that the non-competition agreement was invalid due to the Louisiana Supreme Court’s decision in SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294. Sola asserted that the matter was distinguishable from the supreme court jurisprudence. The trial court found in favor of Mr. Bailey, granting the motion for | «summary judgment and denying the exception of no cause of action and Sola’s request for a preliminary injunction.

Sola appeals, assigning the following as error:

1. The trial court erred by granting the Motion for Summary Judgment when it refused to view a distinction between the facts relevant to Sola and Tony Bailey and the facts which give rise to SWAT 21 of Shreveport Bossier, Inc. v. Bond.
2. Pursuant to Act No. 428 of the 2003 Regular Session, SWAT 2k of Shreveport Bossier, Inc. v. Bond has been legislatively overruled and the decision made by the trial court is now in error.

Discussion

Standard of Review

Summary judgments are provided for by La.Code Civ.P. art. 966(C)(1), which instructs that “[ajfter adequate discovery or after a case is set for trial, a motion [for summary judgment] which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” An appellate court considers a trial court’s disposition of a motion for summary judgment de novo. Shelton v. Standard/700 Assoc., 01-0587 (La.10/16/01), 798 So.2d 60. Considering this standard, we observe that the instant motion for summary judgment is not one concerned with the presence, or lack thereof, of genuine issues of material fact. Instead, the focus is on whether the relatively uncontested facts entitle the movant, Mr. Bailey, to judgment as a matter of law.

La.R.S. 23:921

Central to our analysis of this matter is La.R.S. 23:921, which regulates non-competition agreements. At the time of the events at issue, the statute provided, in part:

14A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
(2) The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.
B. Any person, including a corporation and the individual shareholders of such corporation, who sells the goodwill of a business may agree with the buyer that the seller will refrain from carrying on or engaging in a business similar to the business being sold or from soliciting customers of the business being sold within a specified parish or parishes, or municipality or municipalities, or parts thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, not to exceed a period of two years from the date of sale.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of tivo years from termination of employment. An independent contractor whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.

(Emphasis added.)

Sola advances two theories under which the above legislation does not prohibit enforceability of the non-competition agreement entered into with Mr. Bailey. First, it asserts that SWAT 2k, 808 So.2d 294, the supreme court case relied upon by the trial | Kcourt and the dominate case on the subject, is inapplicable to this non-competition agreement. In particular, it argues that, in the present case, Mr. Bailey was not merely an employee of Sola, but that he was a shareholder and that he entered into the non-competition agreement in exchange for significant consideration as he acquired a new position and an increase in salary. Thus, Sola contends, any public policy concerns regarding the inequitable bargaining positions between employer and employee are not at issue as historically they were in the early cases involving non-competition agreements. Furthermore, Sola contends that legislation enacted subsequent to the trial court’s ruling legislatively overruled SWAT 2k and should be found applicable to the instant case.

Applicability of SWAT 2k

We turn to the issue of whether Mr. Bailey’s status as an interest holder renders this matter distinguishable from SWAT 2k, 808 So.2d 294, wherein the supreme court considered the validity of a non-competition clause in which an employee agreed to neither engage in competition with the employer nor work as an employee of a competitor engaged in a similar business within designated parishes. At issue in SWAT 24, was whether the non-competition clause was within Paragraph C’s exception to the general prohibition against non-competition agreements expressed in La.R.S. 23:921(A)(1). The employee argued that the clause did not fit within the narrow exception of La.R.S. 23:921(C) as it prohibited his working either as a competitor or as the employee of a competitor.

The supreme court reviewed Louisiana’s historic disfavor of non-competition agreements between employers and employees, noting that the public policy restricting the agreements reflects “the desire to prevent an individual from | ^contractually depriving himself of an ability to support himself and consequently become a public burden.” SWAT 24, 808 at 299. In resolving the issue of whether Paragraph C permits an exception to the rule that applies to both subsequent employment as a competitor and employee of a competitor, it noted that the courts of appeal had resolved the question differently. These varying results reflect the various meanings possibly afforded to the phrase “carrying on or engaging in a business similar to that of the employer” contained in Paragraph C.

In its consideration of the phrase, the supreme court considered the statute’s background and legislative history before resolving the issue as follows:

The Agreement specifies that Bond [the employee] was prohibited from directly or indirectly engaging in competition with SWAT in specified parishes for a period of two years. If this provision is construed arguendo to prohibit Bond only from engaging in competition with SWAT by forming his own competing business, it would fit within the exception provided for in La.R.S. 23:921(C) as -discussed above. Conversely, if this provision is construed to prohibit Bond from accepting employment by one of SWAT’s competitors, then it is over-broad and unenforceable. Construction of this restriction as anything other than prohibiting Bond from competing with SWAT by engaging in his own business will not be allowed. Bond did not, however, form his own business to compete with SWAT. Rather, he accepted an employment position with NRS, SWAT’s competitor. Thus, the applicable provision in the Agreement becomes that which unambiguously prohibits Bond from serving as an employee in any business which is in direct or indirect competition with SWAT. The language of this provision goes beyond the limited exception of § 921(C) by preventing Bond’s employment in specified parishes in any capacity with any other business in direct or indirect competition with SWAT. It is therefore unenforceable.
The fact that Bond was employed by NRS in the same position he held at SWAT does not change the analysis. The statute does not allow a flat prohibition of employment by a competitor, even if the employee’s new job duties are exactly the same as those performed for the former employee. The contractual language, prohibiting Bond from accepting employment by a competitor of SWAT, is simply overbroad and therefore null and void.

Id. at 308 (footnote omitted).

|7As did the employee in SWAT 24-, Mr. Bailey became the employee of another business following the termination of employment with Sola. However, Sola asks this court to distinguish Mr. Bailey’s particular situation from that of the plaintiff in SWAT 2k- While the supreme court in SWAT 2k was focused on the question of whether the nature of the subsequent employment is significant in interpreting the exception of La.R.S. 23:921(C), the instant case focuses upon whether the nature of the initial employment is significant. Sola contends that Mr. Bailey’s position as an equity holder in Sola differentiates him from a typical employee who may be asked to enter into a non-competition agreement in order to gain employment.

Our review of the supreme court’s pronouncement in SWAT 2k indicates that the language employed in that case is clear and without distinction as to whether an employee was an equity holder at his former place of employment. In considering the question of whether La.R.S. 23:921 permits an agreement limiting future employment in a similar position, the supreme court stated, without qualification, that: “The statute does not allow a flat prohibition of employment by a competitor, even if the employee’s new job duties are exactly the same as those performed by the former employer.” SWAT 2k, 808 So.2d at 308 (emphasis added). Due to “the contractual language prohibiting [the employee] from accepting employment by a competitor of [the employer] ...” the language was found to be “simply over-broad and therefore null and void.” Id. While the precise distinction at issue in the present case was not squarely addressed by the supreme court in SWAT 2k, we do not find that an applicable exception to their general pronouncement was set forth. Accordingly, we conclude that the trial court’s determination that SWAT 2k is applicable to the facts of this case was correct. This assignment lacks merit.

| ¡Amendment to La.R.S. 23:921

Sola contends that even if this court finds SWAT 2k applicable to the facts of the instant matter, recent amendment to La.R.S. 23:921 requires reversal of the summary judgment. Sola points to 2003 La.Acts No. 428, § 1, which was enacted subsequent to the trial court’s decision in this case. The Act contains the following amendment:

H. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

Sola contends that the above measure was enacted to legislatively overrule the supreme court’s pronouncement in SWAT 2k. Sola raises the issue of whether the measure should be afforded retroactive application.

As to the issue of retroactive or prospective application of legislation, La.Civ.Code art. 6 provides:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

Act No. 428 contains no express indication that it is to be applied retroactively. It is thus necessary to determine whether the amendment contained in Act No. 428 is substantive, procedural, or interpretative in nature.

In Sawicki v. KJS Stavanger Prince, 01-0528, p. 8 (La.12/7/01), 802 So.2d 598, 603-04, the Louisiana Supreme Court reviewed the principles of the above classifications of legislation insofar as they relate to ret-roactivity, explaining:

This court has held that substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish |flnew rules, rights and duties or change existing ones; procedural laws are those which prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws; and interpretative laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. See Sudwischer v. Estate of Hoffpauir, 97-0785 (La.12/12/97), 705 So.2d 724; Segura v. Frank, 93 C 1271 (La.1/14/94), 630 So.2d 714, 723.

Sola contends that Act No. 428 is the legislature’s clarification of its intent in creating La.R.S. 23:921, a clarification it contends was in response to the supreme court’s decision in SWAT 24-

Having reviewed the amendment contained in Act No. 428, in light of the complex legislative and jurisprudential background of La.R.S. 23:921 and the supreme court’s decision in SWAT 24-, we do not find that retroactive application is appropriate. As comprehensively discussed by the supreme court, La.R.S. 23:921 has a history of varying interpretations in the courts of appeal of this state. The conflict between the circuits was put to rest with the decision in SWAT 24- The subsequent amendment was clearly in the nature of a substantive change to the law as it existed after the supreme court’s pronouncement in SWAT 24- This type of response to a supreme court determination cannot be said to be merely interpretive, but must be viewed as substantive insofar as it establishes a new rule. Accordingly, as the events at issue in this case occurred prior to the enactment of 2003 La.Acts No. 428, § 1, the new provision is inapplicable to the instant case.

This assignment lacks merit. As the submissions indicate that the movant, Tony Bailey, is entitled to judgment as a matter of law, we find no error in the granting of the summary judgment.

hnDECREE

For the foregoing reasons, the summary judgment entered in favor of the defendant, Tony Bailey, is affirmed. All costs of this matter are assigned to the plaintiff, Sola Communications, Inc.

AFFIRMED.

EZELL, J., concurs and assigns written reasons.

LEZELL, J.,

concurring.

There is much history to review with regard to agreements not to compete. We must acknowledge that agreements not to compete are obligations not to do. La.Civ. Code art. 1756. Injunctive relief can be used to enforce a valid agreement not to compete. Courts of this state have upheld, as valid, agreements not to compete which are ancillary to the sale of a business and its good will. See Moorman & Givens v. Parkerson, 127 La. 835, 54 So. 47 (1911) and Hickman v. Branan, 151 So. 113 (La.App.Orl.Cir.1933).

As in Gold & Suckle Inc. v. Suckle, 335 So.2d 713 (La.App. 2 Cir.), writ denied, 338 So.2d 700 (La.1976), we are called upon to decide whether the agreement not to compete under consideration is ancillary to or is an incident of the sale of a business, or is it a separate and independent employee-employer contract that would make it subject to the provisions of La. R.S. 23:921. In the ease before us it is clear that the employment contract and purchase agreement which contained the agreement not to compete was an incident of and ancillary to the purchase of Sola Communications, Inc. For us to follow SWAT 2k v. Bond, 00-1965 (La.6/29/01), 808 So.2d 294, would call for us to ignore what has prompted the legislature to amend La.R.S. 28:921 in the first place. By following SWAT 2k we will be construing the | ¡¡statute so narrowly as to effectively rule that no non-compete clauses could be enforced. This interpretation of the statute completely ignores the competitive realities of today’s commercial world.

There are too many questions raised in the case at hand that are not answered to my satisfaction in SWAT 2k. The position that I would take is the same as expressed in Justice Traylor’s dissent in SWAT 2k-By adopting the dissent, I realize that I would be following the previous rulings of the Third Circuit with regard to the question presently before us. See Moreno & Assocs. v. Black, 99-46 (La.App. 3 Cir. 5/5/99), 741 So.2d 91, writ denied, 99-1613 (La.6/16/99), 745 So.2d 606.

I want to stress that I do feel that the legislative history in these cases has been one of constant change. It is important for the court to take an approach that would best achieve the legislative intent, but preserve a balance between employers and employees by considering the words of the contract, whether the employers are competitors, and the employee’s position and its impact on the former employer.

After all is said, it is clear that La.R.S. 23:921 is susceptible to more than one meaning, this was acknowledged in SWAT 2k by the majority. I disagree with their interpretation of the legislative purpose and intent in enacting La.R.S. 23:921. There is a question that I must ask which I find very important in this case and that is, “Is it not possible for a former employee to be an independent contractor and solicit customers of his former employer and not be an employee of the employers that may be competing against the former employer.” If you can answer the question with a “yes” answer then we are talking about the effect that a single employee might have on his former employers and he is not doing it in the form of carrying on or engaging in a business similar to that of his former employer. It is clear that the word “engage” has many definitions. The term “engage” supports that opposite findings, namely that |3an individual is engaged in the employ of another. If the legislature intended to make La.R.S. 23:921 so restrictive then the legislature could have easily said, “engaging or carrying on his own business.” See SWAT 2k, 808 So.2d 294.

After stating all the reasons that would possibly distinguish this case before the court and SWAT 2k, I am aware of the mandate voiced by the supreme court majority in SWAT 2k- In light of the ruling of SWAT 2k I must concur with the decision of this court.

      . The non-competition agreement, provides, in part:
      NON-COMPETITION AGREEMENT
      THIS NON-COMPETITION AGREEMENT ("Agreement”) is made and entered into as of August 1, 2000, by and between TONY J. BAILEY ("Employee”) and SOLA COMMUNICATIONS, INC., a Louisiana corporation ("Company”).
      WITNESSETH:
      WHEREAS, Employee is an employee of Company; and
      NOW, THEREFORE, for and in consideration of the premises, and the consideration, agreements, mutual covenants hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are forever acknowledged and confessed, the parties hereto covenant and agree as a material part of the Employment Agreement as follows:
      I. COVENANT NOT TO COMPETE
      Employee recognizes that (i) Company's employment of Employee is induced because of the covenants and assurances made by Employee hereunder; (ii) the covenant not to compete of Employee is necessary to ensure the continuation of the business of Company should Employee terminate his employment with Company; and (iii) irreparable harm and damage will be done to the business of Company in the event that Employee competes with Company within the area or areas specified in Schedule 1. For purposes of this Agreement, the “business of Company” shall mean a service company specializing in the operation of radio communications, sales and service of home security systems, key systems, mobile telephones, two-way radios, analog and digital microwave equipment, cellular equipment, marine radio systems, navigational aids, fire and gas detection systems, satellite communication systems, design, installation and maintenance of SCADA (Supervisory Control and Data Acquisition) systems, sales and installation of communication towers and antennae, and other related telecommunications services. Therefore, in consideration of these premises, and as an inducement to consummate the transactions contemplated herein, Employee hereby agrees that during the term of his employment with Company and for a period of two (2) years following his termination of employment with Company, Employee will not directly or indirectly, in any capacity, own, manage, operate, control, participate in the management or control of, be employed by, consult with, receive any remuneration from or maintain or continue any interest whatsoever in, any enterprise, whether private or otherwise, in competition with the Company’s business within the Louisiana Parishes described on the attached Schedule I; provided that nothing contained herein shall be deemed to prohibit Employee from investing in stock or securities of a publicly-held business which is in any line of business in competition with the Company's business; further provided, however, that the securities of such business are traded on a national or regional securities exchange, or on an over-the-counter market, and provided further that the holdings of Employee and his immediate relatives do not amount to more than five percent (5%) of the fair market value of all the issued and outstanding stock and securities of such business in the aggregate.
      (Emphasis added.)