author: GREG G. GUIDRY, Judge. WICKER, J.,

text:
    STATE of Louisiana v. Joseph VANCE.
    No. 06-KA-465.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Donald A. Rowan, Jr., Trial Counsel Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

pThe Defendant, Joseph Vance, appeals from his guilty plea convictions on two felony counts and his respective sentences, in the custody of the Department of Corrections. For the reasons which follow, we affirm the convictions and sentences, and remand.

On August 19, 2004, the Jefferson Parish District Attorney’s Office filed a bill of information charging the Defendant, in count one with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, and in count two with second offense possession of marijuana, a violation of La. R.S. 40:966(C). At his arraignment, the Defendant pled not guilty. The Defendant filed a Motion to Suppress Confession, Identification, and Physical Evidence. On April 20, 2006, after a hearing, the trial court denied the motion to suppress.

|aAt the motion to suppress hearing, both Officer Vernon Jones and Deputy Ronald Green testified that, on April 14, 2005, the day the Defendant was arrested, they were working a detail assignment authorized by the State Housing Authority to prevent trespassing in a public housing subdivision in the Betty Street area. Deputy Green stated that trespassers were coming into the subdivision to sell narcotics. As part of the detail, the officers were given a list of the subdivision’s residents to cheek against the identification of people in the area. Anyone entering the subdivision was supposed to be a resident, visiting a resident, or have business in the area. Deputy Green testified that the Defendant, whom he identified in court, initially came to his attention while he was riding his bicycle toward the officers. It was between 5:30 and 7:00 p.m. He testified that the Defendant was not in violation of any statutes.

Officer Jones was more specific, testifying that the Defendant was riding his bicycle in the street coming across Lapalco Boulevard to Betty Street, from the Lin-colnshire area. He noted that there was no sidewalk from Betty Street and Lapalco Boulevard, until you reach a certain section close to where he was standing. He testified that the defendant was “acting in a suspicious manner, by just looking, turning around and looking, like backwards,” as he headed towards the officers. Both officers testified that the Defendant had an unobstructed view of them as he approached. Officer Jones testified that he did not think the Defendant was looking back to avoid cars. He stated that, based on his twenty years of experience, especially in the Lincolnshire area, the behavior was indicative of drug activity. He described the Lincolnshire area as “a drug-infected area, and from my experience, they take those bikes, those bicycles to come in the area and sell drugs.” He testified that the Defendant was coming from Lincolnshire. He decided to stop the Defendant for identification to see if he resided in the Betty 14Street area. Deputy Green admitted that the street was not an area included in the directive from the Housing Authority and was not part of the subdivision’s property, but rather a public place where people could walk and ride their bikes without trespassing.

Deputy Green testified that as the Defendant got within approximately ten feet of the officers, Officer Jones called to the Defendant “man, come over here for a second.” He testified that it was not in. the nature of an order. Both officers agreed that when they asked the Defendant to come over to them, the Defendant stopped, turned his bike around, and “took off.” Deputy Green described the Defendant’s actions as taking off “kind of fast.” Officer Jones testified that the Defendant “fled.” “He turned around with his bicycle and started peddling fast.”

Deputy Green testified that, when the Defendant took off, he started to follow on foot but when Officer Jones got in his vehicle to follow the Defendant he also got in his unit and chased the Defendant. The Defendant kept riding as they called for him to come back. Officer Jones testified that he proceeded behind the Defendant in his police vehicle when the Defendant turned and went back in the direction from which he had come. As the Defendant was riding away, the chain slipped off of his bicycle. The Defendant then dropped the bicycle and ran across Lapalco Boulevard into oncoming traffic. Officer Jones testified that when the Defendant ran across Lapalco Boulevard, he got out of his vehicle and ran after him. The Defendant slipped and slid on the ground. Deputy Green apprehended the Defendant on the ground. The Defendant’s hands were reaching underneath his stomach. Deputy Green cuffed the Defendant for his safety, concerned that the Defendant was reaching for a weapon in his waistband. Deputy Green admitted that he detained the Defendant even though he still did not know that the | ¡^Defendant had committed a crime. Deputy Green testified that he “didn’t read him his rights when he cuffed him, actually, Deputy Jones read him his rights.”

The officers’ testimony conflicted on the pat-down. Deputy Green testified that Officer Jones questioned the Defendant about why he ran, then rolled him on his side and patted him down. Officer Jones felt something in the Defendant’s waistband he believed to be a weapon. Officer Jones recovered a loaded .25 caliber automatic weapon and two separate bags of a green “vegetable-like substance” that later tested positive for marijuana.

Officer Jones testified that “Deputy Green rolled the Defendant over and handcuffed him and brought him to the car, did a pat down search, [in] which we retrieved a weapon and the drugs.” Officer Jones testified that he did not pat the Defendant down while he was lying on the ground or retrieve any weapon. Officer Jones admitted that he conducted the search for the weapon incident to the Defendant’s arrest, and that he did not read the Defendant his rights until after he recovered the weapon and placed the Defendant under arrest. When asked what the Defendant was under arrest for prior to finding the gun, he replied, “Well, we wanted to find out, you know, what was going on, why was he running, why did he have his hands in his waistband.”

The trial judge denied the motion to suppress, finding that “the officers were on a detail, and hired by the property owners to keep out loiters [sic], and they had the right to question people to see if they belonged in that neighborhood or not.”

Following the denial of his motion to suppress, the Defendant withdrew his not guilty plea on both counts, and entered a plea of guilty as charged on both counts pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The Defendant reserved his right to appellate review of the trial court’s denial of his motion to suppress. The trial court thereafter sentenced the Defendant on count one to ten | ¿years in the custody of the Department of Corrections, without benefit of parole, probation, or suspension of sentence, and on count two to five years with the Department of Corrections. Both sentences were ordered to run concurrently with credit given for time served. It is from these convictions and sentences that the Defendant appeals.

On appeal the Defendant argues that the trial court erred in denying his motion to suppress because the attempted stop was without reasonable suspicion or probable cause. He claims that the police had no right to stop him, because he was in a public street, not trespassing. The Defendant notes that the officers testified that he was not doing anything wrong before the officers attempted to stop him.

The State argues that the officers did not initially attempt to detain the Defendant and force him to submit to questioning by them. Instead, the State cites State v. Lewis, 00-3136 (La.4/26/02), 815 So.2d 818, to support its contention that the initial encounter was not an investigatory stop, but rather only a request by the officers that the Defendant come over to the police vehicle to speak with them “for a second,” because he appeared nervous. The officers did not indicate in any fashion that the Defendant was not free to ignore their request and leave. Therefore, the State argues there was no improper investigatory stop. The State contends that the officers did not pursue the Defendant, even after he “fled from [them] on his bicycle,” until he fled into oncoming traffic, raising their suspicion that he might be involved in criminal activity. The State suggests that the officers’ training and experience, the high crime nature of the area, especially narcotics trafficking, the nervousness of the Defendant, and his flight into oncoming traffic, all taken together, provided reasonable suspicion to suspect that the Defendant was engaged in criminal conduct.

|7The Fourth Amendment to the United States Constitution and the Louisiana Constitution Article I § 5 protects individuals from unreasonable searches and seizures. State v. Massey, 03-1166, p. 4 (La.App. 5th Cir.1/27/04), 866 So.2d 965, 968. The United States Constitution’s Fourth Amendment is not intended to eliminate all contact between the police and citizens. State v. Massey, 866 So.2d at 971. Law enforcement officers have the same liberty possessed by every citizen to address questions to other persons. State v. Stanfield, 05-839, p. 4 (La.App. 5th Cir.3/14/06), 925 So.2d 710, 715. “An officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave.” State v. Lewis, 815 So.2d at 820.

“A person is seized within the meaning of Article I, Section 5 of the Louisiana Constitution when that person is either ‘actually stopped’ or when an ‘actual stop’ of the person is ‘imminent.’ ” State v. Stanfield, 925 So.2d at 716. “The test for such a seizure is an objective one, and it is whether the officer’s words and actions would have conveyed to a reasonable person that he was being ordered to restrict his movement.” State v. Massey, 866 So.2d at 972.

When the police come upon a person with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain, an “actual stop” of the person is “imminent.” State v. Stanfield, 925 So.2d at 716. The factors to consider in determining whether an actual stop is imminent are the proximity of. the police in relation to the defendant at the outset of the encounter, whether the person has been surrounded by the police, whether the police approached the individual with their weapons drawn, whether the police and/or the individual are on foot or in motorized vehicles during the encounter, the Islocation and characteristics of the area where the encounter takes place, and the number of police officers involved in the encounter. Id.

The decision in Illinois v. Wardlow, 528 U.S. 119, 124-125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), however, makes clear that flight is not the equivalent of a mere refusal to cooperate for purposes of the Fourth Amendment:

Headlong flight — whenever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists....
Such a holding is entirely consistent with our decision in [Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)], where we held that when an officer without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go' about his business. And any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ [Florida v. Bostick, 501 U.S. 429, at 437, 111 S.Ct. 2382, at 2387, 115 L.Ed.2d 389 (1991)]. But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

In the present case, with or without reasonable suspicion, Officers Green and Johnson, from approximately ten feet away, had the right to ask the Defendant to come over toward them “for a second.” Officer Johnson’s request, in a public area and without any greater show of authority, did not transform the encounter into a forcible detention. Because the Defendant was free to leave, the question by the officers did not “provoke” the Defendant to flight. It was not until the Defendant stopped his approach toward the officers on his bicycle, turned it around and “took off’ in “headlong flight” that the officers, by their pursuit, ^indicated that a stop might be imminent.. At that point, the totality of the circumstances known to the officers at the time, including the knowledge that the area was prone to drug trafficking, the Defendant’s suspicious behavior understood by the officers to be consistent with drug trafficking as a result of their training and experience, and, most importantly, the defendant’s unprovoked headlong flight from the officers into oncoming traffic, gave rise to reasonable suspicion for an investigatory detention. The detention and pat down for safety reasons following the Defendant’s fall was reasonable to protect the officers and members of the public. The Defendant held his hand under his body near his waistband as in a manner recognized by the officers as consistent with the behavior of one carrying a weapon.

Therefore, we find no error in the trial court ruling denying the Defendant’s motion to suppress.

ERROR PATENT DISCUSSION

The defendant has requested an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920 regardless of whether a defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). Our review reveals one error requiring corrective action by this Court.

We note from the sentencing transcript that the trial judge did not inform the Defendant that he had two years after his judgment of conviction and sentence became final to seek post-conviction relief. La.C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. Therefore, we remand the case to the trial court and order the court to inform the Defendant of the appropriate prescriptive period for filing for post-conviction relief by sending appropriate |inwritten notice to the Defendant within ten days of the rendition of this Court’s opinion and by filing written proof in the record that the Defendant received the notice. State v. Hutchinson, 02-60, p. 10 (La.App. 5th Cir.5/15/02), 817 So.2d 500, 509.

Accordingly, for the foregoing reasons, we affirm the Defendant’s guilty plea convictions for possession of a firearm by a convicted felon and possession of marijuana and his respective sentences to ten year without benefit of parole, probation or suspension of sentence and five years with the Department of Corrections, to be served concurrently, with credit given for time served. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate written notice, under La.C.Cr.P. art. 930.8, of the prescriptive period for post conviction relief.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED; CASE REMANDED.

WICKER, J., Dissents.

WICKER, J.,

dissents.

|J respectfully dissent from the majority and, for the following reasons, would reverse the trial court’s denial of defendant’s motion to suppress evidence.

In my view, the actions of the police officers in this case constituted an investigatory stop, and the State’s reliance on State v. Lewis, 00-3136 (La.4/26/02), 815 So.2d 818, cert. denied, 537 U.S. 922, 123 S.Ct. 312 154 L.Ed.2d 211 (2002) is misplaced. Further, I believe the majority opinion extends the law beyond the holding in Lewis to permit an unconstitutional stop of this defendant.

Defendant herein was, in fact, seized within the meaning of the Fourth Amendment when Officer Jones told defendant to come to him. The officers in this case did not simply step into defendant’s path and begin asking for basic information, as did the officers in Lewis. Rather, Green and Jones exhibited a show of official authority by ordering the defendant to move to one of the police vehicles, conveying that compliance with their request was mandatory and that defendant was not free to leave.

When first observed, defendant was riding his bicycle on a public street that was not part of the subdivision the officers were assigned to ^monitor. Officers testified that defendant was not violating any statutes when observed. The only justification given by officers for the stop was the simple fact that defendant looked back while riding his bicycle toward the officers. Any responsible cyclist looks behind him periodically while riding on a public street in order to check for passing vehicles and other hazards. Not to do so would be to risk serious injury. Unlike the defendant in Lewis, defendant in this case did not act nervous or change the manner of his approach in order to avoid the officers.

The officers’ testimony does not show they had a particularized or objective basis for suspecting defendant had committed or was about to commit a crime. Since, as the officers conceded, defendant was not trespassing, the initial stop was based on an un-particularized hunch that defendant was involved in narcotics activity because he was riding a bicycle, and he was coming from the direction of Lincolnshire, a known high crime area. An un-particular-ized hunch based on the officer’s subjective beliefs or attitudes instead of a completely objective evaluation of the circumstances is insufficient to establish reasonable grounds to stop an individual. State v. Barney, 97-777 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207.

Because the officers did not have reasonable suspicion to stop defendant, he was free to turn his bicycle around and ride away from them. Any evidence seized from defendant was the fruit of an illegal stop, and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441 (1963); State v. Stanfield, 05-839 (La.App. 5 Cir. 3/14/06), 925 So.2d 710, 717. I would hold that the trial court erred in denying defendant’s motion to suppress evidence.

      . The Defendant had previously been convicted of possession with intent to distribute cocaine, a violation La. R.S. 40:967(A).


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Shellie ROLSTON v. UNITED SERVICES AUTOMOBILE ASSOCIATION, State Farm Mutual Automobile Insurance Company, State Farm Fire and Casualty Insurance Company, City of New Orleans and Sheila Lowery Shellie Rolston v. United Services Automobile Association, State Farm Mutual Automobile Insurance Company, State Farm Fire and Casualty Insurance Company, City of New Orleans and Sheila Lowery.
    Nos. 2006-CA-0978, 2006-CA-0414.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.

      Darla L. D’Amico, Frank J. D’Amico, Sr., Frank J. D’Amico, Sr., APLC, Slidell, LA, for Plaintiff/Appellee.
    C. Gordon Johnson, Jr., Nicholas C. Gristina, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Appellant, State Farm Fire and Casualty Insurance.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III and Judge MICHAEL E. KIRBY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|! This is a consolidated appeal and writ application in which the defendant, State Farm Fire and Casualty Company (State Farm) seeks review of the trial court’s judgment of March 15, 2006 granting the plaintiffs motion for a declaratory judgment or, alternatively, for summary judgment. For the reasons that follow, we affirm the judgment of the trial court.

This litigation arises out of a motor vehicle accident that occurred on August 1, 1999 involving a vehicle operated by the defendant, Sheila Lowery, and a vehicle operated by William Rolston. Shellie Rol-ston, the plaintiff herein, was a guest passenger in the Rolston vehicle and claims to have sustained damages in the accident.

It is undisputed that State Farm issued a Personal Liability Umbrella Policy (PLUP) to its named insured, Dr. William Rolston, that was in full force and effect Lon the date of the accident. It is also undisputed that the plaintiff, Shellie Rol-ston, was William Rolston’s wife at all times pertinent to this litigation.

It is also undisputed that the State Farm policy in question contained the following exclusion:

We will not provide insurance:
* * ⅜
10. for personal injury to the named insured, spouse, or anyone within the meaning of part a. or b. of the definition of insured.

“Insured” is defined in the policy, parts 5(a) and 5(b) as follows:

In this policy, “you” and “your” refer to the “insured”, as defined. “We”, “us” and “our” refer to the Company listed in the Declarations. The following definitions are important:
5. “Insured” means:
a., the named insured
b. the following residents of the named insured’s household:
(1) the named insured’s relatives; and
(2) anyone under the age of 21 under the care of a person named above;

State Farm contends that this exclusion precludes Shellie Rolston from maintaining a claim under the PLUP.

State Farm originally sought summary judgment in April of 2001, asserting the exclusion. The trial court denied State Farm’s motion, and this Court denied supervisory writs on October 4, 2001 in 2001-C-1020, finding no error in the trial | ^.court’s ruling. That judgment is now the law of the case, making the parties’ arguments concerning retroactive application of the statute to an umbrella liability policy moot with respect to the case at bar.

State Farm relied on the decision of the Louisiana Court of Appeal, Second Circuit, upholding an identical exclusion in a wrongful death case, Walker v. State Farm, Mut. Auto. Ins., 37,063 (La.App. 2 Cir. 6/25/03), 850 So.2d 882, writ denied, 2003-2019 (La.12/19/03), 861 So.2d 574 and 2003-2117 (La.12/19/03), 861 So.2d 575; writ not considered, 2003-2113 (La.12/19/03), 861 So.2d 575; reconsideration granted, writ denied, 2003-2113 (La.3/12/04), 869 So.2d 804, reconsideration denied, 2003-2117 (La.3/12/04), 869 So.2d 806. In that case, as in the case at bar, the accident occurred prior to the legislature’s enactment of La.R.S. 22:622.2, which provides:

No motor vehicle liability insurance policy nor any uninsured motorist coverage for bodily injury shall limit the coverage of, or the amount that can be recovered by, the named insured, or the spouse or other family member of the named insured, for whom the policy provides coverage, to any amount less than the highest policy limit provided in the policy for the respective coverage or potential recovery. Any recovery is limited to damages actually sustained. Any provision of a motor vehicle insurance policy issued in, or for delivery in, the state of Louisiana that is not in accord with this Section is contrary to the public policy of this state and shall be null, void, and unenforceable.

The plaintiff filed her own Motion for Declaratory Judgment, or, alternatively, for Summary Judgment, seeking a judicial determination that State Farm provided coverage for her alleged damages under the PLUP. On June 17, 2005, the trial court denied that motion. In response to the plaintiffs Motion to | ¿Amend or Clarify Judgment and/or Motion for a New Trial, the trial court by judgment dated March 15, 2006 reversed itself, granting the plaintiffs original Motion for Declaratory Judgment and/or Motion for Summary Judgment. The trial court granted State Farm’s motion to certify the judgment as final and appealable by order dated April 17, 2006.

State Farm contends that the exclusion contained in the PLUP should be given effect as it expresses the common intent of the parties to the insurance contract.

The Louisiana Supreme Court set out the general legal principles that govern interpretation of insurance contracts in Peterson v. Schimek, 98-1712, pp. 4-5 (La.3/2/99), 729 So.2d 1024, 1028-29:

An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. La.Civ.Code art.1983. As such, courts are guided by certain principles of construction and should interpret insurance policies the same way they do other contracts by using the general rules of contract interpretation as set forth in our Civil Code. Ledbetter v. Concord Gen. Corp., 95-0809 (La.1/6/96); 665 So.2d 1166, 1169; Crabtree v. State Farm Ins. Co., 93-0509 (La.2/28/94), 632 So.2d 736. The purpose of liability insurance is to afford the insured protection from damage claims. Insurance contracts, therefore, should be interpreted to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148 (La.1993). The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy. Ledbetter, 665 So.2d at 1169. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the insured and insurer as reflected by the words in the policy. La.Civ.Code art. 2045; Ledbetter, 665 So.2d at 1169. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written and may make no further interpretation in search of the parties’ intent. La.Civ.Code art. 2046; Central La. 5Elec. Co. v. Westing house Elec. Corp., 579 So.2d 981, 985 (La.1991).
Words in an insurance contract are to be given their generally prevailing and ordinary meaning, unless they have acquired a technical meaning. La.Civ. Code art.2047; Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy’s provisions are couched in unambiguous terms. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d at 764. An insurance contract is construed as a whole and each provision in the policy must be interpreted in light of the other provisions so that each is given meaning. One portion of the policy should not be construed separately at the expense of disregarding other provisions. La.Civ.Code art.2050; Central La. Elec. Co., 579 So.2d at 985. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Valentine v. Bonneville Ins. Co., 96-1382 (La.3/17/97), 691 So.2d 665; Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. That is, the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. Ledbetter, 665 So.2d at 1169; Reynolds, 634 So.2d at 1183. If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who furnished the policy’s text and in favor of the insured finding coverage. La.Civ.Code art.2056; Crabtree, 632 So.2d at 741.

On our de novo review of this summary judgment, we are called upon to find whether on the record before us, the plaintiff is entitled to a finding, as a matter of law, that the exclusion contained in the PLUP is invalid and/or unenforceable against State Farm’s insured, Dr. Rolston, applying the foregoing legal principles in the context of the standard for summary judgment. The summary judgment | fiprocedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

In the case at bar, Dr. Rolston claims that he asked his State Farm agent to provide umbrella or excess coverage under the same terms as his underlying insurance. In support of this contention, the plaintiff submitted Dr. Rolston’s sworn affidavit dated March 24, 2001. In that document, Dr. Rolston averred that he was insured under a policy of Automobile Liability Insurance issued by State Farm Automobile Insurance Company with limits of $100,000 per person and $300,000 per accident, and that this policy had been in effect for years before the accident in question. Prior to August 1, 1999, Dr. Rolston told his State Farm agent that he would like to increase the monetary coverage limits, and was advised 17that he would need to purchase a personal liability umbrella policy. Dr. Rolston followed this advice and purchased the PLUP at issue in this case, which policy was in effect on August 1, 1999. Dr. Rolston averred that during the time the underlying policy was in effect, he always believed that claims by any person, including his wife, who might be injured in an accident through his fault would be covered. The copy of the underlying policy attached to Dr. Rolston’s affidavit does not contain a household resident exclusion.

Dr. Rolston averred in his affidavit that when he purchased the PLUP, it was represented to him by the State Farm agent that the umbrella policy was increasing the limits of automobile and uninsured motorist liability and he always believed that this policy would cover claims by any person, including his wife, who might be injured through his fault. According to his affidavit, Dr. Rolston was seeking to provide increased limits of insurance coverage for his family and himself, and was not trying to decrease any policy premium amounts by excluding coverage for injury to himself, his wife and his children. He averred that he was not offered an option to elect a policy without the household resident exclusion. He was not informed that the PLUP contained exclusions not found in his underlying policy, and that these exclusions could leave him without coverage under the PLUP should his wife or children be injured through his fault. Furthermore, he did not sign any written agreements excluding members of his household from either policy. Furthermore, he and his wife were residing in separate households at the time of the accident.

Dr. Rolston’s argument may be characterized as a claim that his consent to the PLUP, an act under private signature, was vitiated by error or mistake, insofar as he believed that since he had requested the same coverage as that provided by the ^underlying insurance policy, but in an increased amount for which he was paying an additional premium, the PLUP would contain the same effective exclusions as those contained in the underlying policy, and no others.

State Farm contends that Dr. Rol-ston’s affidavit is inadmissible parol evidence.

State Farm correctly points out that, as a general rule, extrinsic evidence may not be admitted to negate or vary the contents of a written contract. If the words of the contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Patterson v. City of New Orleans, 96-0367, 96-0843, p. 5 (La.App. 4 Cir. 12/18/96), 686 So.2d 87, 90.

Our initial inquiry is whether the language of the PLUP is ambiguous. We find no ambiguity within the four corners of the document. However, that does not end our inquiry. In the instant case, Dr. Rolston’s affidavit was not offered technically to vary the terms of the contract or to interpret an ambiguous provision. The affidavit was offered to support the insured’s claim of error or mistake in the confection of the PLUP contract and to show that the plaintiff was not resident in Dr. Rolston’s household at the time of the accident. Where there is error, mistake or fraud, parol evidence may be offered to determine the intent of the parties. La. C.C. art. 1848. Furthermore, parol evidence is appropriate, as in the | gSieferman case, where a party raises a factual issue as to the applicability of a contract provision.

The issue of error or mistake having been shown by Dr. Rolston’s affidavit, the burden of proof on the motion for summary judgment shifted to State Farm to offer verified evidence that:

(1) Dr. Rolston was aware that his request for increased monetary coverage on the same terms as that provided by his underlying insurance policy had not been honored in the policy State Farm presented through its agent; and

(2) Dr. Rolston understood that while the monetary limits of the underlying policy were increased by the PLUP, the PLUP contained exclusions that had not been a part of the underlying policy.

In support of its Motion for Summary Judgment filed on December 22, 2000, State Farm provided as exhibits the plaintiffs responses to interrogatories in which she lists her marital status as “separated”, and a certified copy of the PLUP. In support of its Motion for Partial Summary Judgment filed on April 28, 2004, State Farm offered page seven of the plaintiffs deposition testimony in which she testified that she was married to, but separated from, Dr. Rolston. Because the record contains no other evidence to support State Farm’s position as to any of these issues, we cannot say that the trial court erred in granting the plaintiffs motion for summary judgment.

In light of this Court’s denial of State Farm’s writ application putting at issue the trial court’s previous ruling denying State Farm’s Motion for Summary Judgment and retroactively applying La. R.S. 22:622.2, the law of the case principle requires us to conclude that the household resident exclusion in this particular policy violates the statute and is unenforceable. Because of that |inprinciple and the fact that the record is clear and the evidence uncontroverted that error and mistake vitiated Dr. Rolston’s consent to the household resident exclusion, it is not necessary to address the public policy issue and the question raised by State Farm as to the applicability of the statute to a personal umbrella policy.

For the forgoing reasons, we affirm the judgment of the trial court granting the plaintiffs Motion for Summary Judgment as to coverage. We remand for further proceedings consistent with this opinion and with the previous orders rendered in this case.

AFFIRMED.

      . Writ application 2006-C-0414 was consolidated with this appeal by order of this Court dated August 15, 2006.

      . The plaintiff has settled her claims against the defendants, William A. Rolston, III and State Farm Insurance Company and dismissed her suit against those defendants by order dated February 4, 2004. She has settled her claims against the defendants James Q. Perkins, Sheila Lowery and United Services Automobile Association, and dismissed her suit against those defendants with prejudice by judgment dated November 8, 2004. The plaintiff reserved her rights to proceed against State Farm, Mississippi Farm Bureau Casualty Insurance Company, the City of New Orleans and William Rolston.

      . In his Reasons for Judgment, the trial court applied the prohibition of this exclusion provided by La.R.S. 22:622.2 to the PLUP and applied the statute retroactively as being interpretive of existing law and the existing policies of this state regarding insurance coverage.

      . See also Sieferman v. State Farm Mut. Auto Ins., 2000-71, pp. 6-7 (La.App. 3 Cir. 5/3/00), 760 So.2d 549, 553, where plaintiff filed a motion for summary judgment as to coverage under a State Farm policy. Affidavits offered by State Farm were allowed to raise an issue of material fact as to whether or not the death provision of an insurance policy was in force as to the insured at the time of his death. In that case, the appellate court reversed the summary judgment, holding that the affidavits should have been admitted and created a genuine issue of material fact as to whether a provision of the policy had been cancelled.


author: JAMES F. McKAY III, Judge.

text:
    Bobby DAVENPORT v. BEZ, INC., et al.
    No. 2005-CA-1502.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.
    Richard A. Weigand, Weigand & Leven-son, New Orleans, LA, for Plaintiff/Appel-lee.
    Kirk L. Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Appellant, Boston Old Colony Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, JR.).
   JAMES F. McKAY III, Judge.

hThe appellant, Boston Old Colony Insurance Company (Boston Old Colony) seeks a remand of this matter to the trial court for a determination of the amount of money the judgment awards so that judgment can be determined to have been satisfied.

This case involves the coordination of Bobby Davenport’s workers’ compensation benefits with his social security benefits. Bobby Davenport was employed as a welder for Bez, Inc. when he fell from scaffolding during the course and scope of his employment. He was rendered permanently and totally disabled entitling him to receive social security disability benefits. On June 17, 1994, Boston Old Colony was granted judgment in its favor recognizing an entitlement to a social security set off pursuant to La. R.S. 23:1225. On June 16, 2001, Bobby Davenport turned 65 years of age and he ceased receiving Social Security Disability benefits and began to receive Retirement and Old Age benefits from the Social Security Administration. Boston Old Colony, after this date, continued to take the Social Security Reverse Offset. On May 5, 2004, Bobby Davenport filed a | aMotion to Increase Weekly Indemnification Benefits. The trial court ordered Boston Old Colony to cease taking the reverse offset and to pay Bobby Davenport past-due benefits from June 16, 2001, through the date of the hearing on Mr. Davenport’s motion. The trial court entered judgment on May 17, 2005, granting the relief as well as finding Boston Old Colony arbitrary and capricious and granting 12% attorney’s fees to Mr. Davenport.

On July 18, 2005, the appellant contemporaneously filed a Motion to Determine Judgment Amount and a Motion for New Trial and/or Motion for Reconsideration. On July 19, 2005, Boston Old Colony filed a “Designation of Appellate Record”, designating only the trial court’s judgment dated May 17, 2005, as the court record for its devolutive appeal. Mr. Davenport argues that the trial court’s written reasons were not made a part of Boston Old Colony’s designation of appellate record, although they are included in the record before us.

There is no evidence in the record to establish that the trial court ever ruled on these motions. Neither is there any transcript in the record for this Court to examine to determine what transpired below. Attached as exhibit 9 to Mr. Davenport’s appeal brief is a copy of an order signed by the trial court setting a hearing date of September 13, 2005 on the Motion to Determine Judgment Amount and the Motion for New Trial and/or Motion for Reconsideration. Possibly due to Hurricanes Katrina and Rita, this date was not an operable date. However, that cannot be determined from the record before us. On October 31, 2006, this Court issued to appellant a rule to show cause why this appeal should not be dismissed as | ¡¡premature. On November 16, 2006, appellant filed a response to this order, which has failed to demonstrate why this appeal should not be dismissed. Based on the record before this Court a clear determination cannot be made as to whether the trial court acted on the motion for new trial and/or reconsideration.

Accordingly, this appeal is dismissed as premature. See. La.C.C. P. art. 2087(D).

APPEAL DISMISSED.

      . Boston Old Colony's successor is CNA Insurance Company.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Neri LOPEZ.
    No. 2005-KA-0685.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.

      Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Miguel A. Elias, Law Offices of Miguel A. Elias, Kenner, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hThe State of Louisiana appeals the trial court’s judgment granting a motion to quash a bill of information in favor of Neri Lopez. We affirm.

FACTS:

Neri Lopez was stopped by the New Orleans Police Department on September 26, 2004, after the officers observed that the vehicle’s brake lights were not functioning properly. When asked for a driver’s license, Lopez produced only Mexican identification. Because the officers thereafter determined that Lopez was not legally in the United States, he was arrested pursuant to La. R.S. 14:100.13, which mandates that nonresident aliens and alien students may not operate motor vehicles “without documentation demonstrating that the person is lawfully present in the United States.” La. R.S. MfiOO.lSCA).

Lopez asserts that La. R.S. 14:100.13 is preempted by federal regulations because it makes an illegal alien’s presence in the United States a felony in Louisiana, whereas under federal regulations, it is only a civil violation of immigration law. Conversely, the State argues that federal law Ldoes not preempt the statute, and that the legislative purpose of the statute was designed to complement federal authority regulating naturalization and immigration. The State also argues that the criminal conduct in which Lopez was engaged was not simply his presence in the United States, but his operation of a motor vehicle without proper documentation.

PROCEDURAL HISTORY:

The State filed a bill of information charging the appellee under La. R.S. 14:100.13(A). Lopez entered a plea of not guilty and filed a motion to quash the bill of information on the grounds that the offense was not punishable by a valid Louisiana statute. The trial court granted the motion, reasoning that proof of citizenship is not normally part of a routine traffic stop in Louisiana. Although many people operate vehicles without a driver’s license, the court noted that citizenship is presumed by a police officer when the detained individual speaks English, regardless of whether or not the person is, in fact, a citizen. Accordingly, the trial court found that operating a motor vehicle without proof of citizenship, if it were a crime, would be a federal offense that the state of Louisiana does not have authority to regulate.

STANDARD OF REVIEW:

Questions of law, such as an analysis of a statute, are reviewed by this Court de novo. Hand v. City of New Orleans, 2004-0845, p. 3 (La.App. 4 Cir. 12/22/04) 892 So.2d 609, 612. Accordingly, this Court will determine whether the trial court’s ruling was legally correct. Id., citing Delacroix Corp. v. Perez, 1998-2447, p. 4 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865.

| .DISCUSSION:

After the officers stopped Lopez, he produced only Mexican identification papers when asked for a driver’s license and vehicle information, and spoke no English. Shortly thereafter, one of the officers used her cellular phone to contact a border patrol agent and then handed the phone to Lopez so that he could speak with the agent. After the agent and Lopez conversed, the agent advised the officer that Lopez was an illegal alien and should be arrested for operating a motor vehicle while not legally in the United States, pursuant to La. R.S. 14:100.13.

La. R.S. 14:100.13 provides as follows:
A. No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States.
B. Upon arrest of a person for operating a vehicle without lawful presence in the United States, law enforcement officials shall seize the driver’s license and immediately surrender such license to the office of motor vehicles for cancellation and shall immediately notify the INS of the name and location of the person.
C.Whoever commits the crime of driving without lawful presence in the United States shall be fined not more than one thousand dollars, imprisoned for not more than one year, with or without hard labor, or both.

La. R.S. 14:100.13 was enacted by Acts 2002, 1st Ex.Sess, No. 46, § 1. As part of the same act, the legislature enacted La. R.S. 100.11, which set forth the findings of the legislature and the purpose of La. 100.12 et seq.:

A. The legislature finds that the devastating consequences of the barbaric attacks on September 11, 2001 on the World Trade Center and the Pentagon as well as the pervasive bomb threats and biological terrorism in various parts of the country were committed for the purposes of demoralizing and destabilizing our society and creating a climate of fear. These heinous deeds designed to kill, maim, and strike terror into the hearts of innocent citizens of this country cannot be tolerated, nor can | ¿those less violent acts to the infrastructure of our state which are designed to intimidate, confuse, and disrupt everyday commerce and the delivery of goods and services to the populace be permitted.
B. The legislature further finds that it is imperative that state laws be enacted to complement federal efforts to uncover those who seek to use the highways of this state to commit acts of terror and who seek to gain drivers’ licenses or identification cards for the purposes of masking their illegal status in this state. Accordingly, the legislature finds that state law must be strengthened with a comprehensive framework for punishing those who give false information in order to obtain drivers’ licenses or identification cards from the office of motor vehicles of the Department of Public Safety and Corrections, to limit the issuance of such documentation to correspond to the time limits placed by the federal Immigration and Naturalization Service on documentation, and to make operating a motor vehicle in this state when not lawfully present in the United States a crime.

La. R.S. 100.11 (emphasis added).

Although federal law has exclusive jurisdiction to regulate matters of naturalization and immigration pursuant to Article I, Section 8 of the Constitution, federal regulations do not automatically preempt state laws regarding such matters. See, e.g., De Canas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976). Accordingly, states have authority pursuant to their police power “to act with respect to illegal aliens ‘where such action mirrors federal objectives and furthers a legitimate state goal.’ ” American G.I. Forum v. Miller, 218 Cal.App.3d 859, 868, 267 Cal.Rptr. 371 (4 Dist., 1990), quoting Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 2399, 72 L.Ed.2d 786.

After the September 11, 2001 attacks, many states enacted various laws and regulations requiring additional documentation to obtain a driver’s license. Similarly, in 2005, Congress enacted the REAL ID Act, Pub.L. No. 109-13, Div. B, Title II, § 202, 119 Stat 231, to take effect in three years, which imposes various new prerequisites for a driver’s license to qualify for use on an official federal purpose, such as boarding a commercial airline. | ¡^Individual states are not required to implement the Act; however, other forms of identification (such as a passport) would be required to engage in federal activities.

The post-September 11, 2001 legislation has been the subject of litigation in several states. For example, in League of United Latin American Citizens (LULAC) v. Bredesen, unpub., 2004 WL -3048724 (M.D.Tenn.2004), an organization of Latin American citizens brought an action to enjoin enforcement of the newly-enacted Tennessee statute, which provided that driver’s licenses could only be issued to United States citizens or lawful permanent residents. The legislation further provided that persons authorized under federal law to be present in the country for a specific purpose and a specific period of time could obtain a “certificate for driving” which would be valid for only a limited period from one to five years. Id. at *1. The court determined that LULAC had standing to bring the action, but that the plaintiffs were not a “suspect class.” Id. at *4. Next, the court addressed the plaintiffs’ argument that the driver’s license legislation was preempted by the federal government’s exclusive right to regulate immigration. Id. Citing De Canas, supra, and Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), the court found that preemption did not apply because the driver’s license legislation mirrored federal objectives and was not an attempt to regulate immigration; rather, the legislation “merely relie[d] on federal immigration standards in determining whether a person is eligible for a drivers’ license or a driver’s certificate.” Id. at *7. Accordingly, the court held that “Plaintiffs have not shown that the legislation conflicts with any existing federal law.” Id.

The state of Louisiana is vested with the authority to regulate public roads and highways within the state under its police power, provided that the | ¡¡legislation does not “prove repugnant to the provisions of the state or national constitutions.” Kaltenbach v. Breaux, 690 F.Supp. 1551, 1553 (W.D.La.1988). Other states’ heightened requirements for aliens to qualify to obtain a driver’s license have been upheld pursuant to this rule. No federal requirement exists, however, that requires persons who are legally present in the United States to at all times carry documentation of proof of citizenship. Unlike other states’ restrictions regarding the issuance of driver’s licenses, La. R.S. 14:100.13 makes the operation of a motor vehicle while illegally present in the United States a crime. While on its face this does not appear to run afoul of any particular federal legislation, implicit in the REAL ID act is the federal recognition that states can legally issue driver’s licenses without a person being in a position to establish his legal presence in the United States.

Furthermore, the bill of information in this case specifically charged Lopez under paragraph (A), operating a motor vehicle without documentation demonstrating lawful presence. Lopez was not charged with being in the country illegally and operating a motor vehicle, which is the language found in paragraph (C) of the statute. The ultimate problem presented by La. R.S. 14:100.13, however, is that paragraph (A) places a burden on both legal and nonlegal aliens which exceeds any standard contemplated by federal immigration law. Accordingly, we agree that La. R.S. 14:100.13 is preempted by federal regulations.

CONCLUSION:

For the reasons stated above, we affirm the trial court’s judgment to quash the bill of information.

AFFIRMED.

ARMSTRONG, C.J., concurs.

      . Persons who do so "shall be fined not more than one thousand dollars, imprisoned for not more than one year, with or without hard labor, or both.” La. R.S. 14:100.13(C).


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Lewis GOODWIN.
    No. 06-KA-439.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Kenneth P. Bordelon, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Laura M. Pavy, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

| STATEMENT of the case

This is defendant’s second appeal. In his first appeal, this Court conditionally affirmed defendant’s conviction and sentence for distribution of cocaine, a violation of LSA-R.S. 40:967, and remanded the matter for an evidentiary hearing to determine whether defendant knowingly and intelligently waived his right to a jury trial. State v. Goodwin, 05-51 (La.App. 5 Cir. 6/28/05), 908 So.2d 56. In remanding the matter, this Court noted in an error patent review that the record did not reflect defendant was properly advised of his right to a jury trial or that he knowingly and willingly waived his right before proceeding to a bench trial.

On remand, the trial court held a hearing and affirmatively concluded defendant knowingly and intelligently waived his right to a jury. Defendant appeals this ruling in his second appeal. The facts of this case were set forth in this Court’s opinion on defendant’s first appeal, State v. Goodwin, supra. Because the facts of the offense are not at issue in this appeal, we will not include them herein.

I ¡ASSIGNMENT OF ERROR NUMBER ONE

Defendant first asserts that the trial court erred in permitting appellant to proceed to trial before the judge alone without first obtaining a knowing and intelligent waiver of the right to trial by jury.

Defendant argues the trial court erred in determining he knowingly and intelligently waived his right to a jury trial. He admits the trial judge advised him of his right to a jury trial but contends he was unaware the jury consisted of twelve persons, ten of whom must concur. Defendant maintains a trial judge should conduct more than a perfunctory de minimums exchange in determining whether a defendant is knowingly and intelligently waiving his right to a jury trial. He asserts the waiver of a jury trial should be akin to a waiver of counsel where inquiry is made and consideration is given to the defendant’s background, education, and experience.

A defendant in a non-capital case may waive his right to a jury trial provided he knowingly and intelligently does so. LSA-C.Cr.P. art. 780(A). The waiver must be express and is never presumed. State v. Ruffin, 02-798 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 633, writ denied, 03-3473 (La.12/10/04), 888 So.2d 831. Although it is preferred for the trial judge to advise the defendant personally on the record of his right to a jury trial and have the defendant waive the right personally on the record, the Louisiana Supreme Court has refused to mandate this method as an absolute rule. Id., citing State v. Kahey, 436 So.2d 475, 486 (La.1983).

While the trial judge must determine the defendant’s jury trial waiver is knowing and intelligent, that determination does not require. a Boykin-like 1¿colloquy. State v. Ruffin, supra at 634. A trial judge is not obligated to conduct a personal colloquy inquiring into the defendant’s educational background, literacy, and work history. State v. Allen, 05-1622 (La.App. 1 Cir. 3/29/06), 934 So.2d 146, 154. Additionally, nothing in the statutes or the jurisprudence requires the trial judge to inform a defendant of the details involving the number of jurors and the votes necessary for a conviction. State v. Ruffin, supra.

At the evidentiary hearing regarding defendant’s waiver of his right to a jury trial, the State introduced an excerpt of the trial transcript showing the colloquy between the trial judge and defendant before the matter proceeded to a bench trial. The transcript shows the trial judge advised defendant he had a Constitutional right to a trial by jury. Defendant specifically stated he understood his right and that he wanted to waive that right. The trial judge asked defendant if he had any questions about what he was doing to which defendant replied, “[fjrom what I understand, the jury portion I’m turning over into your hands.” In response, the trial judge explained that defendant “was allowing the judge to make the determination of guilt or innocence.”

The trial judge then inquired into defendant’s educational background and learned defendant was a high school graduate, had the sixth highest SAT score in California upon graduation, completed two years of college, and served in the military. Defendant stated he was not under the influence of any medication or narcotic drugs. He further stated his attorney had been very helpful and had explained everything, commenting that his attorney had “[gone] out of his way to explain” things.

At the hearing on remand, defendant argued he was not fully aware of the potential danger of having a judge trial. He stated he was not aware of the | ¡¡advantage of a jury trial; specifically, that ten people would have had to agree to convict him had he proceeded to a jury trial. Defendant acknowledged he had read the trial transcript where he waived his right to a jury trial and admitted he had understood his right at the time. However, he stated that upon reflection and consideration, he did not believe he was fully advised of the right.

Based on the excerpt of the trial transcript, the trial judge found defendant had validly waived his right to a jury trial. The trial judge explained defendant was informed of his right to a jury trial and had discussed the ramifications of waiving that right with his attorney.

Similar colloquies have been held to be sufficient for a valid jury trial waiver. In State v. Ruffin, 02-798 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 633, writ denied, 03-3473 (La.12/10/04), 888 So.2d 831, this Court found the defendant knowingly and intelligently waived his right to a jury trial despite the defendant’s claim he was unaware his punishment was necessarily confinement at hard labor and that a jury of twelve, ten of who must concur, determined the verdict. This Court noted defense counsel advised the trial judge that the defendant wished to waive his right to a jury trial, that the trial judge asked the defendant on the record whether he wished to waive his right to a jury trial, whether his attorney had explained his right, whether he understood his right, and whether he was choosing to proceed with a judge trial, to all of which the defendant affirmatively replied.

Also, in State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866, this Court found a valid jury trial waiver where the trial judge personally advised the defendant on the record of his right to a jury trial and the defendant stated he wished to waive his right to a jury trial. This Court noted the transcript revealed the defendant was aware and able to make appropriate answers to his attorney’s questions and that the ^defendant had previous experience as an accused in two criminal proceedings. This Court concluded these factors showed the defendant understood the proceedings and knowingly and intelligently waived his right to a jury trial.

In the present case, the record clearly shows defendant’s jury trial waiver was knowing and intelligent. On the record, the trial judge advised defendant of his right to a trial by jury, defendant stated he understood his right, that his attorney had fully explained matters to him, and that he wished to waive his right to a jury trial. In addition, the transcript reveals defendant was well-educated and was not under the influence of any drugs at the time of his waiver. These factors show defendant knowingly and intelligently waived his right to a trial by jury.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, defendant requests an error patent review but did not brief it. In general, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and, State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request.

However, defendant received an errors patent review upon his original appeal. Minor errors were found and addressed in this Court’s opinion. State v. Goodwin, 05-51 (La.App. 5 Cir. 6/28/05), 908 So.2d 56, 59-60. Therefore, defendant is not entitled to a second errors patent review. See, State v. Taylor, 01-452 (La.App. 5 Cir. 11/14/01), 802 So.2d 779, 783, writ denied, 01-3326 (La.1/10/03), 834 So.2d 426.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    STATE of Louisiana v. Anthony DARENSBOURG.
    No. 06-KA-572.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton .Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

1 STATEMENT OF THE CASE

This is defendant’s second appeal. In his first appeal, defendant’s conviction for distribution of cocaine was affirmed. His 20-year sentence was vacated and the matter was remanded for resentencing after this Court noted an error patent; specifically, that defendant’s entire sentence was imposed without the benefit of parole, probation, or suspension of sentence in violation of the statute, LSA-R.S. 40:967(B)(4)(b), which requires only the first two years of the sentence be without benefits. State v. Darensbourg, 03-1468 (La.App. 5 Cir. 3/30/04), 871 So.2d 533, 536. On remand, the trial court resen-tenced defendant to 20 years with the first two years being without the benefit of parole, probation, or suspension of sentence.

At the time of his first appeal, a multiple bill of information alleging defendant to be a fourth felony offender was pending. A multiple bill hearing was subsequently held on May 27, 2004, approximately two weeks after defendant was resentenced on remand. At the conclusion of the hearing, the trial court found defendant to be a third felony offender and imposed an enhanced sentence of 24 years at hard labor without the benefit of probation or suspension of sentence. Defendant was granted an out-of-time appeal and, in his second appeal, he challenges his adjudication as a third felony offender.

| ¡¡The facts of the underlying conviction are not relevant to this second appeal pertaining to defendant’s adjudication as a multiple offender and are set forth in State v. Darensbourg, OS-1468 (La.App. 5 Cir. 3/30/04), 871 So.2d 533, 535.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the State’s pursuit of the multiple bill, alleging him to be a fourth felony offender, was vindictive prosecution resulting from his successful appeal on the underlying conviction wherein his sentence was vacated. He points out that the multiple bill hearing was not heard until nineteen months after he was sentenced on the underlying charge and after months of inactivity. Defendant asserts the State’s actions create a presumption of vindictiveness and contends the matter must be remanded for the State to prove, by a preponderance of the evidence, that its actions were not retaliatory for his first appeal. The State responds that defendant is precluded from raising this issue on appeal because it is being raised for the first time on appeal.

Generally, a new issue, that has not been submitted to the trial court for a decision, cannot be raised for the first time on appeal. State v. Shank, 05-421 (La.App. 5 Cir. 2/14/06), 924 So.2d 316, 326. Defendant never raised the issue of prose-cutorial vindictiveness at the trial court level. Although he filed a motion to quash the multiple bill, his objection was based on the validity of the predicate offenses and not prosecutorial vindictiveness. Thus, this issue is technically not properly before this Court. However, in State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1066, writ denied, 02-0481 (La.3/14/03), 839 So.2d 26, this Court addressed the merits of a claim of prosecuto-rial vindictiveness despite the defendant’s failure to raise the issue at the trial court level. Thus, we will address the merits of this claim on appeal.

|4The defendant bears the burden of proving prosecutorial vindictiveness. In determining whether there has been pros-ecutorial vindictiveness, the court examines the State’s actions in the context of the entire proceeding. If, to a reasonable mind, the filing of the habitual offender bill can only be explained by a desire to deter ■or punish the defendant’s exercise of legal rights, the events in the case will create a presumption of vindictiveness. State v. Heard, 36,191 (La.App. 2 Cir. 7/17/02), 823 So.2d 454, 457.

Defendant claims prosecutorial vindictiveness based on the State’s prosecution of him as a multiple offender after his appeal on the underlying conviction. Defendant maintains the State pursued the multiple bill to punish him after exercising his right to appeal.

Defendant filed his motion for appeal on August 27, 2003, which was after his conviction but before sentencing. He was subsequently sentenced on the underlying conviction on October 8, 2003. On the same day, the State filed a multiple bill of information alleging defendant to be a fourth felony offender. Defendant denied the allegations and the matter was set for hearing. The record shows the multiple bill hearing was set and continued, for various reasons including the trial judge’s two family emergencies, on five separate dates before being heard on May 27, 2004. In the interim, defendant’s appeal from the underlying conviction was lodged and the opinion was rendered. Thus, at the time of his first appeal, defendant had been charged as a multiple offender, but the multiple offender hearing was still pending.

The district attorney has the discretionary power to charge a defendant under the habitual offender law just as he has the initial unlimited power to prosecute “whom, when, and how” he chooses. State v. Dorthey, 623 So.2d 1276, 1279 (La.1993); LSA.-C.Cr.P. art. 61. The district attorney’s use of the habitual ^offender laws “provides an ancillary sentencing factor designed to serve important and legitimate societal purposes.” State v. Orange, 02-711 (La.App. 1 Cir. 4/11/03), 845 So.2d 570, 578, writs denied, 03-1352 (La.5/21/04), 874 So.2d 161, and 03-2195 (La.7/2/04), 877 So.2d 137. The use of the habitual offender law alone does not create a presumption of prosecutorial vindictiveness. Id.

There is no evidence the State’s pursuit of the multiple bill against defendant was vindictive. The record shows the State timely filed the multiple bill immediately upon sentencing on the underlying conviction. The multiple bill was set for hearing several times while the appeal from the underlying conviction was pending. Nothing in the record suggests the prosecution of the multiple bill was intended to punish defendant for what defendant characterizes as his “successful” appeal. The mere fact the multiple bill hearing was not held until after the ruling on defendant’s original appeal- appears merely coincidental. Based on the circumstances, the delay in prosecution was not unreasonable and does not indicate prosecutorial vindictiveness.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant next argues the trial court erred by adjudicating him an habitual offender because the record is not clear regarding which charges the State pursued, and those which the trial court found, to support the third felony habitual offender adjudication. Defendant argues the trial court erred because he was unaware on which predicate offenses the State proceeded. He asserts the State pursued him as a third felony offender despite the allegations in the multiple bill that he was a fourth felony offender. He claims the State nonetheless presented evidence of all three predicate offenses as alleged in the multiple bill. Defendant claims that while the trial court adjudicated him a third felony offender, it failed to articulate which of the predicate offenses supported its adjudication.

|fiAt the beginning of the multiple bill hearing, the State advised it filed a multiple bill alleging defendant to be a fourth felony offender but that.it was “going forward with this as a triple bill.” The State advised defense counsel that the fingerprints on one arrest card did not match up with one of the listed offenses and, thus, it was now alleging defendant had two prior felony convictions. Defense counsel advised the trial court that it was just learning of the change and asked that the State inform him which predicate offense had been dropped. Thereafter, an off record bench conference was held. When the parties returned from the off record bench conference, the State immediately called its first witness and presented its case without any objection.

Again, defendant is attempting to raise an issue that was not raised at the trial court. A new issue that has not been submitted to the trial court for a decision cannot be raised for the first time on appeal. State v. Shank, 05-421 (La.App. 5 Cir. 2/14/06), 924 So.2d 316, 326. Defendant proceeded with the multiple bill hearing without any objection to the State’s declared intent to prosecute him as a third felony offender as opposed to a fourth felony offender. An off record bench conference was held immediately after the State’s declared intent and the hearing proceeded with no objection. Therefore, we find this matter is not properly before this Court and we will not address the merits of this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues the trial court erred by adjudicating him an habitual offender because the State’s proof is insufficient to support the charge that he is a third felony offender. He contends his predicate convictions were based on invalid guilty pleas and maintains the State failed to prove the constitutionality of his predicate pleas. He asserts the State failed to submit transcripts of the predicate plea colloquies and argues the minute entries and plea forms from his predicate 17pleas were inadequate to show he knowingly and intelligently waived his rights when entering the guilty pleas. He also alleges the State failed to prove his identity in the predicate offenses.

To prove defendant is a habitual offender, the State must initially prove the prior felony convictions and that defendant is the same person who was convicted of the prior felonies. State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 455, writ denied, 05-1715 (La.2/10/06), 924 So.2d 161. The latter can be established by expert testimony matching the accused’s fingerprints with those in the record from the prior proceedings. Id, When the State relies on a prior conviction that is based on a guilty plea and defendant denies the allegations in the multiple bill of information, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel (or constitutionally waived counsel) at the time he entered his plea. State v. Zachary, 01-3191 (La.10/25/02), 829 So.2d 405, 407, and State v. Shelton, 621 So.2d 769, 779-780 (La.1993).

After the State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. State v. Shelton, supra at 779. If the defendant is able to meet his burden, the burden shifts back to the State to prove the constitutionality of the plea, or that the plea was knowing and voluntary. Id. The State will meet its burden by producing a “perfect” transcript, which contains a colloquy of the guilty plea wherein the defendant was informed of and waived his Boykin rights. If the State produces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must then weigh the evidence to determine whether the State has met its Isburden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. State v. Shelton, supra at 780.

Deféndant first argues the State failed to prove his identity with respect to two of the predicate pleas: the 1996 distribution of cocaine conviction, and the 2000 theft conviction. At the multiple bill hearing, the State offered certified court documents pertaining to the 1996 conviction, and the 2000 conviction. Exhibit S-4 contained a bill of information with fingerprints, a waiver of constitutional rights plea of guilty form executed by defendant, his attorney, and the trial judge, a minute entry showing defendant pled guilty, and an arrest card containing fingerprints. Exhibit S-3 contained a bill of information without fingerprints, a waiver of rights form executed by defendant, his attorney, and the trial judge, a minute entry showing defendant pled guilty after being advised of his rights, and an arrest card containing fingerprints. To prove identity, the State offered the testimony of Lieutenant Patricia Adams, a fingerprint expert, who linked the fingerprints contained in Exhibits S-3 and S-4 to defendant.

Defendant challenges his identity in both the 1996 and 2000 convictions because the State used fingerprints from an arrest card as opposed to fingerprints on the bill of information. This Court has held that testimony comparing a defendant’s current fingerprints with those found on prior arrest records is sufficient to prove that the defendant was the person convicted of a prior felony. State v. Baker, 00-1050 (La.App. 5 Cir 11/15/00), 776 So.2d 1212, 1217, writ denied, 01-0044 (La.11/16/01), 802 So.2d 621. In State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1074, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233, defendant argued the State failed to prove his identity in predicate conviction because there were no fingerprints on the bill of information. This laCourt upheld defendant’s adjudication as a multiple offender finding that the arrest register, containing fingerprints matched to the defendant by expert testimony, was connected to the bill of information by the charged offense, the name of the defendant, his date of birth, and Social Security number.

Like Guillará, the bill of information from the 2000 conviction did not contain fingerprints. However, an arrest card with fingerprints was included in Exhibit S-3. The arrest card was clearly connected to the bill of information. Both the arrest card and bill of information had the same date, the same charged offense, the name of the defendant, and his date of birth. Thus, the State adequately proved defendant’s identity in the 2000 conviction through use of a fingerprint expert linking the fingerprints on the arrest card in Exhibit S-3 to defendant.

The identity of defendant in the 1996 conviction is questionable. Although Lieutenant Adams linked defendant to the fingerprints on the arrest card in Exhibit S-4, the arrest card and the bill of information do not match exactly. The bill of information in the 1996 conviction charges defendant with distribution of cocaine in violation of LSA-R.S. 40:967(A). The arrest register lists the charge against defendant as possession of cocaine, a violation of LSA-R.S. 40:976(C). Also, the bill of information is dated April 16, 1996 with the offense allegedly occurring April 19, 1996, of which one date is clearly a clerical error. However, the arrest register is dated an entirely different date of April 27, 1995. Defendant’s date of birth matches on both the bill of information and the arrest register. Of note, although the bill of information in Exhibit S-4 contains fingerprints, Lieutenant Adams did not rely on those fingerprints to link defendant to the conviction but rather relied on the fingerprints in the attached arrest register.

Whether the State proved defendant’s identity in the 1996 conviction has no effect on defendant’s adjudication as a third felony offender because the State 11 presented evidence of three predicate offenses during the hearing. Thus, even if the 1996 conviction was not properly linked to defendant, the remaining evidence, namely the 1994 and 2000 convictions, supports defendant’s adjudication as a third felony offender.

Defendant also challenges the 1994 conviction, but bases his challenge on the validity of the predicate guilty plea and not identity. Defendant denied the allegations of the multiple offender bill of information and objected, in writing, to the validity of the predicate guilty pleas. Thus, under Shelton, the State was required to prove the existence of a counseled guilty plea.

At the multiple bill hearing, the State introduced a certified copy of court records for a 1994 possession of cocaine conviction, in addition to the above-mentioned records for the 1996 and 2000 convictions. Exhibit S-2 contained the bill of information with fingerprints, a waiver of constitutional rights plea of guilty form executed by defendant, his attorney, and the trial judge, and a minute entry showing defendant pled guilty after being advised of his rights. The records in all three convictions show defendant was represented by counsel at the time he entered his guilty pleas. The State proved the identity of defendant in the predicate pleas, through the testimony of Patricia Adams, a fingerprint expert, who linked the fingerprints contained in Exhibit S-2, S-3, and S-4 to defendant.

Once the State proved the existence of the prior counseled guilty pleas, the burden shifted to defendant to prove an infringement on his rights or an irregularity in the taking of the pleas in the predicate convictions. At the multiple bill hearing, defendant challenged the 1994 possession of cocaine conviction by arguing the waiver of rights form was insufficient to show a valid waiver of rights because the rights were merely checked off as opposed to being signed or initialed by defendant. There has never been a requirement that defendant initial each line on |nwhich his rights are set forth in a plea form. See, State v. Robair, 622 So.2d 829, 831 (La.App. 4 Cir.1993).

In State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 457, writ denied, 05-1715 (La.2/10/06), 924 So.2d 161, the defendant made a similar argument in challenging the validity of a predicate plea. The defendant complained there were no initials next to the rights being waived. This Court found that even though the defendant did not initial each right he was waiving, he signed the form acknowledging he was waiving the rights. This Court determined the defendant failed to meet his burden to present affirmative evidence of an infringement on his rights or of a procedural irregularity.

Likewise, defendant in this case signed the waiver of rights form indicating he understood his rights and that he was waiving them. Additionally, the minute entry reflects the trial court advised defendant of his rights and that defendant waived his rights. Thus, defendant did not meet his burden of proving an infringement on his rights or an irregularity in the 1994 plea.

In summary, we find the State proved the existence of prior counseled guilty pleas in the 1994, 1996, and 2000 convictions. We also find the State proved defendant’s identity in the 1994 and 2000 convictions. Defendant’s identity in the 1996 conviction is questionable. The burden then shifted to defendant to prove an infringement on his rights or an irregularity in the predicate pleas. Defendant failed to offer any affirmative evidence of an infringement on his rights or an irregularity in the 1994 or 2000 pleas. Thus, we find the trial court did not err in adjudicating defendant a third felony offender.

ERROR PATENT DISCUSSION

This Court performed an errors patent review of the original record in this case at the time of defendant’s first appeal. He is now only entitled to an errors | ^patent review of the habitual offender proceedings. See, State v. Yrle, 05-202 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200.

We note one error patent in this case. We find the trial court failed to properly inform defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. The trial court advised defendant he had “two years from the date this conviction becomes final to seek post conviction relief.” This Court has held that the failure to advise defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Hensley, 04-617 (La.App. 5 Cir. 3/1/05), 900 So.2d 1, 13, writ denied, 05-0823 (La.6/17/05), 904 So.2d 683; Further, defendant was incompletely advised of the prescriptive period after his original sentencing, and according to the multiple bill transcript, he was not re-advised when sentenced as a multiple offender.

Therefore, we remand this matter and order the trial court to properly inform defendant of the time from which prescription for post-conviction relief runs by sending written notice of such to defendant within ten days of the rendition of the appellate opinion and to file written proof that defendant received the notice in the record.

Accordingly, defendant’s adjudication and sentence as a third felony offender is affirmed and this matter is remanded for correction of an error patent.

AFFIRMED; REMANDED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: DALEY, Judge.

text:
    KENNETH AND ALLICEN CALUDA REALTY TRUST v. FIFTH BUSINESS L.L.C.
    No. 06-CA-608.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.
    Kelly M. Rabalais, Michael L. Fantaci, LeBlane Butler, L.L.C., Metairie, LA, for Plaintiff/Appellee.
    Roderick Christopher Patrick, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   DALEY, Judge.

|2The defendant has appealed the trial court judgment in favor of plaintiff in this possessory action. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.

FACTS:

On May 8, 2006, the plaintiff, the Kenneth and Allicen Caluda Realty Trust, (hereinafter the Trust) filed a Petition for Possession against Fifth Business, LLC (hereinafter Fifth Business). This petition stated that the Trust entered into a lease with Fifth Business on January 1, 2002 and that pursuant to the lease members of the LLC, Lisa Tanet, and Rogerick Patrick were required to execute a personal surety. The petition alleged that more than 20 days had elapsed since the Trust put the members of Fifth Business on notice of the failure of its members to sign a personal surety and there had been no attempt to cure this default. The petition further alleged that a notice of cancellation and notice to vacate was- hand delivered to Mr. Patrick, registered agent for the LLC and attached to the leased premises. | aThis petition requested to proceed by summary process and asked defendants to show cause why they should not be made to vacate the premises and for an eviction if defendants failed to vacate the premises. A hearing on the petition for possession was held on May 30, 2006. On that same day, Fifth Business filed a Declinatory Exception of Insufficiency of Service alleging that Fifth Business had not been served with any pleadings filed in this case. At the hearing, the attorney for Fifth Business argued that it had not been properly served with any of the pleadings filed in this matter. The attorney for the Trust pointed out that a provision in the lease allows the lessor to proceed without legal process when the lease has been terminated. The trial judge found that the lease “controlled” and granted the Trust’s Petition for Possession. This devolutive appeal followed.

LAW AND DISCUSSION:

On appeal, Fifth Business raises several Assignments of Error. However, our review of this matter indicates the trial court erred as a matter of law by granting an eviction without taking any evidence, without the introduction of any exhibits, or without placing any witnesses under oath.

When a lessor finds that a lessee’s right of occupancy has ceased because of an action or inaction of the lessee, the lessor may file an eviction proceeding. C.C.P. art. 4701. When a lessee has waived its right to notice to vacate the premises, the lessor may institute eviction proceedings. C.C.P. art. 4701. In the eviction proceeding, the lessor may rule the lessee into court wherein the lessee must show cause why he should not be ordered to deliver possession of the premises to the lessor. C.C.P. art. 4731. If the trial court finds the lessor is entitled to possession of the premises, a judgment of eviction ordering the lessee to deliver |4possession of the premises to the lessor shall be rendered by the court. C.C.P. 4732.

The transcript of the hearing on the plaintiffs Petition for Possession is void of any evidence that plaintiff owns the premises, that defendant was the lessee of the premises, that a lease existed between the parties, or of any action or inaction by defendant that constituted breach of the lease agreement. A judgment of eviction must be reversed when the lessor fails to prove the legal ground upon which the lessee should be evicted. Edwards v. Edwards, 439 So.2d 478 (La.App. 1 Cir.1983); PTS Physical Therapy Service v. Magnolia Rehabilitation Service, Inc. 40,558 (La.App. 2 Cir. 1/27/06), 920 So.2d 997.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court ordering Fifth Business to vacate the premises and deliver possession of the property to the Trust is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED; MATTER REMANDED.