author: EZELL, Judge.

text:
    STATE of Louisiana v. H.B.
    No. KA 2006-1436.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      Michael Harson, District Attorney, 15th Judicial District Court, Frederick L. Welter, Assistant District Attorney, Lafayette, LA, for Appellee: State of Louisiana.
    Mark Owen Foster, Foster & Foster, Natchitoches, LA, for Defendanf/Appel-lant: H.B.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

hOn April 19, 2005, the Acadia Parish Grand Jury indicted Defendant, H.B., with one count of forcible rape, in violation of La.R.S. 14:42.1, and two counts of aggravated rape, in violation of La.R.S. 14:42, for acts occurring from 1992 through 2002. On May 8, 2006, the State amended all charges to second degree sexual battery, in violation of La.R.S. 14:43.2. In exchange, Defendant pled guilty to all three amended charges.

After conducting a sentencing hearing on August 7, 2006, the trial court sentenced Defendant to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence for each offense. The trial court ordered the sentences to run consecutively. In response, Defendant filed a motion to reconsider sentence with the trial court. In his motion, Defendant argued that the sentence imposed was excessive and that the trial court failed to properly consider Defendant’s age and his poor health as mitigating factors. The trial court denied Defendant’s motion without hearing on September 1, 2006. Defendant now appeals, alleging that his sentences are unconstitutionally excessive.

STATEMENT OF FACTS

The Defendant began his molestation of the first victim, A.G., when she was twelve years old, which ended when it was reported in 2002. A.G. was fourteen when the crime was reported. Beginning in 1992, S.G., was approximately three years old when she was first molested by H.B. The molestation continued until the crime was reported, at which time S.G. was twelve years old. With regard to MGB, she was first molested as early as 1996, at the age of six, and the molestation continued until 12she was eleven and the crimes were reported in 2002. All of the molestation acts on A.G., S.G., and M.B.G. occurred in Acadia Parish.

The trial court failed to deny Defendant eligibility for diminution of sentence. Thus, the Defendant received an illegally lenient sentence. Louisiana Revised Statute 15:537(A) requires that diminution of sentence be denied to a person who is convicted of or pleads guilty to “any provision of Subpart C of Part II of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950,” which includes second degree sexual battery, a violation of La. R.S. 14:43.2.

Recently, this court addressed this issue in State v. S.D.G., 06-174, pp. 4-5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247:

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the defendant diminution eligibility under La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the trial court’s failure to deny diminution of sentence renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make a notation in the minutes reflecting the amendment.

Likewise, in the present case, this court will amend Defendant’s sentences to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537(A). As in S.D.G., the trial court is instructed to note the amendment in the court minutes. See also State v. Fontenot, 06-226 (La.App. 3 Cir. 7/12/06), 934 So.2d) 3935 (same conclusion, but due to the fact that the case was remanded for the correction of other errors, the trial court was instructed to deny eligibility for diminution of sentence).

DISCUSSION

Defendant complains that “[t]he sentence imposed by the trial court was cruel, unusual and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.” Defendant contends that the sentences should have been ordered to be served concurrently because they were based on the same act or transaction or were part of a common scheme or plan. Defendant does not contest the length of the individual sentences; instead, he argues that the trial court erred in designating the sentences to run consecutively to each other. The State responds that the trial court acted well within its sentencing discretion when it ordered the sentences to be served consecutively.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17.

A sentence which falls within the statutory limits may be excessive under certain circumstances. State v. Brown, 94-1290 (La.1/17/95), 648 So.2d 872, 877. To constitute an excessive sentence, this | ¿Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering. Id. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985).

State v. Guzman, 99-1528, 99-1753, p. 15 (La.5/16/00), 769 So.2d 1158, 1167.

At the sentencing hearing, M.B.G., who was one of Defendant’s victims, testified that Defendant’s actions took her life away and caused her to no longer be able to trust anyone. M.B.G. further stated that Defendant acted as her stepfather and was in charge of her and supervising her when he committed the crimes. M.B.G. felt that two years of counseling had helped her, but she would never be able to forget what had happened to her.

Another of Defendant’s victims, S.G., testified that Defendant’s acts toward her had negatively impacted her. She is now so shy that she cannot be around other people. S.G. also stated that Defendant, who was like her stepfather even though he had not been married to her mother, had been acting in a supervisory capacity over her when he committed the offense against her. S.G. averred that, although she has also undergone two years of counseling, it has only helped a little.

The oldest victim, A.L.G., explained that Defendant stayed with her and her sisters in the afternoons while their mother worked. A.L.G. testified that she, also, has had two years of counseling and that, although the counseling has helped, she still occasionally needs to go back for additional sessions. A.L.G. averred that Defendant’s actions have made it difficult for her to trust people. It has affected her relationships with other people such as her mother and her boyfriend.

After the victims gave their impact statements, the defense attorney summarized Defendant’s various medical conditions for the court: neck and lower [sback problems from a car accident in 2005, diabetes requiring insulin injections, a failing thyroid, high blood pressure, and sinus problems. Also in mitigation, the defense asked the trial court to consider that he had worked his entire life; that he had raised two sons, a daughter, and a foster child from his first marriage; that he is a musician; that he serves as a youth minister in his church; and that he has a lot of support in Ms community.

Defendant then took the opportunity to testify on his own behalf. Defendant apologized to his victims and asked for their forgiveness. Defendant averred that he loved them with all of his heart and never wanted to hurt them. Defendant then stated that he wanted to take full responsibility for the crimes to which he pled guilty.

After reading the pre-sentence investigation report and the letters submitted by both sides, and after listening to the statements made at the hearing, the trial court indicated that it was ready to sentence Defendant. The trial court stated that it had reached its determination by examining the severity of the crimes, the number of the crimes, the impact to the victims and their future lives, and the trial court’s biggest worry — its concern for public safety-

The sentencing court held that it felt compelled by overwhelming concern to perform its duty to protect society from Defendant. The trial court found that, if left unchecked, this type of crime continues and worsens. The trial court feared that, if Defendant would do this to children entrusted to his care, then Defendant might be able to do something much worse to children he did not know. The sentencing court then acknowledged that Defendant had no prior criminal record and stated that it appreciated Defendant’s apology. However, Defendant must suffer the consequences of his actions. The trial court found that Defendant’s acting as a productive member of society did not make up for the things he did to his victims. The trial court then | fisentenced Defendant to serve ten years at hard labor without benefit of probation, parole, or suspension of sentence for each offense, and ordered the sentences to run consecutively.

At the time of Defendant’s offenses, second degree sexual battery was aggravated sexual battery.

A. Aggravated sexual battery is the intentional engaging in any of the following acts with another person when the offender intentionally inflicts serious bodily injury on the victim:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
B. For the purposes of this Section, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.
C. Whoever commits the crime of aggravated sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than fifteen years.

La.R.S. 14:43.2; 1995 La.Acts No. 946, § 2. Therefore, Defendant’s ten-year sentences are well within the parameters set by the statute.

Defendant contends that this court should find that the offenses were of the same act or transaction or were part of a common scheme or plan because all of the offenses were charged in the same indictment. Under La.Code Crim.P. art. 883, the ptrial court may, at its discretion, designate sentences to run concurrently or consecutively:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

“Consecutive sentences for convictions stemming from a common scheme or plan require particular justification.” State v. Thibodeaux, 04-1166, p. 5 (La.App. 1 Cir. 4/20/05), 915 So.2d 807, 810,

Review of the jurisprudence shows that different victims, places, or dates mean different transactions and different schemes or plans. In State v. Dagenhart, 39,874 (La.App. 2 Cir. 8/17/05), 908 So.2d 1237, writ denied, 05-2421 (La.4/24/06), 926 So.2d 539, the defendant pled guilty to four counts of molestation of a juvenile; and in exchange, the State dropped six other counts of the same crime. The trial court ordered three of Dagenhart’s sentences to run concurrently, but it designated that one sentence was to run consecutively. Each count had a different victim. The three victims for offenses having the concurrent sentences had been molested at Dagenhart’s home, and the victim for the offense bearing the consecutive sentence had been molested at her home. The trial court held that Dagenhart should receive a consecutive sentence for victimizing the child molested at her home because the different location indicated a different scheme or plan.

Dagenhart argued that all four offenses were part of a common scheme or plan, so all of the sentences should have been concurrent. The second circuit held:

These acts occurred over a five-year period and involved different children and a tailored methodology. Defendant is a serial sexual ^predator. If defendant’s argument is carried to its logical conclusion, then no matter how long a period of time the offenses spanned or how many children were involved, such pedophiles would always receive concurrent sentences. The same would be true of a serial murderer or rapist. [Louisiana Code of Criminal Procedure Article] 883 is inapplicable to such situations. Even if considered, article 883 allows a trial court the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community.

Id. at 1240-41. The second circuit observed that the trial court had reviewed the facts of the case, Dagenhart’s background, as well as the aggravating and mitigating factors. The trial court found the offenses to be serious and intentionally planned with total disregard for the harm to the victims. Moreover, the trial court had determined that Dagenhart posed an unacceptable risk of harm to the others because of a high risk of recidivism.

The second circuit further found that Dagenhart had received a great benefit when the State dropped six counts and did not charge him with various other crimes connected to the molestation. Based thereon, the second circuit found no abuse of discretion in the consecutive sentence and held that the trial court could have acceptably ordered all of the sentences to run consecutively.

In State v. Hymes, 04-320, (La.App. 5 Cir. 10/12/04), 886 So.2d 1157, writ denied, 04-3102 (La.4/1/05), 897 So.2d 599, the defendant was convicted of two counts of attempted first degree robbery and seven counts of first degree robbery for offenses with different victims all occurring within a two-week period at different locations. The trial court ordered all of Hymes sentences to run consecutively. The fifth circuit held that, although the offenses were similar in nature, they were not part of the same act, transaction, scheme, or plan under La.Code Crim.P. art. 883 because the bill of information indicated different dates and locations for the offenses. The | flfifth circuit determined that the consecutive sentences were justified due to the separate and distinct nature of the acts and the seriousness of the offenses.

In State v. Porter, 29,638 (La.App. 2 Cir. 9/24/97), 700 So.2d 1058, writ denied, 97-2674 (La.2/13/98), 706 So.2d 993, the defendant pled guilty to eight counts of indecent behavior with juveniles for offenses committed against different victims in several different ways on different dates at a few different locations. Defendant had originally been charged with thirty counts of indecent behavior with juveniles, three counts of sexual battery, and two counts of oral sexual battery. The district court grouped the offenses and ordered some to be served consecutively and some to be served concurrently; altogether, the trial court required Porter to serve an aggregate of fifteen years imprisonment and four years of probation. In discussing Porter’s complaints about having to consecutively serve some of the sentences, the second circuit stated, “Where the convictions stem from separate incidents involving different victims and occur over a lengthy period of time, the resulting consecutive penalties will generally not be found to be an abuse of that discretion.” Id. at 1062. The second circuit affirmed Porter’s sentence.

In State v. Boros, 94-453, 94-454, (La.App. 5 Cir. 11/29/94), 646 So.2d 1183, writ denied, 94-3148 (La.5/12/95), 654 So.2d 347, the Jefferson Parish District Attorney originally charged the defendant with one count of forcible rape on one bill of information and, on another, one count of indecent behavior with juveniles and two counts of molestation of a juvenile. Boros entered into a plea agreement wherein the State reduced the forcible rape charge in the first indictment to molestation of a juvenile and dismissed the indecent behavior with juveniles as well as one of the molestation charges on the other indictment. Boros then pled guilty to the remaining charges.

|10The trial court sentenced Boros to serve seven years at hard labor on each charge and ordered the sentences to run consecutively. Boros appealed, arguing that his sentences were excessive because they were consecutive. The fifth circuit disagreed. It found that consecutive sentences were indicated under La.Code Crim.P. art. 888 as the bill of information indicated that Boros committed the offenses on different dates, different locations, and had two different victims.

Defendant contends that this court should find that the offenses were of the same act or transaction or were part of a common scheme or plan because all of the offenses were charged in the same indictment. However, Defendant’s contention has no merit, as La.Code Crim.P. arts. 493 and 493.2 provide that offenses may also be joined in a charging instrument if they are of the same or similar character.

There is nothing in the record regarding the locations where Defendant committed the offenses, but the bill of indictment and the sentencing transcript show that each of the three charged offenses all had separate victims and that the abuse forming the basis of the charge happened on at least three different dates and time periods. The sentencing transcript shows that Defendant used his authority over his girlfriend’s children to commit sexual offenses upon her three daughters. Two of the victims were under the age of twelve at the time of the offenses, and the remaining child was twelve when her abuse began. According to the indictment, Defendant victimized one child from 1992 through 2002, her younger sister from 1996 through 2002, and her older sister from 2000 through 2002. Based thereon, Defendant committed sexual offenses against the middle child for four years when he was not sexually battering the youngest and for eight years when he was not sexually battering the eldest; Defendant victimized the youngest child for four years during which he was not committing sexual offenses against the oldest sister. Thus, offenses occurred l^on at least three different dates from 1992 until 2002:(1) when the middle child was abused alone; (2) when the youngest child was either abused alone or in conjunction with the middle child; and (3) when the oldest child was abused alone or in conjunction with one or both of her younger siblings.

Therefore, because Defendant committed the offenses against different victims on different dates, this court finds that, even though the offenses were joined in the same bill of indictment, they did not constitute the same act or transaction and were not part of a common scheme or plan. Furthermore, prior to trial, Defendant moved to sever the originally-charged offenses from each other because they were not part of the same act, transaction, scheme, or plan and because the joinder was highly prejudicial. Defense counsel argued that the offenses were improperly joined as crimes of a similar character because there was a strong possibility of prejudice to Defendant. At the April 5, 2006 hearing on the issue, the State responded that the charges were all of the same or similar character and, therefore, could be charged together. The trial court denied Defendant’s motion to sever on the basis that the crimes were similar in nature, and Defendant would not be unfairly prejudiced by the joinder. Defendant did not seek review of the district court’s ruling. Thus, the district court actually sentenced Defendant in accordance with La. Code Crim.P. art. 883, and it did not abuse its discretion in failing to invoke the incorporated exception to the consecutive sentences rule.

Moreover, because Defendant was originally facing two counts of aggravated rape and one count of forcible rape, Defendant received a substantial sentencing benefit. The fifteen-year maximum sentence for aggravated sexual battery is immensely more lenient than the minimum sentence for an aggravated rape conviction; i.e. life imprisonment. La.R.S. 14:42 and 14:43.2. The fifteen-year l12maximum sentence for aggravated sexual battery is also a drastically smaller maximum sentence than the forty years Defendant would have faced if convicted of forcible rape. La.R.S. 14:42.1 and 14:43.2. Additionally, by pleading guilty to second degree sexual battery, Defendant admitted that he acted with the specific intent to inflict serious bodily injury on each of his victims, thereby belying Defendant’s assurance at sentencing that he had no intent to hurt the girls. Accordingly, Defendant’s assignment of error is without merit.

CONCLUSION

This court amends Defendant’s sentences to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537 and instructs the trial court to note the amendment in the court minutes. In all other respects, Defendant’s sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED.

      . In accordance with La.R.S. 46:1844(W), initials have been used for both the Defendant and the victims in order to protect the identity of the minor victims.

      . Although Defendant's argument is limited to complaining that the sentences are excessive based on their consecutive nature, this court has included a general excessiveness review in the discussion. This court has done so for two reasons: (1) the wording of Defendant’s assignment of error lists a broad excessiveness complaint; and (2) Defendant's brief also addresses the general excessiveness jurisprudence.

      . If Defendant had committed the offenses under the current version of the statute, the sentencing range would have started with a minimum of twenty-five years at hard labor and ended with a maximum of life imprisonment since all of the victims were under the age of thirteen at the time Defendant committed the offenses. La.R.S. 14:43.2; 2006 La. Acts No. 103, § 1.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Gene SMART, et al. v. GOLD, WEEMS, BRUSER, SUES & RUNDELL, et al.
    No. 06-1414.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      Chad A. Dudley, Baton Rouge, LA, for Plaintiffs/Appellants: Gene Smart, Priscilla Babin.
    Richard C. Stanley, William M. Ross, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA for Defendant/Appellee: James Ogden Middleton, II.
    Michael John O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, James P. Roy Domengeaux, Wright, Roy & Edwards, L.L.C., Lafayette, LA, for Defendants/Appellees: Raymond L.
    Brown, Jr., Henry B. Bruser, III, Gold, Weems, Bruser, Sues, & Rundell, L.L.C., Robert G. Nida, Kenneth Odrie Ortego, Randall M. Seeser, Michael John O’Shee, Randall Lee Wilmore, Samuel Newman Poole, Jr., Dorrell Jarrell Brister, Peggy Dean St. John, Gregory Brian Upton, Eugene Joseph Sues, Charles Stovall Weems, III, Edward E. Rundell.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

b The plaintiffs filed a class action, on behalf of themselves and others who obtained representation from an attorney at the defendant law firm, alleging that they were over-billed for legal services. The attorney, the firm, and the firm’s directors were named as defendants. An exception of vagueness filed on behalf of the firm and its directors was granted. After an attempt to amend the petition was unsuccessful, the trial court granted a second exception of vagueness and dismissed the petition as to the firm and its directors. The trial court subsequently denied the attorney’s exception of vagueness. The plaintiffs appeal. In a consolidated writ application, the attorney contends that since the petition makes the same claims against him as the other defendants, his exception of vagueness should have been granted. For the following reasons, we affirm the granting of the exception of vagueness and reverse the denial of the attorney’s exception of vagueness. We remand this matter with instructions.

Factual and Procedural Background

The plaintiffs, Gene Smart and Priscilla Babin, filed a “Class Action Petition” on their own behalf, and on behalf of others similarly situated, wherein they alleged that they retained “The Gold Firm” to provide legal representation for their individual legal needs and that attorney J. Ogden Middleton, II was assigned to handle their representation. The plaintiffs asserted that they were “over-billed for said representation” and alleged breach of contract and unjust enrichment. Among the damages sought was “restitution and refund of all monies paid for said legal services, plus interest hereon.” In addition to Mr. Middleton, the plaintiffs named “Gold, Weems, Bruser, Sues & Rundell (A Professional Law Corporation),” “Gold. Weems, RBruser, Sues & Rundell, LLC,” and individual attorneys who the plaintiffs alleged served as directors of the firm.

The firm and the directors, other than Mr. Middleton, filed a dilatory exception of vagueness, noting that the plaintiffs failed to allege whether there was a separate contractual relationship with all or some of the individual directors or with the firm and/or the limited liability corporation. The exception also cited a lack of particularity in describing any alleged deceptive or misleading representations and a lack of designation of which director the plaintiffs alleged to have made such a misrepresentation.

The trial court granted the exception of vagueness and ordered the plaintiffs to “amend their petition to state all material facts relating to each specific claim of each plaintiff against each separate, individually named defendant and each separate corporate entity on whose behalf the Exception of Vagueness is filed[.]” The trial court ordered that the plaintiffs amend the petition within thirty days.

The plaintiffs filed two amending petitions, the latter of which was accepted as the applicable petition for the court’s consideration. The plaintiffs alleged that they contracted for legal representation from the law firm of “Gold, Weems, Bruser, Sues & Rundell P.L.C.” The suit was brought on behalf of all those similarly situated who contracted for legal representation “from the law firm of Gold, Weems, Bruser, Sues & Rundell P.L.C. and/or Gold, Weems, Bruser, Sues & Rundell L.L.C. and who were over-billed for said representation.” These entities and the individual attorneys allegedly serving as directors of the firm were named as defendants.

|sThe firm and the directors, other than Mr. Middleton, again filed a dilatory exception of vagueness, asserting that the amended petition failed to cure the deficiencies and, thereby, failed to comply with the trial court’s order. Following a hearing, the trial court granted the exception of vagueness and ordered that due to the plaintiffs’ failure to amend as required by the original judgment, all claims against Gold, Weems, Bruser, Sues & Rundell, A Professional Law Corporation, Gold, Weems, Bruser, Sues & Rundell, L.L.C. and the directors, other than Mr. Middleton, be dismissed without prejudice and at the plaintiffs’ cost.

Mr. Middleton subsequently filed an exception of vagueness. He argued that, because “any allegations that would suggest liability on the part of Mr. Middleton are directed to at least one of the dismissed defendants and, thus, already have been deemed vague by the Court. There would [be] no reason, therefore, to rule differently on the vagueness issue with respect to Mr. Middleton.” The trial court denied Mr. Middleton’s exception.

The plaintiffs appeal the granting of the exception and assign the following as error:

A. The trial court erred in granting defendants’ Exception of Vagueness.
B. The trial court erred in dismissing plaintiffs’ claims against defendants based on a finding that plaintiffs’ First Supplemental and Amending Class Action Petition was vague.

Mr. Middleton filed an application for supervisory writs, wherein he advances the following assignments of error:

A. The district court erred by denying Mr. Middleton’s exception of vagueness, thereby relieving the plaintiffs of their duty to plead any factual allegations in support of their claims.
|4B. The district court erred by entering inconsistent judgments on identical exceptions of vagueness, essentially finding that the same allegations in support of the same causes of action somehow are vague as to the Gold Firm, but are not vague as to Mr. Middleton.
C.The district court erred by denying Mr. Middleton’s exception of improper cumulation of actions, or alternatively, failing to defer judgment on the exception pending resolution of the issue of class certification.

The appeal and the writ application have been consolidated for review.

Discussion

The Plaintiffs’ Appeal — Granting of the Exception of Vagueness

The plaintiffs question the determination that the petition is vague. They argue that it is sufficient insofar as it alleges that they individually hired the Gold Law Firm to represent them for their specific family law needs, and that this work was either not performed or resulted in over-billing. As for the firm’s directors, the plaintiffs point out that they alleged that the firm’s course of conduct was performed with the knowledge and/or consent and that these directors benefitted from the practices. These facts, the plaintiffs argue, provide sufficient information to the defendants to begin their defense insofar as they can examine their files and billing statements and prepare their defense. Further, they contend that this information sufficiently permits the identification of the parties, the cause of action, and the thing demanded so as to potentially invoke the doctrine of res judicata.

Louisiana Code of Civil Procedure Article 891 requires that a petition “contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the | sIitigation[.]” Furthermore, with regard to the form of a pleading, La.Code Civ.P. art. 854 provides:

No technical forms of pleading are required.
All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

The purpose of the dilatory exception of vagueness, which is provided for by La.Code Civ.P. art. 926, is to place a defendant on notice of the nature of the facts sought to be established and, thus, enable him or her to identify the cause of action and prevent its future re-litigation after a judgment is obtained. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890. See also Thomas v. Sonic, 06-0014 (La.App. 1 Cir. 11/3/06), 950 So.2d 822. However, the exception does not permit the defendant to demand exactitude and detail beyond what is necessary for the above purposes. Snoddy, 702 So.2d 890. An exception of vagueness will be denied if the petition fairly informs the defendant of the nature of the cause of action and includes sufficient particulars for the defendant to be able to prepare his or her defense. Id.

Review of the plaintiffs’ petition reveals no error in the trial court’s granting of the exception of vagueness in favor of the firm and its individual directors. Rather than advancing material facts of the transaction or occurrence that is the subject matter of the litigation, as is required by La.Code Civ.P. art. 891, the petition advances the broadest of allegations, ie., that the plaintiff contracted with the firm and that they were either over-billed or billed for representation that did not occur. Rather than alleging material facts crucial to the transaction/occurrenee, the petition attempts to substitute general allegations for these necessary, material facts. The |fiplaintiffs contend that the required information is in the possession of the firm and its individual directors. However, requiring the defendants to produce its files, billing statements, and client contracts in these circumstances and for this type of broad allegation would essentially require these defendants to sustain the burden of disproving the case brought against them.

Neither do we find error in the trial court’s dismissal of the plaintiffs’ claims against the firm and its directors. Louisiana Code of Civil Procedure Article 933 provides:

A. If the dilatory exception pleading want of amicable demand is sustained, the judgment shall impose all court costs upon the plaintiff. If the dilatory exception pleading prematurity is sustained, the premature action, claim, demand, issue or theory shall be dismissed.
B. When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order.

The record indicates that the trial court’s procedure in dismissing the plaintiffs’ claims was consistent with Article 933. After the first exception of vagueness was granted, the trial court ordered amendment of the petition to remove the defects. Only after that order was not sufficiently satisfied and, upon a second exception of 17vagueness did the trial court dismiss the plaintiffs claim. We note, too, that the plaintiffs claim was dismissed without prejudice.

Application for 'Supervisory Writs-Denial of the Exception of Vagueness

In his application for supervisory writs, Mr. Middleton contends that in light of its determination that the petition was vague as to the firm and the other directors, the trial court erred in denying his subsequently filed exception of vagueness. He asserts that the allegations as to him are identical to those made against the other defendants and, thus, they are vague as to him as well.

We reject the assertion that the petition’s allegations regarding Mr. Middleton are identical to those lodged against the firm and the other directors. The petition alleges that Mr. Middleton was the attorney “assigned” to the named plaintiffs’ cases and that they each met with him. The petition also alleges that:

As a result of the deceptive and misleading representations made by Ogden Middleton and the Gold Law Firm P.L.C., including but not limited to representations concerning work that was being performed, the necessity of said work, and the amount of time required to complete said work, plaintiffs and other members of the Class continued to pay for legal services which were not being performed; and/or were over-billed for work that was performed.

This statement is directed toward Mr. Middleton, not the other directors of the firm, and is more targeted as to an actor than the general allegation similarly made against the “Gold Law Firm P.L.C.” Having said this, however, it is apparent that the petition is insufficient under La.Code Civ.P. art. 891, as again, it is does not contain material facts of the transaction or occurrence that is the subject matter of the litigation. Rather, it merely contains the allegation of misrepresentation and over-billing. In short, the petition lacks sufficient substantial particulars which would permit Mr. Middleton to appropriately prepare his defense. See Thomas, 950 So.2d at 825. | RAccordingly, we reverse the trial court’s denial of Mr. Middleton’s exception of vagueness and remand this matter to the trial court with instructions to enter judgment granting the exception of vagueness in compliance with La.Code Civ.P. art. 933(B).

Although Mr. Middleton requests that the claims against him be dismissed, such a dismissal is premature absent an opportunity to amend the petition. Since the original exception was filed by the firm and the other directors, the trial court ordered that the plaintiffs amend their petition “to state all material facts relating to each specific claim of each plaintiff against each separate, individually named defendant and each separate corporate entity on whose behalf the Exception of Vagueness was filed.” Mr. Middleton did not join in the exception to which the judgment was referring. Furthermore, La.Code Civ.P. art. 933(B) anticipates that “the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order.” (Emphasis added.) Thus, dismissal of the claim against Mr. Middleton is premature prior to an opportunity to amend, which, upon remand, the trial court is ordered to provide in accordance with Article 933(B). Only in the event of the plaintiffs’ failure to comply with that order will dismissal of the claim against Mr. Middleton be appropriate.

In his final assignment of error, Mr. Middleton contests the denial of his exception of improper cumulation of actions. We note that, as this matter was filed as a class action, the prerequisites for a class action provided in La.Code Civ.P. art. 591 may be applicable in this instance, rather than La.Code Civ.P. art. 463, which |3is applicable to cumulation of individual actions. In any event, and due to our determination that the petition lacks adequate material facts stemming from the cause of action, we conclude that resolution of this exception is premature at this point in the proceedings. Accordingly, we reverse the denial of the exception of improper cumu-lation of actions and instruct the trial court to reserve consideration of this dilatory exception until the pleadings are sufficiently developed.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting the exception of vagueness and dismissing the plaintiffs’ suit against Gold, Weems, Bruser, Sues & Rundell, A Professional Law Corporation, Gold, Weems, Bruser, Sues & Rundell, L.L.C., Dorrell J. Brister, Raymond L. Brown, Jr., Henry B. Bruser, III, Robert G. Nida, Kenneth O. Ortego, Michael J. O’Shee, Sam N. Poole, Jr., Edward E. Rundell, Randall M. Seeser, Pegy Dean St. John, Eugene J. Sues, Gregory B. Upton, Charles S. Weems, III, and Randall L. Wilmore. Costs of this proceeding are assessed against the plaintiffs, Gene Smart and Priscilla Babin.

AFFIRMED.

      . In its exception of vagueness, the firm appeared as Gold, Weems, Bruser, Sues & Run-dell, A Professional Law Corporation (“Gold Law Firm”) and Gold, Weems, Bruser, Sues & Rundell, L.L.C. (“Gold L.L.C.”).

      . For disposition of the writ application, see the companion case reported at Gene Smart, et al. v. Gold, Weems, Bruser, Sues & Rundell, et al., CW06-1331 (La.App. 3 Cir.4/4/07), 955 So.2d 270, 2007 WL 983212.

      . We note here too, that we find no merit in the plaintiffs’ assertion that McLin v. Department of Highways of the State, 68 So.2d 136 (La.App. 1 Cir.1953) is controlling in this case. The plaintiffs contend that the case stands for the proposition that "an exception of vagueness should never be sustained when the information can be secured through discovery, or when the defendant are in a better position to furnish the information requested from the plaintiff.” Instead, the above point is listed in the opinion as an assignment of error from the plaintiff in that case. In McLin, which addressed a now-repealed discovery statute applicable in workers' compensation cases, the first circuit affirmed the granting of the exception of vagueness. In fact, the court confirmed that "[i]t is elementary that in all law suits the plaintiff should inform the defendant of all material facts so that he may properly prepare his defense.” Id. at 137.

      . Article 463 provides:
      Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
      (1) There is a community of interest between the parties joined;
      (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      (3)All of the actions cumulated are mutually consistent and employ the same form of procedure.
      Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded in the alternative.


text:
    Gene SMART, et al. v. GOLD, WEEMS, BRUSER, SUES & RUNDELL, et al.
    No. 06-1331.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.
    Chad A. Dudley, Baton Rouge, LA, for Plaintiffs/Respondents, Gene Smart, Priscilla Babin.
    Richard C. Stanley, William M. Ross, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, for Defendant/Applicant, James Ogden Middleton, II.
    Michael John O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, James P. Roy, Domengeaux, Wright, Roy & Edwards, L.L.C., Lafayette, LA, for Defendants/Respondents, Raymond L. Brown, Jr., Henry B. Bruser, III, Gold, Weems, Bruser, Sues, & Rundell, L.L.C., Robert G. Nida, Kenneth Odrie Ortego, Randall M. Seeser, Michael John O’Shee, Randall Lee Wilmore, Samuel Newman Poole, Jr., Dorrell Jarrell Brister, Peggy Dean St. John, Gregory Brian Upton, Eugene Joseph Sues, Charles Stovall Weems, III, Edward E. Rundell.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   AMY, Judge.

For the reasons assigned in the companion case of Gene Smart, et al. v. Gold, Weems, Bruser, Sues & Rundell, et al., 06-1414 (La.App. 3 Cir. 4/4/07), 955 So.2d 263, 2007 WL 983222 the trial court’s judgment denying the exceptions of vagueness and improper cumulation of actions filed on behalf of J. Ogden Middleton is reversed. This matter is remanded to the trial court with instructions to enter judgment granting the exception of vagueness in compliance with La.Code Civ.P. art. 933(B) and to reserve consideration of the exception of improper cumulation of actions until the pleadings contain sufficient facts to assess the causes of action alleged. All costs of this proceeding are assessed to the respondents, Gene Smart and Priscilla Babin.

WRIT GRANTED. DENIAL OF EXCEPTIONS OF VAGUENESS AND IMPROPER CUMULATION OF ACTIONS REVERSED. REMANDED WITH INSTRUCTIONS.


author: MAX N. TOBIAS, Jr., Judge.

text:
    STATE of Louisiana v. Randy ROSE.
    No. 2005-KA-0396.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 2007.

      Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Kevin V. Boshea, Metairie, LA, for Defendant/Appellant.
    (Court Composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr., Judge LEON A. CANNIZZARO Jr.)
   MAX N. TOBIAS, Jr., Judge.

_JjThis case comes before us on remand from the Supreme Court of Louisiana to determine the remaining issue on appeal. State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1236. We previously pretermitted a discussion of the sufficiency of the evidence, having found that the trial court committed an error of law by admitting certain evidence under La. C.E. art. 404(B) and State v. Prieur, 277 So.2d 126 (La.1973). See State v. Rose, 05-0396 (La.App. 4 Cir. 1/18/06), 925 So.2d 34. The Supreme Court reversed this court, holding that the other crimes evidence was properly admitted because it was not unduly or unfairly prejudicial and was probative to show the defendant’s identity, pattern, system, and motive. Rose, 06-0402 at p. 18, 949 So.2d at 1246. Insofar as the Supreme Court invalidated our finding that an error of law was committed, we now consider the second error assigned by the defendant regarding the sufficiency of the evidence.

The defendant, Randy Rose (“Rose”) contends the evidence was insufficient to support his conviction. In State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798, the Louisiana Supreme Court discussed the standard of review for claims raising sufficiency of the evidence in circumstantial cases as follows:

|2When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676, 678 (La.1984). That standard dictates that to affirm the conviction the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that the State proved all elements of the crime beyond a reasonable doubt. State v. Johnson, 03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998; Captville, 448 So.2d at 678. Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 sets forth the rule that “assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must exclude every reasonable hypothesis of innocence.” However, La. R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt formula; rather it serves as a helpful evidentiary guide for jurors when evaluating circumstantial evidence. State v. Toups, 01-1875, p. 3 (La.10/15/02), 833 So.2d 910, 912; State v. Chism, 436 So.2d 464, 470 (La.1983). When evaluating circumstantial evidence, the trier of fact must consider
the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.
Chism, 436 So.2d at 469.
Finally, constitutional law does not require the reviewing court to determine whether it believes the |awitnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Johnson at pp. 4-5, 870 So.2d at 998; Toups at p. 3, 833 So.2d at 912.

Id., 03-3522 at pp. 6-7, 888 So.2d 801-02.

Rose contends that the 10:00 a.m. to 11:00 a.m. time frame for the murder provided by the state excluded the possibility that he could have committed the offense. Chiefly, defendant argues that the testimony established that he left the house at 10:00 a.m. and did not return thereafter. Accordingly, he contends that he could not have committed the crime.

The defendant testified that he left the residence at 10:00 or 10:15 that morning. Betty Rose testified that the defendant arrived at her house at 10:30 a.m. Also, Allen James testified that his mother dropped him off at work at 9:45 a.m. Assuming that Rose did not leave the residence until 10:15 a.m., it would not be unreasonable to conclude that he was still at home when Lisa James Rose returned. Additionally, solely his own self-serving testimony and that of his mother established the defendant’s alibi. It was not unreasonable for the trier of fact to discount these two accounts given the obvious bias presented.

Rose adds that no evidence was submitted to demonstrate that he had access to or was seen near the dumpster where the clothes were recovered. Furthermore, he notes that Ashley James did not see him wearing a blue weave cap that morning when Lisa James Rose came home.

1 ¿Although there is no direct evidence linking the defendant to the dumpster on the day in question, the testimony established that he had previously used the dumpster to discard trash. Regarding the blue cap, Allen James testified that he had observed the defendant wearing the cap that morning. Although Ashley James did not testify that she saw the defendant wearing the cap, she also did not testify that he was not wearing the cap.

Upon review of the evidence as a whole it is apparent that, viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to establish defendant’s guilt beyond a reasonable. That there was no sign of forced entry into the house implies that Lisa James Rose knew her killer. Furthermore, the apparent attempt to stage the crime scene to make it appear that a suicide occurred further suggests that the perpetrator knew the victim. As noted previously, the attempt to conceal the murder also points strongly to the defendant as the perpetrator.

Perhaps the strongest evidence suggestive of guilt is the recovery of the defendant’s torn cap with Lisa James Rose’s clothing. It is extremely difficult to hypothesize any other conclusion than the defendant was the perpetrator from this evidence, and defendant does not suggest any other reasonable conclusion to be drawn from this evidence.

Additionally, that Rose and the victim argued that morning and that the defendant was involved in a heated argument with Richard Wilson soon thereafter provide grounds for believing that the defendant may have become enraged and argued with his wife after she returned to the house that day.

Furthermore, it is not unreasonable for the jury to conclude that the defendant’s flight to Texas was indicative of guilt. The fact that the Rose failed to | seven inquire regarding the circumstances of his wife’s death prior to fleeing is also highly suggestive of guilt. Additionally, the scratch on the defendant’s hand, and his attempt to conceal it, is indicative of guilt.

We find that this evidence alone is sufficient to support a finding of guilt beyond a reasonable doubt. However, considering the other crimes evidence, which the Supreme Court held we must consider, the evidence of guilt is overwhelming.

Accordingly, viewing the evidence in the light most favorable to the state and assuming every fact to be proved that the evidence tended to prove, the evidence excluded every reasonable hypothesis of innocence and established the defendant’s guilt beyond a reasonable doubt.

AFFIRMED.

      . For a complete statement of the facts, see State v. Rose, 05-0396 (La.App. 4 Cir. 1/18/06), 925 So.2d 34 and State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1236.

      . Rose did not suggest during his testimony how he had gotten the scratch.

      . See State v. Rose, 05-0396 (La.App. 4 Cir. 1/18/06), 925 So.2d 34 and State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1236


author: CARAWAY, J.

text:
    Wilbert L. LEMMONS, Plaintiff-Appellant v. GEORGIA PACIFIC CORPORATION, Defendant-Appellee.
    No. 42,142-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 18, 2007.

      Caldwell & Caldwell, by James D. Caldwell, Tallulah, for Appellant.
    Hulburt, Privat & Monrose, Lafayette, by Shannon Seiler Dartez, for Appellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|!Wilbert L. Lemons, appeals a judgment of the Office of Workers’ Compensation (“OWC”) which granted a partial exception of prescription as to his claims for indemnity benefits. For the following reasons, this appeal of a partial judgment is dismissed for want of jurisdiction and this case is remanded to the OWC.

Lemons was employed by Georgia Pacific Corporation (“GP”) in Shreveport as a truck driver commencing in 1983. He alleges that on July 28, 1984, as he worked at the GP lumberyard stacking 100-pound sacks of asphalt, he felt his back “pop” causing him to feel some discomfort. The pain grew steadily worse throughout the day, and that night Lemons went to the hospital where he remained for several days.

Thereafter, GP paid Lemons both indemnity and medical compensation benefits. On or about December 31, 1986, GP paid its last indemnity benefit to Lemons; however, the company continued to pay medical benefits for treatment of Lemons’ injury. The timing and extent of these medical payments are not detailed in this record, but apparently continued for many years.

Lemons continued to work for GP until 1996 when he bought his own truck and became an independent truck driver. He worked in Michigan for some time, and in February 2004, slipped on ice while loading his truck and again felt pain in his back. Lemons had an MRI of his back which allegedly showed that the disc he injured while working at GP had bulged and was resting on a nerve. In July 2004, Lemons underwent surgery to correct this [2probIem. He alleges that during this time, he was unable to work much of the time and is now partly disabled as a result of his injuries.

In January 2005, Lemons filed a disputed claim for workers’ compensation against GP. He asked for both medical benefits to cover his extensive medical bills and indemnity benefits. GP answered the claim and denied that Lemons was entitled to any further medical or indemnity benefits. In May 2006, Lemons filed an amended claim for compensation, specifically alleging that his 2004 slip and fall aggravated his 1984 injury. In addition to asking for medical and indemnity benefits, Lemons also requested statutory penalties and attorney fees against GP.

On July 20, 2006, GP filed an exception of prescription. Citing La. R.S. 23:1209, this exception was directed solely at Lemons’ claim for indemnity benefits, including TTD, SEB, PPD and vocational rehabilitation benefits. The exception came before the Worker’s Compensation Judge (“WCJ”) for hearing on August 11, 2006. At the hearing, GP’s attorney stated:

Medical, for purposes of the exception of prescription, is not at issue. We are going to try the issue of whether or not there was a superceding intervening accident, whether or not further medical treatment would be the liability of Georgia Pacific.

The following exchange also occurred:

WCJ: But you are saying you are not asserting prescription on the medical because medical is continuing to be paid? GP attorney: Medical has continued. This exception of prescription is only on indemnity benefits. TTD, SEB, voe-rehab and anything that goes along with indemnity.

[¡¡The WCJ heard testimony from Lemons and admitted several depositions into evidence before taking the matter under advisement. On August 17, 2006, the WCJ signed a judgment sustaining the exception of prescription “as to any claim for indemnity benefits” by the claimant. The judgment did not specifically state that it was a partial judgment and it did not include any language under La. C.C P. art.1915 certifying it as suitable for immediate appeal. Lemons filed a motion for a devolutive appeal, and the WCJ granted that motion.

In brief on appeal, GP states:

It is of note that the issue of medical benefits was tried in September 2006. Judgment in that matter was rendered December 4, 2006. A suspensive appeal is pending.

Thus, the judgment in the instant appeal decided only a portion of Lemons’ claim for compensation benefits — his right to indemnity benefits — but did not explicitly state that it was a partial judgment.

La. C.C.P. art.1915 provides, in pertinent part, as follows:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

In Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64, the supreme court decided that a party could not take an appeal in a workers’ compensation case from a partial final judgment that decided only the employee’s right to benefits and did not finally decide the type and amount of benefits owed. The court reaffirmed its holding in Smith v. UNR Home Products, 614 So.2d 54 (La.1993), that La. C.C.P. art. 1915(A)(5) does not apply to workers’ compensation proceedings because they do not precisely involve “liability” and “damages.” In addition, the court expanded the Smith holding to include other provisions of La. C.C.P. art.1915 such as La. C.C.P. art. 1915(A)(1).

In the instant case, the judgment decided that only part of Lemons’ claims have prescribed. This judgment was thus a judgment deciding one issue, not the entire case, and in an ordinary civil case would fall under La. C.C.P. art. 1915(B). The instant judgment was a partial final judgment not certified by the WCJ as suitable for immediate appeal; nor, under Rhodes, is such a procedure contemplated for workers’ compensation cases. Lastly, according to the statement in GP’s brief, the WCJ has now rendered a final judgment in this matter. All of the issues raised in the instant appeal may be addressed in the appeal from that judgment, assuming that they are properly preserved by appeal or answer.

Accordingly, the instant appeal is dismissed, and this case is remanded, granting leave to the parties to refile the same or additional briefs |Baddressing the issues before us, once the appeal of the entire case is lodged in this court. Costs of this appeal are divided equally between the parties.

APPEAL DISMISSED; CASE REMANDED WITH INSTRUCTIONS.

      . Plaintiff's surname is apparently incorrectly spelled '‘Lemmons” in the pleadings.


author: RANDOLPH, Justice, for the Court.

text:
    Forster RUHL v. John WALTON.
    No. 2005-EC-02347-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.
    Rehearing Denied May 17, 2007.
    Richard D. Bowen, attorney for appellant.
    Ellis Turnage, Cleveland, attorney for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice, for the Court.

¶ 1. The Town of Como Board of Election Commissioners determined that in the June 7, 2005, general election for the office of alderman-at-large of the Town of Como, John Walton, the incumbent and Democratic nominee, received 253 votes, and independent candidate Forster Ruhl received 244 votes. Ruhl filed an election contest petition. The special judge voided thirty-eight illegal mail-in absentee ballots for failure to comply with the requirements of Miss.Code Ann. Section 23-15-635(1) (Rev.2001). The court found at least thirty-three of those thirty-eight mail-in absentee votes were for Walton and, therefore, determined that the legal vote count favored Ruhl, 239-220. The judge granted Ruhl’s motion for a directed verdict after Walton rested without presenting evidence, testimonial or otherwise. Rather than certifying Ruhl as the duly elected alderman, the court ordered the office vacated and called for a special election to be held in accordance with the provisions of Miss.Code Ann. Section 23-15-857 (Rev.2001). Complying with the court order, the board of aldermen ordered a special election to be held.

FACTS

¶2. In Como, one alderman is elected from each of the town’s four wards, and an additional alderman is elected at-large. On June 7, 2005, a general election was held for the at-large office. The only candidates for the at-large position in the general election were Forster Ruhl, an independent candidate, and John Walton, the incumbent and Democratic nominee. The Board of Election Commissioners certified the results of the general election as follows: Walton—253; Ruhl—244.

¶ 3. On June 27, 2005, Ruhl filed an election contest petition averring that fifty-three absentee ballots from the general election:

were accepted and counted in the vote totals contrary to and in violation of the law [and] procedures prescribed for the allowing, casting and counting of absentee votes. These procedural violations were so substantial as to invite and cause accident, mistake, fraud and wrongdoing, and to make it impossible to determine the will of the legal and valid absentee voters.

Forty-eight of the fifty-three absentee ballot votes were cast for Walton. Of particular significance, Ruhl pled that:

[t]he registrar failed to provide the form of a certificate for a person providing voter assistance on the back of the envelope used by absentee voters who do not use the registrar as an attesting witness, as required by Mississippi Code Annotated Section 23-15-635....
The integrity and validity of the absentee ballots were thereby destroyed, and the absentee ballots should therefore have been illegal and void and not counted in the determination of the election results.

On July 29, 2005, Walton filed his answer and affirmative defenses.

¶ 4. A jury trial commenced on October 26, 2005. Dandridge testified that the absentee ballots lacked “any language which allows a person who provided voter assistance to the absentee voter to sign a certificate to that effect.” Theresa Wallace, one of three election commissioners for Como, stated that no attestation certificate was provided on the mail-in absentee ballots. Walton conceded the mail-in absentee ballots lacked a voter’s assistance certificate.

¶ 5. At the close of Ruhl’s case-in-chief, Walton moved for a directed verdict, which was denied. When Walton rested without offering any proof, Ruhl moved for a directed verdict. Ruhl argued that the defect in the mail-in ballots rendered them void. Since no more than five of those thirty-eight votes could have been for Ruhl, he argued that “33 of the absentee votes should be taken from Mr. Walton’s totals and it makes Dr. Ruhl the clear winner.” Ruhl further asserted that a special election was unnecessary “because the number of votes that are illegal are so small ... and ... this case has not been attended by any intentional fraud, any fraud, or any wrongdoing.”

¶ 6. On November 18, 2005, final judgment was granted on Ruhl’s motion for a directed verdict. It stated:

the absence of a form for a certificate of person providing voter assistance to an absentee voter was omitted from the ballot envelopes used by absentee voters who did not mark and cast their ballot in the registrar’s office. The Court further found and adjudicated that such omission was a violation of mandatory statutes and resulted in the disqualification of the 38 mail-in absentee ballots cast in this election.... [T]he Court finds that the total number of legal votes cast was 239 votes for [Ruhl] and 220 votes for [Walton].

Rather than declaring Ruhl the winner of the general election, the court ordered a special election. Specifically, “[t]he Court declines to certify [Ruhl] as duly elected, but rather ... orders that the office of Alderman at Large for the Town of Como be vacated and that a special election be held to fill that office pursuant to the provisions of Mississippi Code Annotated Section 28-15-857.” (Emphasis added). On November 22, 2005, the board of aider-men voted to hold the special election on January 3, 2006. On December 16, 2005, Ruhl filed a notice of appeal from the November 18, 2005, final judgment.

¶ 7. On December 19, 2005, Walton filed an emergency motion to amend, to clarify and/or for declaratory relief blaming the court for his failure to “file a new qualifying petition for the January 3, 2006 special election, because the November 16, 2005 court [order] did not direct the parties to the election contest to re-qualify.” The special judge granted Walton’s motion.

ISSUES

¶ 8. As it is case-dispositive, this Court will consider only:

(1) Whether the trial court erred by ordering a special election rather than certifying Ruhl the winner of the June 7, 2005, general election for the office of alderman for Como after it determined that Ruhl received the greatest number of legal votes cast.

STANDARD OF REVIEW

¶ 9. This issue involves reviewing the trial court’s decision to grant Ruhl’s motion for directed verdict. “[T]his Court conducts a de novo review of motions for directed verdict.... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1055 (Miss.2003) (internal citations omitted) (emphasis added). “Additionally, this Court has held that ‘a trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.’ ” Id. (quoting Vu v. Clayton, 765 So.2d 1253, 1254 (Miss.2000)).

ANALYSIS

¶ 10. Miss.Code Ann. Section 23-15-635(1) provides:

(1) The form of the elector’s certificate, attesting witness certification and certificate of person providing voter assistance on the back of the envelope used by voters who do not use the registrar of their county of residence as an attesting witness shall be as follows:
ELECTOR’S CERTIFICATE ... CERTIFICATE OF ATTESTING WITNESS ...
CERTIFICATE OF PERSON PROVIDING VOTER ASSISTANCE....

Miss.Code Ann. Section 23-15-635(1) (Rev.2001) (emphasis added). “We have long held that where a statute is plain and unambiguous there is no room for construction.” Callahan v. Leake County Democratic Executive Comm., 773 So.2d 938, 940 (Miss.2000). Miss.Code Ann. Section 23-15-635(1) plainly and unambiguously requires a elector’s certificate, certificate of attesting witness, and voter assistance certificate on all mail-in absentee ballots. Furthermore, this Court requires strict compliance with statutes concerning absentee ballots. See Lewis v. Griffith, 664 So.2d 177, 185 (Miss.1995); Rogers v. Holder, 636 So.2d 645, 647 (Miss.1994); Stringer v. Lucas, 608 So.2d 1351, 1361 (Miss.1992). The effect of strict compliance, however, is mitigated by this Court’s distinction between directory and mandatory statutes. Stated succinctly:

[i]f the violated statute is directory rather than mandatory and there is no allegation or proof of fraud, the non-complying ballots are valid and properly counted. Riley [v. Clayton ], 441 So.2d [1322,] 1328 [ (Miss.1983) ]. Votes not in compliance with mandatory provisions of election statutes are illegal. Votes illegally cast are improperly counted. Hatcher v. Fleeman, 617 So.2d 634, 640-41 (Miss.1993).

Rogers, 636 So.2d at 648 (emphasis added).

¶ 11. Miss.Code Ann. Section 23-15-635 has been deemed mandatory because “[a]bsentee paper ballots ... are particularly amenable to fraud; the detailed procedures outlined ... are designed to protect against fraudulent votes and ensure that absentee ballots actually reflect the will of the voters who cast them.” Id. at 649. In short, Miss.Code Ann. Section 23-15-635 is mandatory because the potential for illicit voting activity exponentially increases when the light of truth does not illuminate the voting booth. Therefore, all mail-in absentee ballots cast in violation of Miss.Code Ann. Section 23-15-635 were illegal and properly rejected by the court.

¶ 12. This determination leads us to address the remedy in that event, i.e., whether the judge should have certified Ruhl the winner of the alderman-at-large post, instead of vacating the office and ordering a special election.

¶ 13. Miss.Code Ann. Section 23-15^-951 addresses general election contests stating, in part:

[ejxcept as otherwise provided by Section 23-15-955 or 23-15-961, a person desiring to contest the election of another person returned as elected to any office within any county, may, within twenty (20) days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested; and the clerk shall thereupon issue a summons to the party whose election is contested, returnable to the next term of the court, which summons shall be served as in other cases; and the court shall, at the first term, cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election. If the jury shall find against the person returned elected, the clerk shall issue a certificate thereof; and the person in whose favor the jury shall find shall be commissioned by the Governor, and shall qualify and enter upon the duties of his office.

Miss.Code Ann. Section 23-15-951 (Rev. 2001) (emphasis added). The Legislature has determined that general election contests shall be tried in a court of law, before a jury. In the ease sub judice, the mail-in absentee ballots violated Miss.Code Ann. Section 23-15-635 and thus were illegal, which was not contested by Walton. The mandatory statute was clearly violated. Since individual voter intent was not the issue, the illegality of the mail-in absentee ballots dictated only one possible outcome. The tabulation of legal votes favored Ruhl, 239-220. Therefore, the special judge appropriately granted Ruhl’s motion for directed verdict, but then erred in ordering a special election. Ruhl received “the greatest number of legal votes at the election.” Miss.Code Ann. Section 23-15-951 (Rev.2001). Thus, an order should have been entered vacating the office, instructing the circuit court clerk to issue a certificate thereof, and subsequently Ruhl should have been “commissioned by the Governor, ... qualified,] and ... enter[ed] upon the duties of his office.” Miss.Code Ann. Section 23-15-951 (Rev.2001). The failure of the special judge to order such action is error requiring reversal and a remand to the circuit court for entry of an appropriate judgment consistent with this opinion and Miss.Code Ann. Section 23-15-951 (Rev.2001).

CONCLUSION

¶ 14. Based upon the aforementioned analysis, this Court finds that as a candidate, Walton bore the burden of ensuring that the mail-in absentee ballots complied with the mandatory requirements of Miss.Code Ann. Section 23-15-635 (Rev. 2001). Therefore, the special judge erred in ordering a special election rather than declaring Ruhl the candidate “having the greatest number of legal votes at the” June 7, 2005, general election pursuant to Miss.Code Ann. Section 23-15-951 (Rev. 2001). Accordingly, the circuit court’s judgment is reversed, and this case is remanded with directions that the circuit court enter judgment that once again the office of alderman-at-large of the Town of Como is vacated, instructing the clerk to issue a certificate thereof, and Ruhl shall be commissioned by the Governor, and shall qualify and enter upon the duties of his office, in compliance with Miss.Code Ann. Section 23-15-951 (Rev.2001).

¶ 15. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., NOT PARTICIPATING.

      . Circuit Judge Sharion R. Aycock was appointed by this Court as the special judge "to preside and conduct proceedings ... pursuant to and by authority of Miss.Code Ann. Section 23-15-951 [(Rev.2001)] and Section 9-1-105 [(Rev.2001)].”

      . Stated otherwise, Walton received 50.9% and Ruhl received 49.1% of all votes, which included the illegal votes.

      . According to Nedra Dandridge, clerk and registrar for Como, absentee ballots may be voted by mail or in the registrar’s office. See Miss.Code Ann. Section 23-15-715 (Rev. 2001). Of the fifty-three absentee ballots, fifteen were voted in the registrar's office and thirty-eight were voted by mail.

      .Stated otherwise, Walton received 90.6% of the absentee ballot votes and Ruhl received 9.4%, including the illegal votes. When considering only legal votes, Ruhl received 53.8% of the general vote.

      . After the special election was erroneously granted, Walton then failed to qualify as mandated by Miss.Code Ann. Section 23-15-857. On motion, the special judge impermissibly amended the final judgment to relieve Walton of the legislatively-required necessity of qualifying for a special election, in which Walton prevailed. While the failure-to-qualify issue was raised on appeal, this Court finds one other issue case-dispositive and notes failure to qualify only for the purpose of vacating the office occupied by Walton, consistent with Miss. Code Ann. Section 23-15-951 (Rev. 2001).

      . Walton effectively concedes this issue, arguing simply that a special election was proper.