text:
    STATE of Louisiana, Appellee, v. Ralph Donald SWEAT, Appellant.
    No. 40,625-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Louisiana Appellate Project, by G. Paul Marx, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

I,The defendant was charged with simple burglary by bill of information. After the bench trial, the defendant was found guilty as charged. The state filed a fourth felony habitual offender bill of information. The defendant filed a motion to quash, and the trial court granted the motion as to one of the prior felonies. Reserving the right to appeal his simple burglary conviction, the defendant stipulated to being a third felony offender and received an agreed-upon sentence of 20 years at hard labor without benefit of probation, parole or suspension of sentence. Our error patent review reveals that the sentence is illegally excessive because the trial court incorrectly ordered service of the sentence without parole. The defendant’s sentence is amended to delete the prohibition against parole. We affirm, as amended.

The defendant’s appellate counsel filed a Benjamin brief and motion in this court stating that he had conscientiously and thoroughly reviewed the trial court record and found no non-frivolous issues to raise on appeal, nor any trial court ruling which arguably would support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). In addition to summarizing the procedural history and the facts of the case, the court-appointed attorney’s brief provided a detailed, reviewable assessment of whether the appeal was worth pursuing. State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

|?In accordance with Anders, Mouton and Benjamin, supra, appellate defense counsel also notified defendant of his right to file a pro se brief and sought to withdraw from the case. We held the motion to withdraw in abeyance and advised defendant of his right to file an appellate brief within 30 days of our October 13, 2005 order deferring a ruling on counsel’s motion to withdraw. Defendant has not responded to the notice.

We have examined all the pleadings filed in the district court, the court proceedings, the bill of indictment .and all transcripts contained in the record. Defendant was properly charged by bill of information. Defendant was present in court and represented by counsel at all important stages of the proceedings.

Even if we were to review the constitutionality of defendant’s sentence, we find that the sentence neither shocks the sense of justice nor does it constitute a purposeless and needless infliction of pain and suffering. The imposed sentence was agreed upon. Where a sentence has been agreed to as a consequence of a plea bargain and the sentence imposed is as agreed, the defendant may not appeal his sentence and there is no need for the trial court to give reasons for the sentence as required by La. C. Cr. P. art. 894.1. State v. Rainey, 38,869 (La.App. 2 Cir. 9/22/04), 882 So.2d 716; State v. Jonas, 29,750 (La. App. 2 Cir. 8/20/97), 698 So.2d 744. Additionally, the defendant was a third felony offender, who has previously been convicted of felony theft and simple burglary of an inhabited dwelling.

Our independent review disclosed no non-frivolous issues and no rulings which arguably support an appeal. However, our error patent review | .^discloses that the sentence is illegally excessive. La. R.S. 14:62 provides that the person convicted of simple burglary shall be imprisoned, with or without hard labor, not more than 12 years. La. R.S. 15:529.1 provides that a third felony offender shall be imprisoned for a term not less than one-third the longest term and not more than twice the longest term for first conviction. Additionally, Subsection G provides that any sentence imposed under the habitual offender statute shall be without benefit of probation or suspension of sentence. The trial court did not err in disallowing the defendant benefits of probation and suspension of sentence. However, the trial court erred in ordering the defendant’s sentence be served without the benefit of parole. Accordingly, we amend the defendant’s sentence to delete the prohibition against parole.

For the forgoing reasons, the conviction is affirmed and the sentence is amended, and as amended, affirmed.

CONVICTION AFFIRMED AND SENTENCE AMENDED; AS AMENDED, AFFIRMED.

      . This was an agreed-upon sentence between the state and the defendant. However, as explained below, La. R.S. 14:62 and La. R.S. 15:529.1 A(l)(b)(i) & G do not provide for a prohibition against parole.

      . Although the sentence is amended to remove the prohibition from parole since it is
        not mentioned in the statute of conviction, we note that under La. R.S. 15:574.4(A)(1), a "person convicted of a third or subsequent felony offense shall not be eligible for parole.”


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Ronnie JOHNSON, Appellant.
    No. 40,847-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      James E. Beal, Louisiana Appellate Project, for Appellant.
    Walter Edward May, Jr., District Attorney, Douglas Leon Stokes, Jr., Robert Andrew Moore, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   BROWN, C.J.

| defendant, Ronnie Johnson, was convicted of possession of marijuana, second offense, a violation of La. R.S. 40:966(E)(3), and was sentenced to three years at hard labor. Defendant’s sentence was suspended and he was placed on three years supervised probation. Defendant now appeals the trial court’s denial of his motion to suppress. Finding no error, we affirm.

Facts

On November 24, 2004, three officers from the Jonesboro Police Department were dispatched in response to a 9-1-1 call reporting that a woman was being beaten by a man at the Jackson Square Apartments. The address given was the apartment of defendant, Ronnie Johnson. The officers knocked on defendant’s door but no one responded at that time. Officer Kris Walker testified that he walked around to the rear of the apartment to try to look through the windows. Officer Walker stated that he saw two black male subjects moving about in a “hurried fashion around the apartment.” By the time Officer Walker returned to the front of the apartment, defendant had answered the door.

There is conflicting testimony as to what happened next. Officer Walker testified that as he stood at the door he asked defendant whether there was a fight in the apartment, to which defendant responded “no.” Because the 9-1-1 call had reported violence against a woman, he asked defendant for permission to enter the apartment to ascertain whether there 12was a female inside the residence. Officer Walker further testified, and this testimony was confirmed by Officer Henry Starks, that permission was given by defendant for the officers to enter and look for a female. Defendant, however, testified that the officers did not ask for permission to enter his apartment and instead barged in, repeatedly asking him, “where the girl at?”

Once inside, the officers walked through defendant’s apartment and at one point, Officer Walker cheeked out the bathroom. Specifically, Officer Walker testified that he went into the bathroom to see whether there was anybody in the bathtub. When he pulled back the shower curtain, however, he found the tub to be empty. As Officer Walker turned around to exit the bathroom, he observed what appeared to be marijuana floating in the open commode.

Defendant was arrested for possession of marijuana and charged by bill of information with second offense possession of marijuana. Defendant filed a motion to suppress the evidence obtained from his apartment. After a hearing, this motion was denied by the trial court. On September 9, 2005, defendant pled guilty, reserving his right to appeal the court’s ruling on his motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The only issue on appeal is the trial court’s denial of his motion to suppress.

Discussion

The right of every person to be secure in his person, house, papers and effects, against unreasonable searches and seizures, is guaranteed by the ^Fourth Amendment to the U.S. Constitution and Article I, § 5 of the 1974 Louisiana Constitution. A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.04/09/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La.1985); State v. Ledford, 40,318 (La. App.2d Cir.10/28/05), 914 So.2d 1168.

One of the exceptions to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Strange, 04-0273 (La.05/14/04), 876 So.2d 39; State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Hudnall, 39,723 (La.App.2d Cir.05/11/05), 903 So.2d 605. Oral consent is valid. State v. Hudnall, supra; State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082.

The burden is on the state to prove that the consent was freely and voluntarily given. Id. Voluntariness is a question of fact to be determined by the trial court under the facts and circumstances of each case. This determination is to be given great weight on appeal because of the trial court’s opportunity to observe witnesses and assess credibility. State v. Hudnall, supra; State v. Jennings, 39,543 (La.App.2d Cir.03/02/05), 895 So.2d 767, writ denied, 05-1239 (La.12/16/05), 917 So.2d 1107; State v. Paggett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072.

The plain view doctrine is also an exception to the warrant requirement. State v. Young, 39,546 (La.App.2d Cir.03/02/05), 895 So.2d 753; State v. Ray, 471 So.2d 831 (La.App. 2d Cir.1985), writ denied, 475 So.2d 364 (La.1985). The plain view doctrine renders a warrantless search and seizure of evidence reásonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Young, supra; State v. Nolen, 29,284 (La.App.2d Cir.04/04/97), 691 So.2d 379.

Defendant contends that his apartment was searched in violation of his constitutional rights and therefore any evidence recovered as a result is inadmissible. According to defendant, he did not give the officers permission to search his residence. Pointing out that the Jonesboro Police Department had recently received several “phantom” or “crank” 9-1-1 calls, it is defendant’s theory that the officers used the 9-1-1 call as a ruse to search his home without the necessity of obtaining a warrant or establishing probable, cause. According to defendant, there was no probable cause because there was no indication of either a female having been in the apartment or a fight having taken place. Thus, there were no exigent circumstances to justify the officers’ warrantless entry into his home.

On the other hand, the state argues that the search of defendant’s apartment was made only after defendant gave the officers permission to come into his residence to search for a female allegedly involved in a fight Rand that the discovered evidence was in plain view in a place in which the officers were lawfully present. Therefore, the search falls within an exception to the warrant requirement and the motion to suppress was properly denied.

Keeping in mind that in reviewing a ruling on a motion to suppress, we place great weight on the trial court’s factual determinations because of that court’s opportunity to observe witnesses and assess credibility, State v. Traylor, 31,378 (La. App.2d Cir.12/09/98), 723 So.2d 497, we find that the evidence supports the trial court’s ruling in the instant case. Both Officers Walker and Starks testified that defendant gave them permission to enter his apartment to search for the female referred to in the 9-1-1 call. Officer Walker, while making a consensual search of the bathroom, saw what appeared to be marijuana floating in the open commode. The substance, location of the substance, and the officer’s experience provides enough information from which the officer could have concluded without close inspection that the substance was evidence or contraband. This assignment of error is meritless.

Conclusion

For the reasons set forth above, we find that defendant’s motion to suppress was properly denied by the trial court. Defendant’s conviction and sentence are AFFIRMED.

      . In addition to the standard conditions of probation, he was to pay all costs within 30 days, a fine of $2,000 over the first 18 months of his probation, and $55 per month as a probation supervision fee.

      . At a pre-trial hearing, the state stipulated that any statements made by defendant in response to questions asked by Officer Walker the night of the incident were inadmissible.

      . Because this search was found to be based upon defendant’s consent and plain view exceptions, a discussion of the most recent U.S. Supreme Court case and its implications concerning domestic violence is unnecessary. See Georgia v. Randolph, - U.S. -, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).


author: MOORE, J. DREW, J.,

text:
    Jorge W. CARRION, Plaintiff-Appellant, v. Macy Diane SANDIFER, National Automotive Insurance Co., Caddo Insurance Agency, Inc. and Safeway Insurance Co. of Louisiana, in Solido, Defendant-Appellees.
    No. 40,880-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Rice & Kendig by William F. Kendig, Marshall Carl Rice, for Appellant.
    Johnson Law Office, L.L.C. by Wade A. Johnson, Metairie, for Appellees Macy Diane Sandifer & National Automotive Insurance Company.
    Hersy Jones, Jr., Shreveport, for Appel-lee Caddo Insurance Agency.
    Tracy L.' Oakley, Derrick D. Kee, for Appellee Safeway Ins. Co.
    Before PEATROSS, DREW and MOORE, JJ.
   MOORE, J.

11 Jorge Carrion appeals a judgment finding that he failed to own or maintain compulsory motor vehicle liability security in violation of La. R.S. 32:866 A(l) (the “no pay, no play” statute) and could not recover damages from his tortfeasor’s insurer, National Automotive Insurance Company (“National”). He urges a good faith exception to the statute. For the reasons expressed, we affirm.

Factual Background

The accident occurred shortly after midnight on August 2, 2003. Carrion was exiting the parking lot of Blockbuster Video on Mansfield Road. With a green light, he pulled onto Jewella Road in his Plymouth Grand Voyager van. At that moment, Macy Sandifer was driving a Pontiac Grand Am south on Mansfield Access Road, which has only a stop sign at this intersection. Although she insisted she stopped and the coast was clear, Ms. San-difer T-boned Carrion’s van about halfway through the access road.

The main issue at trial was whether Carrion was carrying compulsory auto insurance. His brief describes him as “an Argentine émigré [who] speaks only minimally passable English and generally relies on an interpreter for assistance with personal business matters.” After he bought the van in 2002, he went to Caddo Insurance Agency on Linwood Avenue. Caddo Insurance’s office manager, Jewel Robertson, sold him a policy with Safeway Insurance Company of Louisiana (“Safeway”) which could be renewed monthly. He listed as his address a house on Kent Avenue, where he was living with his friend and interpreter, Sacora Dupres. In fact, after his initial visit to Caddo Insurance in December 2002, he usually sent Ms. | ¡¿Dupres with a money order to pay his renewal premiums. Sometime in early 2003, he moved out of Ms. Dupres’s house and into an apartment on Red Fox Trail but did not tell Caddo Insurance about his new address. However, he continued to stop by Ms. Dupres’s house almost daily and get his mail.

Carrion’s last monthly policy with Safeway was set to expire July 28, 2003. Over one month earlier, on June 27, Safeway sent Carrion a notice that his policy would not be renewed at its expiration because “your agent no longer represents our company.” This was mailed to Carrion at the Kent Ave. address, but neither he nor Ms. Dupres recalled receiving it. A copy was also mailed to Caddo Insurance. The agency’s president, John W. Brumfield Jr., testified that his license to operate had expired some years earlier, but that he continued to operate until his final application for renewal was rejected in July or August 2003.

At any rate, Ms. Dupres went to Caddo Insurance’s office on July 21 and made a premium payment to renew Carrion’s policy. Ms. Robertson accepted the money order and forwarded it to Safeway. She testified that as far as she knew, he would be insured for another month; only later did she receive from Safeway a “formal letter stating they were no longer doing business with Caddo Insurance * * * due to the losses.” On July 25 Safeway returned the cheek to Caddo Insurance with the notice: “The attached payment is being returned to you because * * * the policy has been set for non-renewal.” Ms. Robertson testified that she phoned all her former Safeway policyholders and asked them to come in and make other [¡¡arrangements, but she did not specifically recall phoning Carrion.

Carrion made no other arrangements before the accident occurred on August 2.

Carrion filed the instant suit in January 2004 against Ms. Sandifer and National, and Safeway and Caddo Insurance. He alleged that Safeway had issued a policy which was in full force and effect at the time of the accident; alternatively, he alleged that Safeway and Caddo Insurance failed to insure him after receiving all necessary information and payment.

Action of the District Court

After receiving the evidence outlined above, the district court rendered judgment finding that Carrion did not have a valid policy with Safeway, owing to “a proper notice of non-renewal forwarded June 27, 2003, effective July 18, 2003, and the July 25, 2003 return of premium paid July 21, 2003.” The court further found that Ms. Sandifer was solely at fault in causing the accident and that her car was insured by National. The court fixed Carrion’s special damages at $3,848.24 and general damages at $5,000, for a total of $8,848.24. Neither the allocation of fault nor the quantum has been appealed.

The court then held that the “no pay, no play” statute prevented Carrion from recovering the first $10,000 of his bodily injury and the first $10,000 of his property damage from Ms. Sandifer and National. However, the court found that Caddo Insurance held itself out to the public as an insurance agency and failed to secure a policy for Carrion, resulting in his inability to recover damages from Ms. Sandifer and National. The court | ¿therefore rendered judgment against Caddo Insurance for $8,484.24, but rejected the claims against all other defendants.

Carrion has appealed.

Applicable Law

Louisiana’s “no pay, no play” law, La. R.S. 32:866, provides in pertinent part as follows:

§ 866. Compulsory motor vehicle liability security; failure to comply; limitation of damages
A. (1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
(3)(a) The limitation of recovery provisions of this Subsection do not apply if the driver of the other vehicle:
(i) Is cited for a violation of R.S. 14:98 as a result of the accident and is subsequently convicted of or pleads nolo con-tendere to such offense.
(ii) Intentionally causes the accident.
(iii) Flees from the scene of the accident.
(iv) At the time of the accident, is in furtherance of the commission of a felony offense under the law.

The purpose of the “no pay, no play” law is to reduce the premiums charged for motor vehicle insurance and to discourage the ownership and operation of uninsured motor vehicles. Bryant v. United Services Auto. Ass’n, 2003-3491 (La.9/9/04), 881 So.2d 1214.

| ¡¡Proof of mailing of the notice of cancellation, or of the intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice. La. R.S. 22:636.1 F. Proof of mailing to the named insured at the address on the policy is sufficient to establish a rebuttable presumption of delivery which can be overcome by affirmative proof of non-delivery. Snow v. Mid-American Indem. Co., 557 So.2d 1073 (La.App. 2 Cir.1990).

The Parties’ Contentions

By one assignment of error, Carrion urges the district court erred in failing to apply a good faith exception to R.S. 32:866 “for a motorist who complied with all requirements of the insurer, paid his premium timely but his premium was returned and the policy was cancelled by the insurer because the producing agent/agency allowed his/its license to write coverage to lapse in 1995.” He argues that the obvious intent of the statute is to encourage compliance with compulsory insurance; hence, the only persons who should be penalized are those who fail to obtain it. He contends that as a penal statute § 866 should be strictly construed: by choosing the term “fails to own or maintain,” the legislature implicitly approved a good faith exception. Otherwise, he suggests, the legislature would have simply said, “does not have compulsory motor vehicle liability security.” He argues that the law is replete with good faith exceptions, notably La. R.S. 22:1220, 658 and 657, under which an insurer is penalized for failing to settle claims if it acts in bad faith. He reiterates that he did everything he could to obtain coverage, but was frustrated by Caddo | Jnsurance’s misconduct. Finally, he argues that National should not receive a windfall simply because of Caddo Insurance’s misdeeds.

National responds that R.S. 32:866 A(l) is clear as written; the fact that Carrion did not have insurance is the same as that he failed to have it. Further, National contends that Safeway gave Carrion sufficient notice of non-renewal by mailing it to his last known address, in compliance with R.S. 22:636.1 D(l).

Safeway responds that R.S. 32:866 A(3) sets forth the only applicable exceptions to “no pay, no play,” and there is none for “an insured motorist whose agent failed to acquire liability coverage for him.” Safeway also maintains that it properly notified Carrion of his non-renewal and Caddo Insurance of its lapsed license, so neither one was truly in good faith.

Caddo Insurance has not filed a brief. Apparently Mr. Brumfield closed the agency after his license was revoked.

Discussion

In seeking a good faith exception to the “no pay, no play” statute, Carrion concedes that he did not have a valid policy with Safeway, and the record confirms this. Without objection, Safeway introduced into evidence Exhibit S-2, a copy of the notice of non-renewal marked “Date of mailing 6/27/03” and addressed to Carrion at the Kent Ave. address. This satisfied Safeway’s burden of proof under R.S. 22:636.1 D(l). Neither Carrion, nor Ms. Dupres, who still lived there, could recall receiving it; however, Carrion admitted that he had moved without notifying Safeway of his new address. The district court was not plainly wrong to find this evidence insufficient to j7rebut Safeway’s prima fa-cie showing. Snow v. Mid-American Indem. Co., supra; Aultman v. Rinicker, 416 So.2d 641 (La.App. 2 Cir.1982).

We have closely considered Carrion’s contention that the phraseology of § 866 A(l), “fails to own or maintain,” denotes something less than “does not have,” and thus would penalize only a truly negligent owner or operator. We perceive no such distinction. In fact, in Costly v. Batiste, 01-496 (La.App. 5 Cir. 11/14/01), 802 So.2d 752, the court interpreted the statute as follows:

It [R.S. 32:866 A(l)] mandates that a driver who does not own or maintain a policy of liability insurance is precluded from collecting damages for the first $10,000 of either bodily injury or property damage sustained in an automobile accident.

(Emphasis added.)

The court obviously read fails to as equivalent to does not, and we find this a fair and reasonable construction. We decline to accept the proposition that because Carrion did not own or maintain insurance, he somehow did not fail to do so.

The principal thrust of Carrion’s argument is that the court should engraft onto § 866 a good faith exception for someone who complied with every requirement for obtaining mandatory insurance but was frustrated by the misconduct of his agent. The statute contains no such exception, even though the legislature was aware of the need for certain other exceptions enacted in § 866 A(3)(a). To add a good faith exception, while surely equitable on the instant facts, strikes us as a policy decision best left to the legislature, not to this court.

IsThe legislature was plainly aware that in certain situations, negligent or unscrupulous insurance agents would collect premiums yet fail to apply them the policies. This is precisely what happened in Costly v. Batiste, supra. Costly contended that “he went, in good faith, to ABC [the agency] to obtain insuranee[,] paid approximately $400.00 and thought ABC placed him with Patterson [the insurer].” For some reason, ABC never forwarded the premium. The district court granted a summary judgment in favor of his tortfea-sor’s insurer, State Farm, as Costly had no insurance. The Fifth Circuit affirmed, noting that Costly’s potential claim against ABC was not relevant to State Farm’s liability. In short, § 866 appears to contemplate that the good faith plaintiff may pursue his insurance agent — which is precisely what happened here. Although the prospects of recovery from Caddo Insurance appear minimal, we will not supply equity where the statute contemplates a remedy at law.

Finally, we are not persuaded by the analogy to La. R.S. 22:1220, 658 and 657. These statutes hold the insurer to a standard of good faith and penalize it for arbitrary and capricious failure to pay claims; they do not create equitable remedies for third party claimants who feel they acted in good faith.

We decline to create a good faith exception to R.S. 32:866. Carrion’s able argument raises policy considerations better addressed to the legislature |9than to this court.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are to be paid by the appellant, Jorge Carrion.

AFFIRMED.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

1. The majority has crafted an excellent opinion, and ably set out the facts and the law. However, this result does not do justice. If there were ever to be a good faith exception under “no pay, no play,” this is the case. In order for justice to be done, the legislature should provide the courts some leeway in exceptional situations like that of Mr. Carrion. I respectfully dissent.

      . Section 1220 explicitly imposes upon an insurer the duty of "good faith and fair dealing" in adjusting the claims of its insured and defines a breach of that duty as failing to pay a claim timely "when such failure is arbitrary, capricious, or without probable cause.” R.S. 22:1220 A, B(5). Section 658 imposes upon an insurer the duty to settle third-party claims within a prescribed time and imposes a penalty if the failure to do so is arbitrary, capricious or without probable cause. R.S. 22:658 B(l), (4). Section 657 does not apply to personal vehicle damage claims, but it penalized insurer who fails to pay a claim without "just and reasonable grounds.” R.S. 22:657 A.


author: LOLLEY, J. ,

text:
    STATE of Louisiana, Appellee v. Sash WYNNE, Appellant.
    No. 40,921-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Law Offices of James L. Fortson, by John N. Bokenfohr, Shreveport, for Appellant.
    J. Schuyler Marvin, Webster Parish District Attorney, Charles A. Smith, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J. ,

| ^his criminal appeal arises from the 26th Judicial District Court, Parish of Webster, State of Louisiana. Pursuant to a plea bargain agreement, Sash Wynne pled guilty to simple burglary, a violation of La. R.S. 14:62. He was subsequently sentenced to serve 12 years imprisonment at hard labor, with credit for time served. Wynne appeals his conviction and sentence. For the following reasons, we affirm.

Facts

Wynne was originally charged with first degree murder, which was later reduced to second degree murder, for his alleged involvement in the October 2003 death of Joe Raspberry. On December 23, 2004, Wynne appeared in court with his trial counsel and entered a plea of guilty to simple burglary. The trial court ordered a pre-sentence investigative report to be prepared. At the sentencing hearing, the trial court considered the PSI report as well as the factors contained in La. C.. Cr. P. art. 894.1 and sentenced Wynne to serve 12 years imprisonment at hard labor, with credit for time served. Subsequently, Wynne filed a motion to reconsider sentence and to withdraw his guilty plea, which was denied by the trial court after a hearing and consideration of same. This appeal by Wynne ensued.

Discussion

Withdrawal of Guilty Plea

In his first assignment of error, Wynne argues that the trial court erred in denying his motion to reconsider sentence and/or withdraw the guilty | ?plea. Specifically, Wynne argues that his agreement with the state was to testify truthfully at Edwards’ trial in exchange for mitigation regarding the length of his sentence, and it was never explained to him that he would receive the maximum sentence allowable for simple burglary. Wynne contends that he was offered and believed that he would receive probation if he testified against Edwards. He maintains that he received no benefit from his truthful testimony against Edwards, the state failed to meet its obligation under the plea bargain agreement, and, as a result, he should have been allowed to withdraw his guilty plea; thus, the trial court erred in not allowing him to subsequently withdraw his guilty plea. We disagree.

A defendant has no absolute right to withdraw a guilty plea. State v. Hoover, 34,952 (La.App.2d Cir.04/05/01), 785 So.2d 184. A trial court, in its discretion, may allow a guilty plea to be withdrawn at any time prior to sentencing. La. C. Cr. P. art. 559(A). After sentence has been imposed, La. C. Cr. P. art. 559 does not apply, although the trial court can still grant a post-sentence motion to withdraw a guilty plea. If the trial court finds either that the guilty plea was not free and voluntary or that the Boykin colloquy was inadequate (to the extent of violating the defendant’s constitutional rights), the trial court has the authority to vacate the sentence and set aside the plea. State v. Hoover, supra.

When the record establishes that an accused was informed of and waived his right to trial by jury, to confront his accusers and against self-incrimination (which in this case, Wynne was), the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Bradford, 627 So.2d 781 (La.App. 2d Cir.1993), writ denied, 94-0006 (La.04/22/94), 637 So.2d 154; see also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Here, Wynne failed to meet that stated burden.

Initially, we point out that on appeal Wynne mischaracterizes the plea agreement between him and the state. He maintains that in exchange for his truthful testimony against Edwards, he was to receive mitigation regarding the length of his sentence, specifically a five-year probation. However, the record does not at all show this to be the plea bargain agreement between Wynne and the state.

At the commencement of Wynne’s guilty plea proceeding, the state prefaced the proceeding with a statement that the only agreement between Wynne and the state was that Wynne would “testify truthfully” at the upcoming trial of Edwards, sentencing would be up to the court, and all other charges arising out of the events of October 10, 2003, would be dismissed. Wynne’s attorney responded to that as being “agreeable.” The trial court asked Wynne if he heard the state’s statement and his attorney’s response, and if he accepted the agreement. Wynne responded affirmatively. The state went on to describe the new bill of information (for simple burglary) to which Wynne would plead guilty.

The trial court asked Wynne if his attorney explained the minimum and maximum sentence he could receive on all of the original charges, and on the simple burglary charge to which he was about to plead, the colloquy being as follows:

|4The Court: And has [your attorney] also explained to you the minimum and the maximum sentence you could receive on the charge to which you are about to plead?
Mr. Wynne: Yes, sir.
The Court: Do you recall what the sentence range is?
Mr. Wynne: I think it’s zero to twelve, ain’t it?
The Court: Zero to twelve with or without hard labor, do you understand that?
Mr. Wynne: Yes, sir.
The Court: And you understand that I will order a presentence investigation in your case.
Mr. Wynne: Yes, sir.
The Court: And that after I receive and review that presentence investigation I’ll decide what your actual sentence will be, do you understand that?
Mr. Wynne: Yes, sir, yes, sir.

Upon further questioning by the trial court, Wynne acknowledged that he was satisfied with his legal representation, and he was fully aware of what was going on that day. Wynne denied being under the influence of any type of drug or alcoholic substance. The trial court also advised Wynne that by pleading guilty to a felony offense, it could be used against him in the future as a sentencing enhancement in a habitual offender proceeding, which he understood. The trial court then fully explained to Wynne his Boykin rights, and Wynne acknowledged that he understood and waived those rights by pleading guilty.

Wynne was again asked if he understood that a part of the condition of the plea bargain agreement was that he would testify truthfully against any co-defendants that went to trial, to which he responded, “Yes, sir.” The trial court asked the district attorney if that was correct, and the district attorney responded that there were not any co-defendants on this particular bill, but the only remaining co-defendant on the prior bill was Edwards. | ¡Wynne's attorney agreed that this information was correct. The colloquy continued:

The Court: All right, so that is a condition of this plea and you understand that and agree to that, Mr. Wynne?
Mr. Wynne: Yes, sir.
The Court: All right. Any promise been made to you, any threat made against you to influence the plea you’re about to make?
Mr. Wynne: No, sir. (Emphasis added).

In this case, Wynne filed his motion to withdraw his guilty plea after his sentence was imposed; thus La. C. Cr. P. art. 559 does not apply. The record established that Wynne was informed of and waived his right to trial by jury, to confront his accusers and against self-incrimination, and he also stated his understanding of those rights. Hence, the burden shifted to Wynne to prove that despite this record, his guilty plea was involuntary. See State v. Hoover, supra. Wynne fails to prove that his guilty plea was involuntary.

Wynne was given ample opportunity to express his understanding of his agreement with the state. He agreed with the initial characterization of the plea agreement as explained by the state at the commencement of the hearing. He was carefully and fully advised of the sentencing range for simple burglary, and that a presentence investigation report would be ordered and reviewed by the trial court before determining Wynne’s sentence. In fact, it is abundantly clear from the guilty plea transcript that Wynne understood that the sentencing range was “zero to twelve, ain’t it,” as he himself informed the trial court. Finally, he was asked explicitly if | fiany promises had been made to him regarding his plea, and he responded no. Only after Wynne received the maximum sentence did he offer his own self-serving statement, as well as his mother’s, that he was promised a probated sentence. Notably, Wynne claims that his trial attorney informed him of the sentencing promise; however, Wynne would not waive the attorney/client privilege which would have allowed his trial attorney to testify regarding their discussions of the plea agreement.

Wynne also claims he met his end of the bargain with the state by testifying truthfully, but that the trial court’s subjective belief that Wynne failed to do so resulted in the trial court sentencing him to the maximum penalty for simple burglary. Wynne argues that the trial court’s belief caused the agreement between him and the state to be breached. It is well settled that a plea agreement is considered a contract between the state and the criminal defendant. See State v. Peyrefitte, 2004-0742 (La.10/15/04), 885 So.2d 530; State v. Nall, 379 So.2d 731 (1980); State v. Adams, 2004-77 (La.App. 3d Cir.09/29/04), 884 So.2d 694, writs denied, 2004-2709, 2004-2880 (La.02/25/05), 894 So.2d 1131-32; State v. Roberts, 2001-3030 (La.App. 1st Cir.06/21/02), 822 So.2d 156, writ denied, 2002-2054 (La.03/14/03), 839 So.2d 31.

We note that the plea agreement, as clearly stated on the record and agreed to by Wynne, contained two reciprocal elements: Wynne would testify truthfully at Edwards’ trial (which he claims he did), and the state would agree to reduce the charges against Wynne from murder to simple burglary (which the state did). There was no agreement regarding Wynne’s |7sentence. Clearly, the state met its end of the bargain by reducing the charges against Wynne to simple burglary. If anything, Wynne’s failure to testify truthfully (as perceived by the trial court) may have given the state grounds to seek a withdrawal of the plea as a result of Wynne’s breach of the agreement. However, considering the terms of this particular plea bargain agreement, we find it immaterial that the trial court may have had a subjective belief that Wynne failed to live up to his end of the deal, because there is no proof that a promise was made to Wynne regarding his sentence — he even admits at the guilty plea hearing that no promise was made to him. Thus, the trial court’s stated subjective belief had no effect on the terms of the plea agreement between Wynne and the state.

In this case, there is nothing on the record that indicates that the state or the trial court reneged on its agreement with Wynne or that Wynne’s guilty plea was otherwise involuntary. The trial court did not err in denying Wynne’s motion to withdraw his plea, and this assignment is without merit.

Factual Basis of the Pled Offense

In his second assignment of error, Wynne states that the trial court erred in that no factual basis ever existed for any element of the offense of simple burglary, La. R.S. 14:62. Wynne maintains that according to the testimony given at the hearing on the motion to reconsider sentence and to | swithdraw the guilty plea, he pled guilty to a crime that was never committed. He contends that during the guilty plea proceeding, the state recited the underlying facts of the case, but never claimed that Wynne committed any theft of a handgun or any theft whatsoever.

A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, including insufficiency of the evidence. State v. Crosby, 338 So.2d 584 (La.1976); State v. Stephan, 38,612 (La.App.2d Cir.08/18/04), 880 So.2d 201. A validly entered guilty plea, or plea of nolo contendere, waives any right a defendant might have had to question the merits of the state’s case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710.

It also dispenses with any appellate review of the state’s case against the defendant. State v. Hardy, supra; State v. Buggs, 567 So.2d 744 (La.App. 2d Cir. 1990). Notwithstanding that, we do note that at Wynne’s guilty plea hearing, the state provided the following facts for the record:

... on or about October 10, 2003, this individual did, without authority, enter the dwelling belonging to Roger Collins located, excuse me, here in Webster Parish, Louisiana. Also, with him entered another individual named James Edwards and they did not have authority to be in the residence and while therein a theft was committed, that theft being of a firearm.

When the trial court asked Wynne if he heard that brief statement of the facts and whether those facts were “substantially correct,” Wynne replied affirmatively. The trial court found that there was a factual basis to support a plea in this case and asked Wynne if he wished to plead guilty or not guilty to one count of simple burglary. Wynne replied, “Guilty.”

| nNotably, there is no requirement that a guilty plea even be accompanied by the recitation of a factual basis for the crime. State v. Griffin, 633 So.2d 358 (La.App. 1st Cir.1993), writ denied, 94-0240 (La.10/14/94), 643 So.2d 157. “[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea.... Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” Id. at 360, quoting State v. Porry, 515 So.2d 654 (La. App. 3rd Cir.1987).

Wynne points to testimony occurring after the entry of his guilty plea as evidence that the facts recited by the state did not support his plea. A trial court should consider all relevant factors related to the guilty plea; however, that consideration should be limited to factors that were present at the time of the guilty plea. See State v. Burnett, 33,739 (La. App.2d Cir.10/04/00), 768 So.2d 783, writ denied, 2000-3079 (La.11/02/01), 800 So.2d 864. Here, Wynne claims that information after his guilty plea should serve to invalidate his plea — pointing to evidence he argues indicates that the burglary never occurred, specifically his testimony at Edwards’ trial and the testimony at the hearing on his motion to reconsider sentence and to withdraw guilty plea. These factors were not brought forward at the time of the guilty plea, nor for that matter does the said testimony conclusively establish that a burglary did not occur. Moreover, nothing in the guilty |inplea transcript suggests that Wynne’s plea was coerced or that Wynne had expressed his innocence or even held a subjective belief of his innocence. A review of the guilty plea transcript shows no irregularity in the proceedings in this regard, and this assignment of error is also without merit.

Sentencing

In his third and final assignment of error, Wynne argues that his 12 year sentence was excessive based on his criminal history and the mitigating factor that he testified as a state witness against Edwards.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. However, a substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.02/27/02), 811 So.2d 176. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La. App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

|12At Wynne’s sentencing hearing, the trial court acknowledged that it had received and reviewed Wynne’s PSI report and thoroughly set forth the contents. After outlining a litany of crimes for which Wynne had pled guilty, the trial court concluded that Wynne obviously has a serious problem with violence and noted that none of his probations were satisfactorily completed. The trial court further noted that Wynne was originally subject to capital punishment and then life imprisonment for his involvement in Raspberry’s death and therefore obtained a substantial benefit from the reduction of charges. It then discussed the factors set forth in La. C. Cr. P. art. 894.1 and sentenced Wynne to serve 12 years imprisonment at hard labor, with credit for time served — the maximum penalty for simple burglary.

We do not find Wynne’s sentence to be excessive, in light of his PSI report and the particular facts of this entire case. We concur with the trial court’s assessment of Wynne — he has a “serious problem with violence.” As reflected in Wynne’s PSI report, he has the following convictions:

• January 18, 1998, charged with simple burglary, pled guilty to misdemeanor theft;
• January 30, 1999, charged with second degree battery, pled guilty to simple battery;
• July 2, 1999, charged with second degree battery, pled guilty to simple battery;
• August 4, 2001, charged with public drunkenness, disturbing the peace, resisting an officer, battery on a police officer and simple battery, charges still pending; and
• August 21, 2003, charged with simple battery and aggravated assault, pled guilty as charged.

| ^Additionally, Wynne received a substantial benefit in his plea with a reduction from a murder charge to simple burglary — his sentencing exposure was greatly reduced. In fact, Wynne originally faced capital punishment and then life imprisonment for his involvement in Raspberry’s death and therefore obtained a substantial benefit from the reduction of charges to simple burglary — even if he did receive the maximum sentence for the crime. So considering, the maximum sentence for this particular defendant was reasonable and not excessive.

Conclusion

For the foregoing reasons, the conviction and sentence of Sash Wynne are affirmed.

AFFIRMED.

      . James Edwards was later tried and convicted of manslaughter and armed robbery in connection with the killing of Raspberry. His convictions and sentences were affirmed by this court in State v. Edwards, 40,423 (La. App.2d Cir. 12/14/05), 918 So.2d 61, an unpublished opinion.

      . As is discussed later, Wynne had previous experience in negotiating plea bargain agreements with the state — he had pled guilty to five previous charges as well.

      . The facts here are clearly different than those in Roberts, supra, the case cited by Wynne, where the First Circuit gives an in depth discussion of a plea agreement as a contract and allowed the withdrawal of a guilty plea. In Roberts, the state made a plea agreement with the defendant, on the record, that reflected an anticipated sentence of probation, with the option of withdrawing the plea if the ultimate sentence was heavier. Because the trial court sentenced Roberts to seven years of hard labor, a sentence "more stern” than the agreed upon probation, the First Circuit determined that the plea was not free and voluntary and allowed the withdrawal of the plea. Id. at 160-61.

      . At the hearing to withdraw Wynne's guilty plea, Roger Collins testified that he had no idea what happened on October 10, 2003. Roger testified that he was home during the time the burglary occurred, but that he was asleep. He admitted to owning the subject gun (which was said to be the murder weapon in the Edwards trial) and giving it to his son, David. He also admitted that the gun was missing. Although David stated that Wynne did not enter his house without permission nor did he take the gun, David did admit that he was not awake during the pertinent time period in which the burglary took place. Notably, at Edwards’ trial, Wynne admitted to entering Collins' house that morning without permission. He also admitted to doing drugs with Edwards that morning as well.


author: PEATROSS, J.

text:
    George M. McCORMICK, II, Plaintiff-Appellant, v. Donald HARRISON, Defendant-Appellee.
    No. 40,958-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Nelson & Hammons by John L. Ham-mons, Cornell R. Flournoy, Shreveport, for Appellant, Susan U. McCormick.
    John E. Settle, Jr., APLC by John E. Settle, Jr., Bossier City, for Appellee.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   PEATROSS, J.

I,This appeal by Plaintiff, Dr. George M. McCormick, II, arises from the denial of McCormick’s petition to terminate a servitude that Defendant, Donald Harrison, claimed to exist in his favor. For the reasons stated herein, we affirm.

FACTS

This is a dispute over a servitude of use for a private horse racetrack in Bossier Parish. Harrison owns a two-acre tract in Bossier Parish that he purchased from Danny and Susan Payne. When the Paynes acquired the property in 1993 from Gilbert and Nancy Ciavaglia and Plum Hill Training Center, Inc., the Paynes acquired the following rights:

As additional consideration, Vendor grants to Vendee a non-exclusive servitude of usage of a 5/8 mile horse race track located in the East Half (El/2) of Section 27, T19N, R12W, Bossier Parish, Louisiana, which servitude shall include the right to gallop and exercise at all reasonable times, a maximum of fifteen (15) horses stabled at Vendee’s barn located on the above described track (sic) of land; provided that Vendee shall pay Vendor $100.00 per month maintenance fees for any month that any of Vendee’s horses are exercised on said 5/8 mile track.

The 1995 deed conveying the property from the Paynes to Harrison included this language:

Included in this transfer are all of vendor’s rights under that certain non-exclusive servitude of usage of a 5/8 mile horse track located in the East half (El/2) of Section 27, Township |⅞19 North, Range 12 West, Bossier Parish, Louisiana, as set forth in the Cash Deed from Gilbert A. Ciavaglia et al. to Danny W. Payne et al., recorded under registry number 561809, Conveyance Records of Bossier Parish, Louisiana.

The horse track described in the 1993 and 1995 deeds is located on McCormick’s property, a much larger tract immediately to the northeast of Harrison’s tract. McCormick purchased this tract from Lifeline Nursing Company (“Lifeline”) in September 2004. Lifeline purchased the tract from the Ciavaglias in 1999. Neither the plaintiffs deed nor the deed from the Ciavaglias to Lifeline mentioned the horse track or the servitude.

From the time when Harrison purchased his property in 1995 until 1999 when the Ciavaglias sold the track to Lifeline, Harrison exercised his horses on the track. Harrison paid the Ciavaglias $100 for each month he used the track; the payments were made at irregular intervals. After the Ciavaglias sold the property containing the track to Lifeline, Harrison did not use the track because Lifeline objected to Harrison’s use of the track.

When Lifeline sold the property to McCormick, Harrison decided to use the track. Without contacting McCormick, on October 26, 2004, Harrison’s employee exercised a horse on the track without interference. On October 28, 2004, Harrison’s employee attempted to use the track, but McCormick’s son arrived and asked him to leave. The employee complied, but the next day Harrison’s employee returned to exercise another horse on the track, accompanied by a deputy sheriff. McCormick or his representative again asked Harrison’s employee to leave, and that was the last time Harrison tried to use the track. Harrison did not attempt to pay McCormick $100 for the use of the track at any time; he testified that he |3was asked to leave, not to pay $100. It is not clear from the evidence adduced at trial whether the horse that Harrison trained at the track was stabled at Harrison’s barn.

In December 2004, McCormick filed a rule to show cause in the district court asking for a declaratory judgment to decide the parties’ rights to the track. Specifically, McCormick asked the court for a judgment declaring that the servitude was extinguished. Harrison answered the rule and brought a reconventional demand asking for damages because of McCormick’s refusal to allow Harrison to use the track.

At trial, the parties disagreed about the condition and usefulness of the track. McCormick, who had been a horse trainer for many years, said that the track was unusable and “totally unsafe for horse or rider” because a previous owner of the property had plowed over the track and had brought up subsurface rocks. Harrison, also an experienced horseman, agreed that the track was unsuitable for running horses, but said that the track was “fine for a horse that you’re just breaking or colts to be broke and go on.”

After considering the evidence, the court signed a judgment on September 2, 2005, incorporating reasons for judgment. The court concluded that the servitude held by Harrison was a personal servitude that was still in existence. The court declared that Harrison was entitled to continue to use the track so long as he paid McCormick $100 per month, in advance, for the use of the track. The court also held that Harrison did not owe McCormick for the month of October 2004. Finally, the court denied Harrison’s demand for damages. McCormick took a suspensive appeal.

\ ¿DISCUSSION

The trial court found the servitude established by the Paynes’ deed to be a personal servitude of right of use, and we agree with that characterization. By use of the terms “vendor” and “vendee,” the parties made clear their intent that the servitude ran in favor of persons and not estates. La. C.C. arts. 533, 534, 639; Sustainable Forests, L.L.C. v. Harrison, 37,152 (La.App.2d Cir.5/22/03), 846 So.2d 1283. Limited personal servitudes are real rights that confer on a person limited advantages of use or enjoyment over an immovable belonging to another. Swayze v. State, DOTH, 34,679 (La.App.2d Cir.9/17/01), 793 So.2d 1278, writ denied, 01-3136 (La.2/1/02), 808 So.2d 342, citing Yiannopoulos, 3 Civil Law Treatise § 223 (4th Ed.2000). Such rights are transferable. La. C.C. art. 643.

Right of use servitudes are regulated by the rules governing usufruct and predial servitudes to the extent that these rules are compatible with the servitude of right of use. La. C.C. art. 645. Doubt as to the existence, extent or manner of exercise of a servitude must be resolved in favor of the estate claimed to be burdened by the servitude. La. C.C. art. 730; St. Andrews Place, Inc. v. City of Shreveport, 40,260 (La.App.2d Cir.11/4/05), 914 So.2d 1203; Mardis v. Brantley, 30,773 (La.App.2d Cir.8/25/98), 717 So.2d 702, writ denied, 98-2488 (La.11/20/98), 729 So.2d 563.

A servitude may terminate in several different ways. For example, if that part of the servient estate that is burdened with the servitude is | spermanently and totally destroyed, the servitude is extinguished. La. C.C. art. 751. Although there was some evidence through McCormick’s testimony that the horse track was in an unusable condition, the trial court accepted Harrison’s testimony that the track remained useful for a limited purpose. A servitude may also end due to nonuse for a period of ten years. La. C.C. arts. 752-756. In this case, less than ten years had elapsed since Harrison used the track pri- or to his attempts to use it during McCormick’s ownership.

In brief, McCormick urges that the servitude terminated because Harrison did not pay McCormick $100 for the use of the track in October 2004. Again, the evidence shows that, in October, Harrison used the track one day without interference and thereafter attempted twice to use the track only to be turned away. The evidence does not show that Harrison or his employee offered to pay for the use of the track, nor does the evidence show that McCormick or his representative demanded payment of the $100. The agreement creating the servitude specifies only that “Vendee shall pay Vendor $100.00 per month maintenance fees for any month that any of Vendee’s horses are exercised on said 5/8 mile track.” The agreement does not specify when or where payment is to be made.

We find no support in the civil code for the argument that a right of use servitude terminates upon the failure of the holder of the right to pay an installment. We have considered La. C.C. art. 749, which provides:

Llf the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.

This article, however, is intended to govern the scope of the servitude itself. The manner and place of payment for the servitude or right of use, at least in this instance, are not closely related to the purpose of the right, so the purpose of the right does not provide guidance for resolving this dispute.

Instead, the allowable delay for making the payment may be examined under the law of obligations. La. C.C. art. 1777 provides:

A term for the performance of an obligation may be express or it may be implied by the nature of the contract. Performance of an obligation not subject to a term is due immediately.

La. C.C. art. 1778 provides:

A term for the performance of an obligation is a period of time either certain or uncertain. It is certain when it is fixed. It is uncertain when it is not fixed but is determinable either by the intent of the parties or by the occurrence of a future and certain event. It is also uncertain when it is not determinable, in which case the obligation must be performed within a reasonable time.

Under the terms of the right of use, the holder of the right is entitled to use the track, but must pay the owner for each month when the track is used. We construe the nature of the contract to imply a monthly term for payment; the intent of the parties, as best as may be determined, was that the owner would be paid monthly in those months when the payor used the track. The specific time for payment — in particular, whether payment should be made at the beginning or the end of the month — however, is not determinable.

|7We note that the trial court’s judgment provides that, prospectively, the maintenance fee must be paid in advance of Harrison’s exercise of his use of the track. This portion of the trial court’s ruling was not appealed and, therefore, we will not review this finding. In any event, we conclude that, although Harrison was able to use the track once in October, twice later that month the owner refused to allow him the use of the track. The obligation of the owner of the track was to allow the holder of the right of use to exercise his right without interference. Cf. La. C.C. art. 748. Since McCormick refused to allow Harrison to use the track in accordance with the terms of the right of use, McCormick lost the right to demand that Harrison pay for October because McCormick did not fully perform his obligation. La. C.C. art. 1758(B)(1). Thus, we reject McCormick’s argument that the servitude was extinguished by Harrison’s failure to pay.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed at the cost of George M. McCormick, II.

AFFIRMED.

      . Dr. McCormick died on September 20, 2005, and his widow, Susan U. McCormick, has been substituted as plaintiff.

      . The property description is as follows: A tract of land located in the NE1/4 of the SW1/4 of Section 27, Twp. 19 North, Range 12 West, Bossier Parish, Louisiana further described as follows: Beginning at the Southwest corner of the Northeast Quarter (NE1/4) of the Southwest Quarter (SW1/4) of said section 27, run thence S 88° 03' East along the South line of said NE1/4 a distance of 179.81 feet to the point of beginning of the tract herein described; run thence N Io 42' West a distance of 180.0 feet; run thence N 88° 03' West a distance of 484.0 feet to the point of beginning of tract, together with all buildings and improvements thereon, containing 2.0 acres, more or less.

      . This is not to say, however, that an obligee is without a remedy such as injunctive relief or an action for money damages when the obligor/right holder fails to pay.


text:
    STATE of Louisiana, Appellee, v. Mondoira REED, Appellant.
    No. 40,975-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Louisiana Appellate Project by Paula C. Marx, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| defendant, Mondoira Reed, was charged by bill of information with aggravated burglary. The State agreed to dismiss the additional charge of possession of marijuana in exchange for Defendant’s guilty plea to unauthorized entry of an inhabited dwelling. Defendant so pled and was sentenced to four years at hard labor without the benefit of probation, parole or suspension of sentence. The court also ordered Defendant to pay a $200 fine, with 60 days to be served in default of payment or 40 hours community service. Defendant appeals his sentence as excessive. For the reasons stated herein, we amend Defendant’s sentence and, as amended, affirm.

DISCUSSION

The record shows that, on October 30, 2004, Defendant kicked the front door of his girlfriend’s home, forcing his way into the home. Defendant chased the victim to her bedroom and struck her on the back of the head causing a small knot. The girlfriend called the police and reported the incident and Defendant was arrested soon thereafter. The girlfriend later requested that the charges against Defendant be dropped. The State refused and Defendant accepted a plea bargain as described above, with no agreed-upon sentence. As previously stated, Defendant received a sentence of four years at hard labor without the benefit of probation, parole or suspension of sentence. He now appeals, asserting that his sentence is excessive and that the trial court did not adequately consider the sentencing factors in La. C. Cr. P. art. 894.1.

|2In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A defendant’s reduction in sentencing exposure through plea bargaining is a valid consideration in sentencing if the lesser offense does not adequately describe the defendant’s conduct. State v. Landos, supra.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, whether the sentence imposed is too severe depends on the circumstances of the case .and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

Prior to imposing the sentence, the court discussed several factors which were listed in the pre-sentence investigation report. The court stated that Defendant is a third-felony offender who has been convicted of two counts of simple burglary, felony theft, simple assault, criminal damage to property and violation of a protective order. The court also stated that it had considered the victim’s statement, Defendant’s statement and the statement of Defendant’s teacher/tutor. In mitigation, the court also considered Defendant’s diminished mental capacity.

Responding to the sentencing guidelines, the court found that, as an aggravating factor, Defendant committed a violent offense. The court also recognized that Defendant pled guilty to a lesser offense and found that any lesser sentence would be inconsistent with Defendant’s conduct and criminal history.

Unauthorized entry of an inhabited dwelling carries a penalty of imprisonment, with or without hard labor, for not more than six years, a fine not more than $1000 or both. The trial court imposed a sentence of four years at hard labor without the benefit of probation, parole or suspension of sentence. It also ordered that Defendant pay a $500 fine with 60 days to be served in default of payment or 40 hours of community service. On this record, we do not find constitutional error. In addition to being a thirdjfelony4 offender, Defendant received substantial benefits as a result of the plea bargain agreement. We do not find that the sentence imposed is grossly disproportionate to the severity of the offense or that it is shocking to our sense of justice.

ERROR PATENT

Our error patent review of the record reveals that the trial court failed to adequately inform Defendant of the time period within which to apply for post-conviction relief, as required by La. C. Cr. P. art. 930.8. The statute contains supplica-tory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for re-sentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/7/94), 647 So.2d 427. Here, the trial court stated to Defendant:

You do have a right of appeal. You have to file it within thirty days. If you don’t, your conviction and sentence become final. And thereafter you have two years to ■ further complain about your conviction and sentence.

The trial court should have advised Defendant, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 or 922.

Additionally, our error patent review discloses that the trial court’s order requiring Defendant to serve four years at hard without the benefit of parole is impermissible. La. R.S. 14:62.3 provides that a defendant be [ ¡jmprisoned, with or without hard labor, for not more than six years, a fine not more than $1000 or both. The statute does not authorize the sentence to be served without the benefit of parole. Accordingly, Defendant’s sentence is hereby amended to delete the prohibition against parole.

DECREE

For the foregoing reasons, the sentence of Mondoira Reed is amended and, as amended, is affirmed. The statute does not authorize the sentence to be served without the benefit of parole, probation or suspension of sentence. Accordingly, Defendant’s sentence is hereby amended to delete these prohibitions.

SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . The trial court sentenced Defendant to imprisonment in default of payment for the fíne or, in the alternative, 40 hours of community service. The community service alternative cured the problem in State v. Monson, 576 So.2d 517 (La.1991). It does not present a sentencing problem because it does not require an indigent Defendant to give anything but time.


author: LOLLEY, J.

text:
    Mildred PETERS, Plaintiff-Appellant, v. RUSKIN MANUFACTURING, Defendant-Appellee.
    No. 40,977-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Mildred Peters, In Proper Person.
    Juge, Napolitano, Guilbeau, Ruli, Frie-man & Whiteley, A.P.L.C. by Bradley P. Nacarri, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   LOLLEY, J.

11 Mildred Peters appeals the judgment of the Office of Workers’ Compensation (“OWC”), Parish of Caddo, State of Louisiana, which granted an exception of prescription filed by the defendant, Ruskin Manufacturing. For the following reasons, we affirm the OWC’s judgment.

Facts

This matter is making its second appearance before this Court. The facts leading up to the granting of an exception of prescription in favor of Ruskin Manufacturing (“Ruskin”) are set forth in our prior opinion, Peters v. Ruskin Mfg., 39,535 (La. App.2d Cir.04/06/05), 899 So.2d 780 (“Ruskin I ”) and will not be repeated in detail here. Essentially, although Peters alleged that she injured her back in October 2001 while lifting a heavy weight at work, she did not file a disputed claim for compensation against Ruskin until May 2003 — clearly, more than one year after her injury occurred. Thus, Ruskin filed an exception of prescription, relying on the one-year filing deadline in La. R.S. 23:1209. In Ruskin I, we reversed the trial court’s judgment granting the exception of prescription and remanded, concluding that the trial court erred in not giving Peters an opportunity to present evidence at the hearing on the exception of prescription.

On remand, Peters testified, as acknowledged by her attorney at the hearing on the exception, that she did not file her claim for compensation until she knew what was wrong with her and that her injury was connected to her employment. Ruskin acknowledged at the hearing that the case was “going to come down to the doctrine of contra non valentem ” as to whether prescription was interrupted. There was no question that Peters denied | shaving back problems prior to the incident in question, she had pain (including back pain) immediately at the time of the incident, and she received treatment from the time of the incident until she filed her compensation claim. However, she insisted that it was not until May 2003 that her doctors informed her for the first time that she had a back injury rather than merely hemorrhoids. Ruskin introduced Peters’ medical records from LSU Health Sciences Center in Shreveport, attempted to use those records to impeach Peters concerning the date upon which she first learned of her back injury, and argued that the medical records brought Peters’ credibility into question. After taking the matter under advisement, the trial court granted the exception of prescription. This appeal by Peters ensued.

Discussion

When a workers’ compensation claim to recover benefits has prescribed on its face, the burden of proving that prescription has been interrupted in some manner is on the claimant. Gaddy v. Caddo Parish School Bd., 36,583 (La.App.2d Cir.12/11/02), 833 So.2d 1088. Accordingly, the burden of proving interruption of prescription in the instant case fell on Peters, and the trial court’s determination concerning interruption of prescription turned on an assessment of Peters’ credibility regarding knowledge of her cause of action. In order for contra non valentem to prevent the running of prescription, Peters’ cause of action would have to have been neither known, nor reasonably knowable to her. See Gaddy, supra; see also Netherland v. Ethicon, Inc., 35,229 (La. App.2d Cir.04/05/02), 813 So.2d 1254, writ denied, 2002-1213 (La.06/21/02), 819 So.2d 339.

The trial court’s assessment of Peters’ knowledge is a factual finding; absent an abuse of discretion or manifest error, a reviewing court cannot disturb the factual findings of a trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Charrier v. Primm, 40,038 (La.App.2d Cir.08/19/05), 909 So.2d 1033.

In this case, Peters’ credibility was called into question by the evidence that existed regarding her claim of when she first had knowledge of her back problem. Peters testified that it was in May 2003 when she first learned she had a back injury. However, according to the LSU Health Sciences Center records when she first arrived at its emergency room on December 28, 2001, she complained of lower back pain, and she reported that the first symptoms occurred after lifting a heavy load. Later records from LSU Health Sciences Center show that on the first day of April 2003 she was given discharge instructions for, specifically, a lumbar strain. The instructions explained that such strain is “a tear of one of the muscles or several muscles in your back.” The discharge instructions also gave information about activity and treatment. Peters signed an acknowledgment that the instructions had been explained to her and her questions answered. Furthermore, the records include a copy of an April 2, 2003, rehabilitation 14services request from the LSU Emergency Care Center to Physical Therapy for Peters; the request gives a diagnosis of “low back pain,” indicates the area to be treated as “lumbar region,” and indicates the treatment and designed goal to be “back strength stretching exercises.”

It is reasonable to conclude that the trial court found that differences between Peters’ testimony and her medical records cast doubt on her overall credibility, particularly considering the very specific April 2003 medical records which she signed off on. Furthermore, the trial court had the opportunity to assess her demeanor when testifying.

Considering the sudden onset and nature of the pain that accompanied the incident in question, the discrepancy between Peters’ testimony concerning when she received knowledge concerning her back problem, and the great discretion that must be afforded the trial court’s credibility determination, we detect no abuse of discretion in the trial court’s granting of the exception of prescription. Accordingly, the trial court’s judgment is hereby affirmed at Mildred Peters’ cost.

AFFIRMED.


text:
    Stacey A. COFFMAN, Plaintiff-Appellant v. Tanisha Ryan COFFMAN, Defendant-Appellee.
    No. 40,992-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Roland V. McKneely, III, Bossier City, for Appellant.
    Ginger W. Johnson, Shreveport, for Ap-pellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

[Jfhis appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. Stacey A. Coffman appeals a judgment ordering him to pay Tanisha Ryan Coffman $1,300.00 in interim spousal support. For the reasons assigned, we vacate the judgment and remand the matter for further proceedings, consistent with this opinion.

FACTS

The parties were married in Shreveport in 2001, and one child was born of this union in November 2001. On March 17, 2005, Tanisha left the marital domicile after an alleged physical confrontation, which resulted in the arrest of Stacey. When Tanisha left the couple’s home, she took their three-year-old son and moved to Texas to live with her mother and stepfather. The following month, Stacey filed a petition for divorce pursuant to La. C.C. art. 102 and he also sought division of the community property. There were other matters pending in the Caddo Parish Juvenile Court, which were ultimately transferred to the First Judicial District Court, but are not before this court. Tanisha answered the petition for divorce and filed a reconventional demand seeking among other things child support and spousal support.

On May 16, 2005, a hearing was held with Judge B. Woodrow Nesbitt, presiding. At that hearing some property issues and visitation matters were considered. A subsequent hearing with Judge Nesbitt was held on May 25, to consider some preliminary matters in preparation for a considered decision on interim spousal support. On that same day, the trial | ¡¡.court issued an interim order directing Stacey to pay $400.00 per month in child support.

Later in June, the hearing on interim spousal support was held with Judge Nes-bitt presiding. Both parties and their attorneys were present. The record reflects that the hearing was conducted in a format likened to a pretrial conference in court on the record. It basically consisted of an extensive series of questions posed by the trial judge to both parties and their attorneys. At several intervals, Stacey’s counsel requested that he be allowed to cross-examine Tanisha on issues concerning her present standard of living, her expenses, explanation as to how she was paying those expenses and on her efforts to seek employment. Subsequent to the trial court’s lengthy series of questions, the parties were placed under oath. After being sworn, the trial court asked the parties if they had told the truth when answering the trial court’s questions. Both parties answered to the affirmative and then the trial court ordered that their previous statements be adopted as evidence into the record. Right after they were sworn, the trial court stated that counsel for both parties could ask any questions they wanted to either party. However, that statement was followed with inquiries by the trial court of the intended questions for the parties. Subsequently, there was some discussion by the trial court as to the relevance of those proposed questions and whether or not the trial court had already taken that information into consideration. There was further discussion as to whether any proposed questions would pertain to the alleged physical abuse on the | spart of Stacey and the likelihood that he would decline to answer by availing himself of the 5th Amendment of the U.S. Constitution.

After this dialogue, Stacey’s counsel stated that he would make a proffer and in lieu of questioning Tanisha, he would make a statement on the record of his intended questions and the information he thought he would solicit from her. Counsel for Tanisha also made a proffer for the record. Subsequent to the hearing, the trial court ordered Stacey to pay Tanisha $1,300.00 per month in interim spousal support, and the judgment was made retroactive to the date of demand, all in accordance with reasons given at the hearing. Thereupon, Stacey sought review of the judgment by supervisory writ, and this court converted the writ application into the instant appeal.

Meantime, Stacey filed a motion to rehear the interim spousal support order because Tanisha secured employment. On October 6, 2005, the trial court issued a second order reducing the amount of the spousal support order from $1,300.00 to $550.00 per month and made the reduction in support retroactive to July 12, 2005. Although Stacey was the party seeking the reduction in interim spousal support, he now maintains that the trial court did not have jurisdiction to enter the reduction because the matter was on appeal and, therefore, the trial court’s jurisdiction was divested pursuant to La. C.C.P. art. 2088.

In August 2006, while the matter was still pending in this court as a writ application, Judge Nesbitt executed a five-page affidavit as a per \ ¿curiam brief in response to the writ application. This brief was ultimately filed into the record of this appeal.

On January 24, 2006, the date set for the divorce hearing, Stacey filed a motion to recuse Judge Nesbitt. According to Stacey’s appellate brief, the parties agreed to allow Judge Mike Pitman to hear the divorce, but for some reason not indicated in the record, that did not occur. The record indicates that on January 31, 2006, Judge Nesbitt considered the motion to recuse himself and denied that motion with written reasons stating that he found no allegations of fact in the motion supportive of Stacey’s allegation of bias. Stacey sought supervisory review of the denial of his motion to recuse asking this court to consider the record in the instant appeal in conjunction with his writ application. After consideration, this court granted Stacey’s application on the motion to recuse, vacated the ruling of the trial court and remanded the matter for assignment in accordance with La. C.C.P. art. 155. As of the writing of this opinion, no determination of that matter has been reached.

DISCUSSION

On appeal, Stacey sets forth four assignments of error. In his first assignment of error, he contends that the trial court erred in failing to conduct the trial in accordance with the Louisiana Rules of Evidence and the Louisiana Rules of Civil Procedure. He contends that during the hearing on interim spousal support, the trial court did not allow a contradictory | ¡Rearing. He alleges that the trial judge asked all of the questions of the witnesses in the hearing, and subsequently made an award of interim spousal support for Tanisha without affording him the right of cross-examination.

He further contends that the trial court erred because the witnesses were not placed under an oath before testifying as required by law.

Louisiana C.C.P. art. 1633 states in pertinent part:

A. Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so. (Emphasis added).

Louisiana C.E. art. 603 states in pertinent part:

Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his. conscience and impress his mind with his duty to do so. (Emphasis added).

Stacey’s counsel argues that not only was procedure not followed, but he contends he was not informed by the trial court that the parties would be sworn in at some later point during the hearing. Further, he argues that because Tanisha was not clearly entitled to interim spousal support pursuant to La. C.C.P. art. 963, the matter should have been tried contradictorily with the adverse party.

As stated, the record reflects that Judge Nesbitt posed extensive questions to both parties and to their attorneys during the majority of the hearing. It also indicates that neither parties were sworn nor admonished that they were under an oath before testifying as is required by law. La. C.E. art. 603; La. C.C.P. art. 1633. For the most part, the questions posed Lby the trial court concerned the various incomes and expenditures of the parties. After reviewing the transcript of the hearing for interim spousal support, it appears that the trial court was intent on shortening what may have become an extended hearing.

Although we note the record does not indicate that either party objected to this irregular proceeding, we cannot state that being sworn in after giving testimony which was then adopted into the record rose to the level of a calculated attempt of awakening a witness’ conscience and impressing a witness’ mind with a duty to testify truthfully. Further, the record does not reveal any peculiar set of circumstances which would warrant this unusual method of adducing testimony. Even if the reasoning was to expedite the hearing, we find that the format of the proceedings did not comply with the rules of evidence or procedure and can be found to have created some ambiguity. Moreover, we do not find it sets good precedent.

We also note that the record substantiates Stacey attorney’s contention that he made several requests during the hearing to cross-examine Tanisha, but that there was no real opportunity for cross-examination as is required by law. See La. C.E. art. 611. Although we recognize that after the parties were sworn, the trial court stated that counsels could ask the parties any questions, that statement appeared to be qualified by the subsequent remarks made and questions posed by the trial court. At the very least, one could reasonably conclude that the remarks of the trial court possibly discouraged counsel from cross-examining Tanisha. 17Pespite the fact that Stacey’s counsel seemed to ac'quiesce and opted to make a proffer, it nevertheless appears that the intent of La. C.E. art. 611 was not followed.

So considering, we find the format of the hearing created ambiguity as to whether the parties’ statements were actually being received as evidence upon which the trial court might rely. The ambiguity of the situation, would in our view excuse the lack of a contemporaneous objection by Stacey’s counsel.

Hence, to avoid any appearance of impropriety and to further discourage a neglect of the rules of evidence and procedure, we find this assignment of error has merit, and we vacate the judgment and remand the matter back to the trial court in accordance with this opinion. Due to our disposition of this matter, we preter-mit Stacey’s remaining assignments of error.

CONCLUSION

The judgment awarding Tanisha Coff-man interim spousal support is hereby vacated, and the matter is remanded to the trial court with the instructions to conduct the hearing according to La. C.E. art. 603, La. C.C.P. art. 1633 and La. C.E. art. 611. Costs of this appeal are assessed equally to Tanisha Coffman and Stacey Coffman.

JUDGMENT VACATED AND REMANDED.

      . A judge may file written findings of the court and reasons for judgment as addressed by La. C.C.P. art. 1917. However, we do not find that a document styled "Per Curiam Brief" is contemplated under law.


author: MOORE, J.

text:
    Joycelyn HOLDEN, Plaintiff-Appellant, v. Willis Knighton BOSSIER, Defendant-Appellee.
    No. 40,928-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Rehearing Denied May 11, 2006.
    Cynthia R. King, for Appellant.

      Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, Shreveport, for Appel-lee.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

hJoycelyn Holden appeals a judgment that dismissed her workers’ compensation claim for failure to appear at trial. We amend and remand.

Procedural Background

Ms. Holden was employed as a registered nurse at Willis-Knighton Medical Center in Bossier City. She alleged that in January 2001, she injured her back while trying to catch a patient who had lost his balance. She filed this disputed claim in June 2002 through attorney Cynthia King. Ms. King’s associate, Shereka Thrash, appeared on Ms. Holden’s behalf at the initial mediation conference in October 2002. However, Ms. King signed all subsequent pleadings, giving as her office address 2800 Youree Drive, Suite 400. In December 2004, the Office of Workers’ Compensation (“OWC”) sent a certified mail notice of trial to Ms. King at that address, and Ms. Thrash signed for it. The notice set the trial for May 31, 2005.

On the date of trial, neither Ms. King nor her client appeared. Counsel for Willis-Knighton moved for involuntary dismissal, which the WCJ granted with prejudice. Notice of judgment was mailed that day to Ms. King at 2800 Youree Drive, Suite 400. This was returned “unable to forward.”

On July 20, Ms. King filed a motion for new trial. She alleged that when the certified mail arrived in December 2004, she and Ms. Thrash were relocating their offices to 2800 Youree Drive, Suite 232, and Ms. Thrash did not recall signing for the certified letter. As a result, Ms. King argued that she did not receive notice that trial had been set for May 31. Before the motion for new trial had been heard, Ms. King also filed a motion for [¡.devolutive appeal, which the WCJ granted.

At the hearing on the motion for new trial, counsel for Willis-Knighton argued that the motion was filed over seven days after notice of judgment, contrary to La. C.C.P. art. 1974. The WCJ agreed and denied the new trial. The appeal is now properly before this court.

Discussion

Ms. Holden advances three assignments of error. By her first assignment, she contends the WCJ erred in dismissing her claim without giving proper notice of the trial date to plaintiff and her attorney. She reiterates that “an attorney who shares office space with the attorney of record signed for the notice,” and argues that this was “not proper notice of a trial setting.” She cites no statute or cases in support.

Willis-Knighton responds that it is not the OWC’s responsibility, much less the employer’s, to notify the OWC of changes of address for the claimant’s counsel. It submits that notice of trial was proper because (1) the certified letter was sent to counsel of record at her address of record and (2) counsel’s associate, who had previously appeared on Ms. Holden’s behalf, signed for it.

The clerk of court fulfilled its obligation of providing notice when it sent notice to the attorneys of record at the time the notice was generated. Rock v. ATPIC Trucking Co., 1998-1420 (La.App. 1 Cir. 6/25/99), 739 So.2d 874; Prejean v. Ortego, 262 So.2d 402 (La.App. 3 Cir.1972). It is of no moment that the address originally provided by counsel was no longer valid. The burden is on counsel to advise the court of any change of ^address. The first assignment of error lacks merit.

By her second assignment, Ms. Holden contends the WCJ erred in dismissing the claim with prejudice. She concedes that under La. C.C.P. art. 1672, the court had the discretion to make the dismissal with or without prejudice. She submits, however, that because she had never missed a scheduled court appearance, and because Ms. King never received the notice of trial setting, dismissal with prejudice was “inequitable, unjust and unfair to claimant.”

Willis-Knighton responds that the WCJ did not abuse her discretion in dismissing with prejudice. In support, it cites art. 1672 A and urges that the WCJ was best familiar with the trial docket, the conditions and requirements of the docket, the need for promptness and fairness to other litigants, and the need for orderly and prompt administration of justice. Keyes v. Johnson, 542 So.2d 209 (La.App. 3 Cir.), writ denied, 546 So.2d 1215 (1989).

On our own motion, we notice that this situation is governed by a special provision of the OWC hearing rules, La. Admin. C. 40:1.5705, which provides in pertinent part:

§ 5705. Abandonment
A. A claim may be dismissed by an ex parte order of the judge for lack of prosecution for the following reasons: ⅝ ⅜ ⅜
4. where a party fails to appear for a properly noticed conference or trial.
* * ⅜
C. Dismissal under this rule shall be without prejudice. Any order of dismissal shall allow for reinstatement of the action within 30 days for good cause shown.

| ¿The WCJ granted Willis-Knigh-ton’s ex parte motion to dismiss the claim for Ms. Holden’s failure to appear; under this section, the dismissal must be tvithout prejudice and with leave of court for Ms. Holden to apply for reinstatement of the action within 30 days. The judgment will be amended accordingly.

By her third assignment of error, Ms. Holden contends the WCJ erred in denying her motion for new trial. Because we are amending the judgment of dismissal to be without prejudice, we deem the issue of the motion for new trial to be moot.

Conclusion

For the reasons expressed, the judgment of dismissal is amended to provide for dismissal without prejudice, and the case is remanded to the OWC with leave of court for Ms. Holden to apply for reinstatement within 30 days of this judgment. Costs of this appeal are to be paid by the appellee, Willis-Knighton Medical Center.

This opinion is designated for publication pursuant to La. R.S. 23:1310.5 F.

AMENDED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, PEATROSS and MOORE, JJ.

Rehearing denied.