text:
    STATE of Louisiana, Appellee v. Jimmerra HONEYCUTT, Appellant.
    No. 41,601-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

| pursuant to a plea agreement, the defendant, Jimmerra Honeycutt, pled guilty to attempted armed robbery. The trial court sentenced him to 30 years at hard labor and ordered that the sentence be served consecutively to any other sentence being served. The defendant now appeals. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On the night of August 28, 2004, two employees of the Exxon gas station were in the business office counting money when fellow employee, Candy Maxie, called and asked one of them to bring a drink to her in the parking lot. A few minutes after the employee returned inside the store and locked the door behind her, Jimmerra Honeycutt and Demarcus Jones entered the store using a key provided to them by Candy Maxie. Maxie had told defendant and Jones that this would be a good time to rob the store because it had more money than usual and because a pregnant girl was working that night. The robbers first ordered the male employee sitting at the front counter computer to get on the floor while Honeycutt held a firearm to his head. Next, the robbers went to the business office and, at gunpoint, ordered the female employee, who was eight months pregnant, to put all the money and checks in a bag. The robbers left with $2,199 in cash and $449.90 in checks. The cash was never recovered.

Defendants Maxie and Jones were each charged with one count of armed robbery and one count of conspiracy to commit armed robbery. Honeycutt pled guilty to the amended charge of attempted armed robbery in exchange for the state dismissing the conspiracy charge and charges against |2him in another case, a 30-year cap on the sentence, and the trial court ordering a pre-sentence investigation. The trial court originally sentenced defendant to 40 years, but later amended the sentence to 30 years at hard labor pursuant to the sentencing cap in the plea agreement. After re-sentencing the defendant to 30 years, the defendant made an oral motion to withdraw his guilty plea on the ground that he was not properly Boykinized. Denying this motion, the trial court granted defense counsel’s motion to withdraw due to the defendant filing a bar complaint against him alleging ineffective assistance of counsel. The appellant is now represented by the La. Appellate Advocacy Project.

DISCUSSION

Guilty Plea

The defendant argues that his conviction should be vacated because his guilty plea was not freely, intelligently, and voluntarily made in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and La. C. Cr. P. art. 556.1(A)(3). Specifically, the defendant argues that the trial court failed to properly inform him of his right to trial by jury or that he properly waived that right. The state argues that the record was supplemented to show that the defendant was informed of his right to a jury trial during his arraignment and that, therefore, he was aware of this right at the time he pleaded guilty. The state further argues that defendant understood and waived this right to a jury trial by pleading guilty with the knowledge of this right to a jury trial.

| .^Review of the record reveals that the trial court did not specifically inform the defendant of his right to a jury trial at the time of his guilty plea. Rather, the trial court asked defendant if he knew he had a right to a trial:

THE COURT: You understand you have a right to continue with your not guilty plea and have a trial, is that correct?
MR. HONEYCUTT: Yes, sir.

Later in the hearing, the trial court asked defense counsel if he believed the defendant understood his rights and voluntarily waived them. Defense counsel answered in the affirmative. At no time during the guilty plea proceeding does the trial court mention the right to a “trial by jury.”

Even so, the Louisiana Supreme Court has ruled that courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of rights occurred. State v. Lawson, 410 So.2d 1101, 1103 (La.1982). In State v. Worsham, 32,670 (La.App. 2d Cir.02/01/00), 754 So.2d 1107, 1108, this court found that the defendant’s guilty plea was valid, in spite of the fact that the trial court did not inform defendant of his right to a jury trial at the time he pleaded guilty, because the record showed that the trial court informed defendant of his right to a jury trial at the arraignment. The record in this case shows that the defendant was informed of his right to a trial by jury at the arraignment. While the better practice is to inform a defendant of his right to a trial by jury at the time he pleads guilty, the record supports a finding that defendant was aware of his right to a trial by jury and that his guilty plea was made with the knowledge that he was waiving his right to a trial by jury when he pleaded guilty. Thus, the ^conviction will not be vacated on the grounds that the guilty plea lacked a proper waiver of the right to a trial by jury, because the record shows the trial court informed defendant of this right at arraignment. This assignment is therefore without merit.

Withdrawal of Guilty Plea

At the re-sentencing hearing, the defendant made an oral motion to withdraw his guilty plea, and the trial court denied the motion. The defendant argues that the trial court erred in denying his motion to withdraw his guilty plea for the following reasons: (1) the original sentence of 40 years breached the plea agreement, which rendered the plea involuntary; (2) the guilty plea was unknowingly and unintelli-gently made because the trial court informed him that the sentencing range for attempted armed robbery was zero to 48½ years, when it was actually 5-49½ years; and, (3) the trial court did improperly Boykinize him by telling him that he had a “right to remain silent during this proceeding” instead of informing him that he had the right to remain silent at a jury trial.

A defendant has no absolute right to withdraw a guilty plea. State v. Wynne, 40,921 (La.App. 2d Cir.04/12/06), 926 So.2d 789, 793, citing State v. Hoover, 34,952 (La.App. 2d Cir.04/05/01), 785 So.2d 184. According to La. C. Cr. P. art. 559(A), “The court may permit a plea of guilty to be withdrawn at any time before sentencing.” The language of this article clearly provides that the withdrawal of a guilty plea is discretionary with the trial court and, thus, subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Moore, 32,707 (La.App. 2d Cir]10/27/99), 743 So.2d 877, 880, writ denied, 2001-0650 (La.11/02/01), 800 So.2d 872, citing State v. Swafford, 30,651 (La. App. 2d Cir.06/24/98), 715 So.2d 104; State v. Bates, 29,252 (La.App. 2d Cir.01/22/97), 711 So.2d 281. The trial court may allow a defendant to withdraw a guilty plea if it finds that the plea was not freely and voluntarily made or if the Boykin colloquy is constitutionally inadequate. State v. Wynne, supra, citing State v. Hoover, supra. For the reasons discussed below, the trial court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea.

It is well settled that a plea agreement is considered a contract between the state and the criminal defendant. State v. Wynne, 926 So.2d at 795, citing State v. Peyrefitte, 2004-0742 (La.10/15/04), 885 So.2d 530; 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. A guilty plea is constitutionally infirm when the terms of the plea agreement are not honored. State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868, 870-871, citing State v. Dixon, 449 So.2d 463 (La.1984); State v. Gasea, 575 So.2d 913 (La.App. 2d Cir.1991), writ denied, 580 So.2d 674 (La.1991); State v. Taylor, 535 So.2d 1229 (La.App. 3d Cir.1988). In State v. Terrebonne, 2001-2632 (La.App. 1st Cir.06/21/02), 822 So.2d 149, 152, the first circuit noted that contract principles apply to plea agreements:

This court extensively reviewed the nature of plea agreements recently in the case of State v. Canada, 01-2674 (La. App. 1st | fiCir.5/10/02), 838 So.2d 784. The Canada court cited State v. Lewis, 539 So.2d 1199,1204 (La.1989) to explain that contract principles apply to plea bargains. Canada, 01-2674 at pp. 3-4, 838 So.2d 786-88. The Canada court also cited Lewis v. State, Department of Public Safety and Corrections, 602 So.2d 68, 74 (LaApp. 1 Cir.1992) to explain that, “[u]nder the substantive criminal law, there are only two alternative remedies available for a breach of a plea agreement: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea.” (Citations omitted.) Canada, 01-2674 at p. 5, 838 So.2d at 788.

Thus, in State v. Terrebonne, supra, the first circuit vacated a sentence and remanded for re-sentencing in accordance with a plea agreement after the trial court imposed a sentence more onerous than the one contained within the terms of the plea agreement.

In the present case, the plea agreement contained a sentencing cap of 30 years, but the trial court imposed a sentence of 40 years. The defendant filed a motion for reconsideration of sentence, and the state conceded that the sentence should be amended in accordance with the plea agreement. Consequently, the trial court re-sentenced the defendant to 30 years. Because the defendant was given specific performance of the plea agreement, his guilty plea was not rendered constitutionally infirm, and the trial court did not abuse its discretion in denying defendant’s motion to withdraw the guilty plea. This assignment is therefore without merit.

The defendant alleges that his plea was involuntary because the trial court informed him that the range of punishment was zero to 48 ½ years when it was actually 5 years to 49½ years. According to La. R.S. 1427(D)(8) and La. R.S. 14:64, the sentencing range for attempted armed robbery is actually zero to 49 ⅜ years. Pursuant to La. C. Cr. P. art. |7556.1(A)(1), the trial court should inform the defendant of the mandatory minimum and maximum penalties of the crime to which he is pleading guilty. Subsection E of that same article states that “[a]ny variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” Due to the fact that the trial court informed the defendant that 30 years imprisonment would be the maximum penalty imposed upon him in this case pursuant to the plea agreement, the trial court’s incorrect statement regarding the maximum penalty for attempted armed robbery did not render the defendant’s plea involuntary because it did not affect his substantial rights.

Further, in State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158, 1163-1166, the defendant alleged that his guilty plea was involuntary because the trial court did not properly inform him of the mandatory minimum penalty provided by law. The Louisiana Supreme Court found that the harmless error rule contained in Article 921 applied in that case. State v. Guzman, supra. According to La. C. Cr. P. art. 921, “a judgment or ruling shall not be reversed by an appellate court because of an error, defect, irregularity, or variance which does not affect the substantial rights of the accused.” In reaching this conclusion, the court stated that it had never extended the core Boykin constitutional requirements to include advice with respect to sentencing. State v. Guzman, 769 So.2d at 1164, citing State v. Nuccio, 454 So.2d 93, 104 (La.1984). Further, the court noted that it had specifically held that advice regarding sentencing was not part of the core Boykin constitutional requirements. State v. Guzman, supra, citing State v. IsAnderson, 98-2977 (La.03/19/99), 732 So.2d 517. Thus, the court concluded that “violations of La. C. Cr. P. art. 556.1 which do not rise to the level of Boykin violations are not exempt from the broad scope of La. C. Cr. P. art. 921.”

According to State v. Guzman, supra, advice regarding sentencing is not a Boy-kin error; thus, it is subject to the harmless error analysis. The misstatement by the trial court regarding the maximum sentence for attempted armed robbery was a harmless error because the defendant was informed that his maximum sentence would be 30 years under this plea agreement. This assignment is therefore without merit.

The defendant alleges that the trial court improperly Boykinized him by telling him that he had a “right to remain silent during this proceeding” instead of informing him that he had the right to remain silent at a jury trial. In Boykin v. Alabama, 395 U.S. at 243, 89 S.Ct. at 1712, the United States Supreme Court stated that “the privilege against compulsory self-incrimination” is a federal constitutional right that must be waived when a defendant pleads guilty in a state criminal trial. The fifth circuit noted that “[i]n the jurisprudence, the terminology ‘right to remain silent’ frequently is used, interchangeably with ‘the right against self-incrimination’ and is an acceptable substitute as long as it is clear that the trial court is referring to the right to remain silent ‘at trial.’ ” State v. Walker, 02-495 (LaApp. 5th Cir.11/13/02), 833 So.2d 367, 370, writ denied, 2002-3066 (La.04/25/03), 842 So.2d 397, citing State v. Dumas, 96-2748 (La. App. 1st Cir.11/07/97), 703 So.2d 112, 114.

lain State v. Bradford, 627 So.2d 781, 785 (La.App. 2d Cir.1993), writ denied, 94-0006 (La.04/22/94), 637 So.2d 154, this court found that the trial court properly denied the defendant’s motion to withdraw his guilty plea on the ground that the trial court failed to expressly advise the defendant of the right to remain silent at trial. In so doing, this court found that the defendant was aware of the right from the context of the colloquy and that, therefore, there was no error in failing to specifically state that the privilege against self-incrimination applies to trial. State v. Bradford, supra, citing State v. Bowick, 403 So.2d 673, 674-675 (La.1981). The issue of whether the trial court properly informs defendants of the right to remain silent at trial, rather than simply at the guilty plea proceeding, has been examined most often in the context of defendants attacking the guilty pleas in predicate offenses used to enhance a sentence for a current crime. In State v. Stewart, 32,942 (La.App. 2d Cir.03/01/00), 754 So.2d 395, 397-398, this court discussed the case law history on how the failure to specifically state that the Boykin rights apply to trial does not automatically invalidate the prior offense:

In State v. Yarbrough, 418 So.2d 503 (La.1982), the supreme court pointed out that the court had moved away from State v. Martin, 382 So.2d 933 (La.1980)[FN3], in which the failure of the trial court to specifically state that the Boykin trilogy of rights continues into trial, if so elected, invalidated the predicate offense. This court made the same observation in State v. Lott, 29,082 (La.App. 2d Cir.1/22/97), 688 So.2d 608, writ denied, 97-0711 (La.9/26/97), 701 So.2d 979, and State v. Harden, 506 So.2d 1265 (La.App. 2d Cir.1987), writ denied, 512 So.2d 438 (La.1987). Although never expressly overruled on the point of law concerning the exact wording of Boykin advice, Martin, supra, has been called into question and distinguished many times by the appellate courts of this state. |inSee State v. Gaar, 32,243 (La.App. 2d Cir.8/18/99), 746 So.2d 41, and Lott, supra.
FN3. Martin, supra, was overruled by State v. Williams, 392 So.2d 448 (La.1980), on other grounds.

In the concurring opinion to State v. Yarbrough, 418 So.2d at 511-512, Chief Justice Dixon stated that the guilty plea in the predicate offense was adequate in spite of the trial court’s failure to specifically state that the defendant had the right to remain silent at trial because the context of the colloquy conveyed that information:

The explanation of the privilege against self-incrimination followed a careful explanation of the defendant’s rights to a trial by jury and to confront and cross-examine the witnesses against him, which obviously could only have been exercised at trial. The explanation of the privilege against self-incrimination informed the defendant that, by waiving it, he was giving up not only his right to remain silent, but also “your right against self-incrimination.” Because of the context of the explanation, and the use of the words “self-incrimination” in addition to the right to remain silent, I believe that it is clear on the record that the defendant understood he was giving up his right to self-incrimination at trial as well as his right to remain silent during the guilty plea colloquy.

Subsequently, in State v. Harden, 506 So.2d at 1271, this court cited State v. Yarbrough, supra, and found that the guilty plea in the predicate offense was sufficient, in spite of not specifically advising that the right against self-incrimination applied at trial, because “[t]he trial judge’s advice to the defendant on self-incrimination is located following questions framed with specific reference to trial, and this circumstance creates the unequivocal connotation that the right against self-incrimination was also available to the defendant at trial.” Similarly, in State v. Lott, 688 So.2d at 610-611, this court found that the failure to “specify in exact words that the right against self-incrimination applied to trial” did not render the predicate offense In inadequate because the colloquy “did not limit the right to the plea proceeding.”

What a defendant understands of his rights as explained during a guilty plea colloquy “is determined in terms of the entire record and not just certain ‘magic words’ used by the trial judge.” State v. Munholland, 34,941 (La.App. 2d Cir.10/12/01), 797 So.2d 778, 782, unit denied, 2001-3077 (La.09/13/02), 824 So.2d 1185, citing State v. Strain, 585 So.2d 540 (La.1991). In the present case, the trial court explained the right against self-incrimination by stating, “You understand that you have the right to remain silent during this proceeding?” (R.p. 34) Even so, this right was explained along with the other rights waived when pleading guilty:

THE COURT: You understand you have a right to continue with your not guilty plea and have a trial, is that correct?
MR. HONEYCUTT: Yes, sir.
THE COURT: You understand the DA must prove their case beyond a reasonable doubt?
MR. HONEYCUTT: Yes, sir.
THE COURT: You understand that your attorney would examine the DA’s witnesses?
MR. HONEYCUTT: Yes, sir.
THE COURT: You understand that you have the right to remain silent during this proceeding?
MR. HONEYCUTT: Yes, sir.
THE COURT: You understand that you have the right to summon witnesses by compulsory process called subpoena power of the Court?
|19MR. HONEYCUTT: Yes, sir.
THE COURT: You understand if convicted you’ll be given the right to appeal?
MR. HONEYCUTT: Yes, sir.
THE COURT: And if I accept your guilty plea you’re waiving or giving up that right?
MR. HONEYCUTT: Yes, sir.

The context in which the defendant’s right to remain silent was explained included explanations of the right to have a trial where the state must prove its case beyond a reasonable doubt, where defense counsel would cross-examine the state’s witnesses, and where the defendant would have the subpoena power to summon its own witnesses. Therefore, within this context, “the right to remain silent during this proceeding” appears to refer to the defendant’s right to remain silent at trial. As discussed above, the appellate courts have moved away from requiring exact wording of Boykin advice and, instead, prefer to consider the context of the colloquy in determining whether a defendant has been properly advised of the Boykin rights. Accordingly, the trial court properly informed defendant of his right against self-incrimination at trial, and this assignment is therefore without merit.

Excessive Sentence

The defendant argues that the trial court erred by imposing his 30-year sentence without vacating the original 40-year sentence and thereby imposed an illegal sentence of 70 years. The record of defendant’s re-sentencing hearing clearly shows that the trial court was re-sentencing the | ^defendant to 30 years pursuant to his plea agreement, which capped his sentence at 30 years. The trial court clearly stated that he was not vacating the original sentence, but was amending it. The record in no way indicates that the defendant was sentenced to 70 years for attempted armed robbery. This assignment is therefore without merit.

Right to Counsel

The defendant argues that the trial court failed to appoint counsel for his re-sentencing hearing after his trial counsel withdrew from representing him and that this violated his right to have counsel at a critical stage of trial. The record does not support the defendant’s claim. The transcript of the re-sentencing hearing shows that the defendant was represented by Mark Frederick. The transcript clearly shows that defense counsel did not move to withdraw until after the trial court re-sentenced defendant and that he did so because defendant filed a bar complaint against him alleging ineffective assistance of trial counsel. The record clearly shows that Mr. Frederick participated in the re-sentencing hearing and that the motion to withdraw was not made or granted until after re-sentencing. This assignment is therefore without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Katie Chisley JONES, et al., Plaintiffs-Appellants v. Keith J. GAINES and U.S. Agencies Casualty Insurance Co., Inc., Defendants-Appellees.
    No. 41,890-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Anthony J. Bruscato, Monroe, for Plaintiffs-Appellants.
    Gadel Law Firm, by Bradley John Ga-del, Alexandria, for Defendant-Appellee, Keith Gaines.
    Judith M. Williams, Assistant Attorney General, for Defendants-Appellees, LSU Med. Ctr. Health Care d/b/a E.A. Conway Med. Ctr.; State of Louisiana, DHH; State of Louisiana, DPS, Office of Motor Vehicles.
    Louis G. Scott, Kitchens, Benton, et al. by Graydon K. Kitchens, III, Minden, Malone Law Firm, L.L.C. by Mary Ellen Winchell, for Defendants-Appellees, John and Frances Gaines.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

|,The day after being released from the Monroe Mental Health Center (“MMHC”), 29-year-old Keith Gaines became intoxicated and drove his sports utility vehicle through a caution or red light at an excessive speed and struck a vehicle being driven by Terrence Chisley. Gaines’ blood alcohol measured .14%. Chisley was killed and Gaines was convicted of vehicular homicide. In this wrongful death/survival action, Chisley’s mother, Katie Jones, and Ghitonya Richards, the mother of Chisley’s minor son, individually and on behalf of the minor, sued several individuals, insurers, and state agencies. This appeal has been taken by plaintiffs from the trial court’s judgment granting summary judgment for the State of Louisiana, Department of Public Safety/Office of Motor Vehicles (“DPS”) and a peremptory exception of no cause of action in favor of the State of Louisiana-Health Care Science Center At Monroe d/b/a E.A. Conway Hospital (“E.A. Conway”) and the State of Louisiana, Department of Health and Hospitals (“DHH”).

For the reasons set forth below, we affirm the trial court’s judgment granting summary judgment in favor of DPS and sustaining the exceptions of no cause of action in favor of E.A. Conway and DHH but remand to give plaintiffs an opportunity to amend their petition to state a cause of action against E.A. Conway and DHH.

Facts

From April 1 through April 19, 2001, Keith Gaines was treated at the MMHC. Gaines had been diagnosed with bipolar disorder and | ¡.schizophrenia and had been receiving treatment for these mental illnesses since 1994. This was Gaines’ fifth admission within a year of the accident.

Gaines admitted himself voluntarily, which allowed him to give 72 hours written notice to the treating physician in order to obtain a release, during which time an attending physician could change Gaines’ admission status from voluntary to involuntary if the doctor deemed it necessary for the protection of Gaines and/or others.

Gaines’ treating psychiatrist, Dr. Rita Agarwal, determined that Gaines was stable enough to be released as long as he took his medication and refrained from drinking alcohol. Dr. Agarwal testified that alcohol prevents anti-psychotic medication from taking effect, prompting a quick relapse. Dr. Agarwal testified that if Gaines relapsed he would be unfit to drive a motor vehicle.

Gaines lived with his parents at the time. Gaines’ parents were out of town at the time of their son’s release, but had asked Gaines’ cousin to pick Gaines up from the hospital. Gaines’ parents, knowing their son could be released while they were out of town, removed or concealed all the car keys in their home before leaving town. Gaines, however, had a set of car keys on him when he was admitted to the hospital; these keys were returned to Gaines upon his discharge by a hospital nurse. The cousin took Gaines to his parents’ house.

The next day, April 20, 2001, Gaines offered a ride to a group of young people from the neighborhood. One of the passengers testified that Gaines drove at a high speed and accelerated when asked to slow down. | oGaines ran his vehicle through a red or yellow light and crashed into Terrence Chisley’s car, killing Chisley. Police interviewed Gaines immediately after the accident. Gaines appeared to be intoxicated and had a blood alcohol reading of .14%. Gaines was convicted of vehicular homicide and sentenced to nine years in prison, with half the sentence to be served and the remainder of the sentence suspended. Plaintiffs sued Gaines and his insurer; his parents and their homeowner’s insurer; and the State of Louisiana via E.A. Conway, the DHH, and the DPS. Gaines and his alleged insurer, U.S. Agencies Casualty Insurance Company, settled and were dismissed. Gaines parents’ homeowner’s insurer, State Farm Insurance Company, was granted summary judgment on a coverage issue. E.A. Conway filed a peremptory exception of no cause of action, the DHH filed a declinatory exception and supplemental peremptory exception of no cause of action, and the DPS filed a motion for summary judgment. The trial court granted these motions and exceptions. It is from this ruling that plaintiffs have appealed.

Discussion

Office of Motor Vehicles

Plaintiffs argue that the DPS has a mandatory duty to investigate if the DPS is “on notice” that a driver is impaired and is not protected with the discretionary immunity provided by La. R.S. 9:2798.1 should the DPS breach this duty.

|4A drivers’ licensing agency which issues a license to an applicant known to be subject to a condition that makes operating a motor vehicle hazardous in the past and is likely to be hazardous in future, which fails to institute reasonable procedures for monitoring the condition of driver, and which automatically reissues the license three years later without inquiry into driver’s current condition may be held liable to a motorist injured in an accident caused by the driver’s operation of vehicle while under effects of a seizure. Fowler v. Roberts, 556 So.2d 1 (La.1989). This court, in Johnson v. Department of Public Safety, 627 So.2d 732 (La.App. 2d Cir. 1993), writ denied, 94-0403 (La.04/04/94), 635 So.2d 1107, held that the DPS has no duty to investigate when it has no knowledge of a driver’s condition.

The question of liability on the part of the DPS therefore necessarily turns on a question of whether the DPS had notice of Gaines’ potentially hazardous condition when Gaines first applied for or renewed his drivers’ license.

Plaintiffs argue that notice to employees of the state hospital system is notice to the DPS because of a joint responsibility of both governmental institutes to protect the public. They assert that E.A. Conway and DPS should have worked together to deny driving privileges to Gaines because of his history of alcohol abuse.

The motion for summary judgment is now favored and designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. La. C.C.P. art. 966. Though | ¿favored, the burden of proof still remains on the party seeking judgment. However, where the movant provides support by affidavit and attachments, the “adverse party may not rest on the mere allegations or denials of his pleading.” La. C.C.P. art. 967. He must present sufficient evidence setting forth specific facts tending to demonstrate that a genuine issue for trial remains. Id.

Appellate courts review summary judgments de novo under the same criteria that govern district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La. App. 2d Cir.08/21/96), 679 So.2d 477.

La. R.S. 32:414(E)(8) provides that the DPS may conduct an investigation to determine whether a driver’s license should be revoked, suspended or cancelled upon a showing by its records or other sufficient evidence that the licensee is afflicted with such mental or physical disabilities as would constitute grounds for refusal of a license. La. R.S. 40:1356(E) provides that any health care provider or family member with firsthand knowledge may file a report with the Department of Public Safety and Corrections stating a belief that a licensed driver is unable to safely operate a motor vehicle.

The motion for summary judgment without contradiction shows that the DPS did not have knowledge of Gaines’ hazardous mental condition. There was nothing to trigger a duty of the DPS to investigate Gaines. The failure of the Mental Heath Clinic to file a report cannot be imputed to DPS. Accordingly, the grant of summary judgment was proper.

| (tE.A. Conway and The Department of Health and Hospitals

A peremptory exception of no cause of action is triable on the face of the pleadings and, for the purpose of determining the issues raised by the exception, the well-pled facts must be accepted as true. C.C.P. art. 931.

The trial court, in its reasons for judgment, cited two statutes as guides in its analysis. First, it referred to La. R.S. 9:2798.1, which provides that no liability shall be imposed on public entities, their officers or their employees based on the exercise or performance or failure to exercise or perform their policymaking or discretionary acts when those acts are within the course and scope of their lawful powers and duties, except when such acts are criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant.

Secondly, the court cited La. R.S. 9:2800.2, which provides that a psychiatrist or other mental health provider licensed by the state cannot be held liable for breach of a patient’s confidentiality when such health provider warns or takes precautions after the patient makes a threat against a clearly identified victim or victims, with the apparent intent to carry out such a threat.

Plaintiffs cite Davis v. Puryear, 95-1637 (La.App. 4th Cir.05/01/96), 673 So.2d 1298, writ denied, 96-1380 (La.10/04/96), 679 So.2d 1381, a case in which the court held that a state mental hospital and the physicians employed by the hospital could be held liable for negligence and breach of standard of care when a dangerous psychotic patient escaped and murdered a woman.

|7Plaintiffs also cite Barbarin v. Dudley, 00-0249 (La.App. 4th Cir.12/20/00), 775 So.2d 657, writ denied, 01-0170 (La.03/16/01), 787 So.2d 316, in which the court held that whether a physician had a duty to warn a home health aide who was attacked by a mentally unstable patient is a question of fact, thus precluding summary judgment.

In their petition, plaintiffs have alleged that Gaines was voluntarily released from the MMHC and that Dr. Agarwal, the treating psychiatrist, determined that Gaines, who voluntarily admitted himself to care, was stable enough to be released as long as Gaines took his medication and refrained from drinking alcohol. The petition in this case, therefore, has failed to set forth a cause of action. Accordingly, we find that the trial court properly granted the exceptions of no cause of action. We note as to DHH, in Berry v. State, Through Dept, of Health and Human Resources, 93-2748 (La.05/23/94), 637 So.2d 412, 415, the supreme court stated:

While the Department of Human Health and Resources had a duty to administer medical assistance program under guidelines set forth, that duty did not impose liability on the state to third persons ... to hold otherwise would place an unreasonable burden on the state and would have a far reaching effect on the liability of the state in administering programs such as the one involved in this case.

Louisiana Code of Civil Procedure article 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. Therefore, plaintiffs will be given time to amend their petition in this case and the trial court erred in failing to allow them this opportunity.

| s Conclusion

For the reasons set forth above, that portion of the trial court’s judgment granting the State of Louisiana Department of Public Safety/Office of Motor Vehicles’ motion for summary judgment is AFFIRMED. Further, that part of the trial court’s judgment sustaining the peremptory exceptions of no cause of action in favor of the State of Louisiana, Health Care Science Center At Monroe d/b/a E.A. Conway Hospital and the State of Louisiana, Department of Health and Hospitals is also AFFIRMED. The trial court is hereby ordered to set a period of time during which plaintiffs will be allowed to amend their petition to allege a cause of action. Costs, as allowed by law, are assessed against defendants.

AFFIRMED AND RENDERED.

      . The trial court denied a motion for sum-maty judgment filed by Gaines’ parents, who remain in this case.


author: LOLLEY, J.

text:
    Margaret GOLDEN, Plaintiff-Appellant, v. Tim D. WATERHOUSE, Defendant-Appellee.
    No. 41,889-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Don L. Kneipp, for Appellant.
    Paul Henry Kidd, Jr., Monroe, for Ap-pellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| plaintiff, Margaret Golden, appeals a judgment from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, which granted defendant’s Exception of Lack of Jurisdiction. For the following reasons, we reverse.

FACTS

Margaret Golden and Tim Waterhouse were married on November 10, 1986, and established their matrimonial domicile in Ouachita Parish, Louisiana. The couple physically separated November 14, 1994, and were legally divorced by judgment by the Fourth Judicial District Court in Oua-chita Parish on September 20, 1995. After the divorce, Golden established her domicile in Texas and Waterhouse in Illinois.

On February 10, 2006, Golden filed a Petition to Partition Community Property with the Fourth Judicial District Court. On March 14, 2006, Golden filed an affidavit of service with return receipt showing that Waterhouse had been properly served. On April 27, 2006, Waterhouse filed an Exception of Lack of Jurisdiction. On May 22, 2006, Golden responded by filing an Opposition to the Exception.

On May 25, 2006, a hearing was held on the exception. At the conclusion, the trial court granted the Exception of Lack of Jurisdiction without written reasons and dismissed Golden’s Petition for Partition of Community Property. This appeal ensued.

LAW AND DISCUSSION

Golden argues that the trial court erred in granting the Exception of Lack of Jurisdiction and contends that because the judgment of divorce was | ¿rendered by the trial court, it had continuing jurisdiction over Waterhouse and the ancillary partition proceeding. We agree.

Louisiana C.C. art. 2369.8 states that:

A spouse has the right to demand partition of former community property at any time. A contrary agreement is absolutely null.
If the spouses are unable to agree on the partition, either spouse may demand judicial partition which shall be conducted in accordance with R.S. 9:2801.

In domestic proceedings, the Louisiana Supreme Court has long established the doctrine of continuing jurisdiction, namely that once a trial court obtains jurisdiction in a divorce or separation proceeding it retains jurisdiction over any incidental matters connected with the original proceedings. Gowins v. Gowins, 466 So.2d 32 (La.1985).

Louisiana C.C. art. 2369.8 creates a right for a spouse to demand a judicial partition and notably the legislature did not create any exceptions. In conjunction, La. R.S. 9:2801 establishes the general authority a trial court has when partitioning community property which goes beyond a basic partition of a thing held in indivisión. La. C.C. art. 807. A trial court can be heavily involved in allocating the distribution of assets and liability if it finds the result to be unequal. The statute also allows the trial court to settle claims arising from the matrimonial regime, e.g. reimbursement for improvements on separate land using community funds. See La. R.S. 9:2801(A)(4). To enforce a judgment of this nature it is crucial to continue the trial court’s personal jurisdiction established as result of the original divorce proceeding. However, in the instant case, it would be premature for lathis court to make any determination regarding the scope of this partition because we do not have a complete record identifying the community property or claims at issue.

The fact that Waterhouse and Golden are no longer domiciled and have no contact with Louisiana is of no consequence. In Little v. Little, 513 So.2d 464 (La.App. 2d Cir.1987), this court was presented with a similar issue where both parties left the state after their divorce 20 years earlier and had no further contact with Louisiana. In that case, the ex-wife sued the husband in Bossier Parish to partition the husband’s military retirement pay. Jurisdictionally, we find no distinction can be made. In Gowins, the court recognized that it is the nature of the proceeding, rather than anything about the party, that is determinative of continuing jurisdiction. As in the case at bar, once jurisdiction attaches it continues throughout the entire proceeding, including actions which are “essential concomitant[s]” of the original one. Little, supra at 467.

Waterhouse also argues that the United States Bankruptcy Court involvement resulted in a loss of jurisdiction and ultimately discharged any claims Golden may have. We find this argument unpersuasive. A bankruptcy discharge extinguishes rights to payment; it does not extinguish interest in property. Mundell v. Mundell, 2003-631 (La.App. 3d Cir.11/05/03), 858 So.2d 768. Finally, Wa-terhouse argues that the only potential community property is land located in Massachusetts and therefore Massachusetts is the appropriate forum. Again, although a more complete record would have helped this court identify the community property and claims at issue, including the land Waterhouse refers to, this is not 14dispositive for the narrow issue of jurisdiction as now presented. In light of our finding that the trial court had continuing jurisdiction, this argument is without merit.

Here, since the original proceeding was the divorce, the action to divide the community property is within the scope of the trial court’s continuing jurisdiction. In granting the exception, the trial court has, in effect, wrongly divested itself from being able to adjudicate any other ancillary proceeding arising from this divorce proceeding and made access to the judicial system difficult for the parties seeking a resolution.

CONCLUSION

For the foregoing reasons, we reverse the grant of the Exception for Lack of Jurisdiction and remand to the trial court for a trial on the community property partition.

REVERSED AND REMANDED.

BROWN, C.J., concurs.


author: SEXTON, J.

text:
    Robert C. JOHNSON, Sr. and Arthur Gilmore, Jr., Individually and as Members of the Monroe City Council, Districts Five and Three, Plaintiffs-Appellants v. James “Jamie” MAYO, Mayor of The City of Monroe, and Ronald Schleuter, Chief of Police for the City of Monroe, Defendants-Appellees.
    No. 41,645-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Rehearing Denied March 29, 2007.
    Pierre & Pierre, LLC, by J. Rodney Pierre, for Appellants.
    Nanci S. Summersgil, City Attorney, La Koshia R. Roberts, Assistant City Attorney, for Counsel for Appellees.
    Pamela Blankenship, for Amicus Curiae, Monroe City Court Judges.
    Before BROWN, WILLIAMS & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| j Monroe City Couneilmen Robert Johnson and Arthur Gilmore (“the Councilmen”) filed suit for declaratory relief, mandamus, a temporary restraining order and preliminary and permanent injunctions arising out of Mayor James Mayo’s alleged directive to Chief of Police Ronald Schleu-ter (collectively “the Mayor”) to charge all non-traffic misdemeanor offenders under the relevant state statute instead of the violated city ordinance so that those offenders would be handled in district court rather than Monroe City Court. The district court refused the relief requested and dismissed the action. This appeal ensued. For the reasons stated herein, we conclude the action is moot and affirm the dismissal.

FACTS

Monroe is a home rule charter city with a Mayor-Council form of government. The Mayor serves as the chief executive officer with the chief of police as the chief law enforcement officer of the city. Section 3-09 of the Monroe City Home Rule Charter (“the Charter”) provides:

A. The Mayor as Chief executive officer of the city, shall have the following powers and duties: (1) See that all laws, provisions of this charter and acts of the Council, subject to enforcement by the Mayor or by officers subject of the Mayor’s direction and supervision, are faithfully executed.

Section 2-11 of the Charter provides that the acts of the Council shall have the force of law by ordinance. The Council has enacted a criminal code by ordinance. The Charter further provides that the police department is a department within the Mayor’s administration and that the chief of police is under the supervision and direction of the Mayor and, pursuant to section 4-04 of the Charter,

| gshall direct and be responsible for the preservation of public peace and order, prevention of crime; apprehension of criminals; assistance of the courts and other law enforcement agencies and the enforcement of laws of the state and ordinances of the Council ...”

Against that structural backdrop, this matter arose out of the Mayor’s efforts to better manage the city’s budget. In particular, the funding for prisoner housing was inadequate and the Monroe City Court was in financial crisis, requiring substantial supplementing from the city treasury (more than $600,000 last year). In an effort to address these problems, the May- or decided to relieve the city court of some of its cases, thereby saving the city money and requiring less prisoner housing. On December 7, 2005, the Mayor issued an executive order effective January 1, 2006, directing the chief of police to instruct all police officers to charge all future non-traffic misdemeanor offenses under state law rather than city ordinance. A news release followed. According to the Mayor, this was to be a temporary measure which would be reviewed after several months to determine if it was a viable ongoing option for better managing the budgetary problems.

Councilmen Johnson and Gilmore opposed this directive and met with the Mayor to express their opinion that the directive violated the Charter. The Councilmen’s position was that the Mayor was failing to enforce the acts of the council, specifically the criminal code, by directing that officers not charge offenders with violations of the city’s ordinances. Shortly thereafter, on December 21, 2005, the Mayor issued a second letter clarifying his position and directing the police department to exercise “discretion” in whether to charge offenders under state law or city | .¡ordinance. In that letter of clarification, the Mayor expressed his preference that the non-traffic misdemeanor violations be charged under state law. The following day, December 22, 2005, the Councilmen responded to the Mayor by letter advising him of their intent to seek judicial relief.

On March 22, 2006, Councilman Johnson introduced an ordinance in an attempt to stop the transfer of cases to district court, citing the alleged violation of the Charter by the Mayor. The council passed this ordinance; but, in April 2006, the Mayor vetoed it. This lawsuit followed.

As previously stated, after a hearing in the matter, the district court denied the relief requested by the Councilmen, finding no violation of the Charter in the May- or’s actions. This appeal ensued.

DISCUSSION

The Councilmen assign three errors on appeal as follows:

1. The trial court erred when it denied Appellants’ motion for judgment on the pleadings after it was established that Appellees had not filed an answer to the Petition for Declaratory Judgment, Mandamus, a Temporary Restraining Order, a Preliminary Injunction and a Permanent Injunction, when an answer was required.
2. The trial court erred when it denied Appellants’ request for Mandamus after Appellants met their burden of proof in showing that the Mayor failed to perform his ministerial duties; particularly, his duty to see that all acts of the City Council are faithfully executed.
3. The trial court erred when it denied Appellants’ request for injunctive relief after Appellants met and or exceeded their burden of proof in showing that the Mayor, while recognizing and understanding his duty, did not faithfully execute the charter and enforce the acts of the City Council.

|4We will first address the substantive claims asserted in assignments of error numbers two and three.

In the instant case, there is no dispute that the Charter sets forth the duties and responsibilities of both the Mayor and the chief of police and that those duties include faithful execution of the acts of the council, which includes the Monroe criminal code. Further, there is no dispute that, under the Charter, the chief of police and the police department are under the administration of the Mayor and the chief of police is responsible for enforcement of the criminal code. The Councilmen argue to this court that, in order for the Mayor to perform this duty of faithful execution of the acts of the council, he must see that all offenses violative of any city criminal ordinance must be charged by the police under that ordinance, rather than state law. They contend that the Mayor’s directive constitutes a disregard of the city’s criminal code in violation of his duties as set forth in the Charter. The Mayor now contends that he cannot direct the police on how to charge an offender. He submits that he merely stated a preference with regard to charging, which does not constitute a violation of his duties under the Charter.

It is well-established that municipal or city courts and state district courts have concurrent jurisdiction over some misdemeanor offenses. City of Baton Rouge v. Ross, 94-0695 (La.4/28/95), 654 So.2d 1311; Bush ex rel. State v. Williams, 504 So.2d 1060 (La.App. 1st Cir. 1987), unit denied, 505 So.2d 1131 (La. 1987). While jurisdiction over felonies is reserved |sfor the state, Const. Art. VI, § 9, municipalities are free to criminalize the same misdemeanor conduct that the state has criminalized as misdemeanors and provide punishment therefor, so long as the punishment is not harsher than the penalty provided for the same conduct under state law. City of Baton Rouge v. Ross, supra.

When an offense has been committed, it is the duty of the peace officer at the time of booking to record the charge or charges upon which an offender was arrested. La. C. Cr. P. art. 228(C)(1)(b). The arrest is made in the discretion of the police officer, as is the charge to be recorded. The district attorney is then vested with sole discretion in prosecuting an offender under any given state statute. La. Const. Art. 5, § 26(B); La. R.S. 16:1(B); La. R.S. 14:4; and La. C. Cr. P. art. 61. The city prosecutor is afforded the same status and discretion in prosecuting an offender under any provision of the city’s criminal code. La. C. Cr. P. arts. 7 and 934(3). Where conduct is violative of both city ordinance and state statute, the jurisprudence has long recognized that the result may be a “race to the courthouse” to determine whether the offender is prosecuted in city or district court. City of Baton Rouge, supra; Bush ex rel. State v. Williams, supra, and cases cited therein.

For purposes of the case sub judi-ce, the significance of this principle is that it is the district and city attorneys who make the decision, in their discretion, under which ordinance or statute an offender will ultimately be prosecuted. The Mayor plays no role in these determinations. Whether the | fiMayor directed the chief of police to charge under state law or otherwise is of no moment, as the discretion as to which statute to ultimately charge and prosecute rests with the district or city attorneys.

Moreover, the Mayor repeatedly testified that he did not have the authority to direct the chief of police and the police department on how to charge offenders, but maintained that he only expressed a preference for transferring the cases for budgetary reasons. We find no violation of his duties as set forth in the Charter in stating his preference in this regard. Accordingly, we find no ministerial duty that could be compelled by an order of mandamus, nor any prohibited action to be enjoined.

Any judgment rendered against the Mayor would have no useful purpose or provide any practical relief. It is, therefore, moot. As the supreme court explained in Cat’s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186:

According to Louisiana jurisprudence, an issue is “moot” when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” A case is “moot” when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. A case is “moot” when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. If the case is moot, then “there is no subject matter on which the judgment of the court can operate.” (Internal citations omitted.)

|7The present case is distinguishable from Smith v. City of Alexandria, 420 So.2d 1329 (La.App. 3d Cir.1982), wherein the court enjoined the Mayor from affecting city employees’ labor contracts to prevent deficit spending. In Smith, the may- or of Alexandria reduced the number of hours in a work week, thereby affecting the labor contracts of the city employees. While the mayor apparently was authorized to take remedial measures to prevent deficit spending, Alexandria’s charter expressly provided that the city employees’ labor contracts fell within the province of the city council, not the Mayor. Here, the Mayor did not engage in behavior prohibited by the Charter. As stated, he expressed a preference for charging of non-traffic misdemeanors, the discretion for which is vested initially with the police officers and ultimately with the city and district attorneys. Again, we find no action on the part of the Mayor to compel or to enjoin.

Regarding assignment of error number one, the Councilmen submit that, since no answer was filed prior to the time set for hearing, they are entitled to judgment on the pleadings. Our conclusion that there is no action to compel or enjoin obviates this assignment. Moreover, we note that counsel for the Mayor filed an answer during the hearing.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at Appellants’ cost.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and SEXTON (Pro Tempore), JJ.

Rehearing denied.

      . Bush ex reí. State v. Williams and City of Baton Rouge v. Ross provide thorough reviews of the origin of this concurrent jurisdiction, home rule charter governments and constitutional limitations thereon.

      . We note that the Mayor argued in brief that an agreement confected subsequent to the ruling in this case renders the case moot. The attachment to the Mayor's brief is outside the scope of the record and, thus, will not be considered. Gray v. Crocker, 37,683 (La.App. 2d Cir.9/24/03), 855 So.2d 842.

      . The voluntary cessation exception to the mootness doctrine is not presented here by the Mayor's withdrawal of his December 7,


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Kenneth BOOKER, Appellant.
    No. 41,665-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Samuel H. Thomas, Tallulah, for Appellant.
    Donald M. Burkétt, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   MOORE, J.

| defendant pled guilty to one count of sexual battery in violation of La. R.S. 14:43.1. At the time of the offense, the crime was punishable by imprisonment with or without hard labor, without benefit of parole, probation or suspension of sentence for not more than 10 years. The trial court sentenced defendant to five years at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals, maintaining that his sentence is excessive. We affirm.

When, as here, a defendant does not file a motion for reconsideration, our review is limited to the claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2 Cir. 2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App. 2 Cir. 12/17/03), 862 So.2d 1123.

The DeSoto Parish Grand Jury indicted defendant for sexual battery, and the defendant pleaded guilty to the charged offense without any plea agreement from the state. According to the factual basis presented by the state and admitted by the defendant when he pleaded guilty, the 20-year-old male defendant had sexual intercourse with an 11-year-old female. Defendant confessed, and the victim also gave a statement indicating it happened.

| i>On appeal, defendant argues that his sentence is excessive because he is a first felony offender with no previous criminal history and because he was gainfully employed. He further argues that the trial court erred by not allowing him probation instead of a prison term. The applicable sentencing statute for sexual battery clearly states that the sentence must be imposed without benefit of probation. La. R.S. 14:43.1(C).

The record at sentencing clearly shows that the trial court very carefully tailored a sentence to the facts and circumstances of this case, where the defendant could have been exposed to a much, much harsher penalty. The court listened to testimony from a school bus driver who had known the defendant all of the defendant’s life. He testified that the defendant had a reputation of being a respectful young man who had never been in any trouble. The defendant’s father testified regarding his son’s school, social and church activities and that he had not been in any trouble before. The trial court also considered the pre-sentence investigation report and statements from the victim’s mother requesting a sentence of 1 to 2 years. The court spoke directly with the defendant regarding his mental state at the time of the offense; it noted the fact that defendant was a first felony offender with no juvenile or adult criminal history and defendant’s social history; it also noted that the defendant thought the victim was 14 years old instead of 11; and, that defendant could have been charged with aggravated rape and subject to life imprisonment under the facts admitted by the defendant, but the grand jury refused to return an indictment for aggravated rape. The trial court gave defendant the opportunity to make a | ^statement before sentencing, wherein defendant admitted that he made a mistake and promised never to get into trouble again. He stated that he wanted to move forward with his life, get a GED, and go to college. When the trial court asked defendant why he committed this offense, defendant stated that he did not know why he did it and that he was not thinking at the time.

On this record, we do not find constitutional error. We note that the defendant was given a mid-range sentence for this offense, which does not fully describe the actual nature of the crime. The defendant was 20 years old and the victim only 11 years old, and he engaged in sexual intercourse with the victim. Under the amended statute, defendant would have received a minimum sentence of 25 years simply for sexual battery, and, as noted by the trial court, he could have been prosecuted for aggravated rape and serving a life sentence. Considering the great age disparity between the offender and victim, irrespective of what the defendant might have thought, we conclude that the sentence is neither grossly disproportionate to the severity of the offense of conviction, nor is it shocking to our sense of justice. There is no showing that the trial court abused its discretion in imposing a 5-year sentence without benefits. Therefore, this sentence is affirmed.

AFFIRMED.

      . Acts 2006, No. 103, § 1 added, inter alia, paragraph (C)(2) providing that the minimum sentence of 25 years without benefits when, as in this case, the offender is over the age of 17 and the victim is under the age of 13.


text:
    NORTHEAST REALTY, L.L.C., Plaintiff-Appellee v. MISTY BAYOU, L.L.C., et al., Defendants-Appellants.
    No. 41,873-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Mayer, Smith & Roberts, L.L.P., by David F. Butterfield, Shreveport, for Appellants, Alfred J. Antonini, Alva J. Anton-ini & L.A. Investment Properties, Inc.
    Joe D. Guerriero, Monroe, for Appellee, Northeast Realty, L.L.C.
    Michael A. Courteau, Monroe, for Appel-lee, Misty Bayou, L.L.C.
    Before DREW, MOORE and SEXTON (Pro Tempore), JJ.
   MOORE, J.

| Nhe intervenors, L.A. Investment Properties Inc., LLC (“LAIP”) and its two principals, Alfred and Alva Antonini (“the Antoninis”), appeal a default judgment that quieted a tax title in favor of the tax purchaser, Northeast Realty LLC (“Northeast”), as well as an earlier judgment that fixed the value of the interve-nors’ litigious rights in this suit at $8,035.64. Finding no manifest error, we affirm.

Factual Background

The property involved is a five-tract parcel called Kingston Village Apartments, located at the corner of King Street and Blanks Avenue, near the University of Louisiana in Monroe. The previous record owner, Kingston Village Realty, failed to pay 1995 property taxes, and in June 1996 the property was adjudicated to a tax purchaser. This purchaser sold his tax title and it was later acquired by Northeast, an entity owned and controlled by Joseph and Edward Hakim.

In 1999, Misty Bayou LLC, an entity owned and controlled by the Antoninis, acquired the tax debtor’s interest and attempted to redeem the property. However, the Antoninis and the City of Monroe could not agree on the total tax due, so redemption never occurred.

Meanwhile a creditor, Hibernia National Bank, attempted to collect an unrelated debt of over $500,000 from the Antoninis. Northeast bought Hibernia’s interest in the matter and obtained a $544,958 judgment against the Antoninis in July 2002. This court later affirmed the bulk of that judgment. Hibernia National Bank v. Antonini, 37,836 (La.App. 2 Cir. L12/10/03), 862 So.2d 331.

Northeast filed the instant suit to quiet its tax title in August 2002. The principal defendant was Misty Bayou, against whom Northeast took a preliminary default in October 2002. In October 2003, Northeast seized the Antoninis’ interest in Misty Bayou to satisfy the unpaid Hibernia judgment. A sheriffs sale was scheduled for January 7, 2004.

Shortly before the sheriffs sale, the An-toninis signed three documents on behalf of Misty Bayou. First, Misty Bayou sold its interest in the property to LAIP (which, as noted, was also controlled by the Antoninis) by assumption deed for $600,000. Second, Misty Bayou mortgaged its interest in the property for $600,000 to an entity called The Antonini Family Trust (also controlled by the An-toninis). Third, Misty Bayou sold all its interest in the instant lawsuit to LAIP for the following consideration:

This sale is made and accepted for and in consideration of the sum of one hundred and no/100 DOLLARS ($100.00), receipt of which is hereby acknowledged and full acquittance granted therefor, and other good and valuable consideration, which shall include, but not be limited to, Vendee’s undertaking the obligation to fund the legal expenses and out-of-pocket costs incurred in prosecuting the above described litigation to its final conclusion.

The act of sale was signed by Alva J. Antonini, manager of Misty Bayou, as vendor, and bore the signature line (but not the actual signature) of Alva J. Antonini, secretary of LAIP, as vendee.

These three documents were executed on January 2, 2004, while Misty Bayou’s property was under seizure in the Hibernia suit and five days | .¡prior to the sheriffs sale. Northeast purchased the An-toninis’ interest in Misty Bayou at the sheriffs sale on January 7.

In March 2004, Northeast entered another preliminary default against Misty Bayou. Because Northeast now owned all the assets of Misty Bayou, presumably Misty Bayou would not contest Northeast’s efforts to quite title.

In April 2004, the Antoninis and LAIP intervened in the instant suit, alleging that Misty Bayou had transferred its interest in the property, as well as its litigious rights in this case, to LAIP. Claiming to be “former members of Misty Bayou,” they alleged that Northeast (and its principals, Joseph and Edward Hakim) had diminished their interest in Misty Bayou. Northeast responded with an exception of no right of action, which the district court sustained and this court affirmed. Northeast Realty LLC v. Misty Bayou LLC, 40,573 (La.App. 2 Cir. 1/25/06), 920 So.2d 938. The Antoninis did not take a writ from the appellate decision, so their dismissal is now final.

In August 2004, Northeast filed the instant motion to compel LAIP to sell its litigious rights under La. C.C. art. 2652. Northeast alleged that it was entitled to extinguish this obligation by paying LAIP the same $100 plus “other valuable consideration” that LAIP had received from Misty Bayou. LAIP and the Antoninis argued that the litigious rights comprised attorney fees incurred before and after the January 2, 2004 transfer of Misty Bayou to LAIP, conservation expenses associated with the property (which by this time was in serious disrepair), and the $600,000 mortgage to The Antonini Family Trust, for a total of $876,251.92. Northeast contended, however, that the trust never made any loan to Misty Bayou: when the new |4owners took over, the company was broke. Northeast also showed that Misty Bayou’s new manager, Joseph Hakim, had “waived” its right to claim attorney fees and costs from the company’s prior owners, in effect renouncing all such amounts incurred prior to January 2, 2004, as well as the $600,000 assumption note. Northeast alleged that attorney fees and costs incurred since the sale were $8,035.64, and this was the only value of the litigious right.

At a hearing on September 30, 2004, the district court heard the testimony of Misty Bayou’s current president, Joseph Hakim, and reviewed the documents pertaining to the sale of Misty Bayou. The court accepted Northeast’s interpretation of the sale and rendered judgment ordering LAIP to sell its litigious rights to Northeast for $8,035.64. After delays arising from disputes over the precise phrasing of the judgment, LAIP executed the sale of litigious rights on March 7, 2005.

On March 15, 2006, counsel for Northeast and Misty Bayou appeared for confirmation of default on the original claim to quiet the tax title. As noted, Misty Bayou acquiesced in default judgment against itself, confirming Northeast’s title to the property. The judgment enjoined Misty Bayou, the Antoninis and the other named defendants from asserting any further title in the property, and ordered the cancellation of any mortgage thereon. Counsel for LAIP and the Antoninis was not present; the preliminary default had been entered before they intervened, and the record does not show that they received notice of the confirmation hearing.

liiLAIP and the Antoninis moved for new trial, urging inter alia that they were never named as defendants in the suit to quiet title, and that The Antonini Family Trust was never served with process or notice of the confirmation hearing. The district court denied this motion after a hearing on May 5, 2006.

LAIP and the Antoninis have appealed, challenging both the valuation of the litigious rights and the propriety of the judgment quieting Northeast’s title to the property.

Discussion: The Sale of Litigious Rights

By their first assignment of error, the appellants urge the district court erred in finding that Northeast could redeem for only $8,035.64 the litigious rights sold by Misty Bayou to LAIP. They first dispute Northeast’s position at trial that Misty Bayou had no right to transfer its litigious rights; however, they concede that under La. C.C. art. 2652, Northeast was entitled to purchase those rights “by tendering appropriate consideration to LAIP.” They contend, as they did at trial, that the litigious rights comprised (1) unfunded legal fees and expenses in connection with the defense of the suit to quiet title and associated proceedings; (2) attorney fees for the preparation of the various transfer documents; (3) vendor expenses incurred in attempting to maintain custody and control of the property; and (4) the collateral mortgage with a face value of $600,000. They submit that these items total $872,123.55. Next, the appellants concede that Joseph Hakim testified he would waive the attorney fees incurred by Misty Bayou before he acquired it, but “it is axiomatic and does not need citation to say that the hnew owners of an LLC cannot waive debts that the LLC owes to third parties simply because the new owners acquire their ownership interest at a sheriff sale.” Finally, the appellants argue the district court “completely misconstrued the act of sale in question,” ignoring the use of the word incurred, and missing the clear intent for LAIP to pay Misty Bayou’s attorney fees in excess of $40,000, “vendor services” in excess of $200,000, and other costs. They conclude that the district court must have found the act of sale ambiguous, and this finding is subject to de novo review. Claitor v. Delahoussaye, 2002-1632 (La.App. 1 Cir. 5/28/03), 858 So.2d 469, writ denied, 2003-1820 (La.10/17/03), 855 So.2d 764.

Northeast responds that the key to interpreting the act of sale is not the word incurred but rather the words shall include, to fund, and the whole phrase incurred in prosecuting: taken as a whole, the act of sale shows an intent to include only the attorney fees and maintenance costs that accrued after January 2, 2004. Factually, it contends that the statement of attorney fees does not indicate how much was owed by Misty Bayou for the defense of this suit, and how much was owed by LAIP and the Antoninis for related and unrelated matters; it also cites counsel’s admission that all fees were “unfunded.” It also challenges the ambiguous charge of $227,175.31 for “vendor services.” Finally, it contends that Misty Bayou’s records contained no evidence that the company ever received the $600,000 for which the mortgage was granted, and it cites an answer to interrogatories in which the appellants admitted “the ‘other valuable consideration’ has no dollar value.” It concludes that the judgment is not plainly wrong.

|7Two of the appellants’ contentions are valid. By the act of sale dated January 2, 2004, Misty Bayou purported to sell “all of its right, title and interest in and to” the instant lawsuit, clearly an assignment of litigious rights. When a litigious right is assigned, “the debtor may extinguish his obligation by paying to the assignee the price the assignee paid for the assignment, with interest from the time of the assignment.” La. C.C. art. 2652. The appellants correctly concede that under this article, Northeast was entitled to purchase the litigious rights. Second, at the hearing on September 30, 2004, Joseph Hakim purported to “waive any rights and obligations that exist in favor of LAIP as a result of these transactions.” The appellants correctly show that there is no provision of law that would permit the new owner of a business to “waive” the debts and obligations contracted before he or she took control.

The issue, therefore, is whether the district court properly valued the litigious right. The interpretation of a contract is the determination of the common intent of the parties with the courts giving the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. La. C.C. arts. 2045, 2047; Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69. A doubtful provision must be interpreted in light of, inter alia, the conduct of the parties before and after the formation of the contract. La. C.C. art. 2058. Contract interpretation of ambiguous terms requires construction against the contract’s drafter. La. C.C. art. 2056; Campbell v. Melton, supra. Factual findings which are pertinent to the interpretation of a contract will not be disturbed absent 18manifest error. Campbell v. Melton, supra; Murray v. German Mut. Ins. Co., 37,697 (La.App. 2 Cir. 9/24/03), 856 So.2d 81, unit denied, 2003-3168 (La.2/13/04), 867 So.2d 698.

The act of sale recited as consideration “the Vendee’s undertaking the obligation to fund the legal expenses and out-of-pocket costs incurred in prosecuting the above described litigation to its final conclusion.” The appellants urge that incurred is in the past tense and thus encompasses attorney fees and costs going back to the beginning of the controversy. More precisely, however, incurred (as used in this sentence) is a past participle serving as an adjective modifying expenses and costs, and does not necessarily convey a sense of past completed action. The use of incurred does not mandate a finding that LAIP would assume the obligation to pay all attorney fees and costs, including those already accrued and those not yet accrued.

The district court apparently found that the phrase undertaking the obligation to fund meant a promise to pay fees’ and costs to be accrued, and we cannot declare this plainly wrong. The act of sale did not recite any amount of past fees and costs, mention any summary or statement, or provide any means by which such fees and costs could be ascertained. Had the parties intended to include past expenses, they could have stated them explicitly. Moreover, the act of sale was supplied by Alva J. Antonini, manager of Misty Bayou, as vendor, and accepted by Alva J. Antoni-ni, manager of LAIP, as vendee. The Antoninis owned and controlled both businesses and executed the sale to frustrate Northeast’s attempt to acquire | ¡¡their assets; any ambiguity in the sale must be construed against the Antoninis and in favor of Northeast. On this record, we cannot say the district court was plainly wrong to find that the consideration for the sale included only those legal fees and out-of-pocket expenses that arose after the date of the sale, January 2, 2004.

The district court also refused to consider, as an element of the litigious right, the $600,000 collateral mortgage. This court has already noted that the transactions of January 2, 2004 were suspect and ineffective. Misty Bayou LLC v. Northeast Realty LLC, supra at p. 2, 920 So.2d at 940. At the hearing on September 30, 2004, Joseph Hakim testified that he could not find in Misty Bayou’s financial records any evidence that Misty Bayou received the funds represented by the promissory note or, if it did, how it spent them. Aside from the argument of counsel, the appellants have offered no positive proof. While this record may not be sufficient to support a finding of fraud or monetary instrument abuse, it certainly supports the finding that no actual value was given in exchange for the collateral mortgage. The district court was not plainly wrong to exclude this as an element of the litigious rights.

The district court was not plainly wrong to find that the litigious rights included the $100 stated in the act of sale, and the documented amounts of attorney fees, expenses and travel that accrued after January 2, 2004. This assignment of error lacks merit.

| judgment to Quiet Tax Title

By their second assignment, the appellants urge the district court erred in quieting Northeast’s title and canceling the mortgage in favor of The Antonini Family Trust by default. It contends the court lacked authority to render judgment that precluded Misty Bayou’s “heirs, successors, assigns * * * from claiming or setting up any right, title or interest in and to” the property. According to the appellants, LAIP clearly had an interest in the property, having intervened in the suit and formally adopted all of Misty Bayou’s pleadings, but Northeast never joined it as a defendant and never obtained service on either LAIP or The Antonini Family Trust. They contend the lack of service vitiates the default judgment under La. C.C.P. arts. 1701 and 1702.

Northeast reiterates that the three transactions orchestrated by the Antoninis on January 2, 2004, were an attempt to defraud their creditors. It contends that LAIP did not timely appeal the judgment (October 24, 2004) that ordered it to sell the litigious rights to Northeast; thus the judgment was final. After LAIP complied, it was no longer a party to the suit to quiet title, and hence entitled to no notice of a confirmation hearing. Northeast also contends that the judgment was completely appropriate because a tax deed “in the conveyance or mortgage office shall operate as a cancellation of all conventional and judicial mortgages.” La. R.S. 47:2183 B.

Northeast’s position has merit. In Northeast Realty LLC v. Misty Bayou LLC, supra, this court held that the An-toninis had no right of action to intervene in this suit. We decline to revisit that holding under the guise |t1that the Anton-inis were somehow entitled to notice of a hearing in a suit from which they had been dismissed. LAIP complied with the district court’s order on March 7, 2005, by executing the sale of “all of its rights which it acquired from Misty Bayou LLC in connection with” the instant suit. “All of its rights” obviously included claims which LAIP may have adopted from Misty Bayou to defeat the suit to quiet title. On this showing, the court was entitled to find that LAIP had no more interest in the litigation and was due no notice of confirmation under La. C.C.P. art. 1702 A.

The remaining issue is the scope of the judgment to quiet title. The appellants contend it could not erase the collateral mortgage in favor of The Antonini Family Trust.

A tax deed by a tax collector is prima facie evidence that a valid sale was made. La. Const, art. 7, § 25; Sunset Realty Inc. v. Antonini, 36,788 (La.App. 2 Cir. 1/29/03), 836 So.2d 1173. The procedure for a suit to quiet tax title is prescribed by La. R.S. 47:2228; however, the appellants do not allege, and we do not perceive, that any of these provisions were disregarded. Further, “If not redeemed, such record [tax deed] in the conveyance or mortgage office shall operate as a cancellation of all conventional and judicial mortgages[.]” La. R.S. 47:2183 B (emphasis added). The statute makes no distinction between mortgages placed before or after the tax sale; it cancels all such mortgages. The provision would be meaningless if it permitted a tax debtor who faded to redeem his or her 112property through the redemption process simply to grant mortgages on it and thereby frustrate the title of the tax purchaser. The district court did not err in rendering judgment that conforms with R.S. 47:2183 B. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgments are affirmed. All costs are to be paid by the appellants, Alfred J. Antonini, Alva J. Antonini and L.A. Investment Properties Inc., LLC.

AFFIRMED.

      . The buildings are unoccupied and derelict at this time.

      . The other two defendants were Kingston Village Realty, the original tax debtor, and Sunset Realty, the company from which Northeast had bought the tax deed. Sunset Really is controlled by Joseph Hakim and was aligned with Northeast throughout this litigation.

      . Northeast also challenged the Antoninis’ claim that they spent $227,175 in “vendor services” to preserve the property while they controlled Misty Bayou. The record itself is not entirely clear, but such an expenditure is certainly not apparent from the advanced dilapidation of the Kingston Village Apartments.

      . By separate writing, LAIP purported to reserve its right to appeal the 2004 judgment ordering it to sell its litigious rights to Northeast. In briefs to this court, the parties dispute whether the 2004 judgment was merely interlocutory, or a partial final judgment and immediately appealable under La. C.C.P. art. 1915. In the interest of judicial economy, we pretermit any consideration of this issue as by this opinion we have reviewed and affirmed the 2004 judgment.