text:
    WILLIS KNIGHTON MEDICAL CENTER, Plaintiff-Appellee v. Bobby W. EDMISTON, Assessor, Bossier Parish, Louisiana, et al., Defendants-Appellants.
    Nos. 43,106-CA, 43,107-CA, 43,108-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Liskow & Lewis, by Michael D. Ruben-stein, Robert S. Angelico, New Orleans, for Plaintiff-Appellee.
    Patrick R. Jackson, for Defendant-Appellant, Bobby W. Edmiston, Assessor, Bossier Parish.
    James D. Hall, Bossier City, for Defendant-Appellant, City of Bossier City.
    Southerland & Simmons, by James D. Southerland, Benton, for Defendant-Appellant, Larry C. Deen, Sheriff and Ex-Officio Tax Collector.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

_JiIn these three consolidated cases involving a freestanding medical office building owned by a nonprofit hospital corporation, the taxing authorities appeal a summary judgment granted in favor of the nonprofit hospital corporation. The judgment ordered that the portion of the medical office building leased to doctors in private practice be removed from the taxable rolls of Bossier Parish and that the nonprofit hospital corporation be refunded taxes it paid under protest in 2003, 2004 and 2005 to Bossier Parish and the City of Bossier City. We affirm.

FACTS

In January 2004, Willis-Knighton Medical Center (WKMC), a nonprofit corporation, filed a petition seeking refund of ad valorem taxes paid under protest in 2003. Named as defendants were Bobby W. Ed-miston, the tax assessor of Bossier Parish; Larry C. Deen, the sheriff and ex-officio tax collector of Bossier Parish; Charles E. Glover, the tax collector for the City of Bossier City; and Russell R. Gaspard, the chairman of the Louisiana Tax Commission. In its petition, WKMC contended that in 2003, tax notices were issued to it for property it owned and leased to physicians on its staff as medical offices. (The record subsequently disclosed that this property is a freestanding medical office building located on the WK Bossier Health Center campus.) WKMC alleged that it paid the taxes under protest. It asserted that, as an organization exempt from federal tax under 26 U.S.C.A. § 501(c)(3), it is likewise exempt from Louisiana income tax under La. R.S. 47:287.501. As a result, WKMC claimed under La. Const. |2art. VII, § 21(B)(1)(a), its property is exempt from ad valorem taxation in Louisiana.

In January 2005, WKMC filed suit seeking refund of the ad valorem taxes it was required to pay on the same building in 2004. Edmiston, Deen and Glover were again named as defendants, as well as Elizabeth Guglielmo as the chairman of the Louisiana Tax Commission. WKMC alleged that it paid these taxes under protest and requested that they be refunded. In January 2006, WKMC filed suit seeking refund of the ad valorem taxes it paid under protest in 2005. It named the same defendants as in the suit filed in 2005. In August 2006, all three of these cases were consolidated.

In January 2007, WKMC filed a motion for summary judgment. In support of the motion, it filed documentation verifying the taxes assessed against its property, the payments of these taxes under protest, its status as a nonprofit corporation, and its federal tax-exempt status. Also filed in support of the motion for summary judgment was the affidavit of Ira L. Moss, the WKMC vice president/administrator, who testified as to the facts surrounding WKMC’s history and tax exemption, as well as its ownership and leasing of the medical office building at issue here. He testified that certain portions of the building have been leased to physicians in private practice; all of these doctors are members of the WKMC medical staff and use the leased premises as a facility to examine and treat their patients. |3They also send a substantial portion of their patients to WKMC hospitals, including the WK Bossier Health Center, if hospitalization is required.

In support of its motion, WKMC noted that it had filed similar suits against the same taxing authorities as a result of ad valorem taxes it paid under protest for 2000 through 2003 on a medical office building which was attached to the WK Bossier Health Center Hospital by an atrium. In that case, the trial court granted summary judgment in favor of WKMC, and denied the defendants’ motion for summary judgment; this court affirmed, citing Hotel Dieu v. Williams, 410 So.2d 1111 (La.1982). See Willis-Knighton Medical Center v. Edmiston, 39,374 (La.App. 2d Cir.4/6/05), 899 So.2d 736, writ denied, 2005-1208 (La.12/16/05), 917 So.2d 1105 (hereinafter “WKMC I ”).

The defendants filed an opposition to the motion for summary judgment. They asserted that in WKMC I, the Louisiana Supreme Court’s holding in Hotel Dieu was expanded and that WKMC is now attempting to further expand Hotel Dieu’s limited application. In support of their opposition, they filed an affidavit from Ed-miston, in which he stated that he assessed the building owned by WKMC at 2300 Hospital Drive in Bossier City and the office space leased to for-profit entities, placing those office spaces on the taxable rolls after determining that they were unrelated to WKMC’s exempt purpose. They also submitted deposition excerpts from witnesses who either had offices in the building in question or worked at such offices; they were questioned about how many patients they admitted to WKMC.

| ,tThe motion was argued in April 2007. In June 2007, the trial court issued a written opinion in which it ruled in favor of WKMC. The court noted the similarities between the instant case and WKMC I, which involved a building actually connected to the hospital by an atrium and common area. It also observed the defendants’ “well-reasoned and compelling” argument that the instant case should be distinguished from the earlier one because the instant matter involves a freestanding building and the admission of fewer patients to the hospital by the doctors/lessees. While the court stated that it could envision factual scenarios in which a nonprofit corporation could “cross over the fine” from facilitating medical service providers in furtherance of its stated mission to simply being in the commercial real estate business, it concluded that the instant case did not present such a situation. The court considered that the building is located on WKMC’s Bossier campus, that certain suites are leased to private physicians who are members of the hospital medical staff, and that these doctors all use their offices to examine and treat their patients. Based’ upon these factors, the trial court found that the rationale of WKMC I required that the property be exempt from ad valorem taxation because it had a commercial purpose reasonably related to WKMC’s exempt purpose of delivering medical care to individuals. Accordingly, the motion for summary judgment was granted.

Separate judgments in the three cases were signed in August 2007, ordering the removal from the tax rolls of the portion of the medical office | sbuilding leased to doctors in private practice and the refund of the taxes paid under protest by WKMC with interest.

The defendants appealed.

LAW

Summary judgment

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129.

A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2d Cir.1/25/06), 920 So.2d 355.

Initially, the movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant successfully meets this burden, then the burden shifts to the other party to present factual support adequate to establish that | fihe/she will be able to satisfy the evidentiary burden at trial. If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827 (La.5/22/07), 958 So.2d 634.

Exemption

Among others, the provisions of 26 U.S.C.A. § 501(c)(3) exempt:

Corporations ... organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes ..., no part of the net earnings of which inures to the benefit of any private shareholder or individual....

La. R.S. 47:287.501 provides, in pertinent part:

A. General rule. An organization described in I.R.C. Sections 401(a) or 501 shall be exempt from income taxation under this Part to the extent such organization is exempt from income taxation at federal law, unless the contrary is expressly provided.
La. Const, art. VII, § 21(B)(1)(a) states, in relevant part:
Section 21. In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
(B)(1)(a)© Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax;
None of the property listed in Paragraph (B) shall be exempt if owned, operated, leased, or used for commercial purposes unrelated to the exempt purposes of the corporation or association.

JjDISCUSSION

WKMC was formed in 1949 as a nonprofit corporation; its nonprofit mission is to provide treatment for sick and diseased human beings. It is recognized as a tax-exempt organization by the IRS and by the Louisiana Department of Revenue. At issue here is a freestanding medical office building which WKMC constructed on its real property in Bossier City and which comprises a portion of the WK Bossier Health Center.

Our courts have addressed the question of medical office buildings and their possible exemption from ad valorem taxation on several occasions. In Hotel Dieu v. Williams, supra, the issue was whether a medical office building and a parking garage adjacent to a hospital were exempt from ad valorem taxes under La. Const, art. VII, § 21(B)(1). Hotel Dieu Hospital was a nonprofit corporation organized solely “for charitable, religious, and educational purposes.” The office building and the parking garage in questions were owned by an alter ego of the hospital. Both the hospital and the alter ego were exempt from federal and state income taxes. The trial court declared that the property was subject to taxation. The court of appeal reversed, finding that the providing of medical office spaces and parking spaces in the immediate vicinity of a nonprofit hospital by the hospital, directly or indirectly, was not a “commercial purpose unrelated to the exempt purposes” of a hospital. The Louisiana Supreme Court affirmed the appellate court’s decision. Both the appellate court and the supreme court in Hotel Dieu observed that, according to the transcripts of the |sLouisiana Constitutional Convention of 1973, an operation owned by a nonprofit corporation can retain its exemption even though some of its activities could be classified as commercial.

In its Hotel Dieu opinion, the supreme court noted that all of the doctors in the medical office building were on the hospital medical staff; 90 percent of the doctors sent all of their patients to Hotel Dieu. The office building also housed a restaurant which was used by doctors, staff members, patients and their families. While the parking lot was open to the public, it was primarily used by persons who had business at the hospital or the office building. The supreme court found that the office building and the parking lot were owned, operated, leased and used for purposes related to the exempt purposes of the hospital; that none of their earnings inured to the benefit of any private shareholder; and that the income of the hospital and its alter ego corporation were exempt from federal and state income taxes. Consequently, it concluded that the property at issue met the criteria of La. Const, art. VII, § 21(B)(1) and was exempt from ad valorem taxes.

In WKMC I, this court addressed a factual situation virtually identical to the one in the instant case. The only difference was the location of the medical office building. In the prior case, the building was actually connected to the hospital by a common atrium.

The court in WKMC I noted that while all property belonging to a qualified nonprofit corporation is exempt from taxation under La. Const, art. VII, § 21(B)(1), this provision then excludes from that exemption property which is “owned, operated, leased, or used” for an unrelated commercial | opurpose. We held that the portion of the office building owned by the hospital and leased to physicians would qualify for a tax exemption if the criteria of Article VII, § 21(B)(1)(a) were satisfied. As in the instant case, the defendants in WKMC I argued that the leasing of the medical office space was not related to the hospital’s exempt purpose because the physician tenants only referred a fraction of their patients to the hospital, contending that the Hotel Dieu doctors referred a higher percentage to that hospital. We found in WKMC I that no particular rate of hospital admissions was required to show that the activity of leasing office space to doctors was related to the hospital’s exempt purpose.

In ruling in favor of the hospital in WKMC I, this court stated:

The parties do not dispute that Willis-Knighton is a non-profit corporation organized and operated for health care purposes, that none of its income inures to the benefit of any private shareholder and that it is exempt from federal and state income taxes. Regarding the hospital’s non-profit mission, the plaintiffs articles of incorporation provide that Willis-Knighton was formed for “charitable, scientific and educational purposes, with the objective of acquiring and operating a hospital or hospitals without profit, for the reception and treatment of sick and diseased human beings.”
The evidence presented demonstrates that the physicians who lease office space are members of the medical staff of Willis-Knighton and that these physician tenants use the office space for the examination and treatment of patients. Based upon this record and under the circumstances of this case, we conclude that the leasing of property to private physicians for the treatment of patients is a commercial purpose which is reasonably related to the plaintiffs exempt purpose of delivering medical care to individuals.

WKMC I, 899 So.2d at 740.

The defendants criticize this court’s decision in WKMC I as adopting an interpretation of Hotel Dieu that “[flies] in the face of the constitutional provision as illuminated by the debates of the constitution convention.” We | indisagree. As observed by the Louisiana Supreme Court in its Hotel Dieu opinion, the excerpts from the constitutional convention establish that an operation owned by a nonprofit corporation can retain its exemption even though some of its activities can be classified as commercial. Furthermore, our decision in WKMC I is in line with the supreme court’s holding in Hotel Dieu.

Location of the commercial activity is one factor to consider in determining whether a nonprofit corporation can retain its exemption even though some of its activities can be classified as commercial. Hotel Dieu, 410 So.2d at 1112. The supreme court in Hotel Dieu refers to the “adjacent” buildings as being “obviously related to the exempt purposes of the hospital.” Although the office building in the instant case is apparently not physically connected to the WK Bossier Health Center Hospital, Moss’ affidavit indicates that it is located on real property owned by WKMC in Bossier City, it comprises a portion of the WK Bossier Health Center, and it is in “close proximity” to the WK Bossier Health Center Hospital.

The defendants argue that the physician tenants admit an insufficient portion of their patients to WKMC for the leasing of their office building to be considered related to WKMC’s exempt purpose. The deposition excerpts filed in the record show differing percentages of admission of patients by some of the physician tenants. However, the percentage of admissions is Inonly another factor to be considered in making that determination. This factor alone is not determinative. WKMC I, 899 So.2d at 740.

As in WKMC I, the evidence presented shows that the doctors leasing office space in the building at issue here are members of the WKMC medical staff and that they use their offices to examine and treat patients. We find that the leasing of this office space, in a freestanding building located on property owned by WKMC as part of its Bossier campus, to these private doctors for the treatment of their patients is a commercial purpose reasonably related to WKMC’s exempt purpose of providing “treatment for sick and diseased human beings.” Thus, the disputed property meets the criteria set forth in La. Const, art. VII, § 21(B)(1)(a).

Like the trial court, we find that summary judgment in favor of WKMC is appropriate. Accordingly, we affirm the trial court ruling granting summary judgment in favor of WKMC, directing the removal of the subject property from the tax rolls and ordering the return of the tax monies paid by WKMC under protest with interest.

CONCLUSION

The ruling of the trial court granting summary judgment in favor of the plaintiff is affirmed. Costs of this appeal are assessed against the appellants to the extent permitted by law.

AFFIRMED.

      . The Louisiana Tax Commission was ultimately dismissed as a party defendant in all three cases.

      . In his affidavit, Moss testified that WKMC sold certain suites in the medical office building to third parties, i.e., physicians, their professional medical corporations or similar related entities engaged in the practice of medicine. However, these suites, which are not owned by WKMC, are not at issue in this litigation.

      . The judgment in No. 113,513 ordered refunds of $97,087.87 from Bossier Parish and $26,577.80 from Bossier City. The judgment in No. 116,163 ordered refunds of $87,258.59 from Bossier Parish and $21,211.09 from Bossier City. The judgment in No. 119,065 ordered a refund of $121,339.03 from Bossier Parish; the refund from Bossier City is given as “the sum of twenty-six thousand seven hundred thirty-nine and 51/100 dollars ($26,-739.54)’’ (emphasis ours). Each judgment provided for the dates from which interest was to run.

      . Hotel Dieu v. Williams, 403 So.2d 1255 (La.App. 4th Cir.1981).

      . In brief, the defendants cite numerous cases from other states in which medical office buildings were not exempt from ad valorem taxes. However, the Louisiana Supreme Court has already addressed the issue in its Hotel Dieu case and we are bound by that decision.


source: Caselaw Access Project

author: DREW, J. PER CURIAM.

license: Public Domain

text:
    In re the Minor Children T.E.R. and S.J.R.
    No. 43,145-JWC.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    Amending Opinion on Grant of Rehearing April 8, 2008.
    The Law Office of Alex S. Lyons by Alexander Stephan Lyons, for Applicant, Scott E. Robertson.
    The Law Office of Katherine Clark Dor-roh, L.L.C. by Katherine Clark Dorroh, for Respondent, Amanda Rochelle, Robertson Coday.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   DREW, J.

|TThe issue in this litigation is whether an attorney representing the mother may be appointed by the trial court to bring an action to terminate the father’s parental rights. The mother obtained an ex parte order appointing her own attorney as special counsel to file the petition to terminate the father’s parental rights to the two minor children.

The father responded with a peremptory exception of no right of action, which was overruled by the trial court on October 9, 2007. On the father’s writ application, this court granted and docketed the matter for a ruling. We reverse the trial court’s decision overruling the father’s exception of no right of action. We further sustain the exception and vacate the order appointing the mother’s attorney to seek termination of the father’s parental rights. The matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

During their marriage, the couple had two children, T.E.R. (DOB 8/5/00) and S.J.R. (DOB 2/7/08). Divorced in Bossier Parish on October 7, 2004, the parents were granted joint custody and the mother was named domiciliary parent with the father granted reasonable visitation. As of June 1, 2004, the father was ordered to pay $1,150.76 per month in child support.

In a consent judgment signed on May 5, 2005, the father’s child support was reduced to $850.00 per month, and he was directed to pay an arrearage of $2,513.91 with his income tax refund plus $75.00 per month. That judgment set a specific visitation schedule and ordered the father to attend six counseling sessions in six months. According to the mother, the father was ordered to attend counseling due to his violence toward the | gmother during the marriage and after their divorce. She also alleged that the father has not paid child support since August 2006 when he left the military and has not made payments on the arrears.

The mother remarried on October 28, 2006, and her present husband is seeking an intrafamily adoption of the two children, both of whom have lived with him and the mother since the mother remarried. That action is pending in Caddo Parish where the stepfather, the mother and the two children reside.

On September 21, 2007, the mother filed a petition seeking termination of the father’s parental rights. Alleging that the father failed to comply with the visitation, counseling and support judgment, the mother asserted that since the father failed to make the court-ordered child support payments for more than six months, his parental rights should be terminated under La. Ch. C. art. 1015(4). According to the mother, the father failed to provide support by money, clothes, or food for the children since August 2006.

In addition, the mother alleged that the father had no contact with his children when he served in Iraq from August 4, 2005, until January 2006. The father returned to this country in April 2006. From August 2005 until June 2006, the father failed to contact his children. In June 2006, the father was permitted phone contact with the older child and had weekly phone conversations until April 2007 when all contact ceased. Finally, the mother alleged that the father was arrested and incarcerated as a result of violence toward his present wife.

| oAlso on September 21, 2007, the trial court signed the order granting the mother’s request that her attorney be appointed as special counsel under La. Ch. C. art. 1004(F) to prosecute the termination of the father’s parental rights. On October 8, 2007, an amended petition to terminate the father’s parental rights was filed with the mother’s attorney (the special counsel appointed by the court) as petitioner.

Asserting that no private action exists for one parent to seek termination of the other parent’s parental rights, the father filed an exception of no right of action. On October 8, 2007, the trial court conducted a hearing on the father’s peremptory exception.

The mother’s attorney argued that she was properly appointed special counsel to pursue the termination in Bossier Parish where all the divorce, custody and support matters had been litigated and where the father resided. In addition, the mother’s counsel informed the court that pending in Caddo Parish was an action by the mother’s husband for an intrafamily adoption in which the father’s consent was not necessary. No evidence was submitted to the court and the trial court overruled the father’s exception. The father sought a reversal of that decision in his writ application to this court.

DISCUSSION

The function of the peremptory exception is to have a plaintiffs action declared legally nonexistent or barred by effect of law. La. C.C.P. art. 923. Peremptory exceptions include the exception of no right of action or no interest in the plaintiff to bring the suit. La. C.C.P. art. 927.

|4The resolution of an exception of no right of action is a question of law. The appellate court makes a de novo review of the ruling on the exception. Evidence is admissible on trial of an exception of no right of action in order to determine whether the plaintiff is legally invested with the right to stand in judgment. Waggoner v. America First Ins., 42,863 (La.App.2d Cir.1/16/08), 976 So.2d 110.

La. Ch. C. art. 1004, entitled Petition for Termination of Parental Rights; Authorization to File, states:

A. At any time, including in any hearing in a child in need of care proceeding, the court on its own motion may order the filing of a petition on any ground authorized by Article 1015.
B. Counsel appointed for the child pursuant to Article 607 may petition for the termination of parental rights of the parent of the child if the petition alleges a ground authorized by Article 1015(4), (5), or (6) and, although eighteen months have elapsed since the date of the child’s adjudication as a child in need of care, no petition has been filed by the district attorney or the department.
C. The district attorney may petition for the termination of parental rights of the parent of the child on any ground authorized by Article 1015.
D. The department may petition for the termination of parental rights of the parent of the child when any of the following apply:
(1) The child has been subjected to abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, and termination is authorized by Article 1015(3)(j).
(2) The parent’s parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful, and termination is authorized by Article 1015(3)(k).
(3) The child has been abandoned and termination is authorized by Article 1015(4).
(4) The child has been placed in the custody of the state and termination is authorized by Article 1015(5).
(5) The child is in foster care because the parent is incarcerated and termination is authorized by Article 1015(6).
IsE. When termination is authorized by Article 1015, other than on the grounds specified by Paragraph D of this Article, by special appointment, the district attorney may designate counsel for the department as a special assistant authorized to act in his stead in all such termination actions or in a particular case.
F. By special appointment for a particular case, the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by Article 1015(4).
G. Foster parents who intend to adopt the child may petition for the termination of parental rights of the foster child’s parents when, in accordance with Article 702(D), adoption is the permanent plan for the child, the child has been in state custody under the foster parent’s care for seventeen of the last twenty-two months, and the department has failed to petition for such termination.
H. When termination is authorized by Article 1015(1) or (2) and no petition is filed to terminate the parental rights of the surviving parent pursuant to Paragraph A, C, or E of this Article after a written request to file such action is made to the district attorney by any interested person and no petition is filed within sixty days by the district attorney, that person may file suit to terminate the parental rights of the surviving parent.

The grounds for termination of parental rights are contained in La. Ch. C. art. 1015, the pertinent parts of which state:

The grounds for termination of parental rights are:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

|fiThe comments under La. Ch. C. art. 1004 explain that the sources of this law were La. R.S. 9:403(B) and 13:1601. Under those provisions, a private individual was not authorized to file a termination of parental rights petition. La. R.S. 13:1601. Yet, an abandonment action could be initiated by affidavit by a “private individual” with leave of court under a former version of La. R.S. 9:403(B). That apparent conflict is balanced in La. Ch. C. art. 1004(B), which requires court approval in the form of a court order before an action seeking termination of parental rights is filed on any ground by anyone other than a representative of the district attorney or the department.

In a 2004 amendment, the comments to La. Ch. C. art. 1004 note that the article was a substantial revision and emphasized that the court has the primary authority and responsibility to oversee the initiation of termination of parental rights actions.

Paragraph F clarifies the fact that the court, as well as the district attorney, may authorize private counsel to initiate a termination case based on the ground of abandonment. After such authorization by the district attorney, the district attorney has no supervisory responsibility for the representation of a private party petitioner by his counsel.

Comment to La. Ch. C. Art. 1004.

In S.J.G. v. A.A.G., 2007-0625 (La.App. 1st Cir.9/19/07), 970 So.2d 1022, the court stated that the Louisiana Children’s Code mandates that only the State or an authorized State official may institute an action to terminate parental rights. “There is no private right of action to terminate another parent’s parental rights, and there are no circumstances under which one parent may file a petition to terminate the parental rights of another 17parent.” 970 So.2d at p. 1027. In S.J.G., supra, a judgment terminating one parent’s parental rights was set aside because the other parent filed for the termination and the “strict procedural requirements” in La. Ch. C. art. 1004 were not met; ie., neither the court nor the District Attorney authorized a special private counsel to bring the termination petition. S.J.G., supra.

Furthermore, these procedural requirements are not flexible. Courts have widely acknowledged the sanctity of parental rights, stating that “[pjaren-tal rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” Thus, termination of parental rights is “one of the most drastic actions the State can take against its citizens.” As a result, the Louisiana legislature “has imposed strict procedural and evi-dentiary requirements that must be met before the issuance of a judgment terminating parental rights.”

970 So.2d at 1027 (citations omitted).

The father seeks to have set aside the appointment of his wife’s counsel as special counsel to terminate his parental rights. His argument is that the provision allowing appointment of private counsel, La. Ch. C. art. 1004(F), does not permit the mother’s lawyer to be appointed because that appointment is tantamount to permitting a private cause of action by the his ex-wife to terminate his parental rights to the children of the marriage.

In Mouret v. Godeaux, 04-496 (La.App. 3d Cir.11/10/04), 886 So.2d 1217, the father’s suit to establish his paternity and to avow his child was opposed with the mother’s assertion of abandonment. The trial court terminated the father’s parental rights. That result was affirmed on appeal because the appellate court concluded that the avowal action was perempted. However, concerning the termination based upon abandonment, |sthe appellate court criticized the decision to terminate the father’s parental rights because only the State or an authorized State official may institute termination proceedings. The strict evidentiary and procedural requirements for a termination had not been met.

The supreme court in In re K.G. and T.G., 2002-2886, 2002-2892 (La.3/18/03), 841 So.2d 759, found the grounds for termination were not proved by clear and convincing evidence that the father knew the child was abused by the mother who actively and intentionally hid the abuse from him. The father directs this court’s attention to the language that a parent’s fundamental liberty interest to continuing care and custody of his/her child is entitled to great deference and vigilant protection by law. Therefore, due process requires that fundamentally fair procedures be followed when the state seeks to terminate parental rights. Justice Victory also pointed out that the child has a profound interest in a establishing secure and continuous relationship in a home with proper parental care. In termination proceedings, the primary concern of the courts and the State is the best interest of the child including termination of parental rights if justifiable grounds are proved.

The mother correctly argues that none of the cases cited by the father are factually the same as the present dispute. She cites State ex rel. D.M., 2000-0451 (La. App. 4th Cir.3/14/01), 785 So.2d 857, as supporting her view that private counsel can bring an action for termination based upon abandonment under La. Ch. C. art. 1004(F). The trial court judgment terminating the father’s parental rights was set aside. The mother sued to |aterminate based upon the father’s conviction for rape of another minor child living in the father’s household. The court observed that private counsel may be designated to bring a termination action only under La. Ch. C. art. 1004(F) based upon abandonment. Like the cases cited by the father, D.M., supra, is not factually the same. The DM. court also noted that the mother could address custody concerns without termination of the father’s parental rights. In the present dispute, counsel for the mother acknowledged in brief and in argument that her client could proceed with the intrafamily adoption without this father’s consent and without termination of his parental rights.

We recognize that the language in La. Ch. C. art. 1004(F) permitting appointment of private counsel to bring termination actions based upon abandonment does not prohibit the appointment of one of the parent’s counsel to seek termination of the other parent’s parental rights. Neither does it authorize such an appointment.

This court makes no conclusions whatsoever as to the merits of the mother’s efforts to seek termination of this father’s parental rights. This record indicates that the mother, her counsel, and the trial court acted in complete good faith relying on their interpretation of the statutes. The merits of the mother’s petition to terminate the father’s parental rights, and of the pending intrafamily adoption by her current husband, are simply not before us.

We observe that permitting a mother to seek termination of the father’s parental rights even indirectly through appointment of her counsel as special prosecutor amounts to giving the mother the right to prosecute |inthat action. The best interests of a parent seeking termination may not be the same as the best interests of the children. To permit the appointment of the lawyer representing one parent who wants to terminate the parental rights of the other parent creates an unnecessary and potentially serious conflict of interest.

Because termination of parental rights is recognized as one of the most drastic actions a state can take against a citizen, we rely on previous interpretations of the laws on termination stating there is no private right of action to terminate another parent’s parental rights, and there are no circumstances under which one parent may file a petition to terminate the parental rights of another parent. Absent a clear indication from the Louisiana Legislature that one parent may seek to revoke the parental rights of the other parent by appointment of the revoking parent’s personal attorney, we decline to do so.

DECREE

Based on our de novo review, we sustain the father’s exception of no right of action and vacate the order appointing the mother’s attorney to seek termination of the father’s parental rights. The judgment is reversed and matter is remanded for further proceedings.

REVERSED AND REMANDED.

ON REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS and DREW, JJ.

PER CURIAM.

At the request of the father of the minor children, we grant rehearing to amend our original opinion in one respect only. We hereby assess all appellate costs of court against the mother. There are no other changes to our original opinion.


author: PAINTER, Judge.

text:
    FUEL PLUS, LLC v. RAPIDES PARISH POLICE JURY and Donna Andries in her Capacity as Tax Administrator for the Rapides Parish Sales and Use Tax Department.
    No. 07-1090.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2008.
    Julie R. Wilkerson, Pineville, LA, for Plaintiff-Appellant, Fuel Plus, LLC.
    Thomas O. Wells, Alexandria, LA, for Defendant-Appellee, Rapides Parish Police Jury.
    Scott M. Brame, Alexandria, LA, for Defendant-Appellee, Donna Andries as Administrator of Rapides Sales & Use Tax Department.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| ^Plaintiff, Fuel Plus, LLC, appeals the ruling of the trial court finding effective the local option election prohibiting sales of alcohol in Ward 10 of Rapides Parish, Louisiana.

FACTS

In the 1970s, Rapides Parish was reapportioned into nine electoral districts, having previously elected police jury members from eleven wards. The wards continued to exist as political entities for some purposes. In 1981, an election was held in Rapides Parish to determine which areas of the parish would allow alcohol sales and which would prohibit alcohol sales. As a result of the election, alcohol sales were prohibited within the municipal limits of the City of Pineville and in Wards 10 and 11, as well as in other wards not pertinent to this case. It is undisputed that Election District A largely coincides with Ward 10 and extends outside Ward 10 to include a part of the City of Pineville and a part of Ward 11, all of which voted to prohibit the sale of alcoholic beverages.

In March 2007, Fuel Plus applied for and was denied a Class B Liquor Permit for its location in Ward 10 and Election District A of Rapides Parish. Fuel Plus then filed a petition for mandamus seeking to compel the issuance of a liquor license. The trial court rendered judgment in favor of Defendants, the Rapides Parish Police Jury and Donna Andries in Her Capacity as Tax Administrator for the Rapides Parish Sales and Use Tax Department, and gave written reasons therefore. Fuel Plus appeals.

DISCUSSION

|aOn appeal, Fuel Plus asserts that under La.R.S. 26:583 and Sabine Parish Police Jury v. Commissioner of Alcohol and Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244, the local option election was ineffective in that it was conducted on the basis of wards rather than election districts, regardless of the fact that after the local option election the entire area encompassed by the election district voted to prohibit alcoholic beverage sales.

Louisiana Revised Statutes 26:583 provides, in pertinent part, that:

A.When a portion of a ward, election district, or municipality is annexed or made a part of another ward, election district, municipality, or city-parish government, the portion annexed or made a part of shall take on the legal sales characteristics, as provided in this Chapter, of the ward, election district, municipality, or city-parish government to which it is annexed or made a part of.
B. The provisions of this Section shall be applicable to any election previously called under this Title or any other local option law and to any territory covered by such election which has subsequently been merged with another ward, election district, incorporated municipality, or portion thereof or whose boundary has been changed, it being the intention of this Chapter that the sale of beverages covered by this Title be permitted or prohibited only in an entire ward, election district, or incorporated municipality and not in any portion thereof.
C. Notwithstanding the provisions of Subsections A and B of this Section, any package house in existence and operating as such on August 15, 1995, in an area that is subsequently annexed into a ward, election district, municipality, or city-parish government that prohibits the sale of alcoholic beverages shall be allowed to continue operation and shall not be subject to the provisions of Subsections A and B of this Section.

The Louisiana Supreme Court in Sabine Parish Police Jury v. Commissioner of Alcohol & Tobacco Control, 04-1833, pp. 19-20 (La.4/12/05), 898 So.2d 1244,1256 (footnote omitted) responded to the argument that a local option election could be held on the basis of wards even where the parochial officials were elected from election districts as follows:

|4As a result of the 1997 legislation, La. R.S. 26:581(2) now defines an “election district” as the district from which a parochial officer is elected. La. R.S. 26:582 now authorizes the governing authority of the designated political subdivisions to hold local option elections. We do not believe that the legislature intended for both wards and election districts to be operative for local option purposes when a parish contains both. In an area where the governing authority of a parish is no longer elected from wards but by election district, then the operative entity for local option purposes is the election district, even where the wards have not been formally abolished and may still exist for some purposes such as taxing. We believe that the term “ward” was retained in the statute for those parishes which may still elect their parochial officers by ward. Consequently, while we do not find La. R.S. 26:583 to be completely ambiguous, we do not find it to be a model of clarity. Had the legislature intended for both wards and election districts within the same parish to remain operative for local option purposes, it would have stated so explicitly.

Plaintiff cites this as support for its argument that since no local option election was held for Election District A resulting in a prohibition of the sale of alcohol and since police jurors in Rapides Parish are elected from election districts, Election District A is “wet,” and, as a result, the area comprising Ward 10 is “wet.”

The case before us differs from Sabine, in certain respects. In Sabine the local option election took place before the redistricting of the parish into election districts, that redistricting resulted in a “dry” ward becoming part of an otherwise “wet” election district. In the case before us, the local option election took place after the redistricting, included the entire parish, and after the election, all of Election District A had voted to remain dry. Although the parish-wide election allowed voters to determine whether their ward, rather than their election district, would allow sale of alcoholic beverages, the result, as it affects the parties to this case, is that Election District A chose to prohibit the sale of alcoholic beverages. Therefore, the argument that the election should have been held on the basis of election districts rather than wards is based, in this case, on a distinction without a difference. In either case, the | .¡voters of Election District A have chosen to prohibit the sale of alcoholic beverages. La.R.S. 26:583 makes it clear that its purpose is that the sale of alcoholic beverages be allowed or prohibited “only in an entire ward, election district, or incorporated municipality and not in any portion thereof.” Therefore, as it pertains to Election District A, the purpose of the statute has been achieved.

“[T]he object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 12 (La.6/29/01), 808 So.2d 294, 302. This has been a well-recognized principle of Louisiana law for almost two centuries, given the fact that it was set forth in Buhol v. Boudousquie, 8 Mart.’ (N.S.) 425(1830).

City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548 (La.10/1/07), — So.2d -, 2007 WL 2823223. The result advocated by Plaintiff herein would result in an overriding of the will of the voters of Election District A in an attempt to follow the letter of the law while ignoring its spirit.

Accordingly, we find no error in the trial court’s determination that the local option election was valid and resulted in the prohibition of the sale of alcoholic beverages in Election District A and Ward 10.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff-Appellant.

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. James FRIDAY, Appellant.
    No. 43,157-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 2008.
    Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.

      Walter E. May, Jr., District Attorney, for Appellee.
    Tammy G. Jump, Assistant District Attorney.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

| defendant, James Friday, was convicted of second degree battery, a violation of La. R.S. 14:34.1. He now appeals his conviction only. For the reasons set forth herein, the conviction of Defendant is affirmed.

FACTS

James and Kimberly April Friday (“April”) were married on October 31, 2003. The couple lived in Castor, Louisiana, and had one child together while April had a daughter from a previous relationship. On June 2, 2005, the couple began arguing over various issues, including money. During the argument, Defendant asked April to leave and April asked Defendant to leave. Eventually, April decided she would leave the home and go to her mother’s house which was across the street. As April was preparing to leave, Defendant demanded she return some money April had, some of which Defendant had given to her for a truck payment, some spending money and some of which was child support money April had received from her daughter’s father. April advised Defendant that she would give him the money that was intended for the truck note, but not the rest of the money and she then took some money from her wallet and was holding it in her hand when Defendant grabbed her arm and began twisting it. Defendant used both hands to twist April’s arm despite her protestations that he was hurting her and that her arm was breaking. As Defendant continued to twist April’s arm, they eventually heard a popping sound and Defendant let go of her arm and walked out of the room. Defendant then called April’s mother on the telephone and told her that the two had been Rarguing and that April’s arm was broken. April’s mother came over to the house and took April to the Natchitoches Parish Hospital where an x-ray revealed that April’s arm was broken. According to Dr. James Albright, an expert in the field of orthopedic surgery, April sustained a spiral fracture of the ulna, a very unusual fracture which requires a great amount of twisting force to produce a break and causes tremendous pain.

While April was en route to the hospital, Defendant called a friend of his, Patrick Thrasher, who is also a deputy with the Bienville Parish Sheriffs Office. Defendant told Deputy Thrasher that he and April were arguing about money and he had “messed up.” Defendant asked what he should do and was told not to hide and that he would probably be arrested. After the conversation, Deputy Thrasher, who was on duty, waited for a call from the Sheriffs Office regarding the incident. When he was contacted, Deputy Thrasher went to the hospital where he spoke with April.

Deputy Thrasher asked April, “You’ve been horse-playing?” to which April responded, “No.” Initially, Deputy Thrasher appeared to believe the situation was not serious; however, once he learned that April’s arm was broken, he took written statements from April and her mother.

As previously stated, Defendant was arrested, charged and convicted of second degree battery. He was sentenced to serve three years in jail, two of which were suspended, with Defendant being placed on two years’ |sprobation, subject to numerous special conditions of probation. Defendant now appeals his conviction.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in denying defendant’s motion for mistrial after extensive inculpatory statements attributed to the defendant were used at trial without any prior notice to defendant.

Defendant argues that a mistrial was warranted after the State was allowed to introduce the testimony of April wherein she made statements regarding the crime that were attributed to Defendant. He further asserts that the State failed to give notice of its intent to use the statements, further warranting a mistrial.

The State counters that the statements about which Defendant complains were not inculpatory; and, therefore, a mistrial was not warranted. We agree.

On motion of the defendant, a mistrial shall be ordered when prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial or when authorized by La. C. Cr. P. arts. 770, 771 or 775. State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139. La. C. Cr. P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
|4(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

La. C. Cr. P. art. 771 sets out permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made under grounds that do not require an automatic mistrial under Article 770. Article 775 also sets forth additional permissive grounds for mistrial, which include, that

[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Articles 770 or 771.

The determination of whether actual prejudice has occurred lies within the sound discretion of the trial court, and this decision will not be overturned on appeal absent an abuse of that discretion. State v. Price, 40,408 (La.App. 2d Cir.12/16/05), 917 So.2d 1201, writ denied, 06-0156 (La.6/16/06), 929 So.2d 1284.

La. C. Cr. P. art. 768 provides:
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

All statements which may be damaging in nature at trial are not inculpatory. As contemplated by La. C. Cr. P. art. 768, an “inculpatory statement” refers to an out-of-court admission of incriminating facts made by the defendant after the crime has been committed. An incriminating |fistatement is one which admits a fact tending to establish guilt, or from which guilt may be inferred. State v. Seymour, 449 So.2d 1189 (La.App. 2d Cir.1984), writ denied, 452 So.2d 173 (La.1984).

Notice under La. C. Cr. P. art. 768 is not required when the statement sought to be introduced forms a part of the res gestae. State v. Barnes, 414 So.2d 711 (La.1982).

In brief, Defendant specifically points to two portions of trial testimony by April wherein she describes what happened on the night she was injured. During the testimony, April recalls what Defendant said to her during the incident. The defense notes the following statements:

I asked him to leave and he said if he left he was taking everything I told him no, he wasn’t. Then he told me to leave and I said fine, let me get the car seat. And I then thought I’d just go across the road to my mother’s, and I went to the back of the house to get a pair of shorts and he kept hollering where’s my money.
“He just -he come (sic) towards me and he said that was his money. That he’d been taking care of Kaitlyn and that her daddy hadn’t and I hadn’t and he come (sic) close- he put his forehead right there by mine and just kept pushing me back cussing me.”

Defendant complains that these statements should have been disclosed by the State prior to their use at trial as the statements are inculpatory. Immediately after the statements were made by April during her testimony, Defendant made a contemporaneous objection and the jury was removed from the courtroom. At that time, the defense argued that the State had not provided prior notice of its intent to use the inculpatory statements. Defense counsel stated, “These are inculpato-ry statements that I’ve requested and I haven’t- I haven’t heard any of these statements before |fi(sic).” In response, the State indicated that the statements made by April were not inculpatory statements, but were all a part of the res gestae of the offense, and notice was not required prior to the introduction of the particular statements. In further explanation of his position, the defense attorney made the following argument:

Well, Your Honor, the statements that (sic) concerning the money that she’s now saying that he’s going to take her child support which is actually evidence of another crime. I’ve never been furnished that statement that he says I’ve supported this child. He hasn’t. So I’m entitled to that money. That’s all— that’s totally news to me and if he’s taking somebody else’s child support money that’s a theft. That’s evidence of another crime. That’s inadmissible and it’s evidence that I haven’t been furnished. It’s highly inculpatory and I have not been notified of anything about him taking her child support money. This is the first notice I’ve ever had that there was child support money involved. The first I heard of it was in Ms. Jump’s opening statement and that’s — that’s—I move for a mistrial.”

Defendant’s argument is without merit. The statements that the defense alleges are inculpatory are not such within the meaning of La. C. Cr. P. art. 768. The statements April attributed to Defendant were presented as the description of the events that led to the battery she suffered. The statements in and of themselves do not provide any incriminating facts or admission of guilt, nor could guilt be inferred from the statements. The statements were merely illustrative to demonstrate the tenor of the argument between Defendant and April. There was no admission of guilt, nor could guilt of the charged offense, second degree battery, be inferred from the statements made by the witness. Notice under La. C. Cr. P. art. 768 was not required in this instance.

|7Further, we note that Defendant does not specify in brief, or during his argument to the trial court, under which statutory provision the mistrial should have been granted. The circumstances of this case do not warrant a mandatory mistrial under the provisions of La. C. Cr. P. art. 770. Thus, our review focuses on whether the trial court abused its discretion in failing to declare a mistrial under La. C. Cr. P. arts. 771 and 775. As previously noted, the statements made by April and attributed to Defendant were not inculpatory, nor did admission of the statements by the trial court cause any defect in the proceedings. We find no abuse of discretion on the part of the trial court.

This assignment of error is without merit.

Assignment of Error Number Two (verbatim): The district court erred in denying defendant’s motion for new trial after discovery of a prior written inconsistent statement of the victim known to the state was not furnished to defendant for use at trial.

Defendant argues that the trial court erred in denying the motion for new trial based on the fact that the State failed to furnish a prior written statement made by April that was allegedly inconsistent with her trial testimony. Defendant urges that the prior statement could have been used to attack the credibility of her trial testimony, but it was sealed in the record and not disclosed to him.

The State contends that the prior statement made by April was not exculpatory and, thus, not discoverable; and, in the alternative, the State contends that there was no prejudice to Defendant.

The denial of a motion for new trial is not subject to appellate review except for error of law. La. C. Cr. P. art. 858; State v. Home, 28,327 (La.App. 2d Cir.8/21/96), 679 So.2d 953, writ denied, 96-2345 (La.2/21/97), 688 So.2d 521. The decision on a motion for new trial rests within the sound discretion of the trial court. State v. Horne, supra. The appellate court will not disturb this ruling on appeal absent a clear showing of abuse. Id. Generally, a motion for new trial will be denied unless injustice has been done, no matter on what allegations it is grounded. State v. Dowden, 41,939 (La.App. 2d Cir.3/28/07), 954 So.2d 300, writ denied, 07-0909 (La.11/9/07), 967 So.2d 501; State v. Horne, supra.

La. C. Cr. P. art. 851 provides:

The motion for new trial is based on the supposition that injustice has been done the defendant and unless such is shown to have been the case the motion shall be denied, no matter upon what allegation it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the | cidefendant may not be entitled to a new trial as a matter of strict legal right.

In the case sub judice, during the trial and in a prior bond reduction hearing, Deputy Thrasher testified that, when he was at the hospital interviewing April, she told him that Defendant had not intended to break her arm. At trial, April testified that she believed Defendant did intend to hurt her arm and that he refused to let go of the arm even after she told him he was hurting her and that she believed her arm was breaking. April denied making any statement to the deputy regarding Defendant’s lack of intent. Likewise, April’s mother denied hearing her daughter make any such statements while they were at the hospital emergency room.

From this trial testimony, the defense, without having reviewed April’s prior statement, filed the motion for new trial alleging that the prior statement was exculpatory and should have been available for the purposes of impeachment. After the hearing on the motion for new trial began, the trial court recessed that hearing to allow the defense an opportunity to review April’s statement and present its argument. After hearing the arguments of the defense and the State, the trial court ruled that there were no major inconsistencies in April’s statement and denied the motion for new trial.

We conclude that the trial court did not err in denying Defendant’s motion. In reviewing the trial court’s actions in context with La. C. Cr. P. art. 851, we find that Defendant failed to show that there was an injustice done in this case or that any of the grounds cited by Defendant necessitated the granting of a new trial. In both the prior statement and her trial 1 mtestimony, April states that she and Defendant argued; then, when she attempted to leave, the source of contention was money that Defendant wanted from her. When April refused to give Defendant the money she was holding, Defendant twisted her arm until it broke. Both statements bear out these facts.

It appears that the argument of the defense focused primarily on the differences between April’s testimony and the testimony of Deputy Thrasher. While April contends that she never reported that Defendant’s acts were unintentional, Deputy Thrasher consistently testified to the contrary. Defendant was aware of the inconsistency between the testimony of these two witnesses and did question April as well as Deputy Thrasher regarding these points. April’s mother was also questioned regarding this issue. It was within the province of the jury to make the credibility determinations when deciding which version of the events should be believed. The written statement of April does not include any reference as to whether Defendant’s acts were intentional; thus, it would not have been helpful on this point of contention.

Defendant also alludes to the fact that April’s trial testimony appears to be more embellished than the written statement. This is of no consequence. During the trial,. April was asked specifics about the incident and provided an opportunity to respond to those specific questions. While there may be more detail to some points of the story, there are no major differences between the two accounts of the events. It is also noted that April’s written statement was taken while she was in the emergency room |ureceiving or having just received treatment for a significant injury. Deputy Thrasher commented in his trial testimony that April was not very talkative, which he attributed to her injury or possibly to her medicated state. It is conceivable that April would not provide extensive details in the statement written on the night of the incident.

In summary, we find nothing in the record or Defendant’s argument that would suggest that the trial court abused its discretion in denying the motion for new trial. Absent such abuse of discretion, this court will not disturb the ruling of the trial court.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, James Friday, is affirmed. It is further ordered that the minutes be amended to reflect that the sentence imposed was without hard labor and the Clerk’s Certificate indicating that the sentence was imposed at hard labor is ordered rescinded. In the event the Clerk’s Certificate has been communicated to the Department of Public Safety and Corrections, it is hereby ordered that a notification of correction be issued to the Department. See footnote 2, supra.

AFFIRMED.

      . The record indicates that, on at least one prior occasion, an argument between the two had become violent and resulted in the arrest of Defendant.

      . Defendant was prosecuted for a relative ("with or without hard labor”) felony, meaning that he had exposure for either a hard labor (Dept. Of Public Safety and Corrections) sentence, or a sentence to serve local jail time. Both the minutes and a Clerk's Certificate in the record incorrectly reflect that he received a hard labor sentence. The transcript is controlling, however, and it clearly reflects that the sentence did not involve hard labor.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Michael JACKSON, Appellant.
    No. 43,139-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 2008.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Jason Brown, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

11 Michael Jackson appeals his conviction, adjudication as a second felony offender, and concurrent 99-year sentences on two counts of armed robbery. For the reasons expressed, we affirm the conviction but reverse the second felony offender adjudication, vacate the sentences and remand for further proceedings.

Factual Background

On the evening of October 21, 2002, Steven Thompson was leaving his place of work on Marshall Street in downtown Shreveport. As he was getting in his 2001 Kia Spectra, he heard a tap on the window; looking up, he saw it was a black man holding a pistol. The gunman ordered, “Get out and lay on the ground or you will be shot.” As Thompson started down, a second black man, wearing a hooded sweatshirt, grabbed him from behind, roughly pushed him to the ground and searched his pockets. The second man took his car keys and wallet with about $40 cash. The assailants got into the Kia and started it; the gunman pointed the pistol at Thompson and warned him to stay back. The assailants then fled in the car.

Thompson walked to the city bus terminal and told a policeman that he had been carjacked. The assailants were not apprehended. However, using information from other arrests, Officer James Cromer assembled a photo lineup including Michael Jackson’s picture. Thompson was unable to make a positive identification, but he testified that both men were probably under the age of 21 and the gunman had braided hair.

The Kia was found in Bossier City a few days later. Officer Amy Muller, an expert in fingerprint analysis, dusted it for prints. She found that |?two latent prints lifted from the outside of the passenger door matched file prints of Michael Jackson; other latents elsewhere on the car, however, did not match.

On November 3, about two weeks after the Kia was stolen, Melvin Nelson was driving his 1996 Mazda Protegé near the courthouse in downtown Shreveport between 10 and 11 pm. While he was waiting at a light, two black men wearing black hoodie sweaters and black pants walked up to his car. One was holding a gun, and the other told Nelson to get out of the car. The gunman entered the passenger door and held the weapon on Nelson; the other assailant ordered him to empty his pockets. Nelson had no cash, just an ID and an ATM card, but the gunman took these. Nelson then exited the car; the second assailant got into the driver’s seat and drove east on Texas Street toward Bossier City. Nelson walked to a nearby pay phone to call the police.

Two nights later, Sgt. Mark Mahoney of the Bossier Sheriffs Office was investigating a complaint of an attempted carjacking at the Princeton Post Office. The victim described the suspect vehicle as a tan Mazda Protegé carrying four black males, which Sgt. Maloney saw speeding on I-220. He engaged them in a high-speed chase into Caddo Parish, where the Mazda turned around on North Market Street, got back on the loop, and drove back into Bossier. The car exited at Benton Road and pulled into some grass near Northside Drive, where all suspects bolted and ran. The fleeing men discarded two weapons, a Bryco Arms 9 mm semi-automatic pistol and a Tech 9, along the road. All four men were soon apprehended; |aone of them was Jackson. The other suspects gave statements that Jackson had been driving the Protegé before the chase.

Detective Jeff Brown prepared photo lineups including Jackson and one of the occupants of the Protegé, Eddie Hamilton. Nelson positively identified Jackson and Hamilton as the men who carjacked him on November 3. The weapons did not yield any usable fingerprints, and the record does not state if any prints were recovered from the car.

The state charged Jackson by bill of information with three counts of armed robbery, including the October 21 taking of Thompson’s Kia, the November 3 taking of Nelson’s Protegé, and another incident involving a third victim, Christopher Criss. Jackson proceeded to jury trial in June 2007, at which the state dismissed the charge involving Criss.

At trial, the victims and law enforcement officers established the facts summarized above. The only other witness to testify was Jackson’s accomplice, Eddie Hamilton, who had been allowed to plead guilty to first degree robbery in exchange for a nine-year sentence and the promise to testify truthfully against Jackson. On the stand, Hamilton admitted that Jackson was his “homeboy,” but then denied that they ever robbed anybody, and insisted that all his previous statements to police were lies. He admitted being arrested in Bossier, riding in a tan car, and that he ran away because somebody had committed a crime, but denied any knowledge of what had happened. The prosecutor impeached him with the transcript of his Boykin hearing, but Hamilton still insisted all prior statements were coerced and untrue. At Jackson’s sentencing, the district court stated that Hamilton had |4been subsequently charged with perjury.

The jury unanimously found Jackson guilty as charged on both counts of armed robbery. The state then billed him as a second felony habitual offender, alleging that his first felony was a November 2004 conviction in Bossier Parish for attempted armed robbery with a firearm, and that after the first conviction, Jackson committed and was convicted of the instant armed robberies that occurred between October 21 and November 3, 2002. After the district court denied his motion to quash the second felony offender bill, Jackson pled guilty as charged, reserving his rights to appeal the conviction and sentence.

In July 2007, the district court sentenced Jackson to two concurrent terms of 99 years at hard labor without benefit of probation, parole or suspension of sentence. Jackson now appeals. Counsel has designated two assignments of error; by pro se brief, Jackson assigns four errors.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Jackson urges the evidence was insufficient to prove he committed the armed robberies. The only evidence connecting him to the armed robbery of Stephen Thompson was the presence of his fingerprints on the exterior of Thompson’s Kia. This proves only that he touched the car at some point in time, not that he robbed Thompson; there was no evidence to prove when or where the Kia was located; and Thompson could not identify him from the photo lineup. Jackson concedes that the other victim, Melvin Nelson, positively identified him, but in all other respects, Nelson’s testimony was vague, and it was ^positively refuted by Hamilton’s trial testimony. By his first pro se assignment, Jackson complains that police never arrested the driver of the Protegé, Jonathan Campbell.

The state responds that Jackson’s fingerprints on the Kia, his apprehension in and flight from the Protegé, and Hamilton’s post-arrest statement to police were more than sufficient to support both convictions.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

A defendant’s fingerprint on an object associated with a crime is direct evidence that he touched the object at some time and circumstantial evidence that he touched it at the time of the offense. State v. Allen, 95-1515 (La.App. 1 Cir. 6/28/96), 677 So.2d 709, writ denied, 97-0025 (La.10/3/97) 701 So.2d 192. When circumstantial evidence is used to prove the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Ultimately, all evidence — both direct and circumstantial— must be sufficient under Jackson v. Virginia to prove guilt beyond a reasonable doubt. State v. Robinson, 2002-1869 (La.4/14/04), 874 So.2d 66.

Armed robbery is defined as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

Being based on the fingerprint on Thompson’s Kia, the connection between that car and Jackson was admittedly circumstantial. However, Thompson testified that he did not know Jackson and he could think of no reason why Jackson’s fingerprints would be on the car. Officer Cromer testified that the Kia had been recovered in Bossier Parish, the same jurisdiction where Jackson, Hamilton and others later ditched the Protegé. Finally, Thompson generally described both assailants as black males probably younger than 21, and the gunman as having braided hair; at the time of the offense, Jackson was 18 years old and the jury could easily infer, from the photo lineup, whether Jackson’s hair may have been braided in November 2002. On this record, the jury could reasonably conclude that Jackson’s fingerprints were on the Kia because he was one of the people who took it from Thompson at gunpoint, and that no reasonable hypothesis |7of innocence could be inferred from the evidence.

As to the other offense, Nelson positively identified Jackson as one of the people who stole his Protegé on November 3; this evidence, if accepted by the jury, was sufficient to support the conviction. Admittedly, the testimony of Eddie Hamilton conflicted with his post-arrest statements and his admissions on the record of his Boykin hearing, implicating Jackson as his accomplice. However, the jury was entitled to disregard his in-court recantation as a futile effort to help out his “homeboy.” We will not disturb the jury’s reasonable credibility calls.

Finally, there is no substance to Jackson’s pro se complaint that the state failed to charge Jonathan Campbell with a crime. There is no record evidence to this effect, and at any rate, the district attorney has the unlimited discretion to prosecute “whom, when, and how” he chooses. La. C. Cr. P. art. 61. Jackson has not shown that the state’s action or inaction against Campbell has any bearing on his own guilt.

These assignments of error lacks merit.

Trial Errors Not Preserved

By his third pro se assignment of error, Jackson urges the state knowingly used false, perjured testimony and that this evidence contributed to the guilty verdict. The 14th amendment prohibits the state from using perjured testimony; to prove a violation, the defendant must demonstrate (1) that a witness for the state testified falsely, (2) that such testimony was material, and (3) that the prosecution knew that the testimony was false. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Jackson asserts |sthat, prior to calling him as a witness, the prosecutor met with Hamilton and gained knowledge of his intent to commit perjury.

By his fourth pro se assignment, Jackson urges the district attorney committed prosecutorial misconduct by vouching for the credibility of a state’s witness. In closing argument, the prosecutor said that Thompson and Nelson were very credible witnesses, and added, “I am glad that we agree.” Jackson contends that this “guarantee to the jury that the witnesses would not lie” denied him a fair trial.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of its occurrence. La. C. Cr. P. art. 841 A. The contemporaneous objection rule applies to claims that the prosecutor used perjured testimony. State v. Lowery, 33,905 (La.App. 2 Cir. 2/28/01), 781 So.2d 713, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978; State v. Bishop, 571 So.2d 749 (La.App. 2 Cir. 1990). It also applies to claims that the prosecutor made an improper closing argument. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). The record discloses no contemporaneous objection to either of these alleged acts of prosecutorial misconduct, so these arguments are not properly preserved for review.

Even so, there is absolutely no substance to either claim. The prosecutor was obviously surprised by Hamilton’s trial testimony, which was diametrically opposite to his admissions at his Boykin hearing; in fact, the prosecutor impeached him with the transcript of the prior proceeding and subsequently charged him with perjury. Any claim that the prosecutor 19knowingly offered perjured testimony is utterly without record support. Further, the prosecutor’s remark in closing argument merely recognized defense counsel’s admission that Thompson was a “very credible witness.” This was an entirely proper comment on the witness’s credibility based on evidence in the record. State v. Sayles, 395 So.2d 695 (La.1981); State v. Montgomery, 42,835 (La.App. 2 Cir. 1/9/08), 974 So.2d 110. These assignments are devoid of merit.

Second Felony Offender Adjudication

By his second pro se assignment, Jackson urges the court erred in adjudicating him a second felony offender. Although the argument is far from articulate, he contends that “under the Habitual Offender Status [sic], for one to be considered [a] second offender, [the] second [offense] must have been committed after the first conviction,” State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973). This particular quotation came from the second sentence of La. R.S. 15:529.1 B, which was repealed by 1982 La. Acts No. 688, § 1, and can no longer be considered controlling authority.

Nevertheless, the first sentence of R.S. 15:529.1 A(l) still states, “Any person who, after having been convicted in this state of a felony * * *, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows * * * ” (emphasis added). This portion of the statute, and the jurisprudence interpreting it, require that the prior conviction must precede the principal offense in order to be used as a predicate to enhance a defendant’s status as a multiple offender. State v. Roshell, 40,374 (La.App. 2 Cir. 12/14/05), 916 So.2d 1268, writ denied, in 2006-0771 (La.10/6/06), 938 So.2d 69; State v. Ball, 32,498 (La.App. 2 Cir. 12/15/99), 748 So.2d 1249, writ denied, 2000-0506 (La.10/6/00), 770 So.2d 364; State v. Butler, 2004-0880 (La.App. 4 Cir. 1/12/05), 894 So.2d 415, writ denied, 2005-0371 (La.5/13/05), 902 So.2d 1017; State v. Gilbert, 99-315 (La. App. 5 Cir. 4/25/00), 760 So.2d 536.

The bill of information alleges that the predicate felony conviction, for attempted armed robbery with a firearm, arose from a guilty plea on November 17, 2004, while the instant offenses occurred over two years earlier, on October 21 and November 3, 2002. Because the enhanced offense occurred before the predicate conviction, we are constrained to reverse the second felony offender adjudication, vacate the sentences, and remand to the district court for further proceedings. State v. Roshell, supra; State v. Ball, supra.

Conclusion

We have reviewed the remainder of the record and find nothing else we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the conviction is affirmed, the second felony adjudication reversed, the sentences vacated and the case remanded for further proceedings.

CONVICTION AFFIRMED; SECOND FELONY OFFENDER ADJUDICATION REVERSED; SENTENCES VACATED, AND CASE REMANDED.

      . The bill also recites that Jackson received a sentence of four years at hard labor for this conviction; we note parenthetically that this appears illegally lenient, as it is shorter than the mandatory five years at hard labor without benefits prescribed by La. R.S. 14:64.3 B.


text:
    STATE of Louisiana, Appellee, v. Marcus Donell BATTS, Appellant.
    No. 43,142-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 2, 2008.

      Louisiana Appellate Project by James E. Beal, for Appellant.
    Paul J. Carmouche, District Attorney, Geya D. Williams Prudhomme, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   PEATROSS, J.

1,Defendant, Marcus Donell Batts, was convicted of attempted armed robbery and aggravated second degree battery and was sentenced to serve 26 years of imprisonment at hard labor for attempted armed robbery and 9 years of imprisonment at hard labor for aggravated second degree battery. He appeals his sentences as excessive. For the reasons stated below, we affirm.

FACTS

In November 2004, Eddie Palmer worked at the Quick Stop convenience store on Greenwood Road in Shreveport, owned by the victim, Nasim Falah. Palmer’s friend, Defendant, had moved to Shreveport and Palmer brought Defendant to the store to ask Falah for a job. Falah hired Defendant to start work the next day, but Defendant did not appear for work.

A few days later, on November 17, 2004, Defendant returned to the store. Falah told Defendant that he did not act like he wanted to work and withdrew the job offer. This angered Defendant, who told Palmer that he was going to come back and rob Falah. Palmer told Defendant “not to do that,” and said that he would help Defendant find another job the next day.

At 7:20 that evening, Falah closed and locked his store, said goodbye to Palmer and walked to his car. As he attempted to unlock his car, Falah was struck on the back of the head with a brick two or three times and was knocked to the ground. Falah recognized his attacker as Defendant. Falah had the day’s proceeds in the pocket of his jeans and fought back as Defendant unsuccessfully attempted to take the money. Defendant hit Falah | Jn the face and Falah tried to escape into the street, but Defendant continued to strike him “again and again” with the brick. A man who had accompanied Defendant pointed a gun at Palmer to prevent him from helping Falah during the attack. Defendant and the unidentified man then fled when nearby security guards shone a light in their direction. Palmer came to Falah’s aid and took Falah to a nearby hospital. Falah, who sustained serious head injuries during the attack, was treated at the hospital and released. He still suffers from pain and dizziness. At trial, both Falah and Palmer identified Defendant as the person who attacked and attempted to rob Falah.

Defendant was charged by bill of information with one count of attempted armed robbery, a violation of La. R.S. 14:64 and 14:27, and one count of aggravated second degree battery, a violation of La. R.S. 14:34.7. After a bench trial, Defendant was found guilty as charged on both counts. Defendant was adjudicated a second felony offender and was sentenced to serve 26 years of imprisonment at hard labor for attempted armed robbery and 9 years of imprisonment at hard labor for aggravated second degree battery. Both sentences were imposed without benefit of probation or suspension of sentence and it was further ordered that the sentences were to run concurrently. Motions to deviate from the multiple offender minimum sentences and to reconsider the sentences were heard and denied.

DISCUSSION

Defendant assigns as error that these sentences are excessive for this offender in this case. The test imposed by the reviewing court in ^determining the excessiveness of a sentence is two-pronged. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not 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); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. 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.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351; 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.

RSecond, 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. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; 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. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial court discussed several factors prior to sentencing, including Defendant’s criminal history. The trial court noted that Defendant is a second felony offender, having previously been convicted of simple burglary of an inhabited dwelling. The trial court also noted that Defendant was 35 years old at the time of sentencing. Additionally, it took into consideration the testimony of Defendant and his mother at the hearing on the sentencing motions.

As stated, Defendant was sentenced to serve 26 years of imprisonment at hard labor for attempted armed robbery and 9 years of imprisonment at hard labor for aggravated second degree battery. Both sentences were imposed without benefit of probation or suspension of sentence and it was ordered that the sentences run concurrently. Considering the totality of the record, including the apparent retaliatory 15nature of the offenses and the brutality of the attack, these sentences are not constitutionally excessive. The sentences were tailored to fit Defendant and these offenses. We do not find that the sentences imposed are grossly disproportionate to the severity of the offenses, nor are they shocking to the sense of justice. This assignment is, therefore, without merit.

This court’s error patent review reveals that the trial court failed to impose the sentence for attempted armed robbery without benefit of probation, parole or suspension of sentence. See State ex rel. Sullivan v. Maggio, 432 So.2d 854 (La.1983); State v. Everett, 05-214 (La.App. 3d Cir.11/2/05), 916 So.2d 1210; State v. Moore, 96-1835 (La.App. 1st Cir.6/20/97), 696 So.2d 657. La. R.S. 15:301.1 is self-activating, however, and makes the denial of benefits self-operative. See State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Grant, 42,470 (La.App.2d Cir.9/19/07), 965 So.2d 977; State v. Neely, 35,993 (La.App.2d Cir.5/8/02), 818 So.2d 829.

CONCLUSION

For the foregoing reasons, the sentences of Defendant, Marcus Donell Batts, are affirmed.

AFFIRMED.


author: DREW, J.

text:
    Larry G. OREA, Plaintiff-Appellant, v. Raymond BRYANT aka Raymond Joyner, et al., Defendant-Appellee.
    No. 43,229-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 2, 2008.
    Rehearing Denied April 23, 2008.

      Larry G. Orea, In Proper Person.
    Carola Mamoulides Milkovich, In Proper Person.
    John Charles Milkovich, In Proper Person.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

h Larry G. Orea appeals the granting of an exception which dismissed all claims against his former attorneys. We affirm.

CHRONOLOGY

Mr. Orea employed attorney John Mil-kovich to pursue two separate tort claims in the First Judicial District, Caddo Parish, relative to different accidents.

The first suit, Orea v. Bryant, was settled against State Farm in February of 1993. The ease was settled against all other entities by January of 1996. At issue, much later, would be two checks issued in 1993 by State Farm and made payable to Orea and Mr. Milkovich.

The second suit, Orea v. Scallan, was tried, appealed, and terminated as to all defendants by May of 2000.

In June of 2000, Orea sent a letter to Mr. Milkovich discharging him as his lawyer. After this letter, Mr. Milkovich performed no additional legal work on behalf of Orea.

In July of 2003, Orea wrote a letter to Mr. Milkovich accusing him of fraud.

In May of 2007, over a decade after settlement against all defendants in Orea v. Bryant, Orea filed suit against Mr. Mil-kovich and his wife, who is also an attorney, utilizing the same docket number and caption as the Bryant suit. Orea claimed that he did not receive all funds to which he was entitled in the Bryant settlements.

lain July of 2007, Mr. Milkovich responded with exceptions predicated upon per-emption and prescription, as well as other grounds.

On July 30, 2007, Orea signed a certified mail receipt of the notice of the hearing on these exceptions.

The hearing was held on August 6, 2007. Orea was not present. The trial court dismissed Orea’s lawsuit on account of per-emption. The judgment of the same date dismissed all proceedings against Mr. and Mrs. Milkovich, at the cost of Mr. Orea.

THE CONTROLLING STATUTE

La. R.S. 9:5605. Actions for legal malpractice

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and Uthree-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and per-emptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

DISCUSSION

The pleadings filed by Orea are untimely on their face.

Legal Malpractice

If the claim is predicated upon legal malpractice, Subsection A is controlling and Orea’s claims are clearly perempted by statute. Even the most liberal interpretation of the time line reflects that this suit was filed years too late.

Fraud

La. R.S. 9:5605(E) provides that the peremptive period of Section A of this statute does not apply in case of fraud, as defined in La. C.C. art.1953. Even so, Orea’s present suit is untimely, and he is still out of court.

I/The Third Circuit has held that it is only the three-year peremptive period in (A), and not the one-year peremptive period, that is inapplicable to claims of fraud. Dauterive Contractors, Inc. v. Landry and Watkins, 2001-1112 (La.App. 3d Cir.3/13/02), 811 So.2d 1242. In other words, there is not a hard and fast three-year limit on bringing the action for fraud, but there is a requirement that the action for fraud be brought within one year of discovery of the allegedly fraudulent acts.

Quite simply, Orea did not bring his claim within one year of the date when he knew or should have known of the alleged fraud. Paragraph 6 of Orea’s own petition refers to the July 11, 2003, letter in which he expressed a belief that “fraud was involved” relative to his representation by Mr. Milkovich.

CONCLUSION

The trial court was correct in sustaining the exception of peremption, as there is nothing in this record by which to come to any other conclusion.

We have no doubt as to the sincerity of Orea’s belief, mistaken or not, that his case was mishandled, but he filed his suit far too late.

DECREE

At the cost of plaintiff, the ruling of the trial court to grant the exception of per-emption is AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

WILLIAMS, J., would not consider as untimely.

      . Orea v. Scallan, 32,622 (La.App.2d Cir. 1/26/00), 750 So.2d 483.

      . Larry G. Orea v. Raymond Bryant, et al., No. 370,004, First Judicial District Court, Caddo Parish, Louisiana.

      .Other exceptions filed were vagueness, insufficiency of pleading, no cause of action, and nonconformity of petition with statutory ■ requirements.

      . La. C.C. Art. 1953. Fraud may result from misrepresentation or from silence
      Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.