author: PETERS, J.

text:
    Robert Kevin McCARTNEY, et al. v. George McCORMICK, et al.
    No. 07-0997.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Robert Kevin McCartney, Homer, LA, Pro Se for Plaintiffs/Appellants, Robert Kevin McCartney, Aubrey McCartney, Elaine McCartney.
    No Counsel Enrolled for Defendants.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   PETERS, J.

hThe plaintiffs in this matter, Robert Kevin McCartney, Aubrey McCartney, and Elaine McCartney, appeal the trial court’s dismissal of their suit against a number of defendants. For the following reasons, we affirm in part, reverse in part, render in part, and remand to the trial court for further proceedings.

DISCUSSION OF THE RECORD

This litigation arises from Robert Kevin McCartney’s September 28, 1995 conviction of first degree murder in the death of Dale DeSelle, a violation of La.R.S. 14:30. On July 14, 2006, the plaintiffs filed the instant suit seeking to have that conviction declared a nullity and seeking to recover monetary damages for alleged constitutional rights violations. The original petition named as defendants Detective Clyde Terral of the Rapides Parish Sheriffs Department; Officer Michael Villard of the Rapides Parish Sheriffs Department; Rapides Parish Sheriff William Earl Hilton; Ninth Judicial District Assistant District Attorneys Clifford Strider, III and James Buck; Ninth Judicial District Attorney Charles Wagner; and Dr. George McCormick.

| j)The plaintiffs’ basic complaint in their original petition was that Dr. McCormick testified falsely concerning his involvement in the autopsy of Mr. DeSelle’s body and in the preparation of the coroner’s report. Specifically, the plaintiffs asserted that during Robert Kevin McCartney’s trial, Dr. McCormick and James Buck “committed Fraud, Ill-Practice, Misrepresentation, Non-feasance, and Malfeasance in Office, when they deceived the jury into a belief that McCormick had performed the autopsy, examined the body, and prepared the autopsy report and death certificate, when he had not done any of the above.”

On July 27, 2006, the trial court signed an ex parte order that the suit “be re-allotted to the proper criminal division of the Ninth Judicial District Court” and that “any civil claims raised by the petitioners are reserved until after a determination of the criminal matters.” On October 30, 2006, the plaintiffs filed a motion seeking to have the July 26, 2007 order stricken and to be granted a judgment on the pleadings. For reasons not made clear from the record before us, the trial court did not respond to this filing until January 11, 2007. On that date, the trial court hand-wrote across the face of the motion “Denied. No hearing will be set unless or until all defendants have been served with the petition. No service has been requested or made.” On February 2, 2007, Robert Kevin McCartney filed a written motion for service of both the petition and the initial request for subpoenas. On that same day, the trial court ordered that service of both the petition and the subpoenas be effected.

|sOn February 22, 2007, Robert Kevin McCartney filed a motion seeking to have all evidence in cases involving Dr. McCormick preserved. By a hand-written notation across the face of the pleading, the trial court denied the motion, noting that it did so “for failure to meet C.Cr.P. 718.”

In his next pleading, filed March 7, 2007, Robert Kevin McCartney sought an order addressed to the Office of District Attorney of the Ninth Judicial District and the Rapides Parish Sheriffs Office for the production of all evidence in their custody which related to the autopsy of Dale Paul DeSelle; an order addressed to the Rap-ides Parish Clerk of Court’s Office for the production of a transcript of the trial testimony of Dr. McCormick in his trial; and an order addressed to Dr. McCormick’s office for the production of all documents or statements which might relate to misconduct on the part of Dr. McCormick in other cases, as well as all notes and docu-merits relating to the autopsy of Dale Paul DeSelle. All of the plaintiffs then filed an additional motion on April 11, 2007, seeking an order compelling the defendants to respond to their petition and summonses and to have their case set for trial.

The trial court rejected both the March 7 and April 11 motions on June 20, 2007, by writing “denied” across the front of the orders provided. On that same day, the trial court entered an order dismissing the plaintiffs’ suit. The order reads in pertinent part as follows:

Considering the foregoing Petition for Nullification and Civil Rights Complaint with Jury Demand, Motion for Production of Documents Relevant and Material to Guilt or Punishment in Pro-se, and Motion to Compel Answer with Request to Set Matter for Trial, herein;
IT IS ORDERED, ADJUDGED, AND DECREED that the Defendant [sic, Plaintiffs] fails to state a Cause of Action and fails to state a claim upon which relief can be granted as to nullification of the judgment. This court believes that Defendant’s nullification request is factually an attempt to seek a Post Conviction Relief hearing, which should be brought before the Criminal Court.
IT IS ORDERED, ADJUDGED, AND DECREED that the Defendant [sic, Plaintiffs] fails to state a Cause of Action against all Defendants with the exception of the Estate of Dr. McCormick.
IT IS ORDERED, ADJUDGED, AND DECREED that the Defendants [sic, Plaintiffs’] Petition as to the Estate of Dr. McCormick is dismissed with out [sic] prejudice as this court does not have jurisdiction of the Estate of Dr. McCormick. Dr. McCormick resided and died in Caddo Parish. The proper jurisdiction for an action against the Estate of Dr. McCormick is the 1st Judicial District Court for Caddo Parish, Louisiana.

This judgment constitutes the basis of the plaintiffs’ appeal.

In their appeal, the plaintiffs assert the following assignments of error:

1) Whether the district court has excepted to plaintiffs right and cause of action on the basis of Robert McCartney’s felony Conviction for second degree murder of September 30, 1995?
2) Whether the district court refused ALL PLAINTIFFS a review by erroneously believing the Petition for Nullification is actually Robert McCartney attempting to seek post conviction relief when all parties could not seek relief by post conviction?
3) Whether the known use of false testimony and evidence, violation of Due Process, a Public Trust, Oath of Office, Malfeasance and non-feasance of office, obstruction of justice, filing false public record, injuring public records, clear violation of procedural and Constitutional law, etc., state a Cause of Action?
4) Whether a cause of action is determined where one resided and died or where the crime and violation took place — filing of false public record, injuring public record, committed perjury, obstructed justice, etc.?
5) Whether third parties have grounds to seek redress by Complaint and Petition for Nullification where public trust is violated, oath of office is violated, fraud and ill practice is used, etc., depriving them their loved one in violation of both procedural and Constitutional law?
6) Whether a suit can be dismissed by “DEFENDANT’S FAILURE” to show Cause of Action rather than plaintiffs failure?
|fi7) Whether defendants are entitled to immunity where they did construct and execute a scheme to deprive plaintiffs’ their Constitutional and Procedural Rights with Fraud, ill-practices, perjury, false records, etc.; thereby, depriving Due Process and Equal Protection of the law?
8) Whether there is a defense of immunity or prescription?

After the appeal was lodged in this court, Robert Kevin McCartney filed a motion to supplement the record before us with all of the material the plaintiffs had sought, but had not acquired, during the trial proceedings.

OPINION

Although eight in number, the issues raised by the assignments of error overlap to the extent that many can be considered together. Additionally, we reject the motion to supplement the appellate record as the evidence requested was never presented to the trial court. The court of appeal may not consider evidence not introduced at trial, and can only “render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164 (emphasis added). Additionally, the primary issues before us relate to the grant of an exception of no cause of action, for which no evidence may be introduced. La.Code Civ.P. art. 931.

Exception of No Cause of Action

With regard to consideration of an exception of no cause of action, the supreme court has stated the following:

The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court ... should conduct a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears |fibeyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.

Indus. Co. v. Durbin, 02-665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213 (citations omitted).

The trial court may supply a peremptory exception of no cause of action on its own motion. La.Code Civ.P. art. 927(B). However, this case is before us in a most unusual posture. The trial court dismissed the plaintiffs’ suit on a peremptory exception of no cause of action, but it did so on its own motion, before issue was joined by any defendant, and before any defendant filed any pleadings. In fact, despite the existence of the February 7, 2007 order that service be perfected on the defendants, the record contains no evidence that any defendant has ever been served. Still, we find nothing in La.Code Civ.P. art. 927(B) that prohibits the trial court from noticing the exception on its own motion prior to issue being joined or pleadings being filed.

Finding that the trial court could notice the exception of no cause of action at this early stage of the proceedings, we also find no error in the trial court’s dismissal of the plaintiffs’ claims for monetary damages against Clyde Terral; Michael Villard; William Earl Hilton; Clifford Strider, III; and Charles Wagner. All of the plaintiffs’ claims are predicated on the invalidity of the testimony of Dr. McCormick and, |7assuming for purposes of argument that Dr. McCormick’s report was fabricated and that his trial testimony was false, the petition sets forth no facts or even allegations that would suggest any of these five defendants knowingly participated in the presentation of that fabricated and/or false evidence, either during the criminal investigation, the presentation to a grand jury, or the presentation at trial. Therefore, we affirm that portion of the judgment dismissing these defendants.

We do find, however, that the trial court erred in dismissing the suit against James Buck. As reflected in the June 20, 2007 judgment, the trial court concluded that the plaintiffs did state a cause of action against Dr. McCormick, but that for other reasons, it could not hear that cause of action. As previously stated, the plaintiffs asserted in their pleadings that James Buck participated in effecting Dr. McCormick’s testimony. Thus, the pleadings do state a cause of action against James Buck.

We also find that the trial court erred in dismissing the other defendants from the litigation with prejudice and without allowing the plaintiffs the opportunity to amend their petition to state a cause of action. Louisiana Code of Civil Procedure Article 934 provides in pertinent part that “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” (Emphasis added.) While the plaintiffs may not be able to amend their petition to state causes of action against the dismissed defendants, La.Code Civ.P. art. 934 mandates that they be allowed the opportunity to try.

The dismissal of the plaintiffs’ request to have Robert Kevin McCartney’s conviction declared a nullity presents a different problem. In its order of July 27, 2006, the trial court recognized that this request for relief belonged in the criminal | ^division of the Ninth Judicial District Court, not in its civil division. The trial court maintained this order by rejecting the plaintiffs’ October 30, 2006 motion to strike the allotment of this portion of their demands to the criminal division. Thus, the trial court’s attempt to dismiss the nullification request cannot stand as to Robert Kevin McCartney because that issue was not properly before it. However, the remaining plaintiffs have no standing in criminal court and, therefore, remain in civil court on this issue. That being the case, we find no error in the trial court’s dismissal of their nullification claims by granting the exception of no cause of action. Additionally, they are not entitled to an opportunity to amend because the grounds for the exception cannot be removed by amendment of the petition. La. Code Civ.P. art. 934.

Exception of Lack of Personal Jurisdiction

In its order of June 20, 2007, the trial court dismissed the plaintiffs’ claims related to Dr. McCormick s actions without prejudice. In doing so, the trial court stated in its order that “this court does not have jurisdiction of the Estate of Dr. McCormick. Dr. McCormick resided and died in Caddo Parish. The proper jurisdiction for an action against the Estate of Dr. McCormick is the 1st Judicial District Court for Caddo Parish, Louisiana.”

The record does not establish the facts asserted by the trial court in its order. While the caption of the plaintiffs’ initial pleading refers to Dr. McCormick as “George McCormick, the Estate of George McCormick, Post Humously [sic],” nothing in the record establishes that Dr. McCormick is deceased or that he resided and died in Caddo Parish. Additionally, the trial court seems to be conflating jurisdiction with venue. Certainly, the trial court has the legal power and authority to hear the instant action, to determine the legal relationships of the parties, and to | ¡¡grant the appropriate relief. La.Code Civ.P. art. 1. While La.Code Civ.P. art. 81 provides that venue for a personal action against a succession is “the court in which the succession proceeding is pending,” there exists no evidence that any succession proceeding is pending in relation to Dr. McCormick. Venue is not one of those exceptions that may be provided by the trial court. La.Code Civ.P. art. 927(B). Additionally, venue is waived if not timely pleaded. La.Code Civ.P. art. 925(C).

Based strictly on the record before us and the trial court’s order, we find that the trial court erred in dismissing the plaintiffs’ claims against Dr. McCormick.

DISPOSITION

We affirm the trial court’s dismissal of the plaintiffs’ claims against Clyde Terral, Michael Villard, William Earl Hilton, Clifford Strider, III, and Charles Wagner, but reverse that part of the judgment dismissing the claims with prejudice. We grant the plaintiffs fifteen days from the rendition of this judgment in which to amend their petition to state a cause of action against these defendants. Failure to do so shall cause their claims to be dismissed pursuant to La.Code Civ.P. art. 934. We reverse the trial court’s dismissal of the plaintiffs’ claims against James Buck. We affirm the trial court’s dismissal of the request by all plaintiffs except Robert Kevin McCartney to have his conviction declared a nullity, but reverse that portion of the trial court’s dismissal as it relates to Robert Kevin McCartney’s request, finding that the claim is currently lodged in the criminal division of the Ninth Judicial District Court and not the civil division. We reverse the trial court’s grant of the exception of lack of jurisdiction as to the plaintiffs’ claims against Dr. George McCormick. We assess one-half of the costs to Robert Kevin McCartney, Aubrey McCartney, and Elaine McCartney. We remand this matter to the trial court for further proceedings Imand leave assessment of the remainder of the appeal costs to the trial court, depending on the ultimate outcome of the litigation.

AFFIRMED IN PART, REVERSED IN PART, RENDERED IN PART, AND REMANDED.

      . Robert Kevin McCartney, Aubrey McCartney, and Elaine McCartney all signed the original petition in proper person. Additionally, in all subsequent pleadings wherein all three plaintiffs are mentioned in the pleading preamble, all three signed the pleading. However, there exist a number of pleadings in the record wherein only Robert Kevin McCartney's name appears in the pleading preamble. In those pleadings, only Robert Kevin McCartney has signed that particular pleading. Additionally, the relationship between the three named plaintiffs is not made clear from their petition. In fact, the petition makes reference to “Robert Kevin McCartney's minor children” as other plaintiffs. Thus, when the pleadings make reference to all three named plaintiffs, we will refer to them and all other plaintiffs, named or unnamed, as "the plaintiffs.” Pleadings filed by Robert Kevin McCartney will be differentiated from the other pleadings.

      . On September 28, 1995, following a bench trial, Robert Kevin McCartney was convicted of first degree murder. He was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. His conviction was affirmed by this court in State v. McCartney, 96-58 (La.App. 3 Cir. 10/9/96), 684 So.2d 416, writ denied, 97-508 (La.9/5/97), 700 So.2d 503, cert. denied, 522 U.S. 1002, 118 S.Ct. 573, 139 L.Ed.2d 412 (1997). Accordingly, the judgment of his conviction and sentences is final. La.Code Crim.P. art. 922. Robert Kevin McCartney is presently incarcerated at the David Wade Correction Center.

      . In their brief on appeal, the plaintiffs assert that Robert Kevin McCartney's motion for post-conviction relief is still pending in the criminal division of the Ninth Judicial District Court.

      . The plaintiffs had filed six subpoenas duces tecum with their initial petition, seeking to obtain various documents from the Caddo Parish District Attorney, the Caddo Parish Clerk of Court, the Caddo Parish Coroner, the Rapides Parish Sheriff, the Ninth Judicial District Clerk of Court, and the Caddo Parish Deputy Coroner.

      . The general rule is that issue is joined either by the filing of an answer or by the taking of a preliminary default. Daigle v. Daigle, 619 So.2d 645 (La.App. 3 Cir.1993); Sinclair Prop., L.L.C. v. Leyton, 05-1703 (La.App. 1 Cir. 6/9/06), 938 So.2d 199. "[Wjhen a defendant files only an exception and does not file an answer, issue is not joined.” Short v. Giffin, 94-1757, p. 3 (La.App. 4 Cir. 11/17/94), 648 So.2d 937, 938, writ denied, 95-684 (La.6/16/95), 656 So.2d 1008.

      . Pleadings consist of petitions, exceptions, written motions, and answers. La.Code Civ.P. art. 852.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Melton FRANK d/b/a Frank Building and Remodeling v. Bill TRAN.
    No. 2007-983.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Steve Gunnell, Cassidy & Gunnell, Jennings, LA, for Defendant/Appellee: Jeff Davis Bank & Trust Company.
    Timothy O’Dowd, Lake Charles, LA, for Plaintifi/Appellee: Melton Frank.
    Blaine A. Doucet, Doucet, Lorio & Moreno, Lake Charles, LA, for Defendant/Ap-pellee: Rick Rion.
    Kendrick J. Guidry, Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee: Charles Duhon.
    Melanie Smith Daley, Lake Charles, LA, for Defendant/Appellee: George Jones.
    Robert W. Higgason, The Woodlands, TX, for Defendant/Appellant: Bill Tran.
    Sera H. Russell, III, Lafayette, LA, for Defendant/Appellant Bill Tran.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

[t The plaintiff home builder alleged that the defendant failed to make the two final payments on the contract entered into for construction of the defendant’s home. The defendant filed a reconventional demand relating to what he contends were deviations from the construction contract and/or plans for the home. The trial court granted the plaintiffs motion for summary judgment, awarding the sum due on the contract. The trial court also dismissed the defendant’s reconventional demand, finding the defendant’s notice of the alleged deficiencies inadequate under the New Home Warranty Act. The defendant appeals. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

Melton Frank d/b/a Frank Building and Remodeling and Bill Tran entered into a home construction contract on May 27, 2008, wherein Mr. Frank agreed to construct Mr. Tran’s home in Jennings, Louisiana. The contract established the bid price as $136,000, payable in five draws after completion of designated portions of the contract. The parties completed an addendum the following month.

While work on the home proceeded and the first three payments on the contract were made, the record reveals that Mr. Tran began making complaints regarding the construction. Ultimately, he failed to make the final two payments. In July 2004, Mr. Frank filed the petition instituting this matter, alleging that only minor detail work remained uncompleted on the house and that Mr. Tran had denied him access to the home to complete the work. He sought the $34,000 remaining under the contract.

Mr. Tran denied the petition’s allegation, asserting that Mr. Frank failed to “perform the work as specified in the contract and addendum” and that Mr. Frank’s refusal to “perform the work called for in the contract and its addendum was the | ¿reason why he[] was not allowed back into the home.” Mr. Tran asserted that Mr. Frank failed to satisfactorily complete construction as designated by the contract’s payment schedule and, therefore, additional payments were not due under the contract. In a reconventional demand, Mr. Tran and his wife alleged that Mr. Frank failed to comply with the building plans in a number of respects, including a number of areas identified in the demand. Mr. Tran asserted that Mr. Frank refused to repair or rectify the problems and, therefore, he was contractually liable for damages associated with the “incomplete and incorrect construction” of the home. Mr. Tran and his wife sought damages and attorney’s fees pursuant to the New Home Warranty Act. In response, Mr. Frank alleged that the New Home Warranty Act provided Mr. Tran’s exclusive remedy and that he was precluded from recovery thereunder as he did not provide notice by registered or certified mail as required by La.R.S. 9:3145.

Mr. Frank filed a motion for summary judgment on his claim and that of Mr. Tran. He supplemented the motion with the construction contract, the addendum of June 2003 and a deposition excerpt in which a bank official describes negotiations between the parties regarding an inspection of the complained of areas. Mr. Frank also submitted his own affidavit wherein he explained in part that he had “caused substantial performance of the obligations he owed[.]” He further stated that “[Pjrior to February 1, 2007, Bill Tran had not caused to be delivered to Melton Frank written notice, by registered or certified mail advising him of all defects and giving him a reasonable opportunity to comply with the New Home Warranty Act.” Mr. Tran opposed the motion for summary judgment with various exhibits, including the depositions of Mr. Frank and the bank officer assigned to the project who explained that a list of Mr. Tran’s complaints were delivered via facsimile to Mr. Frank.

LThe trial court granted Mr. Frank’s motion for summary judgment, finding that, due to substantial completion of the project, he was entitled to the remaining payments on the contract. The trial court awarded the sums due on the construction contract together with judicial interest. The trial court also dismissed Mr. Tran’s reconventional demand, finding that the notice requirements of the New Home Warranty Act were not met.

Mr. Tran appeals, assigning the following as error:

1. The Trial Court improperly allowed the general contractor to contest the homeowner’s alleged non-compliance with La.R.S. 9:3145 through a Motion for Summary Judgment. The sole proper procedural mechanism for contesting non[-]compliance with La.R.S. 9:3145 is through an Exception of Prematurity.
2. The Trial Court failed to recognize that the homeowner complied with L[a]R.S. 9:3145 because the general contractor had actual knowledge of and undertook repair of the defects prior to the filing of Bill Tran’s reconventional demand.
3. The Trial Court improperly allowed the contractor to shield himself from liability for numerous defects for which the contractor had actual knowledge of and had actual time to remedy, merely because the defects were not itemized in written notice prior to the homeowner’s reconventional demand.
4. The Trial Court improperly granted the plaintiff general contractor’s Motion for Summary Judgment on his contractual obligation claim against the homeowner, while applying the certified mail notice requirement of the New Home Warranty Act to preclude the homeowner’s defenses against that contractual claim.
5. The Trial Court improperly granted the general contractor’s Motion for Summary Judgment against the homeowner’s reconventional demand where the contractor waived written notice by certified mail, by bringing a contractual obligation claim against the homeowner after having actual knowledge of the numerous problems with the incomplete home.
6. The Trial Court erred by granting the general contractor’s Motion for Summary Judgment because [the] contractor had the opportunity to “fix first” but did not do so.

| ¿Discussion

Reconventional Demand

Mr. Tran contests the trial court’s determination that his claims were precluded by failure to give appropriate notice under the New Home Warranty Act. He chiefly asserts that the trial court erred in strictly applying the New Home Warranty Act’s notice requirements when Mr. Frank had actual notice of his various complaints.

Louisiana Code of Civil Procedure Article 966(B) provides that the trial court shall render 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.” Article 966(C)(2) further provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

An appellate court reviews summary judgments de novo, using the same criteria that governed the trial court’s consideration of whether genuine issues of material fact exist and whether the mover is entitled to judgment as a matter of law. Supreme Services and Spec. Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634.

The legislature set forth the purpose of the New Home Warranty Act, La.R.S. 9:3141, et seq., as follows:

|RThe legislature finds a need to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners’ insurance as additional protection for the public against defects in the construction of new homes. This need can be met by providing a warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty periods provided herein. The warranty, which is mandatory in most cases, shall apply whether or not building code regulations are in effect in the location of the structure, thereby promoting uniformity of defined building standards. Additionally, all provisions of this Chapter shall apply to any defect although there is no building standard directly regulating the defective workmanship or materials.

La.R.S. 9:3141. Although the New Home Warranty Act delineates several warranties on behalf of the builder to the owner, those identified “establish minimum required warranties and shall not be waived by the owner or reduced by the builder....” La.R.S. 9:3144(C). The New Home Warranty Act further provides that it establishes “the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply.” La.R.S. 9:3150.

Central to the arguments surrounding the summary judgment dismissing Mr. Tran’s reconventional demand is the Act’s notice provision which provides that:

Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter. The builder shall give the owner written notice of the requirements of this Chapter at the time of the closing.

La.R.S. 9:3145.

Mr. Frank supported his motion for summary judgment with his own affidavit wherein he stated that: “Prior to February 1, 2007, Bill Tran had not caused to be delivered to Melton Frank written notice, by registered or certified mail advising him |fiof all defects and giving him a reasonable opportunity to comply with the New Home Warranty Act.”

In opposition, Mr. Tran presented the deposition of Gerald Theunissen, Vice President of Jeff Davis Bank and Trust Company, who was involved in the construction loan. He explained that, as the lender, he or another bank employee made periodic inspections of the home during construction and that Mr. Tran voiced complaints during that time. At Mr. Tran’s request, he discussed the complaints with Mr. Frank. Mr. Theunissen also explained that Mr. Tran compiled a list of his concerns and asked him to convey to Mr. Frank that he would like the items corrected. Mr. Theunissen faxed a cover sheet along with Mr. Tran’s list and other documents to Mr. Frank. In discussing these documents, attached to the deposition as exhibits, Mr. Theunissen commented that they included his confirmation report indicating that six pages were sent to Mr. Frank on February 27, 2004. The faxed materials, attached to the deposition, are contained in the record. Mr. Theunissen |7recalled, too, that the parties discussed engaging a third party to inspect the home and identify areas requiring correction by Mr. Frank. Mr. Tran also supplied the deposition of Mr. Frank, who testified that Mr. Tran began having complaints during the installation of the drywall. Mr. Frank testified extensively regarding Mr. Tran’s complaints that the roof was inadequately braced. The affidavit of Mr. Tran’s attorney indicates that, by April 2004, he had forwarded a similar notification to Mr. Frank’s attorney as well.

| sWithout question, La.R.S. 9:3145 requires that an owner provide written notice defects by “registered or certified mail.” These are the clear and explicit words of the statute. However, Article 9 of the Louisiana Civil Code instructs that:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

(Emphasis added.)

In this instance, a determination that Mr. Tran is precluded from pursuit of his New Home Warranty Act claims for failure to provide this type of technical notice in the face of actual verbal and written notice would lead to an absurd consequence. Mr. Theunissen’s and Mr. Frank’s depositions detail a history of complaints during construction. Mr. Tran also presented the fax transmissions which included specific, delineated complaints. Given the date of the initial fax, it cannot be determined at this point that Mr. Frank was not provided with an opportunity to remedy the alleged deficiencies. While Mr. Frank contends that he was ultimately prevented from re-entering the home, this did not occur until April 2004.

The fourth circuit has recently reached a similar conclusion in Barrack v. J.F. Day & Co., Inc., 07-97 (La.App. 4 Cir. 8/29/07), 966 So.2d 1064, a case in which the homeowners began working with their builder to remedy faulty windows in their newly constructed home. However, the homeowners failed to provide formal notice of the defects by registered or certified mail. The trial court granted summary judgment in favor of the contractor, finding that the failure to provide notice by registered or certified mail was fatal to the homeowners’ claim under the New Home Warranty Act. The fourth circuit reversed the determination as the homeowners provided verbal notice of the defects within the time limits required by the statute and laprovided the builder with the opportunity to remedy the defects. The fourth circuit further remarked that the homeowners provided written notice to the builder “albeit after the time limitations of the statute had run, but before filing suit.” Id. at 1066. Given these actions, the homeowners were found to be “in compliance with the meaning and intent of the New Home Warranty Act, and should not be precluded from pursuing an action” for any claim thereunder for any actions not perempted. Id. at 1068.

The fourth circuit found the factual background in Barrack distinguishable from the matter before the Louisiana Supreme Court in Carter v. Duhe, 05-0390 (La.1/19/06), 921 So.2d 963, a case urged by Mr. Frank. In Carter, the supreme court reviewed a case in which the builder failed to “give the owner written notice of the requirements of this Chapter at the time of the closing” as specified in La.R.S. 9:3145. The homeowners asserted that because of this failure, the New Home Warranty Act was inapplicable. Finding the argument without merit, the supreme court observed that, whereas the Act does not permit a homeowner to recover for a defect unless the builder is notified and offered an opportunity to remedy the deficiency, the Act does not provide a similar penalty for a builder who fails to provide the notice required of it under the statute. The supreme court declined to insert such a penalty into the statute. In light of this focus, it is apparent that the supreme court did not consider the question before this court, i.e., whether strict application of the mailing requirements of La.R.S. 9:3145 renders an absurd result in the face of actual notice of defects.

For these reasons, we conclude that the trial court erred in dismissing Mr. Tran’s reconventional demand for failure to satisfy La.R.S. 9:3145. Here, we observe |1flthat Mr. Frank’s motion for summary judgment on the reconventional demand focused on the New Home Warranty Act. The trial court dismissed the entirety of the reconventional demand due to failure to strictly comply with the notice requirements of the Act. For these reasons, the above discussion has focused on whether summary judgment was appropriate in light of the New Home Warranty Act. The motion for summary judgment does not squarely present the question of whether the reconventional demand, which suggests the existence of both warranty and other contractual claims, must be resolved by reference to the New Home Warranty Act alone. Accordingly, we do not determine here, applicability of the New Home Warranty Act’s exclusive remedy language to the reconventional demand, as it is not the immediate issue before us. See La. R.S. 9:3150. See also Thorn v. Caskey, 32,310 (La.App. 2 Cir. 9/22/99), 745 So.2d 653. Nor do we make a determination as to any warranty commencement date. See La.R.S. 9:3143 and La.R.S. 9:3144.

Contractual Obligation

In addition to dismissing Mr. Tran’s reconventional demand, the trial court also entered summary judgment on Mr. Frank’s contractual claim, awarding him the sums remaining due under the contract. Mr. Tran appeals this determination as well.

It is uncontested that Mr. Tran did not provide the final two payments due under the contract. While Mr. Frank has alleged that he has rendered substantial performance under the contract and that payment is required, genuine issues of material fact remain in this regard. Mr. Tran began occupying the home in April 2004. However, the question of whether this occupancy and Mr. Frank’s allegations, alone, reveal that the contract was satisfied remains an open one. In particular, Mr. lnTran supplied the affidavit and report of an architect who identified specific deficiencies and concluded as follows:

The standard of construction was found to be substandard in quality and not in compliance with the local residential building codes. The basic wall and roof framing is not properly braced or supported by the load bearing walls below creating the potential for a complete structural failure.
The items listed above are either in conflict with common building construction practices, governing codes or deviations in the building plans. The contractor omitted windows, lights and light switches as indicated on the plans.
No destructive investigation was conducted; therefore, the conditions in the walls and below grade could not be confirmed to be built according to the plans or local building code requirements.
Extensive repairs or modifications are recommended to correct the observed list of inconsistencies.
The final product is not complete or built to common industry standards. The list of observations should be corrected to bring the residence to a level of acceptable standards. Some of the items are not achievable at this state of construction without extensive demolition and reconstruction.

These observations evidence the existence of genuine issues of material fact as to substantial completion and, therefore, entitlement to recovery. Accordingly, we reverse the summary judgment awarding Mr. Frank sums due under the contract.

DECREE

For the foregoing reasons, we reverse the summary judgment entered in favor of Melton Frank d/b/a Frank Building and Remodeling and dismissing the reconven-tional demand of Bill Tran. All costs of this proceeding are assessed to the appellee, Melton Frank d/b/a Frank Building and

Remodeling. This matter is remanded for further proceedings.

REVERSED AND REMANDED.

      .The document following the cover sheet and discussed by Mr. Theunissen indicates:
      February 27, 2004
      1. Install chimney cover
      2. Apply floor sealer (12 gallons) Clean floor first.
      3. Reimburse for stove vent. $51.00 + $150.00 = $201.00
      4. Install bathroom towel, toilet paper and toothbrush holders or pay for Bill to buy and install himself.
      5. Install glass door on fireplace.
      6. Finish dirt work (6 truckloads)
      7. Run cable TV and telephone lines inside bricks. (But not together)
      8. Install vent along garage.
      If the above is done, Bill Van Tran will pay the 15% draw and sign agreement that the job is complete and no further payment will be owed to anyone. If not, lawsuit will be filed. Another document included in the faxed notification provides:
      Below is a list of items completed in my house, that do not match up with the blueprint or contract, Mr. Melton Frank.
      1. He did not rent the bulldozer to do [] foundation.
      2. All the window[s] should have steel under bricklayer, he did not put all of them, he put some windows, and in the blueprint 2 front side windows should separate. But it is not correct.
      3. The shower is smaller than the one drown [sic] on the blueprint. Because the drain was put in the wrong place.
      4. The attic stairs were put in the wrong place.
      5. The vet [sic] running form [sic] the kitchen island to outside wall was put at 90 degree angle to the outside wall instead of a 45 degree angle
      6. Regular sheet rock was used around the showers there is no moisture protection
      7. The cement in the garage is the same level as the house. The blueprints shows [sic] a 4" drop in levels
      8. Some 2x6 rafters that are 46 inches and 45 inches, are not correct
      9. ½" x 8 A bolts at 4" oe [sic] are not install wood base shoe [sic],
      10. Brick laying is not correct
      11. 2x4 S.Y.P. studs are some 16" some 17", 18", they are not correct.
      12. 2x6 garage wood joists have been eaten by termites
      13. Sheetrock did not straight and not level
      14. Some door and windows are not level and leaking air
      15. Molding are not straight
      16. Some corner valley not go all the way
      17. Kitchen tray are not correct and reset lights put wrong place
      18. Laundry room does not have the window
      19. Air duct dryer should goes [sic] out the brick wall, but it goes up to the attic
      20. The front door framer and the 2 back doors are not nailed to the studs.
      21. Kitchen cabinet builder did not correct. Because in the back cabinets did not have woods
      22. The electrical man drill a lot of hole in 2x4 studs and didn't use than [sic]
      23. The [sic] didn’t spray termites after the plumbing finish, and he pour the foundation
      24. He build ... my house, he use cheap woods (Type “3”)
      25.He did my floor that very bad job
      26. He did not connect 2x6 joists in the attic
      27. He did not finish my house air roof


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Mark DAIGLE.
    No. 2007-928.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Thomas E. Guilbeau, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Mark Daigle.
    Michael Harson, District Attorney, Kim Reginald Hayes, Assistant District Attorney, Lafayette, LA, for State-Appellee, State of Louisiana.

      Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

|,FACTS

The defendant, Mark Daigle, was convicted of one count of misapplication of funds. However, the facts which sustained the conviction are not pertinent to the defendant’s appeal. The defendant’s sole complaint is that he was denied his constitutional right to assistance of counsel at trial.

The procedural facts are as follows:

The defendant was arraigned on April 7, 2004. According to the minute entry, the defendant was represented by Attorney Shane Mouton. However, on the date of arraignment, an attorney from the Indigent Defense Board stood in for retained counsel. On April 12, 2005, Attorney Shane Mouton moved to withdraw as counsel of record. There is no formal grant of counsel’s motion in the record. However, on August 10, 2005, a hearing was held on the state’s motion to determine counsel, wherein the defendant informed the trial court he desired to represent himself. The trial court agreed to allow the defendant to represent himself. Trial commenced on November 29, 2005, following which the trial court found the defendant guilty as charged.

The defendant was charged by bill of information with one count of misapplication of payments, a violation of La.R.S. 14:202. He was found guilty as charged following a bench trial on November 29, 2005. The defendant filed a “Motion for a New Trial” on February 15, 2006. Hearings on the defendant’s motion were held on August 7, 2006, and March 26, 2007. The defendant’s motion was denied and he

was sentenced on the same date to five years imprisonment, suspended, supervised probation, and restitution.

| ¡The defendant perfected a timely appeal in which he asserts the trial court erred when it denied his “Motion for a New Trial.”

ASSIGNMENT OF ERROR

The defendant based his motion for a new trial on the grounds that he did not effectively waive his right to counsel and that he was never advised of the dangers and disadvantages of self-representation. Moreover, he asserted he was never advised of his right to court-appointed counsel.

In pertinent part, La.Code Crim.P. art. 851, Grounds for a new trial, provides that:

The court, on motion of the defendant, shall grant a new trial whenever:
(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 defendant may not be entitled to a new trial as a matter of strict legal right.

The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

In brief, the defendant argues that “[a] defendant in a criminal matter has the constitutional right to the assistance of counsel and the alternative right to represent himself. However, because these two rights are mutually exclusive, the right to counsel must be waived in order for a defendant to properly invoke the right to self-representation.” The defendant argues that because of having to assume “the heavy Lburden of defendant [sic] himself at trial, and armed with no professional legal skill, [he] simply cannot be expected by ‘reasonably [sic] diligence’ to have discovered such a defect prior to the court’s ruling,” and that “even if defendant may not be entitled to a new trial as a matter of strict legal right, the ends of justice would be served by granting a new trial.”

DISCUSSION

As noted above, the defendant’s counsel moved to withdraw on April 12, 2005. On August 10, 2005, a hearing was held on the State’s motion to determine counsel. The hearing was very brief, and contained the following discourse between the trial court and the defendant:

THE COURT: Okay. You think you can — I know you, of course, know enough about the case to represent yourself, but do you know about the law? Have you — you have sources and so forth to research that issue?
MR. DAIGLE: Yes, sir. I feel that the truth can only come out.
THE COURT: What’s your education?
MR. DAIGLE: High school graduate.
THE COURT: Graduated?
MR. DAIGLE: Yes, sir.
THE COURT: Okay. So you feel comfortable — you know, because in a criminal case, you representing yourself, you may not know the things that you need to know as far as the law goes to protect your own interest, you know. So I’m going to highly recommend that between now and then that you get an attorney, if you can, if nothing else to sit with you and advise you on the law. If you choose not to do that, I will let you go unrepresented and let you represent yourself, but it is — you know, you travel at your own peril in that, okay?
MR. DAIGLE: Yes, sir, I understand that.

|4Nothing more occurred in the record between this date and the trial, except for a one-day continuance on November 28, 2005. Trial commenced the next day on November 29, 2005. The following conversation took place prior to the trial:

THE COURT: Mr. Daigle, the first thing we’re going to go over with you is I’ll need to get your full education and so forth as far as for your ability to defend yourself here today. Can you, for the record, state what education you have?
MR. DAIGLE: I have a highschool [sic] degree.
THE COURT: And we talked in chambers a little while ago. I tried to explain, you know, the court proceedings to you so you would know basically how everything would go. Do you feel comfortable that you’re able to represent yourself in this situation?
MR. DAIGLE: Yes, your Honor.
THE COURT: You know enough about the case in general, and you read the statute that you’re here accused of violating?
MR. DAIGLE: Yes, I have.
THE COURT: And you understand you have a right to a jury trial?
MR. DAIGLE: Yes, I do.
THE COURT: And you’ve agreed to waive that right?
MR. DAIGLE: Yes, I have.
THE COURT: AJI right. And you feel comfortable with me as a judge? I’ve explained that I do know some of the parties here but don’t believe that any of the parties — that my affiliation with any of the parties here would affect my decision?
MR. DAIGLE: No, I don’t, not at all.
THE COURT: Okay, good. All right. I guess we’ll start with your case.

Following the one-day trial, the trial court found the defendant guilty as charged. On December 23, 2005, current defense counsel, Thomas Guilbeau, filed 15a “Motion to Enroll as Counsel of Record,” which was granted on the same date. On January 20, 2006, the defendant filed a “Motion to Postpone Sentencing of Defendant for Thirty Days to Allow Defendant Additional Time to Prepare and File a Motion for New Trial,” which was granted on the same date.

Hearings on the defendant’s motion for a new trial were held on August 7, 2006, and March 26, 2007. At the hearing, the defendant testified that he had initially retained defense counsel, but the attorney had to withdraw from the ease because he had accepted a position with the District Attorney’s Office. The defendant stated counsel offered to help him find new counsel, but he could not afford to hire new counsel. The defendant agreed that the judge spoke with him the day prior to trial and advised him about trial procedures. He testified he had no prior experience with the legal system. He did not recall the trial judge telling him he had a right to appointed counsel. He stated he did not understand that he could have received five years imprisonment. The defendant stated his prior counsel had told him that as a worst case scenario he would receive probation and be ordered to pay restitution. While the defendant agreed he waived a trial by jury, he did not know that a jury of six persons would have had to convict him unanimously, and if he had known, he would have chosen a jury trial. Moreover, although he understood when the trial judge advised him he had affiliations with some of the parties, he did not know he had the right to attempt to recuse the trial judge. Finally, the defendant testified he did not know he had the right to discover the evidence the state held against him.

On cross-examination, the state reminded the defendant that on November 28, 2005, when the trial court continued the trial for one more day, he did not want to continue, but to proceed immediately to trial.

|fiMR. HAYES: In any event, the day you did try this case, before the trial took place, as indicated by your attorney and the transcript he’s typed up, you were asked if you wanted a judge or jury trial, and what was your response?
A. I said a judge, but I didn’t understand that I could have a jury and how it worked.
Q. Okay. And you don’t remember the previous time or that day in chambers being explained about the choice between a judge and jury?
A. No.
Q. So all of us do, but you don’t?
MR. GUILBEAU: Who’s all of us?
MR. HAYES: And you also waived your right to have a lawyer represent you that day in trial, correct?
A. Because I couldn’t afford one.
Q. But you also waived your right to have one appointed free of charge because you were told that also.
A. I don’t remember.
Q. Mr. Daigle, the day we came to court to try this case, are you telling this Court today that you were never told that you have a right to a lawyer even if you can’t afford one? How many times did you tell the Court that you didn’t want a lawyer and you were going to represent yourself?
A. I thought y’all were going to appoint a lawyer that morning that knew nothing about the case or what was going on. I, you know, I didn’t understand that, no.
Q. Why didn’t you tell the Court that?
A. Because I thought that if we went and the truth would come out that there was no way this could happen. I mean, I was there. I know what happened.
Q. So you never asked the Court for a lawyer, a court-appointed lawyer?
A. I didn’t understand how that worked, no.

|7The trial court denied the defendant’s motion for a new trial, stating that:

I really believe I went out of my way to both inform you in chambers and in Court of what your rights were and how you were going to proceed and took steps to make sure you were informed the whole way through, what you had to do and how you had to do it to represent yourself.

The record does not show that the trial court followed the tenets as discussed below in State v. Whatley, 03-655 (La.App. 3 Cir. 11/5/03), 858 So.2d 751, and State v. Hayes, 95-1170 (La.App. 3 Cir. 3/6/96), 670 So.2d 683. There is nothing is the record before this court which demonstrates that the trial court made an adequate determination that the defendant’s waiver of his right to counsel was intelligently and knowingly made. Moreover, the trial court failed to adequately advise the defendant of the dangers and disadvantages of self-representation.

This court’s position on issues of an accused’s right to counsel and right to represent himself and whether these rights had been violated is well established. In Whatley, 858 So.2d at 765-66, this court quoted with approval Hayes, 670 So.2d at 685-86, as follows:

A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const, amend. VI; La. Const, art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a [8defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant’s literacy, competency, understanding and volition, i.e. was defendant’s waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir.1991); State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985); State v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ denied, 572 So.2d 85 (La.1991).

See also State v. Johnson, 06-937 (La.App. 3 Cir. 12/6/06), 944 So.2d 864.

Knowing and intelligent waiver of right to counsel

Initially, as noted above, at the hearing on the State’s motion to determine counsel, after the defendant agreed he was going to represent himself, the trial court asked about his education, establishing that the defendant graduated from high school. The judge mentioned that he knew the defendant was aware of the facts of his case, to which the defendant agreed. However, the trial court did not adequately inquire into or ascertain his literacy, competency, understanding, or volition.

In determining the knowing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 493; State v. Pickett, 99-532 (La.App. 5 Cir. 10/26/99), 746 So.2d 185, 188. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question which depends upon the facts and circumstances of each case. State v. Strain, 585 So.2d 540 at 542 (La.1991); State v. Rodrigue, 795 So.2d at 493.

State v. Frisella, 03-1213, p. 6 (La.App. 5 Cir. 2/23/04), 868 So.2d 871, 875.

| nOther than a determination that the defendant had a high school education, nothing more is in the record before this court to indicate his life experiences, background, or mental condition. At the hearing to determine counsel, the trial judge asked the defendant if he understood the charge against him, and the defendant answered, affirmatively. The judge, however, did not review the charge with the defendant or the consequences of a conviction. In State v. Bruce, 03-918, p. 4 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 857, the fifth circuit stated that “[i]n order to sufficiently establish on the record that defendant is making an intelligent and knowing waiver, the inquiry should involve more than an interchange of ‘yes’ or ‘no’ responses from the defendant.” In the present case, the trial judge asked if Defendant knew about the law, “You have sources and so forth to research that issue?” Defendant answered, “Yes, sir. I feel the truth can only come out.”

On the morning of trial, the trial judge again established that the defendant had a high school education, asked him if he waived his right to a jury trial, and informed him that he had an “affiliation” with some of the parties in the ease.

Not once did the trial judge state for the record that the defendant was entitled to appointment of counsel if he could not afford one. The minute entry of the arraignment indicates that the defendant had retained counsel. Therefore, there is nothing in the record from which this court could adduce that the defendant was advised at that time of his right to appointed counsel should he not have been able to afford counsel. At the hearing on the defendant’s motion for a new trial, the trial judge indicated he offered the defendant appointed counsel in chambers.

What may or may not have occurred in chambers is of no moment. We can only consider what is reflected in the record. While the defendant admitted during 110the hearing he was told he could have'Counsel appointed, he explained he was advised of such the day before trial, and he was fearful he would go to trial the next morning with an unprepared defense counsel.

Finally, the defendant’s conduct did not impliedly waive his right to counsel. In State v. Barr, 01-696 (La.App. 3 Cir. 12/28/01), 806 So.2d 137, this court held that Barr’s dilatory actions resulted in an implied waiver of the right to counsel when he continuously hired and fired counsel until the trial court finally refused another continuance and required him to go to trial without counsel. In State v. Batiste, 06-526 (La.App. 3 Cir. 12/11/96), 687 So.2d 499, Batiste was given several opportunities to retain counsel or to accept appointed counsel. He then would change his mind as to the prior decision whether he would retain counsel or accept appointed counsel. Batiste’s indecision lasted two years and resulted in several continuances of the trial. This court found that Batiste and Barr impliedly waived their right to counsel by their actions.

In the present case, the defendant was arraigned with counsel in April 2004. In April 2005, counsel filed a motion to withdraw. As mentioned above, there was no formal grant of the motion to withdraw. Nor was there any motion filed by the defendant requesting the right to represent himself. However, at a hearing to determine counsel, in August 2005, the defendant agreed he was going to represent himself. The trial court advised him it was not a good idea, that he had some time in which to retain counsel. Trial commenced in November 2005. The failure to hire counsel within the four months prior to trial did not constitute dilatory behavior such that would indicate he impliedly waived his right to counsel as in Barr and Batiste.

j-n Dangers and disadvantages of self-representation

The defendant argues his waiver was not intelligently made because he was never adequately advised of the dangers and disadvantages of self-representation.

In State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, the accused alleged the trial court did not adequately determine his capacity to waive his right to counsel. This court found that Poche had validly waived his right to counsel and that the trial court had adequately warned him of the dangers and disadvantages of self-representation. However, Poche had filed several pre-trial pro-se briefs, and on several occasions the trial court had allowed him to argue the motions. Because the trial court had the opportunity to observe the accused through his pro-se pleading and his arguments made during various motions, it only had to ascertain his volition. Furthermore, this court was able to determine the correctness of the trial court’s ruling which allowed Poche to represent himself because the record was sufficient to show that the trial court had complied with the necessary requirements as set forth in Hayes and Whatley.

In the present case, the only words of warning of the pitfalls of self-representation given to the defendant were at the time the trial court recommended to the defendant he hire counsel: “[Y]ou may not know the things that you need to know as far as the law goes to protect your own interest, you know.... If you choose not to do that, I will let you go unrepresented and let you represent yourself, but it is-you know, you travel at your own peril in that, Okay?” The record does not contain any pro-se pleadings, nor does the record indicate the defendant participated in any of the motions filed on his behalf.

hi>As an example of how his lack of knowledge of the law may have worked to his disadvantage in this case, the defendant argues that he did not know he had the right to discover the evidence the state intended to use against him prior to trial. As noted above, the record indicates there were no discovery motions filed in this case. Moreover, the defendant was entitled to explore the judge’s “affiliations” he disclosed to the defendant on the morning of trial. The defendant testified he did not know of this right.

Following the hearing on the motion for a new trial, the judge stated:

I really believe I went out of my way to both inform you in chambers and in Court of what your rights were and how you were going to proceed and took steps to make sure you were informed the whole way through, what you had to do and how you had to do it to represent yourself. I advised you I didn’t think it was a good idea for you to represent yourself. I thought you did actually a pretty good job as an attorney representing yourself, as someone representing yourself. So, I’m going to deny the Motion for New Trial.

The record before this court, however, does not show that the trial court adequately determined that the defendant’s waiver of trial counsel was intelligently or knowingly made or that he was adequately warned of the dangers and disadvantages of self-representation. Furthermore, the record is completely devoid of any advisement by the trial court that the defendant had a right to appointed counsel should he not have been able to afford to retain counsel. Louisiana Code of Criminal Procedure Article 514 provides that “[t]he minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to counsel, including the right to court-appointed counsel and that he waived such right.” The record before this court does not establish that the defendant chose self-representation “with eyes open.” State v. Carpenter, 390 So.2d 1296 (La.1980). See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Poche, 924 So.2d 1225, wherein this court stated “[t]he correctness of granting a defendant the right to represent himself is judged by the record made in recognizing his right to do so, not by what happens in the course of his self-representation.” Id. at 1232.

Finally, “[t]he Louisiana courts have also found that the right to counsel is such a fundamental right that it is not subject to the harmless error analysis.” State v. Haider, 00-231, p. 7 (La.App. 3 Cir. 10/11/00), 772 So.2d 189, 193. The defendant’s constitutional right to be represented by counsel was violated when the trial court failed to adequately determine whether his waiver of counsel was intelligently and knowingly made. The ends of justice can only be served by granting the defendant a new trial. La.Code Crim.P. art. 851(5).

CONCLUSION

The trial court’s denial of the defendant’s motion for a new trial is reversed and the defendant is hereby granted a new trial. There is nothing in the record before this court which shows that the trial court advised the defendant he had the right to appointed counsel if he could not afford counsel. The trial court did not adequately ascertain for the record that the defendant knowingly and intelligently waived his right to counsel or that he was made aware of the dangers and disadvantages of self-representation as required by this court. Accordingly, the trial court abused its discretion when it denied the defendant’s motion for a new trial. Therefore, the conviction and sentence are vacated and this matter is remanded for further proceedings.

CONVICTION AND SENTENCE VACATED AND REMANDED.


text:
    Jeffery J. BAUDOIN v. Carlos Ramirez MONTOYA, et al.
    No. 07-910.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Ian A. Macdonald, Perret Doise, Lafayette, LA, for Defendant/Appellee, Lone Star Temporary Services, LC.
    R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Jeffery J. Baudoin.
    Joseph H. Garbarino, Jeff Raymond Rytlewski, Skylar J. Comeaux, Lafayette, LA, for Defendant Appellee, Midwest Air Technologies.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

| factual and Procedural Background

The record indicates that on August 10, 2004, the plaintiff, Jeffery J. Baudoin (Baudoin) was injured when a vehicle operated by the defendant, Carlos Ramirez Montoya (Montoya), collided with his vehicle. Baudoin instituted this suit against Montoya and his automobile liability insurer, United Automobile Insurance Company (United). By amended petition, Baudoin added Midwest Air Technologies (Midwest) as a defendant, alleging that Montoya was in the course and scope of his employment with Midwest when the accident occurred. During discovery, Midwest averred that it was not Montoya’s employer in that he was “on loan” from Lone Star Temporary Services, L.C. (Lone Star).

On November 18, 2005, Baudoin signed a receipt and release document whereby he settled his claims with Montoya and United. Baudoin subsequently filed a motion to dismiss the suit and all claims against Montoya and United with prejudice. The trial court signed the order of dismissal on December 7, 2005. In a second supplemental and amended petition, Baudoin added Lone Star as a defendant. In response, Lone Star filed a motion for summary judgment, alleging that “Montoya was not employed by Lone Star ... on August 10, 2004 or any other time and was not on a mission for Lone Star ... at the time of the motor vehicle accident which serves as the basis for ... Baudoin’s claims.” The trial court denied the motion. Lone Star subsequently filed a motion to dismiss, in which it moved “pursuant to La.Code Civ.P. arts. 927(2) and 966, to dismiss plaintiffs claims in this matter on the grounds |2that Jeffery J. Baudoin’s claims against Carlos Ramirez Montoya have been settled.” Midwest filed a motion to dismiss on the same grounds. Following a hearing on February 21, 2007, the trial court ordered that Baudoin’s claims against Lone Star and Midwest be dismissed with prejudice. Baudoin now appeals. For the following reasons, we affirm.

Discussion

Release

According to Baudoin, he “compromised his claim against the individual who caused the accident, as well as his personal insurer, and maintained a claim against the defendant’s employer who was a named defendant within the four corners of the legal proceedings at the time of the dismissal.” Baudoin points out that Lone Star and Midwest neither participated in the settlement negotiations nor paid anything towards the settlement. Baudoin cites Sampay v. Morton Salt Co., 395 So.2d 326 (La.1981) for the proposition that he can “release an employee from personal responsibility and maintain an action against an employer.”

The “Receipt and Release” document, which was entered into evidence, stated:

Appearer further declares that for and in consideration of the receipt of said payment of NINETEEN THOUSAND FIVE HUNDRED AND NO/100 ($19,500.00) DOLLARS, he does hereby release, acquit and forever discharge CARLOS RAMIREZ MONTOYA AND UNITED AUTOMOBILE INSURANCE COMPANY, its employees, officers, directors, stockholders, agents and representatives and any and all other persons, firms, corporations (including, but not in any way limiting the same thereto, the officers, directors and stockholders of said corporations), partnerships and parties whomsoever, from any and all past, present and future claims, demands, compensation, medical expenses, costs, expenses, penalties, attorney’s fees, damages and any and all causes and rights of action, whatsoever, which he may or might have and to which he may be entitled, known and unknown, anticipated and unanticipated, under the workers’ compensation laws of the State of Louisiana, the tort laws, and any and |sall other laws whatsoever, in any way resulting from and/or to result from the accident which occurred on or about August 10, 2004.
Appearer further declares that he knows and understands that the injuries he sustained may be permanent and progressive and recovery therefrom is uncertain and indefinite and there may be injuries or results of injuries not yet evident, recognized or known and in making this release, appearer relies upon his judgment, knowledge and belief as to the nature, extent and duration of said injuries and as to the questions of liability involved and have not been influenced by any representations regarding the same. Appearer understands that his claims are doubtful and disputed and the above consideration is accepted in full compromise, accord and satisfaction thereof, and the payment of said consideration is not an admission of liability.

During the hearing, the trial court explained:

Dismissal and release are not the same. And a number of cases have recognized that. It doesn’t really matter what you do in the dismissal. What matters is what’s in the transaction and compromise, the release document. That’s what counts.
And so, in this case, there’s no mention of — you know, of releasing him only in a certain capacity. And, again, what I find unusual about this situation is that his employer would only be liable for— based on the fact of their status as the employer.
And the release is very broad. And it says it’s releasing Mr. Montoya and its releasing employees and agents on all parties. And there is no — there’s nothing in the release that says, only in his personal capacity, not as an employee, which I don’t even know if you could do that.
And, furthermore, there — when the actual dismissal is done, even though I don’t think the dismissal is controlling, there’s no reservation in the dismissal. I know that the dismissal says only he’s — and his insurer, but at no point in the record does there seem to be any reservation.
And that’s what I’m having some problem with, because the release is very broad and the employer — I mean, if I were reading it as the employer, I would think I was released as well, too.

After further arguments from both parties, the trial court dismissed Baudoin’s claims against Lone Star and Midwest with prejudice.

14At the outset, we note that Baudoin alleged that Midwest and/or Lone Star was liable for the actions of its (their) employee, Montoya, under the theory of respondeat superior. In Sampay, 395 So.2d at 329, the supreme court explained that, “[tjhat the employer’s liability is vicarious is important only in relation to the ultimate allocation of the obligation between the employer and the obligee. From the viewpoint of the victim, the employer and the employee are solidary obli-gors.” Overruling Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), the supreme court held that the derivative nature of the employer’s liability did not preclude recovery against it even though the employee-had been released.

Since Sampay, the legislature has enacted La.Civ.Code art. 1803, which dispensed with the requirement that the plaintiff reserve his or her rights against a defendant who was solidarily liable with a released party. See Weber v. Charity Hosp. of La., 475 So.2d 1047 (La.1985). Louisiana Civil Code Article 1803 provides in pertinent part: “Remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the obligee and one obligor, benefits the other solidary obligors in the amount of the portion of that obli-gor.”

In Migliore v. Traina, 474 So.2d 980 (La.App. 5 Cir.1985), the plaintiff, after settling with the tortfeasor and the tort-feasor’s insurer, signed two releases. The plaintiffs UM carrier argued that the releases also discharged it because it was solidarily liable with the tortfeasor and her insurer. The fifth circuit, finding that the UM carrier was also released, explained:

The language [of the release] is so broad it clearly covers any liability of any persons whatsoever arising from the accident. Plaintiff neither struck out the expansive language nor made any attempt to limit it to [the tortfeasor] and [her insurer]. See Ritchey v. Azar, 383 So.2d 360 (La.1980). Further, despite her claim she did not intend to release the UM carrier, she failed to supply any factual evidence to that effect in | ^response to [the UM carrier’s] motion for summary judgment. Simply asserting lack of intention to release all defendants, when the release plainly states all parties are released, is not sufficient to raise a genuine issue of material fact on such a point. LSA-C.C.P. art. 966.

Id. at 983-84.

In the instant case, we find that the broad language of the receipt and release agreement “evinces nothing other than an intent to settle and dismiss all claims against anyone arising of the accident made the basis of the lawsuit.” Black v. Anderson, 06-891, p. 8 (La.App. 5 Cir. 3/13/07), 956 So.2d 20, 24, writ denied, 07-794 (La.6/1/07), 957 So.2d 180. Such intent is established from the following language:

[Baudoin] does hereby release, acquit and forever discharge ... any and all other persons, firms, corporations ..., partnerships and parties whomsoever, from any and all past, present and future claims, demands, compensation, medical expenses, costs, expenses, penalties, attorney’s fees, damages and any and all causes and rights of action, whatsoever, which he may or might have and to which he may be entitled, known and unknown, anticipated and unanticipated, under the workers’ compensation laws of the State of Louisiana, the tort laws, and any and all other laws whatsoever, in any way resulting from and/or to result from the accident which occurred on or about August 10, 200⅛.

(Emphasis added). Baudoin did not attempt to limit the release language to Montoya and United. Nor did he present any evidence to prove his “lack of intention to release all defendants, when the release plainly states all parties are released[.]” Migliore, 474 So.2d at 984. Cf. Mallet v. Credo Oil & Gas, Inc., 534 So.2d 126 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1237 (La.1989) (wherein this court found that “the language used by plaintiff in the partial dismissal of [the defendant] clearly showed his intent not to release its insurers(s).”)

lfiIn light of this evidence, we conclude that the trial court did not err in dismissing Baudoin’s claims against Lone Star and Midwest with prejudice. Therefore, this assignment has no merit.

DECREE

For the above reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the plaintiff, Jeffery J. Baudoin.

AFFIRMED.

      . We note that the minutes for September 25, 2006, state that "[ajfter evidence was presented, based on counsel agreeing that there is an issue of fact, the Court denied [Lone Star's] Motion for Summary Judgment without prejudice.”

      . Pursuant to La.Code Civ.P. art. 927(2), res judicata may be raised through a peremptory exception.