text:
    STATE of Louisiana, Appellee v. Ward E. JACKSON, Appellant.
    Nos. 40,949-KA, 40,950-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Louisiana Appellate Project by James E. Beal, Jonesboro, Raymond Cannon, Tallulah, for Appellant.
    James D. Caldwell, District Attorney, Anita Tennant-Mack, Linda K Watson, Assistant District Attorneys, for Appellee.
    Before BROWN, C.J., and STEWART and MOORE, JJ.
   MOORE, J.

LThe appellant was convicted in a jury trial of second degree murder and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He timely appeals, assigning two conviction errors. We affirm.

FACTS

On October 11, 2003, the victim, Gary Haywood, was asked to leave the Old School Lounge in Tallulah because he was being a nuisance. Later that evening, the appellant and Haywood were seen talking outside the lounge when suddenly they began fighting. While no one witnessed the actual stabbing, two bystanders took hold of the appellant, who was holding a knife. One of the men told the appellant to drop the knife, and he told the victim to run.

The victim ran to a nearby residence and banged on the door for help. When officers responded to the call, the victim was found unconscious near the residence. He was pronounced dead at an area hospital. He had been stabbed in the chest and left arm. The autopsy revealed that death was due to hemorrhaging from the 3 ½ inch stab wound in the chest of the victim that incised the lung and the heart.

The record shows that after the stabbing, the appellant went home, told his wife he had stabbed someone, washed his knife and took his vehicle to his brother’s house. He was subsequently arrested just hours after the stabbing by police investigators, and he made an unrecorded oral statement regarding his involvement in the incident. The knife was never found, although a holster or sheath was found in a drawer where the defendant told 12investigators the knife could be found.

After being advised of his rights, appellant signed a waiver and gave an oral statement to investigators. Appellant stated that the victim owed him about $100 for which he had confronted the victim. He said that during the incident he thought the victim had something behind his back, so he went to his vehicle and got his knife. He stated he stabbed the victim in the chest but did not mean to cut him “that bad.”

Prior to trial, the appellant unsuccessfully attempted to have the statement suppressed. He was tried and convicted of second degree murder, which carries a mandatory life sentence without benefit of probation, parole, or suspension of sentence. Appellant filed the instant appeal, alleging two assignments of error.

Discussion

By his first assignment of error, appellant alleges the trial court erred in ruling that the state’s case agent’s notes were work product and not subject to discovery without first making an in camera inspection to determine whether they contained exculpatory material. He argues that the record makes it impossible to know whether or not notes made by the detective “would have made a difference in the effect of the defendant’s confession.” He contends that the notes should have been furnished either to the trial court for inspection or to the defendant for impeachment purposes, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

|aThe state contends that the detective heard appellant’s statement and made notes “to help him remember the contents” of the confession. It argues that they are the detective’s work product, and it is under no duty to disclose them because they contain nothing exculpatory. The state also argues that the disclosure of the officer’s personal notes would not have changed the outcome of the trial since there were other witnesses who testified about the stabbing.

Louisiana Code of Criminal Procedure Article 716 provides:

A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.
B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
C. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.

La. C. Cr. P. art. 718:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are •within the possession, custody, or control of the state, and which:
L(l) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3)’were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.

La. C. Cr. P. art. 723:

Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.

A contradictory hearing was held outside the jury’s presence during the trial regarding whether the notes were discoverable. The detective was questioned about the notes he had made regarding the appellant’s oral statement.

Although counsel did not raise the issue of whether the notes contained any exculpatory information, the issue was raised during the hearing on the motion to suppress the statement when counsel asked the investigator if the appellant had told him he was defending himself from Haywood, who “had a reputation of beating folks, taking their money and hurting them.” The investigator replied no. The record does not show that the defense attorney asked the trial court to do an in camera inspection of the notes.

| sIn State v. McKinnie, 35,591 (La.App. 2 Cir. 8/30/01), 793 So.2d 1272, this court stated:

As noted above, La. C. Cr. P. art. 716(C), pertaining to discovery of oral confessions, requires the state to disclose the “substance” of the statement to the defense. This issue was addressed by the supreme court in State v. Hooks, 421 So.2d 880 (La.1982). In Hooks, the supreme court held “all that is required for notice under [Article 716(C)] is the substance of the statement made. Substance is defined as the essential element or essence of a thing.” This requirement has been met in this case. The state has given the defense the substance of the oral confession in open court through the testimony of its investigator. Thus, the district court’s order requiring the state to provide a copy of the investigator’s notes concerning the oral confession is overly broad and is hereby reversed.

The facts in State v. Perkins, 337 So.2d 1145 (La.1976) present the same issue. That court said:

Louisiana jurisprudence supports the proposition that a defendant in a criminal prosecution has no right of full pretrial discovery. State v. Hunter, 250 La. 295, 195 So.2d 273 (1967); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966), U.S. cert. denied 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374 (1967); State v. Pailet, 246 La. 483, 165 So.2d 294 (1964). This Court has made exceptions for written confessions (State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945)), videotaped recordings of a confession (State v. Hall, 253 La. 425, 218 So.2d 320 (1969)), and tape recorded confessions (State v. Bendo, La., 281 So.2d 106 (1973)). However, we have repeatedly refused to extend these exceptions to include oral confessions or oral inculpa-tory statements. See State v. Major, La., 318 So.2d 19 (1975); State v. Watson, La., 301 So.2d 653 (1974); State v. Sears, La., 298 So.2d 814 (1974); State v. Lawrence, La., 294 So.2d 476 (1974); State v. McLeod, La., 271 So.2d 45 (1973); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), U.S. cert. denied 410 U.S. 944, 93 S.Ct. 1378, 35 L.Ed.2d 610 (1973).
Thus, the resolution of this issue depends on the classification of the oral statement ultimately reduced to writing by the undercover agent as an oral in-culpatory statement or a written incul-patory statement. In State v. Hall, supra, this Court reasoned that to constitute a written inculpatory statement, the writing must be one to which the accused himself subscribes. Under this principle, we believe |fithat the present statement must be classified as an oral one, since at no point did the defendant subscribe to the agent’s written report. Hence, it is not subject to pretrial discovery.

The purpose of discovery rules in criminal trials is to eliminate unwarranted prejudice from surprise testimony. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Williams, 25,835 (La.App. 2 Cir. 2/23/94), 632 So.2d 893; State v. Gantt, 616 So.2d 1300 (La.App. 2 Cir.1993), writ denied, 623 So.2d 1302 (La.1993). In this instance, there was no surprise. The defense knew early on what the appellant had told the investigators and the witness was subject to cross-examination by appellant.

This assignment of error is without merit.

By his second assignment of error the appellant contends that the trial court erred in determining that defendant had not suffered any injustice in his trial and that he was not entitled to a new trial. Appellant argues that because Calvin Brown changed his testimony at trial and stated he perjured himself in his prior testimony at the preliminary examination hearing, he should have been granted a new trial. He states that the witness’s change in testimony is suspicious since it came after a lead investigator spoke to the witness while he was “in the parish jail for a crime he did not commit.” Appellant contends that this witness’s original testimony corroborated another defense witness’s testimony regarding the victim’s aggressive acts.

The state contends that the witness testified he had been coached by the defense counsel to perjure himself at the prior hearing. Since the defense attorney attacked the credibility of his own witness, the jury knew of the prior testimony regarding the victim’s behavior. Thus, the jury was 17able to determine the credibility of this witness and decide whether or not to accept or reject the testimony. The state asserts that this court’s review does not allow a re-assessment of the credibility of a witness. .

La. C. Cr. P. arts. 851 and 858 govern motions for new trial. La. C. Cr. P. art. 851 reads:

The motion for a 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 allegations 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 defendant may not be entitled to a new trial as a matter of strict legal right.

La. C. Cr. P. art. 858 reads:

' Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.

|sThe record discloses that Calvin Brown testified at the preliminary hearing that he saw the victim come up behind the appellant as the appellant opened his car door and heard the victim tell the appellant that he did not have anyone to protect him now. When called as a defense witness at trial, Brown stated he did not see anything “go on between” the victim and the appellant. The defense then used the transcript of the prior hearing to impeach his testimony. On cross-examination, Brown admitted he was not there during this fight.

The defense attorney filed a motion for new trial listing 17 grounds. The ones relating to this assignment of error are:

(1) The Court’s ruling on April 28, 2005, which admitted contradictory testimony of Officer James Rash and did not allow this testimony to be impeached by the preliminary examination testimony of Calvin Brown, denied the Accused the ■ right of confrontation, cross examination and to present the defense of self-defense on the State’s case-in-chief and this ruling was prejudicial error.
(7) On April 28, 2005 the Court ruled that the statements made by Calvin Brown were admissible hearsay; this ruling was prejudicial error.
(10) Defense counsel filed for a fast and speedy trial. Prior to the commencement of trial on April 25, 2005, the State’s witness, Gerald Dale Simpson, had a charge dropped for testifying for the State and just before Calvin Brown, a defense |nwitness, was called to the witness stand, the State dropped charges against him, he turned into a State’s witness and perjured himself for the State. These actions by the State of Louisiana reinforce the point that the Court’s denial of the Accused’s Motion for a Continuance was prejudicial error.
(15) The conviction of the Accused based upon the internally perjured testimony of Calvin Brown, which was disclosed minutes before he took the witness stand, works a substantial injustice upon the Accused and is fundamentally unfair so much so until the Accused is entitled to a new trial although as a matter of strict legal right he may not be so entitled.

Appellant presented no evidence at the hearing on the motion for new trial. After having the trial court issue another subpoena to have Calvin Brown brought to the hearing, the defense counsel stated on the record that he was not calling Brown as a witness because Brown did not “understand the difference in an oath and perjury.” In its ruling, the trial court pointed out that Brown testified at trial and was “cross examined” by the defense and denied the motion finding there was “insufficient allegations or proof of grounds.”

In State v. Credeur, 328 So.2d 59 (La. 1976), the supreme court found that the appellant was not entitled to a new trial even though a witness testified at the hearing on the motion for a new trial that his prior Imtrial testimony was false and perjured. At trial, the 13-year-old son of the defendant had been a key witness for the state who testified he had witnessed an act of unnatural copulation by his father with his sister. A few days after the defendant was convicted, defense counsel received a telephone call from the boy in which he stated that his trial testimony was false. The telephone conversation was recorded and was admitted into evidence at the hearing on the motion for a new trial. When pressed by the trial judge and district attorney as to which time he was telling the truth-in court or during the telephone conversation-he replied, “I can’t answer that.” The trial court found that this testimony did not repudiate the boy’s previous trial testimony and denied the motion for new trial.

Here there was no new evidence to show that Brown had been forced to change his testimony. At the trial, the jury heard the prior statement Brown made as well as the allegations regarding why Brown was not testifying to the same effect at that time. There is nothing to indicate that there was any injustice done to the appellant as a result of this defense witness’s testimony.

Further, it should be noted that Brown’s prior statement showed only that the victim may have initially been the aggressor, but it did not contain enough information to support a finding that this stabbing was in self-defense.

This assignment lacks merit.

_J¿¿Error patent

This record shows that the trial court erred in sentencing the appellant immediately after denying the motions for post-verdict judgment of acquittal and new trial since the appellant did not waive the 24-hour waiting period. La. C. Cr. P. art. 878 reads: , .

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the .motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

As in State v. Cooper, 2003-161 (La.App. 3 Cir. 12/23/03), 862 So.2d 512, writ denied, 2004-0236 (La.6/4/04); 876 So.2d 74, this error appears to be harmless. The appellant received the mandatory life sentence for second degree murder. Since the record also shows that the trial court had “looked carefully at the information contained” in the PSI theré does not appear to be any prejudice in the expedited sentencing.

Conclusion

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Brown was called by the defense, not the state, and was thus questioned on direct and re-direct,


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Thomas E. MORGAN, Appellant.
    No. 40,976-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Patillo, Assistant District Attorneys, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

hThe defendant, Thomas E. Morgan, appeals as excessive his six-year sentence for simple burglary which was ordered to be served consecutively with his four-year sentence for attempted simple burglary. For the following reasons, we affirm the conviction and sentence.

FACTS

The defendant was originally charged with two counts of simple burglary of the Red Dog Saloon in Webster Parish. The first offense occurred on September 29, 2002; the second occurred on October 5, 2002. In each instance, several cases of beer were taken. Under a separate docket number, the defendant was charged with the simple burglary of Bee Bops Grocery on October 4, 2002.

Pursuant to a plea agreement, the defendant was allowed to plead guilty in the present matter to one count of simple burglary of the Red Dog Saloon. The other charge dealing with this establishment was dismissed. In the case concerning Bee Bops Grocery, the defendant was allowed to plead guilty to one count of attempted simple burglary. As part of the plea bargain agreement, the state agreed not to charge the defendant as a multiple offender and not to file charges against him in a separate, unrelated case. The guilty pleas were entered on June 16, 2003.

The defendant appeared before the court for sentencing on September 29, 2003. The court sentenced the defendant to six years at hard labor for the simple burglary charge, to be served consecutively with the four-year hard labor sentence imposed for the attempted simple burglary of Bee Bops Grocery, and consecutive to any other sentence the defendant | ^might be required to serve. A motion to reconsider the sentence was eventually denied by the trial court.

On June 13, 2005, a hearing was held on the defendant’s request for an out-of-time appeal. A written order granting the out-of-time appeal was signed on September 2, 2005. On appeal, the defendant argues that the trial court erred in ordering that the six-year hard labor sentence be served consecutively and that the imposition of a consecutive sentence resulted in an excessive sentence.

LEGAL PRINCIPLES

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. 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 the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864. A defendant’s reduction in sentencing exposure through plea bargaining is a valid consideration in sentencing if the lesser offense does not adequately describe the defendant’s conduct. State v. Lanclos, 419 So.2d 475 (La.1982).

| o,There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

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

The defendant contends that he has a history of alcohol and substance abuse and is in need of treatment. He points out that no physical harm resulted from his offenses and only minimal property damage occurred. He claims to be remorseful for his actions and asserts that he is working on self-discipline. He maintains that in these offenses, he only took three or four cases of beer and that the offenses were committed close in time to each other and in the same area. Therefore, he asserts that the offenses were part of a common scheme or plan and that the sentences should be concurrent. He argues that requiring his six-year sentence for the simple burglary and the four-year sentence regarding the attempted simple burglary be served consecutively amounts to a ten-year hard labor sentence for taking a few cases of beer and is constitutionally excessive.

|4The defendant appeared before the court for sentencing on the simple burglary plea in this case and the attempted simple burglary conviction which was charged under a separate docket number. The court noted that in these offenses, the defendant took several cases of beer. The trial court consulted a presentence investigation report in which the defendant admitted being addicted to crack cocaine. The report also reflected the defendant’s long adult criminal history. He had several convictions for disturbing the peace by being drunk in public, as well as numerous convictions for driving while intoxicated (DWI). At the time the present offense was committed, the defendant was on probation following a conviction for DWI, third offense, in 2001. The defendant also had convictions for misdemeanor theft, driving under suspension, unauthorized use of a movable, simple battery, and second degree battery.

The court noted that the defendant had been on probation on six occasions and had been through substance abuse treatment numerous times. The court found that any lesser sentence than that actually imposed would deprecate the seriousness of the offense. The court cited a letter written by the defendant claiming a desire to change his behavior; however, the court found that the desire was not evidenced by the defendant’s actions. The court then ordered the defendant to serve six-year at hard labor on the present charge and four years at hard labor on the attempted simple burglary charge. The court ordered the sentences to be served consecutively to each other and to any other sentence that might be imposed.

| sThe defendant received the benefit of a favorable plea agreement in which one count of simple burglary was dismissed in this matter, another unrelated offense was not charged, and the state agreed not to charge the defendant as a multiple offender.

The record shows that the trial court adequately considered the factors listed in La. C. Cr. P. art. 894.1 in imposing this sentence. Further, the sentence imposed is not excessive. The maximum sentence for simple burglary is twelve years at hard labor and a fine of $2,000. The defendant was ordered to serve one-half the maximum sentence of incarceration in the burglary conviction and no fine was imposed. In the attempted burglary, the defendant was sentenced to four years out of a possible six-year sentence. In light of the defendant’s extensive criminal record and his failure to respond favorably in the past to probation and substance abuse treatment, the sentence is not disproportionate to the severity of the offense and does not shock the sense of justice. The court did not abuse its discretion in the sentence imposed.

The defendant also argues that the trial court erred in ordering the sentences to be served consecutively.

La. C. Cr. P. Art. 883 provides:

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

| ^Concurrent sentences arising but of a single course of conduct are not mandatory and consecutive sentences under those circumstances are not necessarily excessive. State v. Maxie, 30,877 (La. App.2d Cir.8/19/98), 719 So.2d 104; State v. Dagenhart, 39,874 (La.App.2d Cir.8/17/05), 908 So.2d 1237. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. All factors in the case are to be considered in choosing whether to impose consecutive or concurrent sentences. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the defendant’s apparent disregard for the property of others, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain. State v. Maxie, supra.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Maxie, supra; State v. Mitchell, 37,916 (La.App.2d Cir.3/3/04), 869 So.2d 276, writ denied, 2004-0797 (La.9/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005).

In this matter, the offenses were not based on the same act or transaction or part of a common scheme or plan. They involved different businesses on different dates and were not even charged in the same bill of |7information or under the same docket number. Because these were separate offenses, the trial court acted within its discretion in ordering the sentence in the present matter to be served consecutively. See State v. Myles, 34,519 (La.App.2d Cir.5/9/01), 786 So.2d 902.

However, even if the offenses were part of a common scheme or plan, the factors contained in the record and considered by the trial court in pronouncing sentence were sufficient for the imposition of consecutive sentences.

ERROR PATENT

We have reviewed this matter for error patent on the face of the record pursuant to La. C. Cr. P. art. 920(2). At the sentencing, the trial court stated that the defendant had five days from the date of sentencing to file a notice of appeal. La. C. Cr. P. art. 914(B) was amended to allow a motion for appeal to be filed 30 days after the rendition of the judgment or ruling from which the appeal is taken. The amendment took effect August 15, 2003. The sentence was imposed on September 29, 2003. Therefore, the applicable time period for filing a notice of appeal was 30 days. However, because the defendant was eventually granted an out-of-time appeal, this error is moot.

CONCLUSION

For the reasons stated above, the conviction and sentence of the defendant, Thomas E. Morgan, are affirmed.

AFFIRMED.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Jermaine CARROLL, Appellant.
    No. 41,001-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, Lea Hall, Dhu Thompson, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before BROWN, C.J., and STEWART and MOORE, JJ.
   BROWN, C.J.

17A unanimous jury found defendant, Jermaine Carroll, guilty as charged of armed robbery. The trial court adjudicated defendant a second felony offender and imposed a sentence of 75 years at hard labor without the benefit of probation, parole or suspension of sentence. Defendant has appealed, claiming that his sentence is excessive and that the trial court incorrectly denied him the benefit of parole. Finding no error, however, we affirm.

Discussion

On the morning of June 14, 2003, defendant approached Trish Porter, the store manager of the Diamond Shamrock on the corner of West 70th Street and Buncombe Road, as she was opening the store. While armed with a gun (a BB pistol concealed in a bag to look like a handgun) and with a white bandana covering all but his eyes, defendant forced his way into the store, locked the door behind him, and made Trish give him cash from the vault. Trish’s fiancé, Mackers Turner, had driven Trish to work that morning and had seen defendant approach Trish, put a gun to her head, and coerce his way into the store.

Turner heard Trish scream from inside the store and threw the tire jack from the ear through the front windows of the store in an attempt to trigger the store alarm. Turner ran into the street and tried to flag down passing motorists. Defendant came out of the store with Trish, pushed her down in the parking lot, and told Turner, “don’t be a hero,” before running across West 70th toward the Assembly of God Church. Turner successfully flagged down Shreveport Police Department Corporal Josh Feliciano, a K-9 |2officer, who, together with his dog Pecco, immediately began pursuit of defendant.

Shedding his outer shirt, a white bandana, plastic “drop” bags full of money, and the video surveillance tape from the Diamond Shamrock, defendant fled west before being apprehended at the Circle K on Pines Road. He was found in the men’s restroom attempting to flush down the toilet some of the money he took from the Diamond Shamrock. Defendant was convicted as charged of armed robbery and sentenced to 75 years at hard labor without benefit.

On appeal, defendant urges that his sentence is excessive and that the trial court erred in imposing his sentence without the benefit of parole.

Louisiana Revised Statute 14:64 provides that a person who commits armed robbery shall be imprisoned at hard labor for not less than 10 nor more than 99 years without the benefit of probation, parole, or suspension of sentence. A person who is adjudicated a second felony offender shall be imprisoned for not less than one-half of the longest term nor more than twice the longest term prescribed for a first conviction. La. R.S. 15:529.1(A)(1). A defendant who is being sentenced as a second felony offender for armed robbery can be sentenced without the benefit of parole because this is provided for in the armed robbery statute. State v. Bruins, 407 So.2d 685 (La.1981); State v. McCurtis, 33,737 (La.App.2d Cir.), 769 So.2d 150 writ granted in part and remanded, 00-3080 (La.11/02/01), 800 So.2d 862.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the | aseriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

Prior to imposing sentence, the court discussed several factors which were listed in defendant’s pre-sentence investigation report and observed that defendant was 21 years old at the time of the instant offense. The court noted that defendant is a second felony offender who was previously convicted of simple burglary of an inhabited dwelling. The court also noted that defendant had a juvenile criminal history. The court carefully recited the facts of the case as related by the victim and other witnesses.

Responding to the sentencing guidelines, the court found that there was an undue risk that defendant would commit another crime. The court also observed that defendant was in need of correctional treatment and that any lesser sentence would deprecate the seriousness of his crime. The court commented that defendant showed no remorse for his conduct. The court took into consideration the victim’s statement and concluded that this ^violent offense against the victim caused serious emotional trauma for her and her family.

The applicable sentencing range for a second felony offender convicted of armed robbery is 49 1/2 years to 198 years at hard labor without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64 & 15:529.1; State v. McCurtis, supra. The trial court did not err in denying defendant the benefit of parole.

Nor do we find, on this record, constitutional error. Defendant is a second felony offender who has been convicted of simple burglary of an inhabited dwelling. The sentence imposed is less than one-half of the maximum sentence for a second felony offender who committed armed robbery, and is 24 years less than the maximum sentence that a defendant with no prior felony convictions could have received. Considering the specific facts and circumstances of this case, together with defendant’s background, we find that the sentence is not grossly disproportionate to the severity of the offense nor does it shock our sense of justice.

Conclusion

For the foregoing reasons, defendant’s conviction and sentence are AFFIRMED.


author: CARAWAY, J.

text:
    Eddie T. SCOTT and Karen P. Scott, Plaintiff-Appellee, v. RED RIVER WATERWAY COMMISSION and The City of Bossier City, Defendants-Appellants.
    No. 41,009-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Lemle & Kelleher, L.L.P. by Robert W. Kyle, Leland G. Horton, Shreveport, James D. Hall, Bossier City, for The City of Bossier City.
    Cook, Yancey, King & Galloway by Kenneth Mascagni, Shreveport, for The City of Bossier City and Nationwide Mutual Insurance Co.
    • Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P. by Gary J. Rouse, Ron Riggle, Jason A. Cavignac, J. Scott Loeb, New Orleans, for Continental Casualty Company.
    Sam N. Gregorio, Shreveport, A.J. Gregory, Jr., for Eddie T. Scott & Karen P. Scott.
    Preston and Covan, L.L.P. by Scott P. Yount, Randall C. Mulcahy, New Orleans, for Service Construction & Supply and Colony Insurance Company.
    The Smitherman Law Firm, L.L.C. by Donald Lee Brice, Jr., W. James Hill, III, Shreveport, for Demopulos & Ferguson, Inc.
    Henry H. LeBas, Barry J. Rozas, Mam-ou, for Zurich American Insurance Co.
    Before BROWN, C.J., and CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

hThe City of Bossier City (“the City”) filed a third party demand against the bonding company for a defaulted roadway contractor in a personal injury action filed against the City as the result of a vehicular accident occurring on the roadway. The City contended that in securing the roadway’s completion after the default, the bonding company stepped into the shoes of the original contractor and exposed itself to liability for defective conditions of the roadway. The trial court dismissed the bonding company from the suit on the exception of no cause of action. The City has appealed. We affirm.

Facts

On August 24, 2002, Jason David Scott was driving his truck south on the Arthur Ray Teague Parkway (“the Parkway”) in Bossier City, Louisiana, when he failed to maneuver a curve in the roadway. Scott lost control of his vehicle and was propelled across the grassy median and two lanes of travel into a road sign owned by the Red River Waterway Commission. He died from the injuries received in the one-vehicle accident. The Parkway was designed and constructed as a City roadway and is maintained by the City. Scott’s parents sued the City and the Red River Waterway Commission seeking damages for the wrongful death of their son from defects in both the road sign and the Parkway.

| ?jThe City filed a third party demand against Continental Casualty Insurance Company (“Continental”), the performance bond company for the original contractor, Plaquemines Contracting Inc. (“Plaque-mines”). Plaquemines had defaulted in its work on the initial construction contract for the Parkway. The City alleged that Continental’s agreement to complete the project exposed it to potential liability for any defective conditions of the Parkway. On September 22, 1999, Continental entered into a “Completion Agreement” with the City and tendered a joint venture, CW & W Contractors, Inc. and J.A. Long, Inc. (“the Joint Venture”), as the completion contractor. The City agreed to work directly with the Joint Venture which provided its own performance and payment bonds.

Additionally, Continental and the Joint Venture entered into a “Completion Construction Contract,” dated December 28, 1999. That contract provided that the Joint Venture, as the “Completion Contractor,” “shall be bound in the same manner and to the same extent that the surety [Continental] ... would be bound to the Owner [the City] had the Completion Contractor been the Former Contractor under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work performed by the Completion Contractor.” Although the City was not a signatory party to the agreement, the contract further stated that the “Owner has agreed to treat Completion Contractor just as if Completion contractor were the former contractor and such former contractor had not defaulted.” Eventually, upon the conclusion loof the Parkway project on May 10, 2000, the City executed a “Certificate of Substantial Completion” which acknowledged that the work on the December 28, 1999 Completion Construction Contract had been substantially performed by the Joint Venture as contracted.

Continental filed peremptory exceptions of no cause of action and peremption on the grounds that it had performed solely in accordance with the bonding agreement it had with Plaquemines for the benefit of the City and not as a contractor. The City contended that by assuming the responsibility for completing the Parkway after Plaquemines’ default, Continental took over the role of general contractor and subjected itself to liability to injured third parties for any defective condition in the Parkway independent of any bond claims.

The trial court sustained Continental’s exceptions and dismissed it from the suit on the grounds that the contract agreements showed that the Joint Venture, and not Continental, was the general contractor for the completion of the Parkway project. This appeal by the City ensued.

Discussion

A peremptory exception of no cause of action is used by the defendant to test the legal sufficiency of the petition by determining whether the law affords a remedy to the plaintiff on the facts that are alleged in the petition. Mack v. Evans, 35,364 (La.App.2d Cir.12/5/01), 804 So.2d 730, writ denied, 02-0422 (La.4/19/02), 813 So.2d 1088. In determining whether a plaintiff has stated a cause of action, the court looks to the facts set out in the petition, accepting them as true without regard to extrinsic ^evidence. Id. The purpose of the exception is only to determine if a cause of action is pled and not whether the plaintiff will ultimately prevail at trial. When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence. Id. An appellate court reviews a trial court’s ruling on an exception of no cause of action de novo because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748.

Ordinarily, the meaning and intent of the parties to a written instrument should be determined within the four corners of the document, and its terms cannot be explained or contradicted by extrinsic evidence. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. When a contract may be construed from the four corners of the instrument, that interpretation is a matter of law for the court to determine. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La. App.2d Cir.8/21/96), 679 So.2d 477.

A contracting party may stipulate a benefit for a third person, who is called a third party beneficiary. Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement. La. C.C. art. 1978. The law does not require express acceptance .or consent by the third party beneficiary or a particular form of acceptance or consent. Cooper v. Louisiana Department of Public Works, 03-1074 (La.App. 3d Cir.3/3/04), 870 So.2d 315, writ not considered, 04-1431 (La.9/24/04), 882 So.2d 1146. The stipulation gives the third party beneficiary the right to demand performance from the promisor. La. C.C. art. 1981.

The Louisiana Public Works Act, La. R.S. 38:2181, et seq., provides a detailed procedure in the letting of public contracts. La. R.S. 38:2216(A)(1) requires that:

... a written contract shall be entered into by the successful bidder and the public entity letting the contract, and the party to whom the contract is awarded shall furnish good and solvent bond in an amount not less than one-half of the amount of the contract, for the faithful performance of his duties.

Additionally, in pertinent part, La. R.S. 38:2241 provides:

* * ⅜
A. (2) For each contract in excess of twenty-five thousand dollars per project, the public entity shall require of the contractor a bond with good, solvent, and sufficient surety in a sum of not less than fifty percent of the contract price for the payment by the contractor or subcontractor to claimants as defined in R.S. 38:2242. The bond furnished shall be a statutory bond and no modification, omissions, additions in or to the terms of the contract, in the plans or specifications, or in the manner and mode of payment shall in any manner diminish, enlarge, or otherwise modify the obligations of the bond. The bond shall be executed by the contractor with surety or sureties approved by the public entity and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.
C. The payment provisions of all bonds furnished for public work contracts described in this Part, regardless of form or content, shall be construed as and deemed statutory bond provisions. Any such bond which fails to contain any of the requirements set forth in this Part shall be deemed to incorporate all of the requirements set forth in this Section. Language in any such bond containing any obligations beyond the requirements set forth in this Part shall be deemed surplusage and read out of such bond. Sureties and contractors executing payment bonds for public works contracts under this Part shall be immune from liability for or payment of any claims not required by this Part.
|rJD. A bond issued pursuant to this Section shall not create, nor shall such bond be construed to create, any cause of action in favor of the public entity, or any third party, for personal injury or property damages sustained by any third party during the effective period of the bond....
E. Any provisions of a bond issued pursuant to this Section which are contrary to Subsection D hereof are hereby declared to be contrary to the public policy of the state of Louisiana and are null and void.
‡ ⅜ ‡

This section requiring a bond in connection with the construction of public works provides protection to the public authority from loss and expense arising out of the failure of the contractor to faithfully perform the contract. Avallone Architectural Specialities, L.L.C. v. DBCS Corp., 36,971 (La.App.2d Cir.3/5/03), 839 So.2d 1045. The bond also may serve to insure against unpaid claims from parties supplying labor and materials for the construction of the public works who assert such claims under the Act. La. R.S. 38:2242; Wilkin v. Dev Con Builders, Inc., 561 So.2d 66 (La.1990). The Public Works Act refers to the bonding company as a surety. Therefore, with the issuance of the bond, the bonding company has bound itself to pay up to the amount of the bond in the event of nonfulfillment or nonperformance of the contractor’s obligations for the public works contract.

Continental presented its exceptions in this case with evidence of three contractual acts of the parties, the Completion Agreement, the Completion Construction Contract, and a “Certificate of Substantial Completion.” There was no objection to the trial court’s consideration of this evidence for the exception of no cause of action as each of the three contractual acts were referenced and discussed in the City’s third party |7demand against Continental. Although generally, parties may not introduce evidence to support or controvert the exception of no cause of action, the jurisprudence recognizes an exception to this rule that allows the court to consider evidence admitted without an objection to enlarge the pleadings. City of New Orleans v. Board of Directors of Louisiana State Museum, supra.

On appeal, the City reiterates its arguments made in opposition to the exceptions, namely, that Continental assumed responsibility and liability for constructing the Parkway, including liability for any failure to properly complete the Parkway. Specifically, the City grounds its argument on language contained in Article I of the Completion Agreement. In relevant part, that provision reads as follows:

SURETY agrees to arrange for the performance and completion of the work remaining under the Contract and accepts responsibility for the performance of the work remaining to be completed under the Contract. The terms and conditions of the bond, the Contract, and all Contract documents included, by reference therein, with any amendments or modifications as of the date of this agreement shall govern the rights and liabilities of the parties except as set forth hereinafter.
SURETY at this time tenders CW & W Contractors, Inc./J.A. Long, Inc., a Joint Venture (hereinafter “Completion Contractor”) as the contractor who shall undertake the completion of the project. OWNER does not object to this tender and accepts the Completion Contractor. OWNER agrees that it will work directly with Completion Contractor as if Completion Contractor was the original contractor....

The City argues that Continental’s agreement to accept responsibility for the performance of the work remaining to be completed under the contract created a new contract for construction of the Parkway and evidences the |sintent of the parties that Continental would bear full responsibility and accountability for the work as general contractor.

The City argues that Continental effectively undertook the completion of the project and, in accordance with the case of Klein v. J.D. & J.M. Collins, 159 La. 704, 106 So. 120 (1925), stepped into the shoes of the original contractor. In Klein, the court concluded that the surety stepped into the shoes of the contractor when the surety took an active role in the completion of the project, such as giving direct orders for materials used to complete the building. Additionally, payments by the owner for additional work on the uncompleted project were agreed to be paid directly to the surety. The case did not involve a third party personal injury action, but rather the additional costs of completing the structure and delay damages due the owner of the building.

The details of the original bond contract in this case are not set forth in the City’s petition. Nevertheless, that contract, which was between Plaquemines and Continental, established a legal suretyship in the City’s favor governed under the Public Works Act as explained by the foregoing jurisprudence. The Act, however, does not specifically detail how the surety may act to remedy a contractor’s default in a given situation. If, for example, after completion of the project, an unpaid claimant files a claim against the contractor in the mortgage records pursuant to Section 2242(B) of the Act, the surety may be required only to pay money in the event of the contractor’s default in paying that claim. On the other hand, the default by the contractor in this case was an event of nonperformance which left the Rwork on the project uncompleted, and Continental was called on to remedy that nonperformance.

Clearly, if the bond surety pays off its accessory obligation in money and acts in no other manner concerning the project, the language of Section 2241(C) and (D) of the Act indicates that its liability is limited to the amount paid and that any cause of action by a third party for personal injury arising from defects in the project would not extend to the surety. This conclusion is also supported by our general tort law. A bond surety is not the owner of the project and cannot be expected to perform in the project’s actual construction which gives rise to a defective condition. Therefore, fault under Civil Code Articles 2317.1 or 2315 would not arise as the result of an insuring, financial role of the surety.

Nevertheless, the Klein case demonstrates that instead of a bond surety merely paying off an amount under its bond upon the contractor’s default, it may contract with the owner to provide for a project’s completion in some other manner. If the surety by that contract takes on the role of the contractor and acts directly in completing the project, its liability can extend beyond the amount of its bond. The contract at issue in this case is of course a different undertaking from that which the surety agreed to in Klein and must be examined on its own facts. Our examination of the three agreements identified above convinces us that Continental did not take actions pursuant to the agreements which materially changed its role as surety in this case.

|inThe City argues that it never contracted directly with the Joint Venture and that the Joint Venture became Continental’s subcontractor after Continental assumed the role as general contractor. While it is true that the City was not a signatory party with the Joint Venture on any one of the three agreements, the course of dealings by the City and Joint Venture pursuant to those agreements demonstrates that a contractual relationship existed.

As quoted above, by executing the Completion Agreement, the City agreed “that it will work directly with [Joint Venture] as if [Joint Venture] was the original contractor.” Reciprocally, the Joint Venture agreed in the Completion Construction Contract with Continental that the Joint Venture would be bound to the City as though the Joint Venture had “been the Former Contractor under the Original Contact.” Significantly, as to the payments for the remainder of the work on the project, the Completion Construction Contract states that “[compensation to the [Joint Venture] shall be comprised of a lump sum payment from the Surety and periodic payments from Owner as per the Original Contract at the original unit prices.” The contract then identifies the “lump sum” owed by Continental as $992,515.19, which was the amount needed to compensate for the default of the prior contractor, and the amount of $2,969,960.05 to be paid by the City directly to the Joint Venture as the remaining periodic contract payments under the original contract for the Parkway. The Joint Venture was to insure this total amount of $3,962,475.29 with a new performance bond under the Public Works Act, thereby providing the City with | ^additional surety-ship protection for performance by the Joint Venture, not Continental.

The City’s petition suggests that this course of conduct set forth in the parties’ agreements was carried out, as indeed, the Parkway was completed. The City not only availed itself of the benefits stipulated in its favor under the Completion Construction Contract, it directly paid the Joint Venture which was a stipulated performance owed by the City for those benefits. The final “Certificate of Substantial Completion” is a contract document that expressly identifies as the subject matter the December 28, 1999 Completion Construction Contract. This is the very contract for which the City denies responsibility and privity. The occurrence of “substantial completion” was acknowledged by the City’s engineer who signed the Certificate. While the Certificate did provide a place for the Joint Venture to sign and to agree to the remaining “Punch List” of items to complete the job, a signature for the Joint Venture is not shown on the copy of the Certificate filed in evidence. Nevertheless, there is no allegation that the completion of the work identified by the Certificate was not carried out through the course of dealings between the City and the Joint Venture as recognized therein. The Certificate therefore represents a contractual agreement between the City and the Joint Venture addressing the conclusion of their overall contractual relationship for the project.

Regarding Continental’s role, there are no allegations in the City’s third party petition that Continental performed any act of construction, directed the Joint Venture’s construction work decisions, or caused an | ^alteration of the original design and specifications for the project as a result of its contractual initiatives. It performed a portion of its .$9 million insuring/suretyship obligation by paying out $992,515.19 to place the construction project back on track. Under these circumstances, we find that Continental did not perform beyond its role as surety and assume additional performance duties on the project which would give rise to the legal responsibility for the alleged defective premises that caused the death of plaintiffs’ decedent.

Accordingly, the trial court judgment sustaining Continental’s exception of no cause of action is affirmed. Costs of this appeal are assessed against the City in accordance with the provisions of La. R.S. 13:5112 in the amount of $119.00.

AFFIRMED.

      . The Red River Waterway Commission filed a third party demand against Coyle Engineering Company, Inc. and Service Construction and Supply Company, Inc. and its insurer, Colony Insurance Company, alleging the negligence of these defendants in the design, construction and placement of the sign. Service Construction and Supply Company, Inc. and Colony Insurance Company were denied summary judgment dismissing them from the suit.

      . The City also filed third party demands against the Joint Venture and Demopulos and Ferguson, Inc., the design engineering firm for the Parkway.


author: DICKINSON, Justice, for the Court.

text:
    CANADIAN NATIONAL/ILLINOIS CENTRAL RAILROAD COMPANY v. Terry Louis SMITH, et al.
    No. 2005-IA-01473-SCT.
    Supreme Court of Mississippi.
    Feb. 23, 2006.
    Rehearing Denied May 4, 2006.

      Glenn F. Beckham, Lonnie D. Bailey, Greenwood, Edward Blackmon, Canton, Jr., Frank Jones, for Appellant.
    James B. Grenfell, Brad M. Williams, Jackson, for Appellees.
   DICKINSON, Justice, for the Court.

¶ 1. The petition before us today is for writs of mandamus and prohibition and for permission to appeal interlocutory orders of the Circuit Court of the First Judicial District of Hinds County. We find the petition has merit and should be granted; further briefing is unnecessary, and we should now proceed to dispose of the issues.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Suit was originally brought against Illinois Central Railroad Company (“the Railroad”) by three employees under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. The original complaint alleged the plaintiffs worked for the Railroad “and/or its predecessors” and that “plaintiffs” were exposed to various hazardous materials including “asbestos, asbestos-containing products, sand, silica, ballast dust, grinding dust, diesel fumes, coal dust and other fibrogenic, carcinogenic noxious and deleterious dusts fumes, mists solvents and gases....” As a result of this alleged exposure — which plaintiffs characterize by listing fifteen specific categories of negligent conduct — the complaint claims “plaintiffs have developed and are at increased risk to develop one or more” of 21 various enumerated diseases “and other asbestos-related cancer.”

¶ 3. The complaint, which treats the plaintiffs as a single entity, neither specifies negligence or harm associated with any particular plaintiff nor explains when, where, how, or by what product any particular plaintiff was injured. Although the plaintiffs amended their complaint several times, they never corrected these deficiencies.

¶4. Several plaintiffs voluntarily dismissed their claims, leaving five plaintiffs before us today. During discovery; the Railroad learned that no plaintiff ever worked at the same time and place as any other plaintiff. Recognizing their inability to comply with the requirements for proper joinder of claims under Miss. R. Civ. P. Rule 20, the plaintiffs agreed to severance. However, in ordering the agreed severance, Hinds County Circuit Judge Tomie Green proclaimed that the claims of the five remaining plaintiffs were “properly filed in the First Judicial District of Hinds County,” and that “this action shall proceed as to the claims of Larry Polk.” The other four plaintiffs were required to file amended complaints and obtain new civil action numbers from the clerk. Specifically, Judge Green ordered that four of the plaintiffs “shall be severed from this action, and shall file amended complaints, and the Clerk is hereby ordered to assign new cause numbers for those actions reassigning those cases to the Honorable Judge Tomie T. Green.”

¶ 5. Claiming Judge Green’s order improperly circumvented the random assignment of cases required by Rule 1.05A of the Uniform Rules of Circuit and County Court Practice, the Railroad filed the motion before us today. Plaintiffs responded to the motion on August 2, 2005, and we stayed all trial court proceedings pending completion of our review and disposition of the matter. Our review is now complete. We grant the Railroad’s motion for interlocutory appeal and, because this appeal involves issues of law, requiring no resolution of disputed fact, we now proceed to decide the matter without further briefing.

DISCUSSION

¶ 6. Judge Green’s order declared the five plaintiffs were properly before the Circuit Court of Hinds County, First Judicial District. She ordered the claims of one of the plaintiffs to proceed in the current action and ordered the remaining four plaintiffs to file amended complaints. In addition, she ordered the clerk to assign new civil action numbers to these four amended complaints and to assign all four of them to her. The Railroad argues that, in issuing this order, Judge Green bypassed the random assignment procedure required by Rule 1.05A of the Uniform Rules of Circuit and County Court Practice, which states:

In multi-judge districts and courts, all civil cases shall be assigned immediately on the filing of the complaint by such method which shall insure that the assignment shall be random, that no dis-cernable pattern of assignment exists, and that no person shall know to whom the case will be assigned until it has been assigned. If an attorney or party shall attempt to manipulate or defeat the purpose of this rule, the case shall be reassigned to the judge who would have otherwise received the assignment. If the judge who would have received the case under an assignment in compliance with this rule cannot be determined, a new assignment in compliance with the rule shall be made, excluding the judge to whom it was incorrectly assigned.

¶ 7. Plaintiffs respond, asserting that, once the original complaint was assigned to Judge Green in compliance with Rule 1.05, she was within her discretion to retain the cases of all of the plaintiffs, even after severance. Because we hold today that the four misjoined plaintiffs must file new complaints in jurisdictions of appropriate venue, we decline to address issues of random assignment or venue as to these plaintiffs. All such issues must be first presented to the trial court or courts in which their new complaints are filed.

¶ 8. However, the claims of Larry Polk require a different analysis. Judge Green did not order Polk to file an amended complaint. Rather, her order provided that the current civil action would continue with Polk as the only plaintiff. This, combined with her holding that Polk was properly before the Circuit Court of the First Judicial District of Hinds County, presupposes that Polk’s original complaint filed March 28, 2003, and his amended complaint filed February 27, 2004, satisfy the requirements for venue and comply with notice pleading requirements. We turn now to a review of the law to be applied to the undisputed facts in this case.

Analysis of applicable law

¶ 9. Although claims of misjoinder and inadequate pleading frequently travel together, they are distinct issues requiring separate and different analyses. Furthermore, where both misjoinder and insufficient pleading are found, an appropriate remedy fashioned to address one will not necessarily remedy the other. That said, we begin our analysis with two procedural pleading requirements we addressed and clarified in several cases of relatively recent vintage. Our pronouncements regarding the requirements for proper join-der under Miss. R. Civ. P. Rule 20, and regarding the minimum information necessary to comply with the requirements of notice pleading required under Miss. R. Civ. P. Rules 8, 9,10 and 11, have been the subject of considerable interest and comment from the judiciary and the bar. Today, we provide further needed clarification.

¶ 10. With respect to the joinder and pleading -issues, this case presents nothing new or novel. It does, however, present a tangential question of first impression, that is, whether the lawsuits of misjoined plaintiffs — after severance — should be dismissed and refiled as new cases. As will be discussed below, substantial precedent exists for requiring amended complaints and transfers, where necessary, to appropriate venues.

¶ 11. Having severed the cases of four plaintiffs from Polk’s case, Judge Green believed all five cases were continuing in nature, notwithstanding her order of new civil action numbers for the four that were severed. Because the suits of all five plaintiffs were originally assigned to her, and because she concluded that all five plaintiffs could properly pursue their claims in the First Judicial District of Hinds County, Judge Green thought it appropriate to retain the case of one plaintiff and order the clerk to assign her the other four.

¶ 12. Realizing this is an issue of first impression, and giving Judge Green the benefit of the doubt (to which she is certainly entitled), we cannot say her decision was unreasonable or without legitimate purpose. Judicial economy, alone, could explain her decision to retain five similar cases filed against the same defendant. Indeed, Plaintiffs’ counsel presents an excellent brief supporting Judge Green’s decision. The Railroad also presents an impressive brief, forcefully arguing that random assignment of the severed cases pursuant to Rule 1.05 is critical to the administration of justice.

¶ 13. We reach our decision today after careful review of the positions argued by the parties, as well as consideration of numerous issues presented by severance of misjoined plaintiffs. We find it prudent at this juncture to review our current law on joinder and notice pleading, and then address the basis for our holding today.

Joinder

¶ 14. Beginning with Janssen Pharmaceutica v. Armond, 866 So.2d 1092 (Miss. 2004), Justice Cobb, speaking for this Court sitting en banc, and without dissent, clarified the requirements for proper join-der under Rule 20 of the Mississippi Rules of Civil Procedure. A simple statement of our holding in Armond and its progeny is that plaintiffs may not be joined under Rule 20 unless their claims are connected by a distinct, litigable event. Id. at 1099.

¶ 15. The parties in this case agree that the plaintiffs are not properly joined. Plaintiffs have agreed that severance is appropriate. Thus, we affirm Judge Green’s order, so far as it orders severance. However, severing the plaintiffs’ cases does not end the inquiry.

Misjoinder, severance and transfer

¶ 16. A finding of misjoinder and order of severance of the plaintiffs — without more — suggests nothing more than that the plaintiffs have not complied with Rule 20. In Armond, this Court faced, for the first time, misjoinder of numerous plaintiffs in a mass tort case. Specifically, we held:

We reverse the trial court’s order, and we remand the case for severance of all claims against defendants who have no connection with Armond.... We also instruct the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.

Id. at 1102. Because the Mississippi Rules of Civil Procedure provided no guidance for the continuation of the severed cases of the misjoined Armond plaintiffs, we were forced to provide some procedural remedy to the fifty-six plaintiffs facing severance. We placed the burden on the trial court to determine an appropriate venue, and to transfer the cases. In doing so, we provided no procedure for the “transfer” of the plaintiffs or their cases.

¶ 17. In Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004), we were faced not only with misjoined plaintiffs but also with inadequate pleading. In discussing this deficient pleading, we stated:

In essence, we are told that 264 plaintiffs were exposed over a 75-year period of time to asbestos products associated with 137 manufacturers in approximately 600 workplaces. We are not told which plaintiff was exposed to which product manufactured by which defendant in which workplace at any particular time.

Id. at 494. We held that the trial court “shall dismiss, without prejudice, each plaintiff who fails to provide the defendants and the court ... sufficient information as specified herein which allows the trial court to determine the appropriate court for transfer.” Id. at 495-96. See also 3M Co. v. Glass, 917 So.2d 90 (Miss. 2005) (applying Mangialardi to other Mississippi state court cases); Illinois Cent. R.R. Co. v. Gregory, 912 So.2d 829 (Miss. 2005) (same); Amchem Prods., Inc. v. Rogers, 912 So.2d 853 (Miss.2005) (same); 3M Co. v. Hinton, 910 So.2d 526 (Miss. 2005) (same); Alexander v. Easy Fin. of New Albany, Inc., No. 1:03CV91-D-D, 2005 WL 2674980 (N.D.Miss. Oct.20, 2005) (applying Mangialardi to cases in federal court); In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563 (S.D.Tex.2005) (same); and Walton v. Tower Loan of MS., 338 F.Supp.2d 691, 59 Fed. R. Serv.3d 1072 (N.D.Miss.2004) (same).

¶ 18. Thus, in Mangialardi as in Ar-mond, we placed the burden upon the trial court to determine appropriate venues and, where appropriate, to transfer the severed cases. Again, however, we provided the, trial court no guidance as to the “transfer” of cases.

¶ 19. The judiciary .and bar in Mississippi have now had approximately two years since Armond to adjust to the requirements for proper joinder under Rule 20. We now find it appropriate to provide further clarification as to the disposition of the claims and cases of misjoined plaintiffs, following severance.

¶ 20. The Plaintiffs urge us to view the five plaintiffs’ cases as continuing in nature, requiring only that they file amended complaints. Because the trial court held the five plaintiffs’ cases were appropriately filed in the First Judicial District of Hinds County, the plaintiffs argue no transfer would be necessary, and all five cases could, and should, continue before Judge Green.

¶ 21. In ordering the respective trial courts to transfer the severed plaintiffs in Armond and Mangialardi, we failed to address numerous potential problems which attend that procedure, including that the procedure, itself, has no definition or guidelines. Furthermore, we did not address exactly what would be “transferred.” For instance, assuming arguendo the trial court in Armond determined that fifty of the fifty-six plaintiffs should be “transferred” to fifty different jurisdictions, we cannot say how these “transfers” should have taken place. One could argue that, under this hypothetical transfer of fifty cases, the circuit clerk in the jurisdiction where Armond was filed was required to make fifty copies of the Armond file and deliver them to the fifty respective jurisdictions. Nothing was said of filing fees for these “transferred” cases, and we did not address the usurpation by the trial court of the plaintiffs’ traditional right to choose a venue.

¶ 22. In considering whether the cases of severed plaintiffs should be continuing in nature or should proceed under new complaints, we find a paucity of state or federal precedent. By analogy, we note that rights lost to a defendant are, in some instances, reborn with severance of plaintiffs. As observed by Professor Jeffrey Jackson in his excellent civil procedure treatise,

[t]he distinction between severance and orders of separate trials is important for the purpose of determining whether a state law claim is removable to federal court. For example, if a removable claim against a diverse defendant is severed from a nonremovable claim against an non-diverse defendant, the removable claim — as a separate action — could be removed to federal court. However, if a court merely orders that two claims be tried separately, but not severed into two distinct actions, the claims would retain the character of single nonremovable actions. See Miller v. Fulton, 113 F.Supp.2d 1035 (S.D.Miss.2000).

Jackson, Jeffrey, Mississippi Civil Procedure vol. 1. § 11A:3, p. 555-57 (2005). Thus, plaintiffs who were not properly joined under Rule 20 must, after severance, proceed with a separate action, and the procedural issue of removability turns on the facts as they exist after severance.

¶23. We see no purpose to be served in requiring amended complaints to be filed then transferred. Where plaintiffs are misjoined and severance is required, we hold that the better rule—and the one we adopt today—is for the trial court to (1) allow a plaintiff whose case is properly before the court (if any), and all properly joined plaintiffs, to proceed in the filed action, (2) allow misjoined plaintiffs who are properly before the trial court to proceed with separate actions in the forum court, and (3) sever and dismiss all mis-joined plaintiffs who lack proper venue in the forum court, allowing each severed plaintiff to file a new complaint in an appropriate venue selected by that plaintiff.

¶ 24. This procedure should result in no prejudice to the severed plaintiffs. The statute of limitations is tolled while a misjoined plaintiffs case is pending. See Jackson, Jeffery, Encyclopedia of Miss. Law § 44.22, Chapter 44 Laches and Limitations. (Dec.2005) (citing Deposit Guar. Nat’l. Bank v. Roberts, 483 So.2d 348 (Miss.1986)). We held in Deposit Guaranty National Bank v. Roberts that the filing of the suit five days before the statute of limitations would have run, tolled the statute until the suit’s dismissal some twenty months later. Deposit, 483 So.2d at 352. Thus, the statute of limitations expired five days after the suit’s dismissal. Id. See also Triple “C” Transp., Inc. v. Dickens, 870 So.2d 1195, 1199 (Miss.2004) (citing Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996)).

¶ 25. Additionally, dismissal of a plaintiffs “duly commenced” case based solely on misjoinder and improper venue would constitute dismissal for a matter of form, bringing into play the provisions of Miss.Code Ann. Section 15-1-69, which provides that “the plaintiff may commence a new action for the same cause, at any time within one year....” The “new action” would, of course, be subject to the same affirmative defenses and substantive challenges as was the original suit. For instance, in Evans v. Broadhead, 233 So.2d 771 (Miss.1970), this Court held that the additional year granted by Miss.Code Ann. Section 15-1-69 did not deprive the defendant of seeking dismissal for failure to file the original action within the applicable statute of limitations. Id. at 774.

Venue

¶ 26. We now turn to Judge Green’s holding that all five plaintiffs were properly before the Circuit Court of the First Judicial District of Hinds County, a decision which—unless found to be an abuse of discretion—we will not disturb. This venue analysis requires us to first examine the law of venue, and then determine whether, in light of our holding in Mangialardi, sufficient facts were available to Judge Green for a reasonable determination under applicable law of appropriate venue.

¶ 27. Although the procedural requirements for establishing proper venue are the ultimate responsibility of this Court, we have thus far deferred all such questions to the Legislature, and we have adopted the venue statutes as controlling law. See Miss R. Civ. P. Rule 82.

¶ 28. Plaintiffs claim in their amended complaint that “[v]enue is ... proper in [the First Judicial District of Hinds County] under Miss.Code Ann. Sections 11 — 11— 8 and 11-11-5 (1972, as amended) and 28 U.S.C. Section 1445.”

1. Miss.Code Ann. § 11-11-5

¶ 29. The Legislature repealed Section 11-11-5, effective January 1, 2003. Prior to that time, the statute provided that railroad companies could be sued where the cause of action accrued, where the railroad had its principal place of business, or in the county where the plaintiff resided at the time of the accident. The original complaint in this action was filed on March 28, 2003, two months after the effective date of the repeal of Section 11-11-5. Thus, the statute is inapposite.

2. Miss.Code Ann. § 11-11-3

¶ 30. Plaintiffs also assert that venue is proper in the First Judicial District of Hinds County pursuant to Section 11 — 11— 3.Our current statute, which was in effect when the complaint was filed, provides that venue for a suit against a corporate defendant would be proper “in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.” Miss.Code Ann. § 11 — 11—3(l)(a)(I) (Supp. 2004). The statute further provides that “[i]f venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) ... [it] may be commenced in the county where the plaintiff resides or is domiciled.” Miss.Code Ann. § ll~ll-3(l)(b).

¶ 31. The February 27, 2004, amended complaint tells us only that each plaintiff “is an adult resident citizen of the State of Mississippi,” and the defendant is an Illinois corporation. It further provides that the “plaintiffs’ causes of action, or some of them, occurred and/or accrued in the State of Mississippi.” There is no allegation in the amended complaint that the Railroad’s principal place of business is located in the First Judicial District of Hinds County. The only information related to the place of injury or exposure is the claim that the Railroad “exposed Plaintiffs and other employees at its yards, and shops, tracks, and/or other facilities, equipment and locomotives.... ”

¶ 32. We find the amended complaint woefully inadequate in alleging sufficient information to establish venue. We further find it fails to comply with the requirements announced in Mangialardi. Therefore, we are unable to say at this point whether any of the five plaintiffs are properly before the Circuit Court of the First Judicial District of Hinds County.

CONCLUSION

¶ 33. The order of the Circuit Court of the First Judicial District of Hinds County is affirmed, insofar as it ordered severance of plaintiffs Terry Smith, William Meador, Theo Albriton and Richard Neal. We remand with instructions to the trial court to dismiss, without prejudice, these plaintiffs, leaving to them and their respective attorneys the decision of refiling in an appropriate venue. We further instruct the trial court to either dismiss, without prejudice, the claims of Larry Polk, or allow him a reasonable time, not exceeding 30 days, to file an amended complaint which complies with our pronouncement in Mangialardi, and which properly establishes venue in the First Judicial District of Hinds County-

¶ 34. PETITION GRANTED. AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

SMITH, C.J., WALLER, P.J., CARLSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Justice Graves, joined by Justice Easley, specially concurred, advocating the adoption of class actions in Mississippi state courts.

      . See Dillard’s Inc. v. Scott, 908 So.2d 93 (Miss.2005); Ill. Cent. R.R. v. Gregory, 912 So.2d 829 (Miss.2005); Wyeth-Ayerst Labs. v. Caldwell, 905 So.2d 1205 (Miss.2005); MS Life Ins. Co. v. Baker, 905 So.2d 1179 (Miss. 2005); Purdue Pharma, L.P. v. Estate of Heffner, 904 So.2d 100 (Miss.2004); Culbert v. Johnson & Johnson, 883 So.2d 550 (Miss. 2004); and Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31 (Miss.2004).

      . There may be cases where some plaintiffs are properly joined and some are not. In those cases, the trial court should sever the improperly joined plaintiffs and allow the properly joined plaintiffs to proceed.

      . Miss. R. Civ. P. Rule 21 provides that mis-joinder is not ground for dismissal. This rule allows misjoined plaintiffs who have proper venue in the court where the action was filed to continue with their cases with new civil action numbers and, in multi-judge jurisdictions where appropriate, random assignment under U.R.C.C.C Rule 1.05A.

      .This, of course, assumes compliance with the requirements of timely service of process. See Miss. R. Civ. P. Rule 4(h).