text:
    STATE of Louisiana v. Michael ANDERSON.
    No. 2011-KK-0224.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Anderson, Michael; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 472-217; to the Court of Appeal, Fourth Circuit, No. 2010-K-1557.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    PENNY REALTY, INC., Nouri Edward Hakim, Jack Ralph Hakim and Joseph Herman Hakim v. SOUTHWEST CAPITAL SERVICES, INC., The Marcil Group, Inc., SALPL, L.L.C., Mike Marcil, Les Gee, Alfred J. Antonini, SLAG, L.L.C., and Shreveport Properties, L.L.C.
    No. 2011-CC-0144.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Hakim, Jack Ralph et al.; Hakim, Joseph Herman; Hakim, Nouri Edward; Penny Realty Inc. et al.; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 08-0875-C-3; to the Court of Appeal, Second Circuit, No. 46,172-CW.

Denied.


text:
    Clinton BOE and Lori Boe v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Elbert L. Clemens and Usagencies Casualty Insurance Company.
    No. 2011-CC-0143.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Department of Transportation and Development; State of Louisiana; —Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. C, No. 82,359; to the Court of Appeal, First Circuit, No. 2010 CW 1748.

Denied.


text:
    Rachelle JEFFERSON v. LA CAR MART, LLC.
    No. 2011-C-0140.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re La Car Mart LLC; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, Monroe City Court, No. 2009CV00742; to the Court of Appeal, Second Circuit, No. 45,812-CA.

Denied.


text:
    Anupam RAJVANSHI and Vasundhara Rajvanshi v. Dr. Jay P. JAIKISHEN, et al.
    No. 2011-CC-0139.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Jaikishen, Jay P. et al.; Jay P. Jaikishen M.D. APMC; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 2010-0706; to the Court of Appeal, Third Circuit, No. CW 10-00962.

Denied.


text:
    SUCCESSION OF Edward LOTT, Jr.
    No. 2011-CC-0133.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Lott Jr., Succession of Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 06-12300; to the Court of Appeal, Fourth Circuit, No. 2010-C-1509.

Denied.


text:
    Helen BABIN v. PLANET BEACH TANNING SALONS, INC. Helen Babin v. Planet Beach Tanning Salons, Inc.
    No. 2011-C-0128.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Planet Beach Tanning Salons, Inc.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2007-1774; to the Court of Appeal, Fourth Circuit, Nos. 2010-CA-0862, 2010-C-0736.

Denied.


text:
    STATE of Louisiana v. John P. COLLINS.
    No. 2011-KK-0122.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Collins, John F.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, Ascension Parish Court No. 442603; to the Court of Appeal, First Circuit, No. 2010 KW 2250.

Denied.


text:
    Randall S. RODGERS and Pamela B. Rodgers v. NORTH LOUSIANA AMUSEMENT & GAMBLING, L.L.C., Xtreme Entertainment L.L.C. and Leon S. Miletello, Jr.
    No. 2011-C-0120.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Rodgers, Pamela B.; Rodgers, Randall S. et al.; —Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. A, No. 497,360; to the Court of Appeal, Second Circuit, No. 45,700-CA.

Denied.


text:
    B3, L.L.C., et al. v. Troy HENRY, et al.
    No. 2011-CC-0103.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Henry Consulting L.L.C; Henry, Troy et ah; Infinity Fuels L.L.C; —Defendant (s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 09-4.091; to the Court of Appeal, Fourth Circuit, No. 2010-C-1493.

Denied.


text:
    STATE of Louisiana v. Alfredo SILVA.
    No. 2011-KK-0391.
    Supreme Court of Louisiana.
    March 4, 2011.
   In re Silva, Alfredo; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 501^64; to the Court of Appeal, Fourth Circuit, No. 2011-K-0060.

Denied.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    ROYAL OLDSMOBILE COMPANY, INC. v. HEISLER PROPERTIES, L.L.C.; Succession of William C. Garrett; Debra Garrett Levis and Billie Garrett Semines, Co-Executrices of the Succession of William C. Garrett; Succession of Frank Dimitri; ABC, Succession Representative of the Succession of Frank P. Dimitri; Josephine Desalvo Dimitri; Succession of Joseph Dimitri; Camella M. Dimitri, Executrix of the Succession of Joseph Dimitri, and Josephine Virga Dimitri.
    No. 10-CA-152.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2010.

      Frank A. Tessier, Matthew J. Fantaci, Attorneys at Law, New Orleans, LA, for Plaintiff/2nd Appellant.
    Henry L. Klein, Leonard L. Levenson, Colleen B. Gannon, Christine W. Helmke, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Robert G. Stassi, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

13This appeal concerns a dispute over contested provisions in a lease agreement — the right of first refusal to purchase the leased property and the exercise of lease renewal options. The original 1977 lease provided for renewal options. It is undisputed that the original lease was recorded but the exercises of renewal options were not. The plaintiff, Royal Oldsmobile Company, Inc. (Royal), originally leased the property from two brothers; Frank P. Dimitri and Joseph Dimitri. After their deaths, the ownership changed. Now, Royal seeks specific performance requiring the current owners to sell their respective one-half undivided interests to Royal in accordance with the alleged lease provisions. Alternatively, Royal asks that all sales that occurred in violation of its right be rescinded and that the defendants/parties who acquired ownership following the brothers’ deaths be ordered to sell their interests in the property to Royal. Royal sued the Dimitri defendants, the Succession of Garrett defendants, and Heisler Properties, LLC (Heisler). Royal additionally seeks rental reimbursement or 14damages for amounts it paid based on its contention that those amounts are null and void given the violation of its right of first refusal.

The partial summary judgments on appeal arise from cross-motions for summary judgment filed by Royal and one of the current buyers, the Succession of Garrett defendants, which the trial judge granted in part in one judgment. She denied Royal’s motion for summary judgment as to the Succession of Garrett defendants and she granted the Succession of Garrett defendants’ cross-motion for summary judgment. As to the Succession of Garrett defendants, she concluded that the right was not triggered by an involuntary U.S. Marshal’s bankruptcy sale through which the Succession of Garrett acquired the property. Regarding Royal’s motion for summary judgment against Heisler, the trial judge granted the motion, finding that Heisler was aware that Royal leased the property at the time of the sale and, relying on La.C.C. art. 3389, she found that the recordation of the exercise of lease renewal options was not necessary for the lease to continue to affect third parties such as Heisler. She rendered judgment finding that Royal was entitled to specific performance of its right to first refusal with respect to the leased property acquired by Heisler. Royal and Heisler appeal. The trial judge only decided two theories of the case; namely, that the right of first refusal was not barred by Royal’s failure to record the exercise of renewal options and the right was not triggered by an involuntary U.S. Marshal’s bankruptcy sale. For the foregoing reasons, we vacate in part the certification of appealability issued by the trial [ .judge; dismiss without prejudice in part; affirm in part; and remand for further proceedings.

Procedural History and Underlying Facts

Frank P. Dimitri and Joseph Dimitri were the original co-owners with one-half undivided interests in the leased property located in Jefferson Parish bounded by Severn Avenue, Veterans Boulevard, 27th Street and North Hullen Street. The brothers leased the property to Royal on June 29, 1977. It is undisputed that the original lease was recorded. Paragraph 19 of the lease contained the following right of first refusal:

RIGHT OF FIRST REFUSAL. In the event that the Lessor has a bona fide offer in writing and desires to sell all or any part of the leased premises, the Lessee shall have the right of first refusal, for a period of thirty (30) days following delivery of a copy of the offer to its offices, to purchase the property for such amounts and upon such terms as the Lessor has an opportunity to sell such property to a third person. Provided, however, the right of first refusal provided for in this paragraph shall not apply to sales or transfers from the present owner to trusts for the benefit or members of the families of such owner, or to corporations, the majority of the voting stock of which is owned by the present owner or members of his family; however, such right of first refusal shall be binding on such transferees in the event the transferees desire to sell all or part of the leased premises, and Lessor agrees that a clause to that effect shall be set forth in any act of transfer of the property to any trust or corporations as set forth above.

The lease provided for successive options to renew as follows:

The original term was 60 months, commencing on October 1, 1977 and expiring September 30, 1982. It provided that the lessee shall have the option to renew the lease for two consecutive five-year periods and an additional seven-year period and another additional period of seven years, two months upon the same terms and conditions contained in the lease, with the exception of the monthly rental rate, which shall increase as further provided. It stated that if the lessee decided to exercise the option, the lessee shall notify the lessor in writing of the exercise of its option at least 120 days prior to the end of the primary term or, any | (¡extension thereof. If written notice is not given, the lessor shall notify the lessee in writing that it is time to exercise the lessee’s option. If said written notice from the lessee was not given within 10 days of the lessor’s notice, the option shall automatically expire the lease. It stated that it was understood and agreed that the renewal option contemplated four renewal options with the first being exercised at least 120 days pri- or to the end of the first five-year extension (September 30, 1987). The expiration date of the final option period was November 30, 2006.

Frank Dimitri and Joseph Dimitri died in 1993 and 2003, respectively. Thereafter, subsequent transfers of the leased property resulted in the Succession of Garrett’s ownership of Frank’s undivided interest and Heisler’s ownership of Joseph’s undivided interest. The Succession of Garrett and Heisler each acquired an undivided one-half interest in the property on October 14, 2003 and December 11, 2003 respectively.

After Frank died in 1993, his wife, Josephine Desalvo Dimitri, was recognized as the sole heir and placed in possession of all of Frank’s assets on June 26, 2000. Pursuant to bankruptcy proceedings in the United States Eastern District of Louisiana, in the bankruptcy case entitled “In re Josephine Dimitri,” consolidated with “Josephine D. Dimitri v. Granville Semmes, et. als,” the bankruptcy court seized property belonging to the debtor, Josephine D. Dimitri, on June 24, 2003. The property included Frank’s undivided interest in the leased |7property. The seized property, along with other property, was sold on October 14, 2003 by the United States Marshal for the Eastern District of Louisiana to the highest bidder — Succession of William C. Garrett.

After Joseph died on June 19, 2003, his widow, Josephine Virga Dimitri, and the Succession of Joseph Dimitri entered into a cash sale of property on December 11, 2003. They sold, among other pieces of property, Joseph’s undivided half interest in the leased property to Josephine Desal-vo Dimitri. On the same day, December 11, 2003, Josephine Desalvo Dimitri sold, among other pieces of property, the subject property to Heisler.

The Motions for Summary Judgment The 2006 Motions

In 2006, Heisler, the Succession of Garrett defendants, and Royal filed motions for summary judgment. The former trial judge granted Heisler’s and the Succession of Garrett defendant’s motions for summary judgment and denied Royal’s motion for summary judgment. The trial judge found that the original lease had expired and that none of the lease renewal options were ever recorded to show that any renewal options had been exercised. The trial judge further found that Royal’s right of first refusal under the lease did not apply to the Succession of Garrett’s acquisition of the property pursuant to the involuntary U.S. Marshal’s sale in a bankruptcy case.

The Current 2009 Motions

In 2009, after a newly-elected judge presided over the case, Royal and the Succession of Garrett defendants filed motions for summary judgment. Heisler did not file a motion.

| «Royal conceded that while the original lease was recorded, Royal’s exercises of renewal options were not recorded. However, it asserted that La.C.C. art. 3339 did not require recordation to affect third parties. Heisler opposed the motion and additionally asserted that Royal failed to pay rent.

The Garrett motion for summary judgment likewise asserted that since Royal breached the lease by failing to pay the required rent, Royal could not enforce any rights under the lease. The Succession of Garrett defendants further argued that the 2003 U.S. Marshal’s sale did not trigger the right of first refusal because there was no bona fide offer in writing and the lessor did not desire to sell the property to the U.S. Marshal. Also, because the exercises of renewal options were not recorded, the right of first refusal expired when the terms of the recorded lease expired.

After the trial judge rendered judgment, Heisler filed a motion for new trial asserting, among other things, that Royal failed to meet its burden of proving the alleged right was triggered through a bona fide offer in writing. Royal opposed the motion arguing that the only outstanding issue was the sale price of the property. Although Royal asserted that Heisler admitted the price, Heisler disagreed. In particular, Heisler argued there still remained the issue of Royal’s alleged failure to pay proper rent. The trial judge denied the motion for new trial and designated the judgments as final.

Analysis

Royal argues that the trial judge erred in holding that the right of first refusal was not binding on the Succession of Garrett defendants on the basis that the | nSuccession of Garrett purchased the one-half interest in the property at a foreclosure sale. Alternatively, Royal asserts that the trial court erred because the Succession of Garrett defendants and Heisler ratified the lease through their actions, thus binding themselves to its terms, including the right of first refusal. Heisler appeals the judgment finding that Royal is entitled to specific performance from Heis-ler. Heisler argues that the trial judge erred in failing to recognize the public records doctrine. Also, Heisler states that it provided the court with evidence of Royal’s chronic and contumacious default and its refusal to pay the appropriate rent, pointing out that when there is a material breach, the defaulting party cannot avail himself of any provision of the violated lease. Heisler further argues that is undisputed that no request for specific performance or exercise of any right of first refusal was made in the 30 days after Heisler informed Royal that it had purchased a half-interest in the property by bulk sale dated December 11, 2003.

The Partial Summary Judyments

There are two partial judgments on appeal together in one rendered judgment. We consider whether these judgments are properly before the court. This court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Creighton, Richards & Higdon, L.L.C. v. Richards Clearview, L.L.C., 09-247 (La.App. 5 Cir. 10/29/09), 28 So.3d 391, citing La.C.C.P. art. 2083; Phoenix Associates v. E.H. Mitchell & Co., 07-0108 (La.App. 1 Cir. 9/14/07), 970 So.2d 605, 610, writ denied, 07-2365 (La.2/1/08), 976 So.2d 723.

La.C.C.P. art. 1915(B)(1) provides:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an | ^original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

The Remaining Claims and Defenses

The following claims are outstanding: Royal’s claims against the Dimitri defendants; Royal’s third party demand against an alleged sublessee; and, the Succession of Garrett’s and Heisler’s re-conventional demands for alleged past due rental.

The following defenses have yet to be addressed by the trial court:

The Succession of Garrett defendants pleaded the following affirmative defenses: Royal did not claim any right in connection with the foreclosure; and, Royal was in default at the time Royal claims entitlement to purchase the property. Among other things, on June 10, 2004, Heisler pleaded various defenses and exceptions, including an exception styled “no right of action” arguing that Royal breached the lease by being in default and therefore could not avail itself of the right. Heisler did not set the “exception” for hearing and the trial judge has yet to rule on that claimed defense. In 2006, Heisler reurged that defense among others in its motion for summary judgment. The former trial judge, however, ruled that the lack of re-cordation of the exercises of renewal options barred Royal’s claim. Thus, she never reached the default issue.

In addition, in 2007 Royal filed an exception of prescription as to the alleged claims by Heisler and the Succession of Garrett defendants for unpaid rent. Royal did not ask that the exception be set for hearing. Rather, Royal asked that the exception be referred to trial on the merits. The judge has yet to rule on that exception.

|nIn the current judgment in favor of Royal against Heisler, the trial judge decided a theory of the case; namely, that recordation of the renewal options was unnecessary pursuant to Article 3339 to affect third parties. That finding did not determine the merits of Royal’s petition for specific performance. The trial judge has yet to rule on Heisler’s defenses, including the claim that Royal defaulted on the lease and thereby could not enforce the right. In addition, although the trial judge recognized that Royal’s right of specific performance was not barred by its failure to record the exercise of renewal options, the trial judge never considered or made any ruling as to the purchase price that Royal would have to pay Heisler to enforce its right. In short, a mere finding that recordation was unnecessary only means that the absence of recordation does not otherwise bar Royal’s claim for specific performance from Heisler. The trial judge has yet to determine the merits of the claim against Heisler, including other defenses, in its entirety.

In contrast, in the judgment in favor of Royal against the Succession of Garrett defendants, the trial judge determined Royal’s main demand against the Succession of Garrett defendants; namely, that an involuntary U.S. Marshal’s sale did not trigger the right of first refusal. Having found that Royal was barred as a matter of law, she had no need to further determine other defenses raised by the Succession of Garrett defendants.

Still, both judgments relating to the Succession of Garrett and Heisler are partial judgments. The judgments did not dispose of the reconventional demands filed by Heisler and the Succession of Garrett defendants. The judgments also did not dispose of Royal’s third party demand.

Unless properly designated as a final judgment, we are without jurisdiction to consider the appeal of these partial judgments. Compare: Diagnostic Management Affiliates, Inc. v. Yonter, 99-99, p. 5 (La.App. 5 Cir. 7/27/99), 739 So.2d 988, 990 (A summary judgment on the main demand without deciding the reconventional demand was not appealable where the judgment was not designated as final.).

In order to be appealable, these interlocutory judgments must each be “designated as a final judgment by the court after an express determination that there is no just reason for delay.” La.C.C.P. art. 1915(B). Although the trial judge designated the judgments as final, she did not expressly determine that there was no just reason for delay as required by Article 1915(B).

The proper standard of review for an order designating a judgment as final for appeal purposes when accompanied by explicit reasons is whether the trial court abused its discretion. If no reasons are given but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper. R.J. Messinger, Inc. v. Rosenblum, 04-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122.

In this case, it is apparent from the hearing on the motion to designate the judgments as final that the trial judge evidently considered the argument that certification would avoid piecemeal litigation.

Messinger instructs that courts of appeal, when conducting a de novo review in matters where the trial court fails to give explicit reasons for the certification, can consider the following list of factors, although not exclusive. This list may be used by trial judges when considering whether a partial judgment should be certified as appealable:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
]1S4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Messinger, supra, 04-1664 at 14, 894 So.2d at 1122 (citation omitted).

However, the overriding inquiry for the trial court is whether there is no just reason for delay. Id. at 14, 894 So.2d at 1123.

As to Royal’s appeal from the judgment in favor of the Succession of Garrett defendants, we find the trial judge properly designated that judgment as appeal-able. Although the issue of proper designation presents a close question on the procedural issue, based upon our consideration of Messinger, we find that the trial court’s certification was appropriate. We conclude that the judgment as to the Succession of Garrett defendants effectively terminates Royal’s claim for specific performance as to the Succession of Garrett defendants. At this stage, the relationship between the adjudication on the bar to Royal’s suit for specific performance and the unadjudicated reconven-tional demand claim for past due rent are not so intertwined that the partial judgment should not be certified as appeal-able. Likewise, Royal’s unadjudicated third party demand is riot so intertwined.

On the other hand, the trial judge’s finding that Article 3339 applies does not determine the merits of Royal’s claim against Heisler. Although the trial judge stated in her judgment that she granted specific performance, we interpret that judgment to mean that she found as a matter of law, Royal was not barred from pursuing its claims even if the exercise of renewal options were not recorded. That ruling, unlike the ruling as to the Succession of Garrett defendants, did not dispose of the merits of Royal’s claim. It has yet to be decided whether Heisler’s defenses otherwise bar Royal’s right of first refusal.

| uAlso, it is apparent that the learned trial judge was obviously attempting to accommodate the wishes of the parties in certifying the judgment as immediately ap-pealable in order to obtain review of the trial court’s interpretation of the meaning of La.C.C. art. 3339. But to permit an appeal of such a judgment would encourage multiple appeals and piecemeal litigation. Accordingly, we find, upon de novo review that the trial court erred in designating the judgment granting summary judgment in favor of Royal against Heisler as immediately appealable.

We find that the unadjudieated default claims and the exception of no right of action are based upon the same operative facts, and are dependent upon each other for common resolution. There is the possibility that the need for review might be mooted by future developments in the trial court in the event the trial judge finds that Heisler’s defenses, including the default issue, have merit or that Royal is not entitled to specific performance even if there was no necessity of recordation. Thus, there is the possibility that the reviewing court might be obliged to consider the same issue — Royal’s right to specific performance as to Heisler — a second time. We make no determination on those defenses since the trial judge never ruled on these issues. Furthermore, the trial judge has yet to determine the price that Royal should pay Heisler in the event she determines Royal’s claim on its merits and finds that Royal is entitled to purchase the property. Heisler filed a supplemental brief in which it states that this court can decide the default issue upon its de novo summary judgment review. Even assuming there are no issues of material fact regarding the alleged default (a fact that Royal disputes), we decline to do so in the first instance.

In Bianchini v. Muggivan, 09-924 (La. App. 5 Cir. 4/18/10), 40 So.3d 157, this court concluded it was improper for the trial judge to certify the partial judgment as appealable. The court reasoned that the partial judgment did not [^terminate the suit, and that the same parties would continue to litigate the remaining issues.

Similarly, judicial resources would be wasted by the appellate review of the partial summary judgment in favor of Heisler at this time, considering the probability of a later appeal involving the adjudication of the remaining defenses. Compare: Creighton, supra, 09-247 at 5, 28 So.3d at 394, citing Setliff v. Slayter, 08-1337 (La.App. 3 Cir. 1/7/09), 1 So.3d 799, 801. Accordingly, we find that the judgment granting Royal’s motion for summary judgment against Heisler is not ripe for immediate appeal.

For the above discussed reasons, we dismiss Heisler Properties, LLC’s appeal from the judgment granting summary judgment in favor of Royal without prejudice. As we have determined on our de novo review that the trial court erred in designating the judgment as final, we must dismiss this appeal. See: Creighton, supra, 09-247 at 6, 28 So.3d at 394. Since the judgment granting summary judgment in favor of Royal against Heisler does not constitute a final judgment for purposes of appeal, it may be revised by the trial court at any time prior to the rendition of the judgment adjudicating all issues and claims. La.C.C.P. art. 1915(B)(2). Because this partial, non-final judgment, may be revised at any time before resolution of the entire case, we decline to convert the improper appeal to a writ application. Accord: Kantas v. Board of Sup’rs of Louisiana State University and Agricultural and Mechanical College ex rel. LSU Eye Center-New Orleans, 00-0170 (La.App. 4 Cir. 3/1/00), 756 So.2d 1154, 1155-56.

As to Royal’s appeal from the judgment granting summary judgment in favor of the Succession of Garrett defendants, we maintain the appeal from that judgment as properly designated.

1 ifiThe Involuntary U.S. Marshal’s Sale

The language in the lease pertinent to the issues raised here reveals the following: The lessor has to have a bona fide offer in writing and a desire to sell all or part of the leased property in order to trigger the right of first refusal. Once triggered, then the lessee shall have the right of first refusal for 30 days following delivery of a copy of the offer to its offices to purchase the property. Then, the lessee has a right to purchase the property for such amounts and upon such terms as the lessor has an opportunity to sell such property to a third person.

We pretermit a determination of whether the lease provision was in full force and effect when the Succession of Garrett purchased the property because, even assuming it was, clearly, the Marshal’s sale was involuntary and, accordingly, there was no “bona fide offer in writing and a desire to sell all or part of the leased property.” For that reason, we also pretermit a determination of whether the Succession of Garrett defendants ratified the lease and whether Royal was in default.

Royal relies on a peculiar 1931 case from the Louisiana Supreme Court, Price v. Town of Ruston, 171 La. 985, 132 So. 653, 654-55 (La.1931). In Price, Mrs. Price, the owner of the property entered into an agreement with the Ruston Lodge, No. 1134, of the Benevolent and Protective Order of Elks, by which the lodge was permitted to construct, for its lodge room and meeting place, a third story on the building. The contract provided that in the event the lodge “shall desire to sell the third story,” Mrs. Price “shall be given the option and preference of purchasing the same at the price at which it shall be offered.” The recorded contract was binding on respective parties, their heirs, successors, assigns, or legal | ^representatives. The building was constructed according to the agreement. The first story was used for commercial purposes, the second story for offices, and the third story for the sessions of the Lodge.

The lodge defaulted on its loan obligation and the mortgaged third story was sold at a sheriffs sale to the town of Ruston, the last and highest bidder. The district court found that the optionee was entitled to take the property at the price offered by the highest bidder at the sheriffs sale. 132 So. at 655.

Price affirmed and explained:

We agree with the district judge that it would do violence to the intention of the parties to the contract if the word ‘desire’ should be construed literally, in the clause giving to Mrs. Price and her heirs and assigns the right to buy the third story on her building, at the price at which it might be offered for sale, in the event the Elks’ Lodge should desire to sell it. Mrs. Price was willing that this fraternal and benevolent and protective organization, the Elks’ Lodge, should own the third story of the Price building, and occupy her premises free of rent, as long as the lodge should continue to own the third story; but she was not willing to be bound to allow any one else, or any other institution, to own the third story of the Price building and occupy her premises free of rent. The expression ‘in the event the party of the second part shall desire to sell,’ meant in the event the Elks’ Lodge should be about to sell, whether willingly or because of financial inability to hold the property. The purpose of the clause in the contract was to prevent the Elks’ Lodge from being divested of its title without giving Mrs. Price or her heirs or assigns the right to take the title at the price which any other buyer would give for it.
132 So. at 655-56.

We find Price is distinguishable. The lease provision here has different language. In Price, the option was only triggered by a “desire to sell.” In contrast, the right in this case is triggered by two events: “Lessor has a bona fide offer in writing and desires to sell all or any part of the leased premises.” (Emphasis added). An involuntary U.S. Marshal’s sale does not meet the first requirement of “a bona fide offer in writing.”

We find that Price is limited to its peculiar fact situation.

1 isRoyal presents these additional arguments: It is undisputed that it had no actual notice of the foreclosure sale, and, even if the right of first refusal did not bind the sale by the U.S. Marshal, subsequent to purchasing the property the Succession of Garrett defendants ratified the lease through their actions, thus binding themselves to its terms, including the right of first refusal. We find these arguments unpersuasive. The contract terms clearly provide for a limited right of first refusal that must be triggered by two events. Those two events did not occur in connection with the involuntary U.S. Marshal’s sale nor did any alleged ratification trigger the right.

Therefore, we find the trial judge did not err in granting summary judgment in favor of the Succession of Garrett defendants.

Decree

Accordingly, we vacate the certification of appealability of the partial summary judgment in favor of Royal Oldsmobile against Heisler Properties LLC; dismiss Heisler Properties LLC’s appeal without prejudice and remand for further proceedings. We affirm the judgment in favor of the Succession of Garrett defendants against Royal Oldsmobile and remand for further proceedings.

CERTIFICATION OF APPEALABILITY ISSUED BY TRIAL COURT VACATED IN PART; DISMISSED WITHOUT PREJUDICE IN PART; AFFIRMED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . These are the Dimitri defendants: Succession of Frank Dimitri; ABC, Succession Representative of the Succession of Frank P. Dimitri; Josephine Desalvo Dimitri; Succession of Joseph Dimitri; Camella M. Dimitri, Executrix of the Succession of Joseph Dimitri; and, Josephine Virga Dimitri (the Dimitri defendants).

      . These are the Succession of Garrett defendants: Succession of William C. Garrett; Deborah Garrett Levis and Billie Garrett Semmes, co-executrices of the Succession of William C. Garrett (the Succession of Garrett defendants).

      . The article provides:
      A matter of capacity or authority, the occurrence of a suspensive or resolutory condition, the exercise of the option or right of first refusal, a tacit acceptance, a termination of rights that depends upon the occurrence of a condition, and a similar matter pertaining to rights and obligations evidenced by a recorded instrument are effective as to a third person although not evidenced of record.
      2005 La. Acts, No. 169, § 10 provides that the act was effective January 1, 2006. In this case, the triggering events occurred in 2003, prior to the effective date of the article. The Succession of Garrett defendants argued that Article 3339 was substantive law which can only be applied prospectively. Royal disagreed.

      . A second addendum to the lease dated June 29, 1977 stated that the lessee was granted the option to renew and extend the lease for two, five-year option periods, one seven-year option period, and one seven-year, two months option period.

      . In support of its current motion for summary judgment, Royal attached an exhibit that purportedly indicates that on March 17, 2004 Succession of William C. Garrett sold the undivided interest in the leased property to Garrett Orleans, LLC. However, Garrett Orleans, LLC is not a named defendant. The only Garrett defendants are Succession of William C. Garrett, Deborah Garrett Levis and Billie Garrett Semmes, co-executrices of the Succession of William C. Garrett, the Succession of Garrett defendants. We note that the document purportedly indicates that Succession of William C. Garrett, co-executrices Debra Garrett Levis and Billie Garrett Sem-mes signed in their capacities as sellers and purchasers. The Succession of Garrett defendants filed a statement of material facts that were not disputed. The purported 2004 sale was not listed as an uncontested fact. However, in its opposition to Royal's current motion, the Succession of Garrett defendants stated that there was a transfer by the Succession of Garrett to its limited liability company, Garrett Orleans LLC on March 14, 2004.

      . The trial judge denied the motion to designate the partial judgment as appealable. See: La.C.C.P. art. 1915(B).

      . During oral argument before this court, Heisler conceded it had no claim for rent due to the prior owners. However, Heisler still maintained its position that Royal’s alleged default barred Royal from enforcing the lease provisions.

      .The trial judge denied the Succession of Garrett defendants’ non-forfeiture arguments, apparently as moot.

      . See, infra, note 1. By joint motion, trial regarding the Dimitri defendants was severed on June 27, 2007.

      . That demand was also severed.

      . "Most of the few authorities considering the question take the view that a foreclosure or similar involuntary sale is not within the contemplation of a "first refusal” option and that the holder of the option therefore has no greater rights at such sale than any other buyer.” See: Annot., 17 A.L.R.3d 962 (1968).


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Raffaelous Jechania WHITE, Appellant.
    No. 45,915-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 2, 2011.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason Trevor Brown, Suzanne Morelock Owen, Tommy Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.

      . This crime is actually at least his seventh felony conviction, plus numerous misdemeanors. Some of the convictions involved violence.

   DREW, J.

_J_1Raffaelous Jechania White was convicted of distribution of a Schedule II Controlled Dangerous Substance. As a fourth-felony offender, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He now appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant was charged by bill of information with distribution of cocaine in violation of La. R.S. 40:967(A)(1). A jury trial set for November 17, 2008, was continued. The next day, in open court along with his attorney, defendant waived his right to jury trial. Bench trial was had the next day. Three witnesses testified: two police officers and the defendant.

Corporal Steve McKenna, of the Shreveport Police Department (“SPD”), testified that on June 12, 2008, the street-level narcotics unit was | .¿conducting a buy-bust operation. The officer was traveling undercover in an unmarked vehicle equipped with a transmitter capturing audio and video.

The salient events occurred in the parking lot of the Alpine Liquor Store. McKenna sat in his vehicle, waiting for another subject who had been given SPD funds to return with some drugs. White approached and told McKenna that the man would not be returning. He entered the car and the two discussed where to buy drugs. White offered to get him some dope.

McKenna drove him to another location, and gave him $40 for some drugs. When White returned with drugs in his left hand, he asked McKenna to drive away. While the car was moving, White gave the dope to the officer, requested to exit the car, and asked for a pinch of the crack. McKenna complied, then signaled that the deal had been completed. The arrest team moved in and made the arrest. McKenna identified White in court as the drug seller. He further identified the rocks that were the subject of the transaction, and also identified the videotape of the proceedings, all offered without objection.

Agent Chad Denham, also with the Shreveport Police Department, testified that he was the case agent and part of the arrest team for the buy-bust operation. He followed Agent McKenna, staying about a half-block away. The transmitter device in McKenna’s vehicle allowed Den-ham to overhear defendant and McKenna discussing a drug transaction. He also | asaw defendant exit the vehicle and approach a residence at the corner of Has-sett and Sumner Streets. His team moved in for the arrest once signaled by McKen-na. Denham found approximately one-tenth of a gram of crack cocaine on defendant’s person. Denham identified defendant in open court.

The defendant essentially confessed on the witness stand, testifying that:

• on the date in question, he went to the liquor store to buy an over-the-counter medicine for a headache;
• as he sat down to take his medicine, McKenna called him over and questioned him about the man that had just left his car;
• the officer asked him where he could get some good dope;
• he entered McKenna’s vehicle and provided directions to a location;
• upon arrival, McKenna gave him $40 and he went to get the drugs;
• when he returned he asked McKenna for a piece of the crack; and
• he is not a drug seller; instead, he is a drug user.

The court found defendant guilty as charged, ordering a presentence investigation report. Defendant’s motion for new trial and a motion for post verdict judgment of acquittal and/or to modify verdict were denied, on December 28, 2008, and January 8, 2009, respectively. Defendant filed pro se motions for a new trial on January 8 and February 5, 2009.

In the meantime, the state filed a habitual offender bill of information, later amending the bill to allege that defendant was a fourth felony offender. On March 16, 2009, the court adjudicated him as such under La. R.S. 15:529.1(A)(l)(b)(ii), and sentenced him to life imprisonment without benefit of probation, parole or suspension of sentence. After a remand, we |4now have the case properly before us.

DISCUSSION

Waiver of Jury Trial

Defendant argues that although the record contains a minute entry which states that he waived his right to a jury trial, the record, nonetheless, lacks any transcripts which reflect that the defendant validly waived his constitutional right to trial by jury. The state responds that he knowingly waived his right to a jury trial on the day scheduled for jury trial, attempting to delay his fate. Our law on jury trial waivers is well settled.

The court minutes on the waiver are more than sufficient. It is incredible that a defendant with the criminal justice experience of this 1 ¡¡person could possibly have not understood his actions.

Admission of Cocaine into Evidence

Defendant argues that the cocaine introduced at trial was not the same substance in play on June 12, 2008. The state responds that the cocaine was introduced without objection. Agent McKenna testified:

• that he received two crack cocaine rocks from defendant for $40.00;
• that defendant asked for and got a piece of the crack cocaine; and
• that the three rocks shown him were the drugs involved in this case.

Since the bag of crack was admitted without objection, defendant cannot now raise this issue. La. C. Cr. P. art. 841; State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156.

Excessive Sentence

Defendant argues that the trial court failed to consider his culpability, this offense’s gravity, and the case’s circumstances. Claiming this crime was not harmful to society and nonviolent, he argues this sentences is excessive.

The state argues that the life sentence imposed is mandated for a fourth felony offender and because of his horrific life of crime. Also, the defendant failed to prove that he falls within the rare case requiring a downward departure from that required by La. R.S. 15:529.1(A)(2)(c)(ii).

16Our law on mandated sentences is well settled.

The mandatory sentence of life imprisonment without the benefit of parole, probation or suspension of sentence imposed upon defendant was not excessive. The trial court explained that based upon the prior finding that defendant was a fourth felony offender, a life sentence is mandated.

Defendant has failed to rebut the presumption that the mandatory sentence is constitutional. He has not demonstrated that he is “exceptional” |7such that the mandated sentence is too harsh. See State v. Robbins, 43,240 (La.App.2d Cir.6/4/08), 986 So.2d 828, 837, writ denied. Defendant asserts that this instant crime is nonviolent. He is an admitted gang member. His past criminal record includes violent crimes. Nonviolence on the instant offense does not, in and of itself, justify a lesser sentence. See State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied. The sentence he received was appropriate.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Transcript from November 18, 2008:
      MR. BROWN: And, Your Honor, the next case is — -let's call the case of White. Raffae-lous White, 269,119. Your Honor, he is present with defense counsel, Mr. Rubenstein before the Court today in 269,119. This is before the Court today for a trial The State is prepared to proceed also.
      MR. RUBENSTEIN: Your Honor, I believe we would ask for a bench trial at this time. THE COURT: Mr. White, your attorney advised me that you desire to be tried by a judge alone; is that correct?
      THE DEFENDANT: Yes, sir.
      THE COURT; Now, do you understand if you give up this right to jury trial then you are bound by either myself or some other judge that will be — that may be sitting in this courtroom to try your case and that person, the judge alone will decide whether or not. you did this?
      THE DEFENDANT: Yes, sir.
      THE COURT: That's what you want to do? THE DEFENDANT: Yes, sir.
      THE COURT: He has waived his right to jury so you can set it for a non-jury week.
      MR. BROWN: Well, Your Honor, let's keep it on track for this week. We might be able to get to it, and bring it back tomorrow for a bench trial.
      THE COURT: All right. We will fix it for November the 19th for possible bench trial.

      . In a buy-bust operation, an undercover narcotics agent poses as a drug user/buyer in areas known for open narcotics sales. There is an arrest team assigned to the buy-bust operation. The team moves in upon a prearranged signal from the undercover officer.

      . Money marked by serial numbers by the Shreveport Police Department which is used to purchase narcotics.

      . On March 18, 2009, defense counsel filed a motion to reconsider sentence. A week later, defendant filed a pro se motion to reconsider sentence. At a hearing on July 28, 2009, the court denied defendant’s motion to deviate from the required sentence, while also confirming that the court previously denied counsel's motion for new trial and motion for post judgment verdict of acquittal. Defendant then appealed.
      An error patent review by this court revealed that the defendant’s pro se motions were not decided by the trial court. We remanded for resolution of the pending motions, while reserving defendant’s appeal rights.
      Pursuant to this court's remand order, the trial court denied all of defendant's pro se motions for new trial, and again sentenced defendant to the mandatory sentence found in La. R.S. 15:529.1 (A)( 1 )(b)(ii), life imprisonment without benefit of probation, parole or suspension of sentence.

      . Neither side has ever filed a formal motion to supplement the record with the transcript of the waiver. We did, and it is sufficient. See Footnote 2, supra.

      . A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. La. C. Cr. P. art. 780. The trial judge may accept a waiver of a jury trial at any time prior to the commencement of the trial. La. C. Cr. P. art. 780(B). It is preferred, but not necessary, for the defendant to waive the right to jury trial personally. Counsel for the defendant may waive the right on the defendant's behalf, provided the defendant's decision to do so was made knowingly and intelligently. State v. Pierre, 2002-2665 (La.3/28/03), 842 So.2d 321. While the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. State v. Campbell, 42,099 (La.App.2d Cir.6/20/07), 960 So.2d 363, citing State v. Frank, 549 So.2d 401 (La.App. 3d Cir.1989). Prior to accepting a jury trial waiver, the trial court is not obligated to conduct a personal colloquy inquiring into the defendant's educational background, literacy, and work history. State v. Campbell, supra, citing State v. Allen, 2005-1622 (La.App. 1st Cir.3/29/06), 934 So.2d 146.

      . Defendant’s many filings show considerable knowledge of the court system.

      . An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841. Failure to object to the introduction of evidence at trial precludes raising the issue on appeal. State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156.

      . "If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.” This provision is now designated as R.S. 15:529.1(A)(4)(b) pursuant to 2010 La. Acts No. 973, § 2, effective July 6, 2010.

      . Where there is a mandatory sentence, there is no need for the trial court to justify, under Article 894.1, a sentence that it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied. Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court's compliance with La. C. Cr. P. art. 894.1 is not required. State v. Thomas, 41,734 (La.App.2d Cir. 1/24/07), 948 So.2d 1151, writ denied. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Johnson, 31,448 (La. App.2d Cir.3/31/99), 747 So.2d 61, writ denied. Mandatory life sentences required by the habitual offender laws are presumptively constitutional and should be accorded great deference by the judiciary. State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672; State v. Wade, 36,295 (La.App.2d Cir. 10/23/02), 832 So.2d 977, writ denied.

      In State v. Dorihey, 623 So.2d 1276 (La. 1993), and State v. Johnson, supra, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. Furthermore, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the main reason for declaring such a sentence excessive. State v. Robbins, 43,240 (La. App.2d Cir.6/4/08), 986 So.2d 828, writ denied.

      . Actually, the PSI reflects an extensive list of crimes, starting with a significant juvenile record. His adult convictions include at least 20 misdemeanor convictions, as well as these seven felonies; Simple robbery (1991); Felony theft (1995); Accessory after the fact to armed robbery (1998); Unauthorized entry of an inhabited dwelling (1999); Simple robbery (2004); Simple escape (2006); and this offense, Distribution of Cocaine (2008). The PSI reports that the defendant, through these two decades of criminality, has never sought treatment for his alleged drug problem.


author: AMY, Judge.

text:
    Audrey THOMPSON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 09-1369.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.
    Rehearing Denied April 13, 2011.

      Michael L. Glass, Alexandria, LA, Wilbert J. Saucier, Jr., Pineville, LA, for Plaintiffs/Appellees, Audrey Thompson, Charles Thompson.
    Russell L. Potter, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Appellant Government Employees Insurance Company.
    Bonita K. Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendant/Appellant, State Farm Mutual Automobile, Insurance Company.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   ON REMAND FROM THE LOUISIANA SUPREME COURT

AMY, Judge.

|, Mrs. Thompson sustained injury in an automobile accident and filed suit in the City Court of Alexandria. The city court awarded general damages of $50,000.00 to Mrs. Thompson and an additional $50,000.00 to Mr. Thompson for loss of consortium and for medical expenses on behalf of the couple’s community. On remand from the Supreme Court of Louisiana, this court considers whether the judgment exceeded the city court’s jurisdictional limit in light of the award to the husband for the expenses on behalf of the community. We vacate in part and affirm in part as amended.

Factual and Procedural Background

As explained in this court’s original opinion in this matter, Audrey Thompson filed this suit in the City Court of Alexandria for damages sustained in an automobile accident. See Thompson v. State Farm Mut. Auto. Ins. Co., 09-1369 (La.App. 3 Cir. 4/7/10), 34 So.3d 1053. Her husband, Charles Thompson, joined in the suit, seeking not only his own damages for loss of consortium, but medical expenses and loss of his wife’s income on behalf of the couple’s community property regime. The plaintiffs proceeded in city court against Chad Harp, the driver at fault in the accident, the insurer of the vehicle he was driving, State Farm Mutual Automobile Insurance Company (State Farm), and their own insurer, Government Employees Insurance Company (GEICO), as their uninsured motorist carrier. GEICO later intervened as Mr. Thompson’s automobile insurer and sought repayment of medical payments made thereunder.

|2In pre-trial proceedings, the trial court found that Mr. Harp was one hundred percent at fault in the accident, that State Farm provided liability coverage for the accident ($100,000.00 per person and $300,000.00 per accident), and that the plaintiffs’ GEICO policy provided both UM coverage for the accident ($10,000.00 per person and $20,000.00 per accident) and medical pay ($5,000.00 per person).

The trial court ultimately determined that Mrs. Thompson’s general damages exceeded $100,000.00, yet limited her general damages to $50,000.00 pursuant to its jurisdictional limit. The trial court also found Mr. Thompson entitled to a $20,000 award for loss of consortium. It further concluded that Mr. Thompson was entitled to recover $8,129.52 in Mrs. Thompson’s past medical expenses insofar as they were incurred by the community and that he, too, could recover future medical expenses insofar as these were a “community obligation.” The trial court valued those future medical expenses in excess of $117,000.00. However, as Mr. Thompson’s one-half of these community damages, along with the other damages awarded to Mr. Thompson, exceeded the court’s $50,000.00 jurisdictional limit, the trial court again recognized that its jurisdictional limit required a downward adjustment of the damages.

The judgment subsequently entered contained two separate $50,000.00 awards. The first, made to Mrs. Thompson, reflected a $50,000.00 general damages award. The other, entered in favor of Mr. Thompson, was composed of a $20,000.00 loss of consortium award made to him individually and, “on behalf of the marital community,” an $8,129.52 award for past medical expenses and a $21,870.48 award of future medical expenses. The judgment made the past medical expenses award subject to GEICO’s claim for reimbursement of $5,000.00. Thus, the judgment ordered that this sum “be paid in preference and priority to any past medical [¡¡expenses” paid to Mr. Thompson and that judgment was accordingly rendered in favor of Mr. Thompson, “on behalf of the marital community,” in the amount of $25,000.00.

With regard to GEICO as a UM provider, the reasons for ruling indicate that the court found “that the jurisdictional limit of the court falls within the liability limits of the policy issued by State Farm and, accordingly, the claim against GEICO is dismissed.” Yet, the judgment was silent as to this dismissal. GEICO thereafter filed a motion for new trial in this regard. At this time, the plaintiffs argued that the UM provider should not be dismissed due to the potential insolvency of State Farm. The trial court denied the motion for new trial.

State Farm appealed the judgment, asserting that the city court exceeded its jurisdictional limit insofar as it awarded the jurisdictional limit to Mrs. Thompson for her general damages claim and further awarded her “special damages” to Mr. Thompson. State Farm also contested the quantum of Mr. Thompson’s loss of consortium claim and, later, filed an exception of lack of subject matter jurisdiction. On review, this court granted the exception of lack of subject matter jurisdiction, vacated the judgment, and remanded with instructions. See Thompson, 34 So.3d 1053.

The Supreme Court of Louisiana subsequently granted GEICO’s application for writ of certiorari and/or review and reversed this court’s decision due to a finding of error in the determination that the city court lacked jurisdiction to retain the case. Thompson v. State Farm Mut. Auto. Ins. Co., 10-1244 (La.11/19/10), 50 So.3d 1271. Accordingly, the supreme court remanded the matter since the calculation of damages as to each plaintiff had not been addressed by this court. It instructed that, “[m]ore particularly, the court of appeal must consider whether the city court erred in | ¿awarding Charles $30,000 for community-incurred medical expenses after awarding Audrey the jurisdictional limit.” Id. at 1274. In a related footnote, it directed the parties and this court:

to consider whether an award to Charles on his claim for medical expenses on behalf of the community also inures to the benefit of Audrey who has already been awarded her jurisdictional limit. Due consideration should also be given to the question of whether Audrey’s cause of action as a result of the car accident can be divided. See also Russell v. Shelter Mutual Ins. Co., 09-1451 (La.App. 3 Cir. 5/5/10), 38 So.3d 561, writs denied, 10 — 13[00] (La.9/24/10), 45 So.3d 1075.

Id.

In State Farm’s brief on remand, it assigns the following as error:

Assignment of Error Number One: The city court erred when it awarded Charles Thompson $30,000.00 on his claim on behalf of the community for medical expenses because the city court exceeded its jurisdictional limits and improperly divided Audrey Thompson’s cause of action for general and special damages. The award to Charles Thompson on behalf of the community should be reversed and set aside and the award to Audrey Thompson should be modified to include all claims for general and special damages, subject to the jurisdictional limits of the city court and the award to GEICO.
Assignment of Error Number Two: The city court erred in awarding Charles Thompson $20,000.00 for loss of consortium.

GEICO also filed a remand brief, again asserting error in the trial court’s failure to dismiss it in its capacity as the UM liability provider.

Discussion

Jurisdictional Limit

The City Court of Alexandria’s jurisdictional limit is established by La.Code Civ.P. art. 4843(H), which provides that: “In the City Court of Alexandria ..., the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed the amount provided in Article 1732(1) for purposes of demanding a jury trial.” Louisiana Code of Civil Procedure Article 1732(1) states that a trial by jury is unavailable in “[a] suit where |athe amount of no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.” Accordingly, the City Court of Alexandria’s jurisdictional limit is fifty thousand dollars.

Medical Expenses

The central focus on remand is State Farm’s contention that the trial court exceeded its jurisdictional limit by awarding medical expenses to Mr. Thompson, on behalf of the community. State Farm argues that, because the medical expenses were or would be incurred by Mrs. Thompson, the award to Mr. Thompson is impermissibly splitting Mrs. Thompson’s cause of action.

However, the plaintiffs contend, and the trial court concluded, that either spouse was entitled to pursue this claim pursuant to La.Code Civ.P. art. 686, which provides that:

Either spouse is the proper plaintiff, during the existence of the marital community, to sue to enforce a community right; however, if one spouse is the managing spouse with respect to the community right sought to be enforced, then that spouse is the proper plaintiff to bring an action to enforce the right.
When doubt exists whether the right sought to be enforced is a community right or is the separate right of the plaintiff spouse, that spouse may sue in the alternative to enforce the right.
When only one spouse sues to enforce a community right, the other spouse is a necessary party. Where the failure to join the other spouse may result in an injustice to that spouse, the trial court may order the joinder of that spouse on its own motion.

We point out that, undoubtedly, La.Code Civ.P. art. 686 grants a spouse the right to sue to enforce a community right. However, it also provides that when one spouse exercises this community right, “the other spouse is a necessary party.” This clause undermines the contention that Mr. Thompson could receive a separate award for Mrs. Thompson’s medical expenses claim, even if he pursued this alleged | (¡community right on behalf of the community. On this point, we find no difference between the awards for past and future medical expenses.

The plaintiffs additionally point to La. Civ.Code art. 2344, which instructs that:

Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.
Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse.

(Emphasis added.) This merely establishes that the special damages sought by Mrs. Thompson may be community property. It does not alter the plaintiffs’ responsibility of pursuing that property right in a court of sufficient jurisdiction in order to avail themselves of the full amount sought if desired. This seems clear when viewed in light of La.Code Civ.P. art. 686, which specifically requires that if one spouse seeks enforcement of a community right, the other spouse, in this instance Mrs. Thompson, would be considered a necessary party. Although Mrs. Thompson was a party to the petition, she was not, ultimately, a party to the special damages claim insofar as her jurisdictional limit was met by the $50,000.00 award to her. Furthermore, and as the judgment is styled, the city court awarded medical expenses to Mr. Thompson on behalf of the community. Pursuant to La.Civ.Code art. 2344, however, an award to |7the non-injured spouse for the special damages would be part of the couple’s community.

Further, in Russell, 38 So.3d 561, cited by the supreme court in its directions to this court, a panel of this court considered a factual background similar to the present one and concluded that the award of medical expenses stemming from a spouse’s injuries could not be “split” from the injured spouse’s damages in circumvention of the city court’s jurisdictional limit. As here, the plaintiffs in that case asserted that La. Code Civ.P. art. 686 permitted the non-injured spouse to recover, on behalf of the community, the injured spouse’s medical expenses when the injured spouse was awarded the jurisdictional limit in general damages. The Russell panel determined that, by shaping its award as such, the trial court “split or divided Mr. Russell’s cause of action (comprising both general and special damages) between Mr. and Mrs. Russellf.]” Id. at 565.

The Russell panel found similarity between the case before it and the situation presented in Hill v. Coregis Insurance Co., 40,199 (La.App. 2 Cir. 9/21/05), 911 So.2d 939, wherein the second circuit concluded that an injured’s spouse’s claims for general and special damages could not be considered as distinct causes of action. See Russell, 38 So.3d 561. Instead, the second circuit concluded that such an interpretation would allow the plaintiff to “avoid [a] jury trial and then exceed the limitation under the guise that different elements of her cause of action, such as medical expenses, physical pain, mental anguish, disfigurement, loss of enjoyment of life, humiliation, and others, each represented a separate cause of action.” Id. at 565, quoting Hill, 911 So.2d at 944. Instead, the second circuit concluded, the | ¡/‘parts” represented a single cause of action and remanded the matter for a jury trial. Id.

Further, the Russell panel rejected the plaintiffs’ argument that Hill was distinguishable since the defendants, in Russell, did not seek to transfer the matter to district court. Id. Instead, the panel observed that the record included a request by the Russell defendants to transfer the matter to district court due to the co-plaintiffs’ allegations in an amending petition that their cause of action exceeded the city court’s jurisdictional limit. We do not find this matter distinguishable from Hill on the basis asserted by the plaintiffs.

Instead, and as it was found to be in Russell, 38 So.3d 561, the holding of Hill is applicable. Notably, “[i]t is the cause of action, not the nature of the claim or claims made, that determines the jurisdictional limit.” Id. at 565. As it is a jurisdictional issue, a parties’ request for a transfer to district court for purposes of a jury trial is of no importance. In the present matter, that cause of action, as a whole, rested with Mrs. Thompson, not Mr. Thompson. To find that it was a cause of action that Mr. Thompson could enforce separately, on the facts now before us, would circumvent State Farm’s right to a jury trial, whether or not requested, but would also, certainly, allow circumvention of the jurisdiction of the city court. Shaping a claim or judgment in such a fashion is inappropriate. Instead, “[t]he law does not allow the splintering of a cause of action in direct circumvention of the jurisdictional limit of a court.” Id. at 565.

Accordingly, as the general and special damages at issue by this assignment all stemmed from Mrs. Thompson’s cause of action, we vacate that portion of the judgment awarding past and future medical expenses to Mr. Thompson, on behalf of the community.

IsAdditionally, the judgment requires amendment as it provided that, with regard to GEICO’s claim for reimbursement of medical expenses paid, the $5,000.00 due to be reimbursed, “be reduced from the total past medical expense award made to Charles Thompson herein, and said sum to be paid in preference and priority to any past medical expenses paid to the said Charles Thompson.” Instead of reducing the award made to Mr. Thompson, Mrs. Thompson’s recovery should have been reduced insofar as the cause of action was, of course, hers. Although the trial court reduced Mrs. Thompson’s claim to permit recovery of only a portion of her general damages due to the jurisdictional limit, it clearly found that she incurred past medical expenses as well. We do not find that a choice to style the amount awarded under the jurisdictional limit as general damages, instead of attributing at least a portion of the award to the special damages award, permits avoidance of GEICO’s reimbursement claim. Thus, we further amend the judgment to indicate that the $5,000.00 awarded to GEICO be made payable from the $50,000.00 awarded to Mrs. Thompson, thus ultimately reducing Mrs. Thompson’s award from $50,000.00 to $45,000.00.

Loss of Consortium

The underlying judgment also includes a loss of consortium award to Mr. Thompson, individually, in the amount of $20,000.00. This type of claim is separate and apart from the spouse’s claim. See McGee v. A C And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. On appeal, State Farm asserts that the $20,000.00 award to Mr. Thompson was an abuse of discretion. As this assignment was not originally considered, we review this assignment on remand.

110A loss of consortium claim includes the elements of society, sex, service, and support. Augustine v. SAFECO Nat. Ins. Co., 08-1515 (La.App. 3 Cir. 6/10/09), 18 So.3d 761. Mrs. Thompson testified at trial that she and her husband were “extremely close” prior to her injury. She described him as her “soul mate[.]” Yet, after the accident, their sexual relationship “changed drastically!.]” Mr. Thompson explained that their sexual relationship was “virtually nonexistent!.]” In other regards, Mr. Thompson explained that he now performs the housekeeping tasks and, although Mrs. Thompson continues to do the majority of the cooking, he must now assist her. While the award is admittedly in the upper range of a permissible loss of consortium award in this type of case, we find that, in light of the above testimony, it was within the trial court’s discretion.

This assignment lacks merit.

Dismissal

GEICO also appealed in this case and asserted that the trial court erred in failing to dismiss it from the judgment insofar as the award made to the plaintiffs was clearly within the State Farm policy limits. It contends that the plaintiffs’ UM policy was, therefore, not implicated. The trial court rejected this claim by GEICO at the time GEICO filed a motion for new trial on this basis. In opposition to the motion for new trial, the plaintiffs argued that GEICO’s presence was required in the event that State Farm became insolvent before the judgment was satisfied.

However, the plaintiffs’ argument is clearly speculative. Certainly there is no evidence in this record to indicate even the potential of State Farm’s insolvency. Nor is there any evidence, at all, indicating that the State Farm policy limits are inadequate to satisfy this judgment. Accordingly, we dismiss GEICO as a defendant from this matter without prejudice.

lnDECREE

For the foregoing reasons, the City Court of Alexandria’s judgment is vacated insofar as it awarded Charles Thompson special damages on behalf of the community property regime. The judgment is further amended to reflect that the reimbursement claim of Government Employees Insurance Company is payable from the award made to Audrey Thompson. That pertinent portion of the judgment is recast as follows:

As to GOVERNMENT EMPLOYEES INSURANCE COMPANY’S (GEICO’S) claim for reimbursement of medical expenses paid, the Court finds the Intervenor entitled to FIVE THOUSAND ($5,000.00) DOLLARS, said amount to be reduced from the award made to Audrey Thompson herein, and said sum to be paid in preference and priority to any damages paid to Audrey Thompson.

Finally, the judgment is amended to reflect the dismissal of this claim, without prejudice, against GEICO, as a defendant. In all other regards, the judgment is affirmed. All costs of this appeal are assigned to the plaintiffs, Audrey and Charles Thompson.

VACATED IN PART AND AFFIRMED IN PART AS AMENDED.

      . The pleadings in this case, as well as the judgment, refer to the defendant’s name as "Haipe”. In this opinion, we utilize the spelling adopted by the supreme court in its opinion in this case, "Harp”. Mr. Harp's deposition, included in the record, reflects the latter spelling of his name. However, the recasting of the judgment, included in the decree to this opinion, maintains the spelling "Harpe" in order to be consistent with the remainder of the judgment rendered by the trial court.

      . Otherwise, Louisiana Code of Civil Procedure Article 5 provides that when a plaintiff reduces his or her claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered in that regard, the plaintiff "remits the portion of his [or her] claim for which he [or she] did not pray for judgment, and is precluded thereafter from demanding it judicially.”

      . Clearly this could be a problem at the time of any subsequent divorce or termination of the community. Such an award could subject the fifty thousand dollar jurisdictional limit of the city court to manipulation. While an injured spouse could be awarded the jurisdictional limit for general damages, as their separate property, when additional special damages, as in the case before us, have been awarded to the non-injured spouse, on behalf of the community, absurd results follow. By way of illustration, in the event of a subsequent termination or partition of a community property regime, the community award to the non-injured spouse, would, arguably return, in part, to the injured spouse. This would permit maneuvering around the jurisdictional limit available to the injured spouse. In order to alleviate such a potentiality, the portion awarded to the non-injured spouse would have to have been recognized as his separate property. But see La.Civ.Code art. 2344.

      . In the petition instituting this matter, the plaintiffs asserted that if the court determined that Mr. Thompson could not recover Mrs. Thompson's medical expenses and loss of income on behalf of the community, then: "in that event and only in that event, as an alternative plea AUDREY THOMPSON brings this action to recover on behalf of the marital community damages [sic] the following: hospital, medical, pharmaceutical, chiropractic, physical therapy and other medi[c]ally related expenses and the community's loss of the wife's income.”