text:
    ROBA, INC. v. Mona Lackmann COURTNEY and James B. Courtney, II.
    No. 2009 CA 0509.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 10, 2010.

      Peggy M.H. Robinson, Baton Rouge, LA, for Plaintiff-Appellant, Roba, Inc.
    Patrick K. Reso, Frank J. Divittorio, Seale & Ross, P.L.C., Hammond, LA, for Defendants-Appellees, William J. Hall and Lori B. Hall.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

|2The plaintiff appeals a judgment sustaining an exception raising the objection of prescription in favor of two defendants and denying its motion for a preliminary injunction relative to an alleged servitude of passage.

Factual Background and Procedural History

In 1988, Roba, Inc. (Roba) purchased a 12-acre tract of land from James Courtney, II and his wife. To the east of the 12-acre tract of land, and adjacent thereto, was a 49.9678-acre tract that had been purchased by Robert L. Lucien from the Courtneys in 1987 that fronted on Highway 1047. In connection with the sale of the 12-acre tract, a document entitled “Agreement for Right of Way” (the 1988 agreement) was executed on an unspecified day in May 1988 by the Courtneys only, even though Roba was a named party to the document. In that document, it was declared that:

they will establish the Right of Way from the “lake” property to Louisiana Highway 1047 on the North side of the Roba, Inc. property not to be included in the Roba, Inc. property. The Courtneys agree that the Right of Way will be created on the property they own on the North side of the Roba, Inc. property [the legal description of which was provided] ....

This document was recorded on the same day as the deed, May 18, 1988, in conveyance book number 176, page 674, instrument number 062686, in the official records of the parish of St. Helena.

In 1992, Roba purchased a 51.3449-acre tract of land from the Courtneys. That tract included a lake and borders Roba’s 12-acre tract to the west and the south. The 1992 cash deed does not refer to any right-of-way associated with the sale. Neither the 1988 nor the 1992 deeds reflected that those tracts were burdened by a servitude.

On April 30, 1998, Roba filed suit against the Courtneys for specific performance, seeking to enforce the 1988 agreement and its provision allegedly requiring the | ¡¡establishment of a right-of-way. On November 2, 1998, Roba supplemented and amended its petition to add as defendants Mitchell R. Radecker and his wife, who had purchased from the Courtneys on July 28, 1998, a 12.87-acre tract bordering Roba’s property to the north that was allegedly subject to the proposed east/west right-of-way to be established pursuant to the 1988 agreement. Roba alleged that a plat of survey attached to the Radeckers’ deed disclosed that a portion of the tract was burdened with a right-of-way of an undetermined size along the south property line in favor of Roba and Mr. Lucien. A default judgment was confirmed on June 2,1999, against the Radeckers, recognizing a 30-foot-wide right-of-way along the southern boundary line of their 12.87-acre tract as shown in a June 2, 1998 survey by Robert G. Barrilleaux & Associates, Inc. registered in conveyance book 222, page 177 in the official records of St. Helena Parish.

Pursuant to an August 24, 2001 deed, Tony L. Noto, Jr. and his wife bought two tracts of land from Mr. Courtney. Those tracts bordered the northern side of Mr. Lucien’s property. In the 2001 deed, the Notos acknowledged that this property was burdened by a servitude described in an agreement recorded in conveyance book 170, page 638 of the official records of St. Helena Parish.

On December 22, 2004, the Radeckers sold their 12.87-acre tract to William J. and Lori B. Hall, who were the owners of an adjacent 10.5-acre tract to the north. In connection with the 2004 sale, a title examination was performed by the same attorney who rendered a title opinion in connection with the 1992 sale to Roba. The 2004 opinion indicated that the Radeckers’ title was subject, in pertinent part, to the following:

3) Right of way granted to owners of “Lake Property” from Louisiana State Highway to “Lake” as reserved in that sale and partition agreement between [Mr. Courtney, his mother, and his siblings] and duly recorded at Conveyance Book 87, Page 88 in the records of the St. Helena Parish Clerk of Court. February 13, 1974
|44) Right of way granted by [the Court-neys] across property to North of ROBA, Inc. and in favor of ROBA, Inc. from “Lake Property” to Louisiana Highway 1047 dated May, 1988 and duly recorded at Conveyance Book 176, Page 674.
5) Reaffirmation of right of way for owners of “Lake Property” as contained in that judgment of possession for the Succession of Virgie May Durnin Courtney and being duly recorded at Conveyance Book 195, Page 325 in the records of the St. Helena Parish Clerk of Court. January 23, 1992
6) Reaffirmation of right of way for owners of “Lake Property” as contained in an act of sale from [Mr. Courtney’s sister] to [Mr. Courtney] dated January 22, 1992 and recorded at Conveyance Book 195, page 341 in the records of the St. Helena Parish Clerk of court. February 25, 1992
7) Reaffirmation of right of way for owners of “Lake Property” as contained in that deed from [Mr. Courtney’s brother] to [Mr. Courtney] dated January 22, 1992 and recorded at Conveyance Book 195, page 343 in the records of the ,St. Helena Parish Clerk of court. February 25, 1992
10) Apparent but unrecorded rights of way for passage, utilities and drainage.
11) The map and survey of the 12.87 acre tract of property belonging to [the Radeckers] and recorded at Conveyance Book 222, Page 177 indicates that there is a shed located on the hereinabove described tract of property that appears to be located within the right of way apparently established by ROBA, Inc. as set forth hereinabove.,
12) There is noted on the map and survey of the 12.87 acre tract of property belonging to [the Radeckers] and recorded at Conveyance Book 222, Page 177 a private gravel road that may indicate a servitude of passage to and from the property. (Lake Property)

On February 22, 2006, Roba filed a second supplemental and amending petition, adding the Notos as defendants. In that supplemental and amending petition, Roba asserted for the first time a claim for damages and attorney fees against all of the defendants. The Courtneys filed an exception raising the objection of prescription as to Roba’s claims for damages and attorney fees.

On January 10, 2007, Roba supplemented and amended its petition a third time to add the Halls as defendants and to assert a claim against the Courtneys, the Radeck-ers, the Notos, and the Halls seeking to enforce its alleged right-of-use/predial | -,servitude dating back to 1974, which provided access to Idle Acres Lane. Roba urged that a north/south right-of-way to Idle Acres Lane allegedly provided ingress and egress to the lake property from Highway 1047. Roba alleged that it had used that servitude up to the property line only and that the placement of a fence had denied it access to the rest of the servitude. Roba averred that although the north/south right-of-way was not reflected in either of its deeds, the right-of-way was mentioned in the 2004 conveyance from the Radeckers to the Halls.

In their answers, the Notos and Radeck-ers urged that Roba’s claims for damages and attorney fees had prescribed. The Radeckers also questioned whether Roba had a cause of action against them since the property in question had been sold to the Halls. The Halls filed an exception urging the objection of no cause or no right of action based on the extinguishment of the servitude due to common ownership by Mr. Courtney of all of the tracts of land which formerly belonged to his parents. In their supporting memorandum, the Halls stated that following the death of Mr. Courtney’s father, the estate was partitioned and a right-of-way was given to family members for purposes of accessing the lake. Based on Mr. Courtney’s subsequent ownership of all the property, the Halls urged that the right-of-way to the lake was extinguished by confusion. As to the proposed right-of-way running from east to west, the Halls averred that Roba had a closer, more direct, and less inconvenient path to Highway 1047 via Roba’s and Mr. Lucien’s property. The Halls later filed an exception urging Roba’s failure to join a necessary party, the Lucien Family Trust, needed for just adjudication of the matter.

With respect to the Courtneys’ exception of prescription regarding the second supplemental and amending petition, following a hearing, the trial court sustained the Courtneys’ exception and dismissed Roba’s claim against them for damages and attorney fees. Additionally, after finding that Roba had the right as a landowner to seek a servitude of access and that Roba had stated a cause of action, the trial court overruled the exceptions filed by the Halls. Roba filed a motion for new trial with [firespect to the prescription issue, which was denied.

On August 31, 2007, Roba sought the issuance of a preliminary injunction to prevent the Halls from physically blocking the 1974 predial servitude that allegedly provided Roba with access to the public road. The Halls then filed an exception raising the objection of prescription relative to the claims asserted against them in Roba’s third supplemental and amending petition, contending that the alleged 1974 servitude providing access to Idle Acres Lane was extinguished by liberative prescription for nonuse for a period of 10 years or more. After a hearing on the issue of nonuse for a period of more than 10 years, Roba’s motion for a preliminary injunction was denied, the Halls’ exception raising the objection of prescription regarding the third supplemental and amending petition was sustained, and Roba’s claims against the Halls in that petition were dismissed. Roba appealed, contending the trial court erred in 17sustaining the Halls’ exception and denying its motion for a preliminary injunction.

Discussion

Voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner. LSA-C.C. art. 654. Conventional servitudes, accordingly, may arise from bilateral or unilateral juridical acts. See LSA-C.C. art. 654, Revision Comments — 1977, comment (b).

A predial servitude is a charge on a servient estate for the benefit of a dominant estate. LSA-C.C. art. 646. The two estates must belong to different owners. Id. There must be a benefit to the dominant estate. LSA-C.C. art. 647. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate. Id. The owner of the servient estate is not required to do anything. LSA-C.C. art. 651. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. Id.

Predial servitudes may be established by an owner on his estate or acquired for its benefit. The use and extent of such servitudes are regulated by the title by which they are created. LSA-C.C. art. 697. In the absence of such regulation, they are governed by the rules set forth in LSA-C.C. arts. 698 through 774. See LSA-C.C. art. 697. Predial servitudes are established on, or for the benefit of, distinct corporeal immovables. LSA-C.C. art. 698. A right of passage is an example of a predial servitude. See LSA-C.C. art. 699. The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate. LSA-C.C. art. 705. Affirmative servitudes are |sthose that give the right to the owner of the dominant estate to do a certain thing on the servient estate. Such are the servi-tudes of right of way, drain, and support. LSA-C.C. art. 706.

The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply. LSA-C.C. art. 708. Predial servitudes are established by all acts by which immovables may be transferred. LSA-C.C. art. 722. A predial servitude may be established on a certain part of an estate, if that part is sufficiently described. LSA-C.C. art. 727. Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. LSA-C.C. art. 730.

A predial servitude, such as a servitude of passage, is preserved by the use made of it by anyone, even a stranger, so long as it is used as appertaining to the dominant estate. LSA-C.C. art. 757; Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 01-2812 (La.App. 1st Cir.12/30/02), 839 So.2d 82, 94, writ denied, 03-0306 (La.4/4/03), 840 So.2d 1219. The use of the language “so long as it is used as appertaining to the dominant estate” has been interpreted by this court as requiring that someone must use the servitude for the purpose of going onto the servient estate for some legitimate purpose, either to see the owner or for something connected with the use of the servient estate. See Latour v. Francis, 417 So.2d 485, 489 (La.App. 1st Cir.), writ denied, 420 So.2d 983 (La.1982).

If a predial servitude is not used for ten years, it is extinguished. LSA-C.C. art. 753; Church v. Bell, 00-0286 (La.App. 1st Cir.3/28/01), 790 So.2d 82, 84 n. 3, writ denied, 01-1214 (La.6/15/01), 793 So.2d 1247. Prescription of nonuse for an affirmative servitude is measured from the date of its last use. LSA-C.C. art. 754; Palace Properties, L.L.C., 839 So.2d at 94. When the prescription of nonuse is pled, the owner of the dominant estate has the burden of proving that someone has made use of the servitude in the manner contemplated by the grant of the servitude and as appertaining to the dominant estate during the period of time required for the accrual of prescription, such that no consecutive ten-year period of nonuse occurred. See LSA-fcC.C. art. 764; Palace Properties, L.L.C., 839 So.2d at 94. A partial use of a servitude constitutes use of the whole. LSA-C.C. art. 759. Therefore, the use of a part of the area burdened with a predial servitude interrupts the prescription of nonuse as to the entire area. A.N. Yian-nopoulos, Predial Servitudes § 167 at 455, in 4 Louisiana Civil Law Treatise (3rd ed.2004).

After reviewing this law and considering applicable jurisprudence, the trial court stated:

And I find that the cause of action alleged in the plaintiffs Third Supplemental and Amending Petition based on the 1974 partition has prescribed. The servitude elapsed for a period of non-use for over ten years. The partition with the servitude between the family property, the Courtney property was in 1974. And then in 1988 and 1992 I think the Lucien and Roba properties were bought.And then in 2006 Mr. Lucien on behalf of Roba found out about the servitude, the long continuous servitude from the road to the lake; which the continuous servitude had never been used. I heard testimony that Mr. Hall used it on his side and maybe Radeckers used it on their side to get to the catch pen fence. And then Mr. Lucien on his own behalf, on behalf of Roba used it on his side to get to the catch pen fence, but that it had never been used for the purpose it was set up for from the lake to the road. I don’t find the plaintiffs carried their burden of proof based on these reasons.

Notably, the record in this case is devoid of the acts, deeds, and/or judgment relied on by Roba to show the creation and continued existence of the 1974 predial servitude. Instead, Roba simply relied on statements made by the attorney in the 2004 title opinion which referenced many of those documents. Title opinions are not evidence of title. See Norton v. Thorne, 446 So.2d 972, 974 (La.App. 3rd Cir.1984). Accordingly, we recognize that the documents in the record are not evi dence of title to the servitude of passage in question.

Furthermore, from the record, there is no way to tell when the property was commonly owned by ■ the Courtneys. Therefore, it is impossible to determine whether the 1974 servitude was extinguished by confusion. See LSA-C.C. art. 765.

Nonetheless, the 1974 servitude that Roba seeks to enforce was seemingly created by title, which would have regulated the use and extent of such servitude. In the memorandum in support of their exception urging the objection of no cause or no right of action, the Halls admitted that following the death of Mr. Courtney’s father, the estate was partitioned and a right-of-way was given to family members for purposes of | inaccessing the lake. This allegedly occurred in 1974.

As to the 1974 servitude of passage, the Halls have pied the prescription of nonuse; therefore, Roba as the owner of the alleged dominant estate had the burden of proving that someone has made use of the servitude in the manner contemplated by the grant of the servitude and as appertaining to the dominant estate during the period of time required for the accrual of prescription, such that no consecutive ten-year period of nonuse occurred.

Mr. Courtney’s nephew, Ken Courtney, Jr. (Ken), testified that the Courtney property was partitioned in 1974. Ken recalled a path from the lake to what is now referred to as Idle Acres Lane. According to Ken, the path went through the east side of the catch pen located partially on property now owned by the Halls and Roba. He recalled having to go through a catch pen to get to the lake. Ken testified that use of this path from Idle Acres Lane to the lake ceased when Mr. Courtney built the house on the tract of land that was sold to Mr. Lucien in 1987. While building the house, Mr. Courtney built a barn on the top of the hill just before the lake and developed a lane from Highway 1047 due west to the lake. According to Mr. Hall and Ken, after the creation of this path, the Courtneys began using it to access the lake. Ken explained that the grass was overgrown around the lake up to the Halls’ property line and there is no visible sign of a road on Roba’s property.

According to Mr. Lucien, when Roba bought the 12-acre tract in 1988, there was no fence dividing it from the 12.87-acre tract now owned by the Halls. The fence was installed by Mr. Courtney with Mr. Lucien’s help shortly after the 1988 sale. Ken explained that a barbed-wire fence was placed through the catch pen to mark the property line of Roba’s 12-acre tract. Mr. Hall explained that a fence runs from Highway 1047 along Mr. Lucien’s property, then Roba’s property, then Roba’s lake property forming one boundary with neighboring tracts to the north. As to the fence bordering Mr. Lucien’s and Roba’s property, Mr. Hall testified that since May 1988 there have been no gates that would allow vehicular access from north to south.

In From the Halls’ house to Idle Acres Lane, there is a paved and gravel road. From the Halls’ house to the catch pen, there is an indentation in the grass indicating use up to the gravel road. Mr. Hall explained that the indentation in grass toward the catch pen occurred as a result of him driving across his pasture to reach the barn in which he stored tin from leftover jobs.

According to Mr. Lucien, there was a gate next to the fence that entered the catch pen that has been used by the Halls, Radeckers, and Notos to reach Roba’s property to retrieve loose cattle. Mr. Lucien had travelled on the Halls’ property to and from Idle Acres Lane, with their permission, to deliver cattle to Roba’s property but not as a means of accessing the lake on Roba’s 51.3449-acre tract.

Mr. Lucien admitted that the Courtneys did not promise a servitude to Roba for access to Idle Acres Lane. For proof of the 1974 servitude, Roba relied on a 2004 title opinion rendered in connection with the sale to the Halls that disclosed the possible existence of a servitude that had been reestablished several times. According to Mr. Hall, Roba has never demanded removal of the fence in the catch.pen for purpose of accessing a servitude to Idle Acres Lane. It was not until 2006 that Mr. Lucien learned of the possibility of passing near the Halls’ home to get to Idle Acres Lane as a means of accessing Highway 1047. Accordingly, Mr. Lucien explained that he was deceived into not demanding removal of the fence and use of that servitude.

Mr. Lucien explained that he has not stopped anyone from using the servitude on Roba’s property that goes to the lake. According to Mr. Lucien, Mr. Radecker and his son used the 1974 right-of-way when they went fishing in the lake. Mr. Lucien, his friends, and fishermen accessed the lake by traversing Mr. Lucien’s property and then Roba’s property.

As to Mr. Lucien’s use of Idle Acres Lane and the Halls’ property, Mr. Hall stated that Mr. Lucien came on his property once with permission to retrieve some of his cattle from the front side of the catch pen. At that time, Mr. Lucien did not cross onto Roba’s | ^property. He explained that the second time Mr. Lucien came onto his property was to retrieve a sick cow that was being housed in Mr. Hall’s barn. Mr. Lucien came with a flatbed trailer to get the cow. According to Mr. Hall, Mr. Lucien has never come through the catch pen onto the Halls’ property.

In addition to the 12.87-acre tract that they sold to the Halls, the Radeckers owned and resided on a tract of land that bordered the western side of the Halls’ property and the northern side of Roba’s 51.3449-acre tract. Mr. Hall explained that the fence on the Radeckers’ property line had a gate that was used by the Radeckers to access Roba’s property for fishing, thus it was unnecessary for the Radeckers to make use of the 1974 servitude which traversed the 12.87-acre tract that was transferred to the Halls to access the lake.

After considering this evidence, the trial court found that Roba failed in its burden of proof. Based on our review of the record, we are unable to find that the trial court manifestly erred in finding that Roba failed to prove that someone had made use of the 1974 servitude in the manner contemplated by the creation of the servitude and as appertaining to the dominant estate during the period of time required for the accrual of prescription. Under the facts of this case, the possible use of a portion of the servitude was not sufficient to interrupt the prescription of nonuse, as that use was not shown to be within the extent and manner of the contemplated use, and such use was not appertaining to the dominant estate. Accordingly, this servitude was extinguished by nonuse for 10 years.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. Jurisich v. Jenkins, 97-1870 (La.App. 1st Cir.9/25/98), 722 So.2d 1008, 1011, reversed on other grounds, 99-0076 (La.10/19/99), 749 So.2d 597. Roba cannot do this because any right that it may have had to traverse the area in question has prescribed.

Decree

For the foregoing reasons, the judgment of the trial court denying Roba’s motion for a preliminary injunction is affirmed. Having converted the appeal of the November 16, 2007 interlocutory ruling on the Halls’ exception raising the objection of prescription to an application for supervisory writs, to the extent that the trial court dismissed Roba’s claims against the Halls relative to the 1974 servitude, we deny Roba’s writ application. However, to the extent that the dismissal relates to claims against the Halls relative to the 1988 agreement that were not considered by the trial court in connection with the Halls’ exception, we grant Roba’s writ application, and the interlocutory ruling is reversed. This matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to Roba, Inc.

JUDGMENT AFFIRMED IN PART; APPEAL OF NOVEMBER 16, 2007 INTERLOCUTORY RULING CONVERTED TO APPLICATION FOR SUPERVISORY WRITS; WRIT DENIED IN PART; WRIT GRANTED IN PART AND RULING REVERSED IN PART; REMANDED.

      . That deed was recorded on May 18, 1988, in conveyance book number 176, page 670, instrument number 062683, in the official records of the parish of St. Helena.

      . Mr. Lucien was the vice president and secretary of Roba at that time.

      . In connection with the 1987 deed, an agreement similar to the 1988 agreement had been executed by the Courtneys only, even though Mr. Lucien was a named party to the document.

      . A title examination performed by an attorney in connection with Roba’s 1992 purchase revealed that "[t]here is no right of way from the above said property to a public road.”

      . That survey was not offered into evidence.

      . That act reflects that the Courtneys were divorced by this time.

      . The Halls had purchased that tract on May 29, 1996. A May 18, 1998 survey map of that tract reflects a barbed-wire fence surrounding most of the 10.5-acre tract. It also disclosed the existence of a 12-foot gravel driveway extending south from “Idle Lane” (a 14-foot public gravel road) to the south property line near the Hall’s home.

      . In December 1997, Mr. Luden transferred his property to the Luden Family Trust.

      . Roba has separately appealed the judgment dismissing its claims against the Courtneys for damages and attorney fees on the basis of prescription. See Roba, Inc. v. Courtney, 09-0508 (La.App. 1st Cir.8/10/10), 2010 WL 3196194, 47 So.3d 500.

      .The Notos joined in the Halls' exception.

      . Notably, the claims against the Halls in the third supplemental and amending petition relate to more than just the 1974 servitude.

      . An appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction. LSA-C.C.P. art. 3612(C). An appeal from such a judgment must be taken within 15 days frpm the date of the order of judgment. LSA-C.C.P. art. 3612(C). This 15-day delay does not commence to run until the judgment is signed. See Metro Riverboat Assoc., Inc. v. Hilton Hotels Corp., 99-2271 (La.App. 4th Cir. 11/10/99), 746 So.2d 809, 811; Marlbrough v. Zar, 98-38 (La.App. 5th Cir.5/27/98), 713 So.2d 1163, 1164. Generally, however, the mailing of notice of judgment, not the signing of judgment itself, acts as the triggering event for commencing the delay for filing both suspensive and devolutive appeals. Fraternal Order of Police v. City of New Orleans, 02-1801 (La. 11/8/02), 831 So.2d 897, 900; LSA-C.C.P. art. 2087(A). In this case, the judgment denying Roba’s request for a preliminary injunction was signed on January 25, 2008, and notice of judgment was mailed on February 7, 2008. Accordingly, the motion for appeal relative to the denial of Roba's motion for a preliminary injunction filed on February 22, 2008, was timely.
      Relative to the Halls’ exception, since the trial court rendered a partial judgment as to less than all of Roba's claims against the Halls, the judgment did not constitute a final judgment, and it was not designated as a final judgment by the trial court. See LSA-C.C.P. art. 1915(B). An interlocutory judgment is appealable only when expressly provided by law. LSA-C.C.P. art. 2083(C). The interlocutory judgment relating to the peremptory exception filed in this case is not appealable. Since Roba's appeal of the denial of its motion for preliminary injunction is a restricted appeal, Roba had no right to include an appeal of the interlocutory judgment on the exception urging the objection of prescription. As a result, this court has no appellate jurisdiction to consider an appeal from the portion of the judgment related to the Halls’ exception.
      Nonetheless, this court has discretion to convert an appeal to an application for supervisory writs. See Stelluto v. Stelluto, 05-0074 (La.6/29/05), 914 So.2d 34, 39. In the present case, the trial court rendered a decision on the Halls' exception in open court at the November 16, 2007 hearing. Roba filed a motion for devolutive appeal from that ruling on December 12, 2007, within the 30-day delay provided for seeking supervisory writs. See URCA Rule 4-3; LSA-C.C.P. art. 1914. Accordingly, we will convert the appeal of the November 16, 2007 interlocutory ruling relative to the Halls’ exception to an application for supervisory writs, and consider it under our supervisory jurisdiction.

      . Predial servitudes are real rights burdening immovables. The creation of these rights requires the existence of two distinct immov-ables, belonging to different owners. These rights are for the benefit of an immovable, rather than a person. LSA-C.C. art. 646, Revision Comments — 1977, comment (b).

      . The estate burdened with a predial servitude is designated as servient; the estate in whose favor the servitude is established is designated as dominant. LSA-C.C. art. 646, Revision Comments — 1977, comment (d).

      . Mr. Hall stated that Idle Acres Lane ends at his mailbox and that a locked gate was placed at this point to prevent robberies.

      . The attorney who prepared the title opinion testified that, in his title opinion, hé merely reiterated the findings from public records that were provided in an abstract, that is, that a right-of-way was granted to owners of the lake property from the highway to the lake pursuant to a sale and partition agreement that was duly recorded at book 87 page 88, with a notation of February 13, 1974. By his title opinion, the attorney stated that he was not giving opinion as to validity of the right-of-way.

      . This assumes the lake property was the dominant estate and not the servient estate.

      . The 1974 servitude of passage in this case was seemingly established for vehicular ingress and egress to enter the lake. It was not shown that the servitude had been used for that purpose during a period in excess of ten years. See Palgrave v. Gros, 02-249 (La.App. 5th Cir.9/30/02), 829 So.2d 579, 584.

      .In so ruling, we are mindful that doubt as to the extent or manner of exercise of a predial servitude is resolved in favor of the servient estate. See LSA-C.C. art. 730.


source: Caselaw Access Project

author: PEATROSS, J. BROWN, Chief Judge,

license: Public Domain

text:
    Cynthia BRIDGES, Secretary, Louisiana Dept. of Revenue, Plaintiff-Appellant v. HERTZ EQUIPMENT RENTAL CORPORATION, Defendant-Appellee.
    No. 45,647-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Rehearing Denied Sept. 16, 2010.

      Jack Marks Alltmont, Max Nathan, Jr., Peter Stephen Title, Sharon Cormack Mize, Robert F. Mulhearn, Jr., Monica Doss Washington, Shone T. Pierre, David Michael Hansen, Antonio C. Ferachi, Donald Bowman, Miranda Conner, New Orleans, LA, for Appellant.
    Phelps Dunbar, LLP, New Orleans, LA, by Harry Rosenberg, Christopher K. Ral-ston, Stephanie Villagomez, for Appellee.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   PEATROSS, J.

|, This appeal was transferred to this court from the fifth circuit court of appeal by order of the Louisiana Supreme Court due to a conflict between an attorney and the fifth circuit which required the recusal of that entire court.

In this suit filed by the Louisiana Department of Revenue (“LDR”) to collect sales and use taxes owed by Defendant, Hertz Equipment Rental Corporation (“HERC”), a wholly owned subsidiary of the Hertz Corporation (“Hertz”), for calendar years 1999-2002, the sole issue is whether or not express authority is required for an employee to bind the corporation to a written agreement to suspend prescription. On cross motions for summary judgment, the trial court granted summary judgment in favor of HERC, holding that express authority is required as a matter of law. This appeal by LDR ensued. For the reasons stated herein, we affirm.

FACTS

LDR was conducting sales and use tax audits of HERC for the years 1999-2002. With respect to the audit period at issue, the audit was not completed by mid-2002 and the three-year prescriptive period within which LDR could have filed suit for the unpaid taxes would have otherwise run on December 21, 2002. Thus, LDR sent to HERC an “Agreement to Suspend Prescription” for a one-year period in accordance with La. R.S. 47:158o. The assistant secretary (a corporate officer) of HERC signed the first ^agreement, which LDR countersigned and returned to HERC for its flies. Over the next several years, the audit continued and LDR continued to send suspension agreements to HERC. These agreements were signed by Armando Cordova, an employee of Hertz, and were then countersigned by LDR and returned to HERC for its files. Cordova signed as “Taxpayer’s Authorized Representative” in his capacity as Director-Tax Audits for Hertz. It is,not disputed that Cordova was an employee of Hertz and not a corporate officer of HERC.

The record reflects that agreements to suspend prescription, such as the agreements at issue herein, were routinely executed between HERC and LDR. Prior such agreements had been signed on behalf of HERC, Hertz and Hertz Vehicle Sales Corporation by Bob Wines as Manager-Tax Audits, Cordova’s predecessor, and such agreements had gone unchallenged. Apparently, special powers of attorney were created for the execution of some of these agreements, but not all. It is undisputed that the position of Director-Tax Audits had complete authority to handle all tax audit issues, including settling audits, preparing formal petitions, representing the company at administrative hearings, negotiating with auditors and supervisors and responding to information and document requests. Moreover, all parties agree that Cordova was the sole representative of HERC responsible for communicating with LDR on behalf of the corporation.

With the agreements to suspend prescription in place, the status quo was maintained until the audit was complete. Following completion of the 13audit, settlement negotiations regarding the amount of taxes owed by HERC were unsuccessful and this suit to collect taxes owed was filed by LDR prior to the expiration of the agreed on suspension date.

As previously stated, LDR filed suit and HERC responded by filing an Exception of Prescription, in which it argued that Cordova did not have the express authority to agree to suspend prescription on behalf of the corporation. LDR countered that Cordova had actual-implied and/or apparent authority to execute the agreements, which was sufficient to bind the corporation. LDR propounded discovery on the issue of Cordova’s authority and HERC filed a motion for a protective order to stay discovery pending a decision on the Exception of Prescription. Cross motions for summary judgment were filed and the trial judge ultimately granted summary judgment in favor of HERC, finding that the claim of LDR had prescribed. Accordingly, the trial judge further found HERC’s request for a protective order to be moot.

On appeal, the fifth circuit affirmed the summary judgment, holding that express authority was required in order for Cordo-va to suspend prescription on behalf of HERC. Bridges v. Hertz Equipment Rental Corp., 07-717 (La.App. 5th Cir.1/22/08), 977 So.2d 150. The supreme court granted LDR’s writ application and reversed the summary judgment on the issue of discovery, finding that LDR was entitled to discovery of documents that may be relevant to the authority of Cordova, but the court expressly declined to rule on the issue of whether express authority was required. Bridges v. Hertz Equipment Rental Corp., 08-0400 (La.6/20/08), 983 So.2d 1256. The matter was remanded to the trial court for further discovery.

Following the completion of discovery, the trial court again held that the claim of LDR had prescribed because LDR remained unable to produce evidence that Cordova had the requisite express authority to bind the corporation to an agreement to suspend prescription. Indeed, LDR concedes that Cordova did not have express authority to bind the corporation via the agreements to suspend prescription. LDR instead relies on the theories of actual-implied and apparent authority and, alternatively, detrimental reliance. The trial judge characterized the agreement to suspend prescription as the waiver of HERC’s constitutional defense of the three-year prescriptive period and, therefore, found that express authority was required in order to bind the corporation to such agreement. In support, the trial judge cited the fifth circuit case of Bridges v. X Communications, Inc., 03-441 (La.App. 5th Cir.11/12/03), 861 So.2d 592, writ denied, 03-3431 (La.2/20/04), 866 So.2d 830. In its reasons for judgment, the trial court explained its ruling as follows:

The court is asked to address a single issue: did Cordova have authority to sign the prescription suspension agreements recognizing that such waivers are not among those specifically listed requiring express corporate authority in C.C. arts. 2296 and 2297? The Fifth Circuit’s opinion in X Communications, supra, directly addresses this issue and dictates that LDR must establish Cordo-va’s express authority conferred by charter, | ¡-bylaws, or board resolution. LDR has failed in its burden. Cordo-va’s job description offered by plaintiff demonstrates that he is an employee and not an officer; he falls within the Fifth Circuit’s bright line rule requiring express authority. Plaintiffs alternate theories of detrimental reliance and actual-implied and apparent authority also fail to establish Cordova’s express authority and would only side-step the Fifth Circuit’s requirements.

LDR appealed the judgment to the fifth circuit; and, as stated, the appeal was transferred to this court.

DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

As previously stated, the issue in the case sub judice is a narrow question of law, ie., whether or not an employee must have express authority to bind his or her corporate employer to an agreement to suspend prescription. We find that, under the law in effect at the time the instant agreements were executed, such express authority was required; and, since it is undisputed that Cordova did not have express authority to execute the agreements to suspend prescription, we further find that the trial judge properly granted summary judgment in favor of HERC.

La. C.C. art. 2996 provides that “the authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described.” La. C.C. art. 2997 provides | fia list of additional acts for which express authority must be given to a mandatary:

Authority also must be given expressly to:
(1) Make an inter vivos donation, either outright or to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.
(2) Accept or renounce a succession.
(3) Contract a loan, acknowledge or make remission of a debt, or become a surety.
(4) Draw or endorse promissory notes and negotiable instruments.
(5) Enter into a compromise or refer a matter to arbitration.
(6) Make health care decisions, such as surgery, medical expenses, nursing home residency, and medication.

In addition, as mentioned earlier, in X Communications, supra, the fifth circuit held that an agreement to suspend prescription had to be signed by an individual with express authority to do so. The factual scenarios of X Communications and the case sub judice are strikingly similar. In X Communications, the tax controller of the corporate defendant signed form agreements to suspend prescription on tax claims. The form agreements were similar to the ones at issue herein and, as here, were supplied by the Department of Revenue. It was the common practice of the parties to execute such agreements and both employees and officers/shareholders of the corporation had signed such agreements on behalf of X Communications, Inc. After reviewing the general principles of mandate |7and corporate authority to act on behalf of a corporation, the fifth circuit explained its holding as follows:

... we find the act of surrendering or waiving a corporation’s legal right, such as prescription, is the type of act that requires an express power, [footnote omitted] Where a document bearing such legal significance is involved, the other party should be on notice that express authorization is necessary for the agent to sign it. Any state agency can readily discover the officers of a domestic corporation from the secretary of state’s office....

Bridges v. X Communications, Inc., supra. In so holding, the fifth circuit relied on the rules of corporate authority, stating:

The authority to act on behalf of a corporation can only be conferred by the charter or the bylaws of the corporation or by resolution of the board of directors. La. R.S. 12:81(A), 12:82(D); McKendall v. Williams, 467 So.2d 1301, 1303 (La.App. 4 Cir.), writ denied, 469 So.2d 986 (La.1985).
A party seeking to enforce an alleged contract against a corporation is required to establish that the officer or agent with whom he contracted was in fact authorized to bind the corporation. North American Sales Alliance, Inc. v. Carrtone Laboratories, Inc., 214 So.2d 167, 172 (La.App. 4 Cir.), writ denied, 253 La. 57, 216 So.2d 306 (1968). Any action taken in the name of a corporation that is unauthorized by the corporation cannot bind the corporation. Marsh Investment Corp. v. Langford, 490 F.Supp. 1320, 1324 (E.D.La.1980), aff'd, 652 F.2d 583 (5th Cir. Unit A Aug.1981), cert. denied sub nom., Ponchartrain State Bank v. Marsh Investment Corp., 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

Based on the above law, we find that the trial judge correctly held that express corporate authority was required in order for Cordova to bind HERC to the agreements to suspend prescription. LDR failed to carry its 18burden of establishing that express authority of Cordova. The arguments urged by LDR regarding any actual-implied or apparent authority of Cordova are misplaced. Further, we find LDR’s argument that it detrimentally relied on the agreements and is thus entitled to damages to be without merit. Accordingly, we hold that the claims of LDR are prescribed and HERC is entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the summary judgment of the trial court in favor of Hertz Equipment Rental Corporation is affirmed. Costs are not assessed against the Louisiana Department of Revenue in accordance with La. R.S. 13:4521.

AFFIRMED.

BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge,

dissenting.

_JjThe suspension agreements were executed to preserve the status quo and were for the mutual benefit of HERC and LDR while they tried to amicably resolve the audit and assessment. See Chicago Bridge and Iron Co. v. Cocreham, 308 So.2d 750 (La.App. 1st Cir.1975). Otherwise, LDR would have issued a final assessment of taxes and/or filed suit, which would have interrupted prescription. The position of HERC is disingenuous and unjust.

Clearly, HERC’s Tax Audit Director, Armando Cordova, had actual and apparent authority to sign the agreements suspending prescription for one year. This was sufficient to bind HERC.

Further, it is undisputed that Cordova acted for HERC in its dealing with LDR and signed these agreements with HERC’s full knowledge. He acted in accordance with HERC’s policy. LDR relied on this apparent authority and deferred filing its action. The rule of detrimental reliance is applicable.

APPLICATION FOR REHEARING

Before BROWN, C.J., and WILLIAMS, GASKINS, CARAWAY & PEATROSS, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

      . The prescriptive period for a claim to collect taxes is three years. La.. Const. Art. VII, § 16, infra. This period may be suspended by written agreement between the taxpayer and the Department of Revenue. La. R.S. 47:1580.

      . Louisiana Constitution, Art. 7, Section 16, contains the prescriptive period for the collection of taxes and provides as follows:
      Taxes, except real property taxes, and licenses shall prescribe in three years after the thirty-first day of December in the year in which they are due, but prescription may be interrupted or suspended as provided by law.

      . LDR urges this court to go outside of the fifth circuit for law and guidance in this case. Since, however, this appeal is before this court as the result of a transfer of venue, we will interpret and apply the law as espoused by that court. Bonin v. Ferrellgas, Inc., 02-1031 (La.App. 3d Cir.8/6/03), 855 So.2d 781, rev’d on other grounds, 03-3024 (La.7/2/04), 877 So.2d 89.

      . Throughout the opinion, and as strenuously noted by the appellant, the fifth circuit in X Communications characterizes the agreements to suspend prescription as waivers of prescription. In footnote 1, however, the court recognizes that the form actually just suspends the right for a year rather than waiving the right. We find this to be curious since it is the magnitude of forgoing the right that provides the foundation for the fifth circuit’s requirement of express authority. While we decline to expressly hold that agreements to suspend prescription such as the one at issue herein constitute waivers, we nonetheless feel constrained to follow the dictates of the clear holding of the fifth circuit in X Communications, supra, that express authority is required to bind the corporate defendant to such agreements.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Lynn BESS, III, Appellant.
    No. 45,358-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Rehearing Denied Sept. 16, 2010.

      Louisiana Appellate Project by Mark 0. Foster, for Appellant.
    Lynn Bess, III, Pro Se.
    Jerry L. Jones, District Attorney, John F. Aplin, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| defendant, Lynn Bess, III, was convicted by a jury of carjacking in violation of La. R.S. 14:64.2. Following a habitual offender hearing, Defendant was adjudicated a fourth-felony offender, including two convictions of crimes of violence, and was sentenced to life imprisonment without the benefit of parole. Defendant now appeals his conviction. For the reasons stated herein, the conviction of Defendant is affirmed.

FACTS

On January 31, 2008, Defendant was charged by bill of information with two counts of carjacking in violation of La. R.S. 14:64.2. On February 27, 2009, the State filed an amended bill of information charging Defendant with only one count of carjacking in violation of La. R.S. 14:64.2. Defendant subsequently filed a Motion to Appoint a Sanity Commission, which found Defendant competent to stand trial.

Trial began on July 13, 2009. The evidence at trial revealed that, on December 15, 2007, Defendant forced his way into a truck that was stopped at a stop sign, armed himself with a screwdriver that was on the dashboard of the truck and demanded the driver of the truck to drive.

Leola Jessie Siebert (“Siebert”) testified that, on December 15, 2007, she left her residence at 1402B Cole Avenue in Monroe, Louisiana, to assist the boyfriend of her roommate, Robin. Robin advised Sie-bert that her boyfriend had been stopped by the police and needed someone to drive his vehicle away in order to prevent it from being towed. Since Robin had been drinking and could not drive, Siebert drove Robin's late model Ford pickup truck, with Ian Cooks and Lawrence Cooks accompanying her.

| i>Siebert testified that she was not familiar with the area where the boyfriend was located and she got lost and missed her turn. While attempting to turn around to go in the correct direction, Siebert came to a stop sign at Owl Street and South College Street. There were two cars stopped in front of her at the stop sign.

Siebert testified that, while at this stop sign, Defendant, whom she had never seen before, approached the passenger side of the truck, jerked open the door and jumped into the truck, sitting on the lap of Lawrence Cooks. Once in the truck, he grabbed a screwdriver off the dash, pointed it at Siebert’s neck and told her to “drive bitch.” She testified that Defendant’s actions “scared the hell out of her,” she felt intimated by him and feared for her life. Siebert drove the truck as Defendant demanded because of her fear and intimidation. She further testified that she did not feel like she was in control of the vehicle. Siebert stated that she drove the vehicle until Defendant screamed for her to stop. Apparently, several police cars came into view near Powell Street and the American Legion Hall and Defendant demanded that Siebert stop the truck. Once the vehicle was stopped, Defendant dropped the screwdriver, jumped out of the truck and fled.

After absorbing the shock of what happened, Siebert drove around the American Legion Hall and made contact with Officer Richard Cole of the Monroe Police Department. Siebert advised him of the incident and provided a description of the suspect. Officer Cole contacted other officers on his radio and began searching for the suspect. Siebert testified that |aOfficer Cole returned approximately five to ten minutes later with the suspect for her to identify. She stated she was able to positively identify the suspect as the person who forcibly entered her truck. In open court, she identified the suspect from that night as Defendant.

Officer Cole testified that, on December 15, 2007, he was working with the Monroe Police Department assisting another officer with a traffic stop between Owl Street and Renwick Street near the rear of the American Legion Hall. At this location, Officer Cole made contact with Siebert, who advised him that, a couple of blocks away, she was stopped at a stop sign when a black male jumped into the truck, grabbed a screwdriver off the dash and demanded that she drive. When this person saw the police unit, he yelled for Sie-bert to stop and he jumped out of the vehicle. Officer Cole testified that Siebert appeared to be in fear, scared and shocked at what had just happened. He testified that, after Siebert had given him an in-depth description of the suspect, he contacted other officers and began searching the area. After a brief search of the surrounding area, Officer Cole testified that he located the suspect, handcuffed him and brought him back to Siebert to see if she could identify him. Officer Cole stated that Siebert and the other passengers immediately identified the suspect as the individual who had jumped into the vehicle. At that point, Officer Cole placed the suspect under arrest. Officer Cole identified the suspect for the jury as Defendant. He testified that Defendant’s only statement was that Siebert and the other passengers had offered him a ride.

|4State’s Exhibit 1, a screwdriver, was introduced into evidence. Officer Cole testified that he did not actually recover the screwdriver, but it was handed to him from inside the truck. Officer Cole identified State’s Exhibit 1 as the screwdriver he was given that night. On cross-examination, Officer Cole stated that no fingerprints were taken from the screwdriver because there was not a request for fingerprints.

The State called Ian Cooks, one of the passengers in the truck, as a witness. He identified Defendant as the individual who forced his way into the truck, armed himself with a screwdriver and demanded that Siebert drive. Ian testified that he was sitting in the middle next to Siebert, who was driving the truck, and his brother Lawrence Cooks was sitting on the passenger side. He also stated that no one knew Defendant, nor did anyone invite him into the truck. Further, on cross-examination, Ian testified that Defendant lunged at Sie-bert with the screwdriver and told her to drive.

Lawrence Cooks was also called as a witness by the State. He stated that, on December 15, 2007, he was with his brother and Siebert, and they were going to pick up his cousin’s car. When they approached the intersection at Owl and South College, they were third in line at a stop sign. While at the stop sign, a man walked over to his side of the truck and jumped in on top of him. Lawrence testified that no one invited the man into the truck. He further testified that, once inside the truck, the man was rambling, grabbed the screwdriver off the dashboard and pointed it toward ^Siebert and told her to drive. He stated that, when the man jumped into the vehicle, he felt nervous, and his brother and Siebert appeared to be scared.

Mr. Cooks testified that he identified the person who jumped into the truck that night; however, he was not able to “really say” if the person he identified that night was in the courtroom, as it had been a long time since the incident.

The only witness to testify on behalf of Defendant was Bernice Wells Coleman, Defendant’s second cousin. She testified that Defendant stopped by her house on the evening of December 15, 2007, after 5:00 p.m., and that he stayed for a short time. On cross-examination, however, Ms. Coleman testified that she could not “remember exactly what date in time.” Ms. Coleman did not provide any additional testimony.

As previously stated, the jury found Defendant guilty of carjacking. The trial judge ordered a presentence investigation. On August 24, 2009, the State filed an amended bill of information charging Defendant as a fourth-felony offender. In response, the defense filed a Motion to Quash Multiple Bill that was denied on September 29, 2009.

Following a hearing on the habitual offender bill, Defendant was adjudicated a fourth-felony offender and sentenced to life imprisonment without benefit of parole. Defendant’s pro se Motion to Reconsider Sentence and defense counsel’s Motion to Reconsider Sentence were denied. This appeal ensued.

J¿DISCUSSION

Assignment of Error Number One (verbatim): The evidence was insufficient to convict Mr. Bess of carjacking, a violation of La. R.S. 14:64.2.

Defendant argues that the State’s evidence failed to prove that he was guilty of carjacking because the State did not show there was a “taking.” Specifically, Defendant argues that the State failed to show that Defendant “took” possession of the truck from the driver. He argues that the State’s evidence only showed that Defendant jumped into the truck, grabbed a screwdriver and told Siebert to drive; however, he submits that he never tried to get any of the passengers out of the truck.

The State argues that there was sufficient evidence to support the conviction of carjacking. At trial, the driver of the truck (Siebert) and the passengers all testified that Defendant entered the truck without their consent, armed himself with a screwdriver and demanded that Siebert drive the truck. The State argues that Defendant used force and intimidation to take control over the vehicle; thus, Siebert did not have control of the truck. According to the State, there was, therefore, sufficient evidence to support the conviction. We agree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

La. R.S. 14:64.2 provides in pertinent part:

Carjacking is the intentional taking of a motor vehicle, as defined in R.S. 32:1(40), belonging to another person, in the presence of that person, or in the possession of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation.

While the courts have not specifically addressed “taking” with respect to carjacking, they have relied on the analysis of “taking” discussed in the context of theft. State v. Baylor, 08-141 (La.App. 3d Cir.11/26/08), 998 So.2d 800, writ denied, 09-0275 (La.11/20/09), 25 So.3d 795. A “taking” includes an intent to usurp or negate the owner’s dominion. State v. Victor, 368 So.2d 711 (La.1979). In Victor, the court determined that 18the factual issue of whether there is a taking for purposes of theft is “whether the offender exerts control over the object adverse to or usurpatory of the owner’s dominion.” Victor, supra. It is not necessary to prove that the property taken belonged to the victim; rather, it is only necessary to show that the victim had a greater right to the item than the accused. State v. Banks, 96-652 (La.App. 5th Cir.1/15/97), 694 So.2d 401.

Viewed under the Jackson standard, the evidence presented at trial is sufficient to support the conviction of Defendant. Sie-bert testified that, on December 15, 2007, she drove her roommate’s truck to assist her roommate’s boyfriend. Ian and Lawrence accompanied her. "While stopped at a stop sign en route to assist the boyfriend, Defendant jerked the door open, jumped in, grabbed a screwdriver off the dash, pointed it at Siebert and told her to “drive bitch.” Siebert stated that she did not know Defendant, nor did she invite him into the truck. She testified, “I was in fear for my life. I figure I’d better drive.” Defendant succeeded in taking control of the truck because Siebert drove as he demanded. Furthermore, the testimony of the passengers, Ian and Lawrence, was totally consistent with Siebert’s testimony and corroborated her description of the incident and the identification of Defendant as the perpetrator.

In addition, Officer Cole testified that, once Siebert advised him of the incident and provided a description, he immediately began searching the area for the suspect. It is his testimony that, within minutes, he apprehended Defendant and brought him to Siebert, who immediately identified him as the man who jumped into the truck.

| ;iThus, the evidence provided to the jury demonstrated that there was an intentional taking of the truck by Defendant through the use of force and intimidation in the presence of Siebert, and, therefore, was clearly sufficient to support a conviction of carjacking. This assignment is without merit.

Assignment of Error Number Two (verbatim): The trial court was in error to deny Lynn Bess’ Batson challenge to the state’s discriminatory use of peremptory strikes.

In his second assignment of error, Defendant argues that the trial court improperly denied his Batson challenges to the State’s use of peremptory strikes against black jurors. He urges that the record does not show any differences in the white jurors and the black jurors that would have justified the State’s peremptory challenges. Specifically, Defendant argues that the black jurors struck were similarly situated with prospective white jurors. Thus, he complains that the State systematically eliminated the black jurors.

It is well settled that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson decision is codified in our law in La. C. Cr. P. art. 795.

In State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 522 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 877 (2007), the proper reviewing process for a Batson claim, as recently described by the Supreme Court, was set forth as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine]^ whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. 476 U.S., at 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id., at 97-98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (). Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331-2332, 162 L.Ed.2d 196 (2005). This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra, at 768, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834.

In State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, the Louisiana Supreme Court held that the sole focus of the Bat-son inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. See also State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006).

The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand .the demean- or of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. Juniors, supra; State v. Myers, 99-1803 (La.4/11/00), 761 So.2d 498. A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse |nthem unless they are clearly erroneous. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, supra.

In the case sub judice, three panels of 14 potential jurors each, for a total of 42 potential jurors, were summoned and selected for voir dire at the beginning of trial. The first panel consisted of seven white females, three white males, three black males and one black female. At the conclusion of the questioning of panel one, each side set forth its challenges for cause. Following the court’s ruling on the challenges for cause, each side exercised its peremptory challenges. The State exercised peremptory challenges for Sandra Caroll, a black female, and Eddie Clark, a black male.

The second panel was called and questioned. It consisted of 14 potential jurors: seven white females, two white males, one Asian male, three black males and one black female. For this panel, the State exercised four (4) peremptory challenges, namely: Isiah Cooper, a black male; Arthur Thomas, a black male; Brittany Lenard, a black female; and Dennis Moore, a white male.

At this time, the defense lodged a Batson objection to the State’s use of its peremptory challenges. The trial judge reviewed the State’s peremptory challenges on both panels and noticed that a total of five out of six peremptory challenges were used on black jurors. Thus, the trial judge found that the defense made a prima facie showing of discrimination. Under Batson, therefore, the State was required to provide race-neutral reasons for exercising those challenges.

1 i2The State exercised its first peremptory challenge for Eddie Clark, a black male attorney. The State previously challenged Mr. Clark for cause, stating that Mr. Clark would not be able to give a hundred percent of his attention to the testimony because he would be preoccupied with his private practice and his obligations. The trial judge denied the challenge, stating that the State’s reason was not grounds for challenge for cause in accordance with La. C. Cr. P. art. 797. As to its race-neutral reasons for the peremptory challenge, the district attorney re-urged his reasons for the challenge for cause of Mr. Clark stating,

I just don’t think that, ah, he would be able to fully concentrate on the trial. I think he’s — that, ah, he was, ah, and he even said that, that he didn’t think that he could give it a hundred percent attention due to his private practice with all the depositions he had and other court obligations. Ah, that’s why the State used preempt number one on that.

The trial judge accepted the State’s reason as a proper race neutral reason for granting the challenge and denied Defendant’s Batson challenge on Eddie Clark.

The State’s second peremptory challenge was Sandra Carroll, a black female. The State exercised a peremptory challenge on Ms. Carroll because it did not believe she could give her full attention to the trial due to the fact that she had a sick family member out of town, specifically a gravely ill sister who lived in Jeanerette, Louisiana. The trial judge accepted this explanation as a sufficient race-neutral reason and denied Defendant’s Batson challenge as it related to Sandra Carroll.

Next, the trial judge addressed the State’s peremptory challenge against Isiah Cooper, a black male. The State’s original response was that it |^struck Mr. Cooper because he was a juror on a previous criminal jury and voted in the minority and the State felt he would not be able to follow along with the majority. The trial judge, however, indicated that it was not satisfied with that explanation and asked the State if it had anything else to add. The district attorney explained:

All I’m just — that’s my reason. It doesn’t have anything to do with race. It was just simply the way he answered the questions regarding the, ah, his previous jury experience.

Additionally, the State pointed out that it had also struck Dennis Moore, a white male, for the same reason. Ultimately, the trial judge accepted the State’s response and denied the Batson challenge as to Isiah Cooper.

Arthur Thomas, a black male, was next. The State argued that its reason for striking Mr. Thomas was that, during voir dire, he stated that he would want Defendant to testify. In addition, the State indicated that it did not believe Mr. Thomas would make a good juror because he was soft spoken. The State noted that, based on its observations during voir dire, Mr. Thomas would not be assertive enough to hold his position during jury deliberations. The State further argued that Mr. Thomas had indicated that he had family members in jail. The trial judge then requested that Mr. Thomas return to the courtroom for further questioning. The judge questioned Mr. Thomas with respect to his indication earlier during voir dire that he would require Defendant to testify. As Mr. Thomas began to speak, the judge had to ask him to speak louder. After the judge explained to Mr. Thomas that it was a defendant’s constitutional right not to testify, | uMr. Thomas agreed that he understood, but the fact that a defendant did (would) not testify would be in the back of his mind. As the questioning continued, Mr. Thomas stated that the fact that a defendant did (would) not testify would weigh heavily in his decision.

Following the re-questioning of Mr. Thomas, the trial judge found the reasons to be race neutral and, therefore, denied Defendant’s Batson challenge as it related to Arthur Thomas.

The last peremptory challenge exercised by the State was for Brittany Lenard, a black female. Ms. Lenard was also challenged for cause. The State re-urged its arguments givén during the challenge for cause which were that it believed Ms. Lenard would not be able to apply the law as given and she would hold the State to a higher standard. The trial judge noted that Ms. Lenard stated that she would require proof beyond all doubt. Thus, the trial judge accepted the reasons given as race neutral and denied Defendant’s Batson challenge as to Brittany Lenard.

As stated in Draughn, supra, the State’s reason does not have to be persuasive or even plausible; so long as the reason is not inherently discriminatory, it suffices. Furthermore, a reviewing court owes the trial judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Hernandez, supra.

A review of the record indicates that the trial judge conscientiously and thoroughly evaluated each of the State’s reasons for its peremptory challenges. For each of its peremptory challenges, the State did not refer to race of the jurors as a basis for the challenge. The State provided to the | irjudge sufficient race neutral reasons for challenging each of the jurors based on either the prospective jurors’ statements made during voir dire, or during re-questioning by the judge, and their demeanor. We, therefore, find this assignment to be without merit.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Lynn Bess, III, is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS & DREW, JJ.

Rehearing denied.

      . Officer Cole did not indicate which occupant of the truck handed him the screwdriver.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)

      . Dennis Moore stated during voir dire that he voted in the minority on a previous criminal jury trial,


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jackie WAFFER, Appellant.
    No. 45,210-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Rehearing Denied Sept. 16, 2010.

      Louisiana Appellate Project, by G. Paul Marx, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Stephen L. Sylvester, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   MOORE, J.

|, Jackie Waffer appeals his adjudication as a fourth felony offender and life sentences without benefits on two drug convictions. Waffer contends that he initially pled guilty to the underlying offenses with the state’s agreement not to pursue habitual offender charges; however, when he later sought post conviction release, the state and court coerced him into accepting unduly burdensome conditions of release which enabled the state to file habitual offender charges in the event of a violation. Finding no merit in Waffer’s arguments, we affirm.

The Underlying Offenses

In late 2002, the Monroe Metro Narcotics Unit got leads that Waffer was receiving from Houston regular shipments of large quantities of marijuana and cocaine which he distributed to low-level dealers for street sales. In February 2003, officers made a controlled buy from one of Waffer’s alleged sellers, Lori Harris, at her house on Filhiol Ave., and obtained a warrant for her arrest. On February 18, when they executed the warrant, they found over 12 ounces of marijuana in four separate bags and 42 grams of cocaine in 13 separate bags in the house. She admitted to officers that Waffer had periodically brought her varying amounts of drugs to “store” there. She then made a recorded cell phone call to Waffer, who said he was “missing some of that white stuff,” and she agreed to bring it to his rental house on nearby Cole Ave. Officers arrested him when he arrived for this rendezvous.

At the time of his arrest, Waffer was on supervised release from federal authorities for a conviction for conspiracy to possess with intent to | ^distribute 100 kilograms or more (over 220 pounds) of marijuana, 21 U.S.C. §§ 841(a)(1), 846. Because of the instant arrest, his release was revoked and he had to serve an additional 30 months in the federal penitentiary.

In April 2003, the state formally charged Waffer with one count of possession of marijuana with intent to distribute, La. R.S. 40:966, and one count of possession of over 28 grams of cocaine with intent to distribute, La. R.S. 40:967 F(l)(a). The case was continued while Waffer served the balance of his federal time. In addition to the federal felony, Waffer had two state felony convictions, a 1998 guilty plea to simple burglary and a 1994 guilty plea to being a convicted felon in possession of a firearm.

Trial was set for January 31, 2005. On that date, Waffer’s attorney, George Brit-ton, and the state announced they had reached a plea agreement whereby Waffer would plead guilty as charged to both counts and the state would not file a habitual offender bill. After questioning Waf-fer, the court accepted the guilty plea, ordered a PSI and set a sentencing date. The court revoked any bail that was previously set and denied a new request for bail. After these proceedings, Waffer was returned to the federal penitentiary; he was released on April 24, 2005.

In the meantime, Waffer retained another attorney, Charles D. Jones, to represent him at sentencing and help him secure release on bail pending sentence. The court did not, however, allow Mr. Britton to withdraw as counsel of record.

Is The Order of Release

After his release from federal custody, Waffer was transferred to the Ouachita Correctional Center on detainers from the sheriffs office. On April 29, 2005, Mr. Jones contacted the court directly in an effort to have Waffer released on bail prior to sentence. The prosecutor was called to the judge’s chambers to avoid any ex parte communications. In off-the-record negotiations, Mr. Jones, the prosecutor and the judge agreed that Waffer would be released on bail pending sentence so he could “take care of some very important personal business.” After this meeting, Mr. Jones prepared an order of release setting forth the negotiated terms:

“I. Defendant must post a surety bond in the amount of $50,000.00;
“II. Defendant must state in open court where he will reside upon release from jail and must provide a telephone number where he can be reached;
“III. Defendant must agree to a curfew from dark to daylight;
“IV. Defendant must agree to daily monitoring by the 4th Judicial District’s Probation office;
“V. Defendant must submit to random drug testing; and
“VI. Any plea agreement, including but not limited to any agreement regarding the habitual offender act, is violated if defendant breaches any condition of his release contained herein or fails to appear in court.”

At the hearing on May 2, the parties stated their positions for the record. The court advised Waffer that negotiations were held on his behalf to get him released on bail, but there would be conditions of release. The court read and explained each condition to Waffer, and he agreed on the record. The prosecutor stated, however, that the final condition did not 14clearly state their agreement; after some discussion, the court added the handwritten notation in italics:

“VI. Any plea agreement, including but not limited to any agreement regarding the habitual offender act, is violated if defendant breaches any condition of his release contained herein or fails to appear in court or violates any law.”

The court advised Waffer of the final condition: “Actually, you don’t even have to commit another crime — you can engage in some bad behavior and I might try to do something about it.” Waffer stated that he agreed. He posted bail and was released. His sentencing date was reset monthly for the rest of 2005.

The Revocation

On January 17, 2006, Ouachita Parish Sheriffs deputies investigating a double homicide obtained a search warrant for a two-story townhouse on Colonial Drive in Monroe. Deputies and police officers surrounded the building before a SWAT team entered. Shortly after entry was made, deputies stationed behind the townhouse saw a man trying to climb out of an upstairs rear window. Deputies ordered him back into the townhouse and learned that he was Jackie Waffer. The search turned up approximately one ounce of powder cocaine, cut into small portions for ready sale, some loose marijuana and several weighing scales. . The other two people present in the townhouse told deputies that the drugs belonged to Waffer.

According to the state, deputies did not immediately arrest Waffer because they thought he could provide information about the homicides; however, he absconded and failed to provide the information, so an arrest warrant was issued. Waffer was then arrested on charges of possession of |smarijuana and cocaine, both with intent to distribute. On January 25, the state moved to revoke Waffer’s bail.

Waffer appeared for sentence on the underlying offenses on March 24, 2006. Based on its review of the PSI, the court described Waffer as a “drug dealer, not in the sense of an individual * * * out there selling one or two rocks for $20, $40 a pop, but somebody who is supplying and agreed to supply and was eager to supply a large quantity of drugs to various and different individuals here in Ouachita Parish.” Without mentioning the incident of just two months earlier, the court sentenced Waffer to concurrent terms of 8 and 12 years at hard labor and fines of $10,000 and $25,000.

After sentence was imposed, Mr. Jones advised the court that Waffer had been appointed an indigent defender, Douglas Walker, as counsel for the January 2006 charges. The prosecutor replied that the state had not yet decided whether to multiple bill Waffer on the underlying offenses or wait and do so on the January 2006 offenses. Mr. Jones neither objected nor asked the court to withdraw the guilty plea.

On April 5, the state filed a motion to determine a breach of release agreement. This alleged that on January 17, Waffer was not living at the address he provided to the court and was arrested for possession of cocaine with intent to distribute and other drug offenses. The state alleged that because Waffer breached the order of release, it wished to proceed with a habitual offender bill. The attached bill of information charged him as a fourth felony offender.

| fiThe matter proceeded to a hearing held over two days in November 2006 and January 2007. On the first day, the state offered that if Waffer would plead guilty as a second felony offender, the state would agree to a sentence of 25 years and file no other habitual offender charges; Waffer refused. At the close of evidence, the court found that Waffer had violated various provisions of his order of release, and granted the state leave of court to file the habitual offender bill.

At a hearing on September 18, 2007, the state offered Waffer a 30-year sentence if he would plead guilty as a second felony offender; Waffer declined. After receiving evidence, the court found that Waffer was a fourth felony offender. The court vacated the prior sentences of 12 and 8 years and sentenced him to mandatory life at hard labor without benefits. Three days later, the court clarified that the sentence was actually two concurrent life sentences. In July 2009, the court granted an out-of-time appeal, which has been filed by the Louisiana Appellate Project.

Discussion: Breach of Plea Agreement

By his first two assignments of error, Waffer urges that the state breached its plea agreement. He asserts that he agreed to plead guilty as charged only because the state promised not to charge him as a habitual offender. By his first assignment he urges that his plea was coerced by the promise of presentence release, making it involuntary and unenforceable. By his second assignment, he argues that he never agreed to the order of release which purported to modify the original agreement. He contends on appeal, as he did in the district court, that he never clearly appreciated and 17understood that the order of release would subject him to a habitual offender bill if he violated a term of release. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987).

The state responds that Waffer bargained for, and received, a modification of his plea agreement so he could be released from jail pending sentence.

A plea bargain is considered to be a contract between the state and the criminal defendant. State v. Nall, 379 So.2d 731 (La.1980); State v. Cheatham, 44,247 (La.App. 2 Cir. 5/13/09), 12 So.3d 1047, and citations therein. If the state is a party to a plea bargain agreement, the bargain must be enforced. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Cheatham, supra. Under substantive criminal law, there are two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the guilty plea. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443; State v. Holden, 45,367 (La.App. 2 Cir. 6/23/10), 44 So.3d 288.

Bail after conviction is regulated by La. C. Cr. P. art. 332 B, which provides (with emphasis added):

After conviction and before sentence, bail shall be allowed if the maximum sentence which may be imposed is imprisonment for five years or less. Bail may be allowed pending sentence if the maximum sentence which may be imposed is imprisonment exceeding five years, except when the court has reason to believe, based on competent evidence, that the release of the person convicted will pose a danger to any other person or the community, or that there is a substantial risk that the person convicted might flee.

IsThe permissive may, together with the duty to assess the risk to the community, obviously gives the district court discretion to impose special conditions on release after conviction and before sentence. We are not persuaded by Waf-fer’s argument that “the purpose of bail is not to protect the public from all harms that the prisoner may inflict upon his release” but only to “ensure that the accused will appear at trial,” ergo conditions of release are illegal. This quoted passage appears in Hebert v. Layrisson, 2002-0361 (La.App. 1 Cir. 5/9/03), 849 So.2d 643, writ denied, 2003-1591 (La.10/3/03), 855 So.2d 318. Hebert was a civil case in which the plaintiffs sued the sheriff of Tangipahoa Parish for personal injuries resulting from a battery inflicted by an arrestee whom the sheriff had released on a personal recognizance bond. The court of appeal’s discussion affirming the exception of no cause of action addressed only the limits of civil liability. It did not cite Art. 332 and did not hold that conditions of criminal release are illegal.

The instant record comes nowhere near supporting Waffer’s claims that his guilty plea was coerced by the illusory promise of presentence release or that the conditions of that release were never clearly explained to him. After pleading guilty and while awaiting sentence, Waffer retained Charles Jones to represent him at sentencing and to secure bail pending sentence. On Waffer’s behalf, Mr. Jones contacted the court and initiated negotiations with the court and prosecutor for his release. On Waffer’s behalf, Mr. Jones drafted the release order which included the proviso that “any agreement regarding the habitual offender act, is violated if defendant | flbreaches any condition of his release[.]” It is abundantly clear that the state was not the party that dangled the promise of presentence release in front of Waffer, as the dissenters in Ricketts v. Adamson, supra, interpreted the facts of that case. To the contrary, it was Waffer, acting through counsel, who broached the subject, skillfully negotiated with the court and the state, and obtained a very valuable concession. There is absolutely no merit to the contention that the state or the court coerced Waffer into accepting the order of release and thereby negated his consent.

The record contains even less support, if such is possible, for Waffer’s disingenuous argument that he was “never asked to agree to it [the order of release] nor informed that he could refuse without staying in jail.” At the hearing on May 2, 2005, Waffer agreed to each and every condition of his order of release. The following colloquy is representative:

The CouRT: All right. Let me tell you what he just said in case you don’t understand it. You had an agreement with the state and as a condition of your release you would have to agree here in open court to release the state from its obligation to forgo any habitual offender adjudication if you violate any conditions, any other conditions of your release. Do you understand that?
By Mr. WaffeR: Yes, sir.
By the Court: And do you agree to release the state from its obligation previously entered into if you violate any conditions of your release?
By Mr. Waffer.- Yes, sir. I have one question?
By the Court: What’s the question?
By Mr. Waffer: That’s including like traffic tickets and things like that?
LoBy the Court: I mean, I’ll be reasonable about it. * * * I don’t have any desire to see you trip up, Mr. Waffer, I just want to make sure you don’t cause any problems for anybody while you’re out. Look, minor traffic offenses don’t count. Actually, you don’t even have to commit another crime — you can engage in some bad behavior and I might try to do something about it.

It is hard to imagine a more direct and accurate apprisal of rights, and showing of comprehension, than this record contains. Presentence release is available at the court’s discretion. La. C. Cr. P. art. 382 B. Waffer sought such release, obtained it, and agreed to each condition that modified his original guilty plea. These assignments of error lack merit.

Impermissible Judicial Participation in Plea

By his third assignment of error, Waffer urges the court had no authority to amend the plea agreement and should have enforced its provisions. Specifically, he contends the court “erroneously participated in suggesting guilty pleas to the accused by highlighting the progress of the state’s arguments and suggesting the different considerations involved.” He argues that the court twice misstated the burden of proof; this, he contends, amounted to “cajoling and encouraging acceptance of a state offer” in violation of due process. In support he cites Frank v. Blackburn, 646 F.2d 873 (5 Cir.1980), Toler v. Wyrick, 563 F.2d 372 (8 Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1455, 55 L.Ed.2d 498 (1978), and older federal district court cases.

The state responds that on the two occasions cited, it had offered Waffer a specific sentence with no habitual offender bill in exchange for a guilty plea, and the court advised him of the strength of the state’s case; however, Waffer was represented by counsel and refused both offers, so |1Tthere was no undue judicial participation.

The effect of a trial judge’s participation in the proceedings on the free and voluntary nature of a defendant’s plea was discussed at length in State v. Bouie, 2000-2934 (La.5/14/02), 817 So.2d 48. In Bouie, the supreme court declined to adopt a rule absolutely prohibiting Louisiana judges from participating in plea negotiations, such as F.R. Cr. P. 11(e)(1), but cautioned that a judge doing so “should take extreme care to avoid the dangers described in the ABA commentary,” which it quoted as follows:

(1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge; (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report; and (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent. ABA Standards, Pleas of Guilty § 3.3(a), Commentary 73 (approved draft 1968).

At the outset, we note that state court judges are not held to the bright-line rule of Federal Rule 11. State v. Bouie, supra; DeVille v. Whitley, 21 F.3d 654 (5 Cir.1994), cert. denied, 513 U.S. 968, 115 S.Ct. 436, 130 L.Ed.2d 348 (1994); Frank v. Blackburn, supra. Waffer’s invocation of the bright-line rule is therefore unpersuasive.

Waffer correctly shows that on one occasion, the court stated that the burden of proving that the defendant is a habitual offender “is less than beyond a reasonable doubt,” contrary to the general burden of proof beyond a reasonable doubt stated in La. R.S. 15:529.1 D(l)(b). State v. Henry, 42,417 (La.App. 2 Cir. 9/19/07), 966 So.2d 692, writ denied, 2007-2227 (La.8/29/08), 989 So.2d 95.

Viewing the record as a whole, however, we find absolutely no support for the claim that the judge impermissibly participated in the guilty plea process. The court was obviously uninvolved in the initial plea bargain on January 31, 2005, and as noted earlier it was Waffer’s counsel who actively engaged the court in the negotiations that led to the order of release on May 2, 2005. At the hearing on the motion to determine breach of release, November 17, 2006, the court stated that Waffer perhaps did not fully understand how his new charges affected the plea agreement:

By the Court: No, no. Let me tell you this. * * * You have an incomplete understanding of what’s going on. Let’s take this new offense out of it for the time being. You’ve already been convicted. You pled guilty, [and] part of the deal you had with the state when you pled guilty, and it seems like it was a long time ago, was that the state would not try to have you sentenced as a habitual offender. In other words, you know, the state routinely uses that as a tool to, you know, to move their document along.
By Mr. Waffer: I understand.
By the Court: Let me finish telling you where you are. I want you to talk to your lawyer. But, listen, I want you to understand completely. Mr. Aycock [the prosecutor] is saying, “Judge, * ⅝ * we want you to make a judicial determination that he violated the terms of his release and thereby we’re no longer bound by our original agreement * * * not to seek to have him sentenced as a habitual offender.” * * * So, once we finish this hearing I’ll either say, ‘Yes, the state is bound by that original restriction” or “No, the state is not bound by it,” and then it will be up to the D.A. to decide what to do next.

Here and elsewhere the court carefully and indulgently explained to Waffer that he would have great sentencing exposure if the court found a [ ^breach of the order of release. We find nothing to indicate that the judge lacked objectivity or implied that Waffer would not receive a fair trial. Moreover, Waffer had the presence of both Mr. Britton and Mr. Walker, and refused the state’s offer of 25 years if he pled guilty as a second felony offender; the judge’s conduct obviously did not influence him. Right before sentencing on September 18, 2007, the state offered him 30 years if he pled guilty as a second felony offender; represented by the same two counsel, Waffer again declined. Simply put, we cannot find any evidence that the district court impermissibly participated in any of Waffer’s plea bargain negotiations. We also cannot find any evidence that the court’s statements unduly influenced him to accept a guilty plea, let alone an unfavorable one. This assignment lacks merit.

Waiver of Habitual Offender Bill

By his fourth assignment of error, Waf-fer urges the court had no authority to amend the plea agreement after sentencing. He argues that when he was sentenced pursuant to the original plea agreement on March 24, 2006, the state already knew about the events of January 17, 2006, but failed to assert them; this constituted a waiver of the right to assert them later. He concludes that the state “waited too long” in this case.

The state responds that the record refutes Waffer’s argumeijit that the state waived its right to file the habitual offender bill. It concludes that once he violated the order of release, it could proceed.

Immediately after sentencing on March 24, 2006, Mr. Jones told 'the court, “Unless Mr. Aycock can tell us on behalf of the state, now, Mr. 114Waffer is facing 12 years in prison, whether or not the state intends to-what the state intends to do.” The prosecutor replied that he intended to “do it promptly,” meaning he would decide whether to go forward with the habitual offender on these charges or on the new ones. Neither Mr. Jones nor Mr. Britton, both of whom were present, objected. Notably, Waffer and his counsel were surely aware that his arrest in connection with the events of January 2006 likely constituted a breach of the order of release, yet he proceeded to sentence without moving to withdraw his guilty plea as he might have done under La. C. Cr. P. art. 559 A. Finally, the order of release contains no provision that the parties’ obligations terminated upon sentencing. This assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, we affirm Jackie Waf-fer’s convictions, adjudication as a fourth felony offender, and life sentences.

AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.