author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Gene Autry HILL, Appellant.
    No. 46,050-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 20, 2011.
    Rehearing Denied May 12, 2011.

      Gene Autry Hill, Pro se.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

|,Defendant waived both his right to counsel and his right to a trial by jury. After a bench trial, he was found guilty of second degree battery, a violation of La. R.S. 14:34.1. He was sentenced to five years in prison at hard labor without the benefit of probation, parole or suspension of sentence. Defendant now appeals, once again proceeding pro se. For the following reasons, we affirm his conviction, but amend his five-year sentence to delete the prohibition against probation or parole eligibility and affirm his sentence as amended.

Facts

On September 6, 2009, at approximately 5:30 in the afternoon, the Ouachita Parish Sheriffs Office received a call concerning a “disturbance in progress” occurring on Burton Drive in Monroe. Corporal Jack Kottenbrook immediately responded to the dispatch. When he arrived at the scene, he observed defendant, Gene Autry Hill (“Hill”), in the middle of the street, standing above and forcefully hitting his former girlfriend, Rita Thomas (“Thomas”). As soon as Hill saw the sheriffs car approach, he ran from the scene and into his house, located on Burton. Corporal Kottenbrook waited for backup before pursuing the defendant, who eventually came out of the house on his own volition. Hill was handcuffed and placed into the back of the patrol car. Corporal Kottenbrook then checked on Thomas and took photographs of her injuries. An ambulance was called to take her to the hospital for medical assistance.

[2By bill of information, filed October 2, 2009, Hill was charged with second degree battery under La. R.S. 14:34.x. He was appointed counsel, but requested that he be able to represent himself. Hill was questioned by the trial court as to his competency to proceed pro se and warned against the dangers of self-representation. Hill was ultimately granted the right to waive counsel, but the trial court insisted on the appointment of a standby attorney.

The case was called for trial on March 29, 2010. However, the victim was unable to be located and absent from the courtroom. Because the defendant insisted that he be able to face his accuser, the trial was continued until March 31, 2010. Hill offered information concerning the victim’s whereabouts and was given permission to contact her by telephone in order to secure her presence at trial. At this juncture, Hill additionally waived his right to a trial by jury.

After successfully securing Thomas’s presence, trial was commenced on March 31, 2010. Both Thomas and Corporal Kot-tenbrook testified. Thomas’s testimony revealed that on September 6, 2009, the defendant held her in his home against her will for the entire day, where he hit her on the head with a shoe and on her knee with a baseball bat. She was able to escape from the residence; however, the defendant chased her, grabbed her by the neck and dragged her to the middle of the street where he proceeded |8to kick and stomp on her. She stated that she lost consciousness for a brief period of time. Photographs of Thomas’s injuries were submitted into evidence. The defendant testified in his own defense, denying the allegations against him. He admitted, however, that he attempted to get Thomas to come back into his house and that he placed his hand over hér mouth to prevent her from yelling, “call the police.” He acknowledged that Thomas was resisting his efforts. He defended his actions by asserting that his wallet was missing and that he believed Thomas had stolen it.

After the presentation of all evidence, both the state and the defendant gave closing arguments. The trial court then recited the applicable law and took the matter under advisement. After a brief recess, the court found the defendant guilty as charged. Hill subsequently filed a motion for new trial and a motion for post-verdict judgment of acquittal, both of which were denied. On June 30, 2010, the defendant was sentenced to five years in prison at hard labor to be served without benefit of probation, parole or suspension of sentence.

Hill filed a notice of appeal. The trial court once again explained the importance of counsel and that he was entitled to have the Louisiana Appellate Project represent him on appeal. Defendant insisted he continue pro se. Hill filed a litany of motions and writs relevant to this appeal, including various requests to supplement the appellate record.

Defendant appeals his conviction, assigning five different pro se errors.

14 Discussion

I.

In his first assignment of error, Hill claims that the trial court erred in denying his motion for a new trial. He argues that his conviction was based on the perjured testimony of Corporal Kottenbrook.

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

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

The trial court is vested with almost unlimited discretion to grant or deny a motion for new trial to serve the ends of justice, and its decision should not be interfered with unless there has been a palpable abuse of that discretion. State v. Guillory, 10-1231 (La.10/8/10), 45 So.3d 612.

|sThe only possible ground on which the defendant could seek a new trial would be under La.C.Cr.P. art. 851(5), which allows the trial court to grant a new trial in the interest of justice. Defendant complains that there is a discrepancy between the affidavit of probable cause to arrest without a warrant and the testimony of Corporal Kottenbrook. He argues that the affidavit lacks the officer’s testimony that he actually observed the defendant hitting the victim.

Under La.C.Cr.P. art. 230.2, a law enforcement officer effecting the arrest of a person without a warrant shall promptly complete an affidavit of probable cause supporting the arrest of the person. The purpose of such an affidavit is to allow for a subsequent judicial determination of probable cause. U.S. Const. amend. IV; La.C.Cr.P. art. 230.2; State v. Wallace, 09-1621 (La.11/6/09), 25 So.3d 720. The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the very name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Rodrigue, 437 So.2d 830 (La.1983). Based on these legal precepts, the arresting officer’s obligation to disclose information is broader at trial than it is in establishing probable cause. Thus, the fact that at trial Corporal Kottenbrook revealed a more complete | ^recitation of the events that took place is not indicative of an intent to provide false information; rather, it is consistent with his heightened burden of proving defendant’s guilt.

We nevertheless find that the trier-of-fact could determine that the affidavit of probable cause is entirely reconcilable with the officer’s testimony. The affidavit of probable cause in question provides in part:

A witness stated that the arr. released the viet. when I Dy Kottenbrook arrived on scene. When Dy. got out of patrol veh. several people pointed out the arr. Dy commanded the arr. to stop and the arr. then ran into his residence followed byDy.

Corporal Kottenbrook testified that when he arrived to the scene, he “observed a black male standing above a black female in the middle of the street.” “He was standing above her. He was hitting her.” Although this specific observation by the officer was not contained in the affidavit of probable cause, Corporal Kottenbrook consistently testified that this is what he witnessed on the date in question.

Because the defendant has failed to provide proof that Corporal Kottenbrook in any way perjured his testimony, this assignment of error lacks merit.

II.

Hill next argues that the record has been intentionally augmented and falsified to strengthen the state’s case. Specifically, he claims that the court 17reporter added words to Thomas’s testimony during the proceeding held on March 31, 2010. He specifically points to a portion of the transcript that reads:

He grabbed me by the neck and dragged me down the hill of a walkway. It was hill like over a carport. He dragged me down there by my neck. He drug me until he got me out in the middle of the street and then he started kicking and stomping me.

Hill asserts that the victim only spoke the first sentence and that everything which followed was added by the court reporter.

In reaching the merits of the defendant’s claim, we find that there is absolutely no evidence to support the defendant’s assertions. The court reporters signed all transcripts, attesting to their accuracy. See State v. Holmes, 99-0898 (La.App. 4th Cir. 11/8/00), 791 So.2d 669, writs denied, 01-2194 (La.6/7/02), 817 So.2d 1142 and 01-2205 (La.6/7/02), 817 So.2d 1143. Furthermore, the accuracy of the record is substantiated by defendant’s own subsequent cross examination of Corporal Kot-tenbrook:

Q: ... The victim testified that she was kicked all in the side, stomped and all that. But you have no pictures of her being injured in the side or nothing like that. Why you didn’t get none of those?
A: The side of—
Q: Of the victim being stomped and kicked on the ground by the defendant.
A: I took all the photographs that I deemed necessary to take
⅜ * * * * #
Q: The victim said she strangled by the defendant to the point where she lost consciousness.
IsA: Yes, Sir.

Hill’s questioning therefore is consistent with the victim’s testimony that he now disputes as being added by the court reporter. This assignment is without merit.

III.

Hill asserts that he was “coaxed” into becoming an “agent for the state” when he provided information concerning the whereabouts of the victim, who was allegedly homeless at the time of trial. Defendant provided the state with phone numbers where Thomas could be reached and contacted her relatives requesting her presence at trial. He alleges that these actions violated his right against self-incrimination, and as a result he was forced to take the stand to controvert the accusations lodged against him. Although he admits that he desired to face his accuser, he claims he objected to a continuance of trial.

Upon request by the defendant, this court ordered the supplementation to the appellate record of the March 29, 2010 transcript. This transcript wholly negates Hill’s contention that he was forced to provide information concerning the victim’s whereabouts. To the contrary, the state was ready to proceed to trial without calling Thomas as a witness. It was only at the insistence of the defendant that the trial court made an effort to have the victim present in court:

State: I would be making the same argument that people making in jury trials for murders. There’s no victim, but I can still prove my case without that.
Court: All right. The state believes they could prove the case without her. You’ve got to decide, sir, if she doesn’t lflsurface, which she very well may not, do you want to still go forward, or would you rather have more time to try to locate this lady. If you do want more time to try to locate her, I will be willing to give you the time. * * * Would you rather go forward without her or would you rather have her here? That’s the question.
Hill: I’d rather have her here * * * I mean, I have a right to face my accuser.

A later letter written by Hill and filed into the record on June 30, 2010, evidences his reasoning for desiring the victim’s presence at trial:

I even help the state locate the victim to be at trial knowing that once she told what really happen the day were arrested I would have been out of jail, but she gave false testimony.

Apparently Hill had false hopes that the victim would change her story and come to aid in his defense.

Critically, the record reveals that it was Hill who volunteered information pertaining to Thomas’s location. Without any solicitation on the part of the state, Hill asked the trial court, “could I sit down with [the assistant district attorney] and give him information where he can get in touch with her?” The Fifth Amendment protects only against compelled self-incrimination. U.S. Const. amend. V; State v. Charles, 09-0433 (La.9/4/09), 16 So.3d 1166. Because the defendant voluntarily provided the allegedly incriminating evidence, we cannot say that his fifth amendment rights were in any way violated.

In contradiction, Hill also opposed the trial court’s motion for continuance because he wanted the case to move forward. However, under the provisions of La.C.Cr.P. art. 712, a continuance may be granted in any case if there is good ground therefor. The grant or denial of a motion for |incontinuance is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice. State v. Morris, 43,522 (La.App.2d Cir.9/17/08), 996 So.2d 306. The decision whether to grant or deny a motion to continue depends on the circumstances of each particular case. State v. Commodore, 00-0076 (La.App. 4th Cir.11/21/00), 774 So.2d 318.

Under the circumstances of this case, we find that the trial court did not abuse its discretion in granting a continuance of two days to allow a reasonable time to locate the victim and secure her presence in the courtroom. Although the defendant opposed the continuance based on concerns over expediting the trial, he remained unwavering in his demand to face his accuser. The trial court weighed the concern for proceeding to trial with Hill’s right to confront the witness and ordered a short two-day continuance. This was within the trial court’s discretion. Accordingly, this assignment lacks merit.

IV.

Hill next complains that the prosecutor threatened to file a habitual offender bill against him if he continued to file pleadings and continued to lodge allegations of perjury against Corporal Kotten-brook. Additionally, he claims that the threat prevented a witness from testifying on his behalf during his sentencing hearing. Defendant’s sentencing was originally docketed for June 1, 2010. However, the minutes reflect that the hearing was reset for June 17, 2010. The matter was apparently delayed in order to accommodate a witness, Glenda Hill, who was expected to testify on the |n defendant’s behalf. Nevertheless, on June 17, 2010, the witness was not present in the courtroom for sentencing. Hill argues that the reason for her absence was attributable to her fear that if she testified, the state would file a habitual offender bill. However, during the June 17 hearing the court asked Hill what the witness would say had she been present. He responded, “Well, I can’t say.”

We find nothing in the record to support the defendant’s allegations. No evidence exists establishing that the witness was not present for sentencing as a result of her fear that the state would file a multiple offender bill. Moreover, defendant has been permitted to file a sizable number of pleadings in both the trial court and in this court. The prosecutor has not filed a habitual offender bill in retaliation for any of defendant’s actions. He has further denied that it was ever his intention to file a habitual offender bill against the defendant, although we note that it was well within his right to do so. Under La.C.Cr.P. art. 61, “the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” Further, the district attorney has great discretionary power to file a habitual offender bill under La. R.S. 15:529.1(D), just as he has the initial power to prosecute “whom, when, and how” he chooses. State v. Brisco, 04-3039 (La.7/6/06), 933 So.2d 754, citing State v. Dorthey, 623 So.2d 1276 (La.1993).

These claims by the defendant regarding his sentencing and the prosecution’s conduct have no merit.

_bV-

In his final pro se assignment of error, Hill claims that the trial court abused its discretion when it did “not let standby counsel assist [him] to show that the officer had [given] false testimony.” On February 9, 2010, the trial court conducted a hearing concerning the defendant’s motion to waive his right to counsel. The transcript of the hearing reveals that the trial judge repeatedly warned the defendant of the perils of self-representation and the benefits of having a seasoned attorney to represent him. The court explained the possible penalty if the defendant were found guilty of the charge against him and further explained the possible penalty if the defendant were multi-billed as a habitual offender. After Hill insisted on self-representation, the trial judge questioned him about his age, education level, mental condition and past experience in representing himself. The trial judge subsequently concluded that Hill knowingly and intelligently waived his right to counsel. Defendant’s previously appointed attorney, Elizabeth Brown, was discharged from her responsibilities; however, the court appointed her as “standby counsel.” The court explained to the defendant what was meant by the term “standby counsel”:

Standby counsel is not somebody that can say Mr. Hill, you need to do this or Mr. Hill, you should have done that, or Mr. Hill, I would suggest that these are your options, this is what you should do. What standby counsel does, and Ms. Brown could tell you because she just served in this role, is she will answer any questions you have. If you say, Ms. Brown, what does voir dire mean, she can explain that to you. Ms. Brown, how do I admit this evidence, she can explain what the process is, but she’s not going to tell you what you should or should not do because she’s not your attorney. She’s only an attorney who’s here in the event that you need to ask her a question.

_Jj2After the defendant received this explanation, he asked the court if Ms. Brown had to serve as standby counsel. The court affirmed that she would act as standby counsel, but assured the defendant that she would not advocate for him and that her function would be restricted to answering his questions.

Although he was reluctant to accept even the assistance of standby counsel, defendant now complains that he was denied her aid in attempting to prove that Corporal Kottenbrook testified falsely. A review of the record indicates that after the state completed its direct examination of Corporal Kottenbrook, the trial judge stated:

All right. Mr. Hill, what we’re going to do is in a moment we’re going to take another recess to give you an opportunity to think about whatever the questions you might have for this witness, also to consult with Ms. Brown if you need to. I do want to let you know, too, she had approached on the record to ask for what’s called a sidebar. I just want to let the record be clear. The question from Ms. Brown, is, you’ve asked her [to] give you specific direction about how to ask some certain questions of this witness. And I’ll tell you what I told her, which is that, you know, you are your own attorney and you’re the one who needs to develop your strategy and whatever questions you might have. But if she can answer your questions, then she’s asked to do so. Again, she is not prepared to defend you because she’s not your attorney. She is your legal resource and she’ll give you the best advice she can based on what she’s heard here in the courtroom in terms of whatever direction or angle you want to take. But realize she has not, you know, spent the time to prepare for this witness and prepare what you should or shouldn’t ask.

The trial judge then called a recess so that the defendant could ask Ms. Brown questions and prepare for the questioning of the witness. At the conclusion of the recess, Brown stated for the record, “I was just going to say that we did speak, and I think I answered anything he asked me concerning that.”

114Both the Louisiana and United States Constitutions guarantee a criminal defendant’s right to the assistance of counsel. Nevertheless, a defendant may elect to represent himself if the choice is “knowingly and intelligently made” and the assertion of the right is “clear and unequivocal.” U.S. Const. amend. VI; La. Const, art. I, § 13; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Brown, 03-0897 (La.4/12/05), 907 So.2d 1. In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the United States Supreme Court confirmed the right of a criminal defendant to represent him or herself pro se while allowing the trial court to appoint standby counsel “to explain and enforce basic rules of courtroom protocol.”

A criminal defendant does not have the right to act both as “represented and representative” due to the potential for disruption of the trial process. State v. Brown, supra. “Hybrid” representation does allow a defendant the right to defend himself as co-counsel while standby counsel explains and enforces the basic courtroom rules, as long as standby counsel’s participation does not seriously undermine the defendant’s appearance as representing himself before the jury. Brown, supra.

A defendant performs the core functions of an attorney’s traditional role when he formulates his own trial strategy, determines his own theory of the defense, chooses the witnesses to subpoena and to call to the stand, formulates the questions to be asked of the witnesses, and performs the opening and closing statements. State v. Mathieu, 06-946 (La.App. 5th Cir.5/29/07), 960 So.2d 296, writ denied, 07-1424 (La.2/1/08), 976 So.2d 714. |15An attorney functions in an advisory capacity when he is not the controlling strategist, but rather helps the defendant with procedural matters and proper courtroom conduct. Id.

A defendant who waives the right to counsel is entitled to withdraw that waiver and reassert the right. United States v. Taylor, 933 F.2d 307 (5th Cir.1991). Of course, a defendant’s rights to waive counsel and to withdraw that waiver are not unqualified. A trial court need not countenance abuse of the right to counsel or the right to waive it. A defendant is not entitled to “choreograph special appearances by counsel,” McKaskle v. Wiggins, supra; cf. State v. Brown, supra. Nor is he allowed to alternate his position on counsel in order to delay his trial or otherwise obstruct the orderly administration of justice. E.g., McQueen v. Blackburn, 755 F.2d 1174, (5th Cir.1985), cert. denied 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985) (trial court must be wary of late request to change counsel which could impede the prompt and efficient administration of justice); United States v. Magee, 741 F.2d 93, (5th Cir.1984) (trial court has discretion whether to grant request to change counsel on the morning of trial).

Hill’s waiver of counsel was clear and unequivocal as well as knowing and intelligent. He stated time and again that he wanted to represent himself. The court gave Hill ample opportunities to consult with his standby attorney by providing numerous recesses in between the questioning of witnesses. Hill never sought to withdraw his waiver of 11ficounsel, not even during the examination of the officer. This assignment lacks merit.

VI.

In a final matter, Hill has belatedly raised by motion to this court a request for appointment of appellate counsel. The motion was filed after Hill’s prior appellate brief and after the docketing and submission of his case on appeal.

The Constitution assures the right to counsel not only at the trial stage of a criminal proceeding, but also for initial appeal from the judgment of conviction. State v. Hampton, 595 So.2d 881 (La.App. 2d Cir.1992), writ denied, 598 So.2d 375 (La.1992), citing Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989).

At Hill’s sentencing hearing, the appeal of Hill’s case was discussed. Hill’s standby counsel reported that she had advised him of the procedural requirements. The trial court then told Hill that he should consider having the Louisiana Appellate Project appointed to represent him. The court also advised Hill that he would be allowed to file his own brief on appeal in addition to the brief filed by appointed counsel. Nevertheless, Hill maintained his waiver of the right to counsel. He now attempts to withdraw his waiver of appellate counsel claiming that the recently received transcript of the March 29, 2010 hearing, supplemented into the appellate record, has been “altered to show I asked that the victim be present at trial.”

Hill’s request for appellate counsel and his withdrawal of his prior waiver are untimely. The need for possible correction of the transcript, 117which rests upon Hill’s bare assertion, does not justify appellate counsel. Any issue with the accuracy of the transcript is a matter which is now better addressed through a post-conviction relief proceeding. Hill’s motion is denied.

VII.

An error patent review reveals a sentencing error. The defendant’s sentence for second degree battery was imposed without benefit of parole, probation, or suspension of sentence, contrary to the sentencing provision of the second degree battery statute. La. R.S. 14:34.1(C). According to La.C.Cr.P. art. 882(A), “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” Because the statute does not provide that the sentence is to be imposed without benefit of probation, parole or suspension of sentence, we amend Hill’s sentence to delete this prohibition.

Decree

For the foregoing reasons, the defendant’s conviction is affirmed. The defendant’s five-year sentence is amended to delete the prohibition against suspension of sentence, probation or parole eligibility and his sentence is affirmed as amended.

AFFIRMED AS AMENDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.

      . Hill was originally charged with second degree battery, false imprisonment and flight from an officer.

      . Apparently the state was unable to locate the victim because she was homeless.

      . A protective order was otherwise in place preventing Hill from making such contact with the victim.

      . On February 15, 2011, this court granted one of defendant's motions to supplement the appellate record with the transcript from the March 29, 2010 proceedings.

      . We note that this issue has already been presented to this court by way of defendant’s prior writ application titled "Motion to Correct Record testimony Transcript on App. and minute of the Trial ct.” The trial court previously denied such motion and in doing so, stated "this court conducted an in camera review of the recorded testimony of the victim and found the transcription of the questionable portions of the victim’s testimony to be a verbatim dictation of what was said at trial." This court found that the trial court did not abuse its discretion in denying the motion because it was without jurisdiction or authority to amend the record because it did not find a clerical error requiring such amendment, citing State v. Rider, 201 La. 733, 10 So.2d 601 (1942); State v. Jones, 116 La. 51, 111 So. 492 (1926); State v. Camp, 326 So.2d 644 (La.App. 2d Cir.1975).


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Michael BRANDNER and Cynthia Brandner v. STAF-RATH, L.L.C.
    No. 10-CA-778.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Leonard L. Levenson, Christian W. Helmke, Colleen Boyle Gannon, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Stephen P. Schott, Brodie G. Glenn, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT L. LOB RANO, Pro Tempore.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡.This breach of contract dispute concerns the failed sale of immovable property. At the heart of this controversy is whether there was a valid agreement to purchase the real estate; and, if valid whether there was an oral modification of the agreement. The trial judge concluded there was a valid agreement and that the purchasers, plaintiffs/appellants, Michael Brandner and Cynthia Brandner, defaulted on the agreement by failing to go forward with the act of sale on the date of closing, January 8, 2007. The trial judge awarded the owner, defendant/appellee, Staf-Rath, LLC (Staf-Rath), $56,500, in interest, costs, and attorney’s fees. He dismissed the plaintiffs’ case-in-chief. We amend the judgment, and as amended affirm.

Facts

lain 2006, Staf-Rath owned a large warehouse-like structure located at 5504 South Lambert Street in Harahan, Louisiana (the Property). Raymond Rathle was the managing member of the firm. At that time, Mr. Rathle’s company, Carnival Brands, Inc., a food processing company, leased the Property from Staf-Rath on a monthly basis. In October 2006, after Hurricane Katrina, Staf-Rath decided to sell the Property.

After the hurricane, Mr. Rathle repaired the building and obtained a conditional use to operate Carnival Brands once again from the United States Department of Agriculture. The company needed an approved USDA facility. But Mr. Rathle could not get regular workers. Thus, he decided to sell Carnival Brands, its inventory, as well as the building.

Carnival Brands’ assets consisted of two freezers (with separate lines), a walk-in cooler, a free-standing cooler, movable fixtures, stainless steel tables, two kettles, pallet racks that contained dry storage materials, bags, boxes, desks, file cabinets, pots, and pans. Carnival Brands also used food processing equipment that was installed in the building. The processing equipment consisted of a cooker, a freestanding sink and tank, a chill bath with water to chill down food, and an outside boiler with a natural gas coupling. At the time that Mr. Rathle purchased the processing equipment and placed it in the building for Carnival Brands, he required the services of a licensed electrician, a licensed plumber, a certified welder, and a general contractor. Mr. Rathle estimated the removal of the processing equipment, including capping off lines, could take a week to three months. He estimated it would cost $25,000 to remove and transport the equipment and $50,000 to hook it up elsewhere.

Michael Brandner, who owned nearby property, was interested in purchasing the Property as an investment; he was not interested in operating the food ^processing business. Also, he wanted the processing equipment and inventory removed before closing. He and his wife, Cindy Brandner, signed an offer to purchase the Property on October 3, 2006. Robert M. Israel, Staf-Rath’s realtor, and Kathleen Brandner (Ms. K. Brándner), the Brandners’ realtor, assisted the parties in the sale negotiations.

Mr. Israel, as the seller’s agent, signed accepting the October offer on or about October 3 or 4, 2006. On October 3 and 4, 2006, the Brandners tendered the deposit by check and promissory note, respectively. Mr. Rathle signed the offer (as altered and initialed by him in two respects) on October 5 and October 6, 2006.

The offer contained a “removal” provision that required the seller to remove certain items, including the food processing equipment, prior to the act of sale:

Prior to the act of sale, Seller shall remove all movable furniture, fixtures and equipment at the seller’s expense per the Carnival Brands Partial Asset Inventory Report as of 6/1/05 attached hereto, and shall remove the coolers and refrigeration equipment and partitions per the property plan labeled “Exhibit A.” All electrical, gas and/or plumbing lines that fed said equipment and fixtures to be removed and shall be capped in a professional and workmanlike manner per all applicable codes.

The closing for the act of sale was set for January 8, 2007. On January 8, the processing equipment had not been removed.

From mid-November 2006 until the weekend before the closing, however, the Brandners were negotiating a lease with Pigeon Catering, Inc. (Pigeon) through its principal J.P. Pigeon.

Mr. Pigeon, Mr. Rathle’s friend, had been in business for 11 years. His equipment supplier told him about Mr. Rathle’s newspaper advertisement to sell food processing equipment. He contacted Mr. Rathle and offered to purchase the equipment. Mr. Pigeon was also interested in purchasing the building and using the equipment located there. The building had a USDA certification, a valuable 15asset. At the time, Mr. Pigeon operated a restaurant-style kitchen that was not USDA certified. The USDA certification piqued his interest in the building. Mr. Rathle, however, informed Mr. Pigeon that the building was already under contract. But he informed Mr. Pigeon that the purchaser might be interested in leasing the property to Mr. Pigeon. Later, on December 22, 2006, Mr. Pigeon purchased Carnival Brands’ assets. Mr. Pigeon testified that he purchased the assets while also negotiating a lease with the Brandners intending for the processing equipment to remain in the building. He stated that “everyone involved understood that this was critical to the [lease] deal [with the Brandners].”

Mr. Rathle testified that if he were to undertake the daunting task of removing the integral processing equipment from the building during the lease negotiations, he would undermine Mr. Pigeon’s plans for operating his business.

Unfortunately, although all parties anticipated a lease agreement before the closing on the sale of the Property, all lease negotiations abruptly ended on the Saturday before the Monday closing when Mr. Pigeon withdrew. The parties, including Mr. Pigeon, proceeded to the act of sale on January 8, 2007. At the closing, Staf-Rath tendered title, and the Brandners, through their attorney, Mr. Raymond Landry, rejected the tender although the purchasers had the funds available to proceed with the transaction. Mr. Brandner relied on the “removal” provision and did not purchase the property because processing equipment remained in the building. According to Ms. K. Brandner, the Brand-ners’ realtor, the term, “equipment,” included the “partitions” as well.

Mr. Israel testified that he returned the Brandners’ cash portion of the deposit. Mr. Rathle stated that he attempted to salvage the sale and that the removal process was completed by January 19. Negotiations between the Brandners and, Mr. Rathle after January 8 failed.

|fiThe agreement to purchase provided for specific performance or alternatively damages, attorney’s fees, and costs in the event of failure to comply with the agreement within the time specified. After the failed sale, the Brandners filed suit against Staf-Rath alleging that Staf-Rath defaulted by failing to remove the processing equipment before closing. Staf-Rath in turn filed a reconventional demand alleging that the Brandners were in default for failing to go forward with the sale.

In addition to finding a valid agreement, the trial judge concluded that there was an oral modification of the “removal” provision of the agreement based on lease negotiations between the Brandners and Mr. Pigeon, which showed the intent for the processing equipment to remain in the building.

Analysis

The crux of the Brandners’ case on appeal is that there was no valid contract, i.e. a meeting of the minds; and, even if valid, then Staf-Rath breached the contract. Appellants also assert that in the event the Court finds a valid contract, the contract expired on its own terms when no act of sale occurred. Finally, if valid, they seek damages under the contract.

In addressing appellants’ arguments, we consider the basic precepts concerning the contractual requirements of an agreement to purchase immovable property.

A contract is formed by the consent of the parties established through offer and acceptance. La.C.C. art. 1927. A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La.C.C. art. 1906. An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer. La.C.C. art. 1943.

|7A contract to sell must set forth the thing and the price, and meet the formal requirements of the sale it contemplates. La.C.C. art. 2623. A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839. La.C.C. art. 2440.

Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. La.C.C. 2439. The thing, the price, and the consent of the parties are requirements for the perfection of a sale. Id.

An option to purchase an immovable must be evidenced in writing. La. C.C. art. 2440. A contract to purchase and sell real estate is not valid unless given in writing and an extension of the time stipulated for passage of title to property in a written contract to purchase and sell real estate must also be in writing. Harrell v. Stumberg, 220 La. 811, 57 So.2d 692, 694. In accordance therewith, it is well settled that parol evidence may not be used to establish title to immovables. Blevins v. Manufacturers Record Pub. Co., 235 La. 708, 105 So.2d 392, 414 (La.1957) (citations omitted).

Thus, when the use of parol evidence is not for the purpose of establishing title to immovables, parol evidence may be admitted in the interest of justice to prove a modification of a written act by a subsequent and valid oral agreement. La.C.C. art. 1848. Mooers v. Sosa, 01-286 (La.App. 5 Cir. 9/25/01), 798 So.2d 200, 206 (citations omitted).

| sAIthough parol evidence is inadmissible to vary the terms of a written contract, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1286 (La.1997) (citation omitted). If the terms of a written contract involving real estate are ambiguous or if the intent of the parties is an issue, parol evidence can be used to enforce the terms of such an agreement rather than invalidate or destroy the contract. Drachenberg v. Parish of Jefferson, 563 So.2d 528, 525 (La.App. 5 Cir.1990) (citation omitted; internal quotations omitted).

The question of ambiguity in a contract is one of law. River Oaks, Inc. v. Blue Cross of Louisiana/Louisiana Health Service & Indem. Co., 595 So.2d 785, 788 (La.App. 5 Cir.1992), writ denied, 598 So.2d 361 (La.1992) (citation omitted). However, when the interpretation of the contract is based upon factual findings, such as intent, then the issue is subject to a review for manifest error. Id.

The determination of the existence of a contract is a finding of fact, not to be disturbed unless clearly wrong. Color Stone Intern., Inc. v. Last Chance CDP, LLC, 08-35, pp. 5-6 (La.App. 5 Cir. 5/27/08), 986 So.2d 707, 712 (citations omitted). An appeals court may not set aside a trial court’s ruling as to the existence or non-existence of a contract in the absence of manifest error. Id.

Preclusion Argument

Among other things, Staf-Rath asserts that the appellants cannot claim for the first time on appeal that there was no valid purchase agreement.

The Brandners’ argument that there was no valid agreement is based on the introduction at trial of various versions of the purchase agreement and alleged | ^accompanying attachments, which both parties introduced at trial. Although the Brandners did not raise the issue of whether there was a binding agreement until their motion for new trial, the pleadings were enlarged during the trial and the trial judge, in deciding the motion for new trial specifically clarified that he had found that there was a sales agreement agreed upon by all parties. Therefore, the trial judge evidently considered that the issue was properly before him since various versions of the agreement were introduced into evidence by both parties. Thus, the question of which version, if any, was binding was squarely before the trial judge and the court did not have to unilaterally divine a defense not previously raised. Accordingly, we conclude that the validity of the agreement is properly before this court.

Now, in light of the various versions introduced at trial, we turn to the issue of whether there was a valid and enforceable purchase agreement.

The Agreement

At trial, the parties introduced a joint exhibit, which was a copy rather than an original purchase agreement. The two-page purchase agreement (the “Agreement”) contained the signatures of both parties. Despite having no original purchase agreement that contained the signatures of both parties, it was undisputed that the two-page Agreement in large part constituted the agreement by the purchasers and seller. Thus, we are unpersuaded by appellants’ argument that simply because various versions of the Agreement were introduced at trial, there was no binding agreement.

|inWe now turn to appellants’ argument that there was no meeting of the minds because Mr. Rathle’s alterations of the Brandners’ signed two-page Agreement constituted Mr. Rathle’s counteroffers that the Brandners never accepted.

The two contract provisions that lie at the heart of the dispute as to the validity are a “removal provision” and a provision setting the date for the act of closing. These two provisions are ambiguous and the judge properly relied on parol evidence to show the intent of the parties given that the evidence was not used to establish title to the immovable. See: Drachenberg, supra; Blevins, supra.

Closing Date

Unquestionably Mr. Rathle, who signed the Agreement on October 5 and 6, 2006, admitted that he altered the wording on the Agreement that the Brandners signed on October 3, 2006 and submitted to him. By a handwritten initialed notation, he offered to extend the closing date an additional 15 days, i.e., from 30 days to 45 days after the expiration of the 45-day “Contingency Period.” The Agreement that the Brandners signed set the closing date at 30 days after the expiration of the “Contingency Period.” The Agreement further specified that the “Contingency Period” was 45 days “after the acceptance of this Agreement by all parties.” Thus, Mr. Rathle offered to close 90 days after all parties “accepted” the Agreement, while the Brandners’ original offer to close was 75 days after “acceptance.”

The term “Contingency Period” is ambiguous because it does not define what constitutes “acceptance [of] the agreement by all parties.” The closing date set forth in the Agreement is confusing especially in light of the fact that the Brandners and Mr. Rathle signed the Agreement on different dates and Mr. Rathle |n signed twice: first on October 5, 2006 and again on October 6, 2006. The Agreement does not specify whether the period began to run from the date the parties mutually accepted the Agreement or rather from either the earliest or the latest date that either party signed the Agreement. It is also unclear whether the time ran from the date of Mr. Israel’s signature, who as the seller’s agent, signed accepting the Brand-ners’ offer on or about October 3 or 4. If the closing date ran 75 days from the latest date of signature, the original closing date was December 20, 2006. However, in her e-mail of November 8, 2006, Ms. K. Brandner (the Brandners’ realtor) wrote to Mr. Israel (Mr. Rathle’s realtor) that she calculated the closing date to run from October 4, 2006. She testified she thought the closing date was January 2, 2007 (90 days after “acceptance”). She stated that she asked Mr. Landry, the Brandners’ closing attorney, about his appreciation of the closing date and whether they could extend it to January 8 because the Brandners were out of town. She also asked Mr. Landry whether they needed an addendum to the Agreement to extend the date. According to Ms. K. Brandner, Mr. Landry told her an addendum was unnecessary for such a short period.

The October 4th date was the date next to Ms. K. Brandner’s signature on the second page of the two-page Agreement. October 4th was also the date that the Brandners tendered the promissory note as a deposit, having tendered the cash portion on October 3rd. Mr. Israel testified that the Agreement signed by the Brandners was given to Mr. Israel to present to Mr. Rathle to accept on or about October 3 or 4.

According to Ms. K. Brandner’s November 8, 2006 e-mail to Mr. Israel, the original closing date ran 90 days after October 4, 2006. Previously, on October 4, 2006, Mr. Israel sent a cover fax with the Agreement to Ms. K. Brandner, which Ms. K. Brandner acknowledged receiving and which read:

112Katie [Ms. K. Brandner], please note I added 15 days to closing date and seller will not remove added walls by purchaser. Ray [Mr. Rathle] met with his equipment guy today and he told him it could take at least 60 days to move everything. Thanks, Robert.

On November 8, 2006, Ms. K. Brandner responded to Mr. Israel by e-mail stating:

I talked to Mike and he would prefer to keep the 90 days as we planned. So that should be 90 days from October 4th.

Thus, through her written communication, Ms. K Brandner stated that the parties agreed that the closing would take place 90 days from October 4th. Although Mr. Brandner testified that he was unaware of Mr. Israel’s fax, Ms. K. Brandner testified that anything she received from Mr. Israel, she showed the Brandners.

Mr. Brandner testified that Mr. Rathle asked him for 90 days but Mr. Brandner only agreed to give him 60 days. The Agreement that Mr. Brandner signed sets the delay as 75 days and not 60. Mr. Brandner believed that the 60 days went beyond or right at the closing. But, Mr. Brandner also testified that he thought they had increased the days from 30 to 45 (Mr. Rathle’s initialed change). He did not recall because he did not have the Agreement in front of him. When asked whether he also agreed to extend the closing deadline, he replied that everybody agreed that the closing would be January 8.

Our review of the record reveals that the parties intended the 90 days to run after the “acceptance” date of October 4th. Since Mr. Rathle had altered (and initialed) the closing date by extending it 90 days from “acceptance,” there was a clear meeting of the minds as to the closing date.

Furthermore, Ms. K. Brandner and Mr. Brandner testified that the closing date selected was agreed upon by all the parties. Ms. K. Brandner stated that after she calculated the initial closing date, the date was extended a few days from | ^January 2nd to Monday, January 8th because the Brandners were out of town and there were other scheduling conflicts.

In written documents, before the January 2nd deadline, the parties confirmed that the closing date was again extended to January 8, 2007 or late January 2007.

On December 26, 2006, Ms. K. Brandner sent an e-mail to Mr. Israel (Mr. Rathle’s realtor) stating in part:

I wanted to know what the status of the lease was. Mike and Cindy are leaving to go out of town for a week tomorrow. Does it need to be singed [sic] before they leave or can they sign it when they come back? It is still my understanding that the tentative closing os [sic] on Monday the 8th. Is that your understanding?

Mr. Israel did not respond by e-mail to Ms. K. Brandner’s question about the closing date. However, on December 22, 2006, Mr. Rathle signed an agreement to sell certain assets of his company, Carnival Brands, to Pigeon effective January 1, 2007. The contract contained a section concerning the purchaser’s responsibility to move the transferred property:

Vendor and Purchaser recognize that the facility at the Municipal Address stated above [the Property] where the equipment is located may be sold by the end of January, 2007 and, that, if Purchaser herein is not the purchaser of the immovable property at the aforesaid Municipal Address, Purchaser shall have the sole responsibility to move the Property transferred herein at his expense should Purchaser not agree to lease or buy the facility from the new owner.

Thus, there is a writing evidencing Mr. Rathle’s agreement to extend the closing date to as long as late January.

Moreover, there was a written e-mail communication on January 4, 2007 from Ms. K. Brandner to Mr. Israel stating: “I told the Brandner’s [sic] and Raymond [Landry] that we would like to have everything done [the lease] and signed by all parties by tomorrow evening as the closing is on Monday [January 8th].

1 uMr. Israel responded to Ms. K. Brand-ner that date by e-mail that his draft of the Pigeon lease provided that the lease started on January 15, a week after the closing. Thus, both before the expiration period of January 2nd and thereafter, the parties evidenced in writing an agreement to extend the closing date.

Accordingly, we find no error on the part of the trial court in concluding there was a meeting of the minds and a valid agreement.

“Removal” Provision

There are two aspects to the “removal provision.” The first portion refers to the removal of “all movable furniture, fixtures and equipment at the seller’s expense” per an inventory report “attached hereto.” The second portion (at issue here in appellants’ challenge to the validity of the contract) mandates the seller’s removal of “the coolers and refrigeration equipment and partitions per the property plan labeled ‘Exhibit A.’ ” Unlike the inventory report, the provision does not state that ‘Exhibit A’ is attached.

At trial, the parties introduced different purported attachments to the Agreement.

According to Ms. K. Brandner, the Brandners’ realtor, she and Rich Stone added Lines 37 through 41, a “removal” provision, to page 1 of their prepared form Agreement.

| )5We note that those lines referred to “Exhibit A.” All versions of the Agreement introduced at trial contained the following “removal” provision (emphasis in original):

Prior to the act of sale, Seller shall remove all movable furniture, fixtures and equipment at the seller’s expense per the Carnival Brands Partial Asset Inventory Report as of 6/1/05 attached hereto, and shall remove the coolers and refrigeration equipment and partitions per the property plan labeled “Exhibit A.” All electrical, gas and/or plumbing lines that fed said equipment and fixtures to be removed and shall be capped in a professional and workmanlike manner per all applicable codes.

According to Mr. Brandner, the offer had one attachment; namely, the property’s interior floor plan identifying the partitions that Mr. Brandner wanted Mr. Rathle to remove prior to the act of sale. In contrast, Mr. Rathle identified two attachments: a floor plan diagram and an inventory list. Mr. Rathle stated that the partial inventory list comprised the Carnival Brands Partial Asset Inventory Report, which he approved. He explained that these were fixtures in the building and not part of the structure. The parties do not dispute the inventory’s accuracy.

At trial, the parties identified a different version of the floor plan diagram that they respectively approved. In essence, Mr. Brandner testified that he approved the diagram indicating that certain partitions needed to be removed by the seller while Mr. Rathle identified a diagram that eliminated that requirement. Neither of these diagrams contained the initials of both parties. Mr. Rathle’s purported diagram only contained his initials while Mr. Brandner’s purported diagram contained none. Further, Mr. Brandner testified he did not know who had drawn arrows on the diagram he approved referencing the partitions.

hfiln contrast to their trial testimony, both parties submitted affidavits in connection with a motion for summary judgment wherein each identified the other party’s trial version of the diagram as the correct one. The affidavits were introduced into evidence at trial without objection. Mr. Brandner’s affidavit was introduced jointly in the bench book while Mr. Rathle’s affidavit was introduced by the Brandners’ counsel. At trial, Mr. Brandner and Mr. Rathle testified that their affidavits were incorrect with respect to the prior identification of the diagram.

Thus, Mr. Brandner’s testimony at trial was inconsistent with his pretrial affidavit. Likewise, Mr. Rathle’s testimony at trial was also inconsistent with his pretrial affidavit in the same respect.

The term “partitions” is ambiguous because it is not defined in the Agreement. The Agreement is also ambiguous because the words “per the property plan labeled ‘Exhibit A’ ” are insufficient to incorporate any “Exhibit A” identified by the parties. We note, however, that although there was disagreement regarding the meaning of the term, Mr. Rathle did not strike any mention of the word “partitions” from the “removal” provision on the first page of the Agreement that he signed. Therefore, there was a meeting of the minds and a valid contract between these parties such that the parties agreed that before closing the “partitions” would be removed.

Since the Agreement, however, did not define “partitions,” the trial judge properly considered parol evidence to determine the intent of the parties in that regard. In doing so, the trial judge found that there was an oral modification of the Agreement where the parties agreed that removal of any items was suspended and did not have to be completed prior to closing during the Pigeon lease negotiations. |i7For the reasons that follow, we find no manifest error in the trial judge’s finding that there was an oral modification of the “removal provision.”

Lease Negotiations

It is undisputed that there was no written modification of the “removal” provision. Staf-Rath argues, however, that the “removal” provision was modified by virtue of the lease negotiations, which made it impossible to remove the items since the lessee would not otherwise lease the Property. Thus, removal of the equipment would impair the lease negotiations.

While it is undisputed that there was no lease agreement between Pigeon and the Brandners, the evidence and testimony introduced at trial overwhelmingly supports the trial judge’s determination that the parties anticipated a lease agreement between the Brandners and Mr. Pigeon before the closing.

Prior to closing, Mr. Israel and Ms. K. Brandner exchanged several e-mail communications discussing the terms of a potential lease of the Property between the Brandners and a tenant. At first, in late October 2006, Mr. Israel proposed that the Brandners sell their contract because a potential tenant had inquired about that possibility. The Brandners, however, rejected the $50,000 offer to sell their contract.

On November 13 and 15, 2006, Ms. K. Brandner sent e-mails to Mr. Israel indicating that Mr. Brandner preferred that the tenant purchase the equipment and remove the equipment as well as perform repairs upon expiration of the lease. The November 13 e-mail stated:

I spoke with Mike. He is interested but is hesitant on only doing a 1 yr lease. He would like to do a longer one ... Also, he wants to make sure that the tenant will be buying the equipment from Raymond [Rathle] and at the end of the lease term will take the equipment with him and repair all damages, etc., as Raymond [Rathle] would be doing now. Let me know what you think.

11sThe November 15th e-mail stated:

I am doing everything on my end to have this work out as well. Mikes [sic] big concern was the equipment. But if the tenant buys it from Raymond [Rathle] and we make sure that in the lease the equipment goes with the tenant and the tenant repairs any damage done to the property, capping off lines, etc. with the removal, I know Mike would go for it. Also if we can do the lease together that would be great as well. Just let me know what he says and I will get the information to Mike. I will keep my fingers crossed that it works out.

Before the closing, Mr. Rathle and Mr. Brandner discussed the potential tenant. According to Mr. Brandner, he advised Mr. Rathle that Mr. Rathle would be taking a risk because Mr. Rathle still had the obligation to remove the equipment by the time of closing. However, Mr. Brandner also testified that when Mr. Rathle approached him about the potential tenant, he responded, “okay.” According to Mr. Rathle, Mr. Brandner confirmed that Mr. Rathle did not have to remove the equipment because of the potential tenant.

Based on that conversation, Mr. Brand-ner testified that he canceled his appointment with his contractor, Roger Obano of Alternate Construction, who had been scheduled to perform renovations of the Property. Mr. Brandner stated that scheduling such work was a challenging task given the post-Hurrieane Katrina climate.

On December 22, 2006, Mr. Israel prepared a draft of the lease that Mr. Pigeon signed. At the time, Mr. Israel believed that he had received all of the anticipated comments from Mr. Brandner. However, Ms. K. Brandner, with whom he had been communicating through e-mail, was also communicating with Mr. Landry, the Brandners’s attorney. Although Ms. K. Brandner testified that she forwarded Mr. Landry’s comments concerning the proposed lease, Mr. Israel never received those. Mr. Pigeon believed that the lease agreement was final when he signed it on the 22nd. On that day, Pigeon Catering purchased most of the assets |19from Carnival Brands. Some of the equipment Pigeon purchased required dismantling and/or disconnection upon removal.

Mr. Rathle testified that based on the emails, he believed that the lease was complete then. Based on that belief, Mr. Rathle sold his equipment to Mr. Pigeon that day. Mr. Rathle explained that if Mr. Pigeon had declined the offer to purchase the equipment because he did not think he had a lease, Mr. Rathle stated he would have begun removing the equipment from the Property. According to Mr. Rathle, on that date, he still had time to remove the equipment.

Mr. Pigeon testified that he purchased the equipment with the understanding that he would be able to leave the equipment in the building and operate his business. Ms. K. Brandner agreed that it would have made no sense to remove the equipment, conduct inspections, sign a lease, and then require the tenant to bring his equipment back in. She agreed that it was possible that the tenant might have decided he did not want the building had the equipment been removed. Ms. K. Brandner agreed that 3 1/2 weeks or so after the Agreement was signed, she stopped having discussions and e-mails with Mr. Israel about the removal of the equipment because at some point she believed it was not going to be necessary.

Mr. Pigeon moved into the building and started familiarizing himself with Carnival Brand food processing. The act of sale of the equipment provided that it was Mr. Pigeon’s responsibility to remove the equipment. According to Mr. Rathle, Mr. Pigeon was interested in buying the company, Carnival Brands. In January, after the lease occurred, Mr. Pigeon would purchase the company.

In addition to Mr. Israel, who acted on behalf of Mr. Pigeon, Mr. Pigeon’s lawyer, Mr. Randy Opotowsky, was also involved in the lease negotiations. Mr. Opotowsky and Mr. Landry (the Brandners’ attorney) exchanged e-mail | ^communications concerning the lease. Finally, on January 6, 2007 at 11:37 AM, Mr. Opotowsky testified that he believed from e-mail communications with Mr. Landry that there was at least an agreement in principle between himself and Mr. Landry as to what the lease was going to say. Mr. Landry testified that he too believed there was a lease that the respective attorneys were comfortable recommending to their clients to sign.

On January 5, 2007 in connection with the anticipated lease of the Property, the Brandners through their LLC company signed a two-year lease document commencing on January 1, 2007 with a renewal option. Mr. Landry testified that the purpose of signing the lease was that they thought this was the final version of the lease to go forward on Monday.

The document had signature lines for Pigeon as lessee. That document also had a provision specifying the manner in which the lessee’s property would be handled in the event of default and at the termination of the lease, including the lessor’s ownership of the property following default. The proposed lease did not expressly refer to the Carnival Brands’ assets acquired by Pigeon. As previously noted, the assets included the food processing equipment. On January 6, 2007 Mr. Landry agreed to a proposed addendum to the Agreement (submitted on behalf of Staf-Rath), which addressed the Carnival Brands’ assets to state in pertinent part: “[T]he parties hereto agree that the Agreement to Purchase or Sell is hereby amended to allow those assets purchased by Pigeon Catering, Inc., the Lessee from Seller, to remain on the Property and that Seller’s Obligations under the Agreement to Purchase or Sell are deemed satisfied as modified herein[.]” The addendum was never signed.

Attorney Ashley Belleau, who drafted the addendum on behalf of Staf-Rath, testified that she prepared this addendum to memorialize the agreement by the | nparties that Pigeon had purchased the equipment from Carnival Brands and the equipment was going to remain because Pigeon was leasing the property from the Brandners.

The negotiations, however, broke down on January 6, 2007 about an hour after the 11:37 AM anticipation of an imminent lease. Mr. Opotowsky sent an e-mail to Mr. Landry advising him that Mr. Pigeon was rethinking the lease and the space it provided. Mr. Opotowsky advised Mr. Landry through that e-mail that Mr. Pigeon was withdrawing any prior offer. All negotiations ended at 7:17 PM on the Saturday night before the Monday closing when Mr. Opotowsky sent an e-mail to Mr. Landry advising him that Mr. Pigeon decided not to lease the building. Mr. Brandner testified that until approximately 7:17 PM that Saturday night, he had expected that there would be a lease agreement with Pigeon.

Mr. Rathle testified that he was aware of the breakdown in lease negotiations for the first time on Friday at 3:00 PM.

Mr. Pigeon stated that he appeared on the date of closing for the purpose of honoring the December 22 lease that he had previously signed.

Mr. Brandner stated that he showed up at Mr. Landry’s office on January 8, 2007 because they were obligated and bound by the contract to appear and they were ready to complete the transaction. However, he did not purchase the property that day because the equipment was still in the building. He also testified that he did not care about the lease. He wanted to purchase the building. He stated that he later learned that the lease reduced the building’s appraised value.

In an attempt to resolve matters, Ms. Belleau prepared an addendum to the Agreement the day of closing. This addendum was never signed. It proposed allowing Pigeon 60 days to remove the assets it purchased. It also provided that LaPigeon might not enter into a lease agreement and that Staf-Rath’s obligation under the “removal” provision of the Agreement was modified.

Ms. Belleau explained that because of the anticipated lease, the parties had already agreed that the items need not be removed. At the closing, Mr. Pigeon said that he was ready and willing to go forward and lease the Property so therefore the agreement to leave the assets in the property would have still been applicable.

In this case, the trial judge appropriately relied on parol evidence to find that there was an oral modification of the “removal provision” through implication by the parties’ actions. See: Aqua Pool Renovations, Inc. v. Paradise Manor Community Club, Inc., 04-119, pp. 5-6 (La.App. 5 Cir. 7/27/04), 880 So.2d 875, 880 (citation omitted) (Modification of a written agreement can be presumed by silence, inaction, or implication.). The parol evidence was not used for the prohibited purpose of establishing title to immovables. See: Blevins, supra.

Here, there was an oral modification of the agreement to purchase in that Mr. Rathle was freed from the obligation of removing the items prior to the act of sale. It is inherent in the actions of the parties that Mr. Rathle, although not fully relieved of his obligation to remove the items, would be given a reasonable time in which to remove them. This is evident by the fact that the Brandners contemplated that if a lease had been executed, the lessee, Pigeon, would have been required to remove these items at the expiration of the lease, which was certainly longer than the time between the date of the agreement to purchase and the closing. Moreover, the ongoing lease negotiations and the potential of a lease made it impossible for Mr. Rathle to remove the equipment on the eve of closing. Accordingly, we find no manifest error in the trial judge’s factual findings.

Finally, appellants argue that the deal was dead on January 8 and that any arguments on the part of Staf-Rath that the Brandners breached the Agreement by | ¡^failing to close after January 19th when the equipment was removed is baseless. Since we find no error in the trial’s judge’s finding that the breach occurred on January 8, this issue is moot.

Defective Judgment

Staf-Rath filed two reconven-tional demands in this case against the Brandners and Ms. K. Brandner, respectively. The judgment simply renders judgment in favor of Staf-Rath “on its reconventional demand” without naming the party cast in judgment. A final ap-pealable judgment must name the party against whom the ruling is ordered. Input/Output Marine Systems Inc. v. Greatbatch, et al., 10-477, p. 13 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 916, citing Johnson v. Mount Pilgrim Baptist Church, 05-337, p. 3 (La.App. 1 Cir. 3/24/06), 934 So.2d 66, 67. The failure to name any defendant against whom the judgment was rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom the judgment may be enforced. Id.

This matter proceeded with a bench trial on the Brandners’s main demand and Staf-Rath’s reconventional demand against the Brandners. Staf-Rath’s counsel informed the court at trial that the parties had settled the incidental actions. Therefore, Staf-Rath and the Brandners were the only parties before the court.

We conclude, however, that the judgment sufficiently contains the necessary essentials to determine the rights of the parties. Although the judgment does not refer to the specific reconventional demand for which judgment is granted, and it does not name the defendant-in-reconvention by name, that is the only defendant remaining in this case and the only reconventional demand that proceeded to trial. Furthermore, we ascertain the name from the caption on the judgment. Therefore, there is no need to remand this matter for entry of a new judgment and we maintain | ^this appeal. See: Borg-Warner Acceptance Corp. through Borg-Warner Leasing v. Whitlow Truck Center, Inc., 508 So.2d 857, 859 (La.App. 5 Cir.1987) where this Court amended the judgment to include the name of the defendant cast in judgment.

However, in the interest of judicial economy, it is necessary to amend the trial court judgment in order to insert language naming the proper party against whom judgment is cast. Accord: Hammonds v. Reliance Insurance Company, 06-540 (La.App. 1 Cir. 12/28/06), 2006 WL 3813719, *1 (unpublished).

Conclusion

After a thorough review of the record, we find no error of law or manifest error in the factual conclusions reached by the trial judge. For the reasons stated, we amend the December 15, 2009 judgment to state:

IT IS ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of defendant, Staf-Rath, LLC, on its reconventional demand against the plaintiffs, Michael Brandner and Cynthia Brandner, in the amount of $56,500, plus judicial interest from January 26, 2007, plus costs including expert fees in the amount of $6937.50, as well as reasonable attorney’s fees, in an amount to be set by this Court following a hearing on that issue. Judgment is also rendered in favor of the defendant, Staf-Rath, LLC as to the plaintiffs’, Michael Brandner and Cynthia Brandner’s case-in-chief, which is dismissed with prejudice.

And, as amended, we affirm the December 15, 2009 judgment.

AMENDED, AND AS AMENDED AFFIRMED.

      . But see La.C.C. art. 1839, which states in part:
      A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.

      . See note 1, supra.

      .Article 1848 provides:
      Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

      . The parties introduced Joint Exhibit 1. They introduced other versions as follows: The Brandners introduced without objection P-1, a different version of "Exhibit A” attached to Joint Exhibit 1; P-4; and, P-3. Although Staf-Rath objected to P-3 on the grounds it was irrelevant, Staf-Rath later introduced into evidence, without objection, a virtually identical document as D-l. Staf-Rath also introduced D-3, without objection.

      . La.C.C.P. art. 1154 states that "[wjhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.”

      . This date, however, could be extended for title curative action as provided in the Agreement but not pertinent here.

      . Mr. Rathle described his equipment as consisting of two freezers, a cooker, movable fixtures, stainless steel tables, a couple of kettles, some pallet racks containing dry storage materials, bags, boxes, desks, file cabinets, pots and pans. In addition, the processing rooms had a freestanding sink, a chill bath, and a freestanding tank in the middle of the room that contained chilled water. He stated that at the time he purchased the equipment and placed it in the building for Carnival brands, he used the services of a licensed electrician, a licensed plumber, a certified welder, and a general contractor. He stated that he probably told Mr. Israel that it could take as long as 60 days to remove the equipment but he recalled a contractor told him it would take possibly a week or two. He testified that in dealing with the Brandners, he asked for 90 days in an abundance of caution in the event there were complications.

      . The statement: "Seller shall repair all wood and iron fences attached to the property” was stricken through. Next to that strikeout, were Mr. Israel’s, and the Brandners's initials. The parties do not disagree that the "repair” portion of the Agreement was stricken.

      . Mr. Rathle also indicated in his testimony that the walls of the freezers acted as partitions.

      . The witness is also referred to in the transcript as "Opitowski.”


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Hasson K. MITCHELL.
    No. 10-KA-868.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAYOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

12Pefendant, Hasson K. Mitchell, appeals his conviction resulting from his guilty plea to one count of knowingly or intentionally distributing a substance falsely represented to be a controlled dangerous substance, to wit: cocaine, in violation of LSA-R.S. 40:971.1. Defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. After thoroughly reviewing the record in this case, we concur with the representations of defendant’s counsel. Accordingly, for the reasons that follow, we affirm defendant’s conviction and sentence, and grant appointed counsel’s motion to withdraw.

I ¡¡FACTS AND PROCEDURAL BACKGROUND

Defendant pled not guilty at arraignment. Defendant later withdrew his not guilty plea and pled guilty as charged. On April 26, 2010, defendant was sentenced to five years imprisonment at hard labor, with the sentence to run concurrently with the sentences in case numbers 09-3164, 09-5941, 10-0359 and 10-0360. On June 14, 2010, defendant’s pro se motion for appeal was granted.

Since no trial or motion hearings were held in this case, the facts surrounding the instant offense are found in the bill of information and in the prosecutor’s note of evidence at the time of the guilty plea. The bill of information alleged that on April 15, 2009, defendant violated LSA-R.S. 40:971.1 in that he did knowingly or intentionally distributed a substance falsely represented to be a controlled dangerous substance, to wit: cocaine.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that the record does not contain any motions filed on defendant’s behalf. Counsel indicates that the court’s colloquy and the plea form signed by defendant and his counsel demonstrate that defendant was informed of and considered the five-year sentence. Counsel further states that she considered raising an excessive sentence claim but concluded that such a claim would be frivolous.

1 ¡Appellate counsel has filed a motion to withdraw as attorney of record that states she has mailed defendant a copy of his brief. The State filed a response to appellate counsel’s brief, concurring in appellate counsel’s assertions. The State requests that this Court affirm defendant’s conviction and sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The district court properly advised defendant of the right to a jury trial, the right of confrontation, and the privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The judge also explained to defendant the offense with which he was charged, the sentencing range for the offense, and the sentence he would receive in accordance with the plea agreement. Defendant acknowledged that he wished to enter a guilty plea. Additionally, defendant, his attorney, and the judge signed a guilty plea form that enumerated defendant’s rights, and explained the sentence defendant would receive under the plea agreement.

Defendant’s five-year sentence, imposed pursuant to a plea agreement, presents no appealable errors. LSA-C.Cr.P. art. 881.2(A)(2) provides, in part, that “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Additionally, defendant’s sentence, though the maximum amount of time that may be imposed, is within the statutory sentencing range.

\ «ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

CONCLUSION

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and sentence, and grant counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Although the transcript of defendant’s guilty plea also pertains to defendant’s other charges in 24th Judicial District Court case numbers 09-3164, 09-5941, 10-0359 and 10-0360, only defendant’s conviction in case number 09-2927 is the subject of this appeal.

      . At the time of the guilty plea, the prosecutor provided the following factual basis, "As to Case No. 09-2927, if that matter had gone to trial, [the] State would've proven beyond a reasonable doubt that, on April 15th of 2009, within Jefferson Parish, the Defendant intentionally violated Louisiana Revised Statute, Title 49:71.l[sic], that he did knowingly or intentionally distribute a substance falsely represented to be a controlled dangerous substance, specifically, cocaine."

      . Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the option to file a pro se supplemental brief.

      . LSA-R.S. 40:971.1(C) states: “Any person who violates the provisions of this Section shall be imprisoned with or without hard labor for not more than five years, and in addition may be fined not more than five thousand dollars.’’ Defendant was not fined.


text:
    STATE of Louisiana v. Hasson MITCHELL.
    No. 10-KA-937.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

^Defendant, Hasson Mitchell, has appealed his conviction and sentence for home invasion, in violation of LSA-R.S. 62.8. Defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. After thoroughly reviewing the record in this case, we concur with the representations of defendant’s counsel. Accordingly, for the reasons that follow, we affirm defendant’s conviction and sentence, and grant appointed counsel’s motion to withdraw.

¡¿FACTS AND PROCEDURAL BACKGROUND

On January 21, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant with home invasion in violation of LSA-R.S. 14:62.8. Defendant initially pled not guilty. On April 26, 2010, defendant pled guilty as charged and pursuant to a plea agreement, was sentenced to ten years imprisonment at hard labor. On June 14, 2010, defendant’s pro se motion for appeal was granted.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds the case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court 14“in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (citation omitted).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the instant case, defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that there is no ruling of the trial court to be challenged, lsexplaining that defendant pled guilty as charged and there were no pre-trial rulings. She contends that raising a claim of excessive sentence would be frivolous when defendant was informed of the considered ten-year sentence and his sentence was ordered to run concurrently with other sentences imposed in other cases on the same day.

Appellate counsel has filed a motion to withdraw as attorney of record that states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court which arguably would support the appeal. She contends she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 18, 2010 to file a pro se supplemental brief. Defendant has not filed a brief.

The State responds that appellate counsel shows a complete and thorough recitation of the procedural history of the case and that counsel has cast an advocate’s eye over the record, determining there were no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm defendant’s conviction and sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

IsAs reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. As such, defendant’s presence does not present any issue that would support an appeal.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

The record does not contain any pre-trial motions filed by defendant; thus there were no rulings to preserve for appeal under the holding in State v. Crosby, 388 So.2d 584 (La.1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy- /cm colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra.

The record in the instant case shows that defendant was aware he was pleading guilty to home invasion. He was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin. Defendant was advised of these rights by means of the waiver of rights form as well as during the colloquy with the trial judge. Defendant, a 30-year-old high school graduate who stated that he could read, indicated during the 17colloquy that he understood that he was waiving these rights. The commitment also reflects that defendant was advised of his Boykin rights.

Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea. He was informed that this guilty plea could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future.

Defendant was also advised that he faced a possible sentence of up to twenty-five years and that he would be sentenced to ten years at hard labor, to ran concurrently with his other sentences. Defendant stated that he understood the consequences of pleading guilty and wished to plead guilty. Additionally, defendant, his attorney, and the judge signed guilty plea forms that enumerated defendant’s rights, and explained the sentence defendant would receive pursuant to the plea agreement.

Defendant’s sentence does not present any issues for appeal because his ten-year sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 14:62.8. Further, defendant’s sentence was imposed pursuant to a plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Based on the foregoing, we find that the proceedings surrounding defendant’s plea of guilty and his sentence do not present any non-frivolous issues to be raised on appeal. Because appellate counsel’s brief adequately demonstrates that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s ^assertion, we hereby grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review does not reveal any errors patent.

CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction and sentence, and grant counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Although the transcript of defendant's guilty plea also pertains to defendant's other charges in 24th Judicial District Court case numbers 09-3164, 09-5941, 09-2927 and 10-0360, only defendant’s conviction in case number 10-0359 is the subject of this appeal.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)


author: ROLAND L. BELSOME, Judge.

text:
    Eric STOLZ and Mark Daniels v. Gertie SMITH and Dollar-Thrifty Automotive Group, Inc.
    No. 2010-CA-1454.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 2011.
    Eugene P. Redmann, Metairie, LA and James A. Harry, Springfield, LA, for Plaintiffs/Appellants.
    William F. Bologna, John C. McNeese, New Orleans, LA, for Defendant/Appellee, DTG Operations, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Plaintiffs-Appellants appeal the trial court’s dismissal without prejudice for failure to timely respond to discovery requests. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Appellees, DTG Operations, Inc. (“DTG”) propounded Interrogatories and Request for Production of Documents upon Plaintiffs-Appellants on July 16, 2009. At various times between August and November of 2009, counsel for DTG inquired as to the status of the discovery requests. On December 8, 2009, DTG’s counsel issued correspondence informing counsel for Appellants that if no discovery responses were received by December 15, 2009, a Motion to Compel would be filed. No response was received; on January 10, 2010, counsel for DTG served Appellants with a Motion to Compel. The hearing on the motion was set for April 23, 2010.

At the hearing on April 23, 2010, counsel for Appellants informed the court that he had been unable to locate his clients, resulting in the delayed response to DTG’s discovery requests. Counsel for Appellants requested an additional fifteen 12days to respond to the discovery requests, which the trial court granted. The trial court advised counsel for Appellants that if discovery responses were not received within fifteen days, the case would be dismissed. Counsel for DTG filed a Motion to Dismiss on May 12, 2010, and the trial court dismissed the suit without prejudice on May 14, 2010. On June 18, 2010, counsel for Appellants filed a Motion for New Trial, which was denied on June 22, 2010. This appeal followed.

STANDARD OF REVIEW

A trial court’s grant of dismissal without prejudice is reviewed under the abuse of discretion standard. Cantuba v. American Bureau of Shipping, 08-0497, p. 2 (La.App. 4 Cir. 6/3/09), 31 So.3d 397, 399, on reh’g (1/13/10) writ denied, 2010-0320 (La.4/16/10), 31 So.3d 1065 (citing Ridgeway v, Pierre, 2006-0521, p. 4 (La.App. 4 Cir. 1/11/07), 950 So.2d 884, 888).

DISCUSSION

Counsel for Appellants assigns as error the trial court’s grant of Appellees’ order of dismissal and the denial of counsel for Appellants’ motion for new trial, arguing that counsel for DTG improperly filed an ex parte motion for dismissal. Specifically, counsel for Appellants submits that a contradictory hearing should have been held on the motion to dismiss.

Although La.Code Civ. Proc. art. 1471 provides that dismissal is a remedy available to courts for a party’s failure to comply with court-ordered discovery, the Louisiana Supreme Court has recognized that dismissal is a draconian penalty and |3is thus reserved for only the most culpable conduct. Cantuba, 31 So.3d at 412 (citing Horton v. McCary, 93-2315, p. 9 (La.4/11/94), 635 So.2d 199, 203) “Dismissal is generally appropriate when the client, as well as the attorney, is at fault, and the record must evidence that the failure was due to willfulness, bad faith, or fault of the noncompliant party.” Id.

Pursuant to Horton v. McCary, the four factors to be considered when dismissal is granted for failure to comply with discovery are: 1) whether the violation was willful or resulted from an inability to comply; 2) whether less drastic sanctions would be effective; 3) whether the violations prejudiced the opposing party’s trial preparation; and 4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Horton, p. 11, 635 So.2d at 203.

In this case, the record does not evidence that the client was at fault for the noneompliance, nor does the record evidence that the client participated in the violation. See Horton, 635 So.2d at 203; Cantuba, 31 So.3d at 413. Furthermore, we find that the trial court erred in failing to hold a contradictory hearing on the motion to dismiss under these particular facts and circumstances. See La.Code Civ.Proc. art. 963; Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317 (La.App. 4 Cir. 7/6/05), 913 So.2d 131; Commerce Funding Corp. v. Lewis Plumbing & Heating, Inc., 00-1883, p. 4 (La.App. 4 Cir. 5/23/01), 788 So.2d 1203, 1205. Accordingly, the matter must be remanded to the trial court for a contradictory hearing.

| ¿CONCLUSION

For the foregoing reasons, the trial court’s judgment granting the dismissal with prejudice is reversed. The matter is hereby remanded to the trial court for a hearing on the motion to dismiss filed by DTG.

REVERSED AND REMANDED.

      . Dollar-Thrifty Automotive Group, Inc., was dismissed without prejudice from the suit on October 23, 2008.

      . La.Code Civ. Proc. art. 1471 provides, in pertinent part: If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following: (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

      . Although Medical Review Panel Proceedings and Commerce involved a dismissal with prejudice, we find that the same reasoning applies here. In Commerce, this Court considered whether the trial court erred in dismissing an action for abandonment with prejudice without first holding a contradictory hearing. Commerce, p. 4, 788 So.2d at 1205. In concluding that the trial court should have held a contradictory hearing, we recognized that a hearing before dismissal would have afforded the plaintiff an opportunity to present its objection to prohibiting them from subsequently bringing another action against the defendant. Id.