author: WEIMER, Justice. GUIDRY, Associate Justice, KIMBALL, C.J., KNOLL, J.,

text:
    STATE of Louisiana v. Michael PETITTO.
    No. 2010-K-0581.
    Supreme Court of Louisiana.
    March 15, 2011.
    Rehearing Denied April 29, 2011.

      James D. Caldwell, Scott M. Perrilloux, Patricia Dale Parker, for Applicant.
    John Garrison Jordan, for Respondent.
   WEIMER, Justice.

_JjWe granted a writ of certiorari in this case to determine whether the district court erred in granting a motion to quash an indictment charging a parish councilman with two counts of malfeasance in office, violations of LSA-R.S. 14:134. The malfeasance is based on alleged violations of duties imposed upon public officials by two provisions of the Code of Governmental Ethics. Finding the district court erred in ruling that the two-count indictment fails to charge a valid offense, we reverse the ruling of the district court, and of the court of appeal which affirmed that ruling, and remand this case to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On December 7, 2007, the grand jury of Tangipahoa Parish returned an indictment charging defendant Michael Petitto with two counts of malfeasance in office, violations of LSA-R.S. 14:134. According to the State’s answer to the bill of particulars, the charges stem from a series of events that commenced on or about March 1, 2006, and continued through November 30, 2006. Defendant, an elected | ¿member of the Tangipahoa Parish Council, is alleged to have initiated and voted to approve .a parish council resolution supporting an application for tax benefits by the Pine Grove Subdivision, ostensibly for development of property the defendant’s brother had already planned to purchase and sell for a profit. Allegedly, in return, the mortgage loan securing defendant’s personal residence in Tangipahoa Parish was paid off by the defendant’s brother and the mortgage was cancelled.

Defendant entered a plea of not guilty to the malfeasance charges. He later filed a motion to quash the indictment urging as grounds that the indictment is duplicitous and fails to charge an offense that is punishable under a valid, statute. LSA-C.Cr.P. art. 532(1) and (3). As to the latter contention, the defendant argued that the indictment failed to adequately state or identify a criminal offense as the vehicle through which he intentionally performed one of his duties as a councilman in an unlawful manner. Specifically, the defendant argued that the indictment relied on violations of LSA-R.S. 42:1112(B)(1) and 42:1111(E)(1) to support the malfeasance charges, provisions codified in Title 42 of the Revised Statutes as part of the Code of Governmental Ethics. According to defendant, because the provisions of the Code of Governmental Ethics are not criminal but civil in nature, and punishable by a fine levied by the Louisiana Ethics Board, the State cannot rely on the alleged civil violations to support a criminal prosecution for malfeasance in office; rather, a prosecution for malfeasance in office must be based on a separate and distinct criminal violation such as theft, bribery, kickbacks, extortion, or solicitation to commit a crime.

In response, the State argued that LSA-R.S. 14:134 does not require a violation of a separate and distinct criminal statute. To the contrary, to establish malfeasance in office, the State contended it need only prove the existence of an affirmative duty | .¡imposed by law or statute upon the defendant as a public officer and that the defendant intentionally performed that duty in an unlawful manner or intentionally refused or failed to perform a duty imposed upon him by law.

Following a hearing on the motion to quash, the district court ruled in favor of the defendant. In granting the motion to quash, the court explained: “[W]hen it comes to laws that establish ethical standards on public officials I do not believe that those types of laws should be the basis or can be the basis of prosecution for malfeasance in office.” Noting that laws addressed to affirmative duties other than ethical ones can, in fact, form the basis of a prosecution for malfeasance in office, the court cautioned that its ruling was intended to apply strictly to the Code of Governmental Ethics.

The State appealed the adverse ruling, and the court of appeal affirmed, reasoning that the Code of Governmental Ethics is not criminal in nature and that the malfeasance statute was not designed to punish the forms of misconduct alleged therein. State v. Petitto, 09-1855, p. 5 (La.App. 1 Cir. 2/12/10), 35 So.3d 1100, 1103. This court granted a writ of certiorari to address the State’s contention that the lower courts erred in concluding that violations of the duties imposed on public officials by the Code of Governmental Ethics may not serve as the basis for a charge of malfeasance in office. State v. Petitto, 10-0581 (La.11/5/10), 50 So.3d 822.

LAW AND ANALYSIS

The motion to quash is a procedure by which to raise pre-trial defenses that do not go to the merits of a charge. Under the grounds urged in this case, that the indictment fails to charge an offense which is punishable under a valid statute, the motion to quash can be analogized to an exception of no cause of action in the civil arena. State v. Perez, 464 So.2d 737, 739 (La.1985). In considering the motion to quash, the district court accepts as true the facts contained in the indictment or bill of information and in the bill of particulars, and determines as a matter of law and from the face of the pleadings, whether a crime has been charged. Id.; State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720, 722 (1971).

In this case, the indictment handed down by the Tangipahoa Parish grand jury charges defendant with two counts of malfeasance in- office, violations of LSA-R.S. 14:134. That statute provides, in relevant part:

Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.

One key phrase in the statute is “any duty lawfully required of him.” This phrase makes it clear that before a public officer or employee can be charged with malfeasance in office, there must be a statute or provision of law which imposes an affirmative duty upon him. State v. Perez, 464 So.2d at 741, citing State v. Passman, 391 So.2d 1140, 1144 (La.1980). As this court has explained, this duty must be expressly imposed by law upon the officer (or employee) because the officer (or employee) is entitled to know exactly what conduct is expected of him in his iofficial capacity and what conduct will expose him to criminal charges. State v. Perez, 464 So.2d at 741.

In this case, the indictment explicitly sets forth the affirmative duties it alleges are “lawfully required” of the defendant. Count 1 of the indictment charges defendant with malfeasance in office “by wilfully and intentionally performing duties in an unlawful manner by violating LA R.S. 42:1112 B(l).” Count 2 charges defendant with “wilfully and intentionally performing duties in an unlawful manner by violating LA R.S. 42:1111 E(l).” These statutes appear in Title 42, Chapter 15 of the Revised Statutes under the title, Code of Governmental Ethics.

Louisiana R.S. 42:1112(B)(1) provides, in relevant part:

No public servant ... shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:
(1) Any member of his immediate family.

Louisiana R.S. 42:1111(E)(1) provides, in relevant part:

No public servant ... shall receive or agree to receive any thing of economic value for assisting a person in a transaction, or in an appearance in connection with a transaction, with the agency of such public servant.

In his motion to quash, the defendant argued, and the lower courts concluded, that violations of the aforementioned statutes may not serve as a basis for a criminal charge of malfeasance in office under LSA-R.S. 14:134. This conclusion was based on the rationale, explained by the court of appeal, that the Code of Governmental Ethics is not a criminal statute the aim of which is the apprehension and punishment of persons guilty of public wrongdoing, but rather an enactment aimed at preventing public officers and employees from becoming involved in conflicts of interest, which may or may not result in wrongdoing. Since “the Ethics Code is not criminal in |finature,” the court of appeal reasoned “that the malfeasance statute was not designed to punish the forms of misconduct alleged therein.” State v. Petitto, 09-1855 at pp. 5-6, 35 So.3d at pp. 1102-1103.

Before this court, the State argued that the focus of the lower courts was misplaced. According to the State, the issue presented is not whether the provisions of the Code of Governmental Ethics are criminal in nature, because the offense being punished under LSA-R.S. 14:134 is not the violation of an ethical duty in and of itself. Rather, the real issue presented is whether the provisions of the Code of Governmental Ethics impose affirmative duties upon public officers and employees, the violation of which (or performance “in an unlawful manner”) may form the predicate for a charge of malfeasance in office when committed with the requisite criminally culpable state of mind. The State’s argument in this regard is well-founded. The issue presented in this case is a narrow one: whether a duty imposed on a public official by the cited provisions of the Code of Governmental Ethics is a “duty lawfully required of him” within the meaning of LSA-R.S. 14:184.

To answer this question of legislative intent, we look first to the language of the statute. State v. Johnson, 03-2993, p. 11 (La.10/19/04), 884 So.2d 568, 575; State v. Gutweiler, 06-2596, p. 9 (La.4/8/08), 979 So.2d 469, 476. “What ‘a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.’” State v. Williams, 00-1725, p. 13 (La.11/28/01), 800 So.2d 790, 800, quoting, Norman J. Singer, Statutory Construction § 46:03, p. 135 (6th ed.2000). For that reason, “where the words of a statute are clear and free |7from ambiguity, they are not to be ignored under the pretext of pursuing their spirit.” State v. Freeman, 411 So.2d 1068, 1073 (La.1982); See also LSA-R.S. 1:4. Although criminal statutes are subject to strict construction under the rule of lenity, the rule is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which is to ascertain and enforce the true meaning and intent of the statute. State v. Shaw, 06-2467, p. 14 (La.11/27/07), 969 So.2d 1233, 1242.

The crime of malfeasance in office, which has been a part of Louisiana’s penal laws for close to a century, is intended to protect the public by deterring public officers and employees from abusing their positions of public trust. State v. McGuffie, 42,069, p. 11-12 (La.App. 2 Cir. 8/1/07), 962 So.2d 1111, 1118, writ denied, 07-2033 (La.2/22/08), 976 So.2d 1283. The language of the malfeasance statute is comprehensive. The law applies to “any public officer or public employee” who intentionally refuses or fails to perform or who intentionally performs in an unlawful manner “any duty lawfully required of him.” In enacting this provision, the legislature deliberately chose not to specify or name a particular duty or duties, the abuse of which could lead to prosecution for malfeasance. This decision not to further define the duty element is understandable given the multitude of different public employees and officials covered by the statute. Indeed, it would be difficult, if not impossible, to construct a definition of duty that would encompass all the derelictions of duty the statute seeks to proscribe. Instead, the legislature chose to restrict the duty element of the crime to “any duty lawfully required” of the public officer or employee.

This is not the first case in which courts have been tasked with interpreting the meaning and scope of the phrase “any duty lawfully required.” In rejecting a vagueness challenge to LSA-R.S. 14:134, the court in State v. Perret, 563 So.2d 459 (La.App. 1 Cir.1990), noted that the language has a well-defined and readily understandable meaning:

Webster’s Third New International Dictionary (1968) defines “lawful,” “lawfully,” and “unlawful” as follows: (1) “Lawful” means “constituted, authorized, or established by law: rightful.” (2) “Lawfully” means “in a lawful manner.” (3) “Unlawful” means “not lawful: contrary to or prohibited by law: not authorized or justified by law: not permitted or warranted by law.”

Perret, 563 So.2d at 467. In State v. Passman, supra, this court interpreted the phrase “any duty lawfully required” to mean that before a public officer or employee can be charged with malfeasance in office, there must be a statute or provision of law which imposes an affirmative duty upon him. Passman, 391 So.2d at 1144. As Justice Lemmon later explained, the court in Passman examined the statutory language and, consistent with that language, narrowly defined malfeasance in office as the intentional failure to perform a specific duty expressly defined by the legislature:

In Passman, this court was unwilling to say that any willful dereliction of duty constituted an intentional refusal or failure to perform a duty lawfully required of the public officer by the malfeasance statute. The court held that the defendant’s misconduct did not constitute the crime of malfeasance if no statute delineated the affirmative duty that defendant was charged with failing to perform. By adopting this narrow “express legislative requirement” approach, the court obviously rejected the idea that the Legislature intended to adopt an open-ended offense covering general derelictions of duty. The court also sought to avoid any constitutional problems of vagueness.

State v. Perez, 464 So.2d at 746 (Lemmon, Justice, dissenting) (footnote omitted). Consistent with this limiting definition, that the duty be one expressly defined by the legislature, the court in State v. Perez, supra, found a “duty lawfully required,” in the 19duty not to interfere with the execution of the constitution and laws of this state, imposed upon public officials (and upon the defendant district attorney) by virtue of the oath of office set forth in La. Const. art. X, § 30. Perez, 464 So.2d at 742. Similarly, in State v. Schwehm, 98-1599 (La.3/19/99), 729 So.2d 548, the court upheld the malfeasance conviction of a former Justice of the Peace on evidence that he failed to remit littering fines that by statute, LSA-R.S. 25:1112(A), he was required to remit to the governing authority of the parish. The court found that by failing to remit the fines and converting them to use for his own benefit and the benefit of his public office, the defendant had “intentionally refused to perform the duty placed upon him by law” to remit the fines to the parish governing authority. Schwehm, 98-1599 at 7, 729 So.2d at 551.

As demonstrated by the foregoing, in determining the meaning of the phrase “duty lawfully required” in the malfeasance statute, the focus of the courts has been on whether there is a statute or provision of law which imposes an affirmative, personal duty on the public officer or employee in his role as such which he has intentionally failed to perform or intentionally violated, ie., performed in an unlawful manner. Louisiana R.S. 42:1112(B)(1) and 42:1111(E)(1) are just such statutes. These provisions are imposed upon each public servant in his or her role as a public officer or employee. The particular statutes at issue here direct that no public servant shall participate in a transaction involving a governmental entity in which to his actual knowledge, a member of his immediate family has a substantial economic interest, LSA-R.S. 42:1112(B)(1), and that no public servant shall receive any thing of economic value for assisting a person in a transaction with the agency of the public, servant. LSA-R.S. 42:1111(E)(1). The standards of conduct imposed by these statutes are clear and unambiguous. As a public servant, each individual has an affirmative, personal duty to conform his or her conduct to the mandated standard expressed in these statutes. The statutes are enactments of the legislature, and as such, have the force and effect of substantive law. They constitute, in a word, “duties lawfully required” of a public servant.

Despite the clear and comprehensive sweep of the statutory language, the lower courts declined to hold that these prohibitions in the Code of Governmental Ethics are “duties lawfully required” of a public servant. The basis for this holding apparently stems from jurisprudence of this court recognizing that the Code of Governmental Ethics is not a criminal statute designed to ferret out and punish persons guilty of public wrongdoing, but rather is legislation imposing ethical standards of conduct which do not necessarily require actual wrongdoing, i.e., criminal conduct, on the part of a public servant. See Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752, 755-756 (La.1983). While accurate, the lower courts’ reliance on this characterization of the Code misses the point. Violations of the provisions of the Code of Governmental Ethics at issue do not alone subject public servants to criminal sanctions or to prosecution for malfeasance in | n office. These provisions merely establish the “duties lawfully required” of a public servant. It is the violation of an affirmative duty, coupled with the requisite wrongful, criminally culpable intent which gives rise to the crime of malfeasance. Therefore, the lower courts’ focus on the fact that the provisions of the Ethics Code do not require actual corruption on the part of the public servant or a loss to the State is misplaced. There is nothing in the language of LSA-R.S. 14:134, or in the jurisprudence interpreting the same, to suggest that the “duty lawfully required” of a public official be “criminal in nature;” civil statutes may serve as the source of the duty, the knowing and intentional violation of which may constitute the offense defined by LSA-R.S. 14:134. See, e.g., State v. Schwehm, supra (violation of duty imposed by former LSA-R.S. 25:1112(A)); State v. Perez, supra (violation of duty imposed by oath of office in La. Const. art. X, § 30); State v. Boyte, 42,768 (La.App. 2 Cir. 12/19/07), 973 So.2d 900 (violation of duty imposed by LSA-R.S. 42:1461); State v. Perret, supra (violation of duty imposed by oath of office and by LSA-R.S. 36:602(B), 36:608(D), 36:609(C), 56:3(B), 56:313 and 56:434(F)).

In an effort to assure that elected officials and public employees are independent and impartial, that governmental decisions and policy are made in the proper channel of the governmental structure, that public office and employment are not used for private gain other than the remuneration provided by law, and that there is public confidence in the integrity of government, the Code of Governmental Ethics proscribes certain conflicts of interest. LSA-R.S. 42:1101(B). The duty imposed by the Code of Governmental Ethics is a duty not to become embroiled in a prohibited conflict of interest.

At its core, the holding of the lower courts is premised on the belief that the provisions of the Code of Governmental Ethics are mere directives to public officials | iato avoid conflicts of interest, providing broadly stated, aspirational guidelines rather than affirmative duties. This holding ignores both the mandatory language of the provisions and the constitutional and legislative source of the provisions. Louisiana R.S. 42:1112(B)(1) and 42:1111(E)(1) are couched in the imperative, not the subjunctive. These provisions are more than aspirational principles. The statutes use the mandatory “shall.” Enacted pursuant to the directive of La. Const, art. X, § 21, these statutes provide an objective standard of how public servants must conduct themselves, and they give clear notice of exactly what conduct is prohibited: These statutes establish specific duties, not just broad principles. As such, the provisions of the Code of Governmental Ethics at issue are not substantively different from other civil statutes that have been held to constitute “duties lawfully required” of a public servant or employee, the intentional and willful violation of which will support a prosecution for malfeasance in office.

Nor does the fact that the Code of Governmental Ethics empowers the Board of Ethics to determine and sanction prohibited conflicts of interest .compel a different conclusion. Ethical impropriety may co-exist with criminal conduct, and the existence of the former- does not pre-empt the imposition of criminal sanctions for violation of a distinct penal statute. See LSA-R.S. 42:1156 and 42:1164.

|iSThe concern voiced by the defendant in brief, that a holding that violations of the affirmative duties imposed upon public officials by these provisions of the Code of Governmental Ethics, when committed with the- requisite criminally culpable intent may serve as a basis for a charge of malfeasance in office, would open the floodgates for criminal prosecutions of public officials and effectively convert the ethics code' into a criminal code is simply unfounded. Louisiana R.S. 14:134 does not criminalize all ethical violations and/or general derelictions of duty. The object of the malfeasance statute is to punish a breach of duty committed with the required culpable state of mind. To this end, the statute expressly limits its application to instances in which a public officer or employee intentionally refuses or fails to perform or intentionally performs in an unlawful manner, any affirmative duty imposed by law upon him in his role as a public servant. The inclusion in the statute of a criminally culpable state of mind makes it clear that it applies only where the statutorily required mens rea is proven beyond a reasonable doubt. Thus, mere inadvertence or negligence, or even criminal negligence, will not support a violation of the malfeasance statute because the statute specifies the act or failure to act must be intentional.

CONCLUSION

After examining the language of LSA-R.S. 14:184 and that of LSA-R.S. 42:1112(B)(1) and 42:1111(E)(1), the provisions upon which the two-count indictment against defendant are based, we find, contrary to the rulings of the courts below, that violations of the duties imposed on public officials by LSA-R.S. 42:1112(B)(1) and 42:1111(E)(1), when committed with the requisite criminal intent, may form the basis for a charge of malfeasance in office. Based on this finding, we hold that the district court erred in quashing the two-count indictment against |udefendant on grounds it fails to charge an offense which is punishable under a valid statute. The rulings of the lower courts are reversed, and this case is remanded to the district court for further proceeding consistent with this opinion.

REVERSED AND REMANDED.

GUIDRY, Associate Justice,

concurs in the result and assigns reasons.

I respectfully concur in the result. In my view, the bill of indictment in this case sufficiently alleges a violation of a duty lawfully required of the defendant by the criminal code.

KIMBALL, C.J.,

concurs and assigns reasons.

|J respectfully concur in the result. I would resolve this case by deciding whether the facts alleged support a charge of malfeasance in office (La. R.S. 14:134). I agree that violation of the Code of Governmental Ethics may form the basis for this charge, but I believe it is unnecessary to analyze the substance of the underlying statutes, La. R.S. 42:1112(B)(1) and La. R.S. 42:1111(E)(1).

KNOLL, J.,

dissenting.

|; Although I find the defendant is subject to prosecution, I disagree with the majority opinion holding that violations of duties imposed upon public officials by La. Rev.Stat. 42:1111 E(l) and 42:1112 B(l) of the Code of Governmental Ethics may form the basis for a charge of violation of La.Rev.Stat. 14:134 (malfeasance in office).

Before a public official can be charged with malfeasance in office, there must be a statute or provision of the law which delineates an affirmative duty upon the official. State v. Passman, 391 So.2d 1140, 1144 (La.1980). In absence of any express requirement of him in his official capacity, he cannot be charged with failing to perform a “duty lawfully required of him.” Id. (quoting La.Rev.Stat. 14:134). The duty must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges. State v. Perez, 464 So.2d 737, 741 (La.1985) (emphasis supplied).

Appropriately, the majority opinion quotes from Justice Lemmon’s dissent in Perez, which emphasized the narrowness of this Court’s interpretation of La.Rev. Stat. 14:134 in Passman. State v. Petitto, 10-581, p. 8 (La.3/15/11), 59 So.3d 1245. Notably, Justice Lemmon found the bill of information did not charge conduct involving the failure to perform a specific duty expressly defined by the Legislature, 12thus rejecting the finding of a “duty lawfully required” by virtue of the oath of office set forth in La. Const. art. X, § 30. Perez, 464 So.2d at 746 (Lemmon, J., dissenting). “Criminal statutes must be narrowly construed. One of the inevitable consequences of narrow construction is that some forms of analogous misconduct will fall beyond the scope of a particular statute.” Id. In my view, the majority opinion disregards the well-established rule of lenity in construing La.Rev.Stat. 42:1111E(1) and 42:1112B(1) as a basis for charging a violation of an express duty of which the public official had notice, ie., a malfeasance charge.

However, the State is not without recourse to criminally charge defendant for his alleged conduct. As perspicaciously noted by Judge Gaidry in his concurrence, the alleged violations of ethical duties could be based upon facts that also constitute violations of statutes or provisions of law delineating an affirmative duty upon defendant. State v. Petitto, 09-1855 (La.Ct.App. 1 Cir. 2/12/10), 35 So.3d 1100, 1103 (Gaidry, J., concurring). The basis for Count II of the indictment is an alleged violation of La.Rev.Stat. 42:1111 E(1). Defendant’s alleged actions that are the basis for this count possibly violate La.Rev.Stat. 14:118 A(2), the offense of public bribery. Public bribery may be defined generally as the voluntary giving or offering to give, or the acceptance of or offer to accept, directly or indirectly, by any public officer, official or public employee, anything of apparent present or prospective value, with the intent to influence such person in relation to his position, official duty or employment, or to incline him to act contrarily to known rules of honesty and integrity. State v. Bloomenstiel, 235 La. 860, 106 So.2d 288, 290 (1958). It is an offense against public justice, the gist of the crime being the wrong done to the people by corruption in the public service. Id.

In my view, the State should have charged defendant with a violation of a | ¡¡criminal law in pursuing defendant’s malfeasance in office. I find it inappropriate to use Part II of the Code of Governmental' Ethics, which is entitled “Ethical Standards for Public Servants,” as a basis for prosecution. This approach tends to be a “slippery slope,” as not all violations under the Code of Governmental Ethics constitute criminal conduct. For these reasons, I respectfully dissent.

      . Because the district court granted the motion to quash on grounds that the indictment fails to charge an offense which is punishable under a valid statute, it did not address defendant’s additional argument for quashing the indictment, i.e., that the indictment is duplicitous because the State is prosecuting defendant for the same alleged conduct in both counts of the indictment.

      . The State contends there is nothing in the language of LSA-R.S. 14:134 that requires a public official's violation of the “duties lawfully required” to constitute a distinct crime. If such were the case, the State posits, a public official could simply be charged with the underlying crime, and the malfeasance statute would be superfluous.

      . See 1912 La. Acts, No. 254 § 1.

      . Redesignated as LSA-R.S. 30:2532 by 1995 La. Acts 1019.

      . When a public servant performs a duty imposed upon him by law in a manner contrary to the dictates of that law, he performs it in an unlawful manner.

      . A public servant is defined to mean a public employee or an elected official. LSA-R.S. 42:1102(19). An exception exists forjudges, whose conduct is governed exclusively by the provisions of the Code of Judicial Conduct. LSA-R.S. 42:1167.

      . In fact, the secretary of state is required by law to furnish a copy of the ethics code to every public servant receiving a commission, and the public servant must acknowledge receipt thereof when filing his or her oath of office. LSA-R.S. 42:1162.

      .Because the provisions are legislative enactments, the court is not presented with the issue, raised but not resolved, in State v. Passman, supra, of whether a duty imposed under a rule not directly imposed by the legislature, such as an administrative rule, is sufficient to supply the duty element of the crime of malfeasance in office.

      . LSA-R.S. 42:1156 provides:
      Upon finding at a public hearing that there is probable cause to believe that any public servant or other person has violated any criminal law of this state, the board or panel shall forward a copy of its findings to the district attorney of the parish in which the violation occurred, for appropriate action. Thereafter, notwithstanding any other provision of this Chapter, such district attorney shall have access to all records of the board relative to such charges.

      . LSA-R.S. 42:1164 states:
      Nothing in this Chapter is intended to nor is to be construed as repealing, amending, or modifying in any way any provision of any criminal law of this state.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Shawn Patrick SIRGO.
    No. 2011-B-0334.
    Supreme Court of Louisiana.
    April 8, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

| pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Shawn Patrick Sirgo, an attorney licensed to practice law in the States of Louisiana and Tennessee, based upon a public censure imposed by the Board of Professional Responsibility of the Supreme Court of Tennessee.'

UNDERLYING FACTS AND PROCEDURAL HISTORY

In March 2010, respondent was retained to represent the defendant in a criminal matter. The defendant was employed by a company which is also a client of respondent’s, and the company paid respondent’s legal fees on behalf of the employee. When the employee failed to reimburse the.company for these sums, respondent, pursuant to his representation of the company, acted as a collection agent for the company against its employee and participated in the termination of the employee from the company. Respondent also disclosed the amount of fees charged in the employee’s ease to the company, which withheld that amount from the ^employee’s last paycheck in violation of Tennessee, law. Respondent thereafter participated in litigation adverse to the employee and which was substantially related to the conduct that was the alleged reason for the employee’s termination from the company.

On January 11, 2011, the Board of Professional Responsibility of the Supreme Court of Tennessee issued an order of public censure upon respondent. In re: Shawn Sirgo, BPR File No. 33343c-5-KB, filed January 12, 2011. In its order, the board concluded that respondent created a conflict of interest directly adverse to his client, the employee, and failed to immediately withdraw from the representation.

After receiving notice of the order of public censure, the ODC filed a petition to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A certified copy of the decision and order of the Board of Professional Responsibility of the Supreme Court of Tennessee was attached to the motion. On February 18, 2011, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent timely filed a response in which he asserted that this court should not impose reciprocal discipline because he has taken “corrective measures” to ensure that conflicts of interest involving employer/employee representation do not arise in the future.'

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary | .^counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In the instant case, respondent has made no showing of infirmities in the Tennessee proceeding, nor do we discern any from our review of the record. Furthermore, we find no extraordinary circumstances which warrant deviation from the sanction imposed by the Tennessee disciplinary authorities. We have held that only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461.

Applying the factors set forth in Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed by the Board of Professional Responsibility of the Supreme Court of Tennessee. Considering that we share authority over respondent with Tennessee, we will defer to that state’s determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose the same discipline against respondent as was imposed in Tennessee.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Shawn Patrick Sirgo, Louisiana Bar Roll number 30061, be publicly reprimanded.

       Chief Justice Kimball not participating in the opinion.

      . Respondent has been ineligible to practice law in Louisiana since July 24, 2008 for failure to comply with the mandatory continuing legal education requirements. He is also ineligible for failing to pay his bar dues and the disciplinary assessment.


text:
    In re Vicki Kemp CRUSE.
    No. 2011-B-0487.
    Supreme Court of Louisiana.
    April 8, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to refund an unearned fee to a client. This misconduct occurred in the same time frame as the misconduct forming the basis of respondent’s earlier disciplinary matter. Prior to the filing of new formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Vicki Kemp Cruse, Louisiana Bar Roll number 19531, be adjudged guilty of additional violations which warrant discipline and which may be considered in the event she applies for reinstatement from her suspension in In re: Cruse, 09-0028 (La.6/26/09), 15 So.3d 63, after becoming eligible to do so.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty-days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re E. Roland CHARLES.
    No. 2011-B-0489.
    Supreme Court of Louisiana.
    April 8, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent improperly settled a claim for his malpractice without first advising his client to seek independent counsel. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that E. Roland Charles, Louisiana Bar Roll number 4092, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


author: VICTORY, J., GUIDRY, Justice,

text:
    STATE of Louisiana v. Kenneth HUNTER.
    No. 2011-KK-0291.
    Supreme Court of Louisiana.
    April 8, 2011.
   In re Hunter, Kenneth; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 495-803; to the Court of Appeal, Fourth Circuit, No. 2010-K-1756.

Writ application denied.

VICTORY, J.,

concurs and assigns reasons.

On the showing made, I find no abuse of discretion by the trial court in denying defendant’s motion to sever. However, trial of co-defendants may not proceed “if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). In a separate trial of defendant, the Confrontation Clause of the Sixth Amendment would bar introduction of his co-defendant’s testimonial statement, made in response to police interrogation and providing a retrospective account of the circumstances surrounding the victim’s death for purposes of facilitating the investigation and prosecution of the offense, unless the co-defendant took the stand and submitted to cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004)(“Whatever else the term [testimonial] covers [for confrontation purposes], it applies at a minimum to prior testimony at a preliminary hearing, before a grand Injury, or at a former trial; and to police interrogations.”). To the extent that the co-defendant’s testimonial statement constitutes a “powerfully incriminating extrajudicial statement” which directly implicates defendant in the crimes charged, Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968), the statement may not be admitted at a joint trial, even under a limiting instruction that jurors are to consider it as evidence only against the co-defendant, id., 391 U.S. at 137, 88 S.Ct. at 1628, and even if defendant’s own statement to the police partially interlocks with the co-defendant’s statement, Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), unless the prosecution redacts the co-defendant’s statement in such a way that it no longer facially or directly implicates defendant in the crime. Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). If the prosecutor is unable to redact the co-defendant’s statement in such a fashion, yet intends to use that statement against the co-defendant at trial, the defendants must be severed. See State v. Johnson, 96-0959 (La.6/28/96), 675 So.2d 1098.

GUIDRY, Justice,

concurs with reasons.

The only issue currently before the Court is the trial court’s denial of the defendant’s motion to sever. I agree that a joint trial is possible in this case. However, the more difficult question is whether the statements are admissible in their present form pursuant to Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). They may require redaction. See Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294(1998).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Dave WILSON.
    No. 10-KA-519.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee State of Louisiana.
    Frederick J. Kroenke, Jr., Attorney at Law, Appellate Counsel, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant Dave Wilson.
    Panel composed-of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

On January 7, 2008, Dave Wilson was charged by bill of information with one count of armed robbery and one count of first degree robbery. He pleaded not guilty at arraignment, but he later withdrew the not guilty plea and pleaded guilty as charged to both counts. On June 22, 2009, the defendant was sentenced to 30 years at hard labor on both counts one and two, without benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently. On March 29, 2010, the defendant was granted an out-of-time appeal.

FACTS

There were no motion hearings or trial in this case, so the facts surrounding the instant offense are found in the bill of information and in the prosecutor’s factual basis stated at the time of the guilty plea. The bill of information alleged that on October 10, 2007, the defendant violated La. R.S. 14:64 “in that he did rob Raquel Munoz while armed with ... a firearm” and that on the same date, the defendant violated La. R.S. 14:64.1 “in that he did rob Carol Corvin while leading [her] to reasonably believe that he was armed with a dangerous weapon.”

At the time of the guilty plea, the prosecutor stated:

Your Honor, the State will allege and prove beyond a reasonable doubt that on October 10, 2007, as to count 1, victim Racquel, we know were [sic] at a Walgreen’s on Airline Drive in the parish of Jefferson [awhen a person approached here [sic] and asked for her purse and said he had a gun. She turned around and saw a two-tone-semi-automatic gun. She was then pushed, and her purse was taken, and the description of the man she gave to the police was later confirmed on a video when the man was attempting to use some of the items taken in the purse from that particular robbery.
As to Count 2, Your Honor, the State will allege and prove that a Carol Colvin was, again, accosted in a parking lot. This time in the Wal-Mart in Harahan, at which time, she began to fight with the assailant, and that caused the assailant to bite the victim. The victim’s bite was later tested for DNA evidence, which it was positive, and that DNA evidence was obtained and expertly analyzed to be the blood of — the DNA of the defendant, Dave Wilson, both of which occurred in the parish of Jefferson, Your Honor, both of which were reported to the sheriffs office and investigated appropriately, both of which victims identified defendant.

In response to questioning by the court, the defendant admitted he was pleading guilty because he was in fact guilty.

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 a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and to State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he 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 he finds his case to be wholly 14frivolous 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 “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).

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 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 Land 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 appellant counsel. Id.

The defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel states that the facts recited by the prosecutor were sufficient to support the charges of armed robbery and first degree robbery. Counsel notes that the record contains no motions filed on the defendant’s behalf, but that the defendant did file two pro se motions, one for discovery and the other for a continuance, which appear to have been ruled upon by the district court. Counsel points out that although there does not appear to be a formal ruling on the motion for discovery, at a recorded pre-trial conference defense counsel referred to the receipt of discovery, the receipt of supplemental discovery, and requests a continuance, which was granted.

Counsel indicates the district court advised the defendant of his rights prior to accepting his guilty plea. He further notes that the court’s colloquy and the plea form signed by the defendant and his counsel indicate the defendant was informed of and considered the thirty-year sentences. Appellate counsel states that with the plea agreement the State agreed not to file a multiple offender bill of information. Counsel points out that the defendant received a negotiated sentence, and that La.C.Cr.P. art. 881.2 prohibits a defendant from appealing a sentence that resulted from a plea agreement.

Appellate counsel has filed a motion to withdraw as attorney of record, which states he has mailed the defendant a copy of his brief. In addition, this Court sent the defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until August 11, 2010, to file a pro se supplemental brief. The defendant has not filed a pro se brief.

The State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case, as well as a detailed statement of fáets pertinent to the conviction, with citations to the record to assist the appellate court. The State contends that counsel has “east an advocate’s eye” over the record and found no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm the 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. When 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 only pre-trial motions the defendant filed were pro se motions for discovery and for a continuance, and no formal ruling on these appears in the record.

A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon. State v. Fletcher, 02-707, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-0409 (La.10/10/03), 855 So.2d 334.

The district court properly advised the defendant of the right to a jury trial, the right of confrontation, and the privilege against self-incrimination, as required by Boykin, supra. The judge also explained to the defendant the offenses with which he was charged, the sentencing ranges for those offenses, and the sentences he would receive in accordance with the plea agreement. The defendant acknowledged that he understood his rights, and that he wished to waive them and to enter a guilty plea. In addition, the defendant, his attorney, and the judge signed a guilty plea form that enumerated the defendant’s rights, detailed the sentencing ranges for the charged offenses, and explained the sentences the defendant would receive under the plea agreement.

The defendant’s concurrent thirty-year sentences present no appealable errors. Both were imposed pursuant to a plea agreement. La.C.Cr.P. art. 881.2(A)(2) provides, in part, "The 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.” Further, the defendant’s sentences are within the statutory sentencing range.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he 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 will grant counsel’s motion to withdraw.

ERROR PATENT DISCUSSION

We reviewed the record for patent errors, pursuant to La.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). We have found a patent error relating to the trial judge’s advice of the defendant’s post-conviction relief rights.

Although the commitment reflects the defendant was properly advised of the prescriptive period for seeking post-conviction relief, according to the transcript it appears the trial judge’s advisal was incomplete. The defendant was orally advised he had “two years from today’s date to seek post-conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final makes the advice incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis in original).

According to State v. Lynch, 441 So.2d 732, 734 (La.1983), where there is a discrepancy between the transcript and the minute entry or the commitment, the transcript prevails.

La.C.Cr.P. art. 930.8 provides, “No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final.”

Accordingly, we advise the defendant by this opinion that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922.

For the foregoing reasons, the defendant’s convictions and sentences are affirmed. The motion to withdraw as counsel is granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      . 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.

      . 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).

      . Pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the defendant was advised of his privilege against compulsory self-incrimination; his right to. trial and to a jury trial; and his right to confront his accuser.

      . State v. Davenport, 08-463, p. 11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 2009-0158 (La.10/16/09), 19 So.3d 473.


author: MARION F. EDWARDS, Chief Judge.

text:
    Barbara BRUNO wife of/and John Bruno v. BELLSOUTH/THE BERRY COMPANY d/b/a L.M. Berry and Company, ITT Specialty Risk Services, Inc., ITT/Hartford Insurance Company, Donald Brehm and Dale Granda.
    No. 10-CA-413.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Jerome M. Yolk, Jr., Julius C. Ford, D’Aquila, Volk, Mullins & Contreras, Ken-ner, LA, for Plaintiffs/Appellants.
    Daryl A. Higgins, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, Stephen D. Enright, Jr., deLaup, Miranda & Enright, L.L.C., Metairie, LA, Edward H. Bergin, Genevieve M. Hartel, Kathleen A. Harrison, Jones, Walker, Waechter, Poitevent, Carrére & Denegre, L.L.P., New Orleans, LA, Michele Whitesell Crosby, Jones, Walker, Waechter, Poitevent, Carrére & Denégre, L.L.P., Baton Rouge, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

|sThere are four judgments on appellate review in this tort action for damages. Each of the judgments grants a defense motion for summary judgment and dismisses one or more defendants/appellees from the lawsuit. Collectively, the four judgments dismiss all of the defen.dants/appellees,. leaving plaintiffs/appellants, Barbara and John Bruno (the Bru-nos), without a viable defendant against whom they can pursue their claim for damages. The issue before the trial court was whether injuries sustained by Barbara Bruno in the course and scope of her employment are the result of an intentional tort by a co-worker and are sufficient to support an exception to the exclusivity provision of the Workers’ Compensation Act. The trial court found that the exclusivity provision of the Workers’ Compensation Act applied and granted the defense motions for summary judgment dismissing all defendants/appellees from the intentional tort action.

I/The Brunos have appealed all four judgments and argue that the trial court erred in granting the motions for summary judgment. The Brunos contend Mrs. Bruno’s injuries were caused intentionally by the actions of one or more co-workers, and there are material facts remaining to be decided in that claim, precluding the summary judgments. For reasons that follow, we find the trial court correctly granted the four motions for summary judgments, and we affirm them.

FACTS AND PROCEDURAL HISTORY

The Brunos filed a petition for damages for injuries sustained by Mrs. Bruno in 1994 at her place of employment. Mrs. Bruno, who is employed by L.M. Berry & Company (Berry), attended a company party for a departing manager. The party was on the employer’s premises during regular work hours and was a BBQ and water party with food, alcoholic beverages, and a dunking booth. Several Berry employees had water guns and were squirting each other during the party. Mrs. Bruno attended the party, ate some food, and drank some beer. At one point, she went back into the building from the patio on which the party was being held to avoid being squirted with water. However, she was squirted with water guns by some of her co-workers. She slipped and fell, causing injuries to her back and head.

Mrs. Bruno filed for and received workers’ compensation benefits and, also in 1995, joined with her husband, John, to file a lawsuit for intentional tort damages. In the original petition for damages, the Bru-nos named Mrs. Bruno’s fellow employees, Dale Granda and Donald Brehm; her employer, Berry; and its insurers, Specialty Risk Services, Inc. (Specialty) and the Hartford Insurance Company (Hartford), as defendants. In a supplemental and amending petition, the Brunos added two more defendants, Lauren McClaflin and Stephen Ferrara, who are both Barbara’s co-workers, to the lawsuit. All defendants, with the exception |fiof Lauren McClaflin; amended their answers to assert the affirmative defense of exclusive remedy pursuant to the Workers’ Compensation Act.

After a lengthy discovery process, Dale Granda and Donald Brehm filed a motion for summary judgment asserting that the Brunos’ exclusive remedy lies within the Louisiana Workers’ Compensation Act, and the intentional act exception does not apply in this case. Specialty and Hartford also filed motions for summary judgment on the same basis. Stephen Ferrara filed a motion for summary judgment adding the assertion that he did not shoot Mrs; Bruno with a water gun.

After two hearings on the motions, all were granted by the trial court in four separate judgments that are the subject of this appeal.

LAW AND ANALYSIS

Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant. Thus,, appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” The burden of proof on a motion for .summary judgment is on the mover. However,

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

In five assignments of error, the Brunos argue that the trial court erred in finding that Mrs. Bruno’s injuries were not the result of an intentional tort. The Brunos contend they made a prima facie showing that a battery occurred under tort principles and that there are undecided material issues of fact concerning intent and liability for that battery. The Brunos assert that the trial court failed to apply the legal precepts of general tort law for the specific intentional tort alleged in this particular factual scenario when deciding that Mrs. Bruno could not recover from Berry for an intentional tort, and in ultimately concluding that her exclusive remedy is in workers’ compensation benefits.

The Brunos further argue the trial court’s holding that it is the intent to injure and not the intent to make an offensive contact that is necessary for finding an intentional tort is erroneous. Additionally, the Brunos argue that the issue of material fact to be decided is intent, a subjective fact for which summary judgment is an inappropriate procedure.

La. R.S. 23:1082 provides that workers’ compensation is the exclusive remedy for an employee injured at work, unless the act causing the injury was an intentional act. The Louisiana Supreme Court and the various Louisiana Courts of Appeal have extensively explored the intentional act exception to La. R.S. 23:1032 as it relates to an employer’s liability to prosecution. It is clear that the meaning |7of “intent” in this context “is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.”

This Court has discussed the “substantially certain” element in this context in Nicks v. AX Reinforcement Co., In Nicks, we explained that, if a claimant can show substantial certainty that the consequences will follow the act, he can be relieved of the difficulty of trying to establish a subjective state of mind. However, to rise to the level of an intentional tort, the case must be taken out of a simple realm of possibility, as in negligence cases, and express the concept that an actor knew with such a certainty that the injuries were substantially certain to follow, that a denial of that knowledge is not believable. Substantially certain to follow requires more than a reasonable probability that an injury will occur.

The transcripts of the hearings show that the trial court did not find that any of the defendants/appellees consciously desired to injure Mrs. Bruno when they shot her with a water gun at the company party. However, the Brunos argue that the co-workers intended the contact to be offensive and “at least slightly painful or harmful.” They also argued that it is better for the unexpected losses to fall upon the intentional wrongdoer. The Brunos use Caudle v. Betts, to support the arguments and their assertion that a battery, although intended as nothing more than a good-natured practical joke, is an intentional tort.

|sThe trial court gave extensive Reasons for Judgment in which it distinguishes the Caudle case. As the trial court.noted, the president of the company in Caudle intentionally shocked the employee in the neck with a condenser, while, in the instant case, co-employees squirted Mrs. Bruno with a water gun. The trial court found that shooting a person with water, while annoying, is not intended to do any harm or to be even slightly painful. We agree that the Caudle case is factually dissimilar and not controlling.

Mrs. Bruno argues that material facts surrounding the incident are disputed, and the trial court erred in granting the summary judgments. We disagree. The facts, even if taken only from Mrs. Bruno’s deposition as true, do not preclude the grant of the motions for summary judgments.

Mrs. Bruno testified there was a party for a fellow employee who had gotten a new job. The party, which involved a BBQ and a dunking booth, was on the patio of the office building during work hours. Mrs. Bruno stated that the BBQ was on one side of the patio and the dunking booth was set up on the other side near the parking lot. Mrs. Bruno got to the party at about 2:30 p.m. after attending a meeting. When she arrived, she observed some of her co-workers had water guns and were squirting each other, while others were talking and eating. Mrs. Bruno testified that she had to keep moving to avoid being squirted with water and to find a dry place to eat. While she did not participate in the water gun squirting activities, she had casual conversations with some of those who were participating. While she was outside attending the party, one of her co-workers, Paul Stone, indicated he was going to squirt her. Mrs. Bruno told him not to squirt her, and he did not. However, later when Mrs. Bruno walked back into the stairwell of the building, she was squirted with water. Mrs. Bruno stated that when she walked into the building, Dale Granda came in also, and. Donald Brehm came in from the Rhallway of the building. Mrs. Bruno backed up against the stairs. Mr. Brehm began shooting her with water, and Mrs. Bruno asked him to stop. Then, Mr. Granda also began shooting her with water. Mrs. Bruno grabbed Mr. Brehm to “sort of push him to stop.” As she did so, she slipped and fell on the wet floor, hitting her back, neck, and head. Mrs. Bruno got up and “grabbed” the gun from Mr. Brehm. Mrs. Bruno walked outside and Mr. Granda began to shoot her with water again. At this point, Mrs. Bruno threw the gun aside and went back to sit down at a table with friends to have a beer and try to dry out her clothes before she left for home.

Mrs. Bruno stated that the party was on a Friday afternoon. It was on Monday that she felt the pain and went to see a doctor and was treated for back, neck, and head injuries.

Initially, we note that Mrs. Bruno never states that Stephen Ferrara was involved in the incident. In her deposition, she makes it clear that the only two individuals who shot her with water guns were Dale Granda and Donald Brehm. Therefore, the motion for summary judgment that dismissed Mr. Ferrara from the law suit is justified.

We also believe the other judgments were correctly rendered. We find no error in the trial court’s ruling that the Brunos cannot bear their burden of proof at trial of the essential element of an intentional tort in the context of exclusivity of workers’ compensation law. There is no evidence that, when Mr. Granda and Mr. Brehm squirted Mrs. Bruno with water guns, it was substantially certain that she would be injured. The facts, as presented by Mrs. Bruno, simply do not establish that any one of the named defendants/ap-pellees intended that any injury whatsoever would result from the acts, or that the resulting injuries were | ^substantially certain to follow. We agree with the trial court’s conclusion that no intentional tort was committed and that Mrs. Bruno’s exclusive remedy is in workers’ compensation. Accordingly, we affirm the four appealed trial court judgments.

AFFIRMED

      . La. R:S. 23:1032.

      . It appears from the record that Lauren McClaflin was never properly served and did not make an appearance in this lawsuit.

      . Phipps v. Schupp, 09-2037, p. 3 (La.7/6/10), 45 So.3d 593 (citing, Yokum v. 615 Bourbon Street, L.L.C., 07-1785 (La.2/26/08), 977 So.2d 859, 876).

      . Hood v. Cotter, 08-0215, p. 9 (La.12/2/08), 5 So.3d 819, 824.

      . La. C.C.P. art. 966(B) as it provided when these judgments were rendered. We note that La. C.C.P. art 966(B) was re-enacted by Louisiana Legislative Act 690 (2010), although the language cited in this opinion was not changed by the reenactment.

      . La. C.C.P. art. 966(C)(2).

      . In support of that argument, the Brunos refer this Court to the Louisiana Supreme Court’s opinion in Caudle v. Betts, 512 So.2d 389 (La.1987).

      . Smith v. Tanner Heavy Equip. Co., Inc., 01-0886 (La.6/15/01), 790 So.2d 615 (citing Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981)).

      . 02-1116 (La.App. 5 Cir. 2/25/03), 841 So.2d 987.

      . Id.

      . Id.

      . Chabert v. Mothe Life Ins. Co., 04-590 (La.App. 5 Cir. 11/30/04), 890 So.2d 621, 623 (citing Jasmin v. HNV Cent. Riverfront Corp., 94-1497 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, 312, writ denied, 94-2445 (La.12/9/94), 647 So.2d 1110).

      . 512 So.2d 389 (La.1987).

      . See, Chabert v. Mothe Life Ins., supra; Guarino v. Kaiser Aluminum & Chem., 97-926 (La.App. 5 Cir. 5/13/98), 712 So.2d 989, writ denied, 98-1893 (La.10/30/98), 727 So.2d 1165, cert denied, 526 U.S. 1039, 119 S.Ct. 1334, 143 L.Ed.2d 499 (1999).


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Darnell L. HUNTER.
    No. 10-KA-552.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Virginia Skaer, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|2The Jefferson Parish District Attorney charged defendant, Darnell Hunter, with obscenity, a violation of LSA-R.S. 14:106. Defendant pled not guilty at arraignment. Defendant was tried by a six-person jury on May 5, 2010, and the jury returned a verdict of guilty as charged. On May 13, 2010, the trial court sentenced defendant to three years at hard labor, to run consecutively to the term he was currently serving in juvenile detention. Defendant appeals.

FACTS

Fonia Charles testified she is employed by the Bridge City Center for Youth, a facility that houses youths who commit serious crimes. She is assigned to supervise one of ten dormitories there. Ms. Charles testified that the youths at the facility must follow a schedule. On weekdays, they must be in bed by 9:00 p.m. On weekends, their bedtime is at 10:00 p.m. They are required to stay in bed until 1¾5:00 a.m. The dormitory is equipped with emergency lighting that remains on at all times.

On February 21, 2010, defendant was one of ten detainees under her supervision. At about 1:30 a.m., Ms. Charles noticed defendant was staring at her. She saw that his hand was moving up and down under his covers. Ms. Charles approached defendant’s bed and asked him why he was staring at her. Defendant pulled back his covers and revealed his erect penis. Ms. Charles could see that defendant was masturbating. As he did that, he licked his lips and stared at her. Ms. Charles testified that defendant’s behavior caused her to feel threatened, uncomfortable, and disrespected. She was not allowed to leave her post unless there was another employee there to take her place. She stepped into the nearby staff bathroom to avoid seeing defendant.

Some minutes later, defendant asked Ms. Charles for permission to go to the bathroom, which she granted. When he exited the bathroom, he returned to his bed and continued to masturbate. Defendant commented to Ms. Charles that he liked to watch her while he masturbated, and that he could not see her while he was in the bathroom. Ms. Charles testified that she saw defendant ejaculate and wipe himself off with a tissue. Defendant then went to sleep. Ms. Charles identified her. encounter with defendant on security footage that was shown to the jury at trial.

Ms. Charles testified that she wrote a report following this incident. A member of the facility’s staff notified the Jefferson Parish Sheriffs Office, and Ms. Charles gave a statement to the responding officer. She stated that masturbation is not acceptable behavior in the detention facility. Prior to this incident, she had reported defendant to her supervisors for masturbating in the dormitory on other occasions, but she did not notify police of the other incidents.

LAW AND DISCUSSION

Defendant does not challenge his conviction, but assigns two errors regarding his sentence. In his first assignment of error, defendant contends his three-year consecutive sentence for obscenity is excessive. He maintains that pre-trial discussions between the trial judge and the attorneys show that the sentence was not based on the facts of the case. Instead, defendant argues, the record shows the judge was predisposed to impose the maximum term of imprisonment allowed by law even before he heard the evidence. Defendant further complains the trial court gave no reasons to support the imposition of the maximum sentence. He asserts the court failed to comply with the sentencing criteria in LSA-C.Cr.P. art. 894.1. Defendant recognizes his trial counsel did not make a timely objection to the sentence imposed, nor did he file a motion to reconsider sentence in accordance with LSA-C.Cr.P. art. 881.1. He contends, however, that the arguments counsel made prior to trial with respect to sentencing were sufficient to satisfy the requirements of Article 881.1.

The State responds that in neglecting to make an objection or file a motion to reconsider sentence after the sentence was imposed, defendant failed to comply with the provisions of LSA-C.Cr.P. art. 881.1, and he is thus limited on appeal to a review for constitutional excessiveness. The State further argues that defendant’s sentence is not constitutionally excessive, and that it is supported by the record.

The record shows defendant did not make a timely oral or written motion to reconsider sentence pursuant to Article 881.1. The failure to make or file a motion to reconsider sentence or to state the specific grounds on which the motion is based, limits a defendant to a review of the sentence for constitutional | ¿excessiveness only. State v. Fuller, 07-319, pp. 8-9 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 50, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282.

Defendant claims that the arguments counsel made prior to trial with respect to sentencing were sufficient to satisfy the requirements of LSA-C.Cr.P. art. 881.1. As defendant points out, there was a bench conference prior to trial during which the judge and the attorneys discussed the sentence defendant might receive if the jury found him guilty. The judge assured defense counsel, Mr. Doyle, that he would not penalize defendant for electing to go to trial rather than plead guilty. The judge commented, “It makes me very nervous that he’s got his history — you know, this charge on top of his history makes me very, very uncomfortable.” Defense counsel explained that the aggravated rape for which defendant was currently serving time in the juvenile facility involved an incident with defendant’s girlfriend. Defense counsel maintained that defendant was not a predator, and he stated that defendant came from a stable family who would welcome him back when he was released from his current juvenile detention. Counsel expressed his concern that if defendant were remanded to the Department of Corrections, he would come out “a lot worse.”

The prosecutor noted that the guard who was the victim in this case had reported that defendant bragged about the behavior that led to the instant charge. The judge stated, “Well, first of all, if he wants to do that kind of thing, that’s fine. But he needs to do it when he’s alone.” Defense counsel acknowledged that defendant should be punished for his behavior, but asked, “how much is how much?” Counsel noted that defendant would still be confined to the juvenile facility for another one and one-half to two years. When the possibility of a probated sentence was raised, the judge responded, “But that doesn’t punish him at all.” The judge asked the prosecutor if he had a response to defense counsel’s | (¡request for probation, and the prosecutor stated that he was not permitted to offer an opinion regarding sentencing. Finally, the judge commented he did not feel that three years— the maximum sentence allowed — was enough. The judge stated, “This kid scares me.”

The sentencing arguments defense counsel made prior to trial do not satisfy the requirements of LSA-C.Cr.P. art. 881.1 A(l), which provides, “In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.” [emphasis supplied]. An objection to a sentence or a motion to reconsider sentence filed before the sentence is imposed is premature. Defendant is therefore limited to a review of his sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Nguyen, 06-969, pp. 5-6 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622. In general, maximum sentences are reserved for cases involving the most serious violations of an offense charged and the worst type of offender. State v. Stacker, 02-768, p. 8 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 607, writ denied, 03-0411 (La.10/10/03), 855 So.2d 327.

A trial judge has broad discretion in imposing sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue |7on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

Defendant also objects to the consecutive nature of his sentence. This Court has recognized that the excessiveness of a consecutive sentence is not included in a bare constitutional review. State v. Dixon, 04-1019, p. 15 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 938; State v. Watson, 02-1154, p. 22 (La.App. 5 Cir. 3/25/03), 844 So.2d 198, 212, writ denied, 03-1276 (La.5/14/04), 872 So.2d 506. However, this Court has performed a bare constitutional review of claims that consecutive sentences are excessive where the defendant has also argued the sentences were individually excessive. See State v. Badeaux, 01-406, pp. 10-11 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, 240-41, writ denied, 01-2965 (La.10/14/02), 827 So.2d 414; State v. Hester, 99-426, pp. 10-11 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103-04, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

At the time of sentencing, the trial judge stated:

At this time, sir, based on your criminal history as a juvenile, which the Court is aware, and the instant charge, considering the facts of the case, and considering your criminal history, the Court hereby sentences you to three years in the Department of Corrections. That sentenced [sic] will run consecutive [sic] sentence that you’re currently serving.

Although the trial judge referred during the sentencing hearing to defendant’s criminal history as a juvenile, the record fails to contain any evidence regarding the nature or extent of defendant’s criminal history. During the pre-trial bench conference, trial counsel for defendant indicated the reason that defendant |swas being held in the juvenile facility, but during oral argument in this Court, appellate counsel stated that she has been unable to ascertain defendant’s criminal history and counsel for the State agreed with this assertion. Absent evidence in the record regarding defendant’s criminal history, we are unable to verify trial counsel’s statements to the judge regarding the nature of defendant’s criminal record. Under these circumstances, we are unable to complete a review of defendant’s sentence for constitutional excessiveness. We must therefore vacate the sentence imposed and remand the case to the trial court for resentencing once the record is complete with defendant’s criminal history.

Based on our ruling herein vacating the sentence and remanding the matter for resentencing, we do not reach defendant’s argument that his trial counsel was ineffective for failing to object to the sentence. We also note that the minute entry from the date of sentencing indicates that defendant pled guilty to the charges against him, while the record shows that he was convicted after trial on the merits. This error can also be corrected upon resen-tencing.

DECREE

For the foregoing reasons, defendant’s conviction is affirmed. However, the sentence is vacated and the matter is remanded to the trial court for resentencing consistent with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING

      . LSA-R.S. 14:106 G(l) provides, "On a first conviction, whoever commits the crime of obscenity shall be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned, with or without hard labor, for not less than six months nor more than three years, or both.”


text:
    Randy James RUDOLPH v. D.R.D. TOWING COMPANY, LLC and Martin Operating Partnership, LP.
    No. 10-CA-629.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Isaac H. Soileau, Jr., Ryan A. Jurkovic, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant, Randy James Rudolph.
    Bert M. Cass, Jr., Paul D. Hale, Isaac H. Ryan, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, D.R.D. Towing Company, L.L.C. ■
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

12This is a maritime personal injury case in which the plaintiff appeals the trial court’s grant of an exception of res judica-ta. For the following reasons, we vacate the judgment and remand the case.

FACTS

Randy James Rudolph filed suit on October 14, 2008, against D.R.D. Towing Company, LLC, as operator of the MW RUBY E, and against Martin Operating Partnership, L.P., as owner and operator of the MW .MARTIN CHALLENGER, alleging various maritime claims under the Jones Act (46 U.S.C. § 30104), the general maritime law of the United States, and the laws of .Louisiana. Rudolph alleged that on July 13, 2008, he was employed by DR.D. as a deckhand and crew member of the MW RUBY E, which was operated by D.R.D., on navigable waters within the district court’s jurisdiction. On that date the RUBY E was struck by the M/V MARTIN CHALLENGER. As a result of the collision, Rudolph was thrown from his bunk and within seconds had to escape the RUBY E, which was sinking. Rudolph made various allegations of negligence and fault against the defendants.

IsD.R.D.’s Answer incorporated an exception of res judicata. D.R.D. asserted that Rudolph had executed a receipt and release settling any and all claims within a few days of the incident made the basis of the suit. D.R.D. averred that on July 16, 2008 — three days after the collision between the M/V RUBY E and the M/V MARTIN CHALLENGER — Rudolph met with an insurance adjuster and agreed to accept $3,000 from D.R.D. in exchange for a full and final release of D.R.D. and other related entities from any claims that Rudolph had or might have as a result of the July 13, 2008 incident involving the M/V RUBY E. D.R.D. attached copies of the affidavit of the insurance adjuster, Jack R. Hoyle; a transcript of Hoyle’s tape-recorded conversation with Rudolph, in which they discussed the release; the Release of All Rights signed by Rudolph; and the check made payable to Rudolph.

Rudolph filed an opposition to the exception and attached his own affidavit, setting out his version of the events surrounding the signing of the release.

At hearing of the exception, there was argument of counsel, but neither party introduced any of the exhibits that had been attached to their pleadings.

The district court granted the exception of res judicata from the bench and later provided written reasons for judgment, in which the court found the release was signed by Rudolph with full understanding of his rights. Rudolph appeals.

|„LAW AND ANALYSIS

We do not address the merits of the exception because our review of the record discloses a glaring flaw: Neither party introduced any evidence into the record at hearing of the exception. Although the parties both attached their documentary evidence to their memoranda in support of or in opposition to the Exception of Res Judicata, the documents are not properly before us for review.

The- party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence;. if there is any. doubt as to its applicability, the exception must be overruled. Advanced Commercial Contracting v. Powell Ins. Agency, 09-758, p. 5 (La.App. 5 Cir. 12/29/09), 30 So.3d 851, 854.

On motion for summary judgment, the court may review the pleadings and other documents filed in the record. La. C.C.P. art. 966(B). On trial of a peremptory exception pleaded prior to trial of a case, however, when the grounds for the peremptory exception do not appear from the petition, evidence may be introduced to support or controvert any of the objections pleaded. La. C.C.P. art. 931.

The failure to appropriately file exhibits into evidence is problematic. Some confusion apparently arises due to the differences in a court’s consideration of motions for summary judgment and peremptory exceptions. In considering a motion for summary judgment, the court shall render judgment “if the pleadings, depositions, answers to interrogatories) and admissions on file, together with the affidavits, if any, show that there is no ■genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966. Appellate review of motions for summary judgment is de novo. Thus, the appellate court considers the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits submitted by the parties.
|fiOn the other hand, at the trial of a peremptory exception ..., “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” LSA-C.C.P. art. 931. Appellate review of the record following a hearing on exceptions is governed by manifest error when evidence has been introduced at the hearing. In the absence of evidence, the exception ... must be decided on the facts alleged in the petition, which are accepted as true.
Failure to adequately prepare the record by neglecting to offer matters into evidence can alter the outcome of a case, especially ... where the burden of proof may shift between the parties. In this matter, that failure led to delay and additional work on the part of this court and counsel for the parties which could have been avoided by introducing evidence into the record. [Citations omitted.]

Cichirillo v. Avondale Industries, Inc., 2004-2894, p. 5 n. 7 (La.11/29/05), 917 So.2d 424, 428 n. 7.

Here, the grounds for the exception of res judicata do not appear from the petition, which merely states Rudolph’s claims against the defendants. Hence, the parties should have introduced evidence to support their claims regarding res judica-ta.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. None of the depositions relied on by the Plaintiffs were properly before the trial court at the time of the hearing, nor were they properly part of the record on appeal. Thus, based on the content of the record before us, we must conclude that Plaintiffs failed to meet their burden of proof in this matter. [Footnote added; citations omitted.]

Denoux v. Vessel Management Services, Inc., 2007-2143, p. 6 (La.5/21/08), 988 So.2d 84, 88-89.

| (¿Because the grounds for the exception of res judicata do not appear from the petition, and there is no evidence on which to otherwise decide the exception, the trial court erred in granting the exception. The judgment must be set aside. ■

For the foregoing reasons, the judgment is vacated. The case is remanded for further proceedings. Costs of this appeal are assessed equally to the parties.

VACATED AND REMANDED

      . The petition was later supplemented to add Rudolph’s wife, Sheena Rudolph, as a plaintiff, seeking damages for mental and emotional pain and suffering, and for loss of consortium, society, and service.

      . In addition to D.R.D. Towing, LLC, other entities named in the Release were Four Marine, LLC, and Zito Fleeting, LLC.

      . Rudolph’s affidavit stated that three days after the accident, he was ordered by his employer to come to the office. He was interviewed by several people, many of whom he did not know. He was told he would be paid $3,000 for the loss of his computer and other papers that went down with the RUBY E. He was not advised of his right to speak with an attorney before he signed the document, nor was he advised of his right to sue for maintenance and cure as well as for general damages. He was not offered medical treatment, but he believed that if he needed medical treatment he would be able to obtain it. He subsequently found he suffered mental and physical injuries because of the collision and he needs additional treatment.

      .Rudolph designated the record on appeal and specifically requested that the judgment be included in the record. As filed in this Court, however, the appellate record did not contain a copy of the judgment, only a copy of the written reasons for , judgment. Neither the appellant nor the appellee noted the deficiency in the record. In such cases we are authorized to dismiss the appeal as premature ' for lack of a judgment. Rather than dismiss the appeal, however, in the interest of judicial efficiency we ordered the district court to supplement the record with the judgment.