author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Leroy JACKSON.
    No. 2010-KA-1633.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Martin E. Regan, Jr., Martin E. Regan & Associates, P.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

I,STATEMENT OF CASE

On November 30, 2009, the State filed a bill of information charging the defendant with one count of armed robbery and two counts of attempted armed robbery. The defendant pled not guilty at arraignment. On April 26, 2010, a hearing was commenced on defense motions. The hearing resumed on August 31, 2010. The trial court denied the motion to suppress the identification and found probable cause.

Trial commenced on August 31, 2010, after the hearing on defense motions was complete. The jury found the defendant guilty as charged on all counts.

On September 24, 2011, the trial court sentenced the defendant. As to the conviction for armed robbery in count one, the defendant was sentenced to fifty years at hard labor without benefit of probation, parole, or suspension of sentence. As to the two attempted armed robberies, the court sentenced the defendant to twenty-four years imprisonment without benefit of probation, parole, or suspension of sentence.

A multiple bill hearing was conducted on November 29, 2011, after which, the defendant was found to be a second felony offender. The court vacated the | ^previously imposed sentenced on count one and re-sentenced the defendant to fifty years at hard labor without benefit of probation, parole, or suspension of sentence. The court denied the defendant’s motion to reconsider sentence and granted the motion for appeal.

STATEMENT OF FACT

On August 15, 2009, Adrian Maldonado, his brother, Aníbal Maldonado, their friend Wilson Vargas, and two friends, were eating and relaxing in the backyard of the Maldonado’s apartment building in the 3000 block of Cherry Street, in New Orleans, Louisiana. Wilson Vargas stepped into the front yard to make a phone call. He noticed a green Ford SUV drive past and turn on Colapissa Street, a half block away. Shortly thereafter, three men approached Mr. Vargas. Two had bandanas covering their faces, one did not. Vargas issued a friendly greeting, but the men pulled guns out.

The men grabbed Vargas, hit him several times, and demanded his money, but Vargas had no money or other valuables on his person. Holding him by the shirt, the men dragged Vargas into the backyard. The man without a handkerchief covering his face grabbed Adrian Maldonado and struck him in his ribs and face. He turned him around, threw him to the ground, searched his pockets, and took everything he had, including his wallet, which contained five hundred dollars. The other men had Vargas on the ground and were searching him. After the robbery, the men ran.

When Aníbal Maldonado and the others saw the armed men dragging Wilson Vargas into the backyard they took off running. Aníbal Maldonado crossed through a few yards and jumped some fences. As he neared the street, he saw the green Ford SUV stopped on the street with one person sitting inside and ^sensed danger. He stopped short before reaching the street. Then he saw the three men running towards the vehicle. The man who did not have a handkerchief covering his face entered the vehicle on the side closest to where Aníbal Maldonado was positioned.

After the robbery, the victims called the police, who arrived approximately forty-five minutes later. Detective Patrick Conaghan was assigned to investigate the robbery. The day after the robbery, Detective Conaghan took the victims to the Second District Station for the purpose of creating a composite sketch of the unmasked perpetrator. Officer Stephanie Taillon assisted in creating a composite sketch using a computer software program designed for that purpose for which she was trained. Working with Officer Taillon, the victims manipulated various facial features on the computer until they created a composite sketch of the unmasked perpetrator. Once completed, they signed and dated the sketch. Officer Taillon then created a wanted bulletin with the sketch which was introduced at trial.

Sergeant Sean Ferguson, who supervises the robbery detectives in the Second District, saw the composite sketch and told Detective Conaghan that the sketch had a striking resemblance to Leroy Jackson, and he suggested that Detective Conaghan put him in a photographic lineup.

On August 20, 2009, Detective Conaghan traveled to the apartment building on Cherry Street and showed Wilson Vargas the lineup. After viewing the lineup, Mr. Vargas positively identified Leroy Jackson as the perpetrator. Two days later, Detective Conaghan met with Adrian Maldonado at his apartment. He presented the lineup to Mr. Maldonado, and he identified the defendant and then signed the rear of the lineup indicating his selection. On August 27, 2009, Detective Conaghan met with Aníbal Maldonado at the soccer field across from |4the house on Cherry Street. He placed the photo lineup face down on the trunk of his vehicle, and Mr. Maldonado identified the defendant and signed the back of the lineup indicating his selection.

After the jury retired to commence their deliberations, the trial court issued some comments for the record. The court noted that its comments were not directed at the guilt or innocence of the defendant but were directed at the overall deterioration of the system. Specifically, the court commented on Detective Conaghan’s failure to prepare three separate photo lineups with the defendant’s photograph placed in a different location rather than simply compiling one photo lineup for all three witnesses to view. The court considered the failure to do so unprofessional. The court also commented on the fact that a witness from the police department left the courthouse prior to testifying and on the fact that no photographs of the location where the robbery occurred were submitted.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

The defendant contends the trial court erred when it denied the motion to suppress the identification.

In State v. Thibodeaux, 1998-1673 (La.9/8/99) 750 So.2d 916 the Louisiana Supreme Court set out the relevant jurisprudence as follows:

As a general matter, the defendant has the burden of proof on a motion to suppress an out-of-court identification. La.Code Crim. Proc. art. 703(D). To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). However, even when suggestiveness of the identification process is proven by the defendant or presumed by the IfiCourt, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d at 738.

The Supreme Court held in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.” Under Manson, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include: 1) the witness’ opportunity to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Id.

State v. Thibodeaux, pp. 20-21, 750 So.2d at 932.

In support of defendant’s claim that the trial court erred in failing to suppress the identification, defendant references the trial court’s comments at the end of the trial relative to Detective Conaghan’s failure to create three separate photographic lineups. The defendant suggests that the trial court’s comments are evidence that the court found that the lineup was unduly suggestive.

Review of the trial court’s comments reflects simply that the court believed that it would have been more professional to have prepared three separate lineups and that by positioning the defendant’s photograph differently in each lineup, the chance that the victims would confer with each other regarding whom they identified would have been eliminated.

However, there is nothing from the testimony to suggest the victims identified the defendant for any reason other than because they believed he had committed the robbery. None of the victims suggested that they had spoken to each other regarding whom they identified. Adrian Maldonado testified that he did not speak to anyone about the identification procedure. Each of the victims | ^testified that the lineup was presented to him face up, and that he only turned the lineup over after he had made an identification.

Furthermore, the circumstances surrounding the robbery do not suggest that there was a likelihood of misidentification. From the testimony, it appears that the victims maintained a high degree of attention to the events as they unfolded. Indeed, it appears that the victims were acutely aware of their circumstances. All the victims testified that the lighting was very good.

At the motion to suppress the identification, Adrian Maldonado testified that the man without the handkerchief covering his face put his gun to his chest and told him not to look at him. Nevertheless, Mr. Maldonado testified that he was trying to look at his face the entire time. Aníbal Maldonado testified that when the perpetrators reached the Ford SUV, the defendant turned around to see if anyone was following them and that he could see his face very well. He stated that that this area was quite well lighted.

Accordingly, the defendant’s assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

In this assignment of error, the defendant argues that he was prejudiced by a statement by the prosecutor during closing argument. The Code of Criminal Procedure provides that the scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774.

17Also, La.C.Cr.P. art. 770 provides that a mistrial shall be ordered when a comment during argument refers directly or indirectly to “the failure of the defendant to testify in his own defense.”

However, a prosecutor retains “considerable latitude” when making closing arguments. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364. Furthermore, the trial judge has broad discretion in controlling the scope of closing arguments. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022.

Before an appellate court is permitted to reverse a conviction on the basis of improper argument, it must be convinced that the jury was influenced by the remarks to the extent that the statements contributed to the verdict. State v. Michel, 422 So.2d 1115 (La.1982).

The complained of statement made by the prosecutor is as follows:

... Now, the Defense attorney, he could have grilled them. He could have tried to crack them. He didn’t even talk about it. ‘Didn’t you tell them that it was number two?’ He never did. He didn’t even try.

The defendant objected to the statement on the basis that it impermissibly shifted the burden at trial. The objection was denied.

There was nothing about the comment which could be seen as a direct or indirect comment on the defendant’s failure to testify. It appears that in making the statement the prosecutor was either commenting on the strength of the identifications or answering an argument by defense counsel. Whatever the case, the comments by the prosecutor fall well within the permissible scope of La. C.Cr.P. art. 774. The defendant’s assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

In his third assignment of error, the defendant argues that his conviction by a non-unanimous jury was unconstitutional. La. Const, art. I, § 17 and La.C.Cr.P. 18art. 782(A) provide that in cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.

The Louisiana Supreme Court and this Court have rejected the argument that a non-unanimous verdict violates the Fifth, Sixth, or Fourteenth Amendments to the Unites States Constitution on multiple occasions. State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738; State v. Boudreaux, 2008-1504 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144; State v. Barbour, 2009-1258 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, writ denied, 2010-0934 (La. 11/19/10), 49 So.3d 396, cert. denied., Barbour v. Louisiana, — U.S.—, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011).

Defendant’s assignment of error lacks merit.

CONCLUSION

Based on the above and foregoing we affirm the defendant’s convictions and sentences.

AFFIRMED


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kikyator JONES.
    No. 2011-KA-0649.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Kevin V. Boshea, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

liThe defendant, Kikyator Jones, appeals his conviction and sentence for possession of heroin, a violation of La.Rev.Stat. 40:966(0(1). After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction, vacate the defendant’s twenty-year sentence, and remand the matter to the trial court for further proceedings.

Relevant Facts and Procedural History

On January 20, 2009, at approximately 9:30 p.m., Detective Lawrence Jones and Officer Victor Gant of the New Orleans Police Department (NOPD) were on patrol traveling eastbound on North Villere Street when they observed a vehicle without brake or taillights traveling northbound on Music Street. They decided to conduct a traffic stop and activated their vehicle’s lights and siren. The vehicle stopped in the 1400 block of Music Street and Detective Jones activated the police unit’s spotlight to enhance their ability to see inside the vehicle. Detective Jones approached the driver’s side of the vehicle and requested the driver’s name and license. The driver of the vehicle was identified as Miguel Joseph and a computer check showed that Joseph did not have a driver’s license. Meanwhile, Officer | gGant approached the passenger side of the vehicle and observed the defendant making erratic movements. The defendant slumped down, kept looking back at Officer Gant to see where he was located, and began to lean forward as if he was hiding or reaching for something. The defendant’s erratic gestures raised Officer Gant’s suspicions that he could have a weapon and, accordingly Officer Gant ordered the defendant to exit the vehicle. Officer Gant conducted a pat down search for weapons but found none. The defendant had no identification but a computer check revealed he had an outstanding municipal warrant for his arrest. Officer Gant advised the defendant of his Miranda rights and placed him under arrest. Pursuant to a search incident to arrest, Officer Gant recover a clear plastic bag containing a brown powdery substance in side the defendant’s left rear waistband, between his belt and his 'side. Officer Gant performed a field test on the substance which tested positive for heroin. He again advised the defendant of his Miranda rights and placed him under arrest for possession of heroin. Miguel Joseph was given a traffic citation and released.

On March 23, 2009, the defendant was charged with possession of heroin. On June 18, 2009, he pleaded not guilty and defense counsel filed motions to suppress the evidence, the statement, the identification and for a preliminary hearing. On October 29, 2009, the trial court denied the motion to suppress the evidence and found probable cause to hold the defendant for trial. On July 6, 2010, the defendant elected trial by jury. The jury was unable to return a verdict. A mistrial was declared. On October 14, 2010, following a jury trial, the defendant was found guilty as charged. On November 4, 2010, defense counsel filed objections to the multiple bill and a motion for an appeal. On November 12, 2010, defense counsel filed a motion for a new trial. On December 3, 2010, the | .^defendant was sentenced to serve seven years at hard labor with credit for time served and concurrent with any other sentence. Defense counsel’s oral motions for a new trial and for reconsideration of the sentence were denied. A written motion for reconsideration of defendant’s sentence was filed on December 7, 2010. On January 21, 2011, the defendant was adjudicated a third felony offender. He was resen-tenced to serve twenty years at hard labor with credit for time served and concurrent with any other sentence.

Errors Patent

A review for errors patent reveals none.

Assignment of Error Number Four

The defendant asserts that the evidence was insufficient to support his conviction. Accordingly, we must determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79. Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293.

Pursuant to La.Rev.Stat. 40:964(B)(11), heroin is a Schedule I controlled dangerous substance. La. R.S. 40:966(C) provides in pertinent part:

|4It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part.

At trial, both Detective Jones and Officer Gant testified as to the events of January 20, 2009. In addition, Corey Hall, a criminalist with the NOPD and an expert in the testing and analysis of narcotics, testified that the brown powdery substance taken from defendant tested positive for heroin.

Edward Gai, a private investigator and retired police officer, testified for the defense. He stated that the Chevrolet Avalanche, in which Joseph and the defendant were riding on the night of the defendant’s arrest, was registered in the name of Andrew Joseph. On cross-examination Mr. Gai admitted, given his past experience as a police officer, that given the small quantity of narcotics taken from defendant, the crime lab would not have been called out to the scene to test the contraband.

The defendant’s sole challenge to the sufficiency of the evidence is that the heroin was unlawfully seized, and without the heroin, there was no evidence to support the conviction. This argument is without merit. As discussed pursuant to the defendant’s assignments of error one and five, the evidence was lawfully seized. Furthermore, when considering the sufficiency of the evidence, the court must look to all the evidence presented, even that which might be inadmissible, to determine if the evidence was sufficient to support the jury’s verdict. State v. Hearold, 603 So.2d 731 (La.1992).

In the instant case, after a traffic stop of the vehicle in which the defendant was a passenger, Officer Gant suspected that he might be in possession of a ^dangerous weapon and requested that he exit the vehicle. The defendant was not carrying any identification but disclosed his name to Officer Gant. An NCIC computer search revealed that defendant had an outstanding arrest warrant in Orleans Parish. Officer Gant informed the defendant of his Miranda rights and placed him under arrest for the outstanding warrant. Incident to the defendant’s arrest, Gant conducted a full search of defendant during which he discovered the plastic bag containing heroin in defendant’s waistband between his belt and his side. Defendant was again informed of his Miranda rights and arrested for possession of heroin. No evidence was presented that defendant was legally in possession of the heroin. Accordingly, the evidence was sufficient to support defendant’s conviction for possession of heroin. This assignment of error is without merit.

Assignments of Error One and Five

The defendant argues in assignment of error one that the district court erred in denying his motion to suppress the evidence and in assignment of error five that the district court erred in denying his motion for a new trial that was based on his argument that the trial court erred in denying his motion to suppress. Specifically, the defendant asserts that the trial court erred in denying the motion to suppress because (1) Officer Gant’s testimony that the police unit spotlight allowed him to see inside the vehicle was not credible; (2) the State failed to produce the alleged outstanding arrest warrant or any other documentation to corroborate the basis of the defendant’s arrest and the subsequent full search of the defendant which resulted in the seizure of the heroin, and (3) the traffic affidavit (State’s exhibit | fione) was not signed by either Officer Gant or Detective Jones and, as such, there was no traffic violation to support the basis for the initial stop of the vehicle in which defendant was a passenger.

However, both Officer Gant and Detective Jones testified that the crime computer reflected that there was an outstanding warrant for the defendant’s arrest. The defense did not produce any internal contradiction, irreconcilable conflict or other proof that no warrant existed. Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984). The officers’ testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La.11/29/06), 943 So.2d 362, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007); State v. Vanburen, 2008-0824 (La. 4 Cir. 12/30/08), 3 So.3d 552. The jury chose to credit the testimony of the police officers. The jury’s determination was not unreasonable in light of the evidence in this case.

Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe that a traffic violation has occurred. State v. Waters, 2000-0356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056 (citation omitted). An officer making a traffic stop may order the driver (as well as passengers) out of a vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 187 L.Ed.2d 41 (1997); State v. Benoit, 2001-2712, p. 6 (La.5/14/02), 817 So.2d 11, 15. In this case, the stop was justified because the vehicle in which the defendant was a passenger lacked functioning taillights. However, assuming ar-guendo that the traffic stop |7was illegal, the defendant’s subsequent arrest on the outstanding warrant was legal and the heroin was found when defendant was searched incident to his legal arrest on the warrant. These assignments of error are without merit.

Assignment of Error Three

By this assignment of error, the defendant argues that the evidence presented at the multiple bill hearing was insufficient to support the judge’s finding that he is a third felony offender. Specifically, defendant asserts that the State failed to prove that he is the same person (identity) convicted in each of the two prior felony convictions used in the multiple bill, and because the State failed to prove that defendant knowingly and voluntarily waived his constitutional rights when he pleaded guilty to the two predicate felonies.

“To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony.” State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 822, 325 (citation omitted). Various methods may be used to prove that the defendant on trial is the same person convicted of the prior felony offense, including testimony of witnesses, expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race and date of birth. Id. (citation omitted).

In the multiple bill of information in this case, the State charged that the defendant pleaded guilty on August 9,1999, in Jefferson Parish case number 99-00001 to attempted simple burglary and on August 31, 1998, in Orleans Parish to |sthe theft of goods valued at over $100.00 on August 31, 1998 in case number 397-668 “H”.

In the instant case, the state produced the arrest register for the Jefferson Parish 1998 conviction (State’s exhibit 2). Officer Joseph Pollard testified that he compared the prints on the arrest register with defendant’s prints that he took on the morning of the trial (State’s exhibit 1) and found that the prints were a match. Officer Pollard also compared the prints on the documents contained in certified pack from Jefferson Parish on the 1998 conviction (State’s exhibit 3, the bill of information, docket master, plea of guilty form, fingerprint card and a multiple offender bill of information) with defendant’s prints on State’s exhibit 1; the prints matched. Finally, Officer Pollard compared the prints on the bill of information from the original documents for case number 397-668 “H” (State’s exhibit 4) with defendant’s prints on state’s exhibits 1 and 2; the prints matched.

In State v. Shelton, 621 So.2d 769, 779-780 (La.1993), the Louisiana Supreme Court stated:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a | oguilty plea form, a minute entry, and “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

Following the Louisiana Supreme Court decision in Shelton the Louisiana Legislature amended La. R.S. 15:529.1(D)(l)(b) to place the burden of challenging a predicate conviction in a multiple bill proceeding on the defendant. That subsection now provides, in pertinent part:

If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information.A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack a sentence, (emphasis added).

In the present case, the defendant did not file a written response to the habitual offender bill of information complaining of any of the prior convictions with particularity. The defendant filed a general objection to the multiple bill asserting that the State failed to introduce sufficient evidence to prove the identity of the defendant beyond a reasonable doubt. Accordingly, the defendant’s argument that the State did not produce sufficient proof of the prior convictions is not preserved for appellate review. Even assuming arguendo that this issue was properly preserved for appellate review, the State carried its burden of proof to the allegations in the multiple bill. The State submitted the plea of guilty forms to both predicate felonies reflecting that defendant was informed of all of his Boykin rights; that he waived those rights; and that he was represented by counsel. | Accordingly, pursuant to Shelton, the state produced sufficient proof of defendant’s prior guilty pleas.

The defendant argues that the trial court should not have accepted the 1998 conviction in Jefferson Parish to enhance his sentence because the copy of the guilty plea form erroneously reflects case number 397-668 (the Orleans Parish case) on it. The trial court conceded that the Orleans Parish case number did appear on the Jefferson Parish guilty plea form but opined that the notation of case number 397-668 was an attempt by the defendant’s defense counsel to make sure that the defendant’s sentence in the Jefferson Parish case run concurrent with his sentence in 897-668, the Orleans Parish case. Furthermore, the trial court found that because the fingerprints matched on the Jefferson Parish documents (State’s exhibit 3) with defendant’s prints taken on the morning of trial, the State carried its burden of proving that defendant was the same person convicted in Jefferson Parish. See State v. Cosey, 2004-2220 (La.App. 4 Cir. 7/13/05), 913 So.2d 150 (matching a defendant’s fingerprints to an arrest register which then was matched to other documents concerning the prior offense is sufficient to establish identity).

Thus, the evidence is sufficient to support the defendant’s adjudication as a third felony offender. However, the inquiry does not stop here. The defendant further argues that because the conviction for theft (a felony at the time of the conviction) in case number 397-668 “H” was a misdemeanor at the time of the instant conviction, that it should not have been used in the multiple bill to enhance defendant’s sentence. However, “for multiple offender purposes, an offense [nwhich is subsequently reduced to a misdemeanor retains its felony status as of the time of commission.” State v. Blackwell, 377 So.2d 110, 112 (La.1979) (citations omitted).

Assignments of Error Two and Six

The defendant argues that the trial court erred by denying his motion to reconsider his sentence as excessive because his prior convictions were nonviolent. He also further argues that the trial court increased the defendant’s twelve year sentence to twenty years, without justification, only because the trial court appeared annoyed with defense counsel for objecting to the sentence.

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. A sentence may violate a defendant’s constitutional right against excessive punishment, even if it is within the statutory limit, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. Accordingly, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.Code Crim. Proc. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 8 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 892. If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir.1985). The reviewing court must also keep in mind that maximum sentences should be reserved for the most egregious violators of the offense charged. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). However, while the articulation of |12the factual basis for a sentence is the goal of Art. 894.1, it does not require a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); the reviewing court shall not set aside a sentence for exces-siveness if the record supports the sentence imposed. La.Code Crim. Proc. art. 881.4(D). State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813. The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222, 1227 (La. 1983).

La.Rev.Stat. 40:966(0(1) provides:

A substance classified in Schedule I which is a narcotic drug (all substances in Schedule I preceded by an asterisk), shall be imprisoned at hard labor for not less than four years nor more than ten years and may, in addition, be required to pay a fine of nor more than five thousand dollars.

Pursuant to the Habitual Offender Law, the penalty for a triple offender is imprisonment “for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” La.Rev. Stat. 15:529.1(A)(3)(a).

In the instant case, prior to the imposition of sentence, the State informed the trial court that defendant had a pending charge for attempted second-degree murder and a charge for being a convicted felon in possession of a dangerous weapon after defendant admitted to being in possession of a shank while incarcerated. The state argued that defendant was an ideal candidate for the maximum twenty year sentence. Defense counsel argued that the defendant’s sentence should be the | ^minimum sentence because of the small amount of heroin seized from defendant. After hearing both arguments, the trial court sentenced defendant to twelve years at hard labor.

When defense counsel objected and stated that he was going to file another motion for reconsideration of the sentence, the trial court reminded counsel that he had already filed one. When defense counsel insisted that he was going to file a second motion to reconsider the sentence, the trial court increased defendant’s sentence to the maximum twenty years at hard labor, referring to the pending attempted second-degree murder charge and the fact that, after the court imposed his original sentence, the defendant walked past the bench and used profanity.

Notably, the defendant was not held in contempt of court and, although a defendant’s use of profanity in the courtroom constitutes grounds for a separate contempt of court proceeding, it does not justify the eight-year increase in the defendant’s sentence. Thus, as the defendant claims, it appears that the trial judge court increased the defendant’s sentence primarily because she was annoyed with defense counsel. This was unjustified. Accordingly, the defendant’s twenty-year sentence is vacated and the matter is remanded back to the trial court.

Conclusion

The defendant’s conviction is affirmed. The defendant’s sentence is vacated and the matter remanded back to the trial court for further proceedings.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . The defendant’s fourth assignment of error addresses the sufficiency of the evidence and, accordingly, is addressed first. See State v. Hearold, 603 So.2d 731 (La.1992).

      . Defense counsel did not object to the admission of the traffic affidavit at trial. When asked if he had any objection, defense counsel stated that he had the same objection that he entered at the motion to suppress hearing. The motion hearing transcript reflects that defense counsel did not object to the admission of the traffic affidavit. Tr. p. 56; motion to suppress hearing transcript p. 16.

      . The trial court found Officer Pollard to be an expert in the identification and comparison of latent fingerprints.

      . Officer Pollard testified that he obtained the original documents for case number 397-668 "H” because the certified copies he received were not suitable for comparison.

      . The multiple bill reflects that the defendant was convicted in case number 397-668 of theft in the amount of $120.00 on August 31, 1998, a violation of La.Rev.Stat. 14:67 and a felony at the time of the conviction. The Louisiana Legislature amended La.Rev.Stat. 14:67, in 1999 by Acts.1999, No. 1251. That amendment downgraded theft under $300.00 to a misdemeanor.

      . Heroin, a Schedule I controlled substance, is preceded by an asterisk. La.Rev.Stat. 40:964(B)(11).


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Mark MOLINEUX.
    No. 2011-KA-0275.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Jee Park, Sandra G. Mayson, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| iDefendant Mark Molineux pleaded guilty to a charge of attempted failure to register as a sex offender pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He now appeals his conviction. For the following reasons, we affirm.

STATEMENT OF CASE:

On April 5, 2010, the defendant was charged with failing to register as a sex offender in violation of La. R.S. 15:542. The bill of information indicated that the defendant had previously been convicted in Florida for committing lewd and lascivious acts on a child under the age of sixteen. After a preliminary hearing, the trial court found probable cause. The defendant subsequently filed a motion to quash the bill of information, which the trial court denied on September 24, 2010. This Court upheld the trial court’s ruling, and the Louisiana Supreme Court denied writs.

The State amended the bill of information to charge the defendant with the attempted failure to register as a sex offender, and the defendant entered a guilty plea to the amended charge, reserving his rights under Alford and Crosby. The defendant waived delays, and the trial court sentenced him to serve thirty months |9at hard labor without the benefit of parole and with credit for time served. The defendant appealed.

STATEMENT OF FACT:

Because the defendant pled guilty, there is no statement of facts. The only testimony received was at the preliminary hearing at which Detective Raymond Hughes testified how he came to learn that the defendant had previously been convicted of a sex crime in Florida and that the defendant had been in Louisiana and had not registered with the Sex Offender Registry.

ERRORS PATENT:

A review of the record for patent errors reveals none.

DISCUSSION:

In his sole assignment of error, the defendant contends that the trial court erred when it denied his motion to quash the bill of information. The defendant makes several arguments in support of his motion to quash. The defendant contends that the statute is not applicable to him because his conviction occurred prior to the effective date of the statute. He also argues that if the statute is read to include him but not those convicted of in-state violations prior to 1992, then the application would violate his rights to equal protection and due process under both the Louisiana and United States Constitutions. The defendant further suggests that the statute has no mechanism to alert new residents with out of state convictions of their registration obligations, which said failure violates his rights under the Louisiana and United States Constitutions.

The defendant raised these same issues in his writ application filed with this Court, seeking review of the trial court’s denial of the motion to quash. This Court denied the writ application, stating “We find no error in the judgment of the trial |acourt, which denied the defendant’s motion to quash.” State v. Molineux, unpub., 2010-1408 (La.App. 4 Cir. 10/6/10), unit denied, 2010-2490 (La.11/10/10), 49 So.3d 874.

The State contends that because this Court already considered these issues and found no error in the trial court’s decision, the law of the case doctrine should apply to preclude any further consideration of the defendant’s arguments.

Under the law of the case doctrine, appellate courts have held they have discretion to not reconsider a previously-decided issue unless they find the previous decision is based on palpable error or that manifest injustice would occur. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, 589; Zatarain v. WDSU Television, 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181.

The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. See Brumfield v. Dyson, 418 So.2d 21 (La.App. 1 Cir.1982). This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is to avoid relitigation of the same issue; to promote consistency of the result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971).

As noted in State v. Gillet, 99-2474, p. 5 (La.App. 4 Cir. 5/10/00), 763 So.2d 725, 728-29:

This Court has stated that “an appellate court will not reverse its 14pretrial determinations ... unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result.”

In his writ application the defendant raised the issues of whether Louisiana’s Sex Offender Registration Act, La. R.S. 15:540, et seq., applied to persons who were neither convicted of a sex offense on or after June 18, 1992, nor were in the custody of the Louisiana Department of Public Safety and Corrections on or after June 18, 1992, and if Louisiana’s Sex Offender Registration Act is read to require persons with out-of-state convictions prior to 1992 to register but not to require persons with in-state convictions prior to 1992 to register, whether the statute violates the Equal Protection Clauses of the Louisiana and United States Constitutions.

Under the law of the case doctrine, the defendant would have to show that the writ decision was patently erroneous. As defendant’s arguments are exactly the same on appellate review, he has not shown that the determination of these issues was patently erroneous and produced an unjust result. State v. Humphrey, 412 So.2d 507, 523 (La.1981)(cm reh’g granted); State v. Scoggins, 2010-0869 (La.App. 4 Cir. 6/17/11), 70 So.3d 145.

The only issue not raised in the writ application, but raised in the motion to quash, is the issue of whether the statute has no mechanism to alert new residents with out of state convictions of their registration obligations, which said alleged failure violates the defendant’s due process rights under the Louisiana and United States Constitutions. Accordingly, this issue will be discussed.

| sLa. R.S. 15:542, which provides for the registration of sex offenders and child predators, states:

A. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:
(1) Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit either of the following:
(a) A sex offense as defined in R.S. 15:541, with the exception of those convicted of felony carnal knowledge of a juvenile as provided in Subsection F of this Section;
B. (1) The persons listed in Subsection A of this Section shall register in person with the sheriff of the parish of the person’s residence, or residences, if there is more than one, and with the chief of police if the address of any of the person’s residences is located in an incorporated area which has a police department. If the offender resides in a parish with a population in excess of four hundred fifty thousand, he shall register in person with the police department of his municipality of residence.
(2) The offender shall also register in person with the sheriff of the parish or parishes where the offender is an employee and with the sheriff of the parish or parishes where the offender attends school. If the offender is employed or attends school in a parish with a population in excess of four hundred fifty thousand, then he shall register with the police department of the municipality where he is employed or attends school. The offender shall also register in the parish of conviction for the initial registration only. No registration in the parish of conviction is necessary if the offender is incarcerated at the time of conviction or immediately taken into custody by law enforcement after the conviction.

The defendant argues that the statute violates his due process rights under both the United States and Louisiana Constitutions because he did not have knowledge that he had an obligation to register under the statute. The defendant relies upon the United States Supreme Court’s decision in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), in support of his argument. In Lambert, the Court found that the registration provisions for a felon registration ordinance violated a person’s due process rights when it was applied to a person who had no actual knowledge of the duty to register. Several state courts have relied upon Lambert in finding that before an offender may be held criminally liable for failing |fito register, the state must prove that he was aware of a registration requirement. See State v. Giorgetti, 868 So.2d 512 (Fla.2004).

In Giorgetti, the defendant had been convicted of indecent assault. After serving his two year sentence, the defendant was on probation for seven years. When his probation terminated, the defendant moved to a new address. Sometime after his probation had ended, he came into contact with a police officer who was looking for another person on an unrelated matter. The officer asked the defendant for identification and ran the defendant’s name through a mobile computer system. The system identified the defendant as a sexual offender. Noting that the defendant’s address in the system and the address on his identification were not the same, the officer arrested the defendant for failing to report his change of address. The defendant pled not guilty on the basis that he was not aware of the registration requirements. The court found that Lambert was controlling and held that knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply were necessary before a conviction could be sustained.

Similarly, in State v. Garcia, 156 Ariz. 381, 752 P.2d 34 (Ariz.App., 1987), the defendant argued that he had no actual knowledge that he was required to register as a sex offender. Relying upon Lambert, the court found that due process requires that a person have knowledge of the obligation to register as a sex offender before the person can be penalized for failing to register. The court found that there was nothing in the record to show that the defendant was aware of his statutory duty to register.

The State counters the defendant’s arguments citing United States v. Whaley, 577 F.3d 254 (5th Cir.2009), which is more similar to the present case. In Whaley, |7the defendant contended that his conviction for failing to register as a sex offender violated the Due Process Clause because he never received notice that he was required to register under the federal sex offender registry law, the Sex Offender Registration and Notification Act (SOR-NA). The court noted that the defendant was notified of his obligation to register as a sex offender under state law but was not directly notified of the requirement to register under the federal statute because the defendant was released from prison before SORNA was enacted. The court concluded that despite the failure for direct notification to register under the federal statute, the notification that defendant was obligated to register under the state statute was sufficient to satisfy the Due Process Clause.

In general, ignorance of the law is not a defense to criminal prosecution. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994); see also Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (“[T]he term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.”). However, the Supreme Court has recognized an exception to this principle. When a law requires someone to undertake an affirmative act to avoid criminal punishment, some knowledge or notice of the law is required. See Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). At issue in Lambert was a municipal law requiring anyone who had been convicted of a felony to register with the police if he or she stayed in Los Angeles for five days or more. Id. at 226, 78 S.Ct. 240. “Violation of [the statute’s] provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking.” Id. at 229, 78 S.Ct. 240. The Court held that the law violated due process. Id. at 229-30, 78 S.Ct. 240.
Whaley relies on Lambert. Unlike the defendant in Lambert, however, Whaley was aware that he was required to register his address with the government. Lambert relied on the passive nature of the crime combined with the lack of “circumstances which might move one to inquire as to the necessity of registration.” Lambert, 355 U.S. at 229, 78 S.Ct. 240. In this case, Whaley was certainly aware that he was required to register under Kansas law, which mandated that he notify the sheriffs department if he moved out of state and that he register in the new state. At his conviction in 1999, Whaley signed an offender registration form attached to a Notice To Offenders. This notice included the statement “I understand that if I change my residence to another state, I must inform the law enforcement agency where last registered of my change of residence and must register in the new Instate within ten (10) days.” Upon release from prison in 2003, Whaley signed an updated, longer Notice to Offenders, which included the following: “I understand that if I change my residence to another state, I must inform the law enforcement agency where last registered and the Kansas Bureau of Investigation of my change of residence and must register in the new state within ten (10) days.” We agree with the other circuits to have addressed this issue that notice of a duty to register under state law is sufficient to satisfy the Due Process Clause. See [U.S. v.] Gould, 568 F.3d [459] at 468-69 [ (4th Cir.2007), cert. denied, Gould v. U.S., — U.S. —, 130 S.Ct. 1686, 176 L.Ed.2d 186 (2010)]; [U.S. v.] Dixon, 551 F.3d [578] at 584 [(7th Cir.2008), reversed and remanded on other grounds, Carr v. U.S., — U.S. —, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010) ]; United States v. Hinckley, 550 F.3d 926, 938 (10th Cir.2008), cert. denied, — U.S.—, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); United States v. May, 535 F.3d 912, 921 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009).

Whaley, 577 F.3d at 261-262.

Other federal courts have likewise limited the application of Lambert in cases dealing with violations of the federal sexual offender registration statute where the defendants had notice of the obligation to register under state law. In U.S. v. Gould, 568 F.3d 459(4th Cir.2009), cert. denied, Gould v. U.S., — U.S.—, 130 S.Ct. 1686, 176 L.Ed.2d 186 (2010), the defendant argued that he could not have “knowingly” failed to register in accordance with SORNA because he was not specifically instructed of SORNA’s requirements and that the prosecution without notification of his duty to register violated his rights under the Due Process Clause. The court in Gould found that the defendant’s conviction did not violate his due process rights because he knew that he was required to register under state law.

Gould argues further that even in the absence of actual notice of criminal liability, due process requires that a statute not criminalize “wholly passive conduct.” Like the defendant in Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), Gould claims that he is being prosecuted for wholly passive conduct — ie., his failure to register. In Lambert, when considering a city ordinance that required all felons to register, the Supreme Court noted that “circumstances which might move [a felon] to inquire as to the necessity of registration are completely lacking” with respect to such a law. Id. at 229, 78 S.Ct. 240.
19 Unlike an isolated city ordinance that requires all members of the broad class of all felons to register, however, SORNA criminalizes the failure to register of a much more narrowly targeted class of persons in a context where sex-offender registration has been the law for years and Gould knew that. When SORNA was enacted, every State had registration requirements for sex offenders. Moreover, as we pointed out, Gould registered in West Virginia and Pennsylvania, was convicted in West Virginia for failing to update his registration, and was notified by letter in Pennsylvania of his continuing duties to register and update his registration. In addition, he stipulated in this case that he knowingly failed to register in Maryland. These circumstances do not allow for the conclusion that Gould’s due process rights, based on lack of notice, were violated. See United States v. May, 535 F.3d 912, 921 (8th Cir.2008) (holding that notice of the duty to register under state law provides notice of the duty to register under SORNA); Hinckley, 550 F.3d at 938 (same); see also Gould, 526 F.Supp.2d at 544 n. 8 (collecting cases).

Gould, 568 F.3d at 468-469.

Likewise, in U.S. v. Hinckley, 550 F.3d 926 (10th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009), the Court concluded that notice of a defendant’s obligations under state law was sufficient to satisfy the Due Process Clause’s requirements. In U.S. v. May, 535 F.3d 912 (8th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009), the defendant argued that the application of SORNA violated his due process rights because he was not aware of the obligation to register under that statute. The appellate court found that the trial court had correctly distinguished Lambert from the defendant’s case because the defendant admitted in a plea agreement that he knew, under state laws, that he had an obligation to register and keep his registration current when moving between jurisdictions. The court held that the defendant’s due process rights were not violated.

In the present case, the defendant was previously convicted of lewd and lascivious acts on a child under the age of sixteen in the State of Florida in 1990. After serving his sentence, the defendant moved to New York in 1996. On | inOctober 24, 2008, the Florida Department of Law Enforcement sent defendant correspondence indicating that although the defendant was no longer required to register as a sex offender in Florida, the defendant may be required to register as a sexual offender if he establishes residency in another state or jurisdiction. In fact, the defendant registered as a sexual offender in New York in March 1996. The notice of registration filed in New York stated that the defendant was required to annually verify his address and notify the State of New York’s Division of Criminal Justice Services in writing of any change of address. The defendant filed a change of address form in 1997. This form stated that “[i]f you move to another state, you may be required to register as a sex offender within 10 days of establishing residence. You must also register in any state in which you are employed or are a student.” The defendant failed to file a yearly update for 2009.

Thus, the defendant had notice that he may have to register as a sexual offender when he moved to Louisiana in 2008. Similar to the defendants in Whaley, Gould, May, and Hinckley, who knew that they had to register under state law, the defendant in the present case knew about the possible requirements for registering under a state’s sexual offender registry law. The defendant had registered in New York and was informed by the states of New York and Florida that if he moved, he may be required to register in the state in which he established residency. Accordingly, the defendant was sufficiently on notice of the need to register, and his due process rights have not been violated.

This assignment of error is without merit.

^CONCLUSION:

Accordingly, for the reasons assigned above, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . State v. Crosby, 338 So.2d 584 (La. 1976).

      . The defendant also argued in his appellate brief that the statute violates his right to travel. This issue was not raised or discussed in the motion to quash and thus, it will not be considered on appeal.


author: COOKS, Judge.

text:
    James MERCER v. NABORS DRILLING USA, L.P.
    No. 10-1092.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Broussard, Halcomb & Vizzier, Roy S. Halcomb, Jr., Alexandria, LA, for Plaintiff/Appellant James Mercer.
    Galloway, Johnson, Tompkins, Burr & Smith, Kevin A. Marks, Jessie Schott Haynes, New Orleans, LA, for Defendant/Appellee Nabors Drilling USA, LP.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge; SYLVIA R. COOKS, JIMMIE C. PETERS, BILLY H. EZELL and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

| ⅜ FACTS AND PROCEDURAL HISTORY

James Mercer (Mercer) sued a third-party tort feasor for injuries allegedly sustained in a job-related accident. His employer, Nabors Drilling USA, LP, (Na-bors) intervened in the suit. Mercer reached a settlement with the third-party tort feasor for an amount which exceeded the sum owed as reimbursement to Na-bors. It is undisputed that Nabors did not provide express written approval of the settlement. However, Nabors agreed to the amount it was to be paid as reimbursement for compensation payments and medical payments, and agreed to deduct from that amount a share of the attorney fees and costs incurred by Mercer. Mercer reimbursed Nabors the full amount of compensation and medical benefits which Nabors paid, less its proportionate share of attorney fees and costs as agreed. By virtue of the full payment to Nabors, Mercer sought to reserve his statutory right to future benefits owed in accordance with the provisions of La.R.S. 23:1101-1104.

After full reimbursement to Nabors, Mercer made demand on Nabors to pay medical benefits for medical costs incurred after the settlement. Nabors refused and terminated all benefits until such time as an amount equivalent to Mercer’s total recovery is used up, dollar for dollar. Mercer filed a claim for benefits with the Office of Workers’ Compensation (OWC). Nabors filed a motion for summary judgment maintaining that the previous decisions of this court on the issue of continued payment of medical benefits in these circumstances are not controlling and that the OWC should apply La.R.S. 23:1103(A) as though the word “compensation” in that statute includes medical benefits. The OWC granted Nabors’ motion for summary judgment finding Nabors has a credit for “compensation, indemnity, loss wage type of compensation as well as for medical expense compensation.” The OWC dismissed Mercer’s disputed claim for | ¡.compensation seeking payment of new medical expenses. Mercer appeals maintaining that the prior decisions of this court in Breaux v. Dauterive Hosp. Corp., 02-1072 (La.App. 3 Cir. 2/5/03), 838 So.2d 109, and City of DeQuincy v. Henry, 09-636 (La.App. 3 Cir. 12/9/09), 25 So.3d 237, writ granted, 10-70 (La.4/30/10), 34 So.3d 296, are controlling and that the OWC erred in refusing to follow the clear holding in those cases. The OWC held that because Nabors did not give express "written approval of the settlement, the matter is distinguishable from these decisions, and under its reading of La.R.S. 23:1102 and 1103, granted Nabors’ motion for summary judgment dismissing Mercer’s claims for compensation including future medical benefits.

ANALYSIS

“[Wjhere one or more legal errors are present” we do not apply the manifest error standard of review but instead conduct a de novo review of the record. Breaux, 838 So.2d at 109. The facts of this case are not in dispute. Mercer settled with a third-party tort feasor without obtaining an express written approval of the settlement from the intervenor/em-ployer, Nabors. Mercer thereafter reimbursed Nabors in full for all compensation paid and medical benefits paid prior to the settlement in accord with Nabors’ agreement as to the amount to be reimbursed less a share of the attorney fees and costs it agreed to credit against that sum. Louisiana Revised Statutes 23:1102 provides in pertinent part (emphasis added):

A.(l) If either the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.
B. If a compromise with such third person is made by the employee or his dependents, the employer or |sinsurer shall be hable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise. Written approval of the compromise must be obtained from the employer if the employer is self-insured, either in whole or in part. If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise. Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.

In our initial decision on this matter we looked to this court’s decision in City of DeQuincy wherein we expressly stated that our decision in Breaux “is a correct statement of the law: ‘[T]he workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the third party tortfeasor paid in settlement, exceeds that sufficient to reimburse the compensation carrier.’ ” City of DeQuincy, 25 So.3d at 240 (citing Breaux, 838 So.2d at 112) alteration in original.

In Breaux, this court relied on the Louisiana Supreme Court’s decisions in \ ¿Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980), and Brooks v. Chicola, 514 So.2d 7 (La.1987). We found it instructive in the Fontenot case that the Louisiana Supreme Court expressed the view that:

The underlying policy of the worker’s compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee’s double recovery for his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tort-feasor.

Breaux, 838 So.2d at 111, quoting Fonte-not. Further, our decision in Breaux relied on the Louisiana Supreme Court’s decision in Brooks, which held that:

[Reimbursement to the compensation insurer in this case must necessarily be limited only to the damage awards for loss of earnings and medical expenses. An injured worker, as any other tort victim, is entitled to his full recovery for non-economic losses. There should be no reduction in his award for the pain and suffering element simply to give a compensation insurer full reimbursement. As we stressed in Fontenot, the Louisiana Workers’ Compensation Law only requires reimbursement to the extent that damages for lost wages and medical expenses are recovered from a third party tort feasor. No preference is granted to the compensation interve-nor over the employee’s award for pain and suffering. In this way, the true purpose of the compensation law will be fulfilled. As we have frequently stated, the law must be given a liberal interpretation to effect its beneficial purpose of relieving workers of the economic burden of work-connected injuries by diffusing the cost in the channels of commerce. The above interpretative analysis of La.R.S. 28:1103 fulfills this methodology and purpose and is reflective of what we construe to be the legislative intent.
(emphasis added, citations omitted.) It continued:
It necessarily follows that credit for future compensation likewise must be limited to the award for future loss of earnings. To allow reimbursement and credit beyond this would reduce the injured worker’s recovery for non-economic losses. It would also be contrary to the liberal interpretation afforded the compensation act and the humanitarian spirit within which it was enacted.
Although Brooks has been legislatively overruled regarding another principle, it continues to stand for the premise that the workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the third-party tort feasor paid in settlement, exceeds that sufficient to reimburse the | ^compensation carrier.

Breaux, 838 So.2d at 112. (alteration in original)

The state Supreme Court has now clarified its previous decisions and has determined that its holding in Brooks involved only the interpretation of La.R.S. 23:1103 and does not apply to the provisions of La.R.S. 23:1102. City of DeQuincy v. Henry, No. 2010-C-0070, 62 So.3d 43 (La.3/15/11).

We have been instructed to review this case on remand in light of the State Supreme Court’s recent decision in City of DeQuincy. Nabors argues that the punitive provisions of La.R.S. 23:1102(B) should be read to mean that, as punishment for failing to obtain the employer’s or insurer’s express written approval of a compromise settlement, the employee who avails himself of the buy-back provision in the statute loses the protection accorded him in the Brooks and Breaux decisions and he must use up all of the monies he recovered from the third party tort feasor before the employer has to resume paying compensation and medical payments. We again reject this argument as contrary to Louisiana’s workers’ compensation law. The statute very expressly and clearly provides that “in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise.” La. R.S. 23:1102(B) (emphasis added). Thus Na-bors’ argument seeking an offset equal to one hundred percent of Mercer’s recovery clearly contravenes this express prohibition. Because of the quasi-penal nature of the provision of La.R.S. 23:1102(B) regarding forfeiture of benefits when the employee compromises without the employer’s consent, it must be strictly construed. See Darbonne v. M & M Right of Way Contractors, 96-1730 (La.App. 3 Cir. 4/30/97), 693 So.2d 299. We direct Nabor’s attention to the Supreme Court’s award in De-Quincy which is consistent with the fifty per-cent limitation expressly mentioned in and remaining in the | (¡statute.

Additionally, as recognized by the State Supreme Court in DeQuincy, Nabors’ argument also ignores the express statutory-provision which clearly states:

Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee ...

La.R.S. 23:1102(B) (emphasis added). As we said before, “Notwithstanding” means what it says. Thus, as in DeQuincy, even if Nabors’ actions would not amount to “written approval,” Mercer has cured his failure to get an express written approval of settlement from Nabors by paying the benefits and medicals previously paid by the employer.

The State Supreme Court held in City of DeQuincy that employers such as Nabors in these circumstances are entitled to “receive a credit against all future workers’ compensation benefits, including future medical expenses” dollar for dollar out of the funds which “are or may become due to” the employee in his compromise settlement. We do not understand this holding to include any such credit against settlement funds paid to the employees’ spouse or children.

Mercer filed a claim for benefits after his employer refused to pay new medical bills. The burden is on the employer to assert and establish any defense available to it to justify its refusal to pay benefits. Nabors asserted that it does not have to pay any benefits until such time as Mercer has used up his total settlement recovery dollar for dollar. This defense to Mercer’s claim for benefits is not supportable in the law for the reasons discussed above. The OWC erred in granting summary judgment because there are genuine issues of material fact unresolved in the record. The record does not show what amount of the settlement |7proceeds were paid to compensate Mercer for his individual losses and whether fifty percent of this amount has been exhausted by the continual benefits and medicals. We therefore reverse the OWC’s judgment and remand the case for further proceedings.

REVERSED; JUDGMENT VACATED, REMANDED FOR FURTHER PROCEEDINGS


author: AMY, Judge.

text:
    Lee J. MONLEZUN, M.D. v. LYON INTERESTS, INC., et al.
    No. 11-576.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      John F. Craton, Barousse & Craton, LLC, Crowley, LA, for Defendants/Appel-lees, Gilbert A. Lyon, Jr., Mary Sue Lyon.
    Joseph A. Delafield, Lake Charles, LA, for Defendant/Appellant, Lyon Interests, Inc.
    Scott J. Pias, Lake Charles, LA, for Defendant/Appellee, Emery F. Lyon.
    W. Thomas Barrett, III, David P. Bruchhaus, Mudd & Bruchhaus, Lake Charles, LA, for Defendants/Appellees, Charles H. Precht, III, Kelly D. Precht, Ethel Precht, Charles H. Precht.
    Scott J. Privat, Privat & Privat, Crowley, LA, for Plaintiffs/Appellee, Lee J. Monlezun, M.D.
    Denise Lyon, Lake Arthur, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

|TThe plaintiff filed suit seeking to enforce a commercial pledge agreement against the defendant. The defendant, Lyon Interests, Inc., contended that the pledge agreement was unenforceable because it was made without proper corporate authority. After a trial, the trial court found that the agreement was enforceable against the defendant’s collateral. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that two brothers, Gilbert Lyon, Jr. and Emery Lyon, grew rice until, after an unsuccessful crop in 2007, they decided to leave the farming business. However, in 2008, Gilbert and his grandson, Gilbert Lyon, IV (“Gil”), decided to start farming on the Lyon brothers’ land, using farming equipment owned by the defendant, Lyon Interests, Inc.

According to the record, Gil and his wife, Denise, obtained an agricultural loan from MidSouth Bank in the amount of $151,820.00 on April 1, 2008, which matured on March 15, 2009 (“2008 Loan”). Lyon Interests, through its president, Gilbert, signed a commercial security agreement listing Lyon Interests’ equipment as. eollateral for the 2008 Loan. As a further part of the 2008 Loan package, Lyon Interests executed a corporate resolution authorizing Gilbert to grant security for any of Gil and Denise’s obligations. According to MidSouth’s records, the 2008 Loan was paid off on December 17, 2008.

The record indicates that Gil and Denise obtained a subsequent crop loan in the amount of $248,840.00 on January 27, 2009 (“2009 Loan”). Although the record indicates that Lyon Interests, again through Gilbert, executed a new commercial pledge agreement for 2009, the plaintiff stipulated that no new corporate resolution was executed. The collateral described in the 2009 commercial pledge agreement is 12the “EXISTING COMMERCIAL SECURITY AGREEMENT DATED 04-01-08 COVERING ALL EQUIPMENT. EXECUTED BY LYON INTERESTS, INC.”

Both the 2008 Loan and the 2009 Loan were further secured by an unlimited guaranty executed by the plaintiff, Dr. Lee J. Monlezun. After Gil and Denise defaulted on the 2009 Loan, MidSouth called in its guaranty and negotiated the 2009 promissory note and accessory documents to Dr. Monlezun. Dr. Monlezun then brought this action, seeking to enforce the commercial pledge agreement against Lyon Interests’ farming equipment. Lyon Interests responded, alleging that there was no 2009 resolution authorizing Gilbert to use Lyon Interests’ farming equipment as collateral for Gil and Denise’s obligations and that the payment of the 2008 Loan prevented the 2008 commercial security agreement from being used to secure the 2009 Loan. Additionally, Emery intervened, asserting that he had a security interest in the equipment, arising from repairs he made to the equipment, and, among other things, that his signature on the 2008 corporate resolution was a forgery.

Lyon Interests filed a request for injunction contending that Dr. Monlezun had inappropriately requested executory process. After a hearing, the trial court found that there were deficiencies in the 2008 corporate resolution and that the action must be converted to ordinary process. The trial court also issued a stay of the sheriffs sale of Lyon Interests’ equipment.

Subsequently, a trial was held and the trial court took the matter under advisement. The trial court, in its reasons for judgment, found that Emery did sign the 2008 corporate resolution. Further, the trial court found that the resolution permitted the officers of Lyon Interests to enter into any agreements of any nature with MidSouth and that the resolution contained a “continuing validity” clause which | ¡¡permitted MidSouth to rely on the resolution until it received written notice of its revocation. Therefore, finding that Mid-South never received written notice of the 2008 corporate resolution’s revocation, the trial court held that MidSouth was entitled to rely on the resolution, and the debt was enforceable by Dr. Monlezun against the collateral. The trial court entered a judgment lifting the stay and allowing the sheriffs sale to go forward.

Lyon Interests appeals, asserting the following as error:

(1) The Trial Court erred in finding, “The loan was eventually paid in full in 2009 ...” when the clear, explicit and uncontroverted evidence ... documents the April 1, 2008 crop loan was paid in full on December 18, 2008.
(2) The Trial Court failed to recognize the extinguishment of the April 1, 2008 Agricultural Security Agreement which pledged Lyon Interests’ farming equipment (as a result of full payment of the April 1, 2008 crop loan on December 18, 2008), and thus the January 27, 2009, crop loan was not secured by Lyon Interests’ farming equipment.
(3) The Trial Court erred in permitting Midsouth and plaintiff to assert a secured interest against Lyon Interests’ farming equipment on January 27, 2009 by using the extinguished April 1, 2008 Existing Commercial Security Agreement and an extinguished April 1, 2008, Lyon Interests’ corporate resolution.
(4) The Trial Court failed to require proof of plaintiffs dollar value of his assigned alleged secured claim against Lyon Interests’ farming equipment; and, failed to include a specific dollar value of plaintiffs claim in the Trial Court’s Judgment dated March 10, 2011.
(5)The Trial Court’s inconsistent written rulings on July 9, 2010 and February 16, 2011 pertaining to Lyon Interests’ corporate resolution permitting pledging its farming equipment to the 2008 loan and the 2009 loan, violates the doctrine of law of the case.

Discussion

Validity of the 2009 Commercial Pledge Agreement

Lyon Interests’ first three assignments of error are concerned with whether the trial court erred in finding that the 2009 commercial pledge agreement was enforceable against Lyon Interests’ farming equipment. Lyon Interests specifically 14contends that the trial court erred in finding that the 2008 Loan was paid off in 2009. Thus, according to Lyon Interests, due to that error, the trial court failed to find that the 2008 Loan and all of its documents were extinguished by payment and erroneously found that the 2009 commercial pledge agreement was enforceable against Lyon Interests’ farming equipment.

Louisiana appellate courts review both law and facts. S.J. v. Lafayette Parish Sch. Bd., 09-2195 (La.7/6/10), 41 So.3d 1119. Factual findings are reviewed under the “manifestly erroneous or clearly wrong” standard. Id. at 1127. In order to reverse a factual determination of the trial court, the appellate court must first find that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. Id. In cases where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id. “However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, a reviewing court may well find manifest error.” Id. at 1127.

If the court of appeal finds that the trial court committed a manifest error of fact or a reversible error of law, the appellate court must then conduct a de novo review of the record and render a judgment on the merits. Siverd v. Permanent Gen. Ins. Co., 05-978 (La.2/22/06), 922 So.2d 497. In making such a finding, the appellate court “must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Id. at 499. Thus, the appellate court may not reverse if the trial court’s findings are reasonable in light of the record as a whole, even if the appellate court is | ^convinced that it would have weighed the evidence differently if sitting as the trier of fact. Id.

At the hearing on the request for injunction, Mr. Broussard testified that the 2008 Loan was paid off in the spring of 2009. However, he also testified that he was “not positive” that the 2008 Loan was still outstanding when the 2009 Loan was issued. At trial, he testified that the 2008 Loan was paid off by December 18, 2008 and that Gil and Denise did not owe any money at the time the 2009 Loan was made. Additionally, records from MidSouth Bank showing a payoff of the 2008 Loan on December 18, 2008, were introduced into the record.

After the trial, in its reasons for judgment, the trial court found that the 2008 Loan was “eventually paid in full in 2009.” In Lyon Interests’ estimation, this is significant because it alleges that the payment of the 2008 Loan extinguished the 2008 Loan and all accessory documents, including the 2008 corporate security agreement and the 2008 corporate resolution. However, even assuming that the trial court’s finding was in error, “the mere discovery of an error does not, of itself, automatically equate with prejudice, nor does the mere discovery of an error justify an appellate court’s de novo review.” Wooley v. Lucksinger, 09-571, 09-584, 09-545, 09-586, p. 92 (La.4/1/11), 61 So.3d 507, 581. Further, we note that “appellate courts review judgments, not reasons for judgment” and “oral or written reasons for judgment form no part of the judgment.” Id. at 572. In this case, any error was as to a collateral issue, as discussed below, and did not affect the trial court’s ultimate determination. See Slaydon v. Cold Springs Hunting Club, Inc., 02-1397 (La.App. 3 Cir. 4/2/03), 842 So.2d 1187. Thus, we decline to conduct a de novo review of the record. See Russell v. H & H Metal Contractors, Inc., 11-27 (La.App. 3 Cir. 6/1/11), 65 So.3d 806.

Lyon Interests contends that, because the 2008 Loan was paid in full before the 2009 loan was issued, any obligations under the 2008 Loan and its accessory | (¡obligations are extinguished under the Louisiana Civil Code. Specifically, Lyon Interests relies on La.Civ.Code art. 1884, which states that “[s]eeurity given for the performance of the extinguished obligation may not be transferred to the new obligation without agreement of the parties who gave the security.” However, even if the 2008 Loan was extinguished by payment on December 18, 2008, the collateral provided under the 2009 commercial security agreement could be transferred by agreement of the parties.

In other words, if Gilbert, as President of Lyon Interests, had the necessary authority to execute the 2009 commercial pledge agreement, La.Civ.Code art. 1884 is inapplicable to the facts of this case. Thus, the trial court properly based its analysis on whether Gilbert had the necessary authority to execute the 2009 commercial pledge agreement.

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

Bridges v. X Communications, Inc., 03-441, p. 9 (La.App. 5 Cir. 11/12/03), 861 So.2d 592, 598, unit denied, 03-3431 (La.2/20/04), 866 So.2d 830.

Further, a mandatary must have express authority in order to “buy, sell, contract a loan, acknowledge a debt, draw or endorse promissory notes, and generally where the acts to be done are not merely those of administration or such as facilitate such |7acts.” Id. (quoting Pesson v. Kleckley, 526 So.2d 1220, 1225 (La.App. 3 Cir. 1988)). See also La.Civ.Code art. 2997.

A review of the record indicates that, at trial, Mr. Broussard testified that when Gil and Denise obtained the 2008 Loan, he had Gilbert and Emery, as the officers and shareholders of Lyon Interests, execute a corporate resolution. The 2008 corporate resolution, which was introduced into evidence, authorized Gilbert, as President of Lyon Interests:

To mortgage, pledge, transfer, endorse, hypothecate, or otherwise encumber and deliver to Lender any property now or hereafter belonging to the Corporation or in which the Corporation now or hereafter may have an interest, including without limitation all of the Corporation’s real (immovable) property and all of the Corporation’s personal (movable) property and rights, as security for the obligations of GILBERT A. LYON IV and DENISE LYON or the Corporation or for the payment of any loans, any promissory notes, or any other or further indebtedness of GILBERT A. LYON IV and DENISE LYON to Lender at any time owing, however the same may be evidenced. Such property may be mortgaged, pledged, transferred, hypothecated, encumbered or otherwise secured at the time such loans are obtained or such indebtedness is incurred, or at any other time or times, and may be either in addition to or in lieu of any property theretofore mortgaged, pledged, transferred, endorsed, hypothecated, encumbered or otherwise secured. The provisions of this Resolution authorizing or relating to the pledge, mortgage, transfer, endorsement, hypothecation, granting of a security interest in, or in any way encumbering, the assets of the Corporation shall include, without limitation, doing so in order to lend collateral security for the indebtedness, now or hereafter existing, and of any nature whatsoever, of GILBERT A. LYON IV and DENISE LYON to Lender. The Corporation has considered the value to itself of lending collateral in support of such indebtedness, and the Corporation represents to Lender that the Corporation is benefited by doing so.

The 2008 corporate resolution also contained a “continuing validity” clause which stated that:

Any and all acts authorized pursuant to this Resolution and performed prior to the passage of this Resolution are hereby ratified and ^approved. This Resolution shall be continuing, shall remain in full force and effect and Lender may rely on it until written notice of its revocation shall have been delivered to and received by Lender at Lender’s address shown above (or such addresses as 'Lender may designate from time to time). Any such notice shall not affect any of the Corporation’s agreements or commitments in effect at the time notice is given.

Although Emery conceded that the signature on the 2008 corporate resolution looked like his, he denied signing it. However, Emery testified that he signed “a guarantee that [Gil could] use the equipment for a year.” According to Mr. Broussard’s testimony, after he drove to Emery’s house to get his signature on the corporate resolution, they discussed what the document was, and that the equipment would be collateral for Gil and Denise’s loan.

Mr. Broussard testified that, in connection with the issuance of the 2009 Loan, Gilbert executed a commercial pledge agreement on behalf of Lyon Interests. He further testified that Gilbert never told him that he was not authorized to sign the commercial pledge agreement. Mr. Broussard also testified that Gilbert indicated that he understood what he was signing. Additionally, Mr. Broussard testified that he was never informed, in writing, that Lyon Interests, Gilbert, or Emery wanted the 2008 corporate resolution cancelled.

The trial court ultimately found that Emery did sign the 2008 corporate resolution. The trial court also found that the 2008 corporate resolution authorized Gilbert, as an officer of Lyon Interests, to enter into “any agreements of any nature” with MidSouth and that those agreements would bind the corporation. Further, the continuing validity clause entitled Mid-South to rely on the 2008 corporate resolution until it received written notice of its revocation. Because MidSouth never received any such revocation, the trial court found that it was entitled to rely on the resolution and that the 2009 commercial pledge agreement is enforceable against Lyon Interests’ equipment.

|9We find no error in the trial court’s reasoning or its conclusion that the 2009 commercial pledge agreement is enforceable against Lyon Interests’ equipment. A review of the record indicates that the 2008 corporate resolution specifically authorizes Gilbert, as President of Lyon Interests, to:

mortgage, pledge, ... or otherwise encumber and deliver to Lender any property now or hereafter belonging to the Corporation ..., as security for the obligations of GILBERT A. LYON IV and DENISE LYON or the Corporation or for the payment of any loans, any promissory notes, or any other or further indebtedness of GILBERT A. LYON IV and DENISE LYON to Lender at any time owing, however the same may be evidenced.

Further, the 2008 corporate resolution provided that “[t]his Resolution shall be continuing, shall remain in full force and effect and Lender may rely on it until written notice of its revocation shall have been delivered to and received by Lender[.]” Thus, the plain language of the 2008 corporate resolution does not limit Gilbert’s authorization to the 2008 Loan or the 2008 commercial security agreement. A review of the record supports the trial court’s conclusions that Emery signed the 2008 corporate resolution and that Mid-South did not receive written notice of the revocation of the 2008 corporate resolution. Thus, MidSouth was entitled to rely on the resolution authorizing Gilbert to sign the 2009 commercial pledge agreement. Additionally, although the 2009 commercial pledge agreement references the 2008 commercial security agreement, it clearly contemplates encumbering “ALL EQUIPMENT” owned by Lyon Interests.

Therefore, we find that the trial court did not err in finding that the 2009 commercial pledge agreement was enforceable against Lyon Interests’ equipment. These assignments of error are without merit.

Value of Assignment

In its fourth assignment of error, Lyon Interests contends that the trial court erred in failing to require Dr. Monlezun to prove the amount of his secured claim | inagainst Lyon Interests’ farming equipment and in failing to include a specific dollar value in the judgment. Lyon Interests asserts that, due to this failure, there is no way to discern how any sale proceeds should be divided. Dr. Monlezun argues that the value of the claim is the debt owed under the 2009 promissory note and that no value can be assigned until the equipment is sold. Further, Dr. Monlezun contends that, if any of the debt has been extinguished by payment, the burden lies on Lyon Interests to prove payment.

A review of the record indicates that Lyon Interests failed to raise this issue in the trial court. “Where a party fails to raise an issue in the trial court in pleadings, in an opposition to a motion for summary judgment, or in a motion for new trial, the issue is not preserved for consideration on appeal.” Stream Family Ltd. P’ship v. Marathon Oil Co., 09-561, p. 9 (La.App. 3 Cir. 12/23/09), 27 So.3d 354, 360, writ denied, 10-196 (La.4/16/10), 31 So.3d 1064. Therefore, we do not address this issue for the first time on appeal.

Law of the Case

In its fifth assignment of error, Lyon Interests asserts that the trial court’s rulings concerning the hearing on the injunction and trial are inconsistent. Lyon Interests contends that this violates the doctrine of law of the case and that the trial court’s earlier findings should be binding.

In its reasons for judgment concerning the hearing on the injunction, issued July 8, 2010, the trial court found that the 2008 corporate resolution “expressly permitted pledging the farming equipment to the 2008 crop not the 2009 crop loan.” However, in its reasons for judgment after trial, issued February 16, 2011, the trial court found that the language of the 2008 corporate resolution and the commercial security agreement “both indicate a ‘continuing’ guaranty agreement, and by its clear language, |nthe guaranty cannot be limited as only providing security for the promissory note of April 2008.”

The supreme court recently reiterated the “law of the case” doctrine in Arceneaux v. Amstar Corp., 10-2829, p. 7 (La.7/1/11), 66 So.3d 438, 448 (citations omitted), stating:

The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. The law of the ease principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue. However, even when applicable, the law of the case is discretionary and should not be applied in cases of palpable error or where application would result in injustice.

Generally, “[ajrgument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.” Bank One, Nat’l Assn v. Velten, 04-2001, p. 7 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 459 (quoting Petition of Sewerage and Water Board of New Orleans, 278 So.2d 81, 83 (La.1973)), unit denied, 06-40 (La.4/28/06), 927 So.2d 283, cert. denied, 549 U.S. 826, 127 S.Ct. 349, 166 L.Ed.2d 44 (2006). Further, the doctrine will not be applied to “supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions” or “when the underlying, operative facts upon which the court’s prior decision was based have changed.” Id. We also note that “[t]he doctrine does not apply in the context of a trial court ruling on interlocutory issues or a transferee court being asked to consider a ruling of the transferor court.” Land v. Vidrine, 10-1342, p. 9 (La.3/15/11), 62 So.3d 36, 42.

112Here, there was neither a permanent injunction nor a “final decree” issued after the hearing on the injunction. Instead, the trial court issued a preliminary injunction, which is “essentially an interlocutory order issued in a summary proceeding incidental to the main demand for permanent injunctive relief.” Bank One, Nat’l Ass’n, 917 So.2d 454, 458. Therefore, we conclude that the law of the case is inapplicable in this instance. This assignment of error is without merit.

DEGREE

For the foregoing reasons, the judgment of the trial court in favor of the appellee, Lee J. Monlezun, M.D., is affirmed. Costs of this proceeding are assessed to the appellant, Lyon Interests, Inc.

AFFIRMED.

      . Charles H. Precht, Jr., Ethel Precht, Charles H. Precht, III and Kelly Precht filed a motion for leave to file a petition of intervention, contending that Emery sold a combine to Kelly Precht and that he, therefore, had an interest in some of the property at issue. Kelly Precht dismissed the motion prior to trial.

      . Emery contended that he replaced Gilbert as President of Lyon Interests in November of 2008. However, Dr. Monlezun presented contrary evidence, including an annual report filed with the Louisiana Secretary of State for 2009 indicating that Emery was the Secre-taiy/Treasurer of Lyon Interests and Gilbert was the president. Emery asserted that the 2009 annual report had been tampered with somehow. Dr. Monlezun also filed into evidence an annual report filed in 2010 listing Emery as the president of Lyon Interests.