author: THIBODEAUX, Chief Judge.

text:
    THOMPSON TREE & SPRAYING SERVICE, INC., d/b/a Live Oak Landscapes v. WHITE-SPUNNER CONSTRUCTION, INC., et al.
    No. 10-1187.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      John M. Madison, III, Kracht, Frazier, Madison, LLP, Baton Rouge, LA, for Plaintiff/Appellant, Thompson Tree & Spraying Service, Inc., d/b/a Live Oak Landscapes.
    Kevin P. Riche, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for De-
    fendants/Appellees, Wal-Mart Stores, Inc., Hartford Fire Insurance Company, and White-Spunner Construction, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

hln this dispute between a general contractor and a sub-contractor over the payment for the work completed, the subcontractor (Appellant), Thompson Tree & Spraying Service, Inc., doing business as Live Oak Landscapes (Live Oak), asserts that the trial court erred by granting a summary judgment and an exception of improper venue in favor of Appellees, White-Spunner Construction, Inc. (the general contractor), Hartford Fire Insurance Company (the insurer), and Wal-Mart Stores, Inc. (the owner of the project). Appellees filed a motion to dismiss Live Oak’s appeal but did not file an answer to the appeal. Because we find that the trial court rendered an immediately-appealable final judgment in this matter, we deny the Appellees’ motion to dismiss the appeal. Because we find that Live Oak timely filed a statement of claim or privilege, we reverse the trial court’s summary judgment. Finally, because we find that the forum selection clause in the contract between Live Oak and White-Spun-ner is against Louisiana public policy, we reverse the grant of exception of improper venue.

I.

ISSUES

(1) We shall consider whether the trial court’s grant of Appellees’ motion for “partial” summary judgment was a partial final judgment requiring designation of “final judgment” to be appealable, where all the parties and all the claims in this suit have been dismissed;

(2) After concluding, for the reasons expressed below, that the judgment in this matter was final and immediately-appealable, we shall consider whether the sub-contractor filed its statement of claim or privilege timely where a notice of contract and, what could be considered a notice of termination, were filed, but both lacked the legal description of the property and where the contractor filed his statement | ^of claim or privilege over a year after the purported notice of termination;

(3) We shall finally consider whether Louisiana has a strong public policy against enforcement of forum selection clauses thereby limiting the freedom of the parties to contractually select the venue before litigation begins where the selected venue is in violation of Louisiana Code of Civil Procedure.

II.

FACTS AND PROCEDURAL HISTORY

This dispute arises out of the Wal-Mart Super-Center project in Alexandria, Louisiana. The general contractor for the project, White-Spunner, entered into a construction contract with Wal-Mart and filed a notice of the contract in August of 2007 in the mortgage records of Rapides Parish.

Then, White-Spunner entered into a sub-contract with Live Oak for landscape and irrigation works. In June of 2008, White-Spunner filed a document, titled “Certificate of Substantial Completion” in the mortgage records. In September of 2009, Live Oak filed a statement of claim or privilege (lien) against the project in the mortgage records because, allegedly, it was not paid for the work it satisfactorily performed. In December of 2009, Live Oak filed this suit. Live Oak alleged a breach of contract against White-Spunner. Live Oak sought to enforce its claims under the Louisiana Private Works Act (LPWA) against Wal-Mart and Hartford.

Appellees filed, in addition to other alternative exceptions, an exception of improper venue and a motion for partial summary judgment. In support of the exception, Appellees pointed to the forum selection clause in the contract between White-Spunner and Live Oak. The clause identifies Mobile County, Alabama, as the place of contract formation and Mobile County Circuit Court as the forum “for any litigation between the parties.”

l.-iWithout an explicit ruling as to whether the venue was proper for the LPWA claims, the trial court held that Live Oak did not timely file its statement of claim or privilege. It reasoned that because both the notice of contract and the notice of termination were equally defective in that neither contained a legal description of the property, Live Oak had sixty days from the substantial completion of the work to file the lien. Because more than sixty days elapsed from the substantial completion before Live Oak filed its lien, the filing was untimely. Thus, the trial court dismissed the LPWA claims.

After this dismissal, only the breach of contract claim remained. The trial court then held that under the forum selection clause, the proper venue lies in an Alabama court and, thus, dismissed the contract breach claim. These rulings dismissed all of the parties and all of Live Oak’s claims.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97); 701 So.2d 1327. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

_LlIV.

LAW AND DISCUSSION

(1) Motion to Dismiss the Appeal

An interlocutory judgment “does not determine the merits but only preliminary matters in the course of the action.” La. Code Civ.P. art. 1841. A final judgment “determines the merits in whole or in part.” Id.

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

La.Code Civ.P. art. 1915 (emphasis added). The statute further provides that if the trial court does not make such a determination and designation, the judgment may not be immediately appealed. Id.

As this court has already explained, generally, La.Code Civ.P. art. 1915(A) applies to the dismissal of parties, and La. Code Civ.P. art. 1915(B) applies to the resolution of issues. Jeansonne v. New York Life Ins. Co., 08-932 (La.App. 3 Cir. 5/20/09), 11 So.3d 1160. Thus, when one party receives a partial relief and is not dismissed from the suit, the judgment is interlocutory in the absence of the court’s designation as final. Id. Yet, “[a] judgment that dismisses a party from a suit without | ^adjudicating all of the issues in a case is a partial final judgment subject to an immediate appeal without the need of the trial court’s certification as such.” Id. at 1168 (citing La.Code Civ.P. art. 1915(A)(1); Cavalier v. Rivere’s Trucking, Inc., 03-2197 (La.App. 1 Cir. 9/17/04), 897 So.2d 38).

For example, a plaintiff filed suit against multiple parties. Jeansonne, 11 So.3d 1160. The trial court granted a summary judgment and an exception of peremption in favor of some parties, dismissing them from the suit. Id. The court granted motions for summary judgment in favor of the other parties several years later. Id. Plaintiff appealed seeking review of the recently-granted motions and the ones granted several years previously. Id. Plaintiff maintained that because the trial court did not designate the old rulings as final judgments, they were interlocutory and not immediately-appealable. Id. This court disagreed stating that to follow the plaintiffs reasoning would negate La.Code Civ.P. art. 1915(A)(1). Id. Thus, a judgment that dismisses a party from the suit is an immediately-appealable judgment. Id.

Here, the only causes of action Live Oak filed against Wal-Mart and Hartford were based on LPWA. The trial court found that Live Oak did not timely file its statement of claim or privilege and dismissed the causes of action. Thus, the trial court dismissed all of the claims against Wal-Mart and Hartford, thereby dismissing them from the suit. The court then, relying on the forum selection clause, dismissed the contract breach claim because of improper venue. Because the correct venue, according to the trial court, lies outside of Louisiana making it impossible to transfer the action to the court of proper venue, the court dismissed the contract breach claim. Thus, according to the trial court’s judgment, all parties and all claims in this suit have been dismissed. Therefore, the judgment was final and did not | firequire a designation to be immediately-appealable. Based on these considerations, we deny Appellees’ motion to dismiss the appeal.

(2) Timeliness of the Statement of Claim or Privilege

A. If a notice of contract is properly and timely filed in the manner provided by R.S. 9:4811, the persons to whom a claim or privilege is granted by R.S. 9:4802 shall within thirty days after the filing of a notice of termination of the work:

|7(1) File a statement of their claims or privilege.
(2) Deliver to the owner a copy of the statement of claim or privilege. If the address of the owner is not given in the notice of contract, the claimant is not required to deliver a copy of his statement to the owner.

B. A general contractor to whom a privilege is granted by R.S. 9:4801 of this Part, and whose privilege has been preserved in the manner provided by R.S. 9:4811, shall file a statement of his privilege within sixty days after the filing of the notice of termination or substantial completion of the work.

C. Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:

(1) The filing of a notice of termination of the work; or
(2) The substantial completion or abandonment of the work, if a notice of termination is not filed.

La.R.S. 9:4822. Other Louisiana courts, as well as the federal appeals court, fifth circuit, have considered the above statute. These courts concluded that if the notice of contract is filed, but the notice of termination is not filed or is deficient, neither the sixty-day, nor the thirty-day period start to run. Bernard, Lumber Co., Inc. v. Lake Forest Constr. Co., Inc., 572 So.2d 178 (La.App. 1 Cir.1990); Rowley Co., Inc. v. Southbend Contractors, Inc., 517 So.2d 1260 (La.App. 4 Cir.1987); In re Whitaker Constr. Co., Inc., 439 F.3d 212 (5th Cir. 2006).

For example, where the notice of contract and the notice of termination were both filed, but neither one contained a legal description of the property, the fourth circuit held that the time period under the LPWA never commenced. Rowley, 517 So.2d 1260. Relying on La. R.S. 9:4822(E) and La.R.S. 9:4831(0) the fourth circuit concluded that a notice of termination must contain a legal description of the property to be effective. Id. Because the notice of termination did not contain the legal description it was ineffective. Id. The court further found that the notice of contract was not ineffective even though it did not contain the legal description of the property. Id. The court supported this conclusion with La.R.S. 9:4811(B). Id. The statute stated that a notice of contract is not improperly filed because of an error or omission unless an actual prejudice is shown by a claimant. Rowley, 517 So.2d 1260.

Where the notice of contract was filed but the notice of termination was not, the first circuit held that the tolling period for filing a statement of claim or privilege was not activated. Bernard Lumber Co., Inc., 572 So.2d 178. The party |flwho failed to file the notice of termination argued that the legislature did not intend for there to be an indefinite period for filing the statement of claim or privilege. Id. The legislature intended, the party argued, La.R.S. 9:4822(C) with its sixty-day time limit to apply in situations where the notice of contract but no notice of termination have been filed. Id.

The court rejected this argument. First, quoting the official comments to La. R.S. 9:4822, the court stated: “[i]f a notice of contract is filed, a notice of termination is always required to commence the 30 day time for filing.” Id. at 181. The first circuit then reasoned that the statutory procedure of filing the notice of contract and the notice of termination was designed to cut off “valid assertions of any potential claims of privilege.” Id. (emphasis added). Thus, to take advantage of the statute, the statute requires the owner to take affirmative actions. Id. Failure to take the appropriate actions places the burden of consequences on the party responsible for the failure. Bernard Lumber Co., Inc., 572 So.2d 178.

In another case, after finding an ambiguity in the statute, the federal fifth circuit, relying on the Louisiana jurisprudence and the official comments to the statute, also concluded that where the notice of contract has been filed but the notice of termination has not, the tolling period never started to run. In re Whitaker Constr. Co., Inc., 439 F.3d 212. The federal court rejected the suggestion that La.R.S. 9:4822(C) is a “catch-all” category and should apply in this situation. Id. The fifth circuit concluded that such “interpretation does not follow directly from the statutory language, and it is inconsistent with” the Louisiana jurisprudence and the official comments to the statute. Id. at 226.

On the other hand, where the notice of contract that did not contain the legal description of the property was filed but the notice of termination was never filed, more recently, the first circuit applied a sixty-day tolling period which | incommenced on the date of substantial completion. Norman H. Voelkel Constr., Inc. v. Recorder of Mortgages for E. Baton Rouge Parish, 02-1153 (La.App. 1 Cir. 6/27/03), 859 So.2d 9, writs denied, 03-1962, 03-2133 (La.10/31/03), 857 So.2d 486, 488. The court did not distinguish the case from the previous jurisprudence (and, under the civilian tradition, it does not have to) but relied on La.R.S. 9:4811(B). Id. That section states that although an error in the notice of contract does not make the filing of the notice improper unless there is a showing of actual prejudice, an improper identification of the immovable is a prima facie proof of actual prejudice. La.R.S. 9:4811(B). In the footnote the court stated that the plaintiff sub-contractor did not rebut the presumption of actual prejudice. Norman H. Voelkel Constr., Inc., 859 So.2d 9.

The court found that in the absence of legal description, the notice of contract was improper, and, therefore, the court applied La.R.S. 9:4822(C). Id. Under this section, in situations where no notice of contract and no notice of termination have been filed, persons may file a claim or privilege within sixty days from the date of substantial completion or abandonment of the work. La.R.S. 9:4822(C). Because the sub-contractor did not file his claim or privilege within sixty days of substantial completion, the court held the filing untimely. Norman H. Voelkel Constr., Inc., 859 So.2d 9.

We find that in this case La.R.S. 9:4822(A) applies. This subsection of the statute governs situations in which a notice of contract has been filed. The language of this subsection, the official comments to the statute, and the above-cited jurisprudence, all lead to the conclusion that if the notice of termination has not been filed or was deficient, then the tolling period never starts to run.

Louisiana Revised Statutes 9:4822(0 governs those situations where the notice of contract has not been filed. Louisiana Revised Statutes 9:4811(B) states |nthat an improper identification of an immovable is prima facie proof of actual prejudice which would make the filing of the notice of contract improper. Nevertheless, the effect of a presumption is to relieve “him in whose favor it exists from the necessity of any proof; but may none the less [sic] be destroyed by rebutting evidence.” La.R.S. 15:432 (emphasis added).

Under the LPWA, the owner of the immovable has unlimited personal liability to those who perform the work on the property unless the owner timely files a notice of contract and the general contractor files a proper bond. La.R.S. 9:4802(C). Thus, the primary purpose of a notice of contract is to relieve the owner of potentially unlimited liability under the LPWA. To take advantage of this limit on liability, the owner must timely file a proper notice of contract. The notice of contract must contain a proper identification of the property. Failure to properly identify the property creates a presumption in favor of the person who is protected under LPWA, here the sub-contractor, that the notice of contract was improperly filed. This means that the owner, presumptively, is not relieved of unlimited personal liability. Therefore, the presumption is there for the benefit of the claimant, here the subcontractor, against the owner.

Thus, in situations where the sub-contractor wants to reach the owner for the purposes of liability, La.R.S. 9:4811(B) allows him to dispense with proof of actual prejudice to himself where the notice of contract did not properly identify the immovable. What Appellees propose to do is to use the presumption that was created in favor of the sub-contractor to his detriment. In essence, they argue that because they -did not properly do what they were supposed to do, i.e., to include the legal description of the immovable in the notice of contract, they should benefit from their own failure. This court declines to accept such a position.

, | i2Even if we were to construe the presumption against Live Oak, that presumption is rebuttable by proof that the facts are actually otherwise. La.R.S. 15:432. Here, Live Oak submitted proof that it was not prejudiced by the failure to include a legal description in the notice of contract. Therefore, even if we were inclined to apply the presumption against Live Oak, that action would be of no avail to Appellees.

Based on the above discussion, this court concludes that the failure to include a proper identification of the immovable in the notice of contract does not make the notice ineffective under the facts of this case.

We agree with our sister-jurisdictions which concluded that where the notice of contract was filed, but the notice of termination was not filed or was defective, the applicable tolling period for filing a statement of claim or privilege is in La.R.S. 9:4822(A). To begin the tolling period, a notice of termination must be filed. If a notice of termination was not filed or was defective, then the tolling period does not begin to run. As the first circuit aptly pointed out, because the filing procedures specified in La.R.S. 9:4822 were designed to cut off valid claims, to take advantage of the statute the owner must take affirmative actions. Failure to take the actions places the burden of the consequences on the party responsible for the failure.

Based on these considerations, Live Oak’s statement of claim or privilege was timely.

| w(3) Forum Selection Clause and Venue

Because Appellees did not answer the appeal, we do not consider whether the venue was proper for Live Oak’s claims under LPWA. Because we reverse the trial court’s dismissal of Live Oak’s claims under LPWA and because the trial court held that the contract claims should be litigated in Alabama, we now need to consider whether the forum selection clause is enforceable.

“An objection to the venue may not be waived prior to the institution of the action.” La.Code Civ.P. art. 44(A).

It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.

La.R.S. 51:1407(A).

The legislature finds that, with respect to construction contracts, subcontracts, and purchase orders for public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state.

La.R.S. 9:2779(A).

There are several appellate courts which have concluded that forum selection clauses are legal and binding in Louisiana unless the resisting party clearly |14shows that the enforcement would be unreasonable and unjust, that the clause arises from fraud or overreaching, or that the enforcement would contravene a strong public policy. E.g., Case Atl. Co. v. Blount Bros. Constr., Inc., 42,251 (La.App. 2 Cir. 6/20/07), 960 So.2d 1274, writ denied, 07-1541 (La.10/12/07), 965 So.2d 408. The supreme court has not addressed the issue explicitly, but has touched upon it in two cases. In Lejano v. Bandak, 97-388 (La.12/12/97), 705 So.2d 158, cert. denied, Lejano v. K.S. Bandak Assuranceforeningen Gard, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998), the supreme court addressed a forum selection clause in an admiralty action. Citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the court held that “in admiralty cases, federal law governs the enforceability of forum selection clauses.” Lejano, 705 So.2d 158, 166. Thus, applying the federal law, the court held that forum selection clauses are generally enforceable. Id.

In Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, the court cited Lejano for the proposition that in Louisiana forum selection clauses are generally enforceable. This case is challenging for two reasons. First, Lejano applied the federal law and, therefore, cannot be cited for the statement oí.Louisi-ana law. Thus, the supreme court is “announcing” the new law without a citation to anything. Second, this pronouncement in Power Marketing is dictum. The court did not have to decide whether the clause was or was not enforceable because the party claiming unenforceability of the clause has already admitted the allegations of jurisdiction and venue in the forum selected under the contract. Thus, the party waived the objection to venue after the litigation commenced.

This circuit also made a statement that forum selection clauses are generally enforceable in Calahan v. Haspel, 99-44 (La. App. 3 Cir. 5/5/99), 732 So.2d 796. The case involved a rental of residential property. Id. The court had to consider whether the forum selection clause conferred personal jurisdiction over the defendant | ifion this court. Id. Holding that it did not, because the defendant did not have enough contacts with this State, this court stated that forum selection clauses are legal and binding, unless held unreasonable under the circumstances. Id. The forum selection clause selecting venue in Louisiana was held unenforceable in this case for the same reasons the court could not assert personal jurisdiction over the defendant. Id.

One of the examples from our sister-jurisdictions on which Appellees relied heavily in their brief is Case Atlantic Co., 960 So.2d 1274. There, the contract was between the Department of Transportation and Development (DOTD) and Blount to build a bridge. Id. The contract incorporated by reference a provision that any litigation related to the contract, bidding, or award thereof shall be in Baton Rouge Parish. Id. Blount sub-contracted with Case Atlantic. Id. Case sent lien notices to DOTD, alleging Blount failed to pay. Id. DOTD withheld two payments from Blount. Case Atlantic Co., 960 So.2d 1274. Case filed a concursus proceeding, naming Blount, DOTD, and DOTD’s surety as defendants. Id. DOTD deposited the money withheld. Id. Blount filed a cross-claim against DOTD, claiming DOTD wrongly withheld the payment. Id. DOTD responded with an exception of improper venue. Id. Blount contended that the venue for concursus proceedings was in Caddo Parish and was mandated by the statute (citus of the immovable), thus, the cross claim should also be litigated there. Id.

The court disagreed: “Blount’s cross-claim is not a concursus but a breach of contract claim.” Case Atlantic Co., 960 So.2d 1274, 1278. The court was cognizant of the competing policy interests. Id. It noted that the law disfavors multiplicity of actions and piecemeal litigation. Id. The court weighed this policy against the following considerations: concursus is a summary proceeding and a contract claim is an ordinary action; thus, Case Atlantic would be inconvenienced if its summary proceeding were converted into an ordinary action. Id. The court also |lfinoted the enormous benefit accrued to Blount from contracting with DOTD. Id. This benefit dwarfed Blount’s potential inconvenience of litigation in another 'parish. Id.

There are two sources of law in Louisiana: legislation and custom, with legislation superceding custom in every instance. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119 (citing La.Civ. Code arts. 1, 3). “Judicial decisions, on the other hand, are not intended to be an authoritative source of law in Louisiana.” Id. at 128 (citing A.N. Yiannopoulos, Louisiana Civil Law System § 35 (1977)). Because “ ‘one of the fundamental rules of [the civil law tradition] is that a tribunal is never bound by the decisions which it formerly rendered: it can always change its mind,’ 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State Law Inst. trans.1959) (12th ed.1939), prior holdings by this court are persuasive, not authoritative, expressions of the law.” Id. at 128-29 (citing A.N. Yiannopoulos, Louisiana Civil Law System § 35 (1977)). Thus, “a prior judicial (mis)eonstruction of a statute does not ‘insulate’ the Louisiana judge ... from returning to the legislation itself to ascertain its correct meaning and application.” Albert Tate, Jr., Civilian Methodology in Louisiana, 44 Tul. L.Rev. 673, 678 (1976).

As Justice Dennis explained, in Louisiana, legislation “is the primary source of law, and precedent serves merely as an example of a prior judge’s interpretation and application of legislated law.” James L. Dennis, Interpretation & Application of the Civil Code & the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 3 (1993). The function of every legal concept contained in the statutes “is to delimit contradictory or competing interests, and to decide the contest between two or more such interests.” Id. at 9.

■In creating a legal rule or concept, the legislator also considers ethical, religious, moral interests, the interest of justice, of equity, of the public, and the highest interests of human kind. Although we may disagree vigorously over which interest should prevail or be vanquished in a |^particular case, it is self-evident that every statute affects these kinds of interests.

Id. at 9-10 (footnotes omitted). When the legislature has weighed the involved interests and formed a rule based on this evaluation, “the judge is absolutely bound by the legislator’s delimitation of those interests, no matter if the judge himself would reach a different result.” Id. at 10.

Justice Dennis concluded that “[i]t should be evident that the common-law or case-law theory of precedent is incompatible in many ways with the legal method of deciding a case_” Id. at 14. Furthermore, the civil law method should be applied to determine “whether the case should be imitated in a subsequent decision.” Id. at 15. Thus, “if a judge ignores a clearly applicable Code rule and follows another jurisdiction’s case, his example of using the wrong starting point or source of law should not be influential at all.” James L. Dennis, Interpretation & Application of the Civil Code & the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 15 (1993).

The law should be applied as written if it is clear, unambiguous and does not lead to absurd consequences. Martin v. Safeway Ins. Co. of La., 08-1419 (La. App. 3 Cir. 4/15/09), 26 So.3d 777. “Laws on the same subject matter must be interpreted in reference to each other.” La. Civ.Code art. 13. This means that where statutory provisions are in conflict, laws in pari materia should be construed together and harmonized, if possible. Killeen v. Jenkins, 98-2675 (La.11/5/99), 752 So.2d 146.

The courts presume that the legislature “enacted the law with full knowledge of all other laws pertaining to the same subject matter” and that “every provision of law was intended to serve some useful purpose.... ” Martin, 26 So.3d at 780 (quoting Ransome v. Ransome, 01-2361 p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 754). Courts do not presume that “the lawmaker intended for any part of a law to be meaningless....” Id.

The public policy of the State is a limit on one’s freedom to form an enforceable contract. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Our legislature, the primary and superior source of the law in this state, has declared: “[a]n objection to the venue may not be waived prior to the institution of the action.” La.Code Civ.P. art. 44(A). In addition, our legislature stated in La.R.S. 51:1407(A) (emphasis added):

It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.

The public policy stated in La.R.S. 51:1407(A) is not being declared in that statute. Instead, the legislature refers to the already-existing public policy and applies it to the situations the Unfair Trade Practices Act (UTPA) addresses: “it being against the public policy-” The Louisiana Code of Civil Procedure Article 44(A) by stating that an objection to venue may not be waived prior to the institution of an action is an explicit expression of the legislative will from which La.R.S. 51:1407(A) derives its policy statement. Therefore, that the restatement of the policy appears in the UTPA does not mean it is not a public policy outside of UTPA. Moreover, the language in La.R.S. 51:1407(A) such as “any contract,” “any civil action,” and “any plaintiff’ indicates that the policy is far from being limited to the claims based on the UTPA.

The question remains, nevertheless, of the significance of La.R.S. 9:2779 where the legislature declared forum selection clauses against public policy when the | ^construction contract involves a Louisiana domiciliary and the work is to be done in Louisiana. At first blush, this statute implies that forum selection clauses are unenforceable as against public policy only under certain circumstances. In the case of La.R.S. 9:2779, only when one of the parties is a Louisiana domiciliary and the work is to be done in Louisiana is it so.

Yet, this interpretation would render La. Code Civ.P. art. 44(A) nugatory. This interpretation, by implicitly making all forum selection clauses generally enforceable, would also conflict with the explicit pronouncement in La.R.S. 51:1407(A) that it is against public policy of Louisiana to allow contractual selection of venue contrary to the Code of Civil Procedure.

On the other hand, if La.Code Civ.P. art. 44(A), which is clear and unambiguous, means exactly what it plainly states, why would the legislature enact La.R.S. 9:2779? Louisiana Code of Civil Procedure Article 44(A)’s prohibition of forum selection has a temporal component to it; it prohibits waiver of the objection to venue “prior to the institution of the action.” (Emphasis added). Thus, the Code of Civil procedure allows the waiver of objections to venue after the suit is filed, unless it is one of the actions specified in La.Code Civ.P. art. 44(B).

On the other hand, if the requirements of La.R.S. 9:2779 are satisfied, then the venue selection outside of this state is against public policy. “The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.” La.Civ.Code art. 1968. “An obligation cannot exist without a lawful cause.” La.Civ.Code art. 1966. Thus, the parties whose circumstances fit under La.R.S. 9:2779 may not consent to venue 18noutside of this state even after the litigation has started as such an agreement would violate the public policy of this State.

Moreover, unlike La.Code Civ.P. art. 44(A) which controls only venue issues, La.R.S. 9:2779, in addition to prohibiting the selection of forum outside of Louisiana, forbids application of another state’s laws to decide the case. Thus, while La.R.S. 9:2779 and La.Code Civ.P. art. 44(A) address similar issues, La.R.S. 9:2779 has a more comprehensive coverage while including only a certain class of litigants, and La.Code Civ.P. art. 44(A) applies to all litigants but covers the limited area of venue. Unlike La.R.S. 9:2779, La.Code Civ.P. art. 44(A) does not address the conflict of laws issues.

Because our goal, under the statutory interpretation principles, is not to render a statute nugatory and to construe together and harmonize, if possible, laws in pari materia, we conclude that the legislature broadened the policy clearly stated in La.Code Civ.P. art. 44(A) by enacting La. R.S. 9:2779 but applied that broad policy to the litigants that satisfy its requirements. The litigants who do not satisfy the requirements of La.R.S. 9:2779 may not claim its broad protection; nevertheless, they may rely on the more limited in scope La.Code Civ.P. art. 44(A).

This case does not fall within La. R.S. 9:2779 because none of the parties in this case is a Louisiana domiciliary. Thus, the general provisions of the Code of Civil Procedure with respect to venue apply. La.Code Civ.P. art. 44(A) clearly and unambiguously prohibits waiver of the Code’s venue provisions prior to the institution of the action. The contract at issue here purported to waive the venue provisions of Louisiana Code of Civil Procedure in advance of the litigation. Therefore, the waiver is not enforceable.

We decline to accept the holdings from our sister-jurisdictions that make forum selection clauses enforceable in this state. None of those decisions examined |g1the primary source of law of this state, i.e., La.Code Civ. P. art. 44(A), and relied, instead, on the Supreme Court’s pronouncements. Yet, it is the Supreme Court which declared that forum selection clauses are unenforceable when the “enforcement would contravene a strong public policy of the forum in which the suit is brought, whether declared by statute or by judicial decision.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 15, 1916, 32 L.Ed.2d 513 (1972).

Thus, the starting point of any judicial decision on the issue must begin with the examination of whether there exists a public policy prohibiting enforcement of forum selection clauses in Louisiana. This court has failed to find any such case. Thus, we adopt the words of Justice Dennis: “if a judge ignores a clearly applicable Code rule and follows another jurisdiction’s case, his example of using the wrong starting point or source of law should not be influential at all.” James L. Dennis, Interpretation & Application of the Civil Code & the Evaluation of Judicial Precedent, 54 La. L.Rev. 1,15 (1993).

The examination of the two supreme court cases which touched upon the issue of forum selection clauses, leads to the conclusion that they are also of limited, if any, consequence. First, in Lejano, 705 So.2d 158, the supreme court applied the federal law, not Louisiana law, as it was an admiralty action. Second, in Power Marketing Direct, Inc., 938 So.2d 662, there is one sentence that forum selection clauses are enforceable in Louisiana with a citation to Lejano. This pronouncement in Power Marketing Direct was a dictum because the party insisting on the unenforceability of the forum selection clause consented to the jurisdiction of another court after the litigation began.

| ^Finally, consistent with the civil law tradition where the tribunal can always change its mind, this court disavows its statements made in Calahan, 732 So.2d 796. The specific issue in that case was whether the forum selection clause conferred personal jurisdiction on this court in the absence of any other contacts with the State. Id. Nevertheless, this court implicitly held and explicitly stated that forum selection clauses are generally enforceable even though the clause at issue was not enforceable under the factual circumstances of the case. Id. We now declare that the statement relating to the enforceability of forum selection clauses in Callahan was inaccurate.

IgjV-

CONCLUSION

Summary judgment in favor of White-Spunner Construction, Inc., Hartford Fire Insurance Company, and Wal-Mart Stores, Inc. is reversed. The grant of exception of improper venue is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed to White-Spunner Construction, Inc., Hartford Fire Insurance Company, and Wal-Mart Stores, Inc.

REVERSED AND REMANDED.

      . La.R.S. 9:4811 provides:
      A. Written notice of a contract between a general contractor and an owner shall be filed as provided in R.S. 9:4831 before the contractor begins work, as defined by R.S. 9:4820, on the immovable. The notice:
      (1) Shall be signed by the owner and contractor.
      (2) Shall contain the legal property description of the immovable upon which the work is to be performed and the name of the project.
      (3) Shall identify the parties and give their mailing addresses.
      (4) Shall state the price of the work or, if no price is fixed, describe the method by which the price is to be calculated and give an estimate of it.
      (5) Shall state when payment of the price is to be made.
      (6) Shall describe in general terms the work to be done.
      B. A notice of contract is not improperly filed because of an error in or omission from the notice in the absence of a showing of actual prejudice by a claimant or other person acquiring rights in the immovable. An error or omission of the identity of the parties or their mailing addresses or the improper identification of the immovable shall be prima facie proof of actual prejudice.
      C. A notice of contract is not improperly filed because a proper bond is not attached.
      D. A general contractor shall not enjoy the privilege granted by R.S. 9:4801 if the price of the work stipulated or reasonably estimated in his contract exceeds twenty-five thousand dollars unless notice of the contract is timely filed.
      E. If a notice of contract is mutually released by the owner and contractor, then the contract will have no effect, provided no work has begun on the land or materials placed on the site. The recorder of mortgages shall immediately cancel the contract upon the filing of the mutual release and an affidavit made by a registered or certified engineer or surveyor, licensed architect, or building inspector employed by the city or parish or by a lending institution chartered under federal or state law, that states he inspected the immovable at a specified time subsequent to the filing of the contract and work had not been commenced and no materials placed at the site. If the contract, or a certified copy, is then refiled, the refiling date shall become the effective date for privilege for work done pursuant to the contract in accordance with R.S. 9:4820(A)(1).

      . A notice of termination of the work:
      (1) Shall reasonably identify the immovable upon which the work was performed and the work to which it relates. If the work is evidenced by notice of a contract, reference to the notice of contract as filed or recorded, together with the names of the parties to the contract, shall be deemed adequate identification of the immovable and work.
      La.R.S. 9:4822(E)(1)

      . La.R.S. 9:4831 reads:
      A.The filing of a notice of contract, notice of termination, statement of a claim or privilege, or notice of lis pendens required or permitted to be filed under the provisions of this Part is accomplished when it is filed for registry with the recorder of mortgages of the parish in which the work is to be performed. The recorder of mortgages shall inscribe all such acts in the mortgage records.
      B. For purposes of this Part, the recorder of mortgages includes the office of the clerk of court and ex officio recorder of mortgages.
      C. Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirement of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection.

      . The current version of the statute also reads that "[a]n error or omission of the identity of the parties or their mailing addresses or the improper identification of the immovable shall be prima facie proof of actual prejudice.” La.R.S. 9:4811(B).

      .We caution a potential inference that the failure to include a proper identification of the immovable would not make the notice of contract ineffective with respect to the owner's personal liability. The statute is very clear that the presumption would be in favor of the claimant that he suffered actual prejudice from the failure to include the proper identification. Thus, under the statute, it would be the owner’s burden to rebut that presumption and to make the notice of contract filing effective to limit the owner's personal liability.

      . Because the trial court issued a judgment on the merits, it implicitly held that the venue was proper with respect to these claims.

      . An interesting historical perspective regarding the evolution of La.Code Civ.P. art. 44(A) from Article 162 of the Code of Practice of 1870 and the associated jurisprudence can be found in Eric Michael Liddick, Give Me Freedom of Contract or Give Me Death: The Obscurity of Article 44(A) of the Louisiana Code of Civil Procedure, 54 Loy. L.Rev. 602 (2008).

      . In their supplemental brief, Appellees would limit La.Code Civ.P. art. 44(A) to those sitúa-tions listed in La.Code Civ.P. art. 44(B). This interpretation would also render La.Code Civ.P. art. 44(A) nugatory. Moreover, La. Code Civ.P. art. 44(A) disallows waiver of objection to venue before an action is instituted. On the other hand, La.Code Civ.P. art. 44(B) covers those situations in which venue may never be waived whether before or after the litigation commences.

      . In fact, there are several states where the enforcement of forum selection clauses is against public policy.

      . Even if we were to follow the jurisprudence instead of the solemn expression of the legislative will, the conclusion will, nevertheless, be the same. First, because Appellees failed to answer the appeal, we need not consider the implicit trial court's holding that the venue for the lien actions is proper in Louisiana. Thus, the issue is whether the lien cause of action and the contract breach claim should be split. We conclude that even if forum selection clauses were not against public policy, the clause’s enforcement under the circumstances of this case would be against public policy. This is because the enforcement would require to split the litigation between two states.

      Unlike Case Atlantic Co., 960 So.2d 1274, an action involving summary and ordinary proceedings, this case would involve two ordinary proceedings, i.e., the contract breach and lien enforcement. Moreover, unlike Case Atlantic where both actions were within the state of Louisiana and, therefore, the inconvenience associated with the enforcement of the clause was small compared to the benefit derived, enforcement of the forum selection clause here would require two separate lawsuits in two different states arising out of the same dispute. Very similar factual issues would have to be determined in both the lien action and the contract breach action, i.e., what Live Oak did on the project, how much the materials and labor cost, etc. In addition, the court in Case Atlantic was concerned about the inconvenience to the party who brought the concursus proceeding and whose summary action would have to be converted to the ordinary one. Here, no such parties exist.
      Furthermore, the inconvenience in this case would, indeed, be considerable. Unlike cases where the litigant simply had to go to another state to litigate under the forum selection clause, our litigant would have to litigate here and in another state.
      We also note that the subject of the dispute is located in Louisiana. All of the work involved in the dispute was performed in Louisiana. Thus, almost all evidence and witnesses would be located in Louisiana. Based on the totality of circumstances and that Louisiana disfavors multiplicity of actions and piecemeal litigation, it would be against public policy to enforce the forum selection clause in this case even if forum selection clauses were generally enforceable.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    JB JAMES CONSTRUCTION, L.L.C. v. NEW ORLEANS AVIATION BOARD.
    No. 2010-CA-1648.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 2011.

      David C. Voss, E. Allen Graves, Jr., David W. Carley, Graves Carley, L.L.P., Baton Rouge, LA, for PlaintiffAppellant.
    Michele D. Alien-Hart, Paul J. Mirabile, Middleberg Riddle & Gianna, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

Ijn this appeal, appellant J.B. James Construction, L.L.C. (“J.B. James”) asserts that the trial court erred in denying its request for a preliminary injunction and mandamus. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 22, 2010, the New Orleans Aviation Board (“NOAB”) began receiving bids for a project entitled “North Perimeter Road Improvements, NOAB Contract # 3-3-1-2010-01” (“the Project”), after advertisement in accordance with the Public Bid Law, La. R.S. 38:2211, et seq. At the bid opening on July 22, eleven (11) bids were submitted for the Project. Of these bids, J.B. James submitted the lowest numerical bid.

NOAB anticipated that the Project would be funded, at least in part, through a Federal Aviation Administration (“FAA”) Airport Improvement Program grant. The Notice to Bidders for this Project provided, in pertinent part, as follows, with regard to contractor licensing by the Louisiana State Licensing Board for Contractors (“LSLBC”):

1 ¾3.07 LICENSE
Bidder must be in compliance with the licensing laws of the State of Louisiana, La. R.S. 37:2150-2168. The requirements of La. R.S. 37:2157 A(6) apply if Work is funded in whole or in part by federal funds ...

Gibbs & Register, Inc. (“G & R”) was the second lowest numerical bidder, and was licensed by the LSLBC, license number 52250, first issued December 17, 2009 for the classification for which the Project was advertised.

J.B. James was initially licensed by the LSLBC pursuant to La. R.S. 37:2150 et seq, license number 39462, first issued May 16, 2002. J.B. James’s license from the LSLBC was required to be renewed on May 16, 2010. In 2010, the renewal date for LSLBC licenses was changed to the anniversary date of issuance. J.B. James did not renew its license until July 27, 2010, when it became aware that the license should have been renewed on May 16, 2010.

Upon this renewal, the LSBLC posted a date on its website and on the license certificate of the J.B. James license as “Effective July 27, 2010.” The website also states that the one year renewal period of the license expires on May 16, 2011. Between the bid opening on July 22, 2010 and July 27, 2010, the NOAB checked the LSLBC website listing of current licensed contractors to determine if J.B. James was a licensed contractor. The website did not reflect that J.B. James had a current contractor’s license on that date.

The NOAB stated its intent to award the Project to G & R. At the time of trial, NOAB proposed to reject the bid of J.B. James at its next Board meeting as nonre-sponsive, asserting that J.B. James did not have a current license when it submitted its bid.

| a J.B. James filed a Rule for Preliminary Injunction and Mandamus. After a hearing, the trial court denied the rule. J.B. James subsequently filed this appeal.

DISCUSSION

In its sole assignment of error, J.B. James contends that the trial court erred in finding that it was not the lowest responsive and responsible bidder, and in denying it preliminary injunctive relief and mandamus. In support of its assertion, J.B. James cites to La. R.S. 87:2156, which provides in pertinent part, “The license becomes invalid on the last day of the term for which it was issued unless renewed ...” J.B. James argues that its subsequent renewal of the license retroactively cured the invalidity. Any other interpretation of this phrase would mean that the conditional clause “unless renewed” is without meaning and effect. Further, the Project was not yet awarded at the time of trial. The contractor must have a valid license at the time of award, not at the time of bid. J.B. James had an active license at the time of the award of the Project. Therefore, J.B. James argues, it was properly licensed at all relevant times, and no just cause existed to reject its bid.

The Bid Documents for the Project consistently require all bidders to have a current contractor’s license. The Invitation to Bid informs bidders in several places that their Louisiana Contractor’s License Number must appear on the bid submission. Importantly, the “yes” box is marked, indicating that a current license is required, and informs bidders:

LTHE BIDDER’S APPLIED CURRENT LICENSE(S) NUMBER(S) in the following project classification(s): Municipal and Public Works Construction/Highway, Street & Bridge Construction must be included in bid. NOTE: THE BIDDER MUST SHOW HIS LICENSE NUMBER ON THE BID ENVELOPE if paper submission made.

The Instructions to Bidders, Article 3.07, again informs bidders that a license is required. It also includes the Uniform Bid Form, mandated by the Public Bid Law, which requires bidders to list their contractor’s license number.

Louisiana Contractor’s Law, La. R.S. 37:216S(A)(1), requires a bidder to “certify that he holds an active license under the provisions of this Chapter and show his license number on the bid envelope.” Further, an entity cannot accept a bid from a contractor who does not hold a current active license: “... if the bid does not contain the contractor’s certification and show the contractor’s license number on the bid envelope, the bid shall automatically be rejected, shall be returned to the bidder marked Rejected’, and shall not be read aloud.”

The plain language of the statute makes it clear that the license must be valid at the time the bid is submitted. The license number must be included on all of the bid documents, including the envelope. The law requires an automatic rejection and return of the bid to the bidder before bid, opening if the bidder does not have an active license. Thus, we must reject J.B. James’s argument that there need only be a valid license at the time the Project is awarded.

Additionally, because the Bid Documents and Public Bid Law dictate that a current license is required to submit a bid, the NOAB is prohibited from waiving this requirement. As stated by the Louisiana Supreme Court in Hamp’s Construction, LLC v. City of New Orleans, 05-0489 (La.2/22/06), p. 11, 924 So.2d 104, 111, “The public entity does not have the discretion to determine, after bids Lhave been submitted, whether a requirement is substantive or non-substantive, waivable or non-waivable. Once the public entity establishes a requirement, that requirement must be uniformly followed by all bidders.” The NOAB could not wait to see if bidders cured bid deficiencies, such as a lack of a current license, at a later date, as suggested by J.B. James.

We also reject J.B. James’s argument that the renewal of its license retroactively validated it. The relevant part of the contractor’s license renewal statute, La. R.S. 37:2156, provides:

A. Licenses and renewals issued under the provisions of this Chapter shall expire on the anniversary of the date on which the license was originally issued. Licensees shall elect upon renewal one-, two-, or three-year license renewal terms, and licenses may be issued by the board on a multiple-year basis, not to exceed a three-year renewal term for any license. The license becomes invalid on the last day of the term for which it was issued unless renewed; however, after a license has expired, the person to whom such license was issued shall have fifteen days following the expiration date to file an application for the renewal of such license without the payment of a penalty and without further examination, and any person who makes an application for the renewal of a license after fifteen days following the expiration date of the license may, at the discretion of the board, have his license renewed after paying the required license fees and such penalty, not exceeding the sum of fifty dollars, that the board may impose. New applicants for licensing may elect upon application the renewal term of their license.
B. If a license is not renewed within a period of one year from the date of its expiration, any application for renewal shall be considered and treated as a new application.

The “unless renewed” language refers to the period of time during which an entity can file an application to renew the license without paying the penalty or taking an exam, if renewed within fifteen days; or at the discretion of the contractor’s board, paying a penalty and avoiding taking the exam, if renewed within a period of one year. Section B makes the foregoing interpretation clear by stating that the board will not have the discretion to accept a renewal application, | fiand the entity seeking the license must apply as a new applicant. New applicants have the entire application process to navigate, as well as the exams. Renewal applicants do not have to be examined each time a license expires, if they renew within the time periods set forth in Section A.

The law clearly states that licenses expire on the anniversary of the date on which the license was originally issued. It does not provide that an application for renewal submitted after the license has expired cures the expiration. Nor does it state that expired licenses or renewals continue until renewed. When the language of the law is clear and unambiguous and does not lead to absurd consequences, the law shall be applied as written. La. C.C. art. 9. The interpretation of the phrase “unless renewed” urged by J.B. James violates the plain language of the statute and must be rejected.

CONCLUSION

A bidder must have a valid Louisiana contractor’s license as of the time of bid opening. This requirement cannot be cured retroactively. J.B. James did not have a current license on bid day. As such, the NOAB properly rejected its bid, and the trial court correctly denied J.B. James’s rule for preliminary injunction and mandamus. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED


author: MICHAEL E. KIRBY, Judge.

text:
    Sophie CULL v. Peter M. CADARO, Jr., Olander P. Bajoie, Jr., Joyce T. Albert, Brenda G. DeBattista, and Aleshia Lewis Liddell.
    No. 2010-CA-1546.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 2011.
    Anna Vancleave, Aliza Cover, Christine Lehmann, Louisiana Capital Assistance Center, New Orleans, LA, for Plaintiff/Ap-pellee.
    Brett J. Prendergast, New Orleans, LA, for Defendants/Appellants.
    Leon Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for Amicus Curiae, State of Louisiana.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

| iDefendants, Peter M. Cadaro, Jr., Olander P. Bajoie, Jr., Joyce T. Albert and Brenda G. DeBattista, in their official capacities as Jury Commissioners for Orleans Parish, and Aleshia Lewis Liddell, in her official capacity as Jury Administrator for Orleans Parish, appeal the trial court judgment of August 18, 2010, granting the petition for writ of mandamus filed by plaintiff, Sophie Cull, and ordering defendants to provide plaintiff with certain jury venire lists.

On July 21, 2010, plaintiff filed a “Petition for Writ of Mandamus under the Louisiana Public Records Act,” asking the trial court to order the defendants to provide plaintiff with certain public records in their possession, namely, “the jury venires from January 2009 — June 2010, including the name, gender and race of each juror.” According to the petition, plaintiff submitted a written request for these records to Ms. Liddell on June 29, 2010, and received a letter in response from Robert J. Kazik, Judicial Administrator of Orleans Parish Criminal District Court, on July 8, 2010, informing her that she was not entitled to the records requested. No explanation was given in the letter as to why plaintiff was not |2entitled to the records. Plaintiff subsequently sent another letter to Ms. Liddell and to each of the jury commissioners on July 12, 2010, reiterating her request for the records. She received no response to the second request. Plaintiff claims to be entitled to the information requested according to the provisions of the Louisiana Public Records Act, La. R.S. 44:1 et seq.

A hearing on plaintiffs petition for writ of mandamus was held on August 11, 2010. The trial court rendered judgment on August 18, 2010, in favor of plaintiff and against defendants, ordering defendants to provide plaintiff with the requested records, i.e., the jury venire lists from January 2009 — June 2010. The trial court further ordered plaintiffs reasonable attorney’s fees to be taxed as costs and fixed by the court on a rule to show cause filed by plaintiff. All costs of the proceedings were assessed against the defendants. Defendants now appeal.

On appeal, the defendants argue that the trial court erred in finding that individuals called to jury duty at Criminal District Court in Orleans Parish did not have a reasonable expectation of privacy in the data contained in the public records of the Orleans Parish Jury Commission, and that the trial court erred in failing to weigh the public records disclosure interest against the privacy interest. We find no merit in these arguments for reasons that follow.

As noted by the trial court in written reasons for judgment, the Orleans Parish Jury Commission is a “public body” within the meaning of the Public Records Act, La. R.S. 44:1 et seq., and generally, all records, writings, recordings, tapes, reproductions, and electrical data prepared for use by a public body are | ¡¡public records for the purposes of the Act. La. R.S. 44:1. Any exception, exemption, or limitation to the laws pertaining to public records not provided for in the Public Records Act or in the Louisiana State Constitution shall have no effect. La. R.S. 44:4.1.

The law regarding the right of the public to have access to public records was summarized in Title Research Corporation v. Rausch, 450 So.2d 933, 936 (La.1984), as follows:

The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution. La. Const, art. 12, § 3. The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.

The defendants in this case do not dispute the fact that there is no exception, exemption or limitation contained within the Public Records Act applicable to the records requested herein. However, the defendants argue that access to the requested records should be denied in order to protect the privacy interests of the jury venire. According to defendants, classifying the records maintained by the defendants as public records would violate the right to privacy guaranteed to potential jurors by Article I, Section 5 of the Louisiana Constitution.

|4In Angelo Iafrate Construction, L.L.C. v. State ex rel. Department of Transportation and Development, 2003-0892, pp. 5-6 (La.App. 1 Cir. 5/14/04), 879 So.2d 250, the First Circuit discussed the law regarding competing issues of the right to public records and the right to privacy as follows:

Article I, Section 5 of the Louisiana Constitution expressly prohibits unreasonable invasions of privacy. The right to privacy in Louisiana has been described as the right to be let alone and to be free from unnecessary public scrutiny. Capital City Press v. East Baton Rouge Parish Metro. Council, 96-1979 (La.7/1/97), 696 So.2d 562, 566. The right to privacy protects varied interests from invasion. Among the interests protected is the individual’s right to be free from unreasonable intrusion into his seclusion, solitude, or private affairs. The right is not absolute; it is qualified by the rights of others. The right to privacy is also limited by society’s right to be informed about legitimate subjects of public interest. Id.
In ascertaining whether individuals have a reasonable expectation of privacy that is constitutionally protected, a court must determine not only whether the individual has an actual or subjective expectation of privacy, but whether that expectation is also of a type which society at large is prepared to recognize as being reasonable. Local 100, Service Employees’ Int’l Union v. Forrest, 95-1954 (La.App. 1st Cir.5/10/96), 675 So.2d 1153, 1156, writ denied, 96-1499 (La.9/20/96), 679 So.2d 441. When a request for public records is at issue, the custodian or the individual claiming the privacy right must prove that there is a reasonable expectation of privacy against disclosure of the information to a person entitled to access to the public information. If, and only if, a reasonable expectation of privacy is found, the court must weigh or balance the public records disclosure interest against the privacy interest. Webb v. City of Shreveport, 371 So.2d 316, 319 (La.App. 2nd Cir.), writ denied, 374 So.2d 657 (La.1979).

At the hearing in this matter, defendants offered the testimony of Ms. Aleshia Liddell, the Jury Administrator of Criminal District Court, who stated that |fisome potential jurors have expressed concern to her about their personal information being made public. Ms. Liddell testified that lists of potential jurors are assembled through certain information gathered from the Louisiana Department of Motor Vehicles and the Orleans Parish Registrar of Voters. Summons are then sent to potential jurors, and they are required to provide certain personal information on the jury summons form, which is turned in when they report for duty.

A sample jury summons form offered into evidence by the defendants shows that the information required of potential jurors includes name, address, phone number, date of birth, social security number, age, sex, marital status, number of children, length of residency in Orleans Parish, citizenship status, information regarding any felony convictions, occupation, employer’s name, address and phone number, and supervisor’s name. The form does not ask for information as to a potential juror’s race. Ms. Liddell stated that the only information given to the prosecutors and defense attorneys in a ease is a potential juror’s name, date of birth, age, marital status, number of children and occupation. The judge in a case receives information relative to jurors’ home addresses in addition to the information given to the attorneys.

The trial court found that there is no reasonable expectation of privacy in the data contained within the public records of the Orleans Parish Jury Commission, with the exception of Social Security information. Based on this conclusion, the | fitrial court stated that there was no need to consider a balancing test between the public records disclosure interest and the privacy interest. As to plaintiffs request for information as to the race of potential jurors, the court found that the Jury Commission is not required to produce records that it neither keeps nor is required to keep. In ruling in favor of the plaintiff, the trial court, citing La. R.S. 44:31 and 44:35, found that the defendants, as custodians of the records requested by plaintiff, failed to meet their burden of proving that the plaintiff was not entitled to access to the records requested pursuant to the Louisiana Public Records Act.

Having reviewed the record and applicable law, we cannot say that the trial court erred in reaching these conclusions and in issuing the writ of mandamus to the defendants to provide the requested records to plaintiff. At most, the defendants made a showing that some jurors have expressed concern about release of their personal information. However, there was no showing made by the defendants to support their argument that jurors had a reasonable expectation that their personal information listed on the jury summons, other than Social Security numbers, would be kept private. In the absence of such a showing, the plaintiff is entitled to the records requested.

For the reasons stated above, the trial court judgment is affirmed.

AFFIRMED

      . La. R.S. 44:4.1B lists and incorporates into the Public Records Act numerous existing exceptions, exemptions, and limitations to the laws pertaining to public records. If any exception, exemption or limitation to the rules regarding access to public records is to be made as to potential jurors' personal information, it is entirely within the province of the Legislature, and not the courts, to do so.

      . "There is a strong expectation of privacy as to a person’s social security number.” Op. Atty.Gen., No. 91-295, July 11, 1991.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Darius W. ADAMS.
    No. 2010-KA-1140.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 2011.
    Rehearing Denied Sept. 12, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

|!A twelve-person jury found Darius Adams, the defendant, guilty-as-charged on four counts. Following the verdicts, Mr. Adams filed a motion for post-verdict judgment of acquittal and a motion for new trial. See La.C.CR.P. arts. 821 and 851. The trial judge denied the motions and, on the same date, sentenced Mr. Adams. Following his sentencing, Mr. Adams appealed his convictions. See La. C.Cr.P. arts. 911, 912 A, and 912 B(l).

Mr. Adams argues on appeal that the trial judge erred, first, in denying his Article 821 motion as to the fourth count of attempted armed robbery with a firearm of Aaron Kirchner, second, in refusing to sever the four offenses which had been joined for trial, and, third, in sentencing him without the statutory delay of twenty-four hours provided in La.C.Cr.P. art. 873.

| Reviewing all of the evidence in the light most favorable to the prosecution, we find that the evidence is sufficient to convince a rational trier of fact that all of the elements of the crime of attempted armed robbery with a firearm of Mr. Kirchner have been proved beyond a reasonable doubt. We also find that the trial judge did not abuse her discretion in refusing to sever the joined offenses for trial. Thus, we affirm all four convictions.

Because, however, we are unable to ascertain from the sentencing transcript the sentencing-judge’s application of the mandatory imposition of an additional consecutive five-year period of imprisonment on each count, see La. R.S. 14:64.3, we vacate the sentences, and we remand to the district court with instructions for the imposition of lawful sentences.

We explain our decision in greater detail in the following Parts.

I

In this Part we describe the historical facts as presented to the jury.

On January 6, 2005, about 9:00 P.M., Jeroen Staarmand and his partner, Jeffrey Brown, left their Carrollton home to walk to a nearby restaurant for dinner. As they walked towards Freret and Dublin Streets, two young black males, one of whom was holding a silver handgun, approached them. The men ordered Mr. Brown and Mr. Staarmand to turn around, and one of the men removed Mr. Brown’s wallet from his back pocket which contained five to ten dollars and his credit cards. Mr. Staarmand handed his wallet to the two robbers which contained his driver’s license, three dollars and two credit cards. The robbers then told Mr. Brown and Mr. Staarmand to walk away, and their victims complied. Mr. Brown telephoned the emergency operator and described the robbers as two heavyset black men in baggy clothing, and he told the operator that one of the men was | ^wearing a white hat. Later, Mr. Staar-mand positively identified Mr. Adams as one of the perpetrators of the armed robbery.

While the officer who had been dispatched was interviewing them, he received another call of a recent robbery nearby in Carrollton.

Ana Lapaz had very recently arrived in the United States as a veterinary surgeon volunteer at the Audubon Zoo. She, too, was residing in the Carrollton section of New Orleans. She and a friend, Philip Stevenson, were walking in her neighborhood around 9:00 P.M. As they were walking, one man, holding a silver handgun, approached them and ordered: “Give me money, give me money.” Ms. Lapaz handed the young man money from her back pocket. She later identified not only Mr. Adams, the defendant, as the man who robbed her, but she also identified the silver handgun that he used. Mr. Stevenson handed his wallet to the young man, but asked him to take only the money and leave the wallet. The robber agreed, but then asked if the couple had any other valuables. They responded that they did not have anything else. The young man then ran to a silver automobile and entered on the passenger side. A second person was driving the car.

On February 4, 2005, Aaron Kirchner left his place of employment at the Boot Bar and Grill on Broadway and Zimple Streets at approximately 9:30 P.M. He observed a young black male, carrying a chrome or nickel plated handgun in his outstretched hand, running towards him. Realizing that he was being robbed and fearing that he would be shot, Mr. Kirchner, who was carrying his own handgun, shot the approaching robber three times. The robber who was shot was a young black male who was later identified as Darius Adams’ brother, Michael |4Adams. Shortly thereafter the police learned that Darius Adams had made the emergency 911 call from inside his silver Chevrolet Malibu, to report that his brother had been shot.

Following Michael’s death, Mr. Staar-mand recognized Mr. Adams’ photograph in a newspaper article about the robbery in the area which resulted in the death of one of the robbers. Mr. Staarmand positively identified Darius Adams in the lineup. Mr. Brown, however, was unable to make any identification.

ii

In his first assignment of error, Mr. Adams focuses on the attempted armed robbery with a firearm of Mr. Kirchner, the bartender. Mr. Adams argues that the trial court erred in denying his motion for post-verdict judgment of acquittal because the prosecution produced no evidence linking defendant to the attempted armed robbery of Mr. Kirchner. Specifically, Mr. Adams argues that there is no evidence that more than one person was perpetrating the robbery of Mr. Kirchner. Mr. Kirchner was certainly unaware of any other perpetrator and was in fact oblivious to the existence of Mr. Adams.

The prosecution’s case against Mr. Adams on this count is based upon the criminal law of principals. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La. R.S. 14:24; see also State v. Lewis, 95-0412, p. 9 (La.App. 4 Cir. 9/28/95), 662 So.2d 77, 81.

IsAnd, as to this count, the prosecution concedes that its evidence is primarily circumstantial. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438 (emphasis added). The prosecution, however, is not “under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Just as the prosecution need not prove every element of a crime beyond any doubt (“[a] person accused of crime is presumed by law to be innocent until each element of the crime necessary to constitute his guilt, is proven beyond a reasonable doubt.” La.C.Cr.P. Art. 804 A(l) (emphasis added)), it need exclude only every reasonable hypothesis.

As we noted earlier, Mr. Adams raised his claim of insufficiency of evidence in the trial court by a motion for post-verdict judgment of acquittal. “A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” La.C.Cr.P. Art. 821 B (emphasis added). “That is similar to the standard for appellate review of the sufficiency of evidence to support a defendant’s conviction that the court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” State v. Williams, 04-1377, pp. 7-8 (La.App. 4 Cir. 12/1/04), 891 So.2d 26, 30. The trial judge denied the motion and we review the correctness of that ruling de novo under the familiar Jackson v. Virginia test. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also, e.g., State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18.

| fiIn order to ensure that a criminal defendant’s conviction comports with the constitutional requirement of proof beyond a reasonable doubt, Jackson v. Virginia first requires us to review all of the evidence considered by the actual trier of fact. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (“Once a defendant has been found guilty of the crime charged, the factfin-der’s role as weigher of evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution”). Thus, we must consider the evidence of the two other armed robberies and the one other attempted armed robbery even though the defendant argues that it was trial error to admit such evidence in Mr. Adams’ trial on this count (see our discussion in Part III, post). A reviewing court “must consider all of the evidence admitted by the trial court” in determining sufficiency or insufficiency. See Lockhart v. Nelson, 488 U.S. 38, 41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). “[W]hen the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal.” State v. Hearold, 603 So.2d 731, 734 (La.1992).

In reviewing the evidence, we do not ask ourselves whether we believe all the evidence supports a finding of guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The relevant question is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. As a reviewing court, we “must consider the record through the eyes of a hypothetical trier of fact who interprets all of the evidence as favorably to the prosecution as any rational fact finder can.” State v. Mussall, 523 So.2d 1305, 1309 (La.1988); see also State v. Jackson, 09-2406 (La.1/19/11), 55 So.3d 767.

[7The prosecution, in this case, was required to prove beyond a reasonable doubt that Mr. Adams (although he may not have been immediately physically present and perhaps not directly and personally pointing a gun at Mr. Kirchner in order to take anything of value belonging to Rim from him) was concerned in the commission of the crime and aided and abetted in its commission by his brother. We are to consider all the direct and circumstantial evidence in reviewing the conviction for sufficiency of evidence. See State v. Neal, 00-0674, p. 10 (La.6/29/01), 796 So.2d 649, 657.

From a pro-prosecution perspective, the evidence is sufficient for any rational fact-finder to have found the essential elements of the crime charged beyond a reasonable doubt. Mr. Adams was positively identified as having robbed or attempted to rob at least three other people in the same neighborhood within a month of this offense. He had committed the crimes in concert with at least one other perpetrator whose physical description was similar to his. Mr. Adams was very near the scene of this crime in a silver automobile that had been identified previously as a getaway car in one of the earlier robberies. And the gun used by his brother to hold up Mr. Kirchner was the same one he had used to rob Ms. Lapaz. He rapidly learned that his brother had been shot by Mr. Kirchner and was the first to notify emergency services of a need for help.

We have searched the record in an effort to discern Mr. Adams’ hypothesis of innocence. There is nothing to even hint that Mr. Adams resided in the neighborhood, attended school there, or was employed in the area. There was no evidence or argument of an innocent explanation of why he coincidentally was in this same neighborhood where he had committed other crimes against persons at the same time as his brother was in the neighborhood attempting to rob Mr. |sKirchner with the gun he used. In order to discern a reasonable hypothesis of innocence in this case, a fact-finder would be “required to draw a series of improbable inferences from the basic facts.” See Jackson, 443 U.S. at 325, 99 S.Ct. 2781. To the contrary, all conflicting inferences supported by the evidence are presumed resolved in favor of the prosecution. Jackson, 443 U.S. at 326, 99 S.Ct. 2781.

In this case, any rational trier of fact with a pro-prosecution view of the facts, could have found proof beyond a reasonable doubt that Mr. Adams was concerned with and aided and abetted the attempted armed robbery of Mr. Kirchner. Accordingly, we find no error in the trial court’s denial of Mr. Adams’ motion for post-verdict judgment of acquittal.

Ill

In this Part we address the issue of severance of offenses.

Prior to trial, arguing a misjoinder of offenses, Mr. Adams moved to quash the indictment. In the alternative, he moved to sever the count involving Mr. Kirchner. Mr. Adams asserts that the evidence for the Kirchner count would not have been admissible in a separate trial of the remaining counts either pursuant to res gestae or other crimes evidence. Mr. Adams argues that by joining the counts, the evidence that Mr. Kirchner shot and killed Darius Adams’ brother, created an “inflammatory atmosphere.”

La.C.Cr.P. article 493 provides for the joinder of offenses:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

hi And La.C.Cr.P. article 495.1 provides for the severance of joined offenses:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

Because the offenses of armed robbery and of attempted armed robbery are triable by the same mode of trial, see La.C.Cr.P. art. 782, we do not review the ruling on the severance motion as a question of law. Under these circumstances, whether to sever rests within the sound discretion of the trial court whose decision will not be disturbed on appeal absent a showing of abuse of that discretion. See State v. Brent, 00-0072 (La.App. 4 Cir. 11/29/00), 775 So.2d 565.

Generally, “there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime.” State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990). The defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice. State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004. In determining whether joinder of two or more offenses would result in prejudice, a court should consider: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Lewis, 97-2854, 736 So.2d 1004 (citing State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060).

|inIn this case, if the court felt the defendant would have suffered prejudice from the joinder, it could have ordered separate trials, but did not. The offenses occurred in the same neighborhood; the facts of each offense were distinct, simple and uncomplicated; and each offense was carried out in a similar manner. The investigating officers who testified documented and distinguished each offense. There is no indication that the state’s presenting evidence of the crimes together confused the jury. There is no suggestion that the defendant’s right to present a defense as to the attempted robbery charge of Mr. Kirchner was hindered. Nor is there anything in the record to suggest the prosecution joined the offenses to show the defendant’s criminal propensity. Although Mr. Adams argues that the jury may have become hostile toward him as a result of the shooting death of his brother, it may just as well be that the jury may have been sympathetic. But, in any event, there is no evidence of jury hostility.

The trial court was reasonable in its finding that Mr. Adams would not be unfairly prejudiced by the authorized joinder of offenses. We find the trial judge did not abuse her discretion in denying the motions.

IV

In this Part we address the problem with the sentences which were imposed on each of the four counts.

Mr. Adams was convicted of two counts of armed robbery with a firearm, a violation of La. R.S. 14:64 and two counts of attempted armed robbery with a firearm, a violation of La. R.S. 14:27 and 14:64. The jury’s verdict found beyond a reasonable doubt that a firearm was used in the commission of each of the offenses charged. La. R.S. 14:64.3. On the two armed robbery with a firearm convictions, Mr. Adams was sentenced to a term of fifty years at hard labor on each count. On |nthe two attempted armed robbery with a firearm counts defendant was sentenced to serve a term of twenty-five years at hard labor on each count. All sentences are concurrent and served without benefit of parole, probation, or suspension of sentence.

For the crime of armed robbery, the sentencing range is between ten and ninety-nine years. La. R.S. 14:64 B. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, an additional penalty of five years shall be imposed, which five years is to run consecutively. La. R.S. 14:64.3 A. Also, a sentence for attempted armed robbery must carry with it an additional five years, also to run consecutively. La. R.S. 14:64.3 B. In this case, the trial judge sentenced Mr. Adams to fifty years on each count of armed robbery and twenty-five years on each count of attempted armed robbery but failed to specify whether these sentences included the five-year sentencing enhancement for use of a firearm.

The trial court either failed to sentence the defendant to an additional five years in prison pursuant to La. R.S. 14:64.3 on all counts or failed to specify that it had done so on any of the counts. Because the trial judge did not delay sentencing and because we are unable to ascertain the sentencing judge’s intentions in this matter, we remand for a sentencing hearing.

REMAND INSTRUCTIONS

This matter is remanded for the court to conduct a new sentencing hearing. See State v. Burton, 09-0826, p. 3 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1076. h,As to the Brown count, the district court shall sentence Mr. Adams to hard labor without benefit of probation, parole or suspension of sentence for a period not less than ten years, nor more than ninety-nine years, as provided by La. R.S. 14:64 B (with credit for time served), and to an additional period at hard labor without benefit of probation, parole or suspension of sentence for a period of five years, to be served consecutively to the preceding period. See La. R.S. 14:63 A. Likewise, with respect to the Staarmand count, the district court shall sentence Mr. Adams to hard labor without benefit of probation, parole or suspension of sentence for a period not less than ten years, nor more than ninety-nine years, as provided by La. R.S. 14:64 B (with credit for time served), and to an additional period at hard labor without benefit of probation, parole or suspension of sentence for a period of five years, to be served consecutively to the preceding period. See La. R.S. 14:64.3 A.

As to the Lapaz count, the district court shall sentence Mr. Adams to hard labor without benefit of probation, parole or suspension of sentence for a period not less than five years, nor more than forty-nine years and six months, as provided by La. R.S. 14:27 and 14:64 B (with credit for time served), and to an additional period at hard labor without benefit of probation, parole or suspension of sentence for a period of five years, to be served consecutively to the preceding period. See La. R.S. 14:64.3 B. Likewise, with respect to the Kirchner count, the district court shall sentence Mr. Adams to hard labor without benefit of probation, parole or suspension of sentence for a period not less than five years, nor more than forty-nine years and six months, as provided by La. R.S. 14:27 and 14:64 B (with credit for time served), and to an additional period at hard labor without benefit of probation, |13parole or suspension of sentence for a period of five years, to be served consecutively to the preceding period. See La. R.S. 14:64.3 B.

The sentencing judge may order that the four sentences run concurrently with each other and with any other sentence. See La.C.Cr.P. Art. 883.

If, after the imposition of sentences upon remand, Mr. Adams files a motion to reconsider the sentences, we reserve his right to an appeal of the sentences. See La.C.Cr.P. Arts. 881.1 and 911.

DECREE

The convictions of Darius Adams on two counts of armed robbery with a firearm and two counts of attempted armed robbery with a firearm are affirmed. The sentences imposed on Darius Adams in this matter on May 14, 2010, are vacated. The case is remanded to the district court for further proceedings as directed by our remand instructions.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS

ORDER

Considering the defendant-appellant’s motion for rehearing,

IT IS ORDERED that rehearing in this matter is DENIED.

IT IS FURTHER ORDERED that, with respect to new claims for relief asserted in his motion, mover has two years from the finality of the judgment within which to file for post-conviction relief. See La.C.Cr.P. ART. 980.8 A.

      . On two of the counts, the verdicts were not unanimous. The less-than-unanimous verdicts were returned as to Count 1 (Armed Robbery With a Firearm of Jeffery Brown) and Count 4 (Attempted Armed Robbery With a Firearm of Aaron Kirchner). Arguing that a less-than-unanimous twelve-person jury, as authorized by La. Const. art. I, § 17(A) and La.C.Cr.P. art. 782 A, unconstitutionally deprives him of his Sixth Amendment right to trial by jury, Mr. Adams assigns these verdicts as error and we dispose of that assignment in this footnote. But the unanimity requirement of the Sixth Amendment is not applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184; State v. Bertrand, 08-2215, 08-2311, p. 8 (La.3/17/09), 6 So.3d 738, 743; State v. Barbour, 09-1258 (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). This assignment of error is without merit.

      . We have, as we always do, reviewed the record for errors patent. See La.C.Cr.P. art. 920(2). We have identified only one error patent, see Part IV, post, but it does not affect the convictions, only the sentences imposed.

      . The record sometimes indicates the brother's name as Micah Adams or Mike Adams.

      . The trial transcript makes clear that although Mr. Brown could not identify Mr. Adams, neither did he exclude him as one of the perpetrators.

      . Mr. Adams notes in an assignment of error that he was sentenced on May 10, 2010, the same date that his motion for a new trial and motion for judgment of acquittal were denied, without a waiver of the delay required by La.C.Cr.P. art. 873. Generally, the failure of a trial court to observe this delay is considered harmless error when a defendant does not challenge his sentence on appeal. State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991). However, because we are remanding this matter to the trial court due to the sentencing error discussed above, we pretermit discussion of this assignment of error.

        . The judge had previously ordered the sentences to run concurrently with each other and with a sentence in case number 487-203.