text:
    LAFAYETTE PARISH SCHOOL BOARD v. RATCLIFF CONSTRUCTION CO., et al.
    No. 2011-CC-1984.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re Corne-Lemaire Group An Architectural Group; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 2008-4236; to the Court of Appeal, Third Circuit, No. CW 11-00520.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Howard C. GAINES and George Andrews Gaines v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 2011-CC-2229.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re Government Employees Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 577,238; to the Court of Appeal, First Circuit, No. 2011 CW 1400.

Denied.

JOHNSON and VICTORY, JJ., would grant.


text:
    STATE of Louisiana v. Arthur W. CASTILLE.
    No. 2011-KP-2257.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re Castille, Arthur W.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. C, No. 57940; to the Court of Appeal, Third Circuit, No. KW 10-01319.

Denied.


text:
    STATE ex rel. Theron J. CHAISSON v. STATE of Louisiana.
    No. 2010-KH-2650.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re Chaisson, Theron J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. CR116180; to the Court of Appeal, Third Circuit, No. KA-09-119.

Granted for the sole purpose of transferring the application to the Court of Appeal, Third Circuit, for its consideration.


text:
    Tracie RUSSELL, Individually, and on Behalf of the Minor Child, Garland Russell v. ST. TAMMANY PARISH SCHOOL BOARD, the City of Covington and ABC Insurance Company.
    No. 2011-CC-1820.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re St. Tammany Parish School Board; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2008-13911; to the Court of Appeal, First Circuit, No. 2011 CW 0855.

Granted and remanded to court of appeal for briefing, argument, and opinion.

WEIMER, J., would grant and docket.


text:
    Veronica BOWMAN and Gregory Bowman v. The RIVERSIDE COURT CONDOMINIUM ASSOCIATION PHASE II, INC., Air Conditioning Ambulance Service, Inc., and Eustis Insurance, Inc.
    No. 2011-CC-1836.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re Air Conditioning Ambulance Service Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 678-619; to the Court of Appeal, Fifth Circuit, No. 11-C-671.

Granted and remanded to court of appeal for briefing, argument, and opinion.


text:
    Veronica BOWMAN and Gregory Bowman v. The RIVERSIDE COURT CONDOMINIUM ASSOCIATION PHASE, II, INC., et al.
    No. 2011-CC-1855.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re The Riverside Court Condominium Association Phase II, Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 678-619; to the Court of Appeal, Fifth Circuit, No. 11-C-662.

Granted and remanded to court of appeal for briefing, argument, and opinion.


text:
    Veronica BOWMAN and Gregory Bowman v. The RIVERSIDE COURT CONDOMINIUM ASSOCIATION PHASE, II, INC., Essex Insurance Company, and Air Conditioning Ambulance Service, Inc.
    No. 2011-CC-1876.
    Supreme Court of Louisiana.
    Nov. 14, 2011.
   In re Essex Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 678-619; to the Court of Appeal, Fifth Circuit, No. ll-C-718.

Granted and remanded to court of appeal for briefing, argument, and opinion.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Courtney Ray IRWIN, and Kendra Jaylene Lee, as Natural Mother and Tutor of KC Nicole Irwin, Minor, and Kalee Christian Irwin, Minor v. Peter Richard RUBENS and Ray Manning.
    No. 2011-CA-0405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 7, 2011.
    Glenn C. McGovern, Metairie, LA, for Plaintiffs/Appellants.
    John E. McAuliffe, Jr., Frederick A. Miller & Associates, Metairie, LA, for Defendant/Appellee, Ray Manning.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

| plaintiffs, who represent the minor children of decedent Robert Irwin, appeal the trial court’s granting of summary judgment dismissing with prejudice their claims against defendant Ray Manning. For the reasons that follow, we affirm.

FACTS AND PROCEEDING BELOW

On June 26, 2009, plaintiffs filed a Petition for Survivorship and Wrongful Death against two defendants, Peter Rubens and Ray Manning. In the petition they alleged that Peter Rubens had shot and killed Robert Irwin while Rubens was in the course and scope of his employment by Ray Manning. Manning filed a motion for summary judgment asserting that, as a matter of law, he owed no duty to Irwin and therefore could not have been guilty of any negligence that contributed to Irwin’s death. Specifically, Manning averred that plaintiffs could not prove that he was the employer of Peter Rubens, who was an independent contractor. Manning submitted deposition testimony to show that Rubens was working on post-Katrina rebuilding projects at several houses in addition to Manning’s house, which was located at 5086 S. Prieur Street. Manning was not living in the S. Prieur house at |2the time, which had been flooded during Hurricane Katrina. However, Manning had given Rubens and his girlfriend permission to live temporarily on the second floor of the S. Prieur house. It is undisputed that the shooting occurred on a Sunday afternoon, June 29, 2008, when Irwin, who was the foreman on Rubens’ construction jobs, went to see Rubens at the S. Prieur house where Rubens was residing.

The trial court heard the motion on November 19, 2010 and granted it from the bench. On November 29, 2010, the trial court rendered a written judgment without written reasons granting Manning’s motion for summary judgment and dismissing plaintiffs claims against him with prejudice. Plaintiffs now appeal that judgment.

ISSUE

The sole issue on appeal is whether the trial court erred by granting summary judgment finding that plaintiffs, as a matter of law, will not be able to prove that Ray Manning breached any duty he owed to Robert Irwin or that such a breach contributed to Irwin’s death.

STANDARD OF REVIEW

The granting of summary judgment by a district court is reviewed de novo, with the appellate court using the same criteria that governed the district court’s consideration of whether summary judgment is appropriate. Safeway Insurance Co. of La. v. Premier Automotive Superstore, 09-0074, p. 2 (La.App. 4 Cir. 5/27/09), 13 So.3d 236, 238. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 C(l). When, as in the instant case, the party bringing the motion is not the party that will bear the burden of proof at trial, “the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966 C(2).

DISCUSSION

In their petition, their opposition to the motion for summary judgment, and their brief to this Court, plaintiffs argue that Ray Manning is liable for the death of Robert Irwin because: (1) Manning negligently failed to warn Irwin that Rubens was dangerous and carried a gun, and/or negligently failed to dismiss Rubens upon learning that he was carrying a gun at the workplace; (2) Manning negligently failed to do a proper background check on Rubens before hiring him; and/or (3) Manning was the employer of Rubens and is vicariously liable for the acts of Rubens while in the course and scope of his employment. It is undisputable that, to prevail in this action based upon negligence, the plaintiffs must prove that Ray ^Manning owed Robert Irwin a duty, which Manning breached, causing Irwin’s death. See Hackett v. Schmidt, 630 So.2d 1324, 1327 (La.App. 4th Cir.1993).

In his motion for summary judgment, Manning argued that no such duty existed under the facts of this case. Additionally, he argued that plaintiffs had failed to put forth any evidence that Rubens was Manning’s employee, as opposed to an independent contractor, or alternatively, that the shooting had occurred within the course and scope of such employment. In support of his motion, Manning submitted his own deposition testimony and that of two others: plaintiff Kendra Lee, who is the mother of two of Irwin’s children, and Dr. Nicholas Vergara, the owner of one of the houses that Rubens was working during the same time period he was working on Manning’s house. Relying on the same three depositions, the plaintiffs opposed the motion arguing that there is a genuine issue of fact as to whether Rubens was Manning’s employee.

In his deposition, Manning testified that he had met Rubens twelve to fifteen years before at a Mardi Gras event, and after that he generally saw Rubens once or twice a year at the same event or sometimes on Mardi Gras day. Sometime after Manning’s home was ruined by Hurricane Katrina, while Manning was in the process of repairing it, Rubens approached Manning and suggested that he could finish renovating the house for Manning. Rubens said he was working on other houses in the vicinity. Rubens came out to see the S. Prieur house, and Manning agreed to let him do the job. They discussed the approach and agreed on a cost estimate. They did not sign a written contract. The bottom floor of the house was |figutted, but there was a bedroom with a bed and a functioning bathroom on the second floor. Manning told Rubens that he and his girlfriend could live on the second floor while Rubens was doing the work, and a week later they moved in. Rubens procured all the workers for the job, such as getting his brother-in-law from Florida to do plumbing and electrical work. Manning met with Rubens once a week and issued all the checks for materials and payment to the workers. A few days before the shooting occurred, Manning heard that Rubens was getting a crew together to go to Iowa where Rubens supposedly had obtained a more lucrative contract to do work necessitated by the flooding that had occurred there in the spring of 2008. Manning was not happy when he checked on his house on a Thursday evening and discovered that Rubens was allowing the workers he was recruiting for his Iowa crew to sleep there, but because of the way the job had been going, Manning figured it might be best if Rubens did leave. Manning was at a friend’s house around the corner from the S. Prieur house on Sunday afternoon about 5:30, when he learned of the shooting.

In his deposition, Dr. Nicholas Vergara testified that he had purchased his house on Maple Street in April, 2008, and was interested in adding a mother-in-law apartment. His accountants told him that Richard Rubens was a good contractor who had a large crew of workers. Dr. Vergara went to see Rubens in May, 2008, at a house Rubens was renovating in Metairie. He observed Rubens directing a crew of about fifteen workers. Rubens introduced Vergara to his foreman, Mr. Irwin, and to his other foreman, who spoke Spanish. Vergara was told that Irwin’s |r,nickname was “Bee,” because Irwin was a hard worker. Rubens then offered to show Vergara some of his other construction projects, including Manning’s house. When Vergara went to Manning’s house the next day, he was impressed with the work. Rubens said he was also living in Manning’s house. They then had a conversation in which Vergara mentioned that he did Karate, and Rubens responded by pulling a small silver gun out of his back pocket and telling Vergara that he carried the gun as a means of protecting himself from trouble with his workers or with the cops. Vergara agreed to let Rubens work on his house, which Rubens began in mid-June using a twenty-person crew. At some point, Vergara became dissatisfied with Rubens, who was showing up late in the afternoon smelling of alcohol. Vergara spoke to Rubens on several occasions about his concerns, including Rubens having lied about being a licensed contractor. Vergara said Rubens became angry and threatening during these confrontations, but Vergara was afraid to outright fire Rubens because he was aware that Rubens carried a gun. Vergara testified that regardless of what was happening between him and Rubens, Irwin kept showing up for work and doing a good job. Vergara stated that on Saturday, June 28, Irwin called him on the phone; Irwin said he was sorry about the problems, that he would talk to Rubens and that he, Irwin, would come to Vergara’s house on Monday and finish the job alone. Vergara testified that he warned Irwin to be careful because Rubens had a gun, but Irwin said he knew how to take care of himself. Irwin did not show up at Vergara’s house on Monday, and on Tuesday Vergara learned that Rubens had shot and killed Irwin.

|7In her deposition Kendra Lee testified that prior to his death, Irwin was working as the “lead man” for Richard Rubens, who was doing construction work on several houses in the general area of S. Prieur Street. There were a lot of other people, most of whom Ms. Lee believed to be illegal aliens, who were also working for Rubens along with Irwin. Irwin had been working for Rubens since January or February of 2008. About three weeks before Irwin died, Ms. Lee had a conversation with him in which he told her he wanted to leave Rubens because Rubens was “going crazy” on him. Irwin told her that Rubens carried guns around, that he had witnessed Rubens being mentally and physically “mean” to his girlfriend, and that one of the homeowners had mentioned that he would rather have Irwin finish his house without Rubens. Ms. Lee testified that she believed on the Sunday he was shot, Irwin had gone to see Rubens in order to quit and ask for his last paycheck.

Under Louisiana law, there is no duty to protect against the acts of a third party unless the defendant has a “special relationship” with the victim. Hackett, supra at 1328. In Hackett, this court affirmed a summary judgment granted on the basis that the mere presence of a child in the defendant’s home, where the child was visiting with her parents, did not give rise to a duty on the part of the defendant to warn the child’s parents or to otherwise protect the child from being sexually molested by the defendant’s husband. Id. In that case, this Court also rejected the plaintiffs’ argument that the situation was analogous to a “premises liability” case, stating:

|sThe Hacketts argued that Mrs. Schmidt should be liable for failing to warn about or prevent the abuse in the same way that she would liable for failing to warn about or prevent an injury caused by the existence of a hole in the floor of her home or the presence of a dog on the premises. However, this situation cannot be likened to a premises liability situation, where the owners of the property may be strictly liable for injuries caused by defects in their property. Mr. Schmidt is not Mrs. Schmidt’s property. As the Hacketts concede, Mrs. Schmidt cannot be held responsible for Mr. Schmidt’s negligent or intentional acts. Neither can she be held responsible for failing to warn about or protect from his activities in a situation where she has no special relationship to the victim.
Id., pp. 1828-29.

In the instant case, we find that there is no evidence of any special relationship between Ray Manning and Robert Irving that would impose a duty upon Manning to protect Irving from being shot and killed by Rubens in Manning’s home. The plaintiffs have not put forth any evidence of circumstances that would give rise to a duty on the part of Manning to warn Irving that Rubens was dangerous; nor have they cited any law that would impose upon Manning either a duty to warn or a duty to perform a background check on Rubens. Moreover, even if a duty to warn existed, Manning’s failure to do so would have been rendered meaningless by the deposition testimony showing that Irving was aware that Rubens carried a gun and had been specifically warned by Dr. Vergara to be careful when dealing with Rubens.

Based on the deposition testimony submitted, we also find no evidence indicating that Manning could be found vicariously liable as Rubens’ employer for Rubens’ killing of Irving. First, the plaintiffs have not submitted evidence sufficient to pose a genuine issue of fact as to whether Rubens was Manning’s employee, rather than an independent contractor. The deposition testimony indicates that Rubens was overseeing construction jobs for other homeowners at the same time he was doing Manning’s house, and that Rubens selected, hired and | ^directed his own crew. Regarding the determination of whether someone is an employee or an independent contractor, this court has stated:

The issue of independent contractor status is a proper subject to be resolved on summary judgment. Likewise, the issue of master-servant relationship is properly a subject for summary judgment. Where a master-servant relationship exists the master is answerable for the tortious acts of his servants. C.C. Art. 176, 2317, 2320. In determining whether such a relationship exists the major consideration is the control or right of control which one party exercises over the other. Savoie v. Fireman [Fireman’s] Fund Ins. Co., 347 So.2d 188 (La.1977); Donovan v. Standard Oil Co., 197 So. 320 (La.App. 2nd Cir.1940). Accordingly, courts may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other party. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (La.1968); Badeaux v. East Jefferson General Hospital, 364 So.2d 1348 (La.App. 4th Cir.1978); Florence v. Clinique Laboratories, Inc., 347 So.2d 1232, 1237 (La.App. 1st Cir.1977).

Butler v. Atwood, 420 So.2d 742, 745 (La.App. 4th Cir.1982) (Emphasis added).

The plaintiffs presented no evidence that indicated that Manning had the right to control the time or activities of Rubens, who was working on several houses for several homeowners during the same time period. Even assuming the plaintiffs had presented evidence sufficient to create a factual issue as to whether Manning was Rubens’ employer, however, to preclude summary judgment they would also have to submit similar evidence indicating that the shooting of Irving was within the course and scope of Rubens’ employment.

In Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, the Louisiana Supreme Court stated:

The law in this area is clear that an employer is liable for a tort committed by his employee if, at the time, the employee was acting within the course and scope of his employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226. The course of employment test refers to time and place. Benoit v. Capitol Manufacturing Co., 617 So.2d 477, 479 (La.1993). The scope of employment test examines the employment-related risk of injury. Id.
⅜: ⅜ ⅜ ⅜ ⅜
1 m“An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours.” Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2d Cir.1982) (citing Bradley v. Humble Oil & Refining Co., 163 So.2d 180 (La.App. 4th Cir.1964)). “Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective.” Id.
More specifically, our LeBrane v. Lewis decision considered the following factors in holding an employer liable for a supervisor’s actions in stabbing his fellow employee:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.
292 So.2d at 218.

Baumeister, 95-2270, pp. 3-4, 673 So.2d at 996-997. In Baumeister, the Court held that a hospital was not vicariously liable for the actions of its employee, a nursing supervisor, who sexually assaulted another employee in the nurses’ lounge while both were working a night shift.

In the instant case, the plaintiffs rely upon the earlier Supreme Court decision, LeBrane v. Lewis, 292 So.2d 216 (La.1974), cited with approval in Baumeister, as providing authority to preclude summary judgment in favor of Manning. In Le-Brane, the plaintiff, a kitchen helper, got into a dispute with his supervisor and refused to leave the premises when ordered to do so. The supervisor, who had the requisite authority, then fired the helper, and on their way out of the building, the supervisor stabbed the helper. Finding that the employer was liable for the injury to the kitchen helper, the Supreme Court noted that the incident occurred “on the employment premises and during the hours of|nemployment,” and that the fight was reasonably incidental to the performance of the supervisor’s duties of firing the disobedient employee and removing him from the business premises. Thus, the Court found that the supervisor was acting at least partially for the benefit of his employer by firing and removing the plaintiff/employee. See LeBrane, 292 So.2d at 217-219; Baumeister, 95-2270, pp. 4-5, 673 So.2d at 997.

We reject the plaintiffs’ argument because we find the facts of the instant case to be completely distinguishable from those of Lebrane. There is no evidence that any work was being done on Manning’s house at the time of the shooting; in fact, it was a Sunday, and therefore did not occur during normal working hours. Moreover, Irving did not go to his workplace to see Rubens; he went to Manning’s house because it was Rubens’ residence at the time. In addition, although one of the plaintiffs, Kendra Lee, testified that she believed Irving was going to see Rubens in order to quit, the testimony of Dr. Vergara suggests that Irving was going to tell Rubens that Vergara wanted Irving alone to finish his job. At the hearing on the motion, the trial court noted that the testimony at best indicates that Irving was going to quit working for Rubens on the Vergara job, which had nothing to do with the defendant, Manning. Confronted by this testimony, the plaintiffs failed to introduce any evidence showing what actually occurred between Irving and Rubens just prior to the shooting. Without such evidence, plaintiffs cannot demonstrate that they will be able to prove that Rubens’ shooting of Irwin was in the course and scope of Rubens’ employment by Manning, even assuming he was Manning’s employee.

We therefore find that the summary judgment dismissing the plaintiffs’ case against Ray Manning was properly granted.

1 ^CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

      . Although the criminal case against Rubens is neither pertinent to this appeal nor a part of this record, the parties aver, and the hearing transcript reflects, that Rubens was tried and convicted in criminal district court for murdering Irwin, for which Rubens is currently incarcerated.


author: JAMES F. McKAY III, Judge.

text:
    800 CANAL STREET LIMITED PARTNERSHIP v. STORYVILLE DISTRICT NEW ORLEANS, L.L.C., Bourbon Street Management, LLC, Jazz Parlor, LLC, and Zydeque, L.L.C. Storyville District New Orleans, LLC v. 800 Canal Street Limited Partnership. 800 Canal Street Limited Partnership v. Storyville District New Orleans, LLC, Bourbon Street Management, LLC, Jazz Parlor, LLC, and Zydeque, LLC. 800 Canal Street Limited Partnership v. Storyville District New Orleans, L.L.C.; Jazz Parlor, LLC; Bourbon Street Management, LLC; and Zydeque, L.L.C. 800 Canal Street Limited Partnership v. Storyville District New Orleans, LLC, Bourbon Street Management, LLC, Jazz Parlor, LLC, and Zydeque, L.L.C. Storyville District New Orleans, LLC v. 800 Canal Street Limited Partnership. Jazz Parlor, LLC v. Canal Street Development Corporation and Cynthia Connick in her capacity as Executive Director of the Canal Street Development Corporation.
    Nos. 2010-CA-0942, 2010-CA-0943, 2010-CA-0944, 2010-CA-0979, 2010-CA-0980, 2010-CA-0981, 2010-CA-0982.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 2011.

      James M. Garner, Ryan 0. Luminais, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for 800 Canal Street Limited Partnership.
    Timothy R. Richardson, Usry Weeks & Matthews, APLC, Leonard L. Levenson, Christian W. Helmke, Colleen B. Gannon, New Orleans, LA, for Storyville District New Orleans, L.L.C.; Jazz Parlor, LLC; Bourbon Street Management, LLC; and Zydeque, L.L.C.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

|, This case involves several consolidated appeals. At the heart of case is a dispute between a sub-lessor and a sub-lessee. The principal action giving rise to all of the appeals is an eviction proceeding. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Sometime around 1860, the building which housed the D.H. Holmes Department Store located at 800 Canal Street in New Orleans was built. In the 1980’s Dillard’s Department Store acquired D.H. Holmes. Later that decade, Dillard’s donated the building to the City of New Orleans. The City formed a public benefit company, Canal Street Development Corporation, to accept the donation on behalf of the City.

In 1989, Canal Street Development Corporation leased its interest in the building to Historic Restoration, Inc. (HRI). HRI later assigned its interest in the property to 800 Canal Street Limited Partnership, which it controlled as a general partner. The greater part of the property was redeveloped as a hotel. On January 1226, 1998, 800 Canal Street sub-leased another portion of the property to Storyville New Orleans District, LLC, which was owned and operated by Arthur Q. Davis and Quint Davis. The sub-lease required that the leased property “shall only be used” as an entertainment lounge and restaurant of “quality and character similar to or consistent with that of the Hotel.” The sublease also prohibited any form of “adult oriented entertainment”, “striptease”, or “burlesque-style” entertainment. Story-ville then operated a jazz and entertainment lounge at the leased property until near the end of 2002.

On February 2, 2002, Storyville, with the consent of 800 Canal Street, sub-leased the premises to Bourbon Street Management, LLC. On that same date, Bourbon Street Management sub-leased spaces F and G of the premises to Jazz Parlor, LLC. Space H was sub-leased to Howl at the Moon New Orleans, LLC. Bourbon Street Management, Jazz Parlor, and Howl at the Moon New Orleans were all owned, operated, and managed by Jacques Chrysoc-hoos or entities connected to him. Howl at the Moon continued to operate at the location until shortly after Hurricane Katrina.

After the hurricane, Howl at the Moon was converted to The Bourbon Cowboy Bar and Saloon. The Bourbon Cowboy was a western-themed (one might say Wild West) venue with a mechanical bull. Thereafter, a somewhat different atmosphere prevailed on the leased premises. There were instances where topless | ¡¡female patrons rode the mechanical bull and “shot-girls” employed by the bar straddled male patrons in order to entice them to buy shots of liquor.

In September of 2009, 800 Canal Street and HRI tried unsuccessfully to re-acquire the leasehold from Storyville. 800 Canal Street then attempted to evict Storyville and the sub-tenants. On October 7, 2009, 800 Canal Street sent a first notice of default to Storyville, alleging that women had exposed their breasts in the leased premises while riding the mechanical bull. 800 Canal Street contended that: such conduct was violative of the lease; was not of the same “character and quality” of the adjoining hotel; and may be “burlesque” activity that may have been violative of state and local laws. 800 Canal Street also contended that the bull itself was a violation of the lease.

On December 8, 2009, 800 Canal Street filed a petition for eviction, alleging that the conduct in the leased premises was violative of the lease between 800 Canal Street and Storyville. On the next day, Storyville filed a petition seeking declaratory and injunctive relief in an effort to protect its interests and to stop 800 Canal Street’s eviction action. A trial on the eviction was held on January 29, 2010 and February 1, 2010. In open court, on February 25, 2010, the trial court issued a ruling denying 800 Canal Street’s petition for eviction. On February 26, 2010, the trial court signed an order dismissing 800 Canal Street’s eviction suit but ordered the removal of the mechanical bull. The court found that the bull constituted a violation of the Comprehensive Zoning Ordinance of the City of New |4Orleans and a violation of the sub-lease agreement between 800 Canal Street and Storyville. The trial court then ruled that Storyville had thirty (30) days from February 25, 2010 to cure the violation according to the sub-lease agreement. The court also dismissed Sto-ryville’s petition for permanent injunction, preliminary injunction, temporary restraining order and declaratory judgment which was pending based upon an exception of lis pendens previously filed by 800 Canal Street. In compliance with the trial court’s order, the mechanical bull was removed. In March 2010, both parties filed cross motions for attorney fees based upon the lease provisions which provide attorney fees to the successful litigant. The trial court denied both motions for attorney fees.

Both 800 Canal Street and Storyville have appealed from the trial court’s judgment in the eviction proceedings. 800 Canal Street has also answered Storyville’s appeal. Both 800 Canal Street and Story-ville also appeal the trial court’s denial of their respective motions for attorney fees. All of these appeals have been consolidated.

DISCUSSION

On appeal, 800 Canal Street raises the following assignments of error: 1) the district court erred by finding that Storyville did not breach its sub-lease with 800 Canal Street by ordering that the leased property was “the same quality of the Hotel” but “did not rise to the level of Luxury” of the hotel; 2) the district court erred by finding that the indecent and lewd activity encouraged by Storyville did | Bnot violate Section 2.01(C) of the sub-lease, which restricted “Burlesque-type,” “striptease,” and “adult entertainment” acts, based on the district court’s erroneous finding the intent of such provision was to prevent the operation of a strip club; and 3) the district court erred by not awarding 800 Canal Street with attorneys’ fees and expenses under the sub-lease even though 800 Canal Street established a breach by Storyville, and the district court expressly recognized the breach in its judgment. Storyville raises the following assignments of error: 1) the trial court committed legal error in ordering that the mechanical bull in the leased premises had to be removed; 2) the trial court committed legal error in denying Storyville and the sub-tenants attorney fees; and 3) the trial court committed legal error in granting 800 Canal Street’s exception of Us pendens.

Quality of the Property

In its oral reasons for judgment, the trial court found that Storyville did not breach its sub-lease with 800 Canal Street because the leased property was of the “same quality of the hotel” but “did not rise to the level of ‘luxury’ of the hotel.” The sub-lease between the parties relative to the premises in question stated that it should be of “character and quality similar to and consistent with the hotel” and that the immediately previously quoted language would be “hereinafter defined.” However, it was not defined. This Court has held that “dissolution of a lease is not favored in our law and ambiguity in the lease must be construed in the lessee’s favor.” System Fuels, Inc. v. International Tank Terminals, Ltd., 435 So.2d 470 (La.App. 4 Cir.1983).

|fiIn the instant case, in reaching its factual conclusion, the trial court viewed photographic evidence and visited both the hotel and the Bourbon Cowboy. The trial court’s oral reasons for judgment concerning its visits to the site were quite detailed. Accordingly, we find nothing manifestly erroneous in the trial court’s findings regarding the quality of the premises nor with its ruling regarding the breach on those grounds.

Adult Entertainment

In its second assignment of error, 800 Canal Street contends that the district court erred by finding that the indecent and lewd activity encouraged by Storyville in the leased premises did not violate Section 2.01(c) of the sub-lease which restricted “burlesque-type,” “striptease,” and “adult entertainment” acts, based on the district court’s finding that such provision was to prevent the operation of a strip club. Section 2.01(c) reads as follows:

The following uses shall be prohibited in the leased premises at all times: burlesque-type, strip tease, or adult-oriented entertainment, the sale of merchandise bearing an obscene or a sexually suggestive message or artwork, a t-shirt shop, souvenir shop or adult establishment (all as defined in the Comprehensive Zoning ordinance of the City of New Orleans) and fast food restaurant; provided however, tenant may offer for sale in the leased premises memorabilia related to tenant’s operations, including clothing items which are sold at similar entertainment clubs. Nothing contained in this paragraph should be construed so as to expand these uses permitted in the leased premises which shall be limited to those set forth in Section 1.01(1).

When a court makes an interpretation based upon facts that are observed at the trial, that determination is subject to manifest error review. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 2009-1433 (La.App. 4 Cir. 5/26/10), 40 So.3d 394. Appellate courts may only disturb a trial court’s findings |7of fact that are manifestly erroneous or clearly wrong. Bowen v. Smith, 2003-0432, 2003-1562 (La.App. 4 Cir. 9/8/04), 885 So.2d 1. In the instant case, the court viewed video surveillance taken by 800 Canal Street, listened to the testimony of the witnesses regarding the activity inside of the premises, observed photographs of policy signage that Storyville placed in the leased premises, and personally visited both the hotel and the Bourbon Cowboy. Accordingly, when the trial court rendered a factual determination that Storyville and its sub-tenants did not violate Section 2.01(c) based upon a reasonable interpretation and the actual evidence viewed at trial, it cannot be said that the court’s ruling was clearly wrong or manifestly erroneous. Even if Storyville had been in violation of Section 2.01(c), Section 11.01 of the lease between the parties provides the tenant with a thirty day period to cure any alleged default. The trial court found that if Storyville had engaged in activity viola-tive of Section 2.01(c), it had been cured.

800 Canal Street’s Attorneys’ Fees

In its third assignment of error, 800 Canal Street asserts that the trial court erred by not awarding it attorney fees and expenses under the sub-lease even though it established a breach by Storyville which was recognized by the trial court. Section 11.05(a) of the lease states:

In case suit shall be brought, or an attorney shall be employed, for recovery or possession of the Leased Premises, for the recovery of Rent or for the enforcement of, or because of the breach of, any covenant herein contained on the part of Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all costs and expenses incurred, including reasonable attorney fees.

800 Canal Street was unsuccessful in its attempts to evict Storyville and the subtenants. However, 800 Canal Street contends that even though it was not | ¡^successful in having the defendants evicted, it is entitled to attorney fees because the trial court provided Storyville and the subtenants had 30 days to remove the mechanical bull. The problem with 800 Canal Street’s argument is that it never provided Storyville or the sub-tenants with notice and opportunity to cure any alleged zoning violation as required by the lease. This Court has held that no breach occurs when action is remedied within a curative period. See Sands v. McConnell, 426 So.2d 218 (La.App. 4 Cir.1982). In the instant case, the mechanical bull was removed within 30 days of the trial court’s judgment. Therefore, any breach was cured. Accordingly, we find no error in the trial court’s failure to award attorney fees and expenses to 800 Canal Street.

Mechanical Bull

In its first assignment of error, Storyville asserts that the trial court committed legal error in ordering that the mechanical bull in the leased premises had to be removed. Storyville reasons that this ruling was based on the February 9, 2010 correspondence and post-trial discovery deposition testimony of Paul May (the Director of the Office of Safety and Permits), which are both hearsay. Although a trial court has original jurisdiction to review determinations made by the Board of Zoning Adjustments, allegations of zoning violations may not be considered by a trial court as a matter of original jurisdiction. See Curran v. Board of Zoning Adjustments Through Mason, 580 So.2d 417, 418 (La.App. 4 Cir.1991), writ denied, 584 So.2d 679 (La.1991) (citing Gertler v. City of New Orleans, 346 So.2d 228, 233 (La.App. 4 Cir.1977)); La. R.S. 33:4727. In the instant case, no formal zoning proceedings occurred. Accordingly, the trial court erred in finding that the mechanical bull constituted a zoning violation and in ordering the removal of the mechanical bull from the premises.

| ^Storyville Attorneys Fees

In its second assignment of error, Storyville asserts that it and the sub-tenants should have been awarded attorney fees given that 800 Canal Street was unsuccessful in its questionably timed attempts to evict Storyville and the subtenants. Section 11.05(B) of the sub-lease provides:

In case suit shall be brought, or an attorney shall be employed, for the enforcement of, or because of the breach of, any covenant herein contained on the part of the Landlord to be kept or performed, and a breach shall be established, Landlord shall pay to Tenant all costs and expenses incurred, including reasonable attorneys’ fees.

The district court did not enter any judgment against 800 Canal Street in its judgment on eviction. Instead, the district court did not evict Storyville, but ordered that Storyville had thirty days to remove the mechanical bull from the leased premises. Although Storyville asserted an affirmative claim against 800 Canal Street for disturbance of its peaceful possession in the suit it filed, that suit was dismissed on the grounds of lis pendens. Accordingly, there was no adverse judgment against 800 Canal Street for disturbance of Story-ville’s peaceful possession. Therefore, we find no error in the trial court’s refusal to award attorney fees to Storyville and the sub-tenants.

Lis Pendens

In its final assignment of error, Storyville contends that the trial court committed legal error in granting 800 Canal Street’s exception of lis pendens. Louisiana Code of Civil Procedure Article 531 provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

| ipLa. C.C.P. art. 5B1.

In the instant case, we have two suits pending in a Louisiana court; the suits arise from the same transaction or occurrence; and the suits are between the same parties in their same capacities. Accordingly, the trial court did not err in granting 800 Canal Street’s exception of lis pendens.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court with the exception of the trial court’s ordering the removal of the mechanical bull from the premises, which we reverse.

AFFIRMED IN PART AND REVERSED IN PART

      . The establishment appears to have been a version of Urban Cowboy meets Blazing Saddles on Bourbon Street.

      . Hereafter, we will use Storyville to refer to Storyville District New Orleans, L.L.C. and the sub-tenants collectively.

      . The majority of the litigation in this case was presided over and ruled on by "Pro Tem Judge” James Williams. The cross motions for attorney fees were the only matters before and ruled on by the Honorable Paulette Irons.


author: WALTER J. ROTHSCHILD, Judge.

text:
    In re SUCCESSION OF George J. ACKEL, Jr.
    No. 11-CA-102.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.
    Matthew L. Pepper, The Woodlands, TX, for Plaintiff/Appellee.
    Jeannie A. Morris, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

12This is an appeal by Jerilyn Reed Ack-el from a declaratory judgment rendered in this ancillary succession proceeding involving the estate of George J. Ackel, Jr., decedent. For the following reasons we affirm that judgment.

The decedent lived most of his life in Louisiana, but at the time of his death on November 11, 2009, he was a resident of Texas. It appears that his succession was opened in Texas, but because he owned property in Louisiana, the present ancillary proceeding was opened in this state as well. The parties to this Louisiana proceeding are Jerilyn Ackel, decedent’s surviving spouse, and four of decedent’s children from prior marriages, namely George J. Ackel, III, Adam Ackel, Alex Ackel and Alana Ackel Tallo. During the course of this action, the four children moved for a declaratory judgment establishing the rights of the parties to succession property subject to Louisiana law.

The trial court entered a judgment holding as follows:

1. The decedent and Jerilyn Ackel had entered into a valid pre-nuptial agreement upon their marriage in Louisiana in which they renounced any community of acquets and gains during that marriage, and consequently all Louisiana property of the estate was the separate property of decedent;
|o2. The decedent had made a will but destroyed it prior to his death, no other will was produced for probate, and therefore he died intestate;
3. The four children of decedent’s prior marriages were the sole heirs of decedent as to the Louisiana property; and
4. Jerilyn Ackel’s right to seek the marital portion in the future was preserved.

Jerilyn Ackel now appeals that judgment. The substance of her argument here is that it was error to hold that the four children of the prior marriages are the sole heirs of the estate for two reasons. First, she asserts that the prenuptial agreement would not be valid in Texas because of vices of form and specificity. Second, she contends that because a portion of the estate consists of ownership interests in six Louisiana LLCs, all of which are considered movables under Texas law, ownership of those entities must be determined under Texas law. She concludes that she would be deemed an heir under Texas law, particularly in regard to the LLC interests, and therefore that it was error to exclude her from these rights.

Whatever the merits of these arguments, we find that they are more appropriately raised in the Texas probate court. The trial court judgment here recites that the pre-nuptial agreement is valid under Louisiana law, and thus that all of decedent’s property subject to that law is separate property. It further determines that the decedent died intestate, and that his four children are the sole heirs of whatever portion of his estate is subject to Louisiana law. It does not, however, identify any specific property to which it applies. Because decedent was a Texas resident at the time of his death, it is for the Texas courts to determine how particular types of property are to be classified, by which laws they are to be controlled, and by whom they are to be inherited. We assume that those courts |4will, where appropriate, give full faith and credit to our laws, including the judgment at issue here, in making those determinations.

We finally note that appellant does not argue that the judgment is erroneous either factually or legally under Louisiana law. Her argument instead is that Texas law, to the extent it is applicable, would produce a different result. That issue should be raised in the Texas courts, rather than here.

For the foregoing reasons, the judgment of the district court is hereby affirmed.

AFFIRMED


text:
    STATE of Louisiana v. Sabrina DOWELL.
    No. 2011-KA-0171.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for the State Of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Sabrina Do-well.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   liThe defendant was charged with the distribution of marijuana in violation of La. R.S. 40:966(A), and with distribution of cocaine in violation of La. R.S. 40:967(A). The defendant pleaded not guilty, but was found guilty after a bench trial.

The defendant timely filed motions for appeal after sentencing and multiple billing. The defendant’s convictions and multiple bill status were affirmed by this Court, and the matter was remanded for the trial court to designate the conviction for which the sentence was enhanced in the original habitual offender sentencing and to impose an enhanced sentence for the other conviction. The defendant was resentenced and, again, timely appealed. Because we find that the trial court erred in its sentencing of the defendant, we vacate both thirty-year habitual offender sentences and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

The dispositive issues of this appeal are procedural. Therefore, the factual background is immaterial.

PROCEDURAL HISTORY

Sabrina Dowell was charged by bill of information with distribution of cocaine (“Count One”), a violation of La. R.S. 40:967(A), and distribution of | ^marijuana (“Count Two”), a violation of La. R.S. dO^G/A). Ms. Dowell pleaded not guilty at her arraignment. The trial court denied Ms. Dowell’s motion to suppress the evidence. Ms. Dowell was tried by a judge and found guilty as charged on both counts. Ms. Dowell was sentenced to five years at hard labor as to Count One, and five years at hard labor as to Count Two, both counts to run concurrently. The trial court adjudicated Ms. Dowell a fourth-felony habitual offender, as to both convictions, and sentenced her to twenty years at hard labor as a fourth-felony habitual offender. Ms. Dowell filed a motion for appeal, which was granted.

This Court affirmed Ms. Dowell’s convictions. State v. Dowell, unpub., 09-0260 (La.App. 4 Cir. 9/9/09), 17 So.3d 523. However, as this Court noted in its decision, the trial court failed to sentence Ms. Dowell as a habitual offender on both counts as charged in the habitual offender bill of information, imposing only one enhanced sentence, and failing to designate which conviction the enhanced sentence was imposed upon. This Court also noted that the trial court failed to vacate the original sentence before sentencing Ms. Dowell as a habitual offender, but that this error did not affect Ms. Dowell’s substantive rights. Therefore, this Court concluded that no error required correcting. Accordingly, this Court affirmed the one enhanced sentence, and remanded the case to the trial court to:

|s(l) designate the conviction for which the sentence was enhanced in the original habitual offender proceeding; and (2) impose an enhanced sentence for the other conviction.

Dowell, unpub., 09-0260, p. 22, 17 So.3d 523.

Ms. Dowell filed a pro se writ application alleging that the trial court failed to comply with this Court’s order on remand, seeking, inter alia, to have this Court vacate the habitual offender adjudication. In response thereto, this Court ordered the trial court to comply within sixty (60) days “with this court’s order to designate which sentence was enhanced in the original habitual offender proceeding and to impose an enhanced sentence for the other conviction.” State v. Dowell, unpub., 10-0604, p. 1 (La.App. 4 Cir. 5/19/10).

Ms. Dowell then filed a pro se writ application complaining that the trial court had not complied with this Court’s order on remand from her appeal or this Court’s May 19, 2010 order from Writ No. 2010-K-0604. Subsequently, this Court issued an order directing the trial court to furnish proof that the “resentencing” was scheduled. State v. Dowell, unpub., 10-1069 (La.App. 4 Cir. 8/2/10).

The trial court vacated “all previous sentences imposed,” and resentenced Ms. Do-well as a fourth-felony habitual offender to thirty years at hard labor on Count One and thirty years at hard labor on Count Two, both sentences to run concurrently. The trial court also denied Ms. Dowell’s motion for a downward departure from the minimum sentence under the Habitual Offender Law, denied Ms. Dowell’s motion to reconsider the sentences, and granted Ms. Dowell’s motion for appeal. The trial court forwarded this Court a per curiam with | ¿attachments as proof that it complied with this Court’s order. Consequently, this Court denied Ms. Dowell’s writ application as moot. State v. Dowell, unpub., 10-1069 (La.App. 4 Cir. 9/23/10).

ERROR ON REMAND

Ms. Dowell asserts that the trial court erred in not following the remand order set forth by this Court in its disposition of Ms. Dowell’s original appeal, in which this Court affirmed both of Ms. Dowell’s convictions and the single enhanced sentence of twenty-years at hard labor as a fourth-felony habitual offender. Given that the trial court imposed only one habitual offender sentence, when the habitual offender bill of information charged that Ms. Dowell was a fourth-felony habitual offender as to both instant convictions (which was permissible), this Court remanded the case and expressly directed the trial court to: “(1) designate the conviction for which the sentence was enhanced in the original habitual offender proceeding; and (2) impose an enhanced sentence for the other conviction.” Dowell, unpub., 09-0260, p. 22, 17 So.3d 523.

On remand, the trial court vacated the single enhanced habitual offender sentence that this Court affirmed, and sentenced Ms. Dowell as a habitual offender on both convictions. In vacating the one enhanced sentence that this Court affirmed, the trial court stated: “[Pjursuant to the order directed to this Court by the Fourth Circuit Court of appeal I will vacate all previous sentences imposed in this case.... ” The trial court erroneously vacated the habitual offender sentence |fithis Court affirmed on appeal instead of following this Court’s order on remand to designate which con-vietion the habitual offender sentence was imposed upon.

The State argues that the trial court had the authority to “correct” the twenty-year habitual offender sentence affirmed by this Court on appeal because it was illegally lenient, citing La.C.Cr.P. art. 882(A)(“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”) The State also cites State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, for the proposition that “at any time” as used in La.C.Cr.P. art. 882(A) “means just that.”

In Johnson, the Louisiana Supreme Court granted the State’s application for writ of certiorari and vacated a sentence of thirty-months at hard labor imposed on the defendant as a fourth-felony habitual offender, when the statutory minimum sentence under the Habitual Offender Law was twenty-years at hard labor. Johnson, 97-1906, p. 11, 709 So.2d at 678. The court vacated the defendant’s sentence and remanded the case “with instructions to obtain the defendant’s presence in court and sentence him for a determinate term of incarceration of no less than the minimum required under the Habitual Offender Law.” Id. In a footnote, the Court noted that, although the defendant was released from his thirty-month sentence, it could, under the authority of La.C.Cr.P. art. 882(A), providing that an illegal sentence may be corrected “at any time,” address the legality of the defendant’s sentence. Johnson, 97-1906, p. 1, fn. 2, 709 So.2d at 673, fn. 2.

At no time did the trial court in the instant case find that the one twenty-year habitual offender sentence imposed on Ms. Dowell was illegal. In the instant case, the State did not seek review in this Court of an alleged illegal sentence, either by | (-.application for supervisory review or by appeal. Nor did the State raise the issue of an illegal sentence at any time in the trial court. The State did note at the sentencing hearing on remand from this Court’s disposition of Ms. Dowell’s appeal that it was “suggesting” that the minimum sentence as a fourth-felony habitual was thirty years. However, that statement followed a statement by the State, as to this Court’s appeal disposition and remand order, that it believed the trial court was to designate the conviction for which the one sentence was enhanced “and impose [sic] enhancement for the other conviction.” Thus, the State did not argue that the sentence already enhanced — which sentence this Court had affirmed in its disposition of Ms. Dowell’s appeal — was illegal, or that it should be modified in any way.

In State v. Perkins, 08-0078 (La.App. 4 Cir. 6/25/08), 988 So.2d 793, the trial court sentenced the defendant on January 25, 2002, as a fourth-felony habitual offender to the minimum sentence of twenty years at hard labor. The defendant timely filed a motion to reconsider sentence, seeking a downward departure from the minimum sentence. Perkins, 08-0078, p. 3, 988 So.2d at 795. The motion to reconsider was not heard until November 6, 2002, at which time the trial court denied it. Id. The defendant appealed to this Court in 2003, but the appeal was dismissed on the defendant’s motion. Perkins, 08-0078, 988 So.2d 793. At some unspecified date, the defendant filed a motion to correct an illegal sentence, which the trial court denied. Perkins, 08-0078, p. 5, 988 So.2d at 796. Subsequently, on March 2, 2007, the defendant filed a motion to reconsider sentence, which the trial court granted, vacating the original twenty-year sentence and resen-tencing the defendant to ten years at hard labor. Perkins, 08-0078, pp. 7-8, 988 So.2d at 797-98. The State appealed, and this Court reversed. Perkins, 08-0078, p. 16, 988 So.2d at 808. In reaching its holding, this Court noted that, while La. C.Cr.P. art. 882(A) expressly stated that an illegal sentence may be corrected at any time by the court that imposed the sentence, La.C.Cr.P. art. 882 could not be applied in the case to affirm the trial court’s resentencing of the defendant because at no time did the trial court find that the original twenty-year sentence imposed in 2002 was illegal. Perkins, 08-0078, p. 12, 988 So.2d at 800. The trial court in Perkins, when granting the March 2, 2007 motion for reconsideration, simply found the original 2002 sentence was unconstitutionally excessive pursuant to State v. Dorthey, 623 So.2d 1276 (La.1993). Id.

Similarly, in the instant case, for the same reason there is no merit to the State’s argument that the trial court’s vacating of the one sentence for which Ms. Dowell was sentenced to twenty-years as a fourth-felony habitual offender, and its re-sentencing of her to thirty years on that count, was merely the trial court’s exercise of its authority under La.C.Cr.P. art. 882(A) to correct an illegal sentence. Just as in Perkins, supra, the trial court in the instant case never found the original habitual offender sentence to be illegal, either explicitly or implicitly.

Accordingly, the trial court erred in vacating the habitual offender sentence it had already imposed. Thus, at least one of the thirty-year habitual offender sentences the trial court imposed on remand on August 18, 2010, must be vacated and the original twenty-year habitual offender sentence imposed on February 13, 2009, reinstated. However, the trial court failed to follow this Court’s instructions on remand from this Court’s disposition of Ms. Dowell’s first appeal to designate the conviction for which the sentence was enhanced in the original habitual offender proceeding. The record before this Court contains nothing from which this Court can identify which conviction was originally enhanced. Therefore, this |sCourt is unable to vacate only one of the thirty-year sentences and reinstate the twenty-year sentence the trial court vacated on remand. Accordingly, this Court cannot determine which conviction was the one the trial court originally failed to enhance, and thus cannot determine which thirty-year sentence should be reviewed for excessiveness, as raised by Ms. Dowell in her instant appeal.

Considering that this Court thoroughly reviewed the entire record in reviewing Ms. Dowell’s original appeal and could not ascertain which of the two convictions for which the sentence was enhanced in the original habitual offender proceeding, and further considering that the trial court has, at most, only that same record to consider, it is apparent that the trial court will be unable to ascertain which of the two convictions listed in the habitual offender bill of information (which bill of information the record in the instant appeal does not contain) was the one for which Ms. Dowell received the original twenty-year habitual offender sentence. Therefore, we must vacate both thirty-year habitual offender sentences and remand.

Accordingly, we vacate both thirty-year habitual offender sentences and remand. The trial court is instructed to: reinstate its original habitual offender sentence of twenty-years at hard labor for one of the convictions in the habitual offender bill of information and impose a habitual offender sentence for the other conviction listed in the habitual offender bill of information.

DECREE

For the foregoing reasons, we vacate both thirty-year habitual offender sentences imposed on Ms. Dowell and remand to the trial court for further proceedings consistent with this opinion.

SENTENCES VACATED; REMANDED

      . Ms. Dowell was jointly indicted with Ronald Joseph, who was charged with possession of cocaine and second offense possession of marijuana. The two were jointly tried, and Mr. Joseph was acquitted on both counts.

      . The record in the instant case does not contain a copy of the habitual offender bill of information filed by the State showing that the State charged Ms. Dowell as a habitual offender as to both of the instant convictions. However, Ms. Dowell does not dispute that fact. A docket master entry also reflects that Ms. Dowell was charged only as a third-felony habitual offender. However, the minute entry from the date of the habitual offender hearing reflects that the State introduced evidence of three prior convictions. A minute entry states that the trial court found Ms. Dowell a “quadruple" offender, and the record in the instant case contains documents evidencing three prior convictions in the cases listed in the February 10, 2009 minute entry (with one case apparently listed incorrectly in the minute entry as # 496-264, that case number obviously being # 446-264, the case contained in the record).

      . See Dowell, unpub., 09-0260, pp. 5-6, 17 So.3d 523, citing State v. Shaw, 06-2467, p. 20 (La.11/27/07), 969 So.2d 1233, 1245 (sentences from multiple convictions obtained on the same date may be enhanced under the Habitual Offender Law, La. R.S. 15:529.1); State v. Harvey, 08-0217, p. 7, fn. 3 (La.App. 4 Cir. 5/13/09), 12 So.3d 496, 501, fn. 3 (noting that defendant convicted on same date of two drug offenses could be sentenced as a habitual offender on both convictions, citing Shaw, supra.).

      . In Johnson, the State sought review of the alleged illegally lenient sentence. 97-1906, 709 So.2d at 672.


author: MICHAEL E. KIRBY, Judge.

text:
    SUCCESSION OF Letitia Nell BELLA. Estate of Letitia Nell Bella v. Kathleen Tassara.
    Nos. 2011-CA-0092, 2011-CA-0093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 2011.
    Rehearing Denied Nov. 9, 2011.

      Richard J. Brazan, Jr., Baton Rouge, LA, for Appellant.
    Lawrence J. Centola III, Martzell & Bickford, Ryan M. Scafidel, Scafidel Law Firm, L.L.C., New Orleans, LA, for Appel-lee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

| jThis appeal arises from the Succession of Letitia Nell Bella (“Ms. Bella”). Sam M. Bella, Jr. (“Sam Bella”), Ms. Bella’s brother, sole surviving heir and independent executor of her estate, filed a petition for damages and writ of sequestration on behalf of the estate against Kathleen Tas-sara (“Ms. Tassara”), Ms. Bella’s caregiver, seeking the return of funds that were on deposit in joint accounts in the names of Ms. Bella and Ms. Tassara at JP Morgan Chase Bank, N.A. (“Chase Bank”), at the time of Ms. Bella’s death. Ms. Tassara filed an answer and reconventional demand, alleging that the funds are hers based on an oral agreement the women made when they combined their separate funds to open the joint accounts in August 2006. Alternatively, Ms. Tassara alleges that, in the event the court determines she does not own the funds, the estate owes her $134,200.00 for 16,775 hours of uncompensated services rendered to Ms. Bella from the date of Hurricane Katrina to her death; approximately $10,000.00 for | ¿funeral and burial expenses; and damages and attorney fees for the wrongful issuance of the writ of sequestration.

Following a trial, the trial court rendered a judgment on August 12, 2010, ordering that $50,000.00 of the funds be returned to Ms. Bella’s estate for disbursement to Sam Bella, and that the stipulated sum of $30,000.00 (Ms. Tassara’s original contribution) and $20,000.00 as a remunerative donation be placed in the possession of Ms. Tassara. Ms. Tassara appeals. For the reasons that follow, we affirm.

Factual Background

Ms. Bella was born with cerebral palsy,, and required assisted-care twenty-four (24) hours a day, seven (7) days a week. Although physically incapacitated, she had no mental deficiency. Ms. Bella resided with her mother, Lorraine Bella, in their family home at 61 Thornton Drive in Chal-mette. After Lorraine Bella died in 2002, Sam Bella renounced his inherited interest in the Thornton Drive home in favor of his sister.

Following Lorraine Bella’s death, Ms. Tassara, a neighbor, became a fulltime caregiver to Ms. Bella and was compensated for her services. In August 2005, as Hurricane Katrina approached, Ms. Bella evacuated to Lafayette with Ms. Tassara. Shortly thereafter, they moved to LaPlace, Louisiana, where they lived with Ms. Tas-sara’s daughter and son-in-law for ten months.

|aIn June 2006, Ms. Bella and Ms. Tas-sara agreed to rent a house and live together in Reserve, Louisiana, near Ms. Tassara’s family. In August 2006, they agreed to open joint savings and checking accounts and a certificate of deposit in both their names at Chase Bank. Ms. Bella deposited $10,000.00 into the checking account, $30,000.00 into the savings account and $60,000.00 into the certificate of deposit while Ms. Tassara deposited $30,000.00 of her own funds into the certificate of deposit. The women agreed that they would pay their rent and other living expenses out of those joint accounts. They further agreed that Ms. Tassara would care for Ms. Bella without compensation to preserve the funds. Finally, they agreed that upon the death of either of them, the funds remaining in the joint accounts would go to the survivor.

Ms. Bella died on December 8, 2007. Ms. Tassara made the final arrangements, paying for the funeral and burial, including the cost of a new crypt, with funds from the Chase Bank joint accounts. After the funeral, Ms. Tassara transferred the remaining funds at Chase Bank into a certificate of deposit in her daughters’ names at Iberia Bank.

14At her death, Ms. Bella left a valid statutory will that bequeathed all of her property to Sam Bella.

Discussion

Assignments of error 1,2, 3 and 5

Collectively, in the first, second, third and fifth assignments, Ms. Tassara contends the trial court erred in ordering that $50,000.00 of the funds from the joint accounts be returned to Ms. Bella’s estate for distribution to Sam Bella. She argues that, given the value of her services, the trial court erred in finding the agreement between the women was not an onerous donation that would have entitled her to the funds remaining in the joint accounts at the time of Ms. Bella’s death. Ms. Tassara claims that the value of her services from the time the women evacuated until Ms. Bella died far exceeded the total funds in the joint accounts on the date of her death. Thus, regardless of whether the agreement is a remunerative donation, as the trial court found, or an onerous one, Ms. Tassara argues she is entitled to either the remaining funds or additional compensation from the estate for her unpaid services.

“In Louisiana, funds deposited into a joint bank account remain the property of its original owner and his or her estate at death, absent an authenticate act of donation.” Succession of Elie, 2010-525, p. 3 (La.App. 3 Cir. 11/3/10), 50 So.3d 262, 265 (citation omitted). The right of withdrawal, or having one’s name listed on the account, is not tantamount to ownership. Id. at 4, 50 So.3d at 265; See also Cantrell v. Pat O’Brien’s Bar, Inc., 97-0545 (La.App. 4 Cir. 1/7/98), 705 So.2d 1205, 1207.

“A donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it.” La. C.C. art. 1468. “A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law.” La. C.C. art. 1541. Regarding onerous donations, La. C.C. art. 1526 provides:

The rules peculiar to donations inter vivos do not apply to a donation that is burdened with an obligation imposed on the donee that results in a material advantage to the donor, unless at the time of the donation the cost of performing the obligation is less than two-thirds of the value of the thing donated.

Regarding remunerative donations, La. C.C. art. 1527 provides:

The rules peculiar to donations inter vivos do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless at the time of the donation the value of the services is less than two-thirds of the value of the thing donated.

In this case, the trial court found that the depositing of the funds into the joint accounts did not qualify as an onerous donation because Ms. Bella could have accessed the funds at any time prior to her death; thus she failed to divest herself irrevocably of any right she had to the funds contained in the accounts. The court concluded, however, that the same analysis did not apply in the case of a remunerative donation. The court found that at the time the women opened the joint accounts in August 2006, Ms. Tassara had already provided substantial care | ^services for which she had not been compensated, and Ms. Bella intended to compensate Ms. Tassara by placing the funds in her name. In well-written reasons for judgment, the trial court stated its findings, in pertinent part, as follows:

The placing of the funds into [Ms. Tassara’s] name can qualify as a remunerative donation. The inquiry then becomes the determination of the value of the services which are claimed to have been performed. The value of the services are [sic] to be determined at the date of the donation. However, where the services involved are for the care of a living donor, the courts have assessed the value of services after the fact. Thus, the duration, extent and type of actually performed services are used to determine their value. Averette v. Jordan, 457 So.2d 691 (La.App. 2 Cir.1984). In the case before the Court, the value of the donation is not disputed. Ms. Bella placed a combined $100,000.00 into the joint accounts and/or the certificate of deposit. At the time of this deposit, there was no itemization of value of any care provided by Ms. Tassara for which she had not been compensated. At trial, Ms. Tassara produced an itemization at Exhibit D-2 of the valuation for the case provided by Ms. Tassara. A review of the document sets forth that it covers a claim for continuous payment on a twenty-four hour [basis] from Hurricane Katrina until Ms. Bella’s death. The only period for which payment is not sought is where the State paid for care through Angel’s Touch to either Ms. Tassara or another sitter. It also includes periods for which Ms. Bella and/or Ms. Tassara would have to be sleeping. Further, Ms. Tassara includes the entire period in which Ms. Bella and Ms. Tassara resided with [Ms. Tassara’s daughter’s] family. Absent an exact agreement for the amount of service to be provided daily, the Court would evaluate the services to be for a seventy hour week at $7.00 per hour. For purposes of the remunerative donation, the value of services provided and unpaid prior to the opening of the joint accounts would be $20,000.00 representing a little over a ten-month period. This also takes into account a reduction for the amounts paid by Angel’s Touch over that period and that other family members would have also contributed services.
In this instance, the intended remunerative donation is the actual value of the services performed. It 17is limited to the intent to donate for past services and preserve the remaining funds, and therefore is in excess of two-thirds. No formal Authentic Act is required and the deposit of said funds under Ms. Tas-sara’s name with Ms. Bella constituted a valid remunerative donation of $20,000.00.

A reviewing court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). After review, we find that the record supports the trial court’s determination that by placing the funds into the joint accounts in Ms. Tassara’s name, Ms. Bella made a remunerative donation with the intent to compensate Ms. Tassara for her past services from the time they evacuated for Hurricane Katrina until they opened the joint accounts. Likewise, we find the evidence supports the trial court’s finding that the value of Ms. Tassara’s past uncompensated services amounted to $20,000.00. Considering the trial court’s reasons, we find no manifest error in its conclusion that Ms. Tassara did not prove her claim to all the funds remaining in the joint accounts at the time of Ms. Bella’s death or her claim for additional compensation from the estate for unpaid services.

Assignment of error í

In the fourth assignment of error, Ms. Tassara alleges that the trial court erred in denying her reimbursement for the funeral and burial expenses. At trial, Ms. Tassara testified that she paid approximately $13,238.65 from the joint ^accounts for Ms. Bella’s funeral and burial expenses and offered into evidence the cancelled checks and the invoices from the funeral home and cemetery.

The record indicates that Ms. Bella had purchased a burial crypt for herself with her separate funds in 2006, and that she allowed the Tassara family to use it to bury Ms. Tassara’s grandson. When Ms. Bella later died, her crypt could not be used so Ms. Tassara purchased a new one with funds from the joint accounts. Under these circumstances, and considering that the monies in the joint accounts were mostly Ms. Bella’s separate funds, we find no error in the trial court’s denial of Ms. Tassara’s claims for reimbursement of the funeral and burial expenses.

Assignment of error 6

Ms. Tassara argues in the sixth assignment of error that the trial court erred by not awarding her damages for the wrongful issuance of the writ of sequestration and the excessive seizure of her funds. She contends that the Sam Bella and the estate had no groxmds to seek a writ of sequestration given Ms. Bella’s agreement with her that the surviv- or was entitled to the remaining funds upon the other’s death. Furthermore, Ms. Tassara claims the seizure of the $90,000.00 certificate of deposit was excessive considering Sam Bella had acknowledged that at least $30,000.00 were her separate funds.

The following Code of Civil Procedure articles are pertinent to the discussion at hand:

Art. 3571. Grounds for sequestration
|flWhen one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues there from, or remove the property from the parish, during the pendency of the action.
Art. 3501. Petition; affidavit; security
A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.
The applicant shall furnish security as required by law for the payment of the damages the defendant may sustain when the writ is obtained wrongfully.
Art. 3505. Reduction of excessive seizure
If the value of the property seized under a writ of attachment or of sequestration exceeds what is reasonably necessary to satisfy the plaintiffs claim, the defendant by contradictory motion may obtain the release of the excess.
Art. 3506. Dissolution of writ; damages
The defendant by contradictory motion may obtain the. dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

|10In the petition for damages and a writ of sequestration, the estate alleged that Ms. Bella left a valid will and testament bequeathing all her property to Sam Bella. It alleged that Ms. Bella had received more than $95,000.00 from State Farm Insurance Company for the damages to her home due to Hurricane Katrina and that she deposited those funds at Chase Bank into joint checking and savings accounts and a certificate of deposit in the names of Ms. Tassara and Ms. Bella. The estate further alleged that at the time of Ms. Bella’s death, there was $16,534.48 in the joint checking account, $9,884.07 in the joint savings account, and $90,000.00 in the certificate of deposit. Most importantly, the estate alleged that shortly after Ms. Bella’s funeral, Ms. Tassara unlawfully liquidated the joint accounts and certificate of deposit at Chase Bank and converted the funds for her own use. Finally, the estate claimed a writ of sequestration was needed because Ms. Tassara had the power to conceal, dispose of, or waste the funds she had unlawfully converted during the pendency of the said action. Based on the verified petition, the trial court issued a writ of sequestration as prayed for on August 19, 2008.

In February 2009, the attorney for the estate learned that Ms. Tassara had placed the disputed funds into a certificate of deposit at Iberia Bank in her daughters’ names. He filed an affidavit and requested the issuance of another writ of sequestration, which the trial court granted on July 20, 2009. Iberia Bank was served with the sequestration order on August 9, 2009. Ms. Tassara sought the dissolution of the writ sequestration by filing a motion for summary judgment, which the trial court effectively denied at the trial on the merits.

^Considering that Sam Bella had verified that Ms. Bella had left a valid statutory will that bequeathed all of her property to him; that she had deposited approximately $100,000.00 of her separate money to fund the Chase Bank joint accounts; that $116,418.55 remained in those accounts on the date of her death; and that Ms. Tassara had liquidated the accounts after Ms. Bella’s funeral, the trial court had sufficient grounds to issue the writ of sequestration in August 2008. Furthermore, the trial court had grounds to issue the second sequestration order based on the affidavit from the estate’s attorney verifying that Ms. Tassara had transferred the disputed funds into the Iberia Bank certificate of deposit in her daughters’ names. Although Sam Bella admitted that Ms. Tassara had deposited $30,000.00 of her own funds into the joint accounts, competing claims to the existing funds and claims for reimbursement were at issue. Thus, we do not find the seizure of the remaining funds was excessive. This assignment of error is without merit.

Assignment of error 7

In the seventh assignment of error, Ms. Tassara argues that the trial court erred by allowing Sam Bella and the estate to execute on the October 4, 2010 order, considering she had taken a suspensive appeal and posted a security bond.

La. C.C.P. art. 2088(A), provides, in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. | ^Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
⅝ ⅝ ⅝ ⅛ :js
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal.

The record indicates that the trial court judgment was signed on August 12, 2010, and mailed on August 13, 2010. The deadline for filing a motion for new trial was August 20, 2010. See La. C.C.P. art. 1974. Ms. Tassara did not move for a new trial; thus, the deadline to take a suspensive appeal and furnish security was September 20, 2010. See La. C.C.P. art. 2123 A(l). Because Ms. Tassara failed to perfect a suspensive appeal within the legal delay, the August 12, 2010 judgment became enforceable.

Sam Bella and the estate moved to enforce the judgment, and on October 4, 2010, pursuant to La. C.C.P. art. 2251, the trial court ordered Iberia Bank to release $50,000.00 from the certificate of deposit to Ms. Bella’s estate to satisfy the judgment. Iberia Bank complied with the order by releasing the funds to the estate on October 8, 2010.

On October 14, 2010, Ms. Tassara took a devolutive appeal from the August 12, 2010 judgment, but before the trial court granted the order of appeal, she took a suspen-sive appeal from the October 4, 2010 order and furnished security on October 16, 2010. However, the taking of the suspen-sive appeal had no effect because the underlying judgment had been satisfied when Iberia Bank released the funds, and the order itself was not a final and appealable judgment. See La. C.C.P. arts. 1841 and 2083. If Ms. Tassara wanted to prevent the release of the funds while she appealed the August 12, 2010 judgment, then she had to timely perfect a 1 ^suspensive appeal from that judgment, not the October 4, 2010 order. This assignment of error is without merit.

Appellees’ Assignments of Error

Sam Bella and the estate raise three assignments of error in their appeal brief, seeking to modify the judgment. First, they argue the trial court erred by ordering Ms. Tassara to return $50,000.00, rather than $66,418.55, to the estate, considering the evidence clearly established that $116,418.55 was in the joint accounts on the date of Ms. Bella’s death. Second, they argue the trial court failed to award legal interest. Third, they argue the trial court erred in determining Ms. Bella had made a remunerative donation to Ms. Tas-sara.

We express no opinion on the three aforementioned assignments of error. Because the record indicates that Sam Bella and the estate neither appealed the August 12, 2010 judgment nor answered Ms. Tas-sara’s appeal, we cannot modify the judgment to grant them relief. See La. C.C.P. art. 2133; see also Matthews v. Consolidated Companies, Inc., 95-1925, p. 1 (La.12/8/95), 664 So.2d 1191, 1192.

Decree

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . The funds included $90,000.00 in a certificate of deposit, $9,884.07 in a savings account and a $16,534.48 in a checking account. After Ms. Bella died, Ms. Tassara transferred the funds to a certificate of deposit at Iberia Bank in the names of her daughters, Peggy Watson and Kathleen Sellers.

      . The record indicates the trial court had issued a writ of sequestration ordering the sheriff of St. John the Baptist Parish to sequester all funds in name of Ms. Tassara on deposit at Chase Bank. When the court learned that Ms. Tassara had transferred the funds to a certificate of deposit at Iberia Bank in her daughters’ names, it issued a second sequestration order to sequester those funds.

      . The record indicates that Ms. Bella used the $95,000.00 that she had received from flood insurance for the loss of her home to fund the joint accounts. It is undisputed that by August 2005, Ms. Bella had sufficient funds to pay for private health care assistance for another eighteen (18) months, at most. The flood insurance proceeds allowed her to extend that period. When the money was depleted, Ms. Bella would have been placed in a nursing facility. At the time they made the agreement, the women believed that Ms. Bella, age 57, would out live Ms. Tassara, who was 79 years old. Ms. Tassara wanted to contribute $30,000.00 into the joint certificate of deposit and forego being paid for her services to give Ms. Bella additional funds to pay for private health care assistance in the event Ms. Tassara died first. Sam Bella acknowledged that the agreement Ms. Bella and Ms. Tassara made to live together, share expenses and open the joint accounts was to benefit his sister.

      . According to the record, Ms. Bella and Ms. Tassara each had a separate checking account.

      . The record indicates the Sam Bella was placed in possession and recognized as the owner of the Thornton Drive property by judgment dated March 27, 2008. He subsequently sold the house to the Road Home Program for $66,232.00.

      . The record also indicates that Ms. Tassara used $3,000.00 in proceeds from a burial insurance policy, which Ms. Bella had purchased with her separate funds, to defray the funeral and burial expenses.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Leonidas Dean LOWRY.
    No. 11-361.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Bradley R. Burget, District Attorney, Seventh Judicial District, David R. Opper-man, Assistant District Attorney, Vidalia, LA, for Appellee, State of Louisiana.
    Leonidas D. Lowry, Angola, LA, In Proper Person.
    Peter John, O’Neal Legal, L.L.C., Baton Rouge, LA, for Defendant/Appellant, Leonidas Dean Lowry.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| ,In this criminal case, Defendant, Leonidas Lowry, appeals his multiple-offender adjudication and sentence. For the following reasons, we affirm Defendant’s adjudication and sentence.

FACTS AND PROCEDURAL HISTORY

Defendant, Leonidas Lowry, was convicted of simple burglary on May 27, 2010, and was charged by bill of information with being a multiple offender on June 16, 2010. At a hearing on September 15, 2010, the trial court adjudicated Defendant a fourth felony offender and sentenced him to a term of sixty-five years with the Louisiana Department of Corrections.

Defendant filed a motion to reconsider his sentence which was denied. Defendant now appeals his adjudication and his sentence.

ASSIGNMENTS OF ERROR

1. Mr. Lowry was denied effective assistance of counsel.

2. Mr. Lowry was denied a fair trial due to a conviction with insufficient evidence.

PRO SE ASSIGNMENTS OF ERROR

I. The trial court infringed on Appellant’s 5th and 14th Amendment Rights to the United States Constitution and Article I §§ 2 & 16 of the Louisiana Constitution when the court failed to apprise Appellant of his right to remain silent at the habitual offender hearing.

II. The State of Louisiana failed to establish its burden at the habitual offender hearing that the Appellant was represented by defense counsels on each of his alleged prior convictions or that he was properly Boykinized.[]

III. Was Appellant denied effective assistance of counsel at the habitual offender bearing when defense counsel failed:

| g(A) To object to the trial court failure to advise Appellant of his right to remain silent.

(B) To object to the State’s failure to meet it’s [sic] burden of proof that Appellant was represent [sic] by counsel on the allege [sic] prior convictions.

(C) To object to the State’s failure to meet it’s [sic] burden of proof that Appellant was Boykinized on the allege [sic] prior convictions.

(D) To inform the court of Appellant’s desire to testify at the hearing.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent which will be addressed in Defendant’s pro se assignment of error number one.

ASSIGNMENT OF ERRORS NO. 1 AND NO. 2

This case and its companion case, bearing number 11-314 on this court’s docket, were consolidated for briefing purposes. Defense counsel’s brief in docket number 11-314 alleged ineffective assistance of counsel and insufficient evidence to support the underlying conviction. We find, as in docket number 11-314, that Defendant’s claim of ineffective assistance of counsel is a more appropriate issue for post-conviction relief and that his insufficiency of the evidence claim is abandoned because it was not briefed.

PRO SE ASSIGNMENT OF ERROR NO. 1

Defendant alleges his constitutional rights were violated because the trial court failed to apprise him of his right to remain silent at the multiple offender hearing. The record shows Defendant in fact was not advised of his right to remain silent, and it is the State that bears the responsibility of proving its case. However, “[a] trial court’s failure to advise the defendant of his rights will result in harmless error if the defendant remains silent throughout the proceeding[,] and the state | ¡¡presents competent evidence to prove the existence of the defendant’s prior conviction as well as his identity as the person previously convicted.” State v. Kittlin, 97-92, p. 3 (La.App. 3 Cir. 6/4/97), 695 So.2d 1137, 1139 (citing State v. Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575).

To establish Defendant’s status as a multiple offender, the State called Wesley Bruce, who was accepted as an expert in the field of latent fingerprint examination. Mr. Bruce obtained Defendant’s fingerprints two days prior to the multiple offender hearing. He also examined the fingerprints from State’s Exhibits 1, 2, and 3 and found they matched the prints he took.

State’s Exhibit 1 pertained to Defendant’s guilty plea to simple burglary on November 10, 2003, in Jefferson Parish. The clerk’s minutes showed Defendant was represented by counsel when he changed his. plea to guilty and waived his constitutional rights.

Items from State’s Exhibit 2 showed Defendant was represented by counsel when he pled guilty to possession of cocaine on February 5, 2004, in Jefferson Parish. In that case, he was sentenced as a multiple offender to four years at hard labor.

State’s Exhibit 3 showed Defendant pled guilty to two counts of simple burglary on March 2, 1998, in Jefferson Parish. He was also represented by counsel in that matter.

Defendant argues he was not advised of his right to remain silent while, at the same time, contending he was denied the opportunity to address the court. The record shows Defendant was represented by counsel at the hearing and waited until after the trial judge pronounced his sentence to attempt to say anything. At that point, the trial judge informed Defendant that the matter was concluded and did not allow him to speak. We find that Defendant waived his opportunity to address the |4court by not speaking up prior to the pronouncement of his sentence. La.Code Crim.P. art. 841.

We also find that the exhibits and Mr. Bruce’s testimony established that Defendant was the same person convicted of the prior felony offenses. Therefore, we find that the evidence was sufficient to adjudicate Defendant a multiple offender in this matter and that the record shows Defendant remained silent during the sentencing proceeding. Accordingly, we find that the trial court’s failure to advise Defendant of his right to remain silent and have the State prove its case against him was harmless error.

PRO SE ASSIGNMENT OF ERROR NO. 2

Defendant argues the State failed to establish that he was represented by counsel or properly advised of his Boykin rights in his prior convictions. The exhibits discussed above all indicate that Defendant had counsel present at the time of each guilty plea. Minutes of the court clerk in each case show Defendant was advised of his Boykin rights, ie., his right to trial by judge or jury, the right to confront his accusers, and his right against self-incrimination. Further, Defendant did not raise any objection during his multiple offender hearing, and thus, he has failed to preserve the issue for appeal. Kittlin, 695 So.2d 1137.

PRO SE ASSIGNMENT OF ERROR NO. 3

Defendant complains his counsel was ineffective at the multiple offender hearing: (1) for failing to object when the court failed to advise him of his right to remain silent; (2) when the State failed to show he was represented by counsel or was advised of his Boykin rights on the prior convictions; and, (3) for failing to inform the court of his desire to testify. The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief, where an eviden-tiary hearing can be conducted in the trial court. State ex rel. A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012. However, where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id.

After a thorough review of the record on appeal, we find that the record is not sufficient to determine whether counsel was ineffective with regard to Defendant’s claim regarding his counsel’s failure to inform the court of his desire to testify. Determination of that issue may require testimony from defense counsel at an evi-dentiary hearing. We, therefore, relegate the issue of ineffective assistance of counsel to post-conviction relief.

DISPOSITION

Defendant’s adjudication and sentence as a multiple offender are affirmed. Defendant’s claim of ineffective assistance of counsel is relegated to post-conviction relief.

AFFIRMED.

      . Although Defendant's brief mentions that Defendant’s sixty-five-year sentence "is all but equivalent to a death sentence,” he does not allege an excessive sentence as an assignment of error.

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