author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Caron Napolitano STARR, Wife of/and James William Starr v. Jessica BROU and Allstate Property and Casualty Insurance Company.
    No. 08-CA-612.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      J. William Starr, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellee.
    James L. Donovan, Jr., Attorney at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

1 ¡jPefendant/appellant Allstate Property and Casualty Insurance Company (“Allstate”) appeals from a judgment awarding plaintiffs/appellees Caron Napolitano Starr and James William Starr (“Mrs. Starr” and “Mr. Starr” respectively) attorney fees and statutory penalties in an automobile property damage case. We affirm in part, reverse in part, and render.

The Starrs filed this suit on October 26, 2006. In their petition, the Starrs alleged that they were entitled to recover $4698 for the cost of the rental invoice, as well as statutory penalties and attorney fees pursuant to La. R.S. 22.T220. Allstate tendered a check in the amount of $3090 to Mr. Starr on April 27, 2007, shortly before the original trial date. Trial in the matter was eventually set for July 16, 2007. After trial was complete, the trial court denied the claim for the mirror, but awarded the Starrs $1677.30 in damages, $2500 in attorney fees, and $2500 in penalties. This timely appeal followed. Allstate complains only of the award of 1.«¡penalties and attorney fees. The Starrs did not assign as error the trial court’s denial of the mirror claim.

The underlying facts are not in dispute. On April 15, 2006, Mrs. Starr was driving her 1998 Jaguar sedan near the intersection of Clearview Parkway and Jefferson Highway in Metairie when she was struck by a vehicle driven by Jennifer Brou, Allstate’s insured. The Starrs apparently originally complained that the accident resulted in personal injuries, property damage to the Jaguar including damage to the rear bumper and rear view mirror, and rental fees for a substitute vehicle used by Ms. Starr while the Jaguar was being repaired.

Mr. Starr rented a Nissan Armada sport utility vehicle for his wife’s use. The Armada was rented from Magruder’s Car Truck Rental & Sales (“Car Truck”) at a rate of sixty dollars per day. Mr. Starr had allegedly planned on renting a substitute Jaguar for his Mrs. Starr’s use, but decided on the Armada because it was significantly less expensive. Mr. Starr informed Allstate that he was renting the Armada from Car Truck. According to Mr. Starr, no representative of Allstate asked him to rent a car from a different rental agency, nor did any representative of Allstate talk to him about the vehicle he had rented.

At a later date, Mr. Starr asked a representative of Allstate where he should bring the Jaguar to be repaired. Allstate requested that Mr. Starr bring the Jaguar to Paretti Imports (“Paretti”) to have the rear bumper and the rearview mirror repaired, as Paretti was Allstate’s authorized repair shop. Mr. Starr indicated to Allstate that he had experienced problems with Paretti in the past and that he would prefer to take the Jaguar to another location to be repaired. However, Allstate insisted on Paretti and Mr. Starr acquiesced.

After approximately fifty-nine days, Par-etti Imports informed Mr. Starr that the Jaguar was repaired and ready to be picked up. The Starrs allege that the 14rearview mirror had not been repaired when they arrived to pick up the Jaguar and that they therefore returned the vehicle to Paretti. When all of the repair issues with the Jaguar had been resolved, Mr. Starr submitted a rental invoice to Allstate in the amount of $4698. Allstate disputed the reasonableness of the invoice and in response issued a check to Car Truck in the amount of $3020. Allstate’s check was marked “full and final payment.” After a discussion with the manager of Car Truck, Mr. Starr instructed him to return the check to Allstate and paid the full amount of the rental invoice himself. Mr. Starr sent a letter on August 18, 2006 to Allstate, informing Allstate as to his complete payment of the Car Truck invoice and requesting that Allstate tender a check for the undisputed amount of the bill. Allstate refused.

At trial, Mrs. Starr confirmed that Jennifer Brou had struck her Jaguar and that the sedan had been taken to Paretti for repair. She claimed that a brown spot had appeared on the rearview mirror of her Jaguar after the vehicle had been returned by Paretti. Mrs. Starr also stated that Allstate had denied her claim for the rear-view mirror repair because, in the opinion of the adjuster, the damage was due to the mirror’s age. Mr. Starr confirmed that he had submitted the $4698 rental invoice to Allstate, and that Allstate had responded by sending the $3020 check to Car Truck. Mr. Starr told the court that he had investigated the possibility of renting a substitute Jaguar for his wife, but that he eventually settled on the Armada because it was approximately twenty dollars cheaper per day. Mr. Starr also noted that on or about April 27, 2007, Allstate had tendered a $3020 check to him personally in partial satisfaction of the $4698 rental invoice. Maurice van Norman, the manager of Car Truck, testified that his company rents passenger cars at rates of fifty, sixty, seventy, and ninety dollars a day. James Leaber, the Allstate adjuster who inspected Mrs. Starr’s Jaguar, also testified extensively as to the | ^damaged rearview mirror. In Mr. Leaber’s opinion, the brown spot on the mirror was not caused by the accident, but was rather the result of years of heat affecting the Jaguar’s unique electrochromatic mirror. As the trial drew to a close, there was a lengthy discussion as to which statute applied to the Starrs’ claim for penalties and attorney fees. Allstate argued that La. R.S. 22:658 applied, while the Starrs argued that La. R.S. 22:1220 was the applicable statute. The parties did not dispute liability at trial.

On appeal, Allstate assigns a single assignment of error, namely, that the trial court erred in ordering it to pay penalties and attorney fees. Allstate makes three separate arguments in support of its assignment of error. First, Allstate avers that the trial court should not have relied on La. R.S. 22:1220 to award penalties. Second, Allstate argues that the Starrs are not entitled to attorney fees or penalties pursuant to La. R.S. 22:658. Third, Allstate argues that the trial court erred in awarding more than $1000 for any penalty. La. R.S. 22:1220

Allstate alleges that the trial court erred in relying upon La. R.S. 22:1220 to award statutory penalties. According to Allstate, La. R.S. 22:1220 applies only as between an insurer and its insured, not between an insurer and third parties.

La. R.S. 22:1220(A) states as follows:

An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.

(emphasis added)

La. R.S. 22:1220(B) specifies particular acts deemed to be violative of an insurer’s duty of good faith and fair dealing. Included among these acts is an | (¡insurer’s failure “to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.” La. R.S. 22:1220(B)(5). If an insurer violates its duty of good faith, “the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater” pursuant to La. R.S. 22:1220(C). The Starrs allege that Allstate’s failure to tender the full Armada rental invoice within sixty days was violative of La. R.S. 22:1220(B)(5). Therefore, the argument follows; Allstate breached its duty of good faith and fair dealing, and is liable for penalties under La. R.S. 22:1220(0).

The first sentence of La. R.S. 22:1220(A) extends the insurer’s duty of good faith and fair dealing only “to his insured.” That sentence does not mention third parties, nor does it extend third parties any tangible benefit. However, the second sentence of La. R.S. 22:1220(A) states that insurers must make a reasonable effort to settle claims “with the insured or the claimant, or both.” That sentence mentions both “the insured” and “the claimant” and could be reasonably be interpreted to obligate insurers to settle claims with third party claimants. Thus, there is an apparent ambiguity in the statute.

In Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, the Louisiana Supreme Court addressed the interpretation of these two sentences. In Ther-iot, a third party claimant argued that La. R.S. 22:1220(A) provided her with a cause of action for statutory penalties against an insurance company. The Theriot court rejected the plaintiffs argument that La. R.S. 22:1220(A) imposed a broad statutory duty to “adjust her claim fairly and promptly and to make reasonable efforts to settle the claim” and her contention that the examples in La. |7R.S. 22:1220(B) were merely illustrative. Id., at 186-88. Rather, the Court held that a third party claimant has a claim against an insurer for penalties under La. R.S. 22:1220 only if the insurer committed one of the five acts enumerated in La. R.S. 22:1220(B). That view was subsequently adopted by this Court and fellow circuits across Louisiana. See, e.g., Paul v. Allstate Ins. Co., 98-499 (La.App. 5 Cir. 10/28/98), 720 So.2d 1251; Smith v. Midland Risk, 29,793 (La.App. 2 Cir. 9/24/97), 699 So.2d 1192; Guidroz v. State Farm Mut. Auto. Ins. Co., 97-200 (La.App. 3 Cir. 6/25/97), 698 So.2d 967, writ granted and remanded on other grounds, 97-2653 (La.1/30/98), 705 So.2d 738. The Starrs allege a violation of La. R.S. 22:1220(B)(5), which states that an insurer breaches its duty of good faith and fair dealing when it does not “pay the amount of any claim, due any person insured by the contract within sixty days after receipt of satisfactory proof of loss” when such failure is arbitrary, capricious, or without probable cause. The Starrs were not insured by Allstate’s contract. Accordingly, La. R.S. 22:1220 does not apply to the case at bar. We therefore conclude that the trial court erred in awarding the Starrs $2500 in penalties pursuant to La. R.S. 22:1220.

La. R.S. 22:658

Allstate alleges that the trial court erred in relying upon La. R.S. 22:658 to award $2500 in attorney fees to the Starrs. In its brief, Allstate makes three separate arguments in support of its claim. First, Allstate argues that the Starrs cannot raise a claim for attorney fees because they failed to specifically allege liability for fees under La. R.S. 22:658 in their petition. Second, Allstate argues that its actions were not “arbitrary, capricious, or without probable cause” and as such, the trial judge was precluded from making an award of fees pursuant to La. R.S. 22:658(B)(4). Finally, Allstate argues that the Starrs were not deprived |8the Jaguar’s use “as a direct consequence of the inactions of the insurer,” which is a predicate to recovering attorney fees under La. R.S. 22:658(B)(4).

A trial court’s decision with respect to the assessment of penalties or attorney fees pursuant to La. R.S. 22:658 or should not be disturbed on appeal in the absence of a finding that it was manifestly erroneous or clearly wrong. See, e.g., Dixon v. First Premium Ins. Group, 2005-0988, p. 9 (La.App. 1 Cir. 3/29/06), 934 So.2d 134, 141. Statutes authorizing the imposition of a penalty are to be strictly construed. Sales 360, L.L.C. v. Louisiana Motor Vehicle Com’n, 07-432, p. 10 (La. App. 5 Cir. 12/11/07), 976 So.2d 188, 193. The courts should not construe penal statutes as extending powers not authorized by the letter of the law even if such powers would be arguably within its spirit. Id.

La. R.S. 22:658 provides, in pertinent part:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, 657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
B. (4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable expenses or one thousand dollars whichever is greater together with reasonable attorneys fees for the collection of such expenses.

|fl(emphasis added).

Thus, a claimant seeking to recover fees under La. R.S. 22:658(B)(4) bears the burden of establishing that the insurer received a satisfactory proof of loss, that the claimant was denied use of a personal vehicle for more than five working days as a direct consequence of the inaction of the insurer, and that the insurer’s failure to pay reasonable expenses was arbitrary, capricious, or without probable cause. A “satisfactory proof of loss” within the meaning of La. R.S. 22:658 is that which is sufficient to fully apprise the insurer of the insured’s claim.

Allstate’s first argument is that the Starrs cannot claim attorney fees because they failed to specifically allege Allstate’s liability for fees under La. R.S. 22:658 in their petition. Allstate admits that the Starrs alleged Allstate’s liability for penalties and fees pursuant to La. R.S. 22:1220.

When “special damages” are claimed in a suit, they must be specifically alleged in the petition. La. C.C.P. art. 861. Statutory penalties and attorney fees are considered to be items of “special damage” and must likewise be specifically alleged. See, e.g., Dennis v. Allstate Ins. Co., 94-305 (La.App. 5 Cir. 10/25/94) 645 So.2d 763. A trial court’s award of special damages is subject to the manifest error standard on appeal. Harvey v. Cole, 00-1849, p. 13 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 783.

This Court finds Allstate’s argument unavailing. Allstate is correct in its assertion that attorney fees are items of special damage and must be alleged in a petition. However, in their petition, the Starrs alleged that Allstate was liable for attorney fees pursuant to La. R.S. 22:1220. The penalty provisions of La. R.S. 22:1220(B)(5) and La. R.S. 22:658(B)(4) are virtually identical; both penalize an insurer for acting “arbitrary, capricious, or without probable cause.” Allstate was | inthus put on notice that the Starrs had alleged special damages in their petition and that they would be arguing at trial that Allstate acted in an arbitrary and capricious manner. Considering that the purpose of the specificity requirement when pleading special damages is to avoid imposition of surprise upon a defendant, Allstate’s argument has no merit. See, e.g., Stevens v. Winn-Dixie of Louisiana, 1995-0435 (La.App. 1 Cir. 11/9/95), 664 So.2d 1207; La. C.C.P. art. 5051 (“[t]he articles of [the Code of Civil Procedure] are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves”).

Allstate next argues that its actions were not “arbitrary, capricious, or without probable cause” and that the trial judge was therefore precluded from making an award of attorney fees under La. R.S. 22:658(B)(4). In its brief, Allstate stresses the fact that Mr. Stan1 rented a full-size sport utility vehicle for his wife’s use rather than a sedan and that Car Truck’s manager admitted at trial that Car Truck rents vehicles for less than sixty dollars per day. We disagree with Allstate’s argument.

The phrase “arbitrary, capricious, or without probable cause” is synonymous with the word “vexatious.” In Louisiana law, both terms describe an insurer whose willful refusal to pay a claim is not based on a good faith defense. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993). An insurer’s refusal to pay a claim is not arbitrary, capricious, or without probable cause where serious issues regarding the appellant’s right to recovery are raised. B. Bennett Mfg. Co., Inc. v. S. Carolina Ins. Co., 96-731 (La. App. 5 Cir. 3/25/97), 692 So.2d 1258. When there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when l^such reasonable doubts exist. Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012, 1020. Whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Id.

After reviewing the record, this Court cannot conclude that the trial court erred in finding that Allstate acted in an arbitrary and capricious manner. The record indicates that Mr. Starr investigated the possibility of renting a substitute Jaguar for his wife, but decided to rent a Nissan Armada because the latter was approximately twenty dollars cheaper per day. No representative from Allstate tried to contact Mr. Starr or direct him to a particular rental agency, nor did any Allstate representative object to Mr. Starr’s rental of the Armada. After Allstate disputed the invoice’s reasonableness, it sent a check marked “full and final payment” to Car Truck. Mr. Starr then paid the invoice in full in order to avoid litigation with Car Truck and requested that Allstate tender the portion of the bill which it felt was due and owing. Allstate refused to do so for approximately eight months and only tendered a $3020 check in anticipation of a scheduled trial date. The trial judge found that Allstate’s failure to tender the portion of the bill which it felt was due and owing for eight months was arbitrary and capricious.

We note that when a reasonable disagreement exists between the insured and the insurer as to the rental obligation, the insurer’s refusal to pay is not arbitrary or capricious. See, e.g., Wiley v. Safeway Ins. Co., 99-161 (La.App. 3 Cir. 7/14/99), 745 So.2d 636, 641. However, in this case, Allstate knew that it owed at least $3020 to the Starrs, as that was the amount tendered to Car Truck as a supposed “full and final payment.” Allstate acknowledges that it submitted the first $3020 check to Car Truck based on what it believed to be a reasonable rental rate of forty dollars per day. There may have been a reasonable dispute as to the balance of the |12Car Truck invoice, but there was certainly not a reasonable dispute as to the $3020 Allstate marked as “full and final payment.” This Court finds that the trial court’s holding that Allstate’s failure to tender the undisputed portion of the invoice for eight months after a request by Mr. Starr was not manifestly erroneous.

Allstate’s final argument pertaining to La. R.S. 22:658 is that the Starrs did not prove that their deprivation of the Jaguar’s use was a “direct consequence of the inactions of the insurer.” Specifically, Allstate argues that the Starrs suffered loss of the Jaguar’s use due to a collision with Jennifer Brou and that the Starrs submitted no evidence at trial that the loss of use was a consequence of Allstate’s inaction. We agree.

The first sentence of La. R.S. 22:658(B)(4) provides that when a third party claimant is deprived of the use of a personal vehicle for more than five days as “a direct consequence of the inactions of the insurer,” the insurer must pay the third party all reasonable expenses associated with the deprivation. The second sentence of La. R.S. 22:658(B)(4) provides that an insurer’s failure to make “such payment” shall subject it to penalties and attorney fees if the insurer was arbitrary, capricious, or without probable cause. Thus, to take advantage of the second sentence of La. R.S. 22:658(B)(4), the third party claimant must have been deprived of the use of a personal vehicle through the direct consequence of an insurer’s inaction.

In this case, Allstate has committed no inaction. The only dispute in the case pertains to the reasonableness of the Armada rental fee and the trial court’s award of penalties and fees. There is no indication in the record that Allstate did not promptly pay the Paretti bill for the damage to the Jaguar’s rear bumper or that Allstate contributed in any way to the loss of the Jaguar’s use. Allstate did dispute the invoice’s reasonableness, but only after the Jaguar had been repaired. Allstate | ):)also required that the Starrs use Paretti for the repairs, however, Paretti’s laxity in repairing the Jaguar’s bumper is irrelevant as it is not an “insurer.”

The Third Circuit addressed a similar factual situation in Roberts v. Chargois, 1998-1073 (La.App. 3 Cir. 2/24/99), 736 So.2d 910. In Roberts, the plaintiff was involved in an accident after which her vehicle was immediately adjusted as a total loss. The defendant’s insurer paid for the vehicle damage approximately six weeks later. Roberts, 736 So.2d at 911. The plaintiff had rented a car for more than two months, and submitted an invoice to the defendant’s insurer in the amount of $2419.38 to cover the cost of the rental. Id. The insurer disputed the rental claim on the basis that the purported invoice was only an estimate and that the invoice was prepared in the name of the insured’s mother-in-law rather than the insured herself. Id. The trial court found the insurer liable for the entire rental invoice and awarded the plaintiff $1000 in penalties and $250 in attorney fees pursuant to La. R.S. 22:658(B)(4). Id. at 912. The Third Circuit affirmed the award of the entire invoice but reversed the award of penalties and fees on the basis that the plaintiffs deprivation of her vehicle was not a direct consequence of the inaction of the insurer. Id. at 913. The court noted that the insurer “adjusted [the plaintiffs] property damage claim in a reasonable and timely manner, its actions did not contribute to [the plaintiffs] need for a rental; therefore, it is not subject to the penal provisions in second sentence of La. R.S. 22:658(B)(4).” Id. at 912. The court also noted that the plaintiff had “not alleged any undue delay in the investigation or payment of her property damage claim.” Id. at 913. This is also true in the instant case, except as it pertains to the Jaguar’s rearview mirror, which did not deprive the Starrs of the Jaguar’s use.

Other cases illustrate the same point. For example, in Collins v. Bentley, 24,457 (La.App. 2 Cir. 10/26/94), 645 So.2d 283, the plaintiffs vehicle was struck 114by another vehicle, and the plaintiff called the defendant’s insurer next day to report the accident. Collins, 645 So.2d at 284. The plaintiff also tried repeatedly to contact the defendant’s insurer to verify coverage but was only able to do so thirty-five days after the accident, after which her car was appraised and a rental car obtained. Id. After the plaintiffs car was repaired, the garage refused to release the vehicle unless the plaintiff paid beforehand, which she was financially unable to do. Id. The defendant’s insurer refused to tender full payment for the repairs, even though it had authorized the repairs in full. Id. at 285. The trial court held that the insurer was liable for rental costs and storage fees up to the date of trial and the Second Circuit affirmed, noting that the insurer “failed to verify coverage or appoint an appraiser until more than one month after the accident [and] failed to pay for the repairs after authorizing them to be made.” Id.

Accordingly, we hold that the Starrs have not shown that their deprivation of the Jaguar’s use was due to a “direct consequence of the inactions of the insurer” and that the trial court erred in awarding the Starrs attorney fees pursuant In La. R.S. 22:658(B)(4).

Maximum Penalty

Allstate’s final argument in its assignment of error alleges that the maximum penalty in this case should have been $1000 under La. R.S. 22:658(B)(4). We need not address the argument, as we hold that the Starrs were not entitled to penalties under La. R.S. 22:1220(0 or attorney fees under La. R.S. 22:658(B)(4).

Conclusion and Decree

For the reasons stated herein, the judgment of the trial court granting the Starrs $2500 in penalties for Allstate’s violation La. R.S. 22:1220(B)(5) is reversed. The judgment of the trial court granting the Starrs $2500 in attorney fees for Allstate’s violation of La. R.S. 22:658(B)(4) is reversed. In all other respects, |1sthe judg-merit of the trial court is affirmed. Costs assessed equally to Allstate and the Starrs.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . La. R.S. 22:1220 does not provide for an award of attorney fees.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mark A. KELLEY.
    No. 08-KA-467.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

| ^Defendant-appellant, Mark A. Kelley (“defendant”), appeals his conviction and sentence on a charge of possession of cocaine. We affirm.

Defendant was charged with one count of possession of cocaine in violation of LSA-R.S. 40:967(C). He was tried by a jury, found guilty as charged, and sentenced to serve four years at hard labor.

The State filed a multiple offender bill of information alleging defendant was a second felony offender based on a prior armed robbery conviction. Defendant stipulated to the correctness of the allegations in the multiple bill, and the trial court adjudicated defendant a second felony offender. The trial court vacated defendant’s original sentence and imposed an enhanced sentence of five years at hard labor without benefit of probation or suspension of sentence.

FACTS

Officer Donald Herrmann (“Officer Herrmann”), a member of the Kenner Police Force, was on patrol on the evening of July 28, 2005. Officer Herrmann |3was part of a three-man team patrolling high-narcotic crime areas on foot. The officers, who were clad in police tee shirts, observed a hand-to-hand transaction between two African-American male subjects. As the officers approached, one man fled. The other began walking briskly away. Officer Herrmann caught up with the second suspect and engaged him in a conversation concerning the observed transaction. For his safety, Officer Herrmann conducted a pat-down search. He felt a rocklike substance in defendant’s right front pocket, which the officer believed to be cocaine. Officer Herrmann testified that defendant attempted to get his hand in his front pocket during the pat down search by Officer Herrmann. Officer Herrmann removed the object that tested positive for cocaine. Defendant was arrested after a brief struggle.

On appeal defendant assigns one error for our review. Defendant asserts the trial court erred in failing to grant the defense’s motion to suppress the evidence. Defendant argues the rock cocaine found in his pocket was illegally seized and should have been suppressed. Specifically, defendant argues the hand-to-hand transaction observed by the officers was insufficient to provide probable cause for arrest because the officers did not see anything change hands. Alternatively, defendant argues that there was no reasonable suspicion to conduct an investigatory stop because shaking hands is not an illegal or suspicious act.

The State responds that the cocaine was legally seized, and the trial court was correct in denying defendant’s motion to suppress the evidence. The State argues that officers had reasonable suspicion to conduct an investigatory stop when they observed the hand-to-hand transaction in a high-crime area known for frequent narcotics transactions and because of the subsequent flight of the two participants. Given the factual situation, the State argues the officer was justified in making a pat-down search for his safety. Finally, the State maintains the 14cocaine was properly retrieved under the plain-feel exception to the warrant requirement.

LAW AND ANALYSIS

It is well settled that both the United States Constitution and the Louisiana Constitution prohibit unreasonable searches and seizures. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression.

The first issue presented for our review is whether defendant was arrested at the time Officer Herrmann frisked him for weapons. We find that he was not.

There is no specific test to determine whether an encounter is an arrest, which requires probable cause, or an investigatory stop, which requires a lesser showing of reasonable suspicion. An arrest occurs when the circumstances indicate intent to effect an extended restraint on the liberty of the accused. A seizure is an arrest, rather than an investigatory stop, when a reasonable person in the defendant’s position would have understood the situation to be a restraint on freedom of movement of the degree that the law associates with a formal arrest.

|fiLaw enforcement officers are authorized to stop and interrogate persons whom they reasonably suspect of engaging in criminal activity. Under .the Fourth Amendment, a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime.

In the matter before us, we find defendant was not arrested at the time of the pat down search. There is nothing in the record that suggests the officers intended to effect an extended restraint on defendant’s liberty at that point. At both the suppression hearing and trial, Officer Herrmann testified that he observed a hand-to-hand transaction between defendant and another black male. He stated he approached defendant to engage in conversation to determine what defendant was doing in the area.

At the suppression hearing, Officer Herrmann testified that he frisked defendant for weapons. At trial, Officer Herrmann explained that he conducted the pat-down search for his own safety. This is consistent with an investigatory stop. Thus, a finding that probable cause existed for arrest is not necessary. We find that the circumstances and facts of this case show that the officers conducted an investigatory stop, which requires only a showing of reasonable suspicion.

Reasonable suspicion to stop is something less than the probable cause required for an arrest. In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, a reviewing court is to consider the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. An officer’s | fiexperience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidents of crimes are factors that may support reasonable suspicion for an investigatory stop.

Recently, in a factually similar case, this Court determined the police had reasonable suspicion to conduct an investigatory stop of the defendant where the officers testified they witnessed the defendant engage in a hand-to-hand transaction in a high-crime area even though the officers could not identify what changed hands in the exchange. This Court concluded the totality of the circumstances justified the investigatory stop and noted that the other party to the hand-to-hand transaction fled at the sight of the police and that the defendant tried to evade them by quickly walking to his vehicle. We observed that flight by a defendant’s companion at the sight of police can be a factor in determining reasonable suspicion. Flight from a police officer is highly suspicious and, thus, the amount of additional information required to provide officers with reasonable suspicion that an individual is engaged in criminal behavior is greatly lessened.

At trial, Officer Herrmann stated the hand-to-hand transaction lasted approximately five seconds. He explained he saw defendant and a second subject walk towards each other, interact for approximately five seconds, and then walk in opposite directions. Although defendant suggests the two were merely shaking hands, the fact that a possible innocent explanation may exist does not require an officer to turn a blind eye to the circumstances and his experience. At the suppression hearing, Officer Herrmann testified he was working on a disruption unit at the time of the incident. He explained a disruption unit patrols high-crime, frhigh-narcotics sales and usage areas, looking for narcotics and stated the area where the incident took place was a high-erime/high-narcotic area. At trial, Officer Herrmann stated he was working a pro-active narcotics investigation in the area. He also testified he had been an officer with the Ken-ner Police Department for six years and had made approximately fifty narcotics arrest.

Based on the totality of the circumstances and the above cases, we find Officer Herrmann had reasonable suspicion to conduct an investigatory stop of defendant.

After a lawful investigatory stop, a police officer may frisk a suspect for dangerous weapons only where a reasonably prudent person would be warranted in believing that his safety or that of others is in question. The officer need not establish that it was more probable than not that the detained individual was armed and dangerous. Rather, it is sufficient that the officer establish a substantial possibility of danger.

Officer Herrmann testified he conducted the pat-down for weapons for his safety, the safety of the defendant, and the safety of the other officer on the scene. Although Officer Herrmann never expressly stated he believed he was in danger, the record shows defendant was stopped as the result of a suspected drug deal in a high-crime area. The Louisiana Supreme Court has recognized that there is a close association of weapons and narcotics trafficking. The officer’s familiarity with the high-crime character of the area and the close association of weapons and narcotic trafficking were sufficient articulable circumstances that justified the officers’ frisk for weapons after a lawful investigatory stop.

|aIn the course of a frisk for weapons, if an officer feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize it under the “plain feel” exception to the warrant requirement. Officer Herrmann testified that, when he patted defendant’s front pocket, he felt a rock-like substance that he believed to be crack cocaine based on his experience as a police officer and knowing what crack cocaine feels like, what he saw prior to the stop, and his location in a high-crime area.

In conclusion, we find that Officer Herr-mann had reasonable suspicion to conduct an investigatory stop of defendant based on his observation of defendant engaging in what Officer Herrmann believed to be a hand-to-hand transaction in a high-crime/ high-narcotic area, the subsequent flight of defendant’s companion, and defendant’s attempt to elude the officer’s upon his approach. After lawfully stopping defendant, Officer Herrmann was justified in conducting a pat-down search for weapons for his safety based on the facts he had just witnessed what he believed to be a drug deal in a known high-crime area and the recognized association of weapons and drug trafficking. Thereafter, Officer Herrmann validly retrieved the cocaine from defendant’s pocket under the plain feel exception to the warrant requirement after immediately recognizing it as contraband during the pat-down search of defendant.

Accordingly, we find the trial court properly ruled the evidence should not be suppressed. This assignment is without merit.

Defendant has requested an error patent review. This Court routinely reviews the record on appeal for errors patent on the face in accordance with LSA-jC.Cr.P.9 art. 920. Upon review, we find no errors that require comment or correction.

For the reasons set forth herein, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765.

      . Id.

      . LSA-C.Cr.P. art. 703(D).

      . State v. Smith, 06-557 (La.App. 5 Cir. 11/28/06), 947 So.2d 95, 98-99, writ denied, 06-2960 (La.9/14/07), 963 So.2d 993.

      . State v. Cojoe, 01-2465 (La. 10/25/02), 828 So.2d 1101, 1103 (per curiam ).

      . State v. Simms, 571 So.2d 145, 148 (La.1990).

      . Id.

      . LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

      . Id.

      . State v. Smith, 947 So.2d at 98.

      . Id.

      . State v. Sam, 08-220 (La.App. 5 Cir. 6/19/08), 988 So.2d 765.

      . Id.

      . Id.

      . See, State v. Fearheiley, 08-307 (La.4/18/08), 979 So.2d 487, 489 (per curiam ).

      . State v. Anthony, 07-204 (La.App. 5 Cir. 11/27/07), 971 So.2d 1219, 1226 (writs pending in Louisiana Supreme Court).

      . State v. Huntley, 08-125 (La.App. 5 Cir. 5/27/08), 986 So.2d 792, 797.

      . State v. Huntley, 97-965, p. 4 (La.3/13/98), 708 So.2d 1048, 1050 (per curiam).

      . Id.

      . Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993); State v. Taylor, 06-558 (La.App. 5 Cir. 7/30/07), 966 So.2d 631, 640, writ denied, 07-1902 (La.2/1/08), 976 So.2d 717.

      . See also, State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Ronald RAINEY.
    No. 08-KA-744.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2009.

      Paul D. Connick, Jr., District Attorney, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Ronald Rainey.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

| gRonald Rainey appeals his conviction of unauthorized use of a movable valued at more than $1,000.00, a violation of La.R.S. 14:68. We affirm, finding no non-frivolous issues to be raised on appeal and no ruling of the trial court that arguably supports the appeal. We also grant appellate counsel’s motion to withdraw as counsel.

On November 19, 2007, the Jefferson Parish District Attorney charged Ronald Rainey with violation of La.R.S. 14:68 by unauthorized use of U.S. currency valued at over than $1,000.00. On May 12, 2008 the defendant pleaded guilty as charged. Pursuant to a plea agreement under which the State agreed not to multiple-bill him, he was sentenced to imprisonment at hard labor for a term of three years, with credit for time served; the sentence was suspended; the defendant was placed on active probation for five years; and he was ordered to pay restitution in the amount of $20,020.00, a fine of $1,000.00, plus court costs and fees as noted on the probation form.

Because this conviction arises from a plea of guilty, the facts of the case were never entered in the record. At the start of the plea proceeding, however, defense counsel and the prosecutor both advised the court that the crime involved contractor fraud.

laThe defendant filed a pro se motion for appeal. The trial court granted the motion and appointed appellate counsel on June 18, 2008. Appointed counsel filed a timely brief on appeal, along with a motion to withdraw as counsel. Appellate counsel states she has found no issues to raise on appeal.

Utilizing the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per cu-riam), asserting that she has thoroughly reviewed the trial court record and can find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

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

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial 14motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. In an Anders brief, “[cjounsel must demonstrate to the appellate court by full discussion and analysis that he has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

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

Here, the defendant’s appellate counsel asserts that after a detailed review of the record, she finds no non-frivolous issues to raise on appeal. She specifically states she informed the defendant that she found no issues to appeal and was seeking permission to withdraw as counsel of record.

In brief, counsel requests this Court to conduct a patent error review. Counsel notes that the defendant tendered his plea of guilty prior to any pretrial rulings from the district court. Counsel also notes she considered raising the issue of excessive sentence, but concluded such a claim would be frivolous, particularly |Bin light of the fact that the defendant pleaded guilty to a known sentence of three years and the State promised not to file a triple-offender bill against him.

Appellate counsel has filed a motion to withdraw as attorney of record, which states that she has reviewed the record and advised the defendant of his right to file a pro se brief. In addition, this Court sent the defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 13, 2008 to file a pro se supplemental brief. The defendant has not filed a brief with this Court.

In response, the State catalogues the steps taken in the district court, noting that defense counsel has followed the appropriate procedure to withdraw and that no issues support the defendant’s appeal. The State asserts that the charging instrument was valid, that the defendant was present for all crucial stages of the proceedings, that the defendant’s plea of guilty was knowing, intelligent, voluntary, and valid, and that his sentence was legal.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects by either appeal or an application for post-conviction relief. State v. Wingerter, 05-697, pp. 5-6 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664-665. “An unconditional plea of guilty, willingly and knowingly made, waives all non-jurisdictional defects and bars a defendant from later asserting on appeal that the state failed to produce sufficient proof at the multiple offender hearing.” State v. Schaefer, 97-465, p. 9 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

The defendant in the instant case pleaded guilty unconditionally; thus, all non-jurisdictional issues have been waived. The Acknowledgement of | r,Constitutional Rights form in the record reveals that the defendant was informed of the sentence he would receive if he pleaded guilty. This Acknowledgement form and the colloquy between the trial court and the defendant reveal that the defendant was informed of, and indicated that he understood, his constitutional rights.

Appellate counsel’s brief adequately demonstrates, by full discussion and analysis, that she reviewed the trial court proceedings and could not identify any basis for a non-frivolous appeal. Our independent review of the record supports counsel’s assertion. Further, our patent error review discloses no errors patent.

Accordingly, the defendant’s conviction and sentence are affirmed, and appellate counsel’s motion to withdraw as attorney of record is granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

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

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

      . It is this Court’s standard procedure to review for patent error in every criminal appeal, regardless whether the appellant requests such a review. See La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir. 1990).


text:
    Randal W. GREFF, Jr. a/k/a Randel W. Greff and Randal W. Greff a/k/a Randy W. Greff, as the Administrator of the Estate of His Minor Child, Dustin James Greff v. Patrick E. MILAM, Individually, and as Trustee of the Tri Greff Trust, et al.
    No. 08-CA-726.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2009.

      Warren Horn, Attorney at Law, Heller, Draper, Hayden, Patrick & Horn, LLC, New Orleans, LA, for Plaintiff/Appellant, Randal W. Greff, Jr.
    Kevin M. Wheeler, Larry E. Demmons, Attorneys at Law, Taggart Morton, L.L.C., New Orleans, LA, for Defendant/Appellee, Patrick E. Milam, Individually and as Trustee of the Tri Greff Trust.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

IgThis is a suit by beneficiaries of a trust arising out of the termination of their trust benefits. The trial court granted a partial summary judgment that dismissed the claims of one plaintiff as to some of the defendants, but denied summary judgment as to the other plaintiff. In addition, a motion for partial summary judgment by other defendants is still pending. The plaintiff whose claims were partially dismissed has appealed. We dismiss the appeal for lack of jurisdiction.

On July 27, 1990 Leon J. Greff, as Set-tlor, created an irrevocable inter vivos trust by a document titled “Act of Donation Creating an Irrevocable Inter Vivos Trust,” by Leon J. Greff to Ernest A. Burguieres, III and Patrick E. Milam, dated July 27, 1990. The trust instrument gave the trust the name “The Tri Greff Trust,” named two co-Trustees, Ernest A. Burguieres, III and Patrick E. Milam, and stated the Trust was set up under the laws of Florida, particularly the Florida Trust Statutes.

The Tri Greff Trust created a “class college educational trust” for the benefit of Leon J. Greffs great-grandchildren. The instrument states, “This Trust is being | ¡¡created for the sole purpose of giving an opportunity to the Great Grandchildren of Leon J. Greff to secure an education which will prepare them to secure more from life than would otherwise be available....”

To participate in the Trust, the prospective beneficiaries are required to comply with certain criteria in their academic performances. A beneficiary in grades 5 though 8 is required to “maintain a ‘B Plus’ average or a ‘2.5 G.P.A.’ on a ‘4.0 scale[’], each school year.” A beneficiary in high school is required to take a college-preparatory curriculum that includes designated subjects, and to “maintain a 3.0 grade point average on a 4.0 scale for the school year.”

In the case of 5th-through-8th-grade and high-school beneficiaries, if the beneficiary fails to maintain the designated average the Trustees are charged with determining the cause for such failure. If the failure was due to a cause beyond the beneficiary’s control, the Trustees may maintain the benefits for another term, during which the Trustees “shall make every effort to remove the cause or the causes of the failure” to maintain the grade average. If the cause or causes cannot be removed and the beneficiary does not achieve the required grade average within a year, the Trustees “shall disqualify the beneficiary” from any future benefits and the “beneficiary’s interest in the trust shall be forfeited.”

The Trust requires that each beneficiary be enrolled and attending full time classes in a college or university by their 20th birthday, or forfeit all interest and benefits. A beneficiary may select and attend any accredited college or university of his choice, “except he must secure a BA or BS degree within 5 years or original | ...enrollment” and “must maintain a ‘B Plus’ or a ‘3.0 point average’ on a scale of 4.0 ... to continue to secure the benefits of the trust.”

The Trust also provided,

Should any of the beneficiaries become physically or mentally disabled and ... unable to attend or be tutored in college subjects they have been studying, they shall receive one sixth of their proportional shall [sic] of the funds as allocated, until fully expended, subject to review and the joint approval of the trustees after receiving all medical data surrounding the condition of such beneficiary.

It is uncontested that plaintiffs Randal W. Greff, Jr., known as “Randy Jr.,” and his younger brother, Dustin James Greff, are great-grandchildren of the Settlor and as such were eligible to be beneficiaries of the Trust. Both were receiving benefits under the Trust for several years, until 2004, when the sole remaining Trustee, Patrick Milam, determining they were disqualified from receiving benefits because of low grade point averages, and discontinued payments.

Randy Jr. and Dustin (through his father, Randal W. Greff, Sr., as administrator of his estate) filed suit against the Trustee in August 2004. They asserted the Trustee wrongfully disqualified them as beneficiaries and wrongfully ceased paying them benefits; that he breached his fiduciary duty by failing to give ac-countings as required by the trust instrument; that he failed to comply with the trust’s requirement to appoint a co-trustee to replace Ernest Burguieres (who resigned several years after inception of the trust). The plaintiffs also alleged the Trustee failed to comply with various provisions of the Trust before deciding the plaintiffs were no longer entitled to receive the benefits of the Trust.

The plaintiffs asserted the Trust was negligently and/or improperly drafted, and provisions of the Trust are vague, ambiguous, and subject to varying | ¡^interpretations that frustrate and prohibit satisfying the Trust’s stated goals and educational purposes. The plaintiffs seek judicial reformation of the Trust, requesting that the court determine the true intent of the Settlor and modify the Trust accordingly. They ask the court to disregard the ambiguous and unclear terms of the Trust, and render an interpretation that allows the beneficiaries an opportunity to achieve the stated goals of the Trust and fulfill the intent of the Settlor.

The plaintiffs also seek to have Milam removed as Trustee and to recover against him all educational expenses they have incurred since the date the Trustee failed and/or refused to pay same, as well as future such expenses pending a ruling on their petition.

In addition to Milam, sued individually and as Trustee, the plaintiffs named as defendants numerous other potential beneficiaries of the Trust, including all present and future great grandchildren of the Set-tlor, and all contingent beneficiaries of the Trust.

The Trustee filed an incidental demand against the plaintiffs as well as the other beneficiary-class defendants, seeking a declaratory judgment confirming and ratifying his past interpretations of the Trust’s provisions. The Trustee later filed a re-conventional demand against Randy Jr., in which he sought to recover funds to which the Trustee claimed Randy Jr. was not entitled, and which the Trustee alleged Randy Jr. fraudulently induced the Trustee to pay to him.

Thereafter the Trustee filed a motion for partial summary judgment against the plaintiffs, asserting there was no issue of material fact and he was entitled to judgment as a matter of law that he acted properly in disqualifying them from receiving further benefits of the Trust. Subsequently the other defendants, all | (¡contingent beneficiaries of the Trust, filed a motion for partial summary judgment, on the same basis as the Trustee.

The trial court granted partial summary judgment on the Trustee’s motion as to Randy Jr., but denied partial summary judgment on the Trustee’s motion as to Dustin. The record does not indicate there was any ruling on the motion for partial summary judgment by the contingent beneficiaries. Randy Jr. has appealed.

On reviewing the record in this matter, we find we cannot address the merits of the appeal because we lack jurisdiction. Specifically, the judgment on appeal is a partial summary judgment that is not a final judgment as defined in La.C.C.P. art. 1915. That article provides in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
B. (1) When a court renders a partial judgment or partial summary judgment ..., as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an eocpress determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the jtidgment adjudicating all the claims and the rights and liabilities of all the parties. [Emphasis added.]

|7The judgment on appeal dismissed the claims of Randy Jr. against Patrick Milam, individually and as Trustee. The judgment did not, however, dismiss Randy Jr.’s claims against the other defendants (the contingent beneficiaries) or the claims made in the Trustee’s incidental and re-conventional demands against Randy Jr. Nor did the judgment decide the motion for partial summary judgment by the contingent beneficiaries. In addition, the trial court did not designate the judgment as a final judgment and did not make the required express determination, pursuant to La.C.C.P. art. 1915(B)(2), that there is no just reason for delay.

Therefore, the judgment is an interlocutory judgment, subject to being “revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” It is not subject to immediate appeal and we have no jurisdiction over it. Nolan v. High Grass, LLC, 07-80 (La.App. 5 Cir. 5/29/07), 960 So.2d 1103, 1105.

Accordingly, the appeal is dismissed. Costs of appeal are assessed against the appellant.

APPEAL DISMISSED.

      . Act of Donation Creating an Irrevocable Inter Vivos Trust, by Leon J. Greff to Ernest A. Burguieres, III and Patrick E. Milam, dated July 27, 1990, hereafter The Tri Greff Trust, Art. II (Name of Trust).

      . The Tri Greff Trust, preamble, ¶ 2.

      . The Tri Greff Trust, preamble, ¶ 3.

      . The Tri Greff Trust, Art. Ill (Beneficiaries).

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust).

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 1.

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 2.

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), §§ 1-2.

      . Id.

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 5.

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 8.

      . The Tri Greff Trust, Art. VII (Provisions to Participate in Trust), § 4.


author: WALTER J. ROTHSCHILD, Judge.

text:
    AJB PROPERTIES, LLC v. Jon A. GEGENHEIMER, Clerk of Court and Ex-Officio Recorder of Mortgages for the Parish of Jefferson, Richard Anthony Galvan, Chad B. Ham, Canlas Ellis, LLC and Robert J. Ellis, Jr., Esq.
    No. 08-CA-669.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2009.

      Gerald Wasserman, Leonard M. Berins, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    John B. Esnard, III, Attorney at Law, New Orleans, Louisiana, and Thomas A. Robichaux, Attorney at Law, New Orleans, Louisiana, for Defendants/Appellants.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MADELINE JASMINE, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

|2On June 28, 2007, A.J.B. Properties, L.L.C. (“AJB”) filed a “Petition for Mandamus,” against Jon Gegenheimer, the Clerk of Court and Ex-Officio Recorder of Mortgages for Jefferson Parish (“Clerk of Court”), seeking an order requiring him to set aside the cancellation of two mortgages in the Jefferson Parish mortgage records and to re-inscribe these mortgages. Also named as defendants in the Petition for Mandamus were Chad Ham, Robert Ellis, Jr., Canlas-Ellis, L.L.C., and Richard Gal-van.

In its petition, AJB asserts that on October 19, 2004, Mr. Galvan executed a promissory note in favor of AJB in the principal amount of $8,600.00 as partial consideration for the purchase of property located at 2712 Destrehan Avenue in Harvey, Louisiana. This note was secured by a mortgage affecting the property, and the mortgage was recorded in the Jefferson Parish mortgage records on December 6, 2004. AJB also contends that Mr. Galvan signed a promissory note |3in favor of AJB in the principal amount of $8,500.00 as partial consideration for the purchase of property located at 4249 Lac St. Pierre Street in Harvey, Louisiana. This note was also secured by a mortgage affecting the property, and it was recorded in the Jefferson Parish mortgage records on December 6, 2004.

On March 16, 2007, Robert Ellis, Jr., who is an attorney, filed a “Request for Cancellation” for each of the two mortgages, seeking to have the recordation or inscription of the mortgages cancelled from the Jefferson Parish mortgage records. In support of each Request for Cancellation, Mr. Ellis attached an “Affidavit of Lost Note and Authorization to Cancel Mortgage by Notary Public” executed by Chad Ham. In each affidavit, Mr. Ham asserted that he was the notary public who satisfied the October 19, 2004 promissory notes that were secured by the mortgages on the respective properties. Mr. Ham also asserted in each affidavit that he received the original note from the last holder of the note and was informed that the debt was cancelled, but the note was lost or destroyed due to Hurricane Katrina. Based on the Requests for Cancellation and the affidavits, the Clerk of Court noted in the mortgage records that these two mortgages had been cancelled.

In its Petition for Mandamus filed June 28, 2007, AJB asserts that the cancellation of both mortgages was unauthorized and improper, because neither of the promissory notes secured by the mortgages has been satisfied and AJB has never released or forgiven the maker from his obligations under the notes. AJB further asserts that Mr. Ham’s execution of each “Affidavit of Lost Note and Authorization to Cancel Mortgage by Notary Public” and Mr. Ellis’s execution and filing of the Requests for Cancellation were done without the prior knowledge or authority of AJB. In its petition, AJB seeks the issuance of a writ of mandamus directing the Clerk of Court to set aside the cancellation of both mortgages and to have these mortgages re-inscribed in the mortgage records. AJB further contends |4that because this proceeding was necessitated by the filing of unauthorized affidavits and Requests for Cancellation, attorney fees and costs should be assessed against Chad Ham, Robert Ellis, Jr., and Mr. Ellis’s law firm, Canlas-Ellis, L.L.C.

On July 26, 2007, Mr. Ellis filed an Answer generally denying the allegations in AJB’s petition and Exceptions of Unauthorized Use of Summary Proceedings and No Cause of Action, arguing that a mandamus proceeding is improper under the circumstances and that there can be no cause of action against him in a mandamus proceeding because he is not a public official. On August 15, 2007, the Clerk of Court filed an Answer and a Request for Attorney Fees to be assessed against Mr. Ellis, Canlas-Ellis, L.L.C., and Mr. Ham. On September 27, 2007, Mr. Ham filed a Memorandum in Opposition to Petition for Writ of Mandamus, asserting that the mortgages were validly cancelled under his authority as the last holder of the promissory notes paraphed with the mortgages and that a mandamus proceeding is improper for the relief sought by AJB. On September 28, 2007, Richard Galvan filed an Answer generally denying the allegations in AJB’s petition, as well as Exceptions of Unauthorized Use of a Summary Proceeding and No Cause of Action.

On October 1, 2007, the matter came before the trial court for hearing. After counsel for the parties argued as to whether or not a mandamus proceeding was proper in this case, the trial judge indicated that he would hear the merits of the Petition for Mandamus, and an evidentiary hearing was conducted that day. At the hearing, Robert Ellis testified that at the time of the sale of the properties from AJB to Mr. Galvan, Josh Bruno, who is the owner and only managing member of AJB, agreed to forgive the two promissory notes at issue and waive the second mortgages that secured these notes. Mr. Ellis testified that after the sale, Mr. Bruno reneged on waiving the mortgages and tried to collect on them, but this was |snot what had been agreed to by the parties. He stated that he signed and filed the Requests for Cancellation, because Mr. Bruno had agreed to forgive the notes immediately and waive the mortgages. He also stated that he had authority to cancel the notes, because the affidavit of Chad Ham indicated that the promissory notes had been satisfied.

Chad Ham testified that he is an attorney who has handled hundreds of real estate closings. He stated that the promissory notes at issue were retained by him at the closing, and he understood that the debt was to be forgiven and he was to later cancel the mortgages. He testified that he felt that it was his duty to have the mortgages cancelled in order to clear the titles to the properties.

Joshua Bruno, the owner of AJB, testified that he did not agree to forgive the promissory notes and he believed that he had a valid second mortgage on each of the properties. He further stated that he never gave Mr. Ham, Mr. Ellis or Mr. Galvan the authority to cancel these mortgages.

At the conclusion of the hearing and in a written judgment dated November 5, 2007, the trial judge granted the Exceptions of No Cause of Action as to all defendants, except the Clerk of Court, because they were not public officials, and he dismissed Chad Ham, Robert Ellis, Jr., Canlas-Ellis, L.L.C., and Richard Galvan from the lawsuit, without prejudice. With regard to the merits of the Petition for Mandamus, the trial judge ordered that the cancellations of the two mortgages at issue be set aside and that these mortgages be re-inscribed, restoring to them the ranking and seniority that they would have had if the cancellations had never occurred. The trial judge ordered the Clerk of Court to make the appropriate notations in the Jefferson Parish mortgage records in order to reflect that the cancellations of the mortgages have been set aside and that both mortgages have Rbeen re-inscribed. The trial judge further ordered Robert Ellis, Jr., Canlas-Ellis, L.L.C., and Chad Ham to pay $1,500.00 in attorney fees to the Clerk of Court.

On December 13, 2007, Richard Galvan, Chad Ham, Robert Ellis, Jr., and Canlas-Ellis, L.L.C. filed a Motion for New Trial, which was denied by the trial court. These defendants now appeal the November 5, 2007 judgment and the denial of their Motion for New Trial.

LAW AND DISCUSSION

In their first assignment of error on appeal, Richard Galvan, Chad Ham, Robert Ellis, and Canlas-Ellis, L.L.C. (“defendants”) argue that the trial court erred in ordering the re-inscription of the mortgages at issue in a judgment arising out of a mandamus proceeding and in not ordering AJB to amend its petition or refile as an ordinary proceeding. They argue that this case does not meet the requirements for a mandamus proceeding, particularly because the actions sought by AJB, i.e. setting aside the cancellation of two mortgages and re-inscription of these mortgages, are not legally mandatory ministerial acts. They argue that because the validity of the cancellation of these mortgages is in dispute, the Clerk of Court would have had to use his discretion to determine whether or not the cancellations should be set aside, which renders the actions sought non-ministerial.

AJB responds that, based on the affidavits and Requests for Cancellation filed by Mr. Ham and Mr. Ellis, the Clerk of Court had a clear and non-discretionary duty not to cancel either of the mortgages. Further, AJB claims that LSA-R.S. 44:114 specifically permits the bringing of an action against the recorder of mortgages via a mandamus proceeding to compel the re-cordation of any instrument permitted to be recorded, to cancel from the records any improperly recorded document, or to correct any errors or omissions in the records.

|7A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty that is required by law. LSA-C.C.P. art. 3863; Hebert v. Abbey Healthcare Group, Inc., 94-1280, p. 3 (La.App. 3 Cir. 5/17/95), 657 So.2d 278, 280. Mandamus is a summary proceeding used to compel the performance of a ministerial act, which is an act that is so clear and specific that no element of discretion can be exercised in its performance. Naquin v. Lafayette Public Utilities Authority, 07-42, p. 4 (La.App. 3 Cir. 7/5/07), 963 So.2d 1045, 1048. Mandamus is an extraordinary remedy which is used sparingly by courts and will not be issued in doubtful cases. City of Hammond v. Parish of Tangipahoa, 07-574, p. 11 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 181; King v. Bourgeois, 04-1106, p. 3 (La. App. 1 Cir. 5/6/05), 903 So.2d 549, 551, writ denied, 05-1891 (La.2/3/06), 922 So.2d 1177. The jurisprudence is clear that a writ of mandamus may not issue to compel the performance of an act which contains any element of discretion, however slight. The duty must be purely ministerial. Wiginton v. Tangipahoa Parish Council, 00-1319, p. 4 (La.App. 1 Cir. 6/29/01), 790 So.2d 160, 163, writ denied, 01-2541 (La.12/7/01), 803 So.2d 971; Big Train Construction Company, Inc. v. Parish of St. Tammany, 446 So.2d 889, 890 (La.App. 1 Cir. 2/28/84).

In the present case, AJB alleges in its Petition for Mandamus that the cancellation of both mortgages was unauthorized and improper, because neither of the promissory notes secured by the mortgages has been satisfied and AJB has never released or forgiven the maker from his obligations under the notes. AJB further asserted that the Requests for Cancellation were done without the authority of AJB. The defendants, except for the Clerk of Court, denied the allegations of AJB’s petition and argued that the mortgages at issue were validly cancelled. In its petition, AJB seeks the issuance of a writ of mandamus directing the Clerk of |sCourt to set aside the cancellation of both mortgages and to have these mortgages re-inscribed in the mortgage records. However, throughout the pleadings, it is clear that AJB was not seeking a clear and specific legal right that was required to be performed. Rather, the action for which AJB seeks a writ of mandamus would have required the Clerk of Court to determine whether or not the cancellation of the mortgages was proper and valid, or whether the cancellations were unauthorized and should be set aside. Clearly, the Clerk of Court was not asked to perform a purely ministerial act. At the hearing on this matter, the trial judge and counsel for AJB both acknowledged that the trial judge was being asked to make a credibility call as to whom he believes. A mandamus may not be used to compel the performance of a duty that is dependent on disputed facts.

Although AJB asserts that LSA-R.S. 44:114 authorizes a mandamus proceeding initiated against the recorder to compel the recordation of any document authorized to be recorded, the cancellation from the records of any documents authorized to be cancelled, or the cancellation from the records of any improperly recorded document, this statute does not authorize the use of a mandamus proceeding against the recorder of mortgages when the duty of the recorder is based on disputed facts and the action sought is contested. Further, this statute does not overrule or negate the years of jurisprudence holding that a mandamus proceeding may not be used for non-ministerial acts or in doubtful cases.

Based on the record before us, along with the applicable law, we find that a mandamus proceeding was inappropriate in this case and that the trial judge erred in rendering the November 5, 2007 judgment via a mandamus proceeding. AJB’s appropriate remedy is by ordinary proceedings during which discovery may be conducted. Accordingly, we vacate the trial court’s November 5, 2007 judgment disordering the Clerk of Court to set aside the cancellations of the mortgages and to re-inscribe them, because the proceedings used to obtain this judgment were improper. We remand the case for AJB to timely amend its petition and to proceed by ordinary action, if it so chooses.

In their second assignment of error, defendants argue that the trial court erred in casting them with costs and attorney fees when these same defendants were dismissed from the case on their Exceptions of No Cause of Action. Based on our finding that this proceeding was improperly filed against these defendants as a mandamus proceeding, we vacate the order requiring them to pay $1,500.00 in attorney fees to the Clerk of Court. However, this ruling does not prohibit the trial court from assessing costs and attorney fees as it deems appropriate at a later date, if the matter proceeds as an ordinary action.

DECREE

For the foregoing reasons, we reverse the decision of the trial court allowing this matter to proceed as a mandamus action. We remand the case to allow AJB the opportunity to timely amend its petition to proceed via ordinary proceedings. We further vacate the November 5, 2007 judgment ordering the Clerk of Court to set aside the cancellations of the two mortgages and to re-inscribe these mortgages, as well as the order of $1,500.00 in attorney fees assessed against defendants.

REVERSED; JUDGMENT VACATED; REMANDED.


text:
    STATE of Louisiana v. Baker SEDE.
    No. 08-KA-547.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Juliet Clark-Appellate Counsel, Margaret Hay-Trial Counsel, Assistant District Attorneys, Gretna, LA, for the State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Baker Sede.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On October 11, 2001, the Jefferson Parish grand jury indicted defendant, Baker Sede, on two counts of first degree murder, in violation of La. R.S. 14:30. He pled not guilty and was later found incompetent to stand trial.

Almost two years later, the trial court held another sanity hearing and determined defendant was competent to stand trial. On June 1, 2005, defendant changed his former pleas to not guilty by reason of insanity.

On March 8, 2007, defendant withdrew those pleas and entered guilty pleas on both counts of first degree murder. The trial court accepted defendant’s pleas and sentenced defendant to life imprisonment, without the benefit of parole, probation, or suspension of sentence on each count, to run concurrently. Defendant subsequently filed an application for post-conviction relief and obtained an out-of-time appeal.

Facts

The record contains limited information on the facts and circumstances surrounding these offenses because defendant entered guilty pleas. The record does reflect that, during the plea colloquy, the State recounted that defendant committed first degree murder of Tyree Smith and a six-month-old infant on June \{l, 2001. In defendant’s statements to the police, he stated that Ms. Smith was his girlfriend and the six-month-old infant was his daughter.

In his first assignment of error, defendant argues that his convictions must be reversed because the trial judge should have recused herself and refused to accept his guilty pleas because she represented the defendant at his arraignment. Defendant argues that, because June Darens-burg represented him at his arraignment, she is prohibited under La C.Cr.P. art. 671 from taking action in his case as a trial judge. He admits that he did not file a motion to recuse but contends Judge Dar-ensburg should have recused herself on her own motion under La.C.Cr.P. art. 672. The State responds that defendant is precluded from raising this issue on appeal because he entered an unconditional guilty plea and, therefore, waived any non-jurisdictional defects.

According to the record, defendant’s case was assigned to Division “P” of the Twenty-Fourth Judicial District Court. The minutes of the trial court reflect that, on November 9, 2001, defendant was present in court for arraignment and was represented by Ms. Darensburg “for the arraignment only.” At the arraignment, the indictment was read and defendant entered a plea of not guilty. Additionally, the trial court ordered that an IDB attorney be appointed for defendant. The next minute entry reflects that Michael Riehl-man represented defendant on November 26, 2001. Ms. Darensburg does not appear as counsel of record for this defendant again.

Subsequently, Ms. Darensburg was elected as district court judge for Division “C” of the Twenty-Fourth Judicial District Court. Although defendant’s case was allotted to Division “P,” Judge Darensburg, at Judge Zeno’s request, conducted the plea colloquy, accepted defendant’s guilty pleas, and sentenced |4defendant in accordance with the plea agreement. After Judge Darensburg sentenced defendant, defense counsel stated:

Your Honor, just for the record, this was discussed at the Bench, and everyone has acknowledged this in the past; this case is originally a Division “P” case, handled by the Honorable Melvin Zeno. Judge Zeno is out of town, he had instructed both defense counsel, and the State, that should some resolution, or should any action need to be taken in this case, in his absence, to contact Your Honor, who would act in his absence. Your Honor has agreed to do so, both parties are satisfied with Division “C”, Your Honor, handling this case instead of Judge Zeno.

Judge Darensburg responded, “And that is correct. I did speak to Judge Zeno regarding this matter, and I did agree to handle it, if in fact there was a plea, that was agreed upon by the defense and the State.”

La.C.Cr.P. art. 671 provides mandatory grounds upon which a judge shall be recused in a criminal case. La.C.Cr.P. art. 671(A)(3) provides that a trial judge “shall be recused when he ... [h]as been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause.” The party that moves for recusal under that section does not have to show bias, prejudice, or personal interest on the part of the judge but merely employment “in the cause.” State v. Lemelle, 353 So.2d 1312, 1314 (La.1977); State v. Williams, 00-11 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, 527.

The party desiring to recuse a trial judge must file a written motion assigning the ground for recusation. La.C.Cr.P. art. 674. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself or refer the motion to another judge of that court. La.C.Cr.P. arts. 674 and 675. Further, under La.C.Cr.P. art. 672, a judge may recuse himself, regardless of whether a motion has been filed, in any case in which a ground for recusation exists.

| sIn sum, if this defendant had filed a motion to recuse, the trial judge would have been required to recuse herself under La.C.Cr.P. art. 671(A)(3). See State v. Lemelle, supra; State v. Williams, supra at 13, 788 So.2d at 526. Defendant concedes, as noted above, that he did not file a motion to recuse before he pled guilty.

In general, a guilty plea waives all non-jurisdictional defects in the proceedings prior to the plea and precludes review of such defects either by appeal or post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La.1976); State v. Gaspard, 01-1042 (La.App. 5 Cir. 5/29/02), 820 So.2d 1095, 1096. A defendant may reserve his right to appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, supra at 590-92; State v. Gaspard, supra.

The question is whether a trial judge’s failure to recuse amounts to a jurisdictional defect. If a trial judge’s failure to recuse is a jurisdictional defect, defendant is not precluded from raising it as an error on appeal. If not, however, defendant waived any remedy when he entered his guilty pleas.

In Crosby, the Louisiana Supreme Court defined jurisdictional defects as those which, even conceding a defendant’s factual guilt, do not permit conviction of the charged offense. The supreme court listed the following examples of jurisdictional defects: (1) the lack of jurisdiction of the sentencing court, (2) the conviction represents double jeopardy, (3) the prosecution had prescribed at the time it was instituted, (4) the State lacked constitutional or legal power to try the defendant for the charged offense, (5) the statute under which prosecution is brought is unconstitutional, (6) the charge in the indictment does not constitute a crime, and (7) certain types of patent errors that prevent conviction for the offense. Id. at 588. Further, in Kidd v. Caldwell, 371 So.2d 247, 250 (La.1979), the | (¡Louisiana Supreme Court held that defendant could not seek review of the denial of his motion to recuse because he pled guilty without reserving the right to review that denial. We conclude, therefore, that the failure to recuse is not a jurisdictional defect, and, as such, is waived by an unconditional guilty plea. Defendant, who tendered unconditional guilty pleas for two counts of first-degree murder, is, thus, precluded from raising this issue on appeal.

The next inquiry, as noted by defendant in brief, is whether the error is discoverable on the face of the record, which would trigger review on appeal as an error patent. In his brief, defendant relies on State v. Smith, 93-1385 (La.App. 3 Cir. 4/6/94), 635 So.2d 512. In Smith, the trial judge, who determined the defendant’s multiple offender status and imposed sentence, represented the defendant at his arraignment prior to being elected as a district judge. The Third Circuit found that the judge’s failure to recuse sua sponte when ma ndatory grounds existed was patent error discoverable on the face of the record, which required reversal of the defendant’s sentence.

However, in State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158, the Louisiana Supreme Court held that a guilty plea colloquy was not subject to review for errors patent. Id. at 1162. In Guzman, the supreme court expressly overruled its “previous decision in State v. Godejohn, 425 So.2d 750, 751 (La.1983) (followed in State v. Browning, 483 So.2d 1008 (La. 1986)), wherein [it] held a review of the plea colloquy for errors is subject to error patent review.” State v. Guzman, supra. In light of Guzman, the holding of State v. Smith, which relied on the now overruled State v. Browning, is questionable. Accordingly, we are not convinced that the failure to recuse is an error patent.

17Even assuming that the failure to recuse was an error patent, it appears the error is harmless. In State v. Williams, 00-11 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, the Fourth Circuit held that the erroneous denial of the defendant’s motion to recuse on the grounds of La.C.Cr.P. art. 671(A)(3) was harmless. In Williams, the defendant filed a motion to recuse on the basis of La.C.Cr.P. art. 671(A)(3) because the trial judge had been employed as an assistant district attorney before assuming the bench. The trial judge acknowledged she had been an assistant district attorney at some point while the defendant’s case was being considered for prosecution by the district attorney’s office but denied any recollection of the defendant or his case.

The Fourth Circuit recognized that, under La.C.Cr.P. art. 671(A)(3), any bias, prejudice, or personal interest on the part of the judge was irrelevant but still concluded that there was no evidence the defendant suffered any prejudice as a result of the trial judge’s failure to recuse. The court noted that the defendant pled guilty to a reduced charge. Moreover, there was no indication that the defendant would have fared better if the trial judge had recused herself and a new judge had been appointed to accept the defendant’s guilty plea.

Likewise, in the present case, there is no evidence defendant would have fared better if another judge had been appointed to accept his plea. Although defendant did not plead to a reduced charge, he agreed to plead guilty in exchange for a life sentence, instead of the death penalty.

In summary, we conclude that defendant is barred on appeal from raising the issue of the trial judge’s failure to recuse because he entered an unconditional guilty plea and the failure to recuse is a non-jurisdictional defect that is waived by | Ran unconditional guilty plea. Furthermore, we decline to consider the trial judge’s failure to recuse sua sponte as an error patent. Nonetheless, even if considered an error patent, the trial judge’s failure to recuse in this case would be harmless.

In his second assignment of error, defendant argues that the trial judge erred in accepting the defendant’s pleas without adjudicating his competency. Defendant argues there is nothing in the record that shows defendant was found competent to stand trial after the trial court’s initial determination defendant was incompetent.

In response, the State supplemented the record with a transcript from the hearing on December 11, 2003, wherein the trial court expressly stated, “[cjonsidering the evidence, the court finds the defendant competent to stand trial.” Here, the minute entry from December 11, 2003 conflicts with the transcript, but the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La.1983). Defendant’s argument lacks merit.

Finally, as is our routine practice, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We have found no errors that require correction. Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . In Kidd, defense counsel sought review of his contempt summons and the denial of his motion to recuse the trial judge. The grounds for the motion to recuse were not discussed in the opinion. Id.

      . Compare State v. Brown, 03-1747 (La.App. 3 Cir. 5/12/04), 874 So.2d 318, writ denied, 04-1413 (La. 11/8/04), 885 So.2d 1118, where the Third Circuit found the trial judge’s failure to recuse himself was not harmless error when the trial judge represented the defendant in the prior conviction and the prior conviction was a significant piece of evidence in the current case.