text:
    Warren Gerard TREME v. Elizabeth Ann ADAMS.
    No. 10-CA-554.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Robert T. Garrity, Jr., Attorney at Law, Harahan, LA, for Appellant, Warren Gerard Treme.
    Edith H. Morris, Bernadette R. Lee, Suzanne Ecuyer Bayle, Attorneys at Law, New Orleans, LA, for Appellee, Elizabeth Ann Adams, M.D.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

|2In this domestic matter, appellant, Warren G. Treme, appeals the trial court’s award of attorney’s fees to his ex-wife, Dr. Elizabeth Adams. For the following reasons, we amend and, as amended, affirm.

Although we have a designated record in this matter, it is apparent that, since the parties were divorced over eight years ago, there have been multiple contempt proceedings against Mr. Treme for failure to pay court-ordered child support. On November 12, 2009, Dr. Adams filed the Rule for Contempt underlying this judgment.

In that pleading, Dr. Adams attests that, in a judgment signed October 1, 2009, Mr. Treme was found to be in arrears in the amount of $8,571.25. Further, Mr. Treme was ordered to pay child support for his two minor children to their mother, Dr. Adams, on the 1st and 15th of each month in the amount of $1,043.25. In that Rule, Dr. Adams also stated that this is the third time that she has had to rule her ex-husband into court to obtain payment of his support obligation.

|sOn March 5, 2010, the trial judge heard the Rule for Contempt. At the hearing, Mr. Treme’s attorney reported that his client had been ruled into court by Dr. Adams to enforce his client’s child support obligation in December 2008 and on September 4, 2009. Counsel for Mr. Treme stated that his client had been ordered, under penalty of contempt, to pay child support to his ex-wife at both hearings.

Dr. Adams testified that, although Mr. Treme was ordered to tender a support payment to her on September 15, 2009, he did not make that payment until October 5, 2009. She further testified that, although Mr. Treme did pay $8,100.00 on October 5, 2009, he was still in arrears.

Dr. Adams testified that, on November 12, 2009, the date that her Third Rule for Contempt was filed, Mr. Treme was in arrears a total of $8,189.25. She further stated that, although Mr. Treme did pay $2,100.00 on November 19, 2009, he did not make any further payments until March 1, 2010. On the purge date for the Second Rule for Contempt, Mr. Treme paid $10,675.75. However, on March 5, 2010, Mr. Treme had not yet made his regular payment of $1,642.25 due by court order on March 1, 2010.

At that hearing, Dr. Adams also presented testimony and documentation that, in order to enforce the child support order, she had incurred legal fees and costs totaling $4,026.00. Dr. Adams stated that she had incurred extra legal fees because her ex-husband refused to tender the twice-monthly payments directly to her. Instead, Mr. Treme tenders a check to his attorney, who then mails the check to her attorney, who then copies and mails the check to Dr. Adams.

|4On cross-examination, Dr. Adams admitted that Mr. Treme did pay $1,000.00 toward his arrearages on February 5, 2010. Upon further questioning from counsel for Mr. Treme, she also stated that, although Mr. Treme did pay his ar-rearages on March 1, 2010, that payment was 15 days late. Further, Dr. Adams stated that she had recently paid her attorney $5,000.00 for work done in this case.

During his testimony, Mr. Treme did not contradict Dr. Adams’ statement that he failed to make support payments from November 19, 2009 until the purge date enumerated in the Judgment on Dr. Adams’ Second Rule for Contempt. He stated, “Now, if you want a timeline of what happened, when I was able to give the money, I paid.”

Upon examination by counsel for Dr. Adams, Mr. Treme admitted that he was jailed for five days for “failure to appear, and I made a child support payment at that time. So it was for failure to appear, not child support payments.” Finally, Mr. Treme also admitted that he had continuously paid his own bills, including a mortgage of $3,389.00, car note of $664.00, and monthly utilities throughout the time that he was not paying his twice-monthly child support obligation.

After hearing all of the testimony and considering the exhibits and argument, the trial court found Mr. Treme in contempt. The trial judge awarded Dr. Adams’ attorney fees of $2,000.00 and costs of $245.00 to be paid by March 12, 2010. Further, the trial court sentenced defendant to serve 90 days in the Jefferson Parish Correctional Center, suspended. The trial court ordered that the sentence will become executory “if he misses another child support payment on the date it is due.” Finally, the trial judge ordered Mr. Treme to pay his March 1, 2010 payment by March 12, 2010 or to “report to JPCC and begin serving his time until he is current.” A written judgment to this effect was signed on March 23, 2010 and notice was issued by the Jefferson Parish Clerk of Court on March 25, 2010.

|BOn April 14, 2010, Mr. Treme filed a Motion and Order for Devolutive Appeal on the basis that the award of attorney fees of $2,000.00 was excessive. In brief to this Court, Mr. Treme assigns two errors: first, he argues the trial court abused its discretion in awarding attorney fees, and second, he argues the trial court erred in refusing to allow Mr. Treme’s counsel to use “unredacted” copies of her legal bills to cross examine Dr. Adams about her attorney fees.

Here, defendant complains that the award of $2,000.00 in attorney fees is unwarranted. In actions relating to child support matters, the court has statutory authority to award attorney fees. La. R.S. 9:375(A) reads:

When the court renders judgment in an action to make executory past-due payments under a spousal or child support award, or to make executory past-due installments under an award for contributions made by a spouse to the other spouse’s education or training, it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party. [Emphasis added].

Clearly, under La. R.S. 9:375(A), the trial judge “shall” award attorney’s fees to the prevailing party, unless there is “good cause” not to award said fees. At the hearing, Dr. Adams presented evidence that, in her attempts to enforce the child support order, she had incurred attorney’s fees totaling $4,026.00. However, the trial judge, finding that the fees were not all incurred as “the result of his failure to pay his child support,” ordered Mr. Treme to pay $2,000.00 toward Dr. Adams’ attorney’s fees. We disagree.

Testimony at the hearing revealed Mr. Treme’s recalcitrance towards his moral and legal obligation to support his children, which forces his ex-wife to continually expend resources to enforce that obligation. Dr. Adams testified that she has had to rule her ex-husband into court three separate times to enforce his obligation to his children. In the rule that is the subject of this appeal, the record | (¡reflects that she spent six months paying her attorney to rule Mr. Treme into court to pay his regular obligation and his ar-rearages.

Further, he refuses to tender his obligation to the obligee, his ex-wife. Rather, Mr. Treme tenders each check to his attorney, who then forwards the check to Dr. Adams’ attorney, who then forwards the check to Dr. Adams. Moreover, We cannot say that the testimony at the hearing established “good cause” not to pay all of Dr. Adams’ submitted attorney’s fees. Under these circumstances, we find that an award of $2,000.00 in attorney fees was an abuse of discretion. See, Moises v. Moises, 97-1208 (La.App. 5 Cir. 4/15/98), 710 So.2d 1191. After reviewing the record, we find that the trial judge should have ordered Mr. Treme to pay all of Dr. Adams’ attorney’s fees established at trial. Therefore, we amend the award of attorney’s fees that Mr. Treme must pay to Dr. Adams to $4,026.00.

In his second argument, Mr. Treme contends that the trial court erred in refusing to allow Mr. Treme’s counsel to use “unredacted” copies of her legal bills to cross-examine Dr. Adams about her attorney fees. At the hearing, counsel for Mr. Treme questioned Dr. Adams about her bills that had been redacted to obscure any information that may have been subject to attorney-client privilege. He thoroughly examined Dr. Adams regarding her knowledge of her attorney’s time and effort spent ruling Mr. Treme into court to enforce the child support judgment against him. In fact, the trial judge was persuaded by Mr. Treme’s attorney and awarded half the amount of attorney’s fees submitted by Dr. Adams. Thus, we cannot see how Mr. Treme was prejudiced by the redaction. This argument lacks merit.

\ .FRIVOLOUS APPEAL

Dr. Adams requested a sanction for this appeal as frivolous. The appellate court may award damages for a frivolous appeal. La. C.C.P. art. 2164. This provision is penal in nature and is to be strictly construed. Id.

Damages for frivolous appeals, like sanctions at the trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact of law. Straughter v. Hodnett, 42,827 (La.App. 2 Cir. 1/9/08), 975 So.2d 81, writ denied, 08-0573 (La.5/2/08), 979 So.2d 1286. An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advancing. Id. Appeals are favored and appellate courts are reluctant to impose damages for frivolous appeals. Id.

Our review of this record does not show that this appeal was taken solely for delay or that Mr. Treme did not seriously believe he was entitled to relief. An award of damages to Dr. Adams for frivolous appeal is not warranted.

For the foregoing reasons, we amend the judgment, and affirm as amended. Costs of this appeal are assessed to Mr. Treme.

AMENDED AND, AS AMENDED, AFFIRMED.

      . At the beginning of that hearing, Mr. Treme's attorney had to admit that, in reference to another support issue before the Court, his client had failed to comply with the trial judge’s recent order to produce banking records for the two previous years to support his Rule to Reduce Child Support.

      . The record is unclear as to whether the purge date for the Second Rule for Contempt was February 15, 2010 or March 1, 2010. Because both parties agree that Mr. Treme paid the entire arrearage amount on that date, the actual date is not at issue in this appeal. The record is unclear because neither the Second Rule for Contempt nor the Judgment on that Rule were designated for inclusion in this appellate record by appellant, Mr. Treme.

      . It is unclear from the testimony whether Mr. Treme is writing the check to his ex-wife or to his attorney, who must then negotiate a check to Dr. Adams' lawyer, who must negotiate a check to her client. We will give Mr. Treme the benefit of the doubt that he is writing the check to the obligee, his ex-wife. Because he has already been found in contempt of court for failing to support his children, it would be unwise to continue to delay fulfilling his obligation to his children by participating in puerile behavior. See, Sport v. Sport, 03-0364 (La.App. 5 Cir. 10/28/03), 860 So.2d 258, 261.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee on Behalf of Morgan Stanley ABS Capital I Inc., Trust 2006-HE6, Mortgage Pass-Through Certificates, Series 2006-HE6 and/or Mers as Appropriate v. Nichelle R. CARTER.
    No. 10-CA-663.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Daniel T. Plunkett, Lauren E. Campisi, Tod J. Everage, Attorneys, at Law, New Orleans, LA, for Plaintiffs/Appellees.
    Nichelle R. Carter, In Proper Person, Destrehan, LA, Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, MARC E. JOHNSON, and ROBERT L. LOBRANO, Pro Tempore.
   MARC E. JOHNSON, Judge.

12DefendanVappellant, Nichelle Carter, who is in proper person, appeals the trial court’s denial of her motion to vacate the sale of her home pursuant to a writ of seizure and sale obtained through executo-ry process. For the reasons that follow, we affirm.

On October 27, 2008, plaintiff/appellee, Deutsche Bank National Trust Company as Trustee on behalf of Morgan Stanley ABS Capital I Inc. Trust 2006-HE6, Mortgage Pass-Through Certificates, Series 2006-HE6 and/or MERS (“Deutsche Bank”), filed a Petition for Executory Process seeking a writ of seizure and sale for property located at 2418 Ormond Blvd. in Destrehan and mortgaged by appellant. Deutsche Bank asserted it was the holder and owner of the mortgage note and alleged appellant had defaulted on the note by failing to' pay the installments due in accordance with the terms of the note. It further alleged the | ¡¡balance on the note was $494,251.23 and was due in full on March 21, 2008, but remained unpaid. Deutsche Bank attached the promissory-note and certified copies of the mortgage to its Petition. On October 28, 2008, the trial court issued a writ of seizure and sale.

Thereafter, on November 24, 2008, Deutsche Bank filed a motion to appoint a curator on the basis appellant could not be served at her last known address of 2418 Ormond Blvd. and, thus, she was an absentee who could not be served with the petition for executory process and' notices of seizure and sale of the property. A notice of constructive seizure attempted to be served on appellant at 2418 Ormond Blvd. by the sheriff was returned with a notation that appellant did not live there. Another notice of constructive seizure was taped onto the door of the property. Pursuant to Deutsche Bank’s motion, an attorney was appointed as curator ad hoc to represent appellant and accept service of the petition and notices.

On March 2, 2009, the curator filed his return noting that he attempted to locate appellant by certified mail to her last known, addresses, which was identified through an internet research, and through two public notices published in the newspaper. Two days later, on March 4, 2009, the property at 2418 Ormond Blvd. was sold to Deutsche Bank through a sheriffs sale.

Nine months later, on December 9, 2009, appellant filed an “Emergency Motion to Vacate Final Summary Judgment and Vacate Sheriff Sale for Fraud, Damages In-junctive Relieve [sic] and Other Reheve [sic].” Essentially, appellant sought to set aside the foreclosure and sale of her property on the basis Deutsche Bank did not have standing to bring the foreclosure proceedings because it was not the owner of the mortgage note. Deutsche Bank opposed the motion on the basis it was untimely, procedurally defective and barred by the prohibition against a collateral attack on a final judgment. The matter was set for hearing. On the day |4of the hearing, May 6, 2010, appellant filed an “Amended Motion to Vacate Final Judgment, Now Styled as a Petition for Nullity,” which sought to annul the trial court’s October 28, 2008 order granting executory process and issuing the writ of seizure and sale on the basis defects in the executory process amounted to fraud and ill practices. Appellant specified the fraud as being the lack of assignment of the loan from the original lender, Decision One Mortgage Company, to Deutsche Bank, and the fact Deutsche Bank was not the proper party to foreclose on the property because it had not suffered actual injury.

After a hearing, the trial court denied appellant’s motion explaining that appellant’s remedy to challenge the foreclosure proceedings was to file for an injunction before the sale of the property or to file a suspensive appeal from the order granting the writ of seizure and sale. The trial court further noted appellant’s motion did not constitute a direct action against Deutsche Bank.

On appeal, appellant argues the trial court erred in denying her motion to vacate the sale because Deutsche Bank obtained executory process through fraud and ill practices. She claims Deutsche Bank lacked standing to institute the foreclosure because it is not the true owner of the note and it did not suffer any injury or loss. Appellant further contends the balance Deutsche Bank claimed she owed on the note was erroneous. To support her position, appellant attached exhibits to her appellate brief that purport to show she was making payments on the loan and that the loan balance was decreasing.

Deutsche Bank filed a Motion to Strike the exhibits from appellant’s brief on the basis the exhibits were not offered into evidence at the trial level and, therefore, are improperly before this Court. In response, appellant filed a Motion to Have Case Remanded for Introducing Newly Discovered Evidence. Appellant asserts that had the trial court been aware of this new evidence, which is attached to her ^appellate brief, the ruling would have been different. She requests her case be remanded for the admission of the new evidence.

Pursuant to La. C.C.P. art. 2164, an appellate court must render judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments, and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. The appellate briefs of the parties are not a' part of the record on appeal, and this Court has no authority to consider facts referred to therein if those facts are not in the record. Examination of exhibits attached to an appellate brief, but not offered into evidence at the trial court, is beyond the scope of our review. Distefano v. B & P Const., Inc., 04-25, pp. 4-5 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, 411, writ denied, 04-1735 (La.10/15/04), 883 So.2d 1058.

We find the exhibits attached to appellant’s brief, which were not introduced into evidence and are not a part of the record, were improper and may not be considered by this Court on appeal. Accordingly, we grant Deutsche Bank’s Motion to Strike the exhibits from appellant’s brief.

Considering appellant’s motion to remand, we note that in order for this Court to remand a case so the trial court can receive new evidence, the existing judgment must be set aside without review. Such authority should be exercised sparingly. Love v. AAA Temporaries, Inc., 03-1460, p. 2 (La.10/17/03), 858 So.2d 410, 411. A remand for new evidence is proper when the evidence was unobtainable with due diligence for the original trial and the new evidence is likely to affect the outcome of the case. Id.; Herbert v. Travelers Indemnity Co., 255 La. 645, 232 So.2d 463, 465 (La.1970).

| (¡According to appellant, she discovered new evidence while preparing her appeal. This new evidence consists of a letter dated September 6, 2008 from Countrywide to appellant indicating her personal information may have been compromised by a former employee of Countrywide, a document from MERS servicer identification system that purports to evidence appellant’s loan, and five pages of some sort of log allegedly kept by Deutsche Bank. Appellant contends these five pages show different balances on her loan which supports her argument that Deutsche Bank fraudulently foreclosed on her property.

Appellant attached an affidavit to her motion to remand stating all this evidence was newly discovered and unknown to her prior to the trial court’s ruling on her motion to vacate. She further stated she obtained the evidence from an acquaintance who “gained access to [Deutsche Bank’s] proprietary loan level files and turned those fílés over to [her] during the preparation of her Appellate Brief.”

We find appellant has failed to demonstrate that these documents were unobtainable with due diligence for the original hearing. Additionally, we do not find these documents would have affected the outcome of the case. Accordingly, appellant’s motion to remand is denied.-

ANALYSIS

On appeal, appellant challenges the trial court’s denial of her motion to vacate the seizure and sale of her home obtained through executory process.

An executory proceeding in Louisiana is an in rem action derived from the civil law. It provides a simple, expeditious, and inexpensive procedure by which creditors may seize and sell property upon which they enjoy a mortgage and privilege. Lumar v. Mid State Trust II, 99-451, p. 5 (La.App. 5 Cir. 11/10/99), 749 So.2d 712, 714. Defenses and procedural objections to a proceeding by executory process may be asserted only (1) through an injunction to arrest the seizure and |7sale, or (2) by a suspensive appeal from the order directing the issuance of a writ of seizure and sale, or both. La. C.C.P. art. 2642; American Thrift & Finance Plan Inc. v. Richardson, 07-640, p. 6 (La.App. 5 Cir. 1/22/08), 977 So.2d 105, 108.

A mortgagor who failed to enjoin the sale of property by executory process or who 'did not take a suspensive appeal from the order directing the issuance of the writ of seizure and sale, may nonetheless institute and maintain a direct action to annul the sale on certain limited grounds, provided the property was adjudicated to and remains in the hands of the foreclosing creditor. American Thrift & Finance Plan Inc. v. Richardson, supra. A sale through executory process can be attacked by means of a direct action, filed after the sale has been completed, solely on the ground that there were defects in the proceedings which are substantive in character and which strike at the foundation of the executory proceeding. Id., citing Reed v. Meaux, 292 So.2d 557 (La.1973). Objections as to the lack of authentic evidence or as to minor defects of form or procedure may not be- used as ground for an action to annul a judicial sale of immovable property by executory process. Lumar v. Mid State Trust II, supra.

Appellant sought to set aside the sale of the property, which was authorized by an order in an executory process, in a motion to vacate the sale. “A judgment rendered by a Court of competent jurisdiction imparts absolute verity and has the force of things adjudged, unless and until it is set aside in a direct action of nullity.” Lowman v. Merrick, 06-921, p. 10 (La.App. 1 Cir. 3/23/07), 960 So.2d 84, 90. Thus, a judgment, even though founded on ill practices, must be presumed to have been regularly obtained until the contrary is shown in direct proceedings. Nethken v. Nethken, 307 So.2d 563, 565 (La.1975).

The Louisiana Supreme Court has stated that any attempt to nullify a sale authorized by executory process must be brought in a direct action. Reed v. Meaux, 292 So.2d at 560. A direct action means “that the party praying for the nullity of a judgment, before the court which has rendered same, must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits.” Nethken v. Nethken, supra.

A motion to vacate is not a direct action. Rather, it is a summary proceeding, which does not require citation and other formalities required in ordinary proceedings. La. C.C.P. art. 2591; See Taylor v. Hixson Autoplex of Alexandria, Inc., 00-1096, p. 10 (La.App. 3 Cir. 3/28/01), 781 So.2d 1282, 1288. Further, appellant’s amended motion to vacate, which she claimed was “now styled as a petition for nullity,” was not a direct action. It was never filed as a petition, but rather was filed as a motion in the same proceeding as the original suit filed by Deutsche Bank. Additionally, Deutsche Bank was never cited to appear.

Appellant’s motion to vacate was an improper procedural vehicle to attempt to nullify the sale. As stated above, our law requires an attempt to nullify the sale of property sold pursuant to executory process be asserted by direct action. Appellant never brought a direct action. Therefore, we find no error in the trial court’s ruling denying appellant’s motion to vacate.

AFFIRMED


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Carl PAYNE.
    Nos. 10-KA-46, 10-KA-47.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Vincent Paciera, Jr., Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Carl Payne, In Proper Person, Jackson, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and ROBERT L. LOBRANO, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

lain these consolidated appeals Carl Payne (“Payne”), defendant/appellant herein, appeals his convictions and sentencing on four counts of criminal activity and his adjudication and sentencing as a third felony offender. Payne was charged with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one); possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (count two); .unlawful possession of body armor in violation of La. R.S. 14:95.3 (count three); and possession of alprazo-lam in violation of La. R.S. 40:969(C) (count four). Payne entered a plea of not guilty to. all. counts and filed a motion to suppress .the evidence, which was denied. Ultimately, Payne was tried by a jury and convicted as charged on all counts.

The trial court-imposed sentences of fifteen years of imprisonment at hard labor and a $5000 fine on count one, and thirty years of imprisonment at hard labor on count two. As to counts one and two, the trial court imposed these sentences without the benefit of parole, probation, or suspension of sentence. For counts | sthree and four, defendant was sentenced to two years of imprisonment at hard labor for each count. All of defendant’s sentences were ordered to run concurrently with each other. Payne filed a timely appeal from the convictions and sentences that was granted by the trial court.

The State filed an habitual offender bill of information charging Payne with being a third felony offender. The State used Payne’s underlying conviction of possession with intent to distribute heroin (count two), and his prior convictions of possession of cocaine in case No. 02^1752, and armed robbery and aggravated battery in case No. 95-4987.

Payne denied the allegations in the multiple bill and filed a response and objection to the multiple bill. In this response, he argued the following: (1) the alleged predicate convictions were obtained in violation of the constitutions because he was not advised of his rights at the time he pled guilty to the predicate offenses; (2) he was not advised of the possible future applicability of La. R.S. 15:529.1 at the time of pleading guilty to the predicate offenses; (3) he was not properly Boykinized when his predicate convictions were obtained; and (4) other further facts to be adduced at trial on the matter. Payne also filed a motion for discovery relating to the multiple bill.

The trial court denied Payne’s motion to quash and, after a hearing, found Payne was a third felony offender. The trial court vacated Payne’s original sentence imposed on the possession of heroin with intent to distribute (count two), and imposed an enhanced sentence of fifty years of imprisonment at hard labor to be served without benefit of parole, probation, or suspension of sentence. The |4sentence was also ordered to run concurrently with his other sentences. Payne filed a second timely appeal from the multiple bill proceedings.

Both appeals were consolidated in this Court.

FACTS

Sergeant Elvin Módica of the Jefferson Parish Sheriffs Office received information from a confidential informant that led to the investigation of a person known as “Pimp” at an address of 1445 Lincoln Avenue in Jefferson Parish. After confirmation of the information received, a search warrant was executed at 1445 Lincoln Avenue.

Lieutenant Daniel Jewell, Jr. of the Jefferson Parish Sheriffs Office participated in the execution of the warrant. When he arrived, there were several individuals, including adults and children, “malingering about” under the carport of the residence. After Lieutenant Jewell exited his vehicle, a black male wearing a black T-shirt fled into the residence. Lieutenant Jewell chased the male, who was later identified as Payne, into the residence and apprehended him about a foot into the door of a bedroom at the end of the hallway. No one else was in the room. Sergeant Módi-ca, who was present when the search warrant was executed, testified that certain evidence was recovered from the bedroom where Lieutenant Jewell secured Payne. Several items were seized from the entertainment center in this bedroom, including a small .22-caliber revolver with three live cartridges, a clear plastic bag with nine foil packages containing tan powder, and one plastic bag inside of that with light brown powder. The foil packages were found on the same shelf as the revolver. A black leather wallet, with Payne’s Louisiana identification card that reflected the 1445 Lincoln Avenue address and a debit card, was also recovered from the entertainment center.

| ¡-.Officers found a loaded Smith & Wesson .40-caliber handgun wrapped in a white T-shirt on the floor of the bedroom between the bunk beds and the dresser. A photograph of Payne was also recovered from the room during the search. '

In other parts of the residence, a sock was found that contained ten Winchester .40-caliber Smith & Wesson rounds. Other items were found in a bathroom that was attached to and only accessible from Payne’s bedroom. Among those objects, were a plastic sandwich bag with one small foil package and one clear plastic bag containing tan powder, alprazolam, and a piece of foil with tan powder wrapped in a piece of plastic. A razor blade, aluminum foil, and two digital scales were also found in the bathroom.

A bulletproof vest or “body armor” was found hanging in the closet in Payne’s bedroom. An investigation revealed that the vest belonged to Lieutenant Timmy Miller of the Jefferson Parish Sheriffs Office. The vest had been last seen about ten years before when it disappeared from inside of the officer’s vehicle. Also in the closet, Sergeant Módica recovered a Winchester 12-gauge semiautomatic shotgun.

Other evidence seized in the bedroom include an envelope addressed to Payne, legal documentation from case Nos. 95-4987 and 02^4752, and a photocopy of case law with the name “Pimp” written on it twice. A clear plastic bag with light-colored powder was found in a dog bowl in the kitchen.

Five hundred eight-six dollars ($586) in cash was removed from Payne’s right rear pocket. When asked where the money came from, Payne responded that he did not have a job and gave Sergeant Módica a few answers, none of which could be verified.

Tammy White, Payne’s mother, testified that Payne was living at the residence at the time of the search. Although Mrs. White admitted that the room ^belonged to Payne at the time, she denied that she gave police officers that information when the search warrant was executed. Mrs. White stated that Payne had stayed in the room every night for the prior two months. She explained that she was in the kitchen when the police entered the residence and showed her a badge. She denied that the police ever showed her a search warrant. She testified that police came back and gave a warrant to her husband on the day after the search.

LAW AND DISCUSSION

In the first appeal, both defense counsel and Payne have assigned and briefed errors to this Court for our consideration. Through his defense counsel, Payne argues both the original and the enhanced sentences are excessive. In a pro se brief, Payne argues his pre-trial motion to suppress should have been granted because the affidavit used to support the search warrant failed to establish probable cause. In the brief on the appeal of the multiple offender proceedings, Payne argues the trial court erred in finding him to be a third felony offender.

EXCESSIVE SENTENCE

Payne’s arguments on the excessive sentence assertion encompass both the original sentence on count two and the enhanced sentence on the multiple offender bill of information. However, since the original sentence was vacated before imposition of the enhanced sentence, any argument as to the original thirty-year sen-tenee is moot because it no longer exists.

Although Payne also mentions his fifteen-year sentence imposed for count one, he does not specifically argue that this sentence is excessive. Payne does not include any argument or citation of authority regarding the excessiveness of his fifteen-year sentence. All specifications or assignments of error must be briefed |7and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Payne’s mere assertions of excessiveness without supporting legal argument on the sentence imposed on count one present nothing for review on appeal.

Payne objected to the enhanced sentence imposed by the court in the multiple offender proceedings in the trial court as excessive. However, Payne did not file a motion to reconsider the sentence in the trial court.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to ■ a review of the sentence only for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of -the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the |ssame court and other courts. Generally, the maximum sentences are reserved for. cases involving the most serious violations of the offense charged and the worst type of offender. A trial judge is in the best position to. consider the aggravating and mitigating circumstances of a case, and, therefore, is given broad discretion in sentencing.

As a third felony offender, defendant faced thirty-three years and four months to one hundred years of imprisonment. We do not find the trial court abused its broad sentencing discretion in sentencing Payne to fifty years of imprisonment. Payne had prior convictions of armed, robbery, aggravated battery, and possession of cocaine. At the same time Payne was convicted of possessing heroin with the intent to distribute, he was also convicted of three other offenses, including possession of alprazolam, possession of a firearm by a convicted felon, and unlawful possession of body armor. Further, Payne illustrated a disregard for the welfare of others by keeping dangerous narcotics and loaded weapons in a house with children.

The enhanced sentence is not grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Further, the sentence does not shock this Court’s sense of justice. We find no merit in this assignment of error.

MOTION TO SUPPRESS

In a pro se brief, Payne asserts the trial court erred in denying a motion to suppress the evidence because the allegation contained in the affidavit was not corroborated and the information upon which the affidavit was based was vague and untested. Payne contends that the alleged transaction took place outside with |0“Pimp” and that the informant did not observe heroin inside the premises. Payne challenges his identification as “Pimp” and alleges that there was no investigation into whether the suspect resided at the residence. Payne concludes that the affidavit failed to establish probable cause for issuance of the search warrant.

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. A search, warrant, may be issued only upon probable cause to establish to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. Probable cause for the issuance of a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” An affidavit supporting a séarch warrant is presumed to be valid and the defendant has the burden of proving that the representations made in the affidavit are false.

The determination of probable cause does not rest on an officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. A search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized.

The task for a reviewing court is simply to ensure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that Improbable cause existed. Within its four corners, an affidavit must contain the facts establishing the existence of probable cause for issuing the warrant. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers.

When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. The trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of its discretion. Marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable.

In the present case, under the totality of the circumstances, we find there was a substantial basis upon which to find probable cause to issue the search warrant. Detective Patrick Evans of the Jefferson Parish Sheriffs Office stated the following in his “Application for and Affidavit in Support of a Search and Seizure Warrant” for the search of 1445 Lincoln Avenue in Jefferson Parish:

In late May 2009, Detective Patrick Evans, assigned to the Investigation Bureau Project Star Unit of the Jefferson Parish Sheriffs Office, was contacted by a confidential informant whose credit has been established by independent corroboration concerning the retail distribution of heroin from 1445 Lincoln Avenue, Jefferson. The confidential informant stated that a black male known as “PIMP” Inwas distributing quantities of heroin from 1445 Lincoln Avenue, Jefferson. The confidential informant stated he was in a position to effect a controlled purchase of heroin from “Pimp” at 1445 Lincoln Avenue, Jefferson.
Within the past forty-eight (48) hours, Detective Patrick Evans and Sergeant Elvin Módica met with the confidential informant to attempt a controlled purchase of heroin from 1445 Lincoln Avenue, Jefferson. Detective Evans met with the confidential informant and took all the necessary precautions to ensure he was free of all contraband.
Detective Evans provided the confidential informant with official funds to purchase a quantity of heroin from 1445 Lincoln Avenue, Jefferson. Subsequently, Detective Evans and Sergeant Módi-ca followed the confidential informant, never losing sight of him, to the residence of 1445 Lincoln Avenue, Jefferson. Detective Evans and Sergeant Módica observed the confidential informant knock on the door at 1445 Lincoln Avenue, Jefferson.
A Black Male emerge [sic] from the residence and met with the informant. After a brief conversation, there was a hand-to-hand exchange between the informant and this Black Male. The informant turned and walked away. The Black Male turned and entered the residence. Detective Evans and Sergeant Módica maintained a continuous surveillance on the confidential informant until he arrived at a pre-arranged meeting location.
Once at this location, the confidential informant tendered a quantity of suspected heroin to Detective Evans. A presumptive field test was conducted on the substance, which yielded a positive response for the presence of Heroin. Again, all the necessary precautions were taken to ensure the confidential informant was free of all contraband.
The confidential informant stated that he purchased the heroin from “Pimp” at 1445 Lincoln Avenue, Jefferson. The confidential informant stated once at the residence he met with Pimp and he requested a quantity of heroin. The confidential informant stated “Pimp” produced a quantity of heroin. “Pimp” provided the confidential informant with the heroin in exchange for the U.S. currency. While the confidential informant was departing the residence “Pimp” stated to the confidential informant to return if additional quantities were needed.
Detective Evans and Sergeant Módica returned to the Investigation Bureau and secured the quantity of heroin in the narcotics evidence locker.
Based upon the information detailed above, Detective Patrick Evans respectfully requests a [sic] order of search be issued for 1445 Lincoln Avenue, Jefferson, located within the Parish of Jefferson and |12State of Louisiana, authorizing the search for controlled dangerous substances, more specifically heroin, paraphernalia associated with the packaging, distribution and use of a controlled dangerous substance, specifically heroin, any documentation relative to distribution; and documentation regarding residency or associated with narcotic trafficking; and any assets, including currency, which may be the proceeds of narcotic trafficking.

These facts and circumstances were sufficient to support the reasonable belief that Payne was distributing heroin from the residence at 1445 Lincoln Avenue. Although Payne raises arguments of vagueness and reliability in regards to the confidential informant, this case involves more than a tip from an informant. The affiant personally observed a controlled buy outside of the residence between the informant and the individual he identified as “Pimp.”

When a search warrant is not dependent upon the credibility of the confidential informant but on police observation, lack of evidence regarding the informant’s credibility will not render a search warrant invalid. Although the affiant did not provide specific information regarding the informant’s reliability or success rate, the search warrant was primarily based on the controlled buy observed by the affiant. This Court has held that such a successful buy is sufficient to find that there was probable cause for a warrant.

We find there was probable cause for issuing the search warrant, especially in light of the controlled buy conducted outside of the residence at 1445 Lincoln Avenue and observed by the affiant. Although Payne argues that the transaction was conducted outside the residence and, therefore, the informant did not observe contraband inside of the residence, it is reasonable that evidence of the offense or contraband might be found inside of the • residence. The Louisiana Supreme Court | ishas recognized that the police and issuing magistrate can reasonably assume the fruits and instrumentalities of an offense are probably stored in a suspect’s home.

Payne also appears to suggest that there was lack of corroboration or investigátion into the informant’s tip. However, the controlled buy set up with the informant at the specific address indicated by the informant served to corroborate the tip that heroin was being sold from the residence by a black male known as “Pimp.” Further, Payne has failed to prove the representations made in the affidavit were false.

In determining whether the trial court’s ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing, but also may consider pertinent evidence presented at trial. During trial the State presented evidence that documentation was found in Payne’s room during the search with the name “Pimp” written on it. Although Payne questions whether there was an investigation to see if “the suspect” lived at the residence, Payne’s mother confirmed at trial that he was living at the residence at the time of the search. Further, the search warrant affidavit shows that Sergeant Módica witnessed the controlled buy with the informant and the person known as “Pimp.” At trial, it was established that Sergeant Módica was present when the search warrant was executed at the residence and when Payne was apprehended.

Based on the foregoing, we find that the trial court did not abuse its discretion by denying the motion to suppress evidence obtained from the execution of the search warrant. As such, Payne’s pro se supplemental assignment of error is without merit.

MULTIPLE offender adjudication

Payne argues the trial court erred in finding him to be a multiple offender because of defects in the predicate offenses. He contends that the State’s proof of his prior convictions was insufficient. He claims that he was never advised of the maximum sentencing exposure for either of the pleas on the predicate offenses, or that the conviction could be used later to make him a multiple offender. He notes that the transcript only reflects that the judge asked defense counsel if he went over the plea form with Payne.

The State responds that the.trial court properly found no constitutional deficiency regarding the use of the predicate conviction in case No. 02-4752, where Payne was found guilty at trial. For this conviction, the State contends it was only required to produce evidence of the conviction, and the presumption of regularity of judgment was sufficient to meet its original burden of proof. Further, Payne’s argument on this assignment of error only relates to the guilty pleas.

In its presentation, the State used Payne’s underlying Conviction of possession with intent to distribute heroin in case No. 09-3350 (count two) and his prior convictions of possession of cocaine in case No. 02-4752 and armed robbery and aggravated battery in case No. 95-4987.

As for case No. 95-4987, the State presented four exhibits, three of which were admitted into evidence at trial for the underlying conviction in district court case No. 09-3350; State’s Exhibit 3 included the fingerprint card with the fingerprints taken by the expert for the underlying offense. The State also presented evidence related to Payne’s conviction of possession of cocaine in case No. 02-4752. This exhibit included fingerprints, a prior multiple bill with the possession of cocaine conviction as the underlying conviction, a waiver of rights form, and commitments reflecting the underlying conviction and sentencing on the |T.^multiple bill. The State noted that the expert had compared the fingerprints to those taken for the underlying conviction and determined the fingerprints were made by the same person. The State also presented a certified package in case No. 95-4987, which showed that Payne was originally charged with armed robbery and attempted second degree murder and that the charge was amended to aggravated battery. It further reflected that Payne pled guilty to those charges. The exhibit also included fingerprints, which the State noted were identified at trial by the expert as belonging to the same person on trial. The new exhibit presented by the State was a certified copy of case No. 95-4987, which included the bill of information, fingerprints, a waiver of rights form, sentencing minute entry, and a transcript of the colloquy between Payne and the trial judge at the time of the pleas. After reviewing the exhibits, the trial court found Payne was a third felony offender. Payne objected to the finding.

To prove a defendant is an habitual offender, the State must initially prove the prior felony convictions and that defendant is the same person who was convicted of the prior felonies. When the State relies on a prior conviction that is based on a guilty plea in proving defendant’s multiple offender status and defendant denies the multiple bill’s allegations, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken.

If the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of a procedural irregularity. If defendant .meets this burden, the burden shifts back to the State to prove the | ^constitutionality of the plea, that is, that the plea was knowing and voluntary. This final burden can be met if the State produces a “perfect transcript” articulating the Boykin colloquy between the defendant and the trial judge or .any combination of a guilty plea form, a minute entry, or an “imperfect” transcript. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary and made with an articulated waiver of the three Boykin rights.

The Habitual Offender Law does not require the State to use a specific type of evidence in order to carry its burden of proof. The defendant’s prior convictions may be proven by any competent evidence.

The State must prove defendant’s identity as the same person convicted of a prior felony. However, Payne’s arguments do not encompass a challenge to the commonality of identity. Thus, that issue will not be discussed.

Payne also admitted that he had prior convictions for armed robbery, aggravated battery, and possession of cocaine at the suppression hearing. At trial, it was established that, during the search, documentation regarding case Nos. 02-4752 and 95-4987 were recovered from Payne’s room.

The State established that Payne pled guilty to the offenses and was represented by counsel when the guilty pleas were taken. Thereafter, Payne failed to present affirmative evidence of any infringement on his rights or procedural irregularity in the taking of his predicate pleas and, therefore, the burden never shifted to the State to prove the constitutionality of the predicate pleas.

| i7Payne argues that, at the time he pled guilty, he was not informed of the maximum sentencing exposure. He further argues that he was not advised that his conviction could be later used for purposes of multiple billing him. Similar arguments have been rejected by this Court, and we have found that these elements are not part of the constitutionally required Boykin rights.

La.C.Cr.P. art. 556.1 requires the trial court to advise the defendant of his sentencing exposure and the nature of the charge to which the plea is offered prior to accepting a guilty plea. However, that article did not become effective until August 15,1997 and, therefore, was not applicable when Payne entered his guilty pleas on April 30, 1996. Furthermore, the Louisiana Supreme Court has held that advice with respect to the defendant’s sentencing exposure may facilitate the taking of a voluntary guilty plea, but it has never formed part of the core Boykin requirements for the entry of a presumptively valid guilty plea. Therefore, at the time of the 1996 guilty pleas, there was no statutory or jurisprudential requirement to inform defendant of the sentencing exposure for the crimes.

Moreover, the maximum sentences for each count were included in the guilty plea form in case No. 95-4987. Further, after the colloquy and sentencing in case No. 95-4987, the judge mentioned the maximum sentences that could have been imposed and the possibility of a future multiple bill upon commission of another felony.

Based on the foregoing, the trial court properly found Payne to be a third felony offender.

^ERRORS PATENT

Payne requests an error patent review. However, this Court routinely reviews the record for errors patent. Upon review we find the following errors patent:

Although the commitment in this case reflects that Payne was properly advised of the prescriptive period for filing post-conviction relief pursuant to La. C.Cr.P. art. 930.8, the transcript reflects otherwise. The transcript prevails when there is a discrepancy between the commitment and the transcript. According to the transcript, the trial judge advised defendant that he had “two (2) years to file for post conviction relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete.

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

There is an additional discrepancy between the commitment and the transcript regarding Payne’s sentence for count one. The transcript reflects that Payne received a $5000 fine for his conviction for being a felon in possession of a firearm. However, the commitment does not reflect that a fine was imposed.

There is also a patent error in the enhanced sentence. “La. R.S. 40:966(B)(1) provides that for possession with intent to distribute heroin a defendant is subject to ‘imprisonment for not less than five nor more than fifty |19years at hard labor at least five years of which shall be served without benefit of probation, or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars.’ ”

In the present case, the trial court sentenced defendant to fifty years of imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1(G) provides that the enhanced sentence shall be without benefit of probation or suspension of sentence. The restrictions imposed on parole eligibility in multiple offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” The underlying statute in the present case does not provide for the prohibition of parole. As such, Payne’s enhanced sentence should not have been imposed with the parole restriction.

We hereby amend Payne’s sentence to delete the prohibition on parole and remand the case to the trial court for correction of the commitment.' We direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which Payne has been sentenced.

Finally, the record does not disclose that Payne was advised of his rights prior to the multiple bill hearing. The failure of the trial court to advise a defendant of his right to a trial and to remain silent is harmless error when, as in the matter before us, the multiple offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant.

12nFor the foregoing reasons, we affirm Payne’s convictions and adjudication as a multiple offender. We amend the enhanced sentence to delete the prohibition on parole, and, as amended, we affirm the enhanced sentence. We direct the trial court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which Payne has been sentenced. We further affirm the sentences on counts one, three, and four, and we inform Payne of the time limitation for filing post-conviction relief as set forth in this opinion.

CONVICTIONS AFFIRMED; SENTENCES AMENDED, AND, AS AMENDED, AFFIRMED

      . State v. Payne, No. 10-KA-46 was taken prematurely because it was filed after his convictions and imposition of the original sentences but before the multiple offender adjudication and sentence. However, defendant’s subsequent re-sentencing after his multiple bill proceedings, as evidenced in case No. 10-KA-47, cured this procedural defect.

      . State v. Payne, No. 10-KA-47.

      . State v. Jenkins, 07-423 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166, writ denied, 07-2243 (La.5/30/08), 983 So.2d 895.

      . Rule 2-12.4 of the Uniform Rules, Courts of Appeal.

      . State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764.

      . La.C.Cr.P. art. 881.1. See also, State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, - U.S. -, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

      . State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109.

      . State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767.

      . Id.

      . Id.

      . State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, 16.

      . See, La. R.S. 15:529.1(A)(l)(b)(i).

      . State v. Holmes, 08-719 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied, 09-0816 (La.1/8/10), 24 So.3d 857.

      . State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, - U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

        . State v. Lee, 976 So.2d at 122 (citation omitted).

      . State v. Johnson, 08-265 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 599.

      . State v. Lee, 976 So.2d at 122.

      . State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . State v. Lee, 976 So.2d at 122 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983)).

      . State v. Casey, 775 So.2d at 1028.

      . State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, 969.

      . Id.

      . See, La.C.Cr.P. art. 703(D); State v. Johnson, 994 So.2d at 599.

      . State v. Lee, 976 So.2d at 122.

      . State v. Rodrigue, 437 So.2d 830, 833 (La.1983).

      . State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, 287, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

      . See, State v. Hogan, 02-924 (La.App. 5 Cir. 1/28/03), 839 So.2d 296, 300.

      . State v. Major, 09-370 (La.App. 5 Cir. 11/24/09), 26 So.3d 289, 295.

        . State v. Mollette, 08-138 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-0155 (La.10/16/09), 19 So.3d 472.

      . State v. Lanieux, 09-676 (La.App. 5 Cir. 3/9/10), 42 So.3d 979, 981.

      . State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Lanieux, 42 So.3d at 983.

      . Id.

      . Id.

      . State v. Lanieux, 42 So.3d at 983.

      . Id.

      . La. R.S. 15:529.1.

      . State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127, 1132 (citation omitted).

      . Id.

      . See, State v. Woods, 09-399 (La.App. 5 Cir. 3/9/10), 38 So.3d 391; State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199; State v. Tomlinson, 05-201 (La.App. 5 Cir. 10/6/05), 916 So.2d 1200, 1203 (citing State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158, 1164).

      . See, State v. Lanieux, 42 So.3d at 983.

      . 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).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598.

      . See, State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272.

      . State v. Dee, 09-712 (La.App. 5 Cir. 2/23/10), 34 So.3d 892, 902.

      . State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 79, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983 (quoting State v. Bruins, 407 So.2d 685, 687 (La.1981)).

      . See, State v. Dee, supra.

      . Id.; La.C.Cr.P. art. 882(A).

      . See, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

      . State v. Lanieux, 42 So.3d at 984.


author: PITTMAN, Judge. MURDOCK, Judge, BRYAN, Judge,

text:
    Theresa LAWSON d/b/a The Design Company v. BRIAN HOMES, INC., et al.

    2040619 through 2040625.
    Court of Civil Appeals of Alabama.
    Oct. 20, 2006.

      Gregory A. Reeves of Edwards, Mitchell & Reeves, Decatur, for appellant.
    Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellees Wells Fargo Home Mortgage, Inc.; Chase Manhattan Mortgage Corporation; Countrywide Home Loans, Inc.; and Full Spectrum Lending, Inc.

       Other than Brian Homes, Inc., each appeal involves different appellees. Rather than listing them separately, the opinion discusses only the relevant parties.

   On Application for Rehearing

PITTMAN, Judge.

The opinion of May 26, 2006, is withdrawn, and the following is substituted therefor.

These cases involve the priority of liens on specific parcels of property located in Madison County. We have consolidated these appeals.

Brian Homes, Inc. (“Brian Homes”), a home-building company, developed certain parcels of property in Madison County by building single-family residences on those parcels. On June 20, 2003, Brian Homes obtained a construction loan secured by a mortgage upon those parcels (“the senior mortgage”) from New South Federal Savings Bank. Theresa Lawson, who does business as The Design Company (“Lawson”), performed subcontractor work for Brian Homes, installing carpet, tile, and marble flooring in numerous residences. In January 2004, the construction loan secured by the senior mortgage was paid in full with the proceeds of loans made on behalf of the ultimate occupiers of the constructed houses (“the purchasers”) by Wells Fargo Home Mortgage, Inc.; Chase Manhattan Mortgage Corporation; Countrywide Home Loans, Inc.; and Full Spectrum Lending, Inc. (“the lenders”). At the time that the construction loan was paid in full, no materialman’s liens had been recorded as to any of the parcels. In fact, it is undisputed that the lenders had no notice of a junior or secondary lien at the time they provided the funds to satisfy the loan secured by the senior mortgage. Lawson perfected materialman’s liens as to the seven parcels at issue during the spring of 2004, and in August 2004 she filed multiple actions against the lenders and the purchasers to enforce those liens. The time line of each of the seven actions is marginally different from the others, but the priority issues are the same in all seven cases.

In each of the cases, the sequence of events is substantially the same: New South Federal Savings Bank held a first mortgage on each parcel on which a house was to be built by Brian Homes and its subcontractors. Lawson then provided material and labor to complete the flooring as to each house. Shortly after the completion of Lawson’s work, Brian Homes sold each separate parcel of property to one of the purchasers, who acted in good faith and had no notice of the existence of Lawson’s potential lien. After Brian Homes had failed to pay Lawson with proceeds from those sales, Lawson attempted to perfect liens as to each parcel. The filing and recording of those liens occurred after the recording of the senior mortgage and after the recording of the lenders’ mortgages. In each action, Lawson asserted that her lien took priority over the lenders’ mortgages pursuant to § 35-11-211, Ala.Code 1975, and she requested that the trial court order the sale of each of those parcels in order to pay Lawson the amount due on each lien.

The lenders filed summary-judgment motions in each of Lawson’s actions to enforce the liens; in those motions, the lenders argued that either Lawson’s liens did not have priority over the lenders’ mortgages or that the lenders were due to be equitably subrogated as to the senior mortgage. Lawson, relying on this court’s decision in Collateral Investment Co. v. Pilgrim, 421 So.2d 1274 (Ala.Civ.App.1982), opposed the lenders’ motions and filed her own summary-judgment motion in each action.

The trial court entered summary judgments in favor of the lenders and the purchasers in all of Lawson’s lien-enforcement actions, noting that Lawson might otherwise have priority pursuant to § 35-11-211, Ala.Code 1975 (the materialman’s lien priority statute), but that, in each case at issue, the lenders were equitably subro-gated to the first-priority position of the senior mortgage. Lawson appeals and asserts that the trial court erred in failing to correctly apply § 35-11-211, Ala.Code 1975, and the holding in Pilgrim.

The primary question on appeal is whether the trial court could properly enter a summary judgment against Lawson in each of her actions seeking to force a sale of the pertinent parcel of property in order to enforce her lien. In each case, Lawson and the current homeowners and the lenders agreed to accept the trial court’s judgment without a hearing and based upon the pleadings and exhibits, and, in each case, the trial court determined that despite Lawson’s statutory-priority argument, her position was secondary to that of the lenders, who were held to be entitled to equitable subrogation as to the senior mortgage.

The trial court in this case applied the law to the pleadings, which essentially contained undisputed facts. When an appellate court must determine if the trial court misapplied the law to undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. City of Prattville v. Post, 831 So.2d 622, 628 (Ala.Civ.App.2002); see also Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

Lawson contends that the trial court failed to properly enforce Alabama statutes and caselaw pertaining to priority of liens. The Alabama statutes concerning mechanic’s and materialman’s liens are codified at §§ 35-11-210 through 35-11-234, Ala.Code 1975. Those statutes, in one form or another, have been in force since the 19th century. The most recent legislative amendments to § 35-11-211, upon which Lawson relies, were adopted in 1990; at that time, that specific Code section was completely rewritten. Generally, the pertinent statutes provide that a lien properly perfected according to the statutory provisions will take priority over any subsequent mortgage. Lawson’s primary assertion is that equitable subrogation cannot apply to subordinate a lien properly perfected according to those statutes.

The doctrine of equitable subro-gation provides that one who voluntarily loans money to a debtor to discharge a debt will “step into the shoes” of the former creditor. Subrogation is appropriate to prevent unjust enrichment if the person seeking subrogation pays the obligation with the reasonable expectation of receiving a security interest in the property that has the same priority as the debt being discharged and if subrogation will not materially prejudice the holders of intervening interests in the property. See Restatement (Third) of Property § 7.6(b) and comment e (1997).

In order to be entitled to equitable sub-rogation, Alabama courts have historically held that one must meet the following requirements: (1) the money must be advanced in order to extinguish a prior encumbrance, (2) the money must be used for that purpose with the payor’s expectation of obtaining a security interest of equal priority with the prior encumbrance, (3)the entire debt must be paid, (4) the payor must be ignorant of the intervening lien, and (5) the intervening lienor must not be “burdened or embarrassed.” See Federal Land Bank of New Orleans v. Henderson, Black & Merrill Co., 253 Ala. 54, 59, 42 So.2d 829, 833 (1949).

In addition, our Supreme Court has stated that “ “when a purchaser pays off a prior incumbrance as part of the purchase price without actual notice of a junior lien, ... equity will treat him as the assignee of the original incumbrance, and will revive and enforce it for his benefit.’ ” Shields v. Hightower, 214 Ala. 608, 610-11, 108 So. 525, 528 (1926). In order to qualify for relief under the doctrine of equitable sub-rogation, one “need not exercise the highest degree of care to discover an intervening incumbrance of the title, and mere constructive notice ... is not sufficient to preclude [one] from invoking the doctrine of equitable subrogation in the absence of culpable negligence.” Whitson v. Metropolitan Life Ins. Co., 225 Ala. 262, 266, 142 So. 564, 567 (1932); see also Brooks v. Resolution Trust Corp., 599 So.2d 1163, 1165 (Ala.1992).

In these cases, the lenders have established all the elements necessary to invoke the doctrine of equitable subrogation. Lawson concedes that her liens were subordinate to the senior mortgage held by New South Federal Savings Bank. The lenders satisfied the senior mortgage without actual notice of the materialman’s liens claimed by Lawson and, therefore, should be treated as assignees of the senior mortgage. That result is not inequitable because Lawson is left in the same position that she occupied at the time she supplied the materials and labor, i.e., second behind the senior mortgage. Equitable subrogation will not change the priority of her liens because Lawson started out in a subordinate position.

Lawson insists that our opinion in Collateral Investment Co. v. Pilgrim, supra, is dispositive. In Pilgrim, this court concluded that a purchase-money mortgage lender would not be entitled to equitable subrogation to a construction-loan mortgage position having priority over a mate-rialman’s lien because, we held, the facts indicated that the purchase-money lender could not demonstrate the existence of all of the requirements of equitable subrogation. Specifically, this court held that the lender had not loaned its money to discharge the senior mortgage and that the lender had had constructive notice of the materialman’s lien by virtue of the enactment of § 35-11-215, Ala.Code 1975, which allows for the filing of lien statements within six months of the completion of work on a building. 421 So.2d at 1276-77. In these cases, the lenders loaned money directly to the purchasers who in turn paid Brian Homes who then satisfied the senior mortgage from New South Federal Savings Bank. Additionally, if we were to follow Pilgrim, application of § 35-11-215 would dictate that constructive notice to the lenders of Lawson’s liens, rather than actual notice, would prevent them from invoking the doctrine of equitable subrogation.

In contrast, this court and our Supreme Court have revisited the law regarding materialman’s liens several times since Pilgrim was decided in 1982. For example, in Builder’s Supply Co. v. Compass Bank, 724 So.2d 525 (Ala.Civ.App.1998), this court determined that a lender’s “permanent” mortgage completely discharging a construction loan was entitled to priority over materialman’s liens that had attached to the property between the time the construction loan was recorded and the time the permanent mortgage was recorded. Builder’s Supply, 724 So.2d at 527.

More analogous to the instant cases is Brooks v. Resolution Trust Corp., supra. In Brooks, our Supreme Court determined that a purchaser and a lender who completely satisfied a senior mortgage without actual knowledge of a secondary debt or lien were entitled to be equitably subrogat-ed to the senior mortgage. Relying on Whitson, supra, our Supreme Court determined that once the party seeking subro-gation makes a prima facie showing of lack of notice of an intervening lien, the burden shifts to the party opposing subrogation to prove that the other party’s ignorance resulted from “ ‘culpable neglect.’ ” Brooks, 599 So.2d at 1165.

The rationale in Brooks is equally applicable in these cases. It is undisputed that the purchasers and the lenders had no actual notice of the intervening liens; in fact, Lawson’s liens were not filed until months after the closing and recording of the purchase-money mortgages. Lawson did not offer any evidence demonstrating culpability on the part of the purchasers or the lenders in this case. Instead, Lawson relies on § 35-11-215, Ala.Code 1975, as a substitute for actual notice. In these cases, Brian Homes clearly had actual notice of the interests of Lawson, but the record is clear that neither the purchasers nor the lenders had any notice whatsoever of Lawson’s liens until after the purchase-money mortgages had been recorded.

Although we agree that §§ 35 — 11— 210 through 35-11-234, Ala.Code 1975, provide subcontractors the opportunity and the procedure by which to perfect liens against property to which improvements have been made, we conclude that those statutes do not guarantee that such liens will not be subject to equitable subro-gation when the facts and equity require it. “ ‘In enforcing the right of subrogation, the purpose always is to make the application of equitable principles to the particular facts and to effectuate the administration of natural justice between all parties concerned. That is the real doctrine of subrogation.’ ” Brooks, 599 So.2d at 1165—66 (quoting Federal Land Bank, 253 Ala. at 62, 42 So.2d at 836). Just like the intermediate vendor in Brooks, Lawson will not be “burdened or embarrassed” because her lien priority remains unaltered regardless of the subrogation. See also Mutual Life Ins. Co. of New York v. Grissett, 500 F.Supp. 159 (M.D.Ala.1980).

The construction industry today relies on banks and mortgage lenders to provide both initial construction-loan moneys to underwrite the construction of new houses and other buildings as well as purchase-money loans to prospective individual buyers of those completed structures. In a completely honest and fair world, every developer, contractor, and subcontractor would be paid for his or her work from the proceeds of the sale of the property to the ultimate purchaser. However, if we were to accept Lawson’s argument that the ma-terialman’s lien statute gives her liens priority over the lenders’ purchase-money mortgages, all unpaid subcontractors who perfected materialman’s liens as to these pertinent properties will receive an immediate windfall by forcing the sale of the residences, leaving the lenders (and the purchasers) without recourse. The doctrine of equitable subrogation therefore serves a remedial purpose in this context, and we conclude that the trial court’s application of that doctrine in these cases is consistent with cases decided since Pilgrim that discuss the doctrine.

We thus conclude that the trial court in this case properly entered a judgment that the lenders (and the purchasers) are sub-rogated to the senior mortgage, leaving Lawson second in priority. We hereby overrule Pilgrim to the extent that it conflicts with this decision.

APPLICATION OVERRULED; OPINION OF MAY 26, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

CRAWLEY, P.J., and THOMPSON, J., concur.

MURDOCK and BRYAN, JJ., dissent, with writings.

MURDOCK, Judge,

dissenting.

I believe the main opinion misinterprets the proper operation of Aa.Code 1975, § 35-11-211, and the doctrine of equitable subrogation. Section 35-11-211 begins by stating that a materialmen’s “lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of the work on the building or improvement.” Aa.Code 1975, § 35-ll-211(a) (emphasis added).

As stated in Collateral Investment Co. v. Pilgrim, 421 So.2d 1274 (Aa.Civ.App. 1982),

“[t]he elements of equitable subrogation are as follows: (1) the money is advanced at the instance of the debtor in order to extinguish a prior incumbrance; (2) the money is used for that purpose with the just expectation on the part of the lender for obtaining security of equal dignity with the prior incum-brance; (3) the whole debt must be paid before subrogation can be enforced; (4) the lender must be ignorant of the intervening lien; and (5) the intervening lien- or must not be burdened or embarrassed.”

421 So.2d at 1276 (emphasis added) (cited with approval in AOD Fed. Credit Union v. State Farm Fire & Cas. Co., 931 So.2d 31, 40 (Aa.Civ.App.2005)); see also, e.g., Arnett v. Willoughby, 190 Ala. 530, 535, 67 So. 426, 428 (1914).

Several of the elements of equitable sub-rogation are not satisfied in the present cases. It is not necessary, however, to look beyond the first element in order to dispose of these cases.

The second loans, which the main opinion believes should be subrogated to the developer’s construction loan, were not made to the original debtor. That is, they were not made to the developer. Rather, they were made to the ultimate purchasers of the houses. Aso, the second loans were made to the ultimate purchasers not for the direct purpose of extinguishing any prior encumbrance, but rather for the purpose of enabling the purchasers to make their purchases of the houses. Although the moneys from these second loans were loan proceeds in the hands of the purchasers, they merely constituted payments by the purchasers to the developer. Under the majority’s analysis, the lien of a material’s supplier properly recorded under our statutes would become all but meaningless whenever a house is purchased by a purchaser who utilizes- loan proceeds to pay the builder or developer for the house and the builder or developer, in turn, upon being paid for the house by the purchaser, uses the proceeds of the sale to pay off its construction loan.

BRYAN, Judge,

dissenting.

In her application for rehearing, Lawson argues that the cases upon which the main opinion relies in overruling Collateral Investment Co. v. Pilgrim, 421 So.2d 1274 (Ala.Civ.App.1982), are distinguishable, that this court should apply the holding in Pilgrim in the cases now before us instead of overruling Pilgrim, and that the holding in Pilgrim mandates the reversal of the trial court’s judgments in the cases now before us. Because I find those arguments persuasive, I respectfully dissent.

      . Although Lawson named the purchasers of each parcel in her seven complaints, the purchasers are not parties to this appeal.

        . The record contains detailed statements concerning the total amount that Brian Homes owed Lawson; although that total was over $425,000, the liens involved in these appeals range in value from $5,500 to $10,800.

      . The trial court entered a Rule 54(b), Ala. R. Civ. P., order at the same time that it entered the summary judgments in these cases; each judgment also noted that "[t]his judgment does not establish the existence of a lien in favor of [Lawson], which issue is reserved for trial.”