author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Ordesto Marando TOUSSAINT.
    No. 11-1404.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Mark 0. Foster, Louisiana Appellate Project, Lawrenceville, GA, for Defendant/Appellant, Ordesto Marando Tous-saint.
    Trent Brignac, District Attorney, Thirteenth Judicial District, Julhelene E. Jackson, Assistant District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

Lin this criminal case, Defendant, Or-desto Marando Toussaint, was convicted by a jury of second degree murder, simple arson with damages over $500.00, and theft of a motor vehicle over $500.00. He has appealed, alleging trial court error in denying his motion to suppress and in not considering his trial objections concerning his defense counsel. For the following reasons, we affirm Defendant’s conviction and sentence for second degree murder, reverse his arson and theft convictions, vacate his arson and theft sentences, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 11, 2010, Defendant killed Elizabeth Fontenot in Evangeline Parish by striking her in the head several times with a cinder block and then took the vehicle she had been operating and set it on fire. On July 6, 2010, Defendant was charged by grand jury indictment with second degree murder, a violation of La.R.S. 14:30.1; simple arson, a violation of La.R.S. 14:52; and, theft of a motor vehicle, a violation of La.R.S. 14:67.26. Defendant entered a plea of not guilty on all charges on July 8, 2010, and subsequently filed a motion to suppress the statements given by him to the investigating officers. The trial court denied Defendant’s motion to suppress, finding the statements to have been freely and voluntarily made and admissible at trial.

On April 8, 2011, a jury found Defendant guilty of second degree murder, simple arson with damages over $500.00, and theft of a motor vehicle over $500.00. Defendant was sentenced on June 16, 2011, as follows: 1) second degree murder — life without benefit of parole, probation, or suspension of sentence; 2) simple arson— ten years at hard labor to run concurrently with his theft of a motor vehicle conviction and consecutively to his second degree murder 1 ¡.conviction; and, 3) theft of a motor vehicle — five years at hard labor to run concurrently with his simple arson conviction and consecutively to his second degree murder sentence.

Defendant appealed his convictions and sentences and is now before this court asserting two assignments of error. He contends that the trial court erred in denying his motion to suppress and in not considering his trial objections concerning defense counsel. For the reasons that follow, we affirm the trial court’s denial of Defendant’s motion to suppress and find that Defendant’s claims regarding defense counsel lack merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find an actionable error patent in that the grand jury indictment is defective as to the charges of arson and theft.

The bill of indictment provides, in pertinent part:

IN HERE, the Grand Jurors of the Thirteenth Judicial District, State of Louisiana, on the 6th day of July, 2010, duly empanelled and sworn, in and for the body of the Parish of EVANGELINE in the name and by the authority of the said State, upon their Oath, charges that, in the Parish of EVANGELINE, aforesaid, and within the jurisdiction of the Thirteenth Judicial District Court of Louisiana, then and there being, committed the offense(s) of:
ORDESTO MARANDO TOUSSAINT committed the offenses(s) of
Count # 1: Second Degree Murder La. R.S. 14:30.1
Count # 2: Simple Arson La.R.S. 14:52
Count # 3: Theft of Motor Vehicle La. R.S. 14:67.26
in the Parish of Evangeline in that:
Count # 1: Ordesto Toussaint, on or about May 11, 2010, committed [Sjecond [Djegree [Mjurder of Elizabeth Fonte-not
| oCount #2: Ordesto Toussaint, on or about May 11, 2010, committed the offense of Simple Arson and did intentionally damage by any explosive substance or the setting fire to any property of another, without the consent of the owner
Count # 3: Ordesto Toussaint, on or about May 11, 2010, committed the offense of Theft of a Motor Vehicle by the taking of a motor vehicle, which belongs to another, either without the owner’s consent or by means of fraudulent conduct, practices, or representations, with the intention to permanently deprive the owner of the motor vehicle.

As to the arson and theft charges, La. Code Crim.P. art. 470 states that the value need not be alleged in the indictment unless it is essential to the charge or to determine the grade of the offense. While La.Code Crim.P. art. 470 does not require that an indictment include a specific monetary value, the allegations in the indictment must be sufficient to determine the grade of the offense.

Louisiana Revised Statutes 14:52 sets forth the penalty for simple arson and provides in pertinent part:

B. Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars and imprisoned at hard labor for not less than two years nor more than fifteen years.
C. Where the damage is less than five hundred dollars, the offender shall be fined not more than twenty-five hundred dollars or imprisoned with or without hard labor for not more than five years, or both.

Louisiana Revised Statutes 14:67.26 sets forth the penalty for theft of motor vehicles and provides in pertinent part:

C. (1) Whoever commits the crime of theft of a motor vehicle when the misappropriation or taking amounts to a sum of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
(2) Whoever commits the crime of theft of a motor vehicle when the misappropriation or taking amounts to a sum of five hundred dollars or more but less than one thousand five hundred dollars shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both.
14(3) Whoever commits the crime of theft of a motor vehicle when the misappropriation or taking amounts to a sum of less than five hundred dollars shall be imprisoned for not more than six months, or may be fined not more than one thousand dollars, or both.

Pursuant to La.Code Crim.P. art. 470, an essential element to be included in the charging instrument for both simple arson and theft of a motor vehicle is the value and/or grade of the offense. La.Code Crim.P. art. 465; State v. Guidry, 93-1091 (La.App. 1 Cir. 4/8/94), 635 So.2d 731, writ denied, 94-960 (La.7/1/94), 639 So.2d 1163; State v. Young, 469 So.2d 1014 (La.App. 1 Cir.1985). In this case, the State failed to do so.

In State v. Breaux, 96-1516 (LaApp. 3 Cir. 4/30/97), 693 So.2d 326, the defendant was charged by bill of information with aggravated criminal damage to property and convicted as charged. On appeal, this court recognized as an error patent that the bill of information did not state the amount of the damage allegedly inflicted by the defendant to the property. This court held in pertinent part:

An allegation of value is essential to a charge of aggravated or simple criminal damage to property. Without this allegation the bill of information is invalid. La.Code Crim.P. art. 470; State v. Bass, 509 So.2d 176 (LaApp. 1 Cir.1987). Accordingly, defendant’s conviction must be reversed, and his sentence set aside.

Id. at 327.

In State v. Olivier, 03-1589 (La.App. 3 Cir. 6/16/04), 879 So.2d 286, the defendant appealed his conviction and sentence for misapplication of payments by a contractor, in violation of La.R.S. 14:202. This court recognized as an error patent the state’s failure to include the value and/or grade of offense in the charging instrument. This court held in pertinent part:

There is a defect in the bill of information by which Defendant was charged. La.R.S. 14:202 provides, in pertinent part:
A. No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or |srepair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.

The penalties for a violation of La.R.S. 14:202 are as follows:

B. When the amount misapplied is one thousand dollars or less, whoever violates the provisions of this Section shall be fined not less than- one hundred dollars nor more than five hundred dollars, or imprisoned for not less than ninety days nor more than six months, or both.
C. When the amount misapplied is greater than one thousand dollars, whoever violates this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned with or without hard labor for not less than ninety days nor more than six months, or both, for each one thousand dollars in misapplied funds, provided that the aggregate imprisonment shall not exceed five years.

Accordingly, the penalty for a violation of La.R.S. 14:202 is determined based on the total amount misapplied. The bill of information in the case at bar does not specify whether the Defendant was charged under section (B) or (C) of La.R.S. 14:202. Although value was discussed at trial and the jury returned a verdict finding a specific value, the bill of information did not properly charge the grade of the offense.

Pursuant to La.Code Crim.P. art. 470, “[vjalue, price, or amount of damage need not be alleged in the indictment, unless such allegation is essential to charge or determine the grade of the offense.” While La. Code Crim.P. art. 470 does not require that an indictment include a specific monetary value, the allegations in the indictment must be sufficient to determine the grade of the offense. Also, the amount misapplied is determinative of whether a defendant is entitled to a jury trial and whether this court has appellate jurisdiction or only supervisory jurisdiction over the matter. See State v. Bass, 509 So.2d 176 (La.App. 1 Cir.1987).

In State v. Breaux, 96-1516 (La.App. 3 Cir. 4/30/97), 693 So.2d 326, the defendant was charged by bill of information with aggravated criminal damage to property and was found guilty of simple criminal damage to property where the damage amounted to five hundred dollars or more but less than fifty thousand dollars. The bill of information failed to set forth the amount of damage inflicted by the defendant. This court held the bill was invalid and reversed the defendant’s conviction. The matter was remanded to the trial court for further proceedings and the state was allowed to amend the bill of |fiinformation to properly charge an offense. See also State v. Whatley, 03-655 (La.App. 3 Cir. 11/5/03), 858 So.2d 751. In State in the Interest of A.P., 02-1030 (La.App. 3 Cir. 2/5/03), 838 So.2d 97, the juvenile was charged with theft of goods. The petition failed to establish the value of the items taken and the record contained no evidence of the value of the items although the testimony revealed the items at issue were two CDs. This court held that failure to set forth the value in the bill of information caused it to be invalid and reversed the adjudication of delinquency and order of commitment, discharged the defendant, and dismissed the state’s petition.

The above cited cases involve theft and simple criminal damage to property; however, they can be analogized to the present offense since all are graded offenses. Based on La.Code Crim.P. art. 470 and the above cited cases, we find the bill of information in the case at bar is invalid. Therefore, Defendant’s conviction is reversed and his sentence set aside. The case is remanded to allow the State the opportunity to amend the bill to properly charge an offense. See Breaux, 693 So.2d 326; Whatley, 858 So.2d 751; Bass, 509 So.2d 176.

Id. at 287-88.

In accordance with Olivier and its progeny, we find that the value and/or grade of the offense is an essential element that must be included in the charging instrument for both simple arson and theft of a motor vehicle. Therefore, we reverse Defendant’s convictions of simple arson and theft, vacate the sentences therefor, and remand that portion of the case to the trial court for further proceedings.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends that the trial court erred in denying his motion to suppress. Defendant moved to suppress all statements made by him on May 18, 2010, at 8:10 p.m.; May 19, 2010, at 4:53 p.m.; May 19, 2010, at 5:25 p.m.; and May 20, 2010, contending that they were not free and voluntary. The trial court denied the motion.

In reviewing the correctness of a trial judge’s ruling on a motion to suppress a confession, “we are not limited to the evidence adduced at the hearing(s) on this motion, but rather may consider all pertinent evidence adduced at trial.” State v. Brooks, 92-3331, Slip Op. P. 10 (La.1/17/95), 648 So.2d 366, 372, citing State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979) (listing cases). We examine this evidence in order to discern whether the testimony of the State’s witnesses, when viewed in light of the entire record, was sufficient to sustain the State’s “heavy burden” of proving a knowing and intelligent waiver. We do not review the record de novo, however; as we have often stated in the past, because the evaluation of witness credibility often plays such a large part in the context of a motion to suppress a confession, reviewing courts should defer to the finding of the trial judge unless his finding is not adequately supported by reliable evidence. Brooks, supra, at 11, 648 So.2d at 372; State v. Nuccio, 454 So.2d 93, 100 (La.1984); State v. Thornton, 351 So.2d 480, 484 (La.1977).

State v. Green, 94-887, p. 11 (La.5/22/95), 655 So.2d 272, 280-81 (footnote omitted).

At the hearing on the motion to suppress, Trooper Stephen Bruno testified that Defendant’s DNA was found on evidence collected at the crime scene and that he was arrested. On May 18, 2010, at 8:11 p.m., after waiving his Miranda rights, Defendant gave a statement to the police. During that statement, on one occasion, he mentioned “should I have a lawyer.” He then stated, “/all are f[ — ]ing me up now. I should have asked for a lawyer if I’d known /all were gonna [sic] come at me like that, come on brother.” However, we note that Defendant did not indicate he wished to stop answering questions; he was not under duress or intimidation; and, Trooper Bruno did not make any threats or promises to Defendant in exchange for his statement.

After signing another waiver of rights form, on May 19, 2010, at 11:46 a.m., Defendant again spoke to Trooper Bruno. He showed police where he bought drugs and was returned to the sheriffs office. On the same date, Trooper Bruno was notified at 4:53 p.m. that Defendant wanted to speak to him. Defendant was again advised of his rights, again waived his rights, and then gave another statement, which concluded at 5:02 p.m. Shortly thereafter, Trooper Bruno was again notified that Defendant wanted to speak to him, and he took another | Sstatement from Defendant at 5:25 p.m. At that time, Trooper Bruno went over Defendant’s rights with him, and, prior to giving that statement, Defendant indicated he was not threatened or promised anything. The statement concluded at 6:02 p.m. Trooper Bruno testified that there were no threats or promises made by police, that Defendant understood his rights, and that Defendant voluntarily spoke to police.

Sergeant Tim Hanks testified that a statement was taken from Defendant on May 20, 2010, and that the recorder was not stopped and restarted during the statement. He stated that Defendant was informed of his rights at 1:04 p.m., that Defendant understood his rights, and that no threats, promises, or inducements had been made to him during the statement.

Defendant testified that during the statement he gave on May 18, 2010, at 8:10 p.m., he said he wanted to stop and “maybe” get an attorney and that his request was not honored. He stated that he asked for an attorney when the tape recorder was off. Defendant additionally testified that he felt intimidated and that he was threatened by police at the time his wife, daughter, and mother-in-law were “brought into this.”

In State v. Williams, 05-317 (La.App. 5 Cir. 11/29/05), 918 So.2d 466, writ denied, 06-638 (La.10/6/06), 938 So.2d 64, the officers testified that the defendant waived his rights and agreed to give the statements, and they did not coerce of threaten the defendant or promise him anything in order to get the statements. The fifth circuit noted the only evidence that the defendant was sleep deprived, intimidated, threatened with death, or told what to say in his statement was from the defendant. The fifth circuit found the trial court did not abuse its discretion when denying the defendant’s motion to suppress.

| ;>After a full review of the testimony in the instant case, we find no error in the trial court’s admission of Defendant’s statements. The State established that each time Defendant spoke with police, he was advised of his rights and voluntarily waived them prior to making the recorded statements. Additionally, each time Defendant was asked if he had been threatened or promised anything in exchange for his statement, he indicated he had not. The only evidence that the statements were made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises was Defendant’s own testimony, and the trial court’s ruling indicates it questioned Defendant’s credibility. Considering the great weight placed on the trial court’s factual determinations and a thorough review of the record, we find no error in the trial court’s denial of Defendant’s motion to suppress.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant contends the trial court erred in not considering his trial objections regarding trial counsel.

An accused has the right to [choose] between the right to counsel, guaranteed in the state and federal constitutions, and the right to self-representation. [State v.] Bridgewater, [00-1529, p. 17 (La.1/15/02), 823 So.2d 877,] 894. However, the choice to represent oneself “must be clear and unequivocal.” Id. “Requests which vacillate between self-representation and representation by counsel are equivocal.” Id. Whether a defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined on a case-by-case basis, considering the facts and circumstances of each. Id.

State v. Leger, 05-11, p. 53 (La.7/10/06), 936 So.2d 108, 147-48, cert, denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Defendant contends that his case is unusual in that he was allowed to represent himself after his trial had begun. He also contends that the trial court “abruptly and unilaterally” removed his trial counsel and required him to represent | inhimself without a hearing. He further contends that he did not make an unequivocal and timely request to represent himself and that the trial court erred in granting his request for self-representation without holding the required Faretta hearing to determine if he was competent to waive counsel and was voluntarily exercising his informed free will. Defendant states the following in his brief:

By ex parte: 1) firing trial counsel; 2) then reappointing him, without notice to his client; 3) then abruptly firing him again, and required [sic] Mr. Toussaint to represent himself, 4) then allowing the trial attorney to finish the case, the trial court denied Mr. Toussaint his right to counsel during one of the most critical parts of this case, the calling and confronting witness in his part of the case.

The State asserts that Defendant was not entitled to a hearing before the trial court allowed him to represent himself because he never represented himself at any time during trial. The State further contends that the mere expression of Defendant’s desire to represent himself did not constitute self-representation, thereby necessitating a hearing.

During trial, Sergeant Wayne Vidrine was testifying regarding Defendant’s statements to police when Defendant interrupted and the following occurred:

BY MR. TOUSSAINT:
Man, Your Honor, that’s not what happened. They brought me to the scene, they told me what to say on that statement.
BY THE COURT:
Hold it, wait, wait, take the jury out.
JURY LEAVING COURTROOM AND DEFENDANT CONTINUES TO SPEAK
BY MR. TOUSSAINT:
That’s not what happened. I’m not gonna [sic] sit here and let them play me on that last statement. Play all them statements. They |ntook me to the scene, they told me what to say or they was gonna [sic] mess over my family that’s why I said what I said, and I want to fire my lawyer, /all can finish without me, that’s the third time I [sic] fire him and you told me I couldn’t fire him, I want to hire me a lawyer.
BY THE COURT:
The trial is going on Mr. Toussaint. BY MR. TOUSSAINT:
I asked you that before trial. Thank you Your Honor, I’d like to be excused. BY THE COURT:
You may be excused.
BY MR. TOUSSAINT:
That’s what happened.

DEPUTY ESCORTING DEFENDANT OUT OF COURTROOM BY THE COURT

The trial court then stated: “Mr. Chapman, I think Mr. Toussaint has terminated your services, but since he has left I’m going to ask you and reappoint you to complete the trial on his behalf.” The trial then continued with Sergeant Vidrine’s testimony, after which the State rested its case.

Defense counsel called Mr. Trent Brig-nae, the Evangeline Parish District Attorney, to testify. After Mr. Brignac’s testimony and a break for lunch, the court reconvened and the following colloquy took place:

BY MR. CHAPMAN:
We need to go on the record about a few things.
My client advises me that I think he wishes to represent himself at this point forward. He wants to recall Mr. Brig-nac to the stand, conduct different areas that I didn’t cover.
BY THE COURT:
Mr. Toussaint, is it your desire to terminate the services of Mr. Chapman and represent yourself?
\ViBY MR. TOUSSAINT:
Yes sir.
BY THE COURT:
Okay, I will allow it. Mr. Brignac has been called once and has been questioned. I assume you are going to object?
BY MR. FONTENOT:
Two things first Your Honor. I just want to make sure I understand Mr. Toussaint’s position is that he understands he has the right to counsel and he’s waiving that right?
BY THE COURT:
Are you waiving your right to counsel Mr. Toussaint?
BY MR. TOUSSAINT:
No, he’s not, I want to ask the questions. The questions I ask him to ask he’s not asking. I’m not saying he can’t be on my side, but I need all the questions that I’m saying to be asked, and the witnesses I want to call to be called, not the witnesses that’s gonna [sic] help them build a case.
BY THE COURT:
Your witness was called this morning, Mr. Brignac testified, you chose not to be here voluntarily, you chose not to testify. If the State objects to Mr. Brig-nac being called back to the stand I’m going to sustain that objection.
BY MR. FONTENOT:
So, he’s representing himself Your Honor?
BY THE COURT:
He’s representing himself.
BY MR. FONTENOT:
And I understand. I guess what he’s asking is that Mr. Chapman stay on just to assist him?
BY THE COURT:
I will ask Mr. Chapman to assist him if you don’t mind Mr. Chapman.
J$BY MR. CHAPMAN:
I don’t mind if it’s okay with him.
BY THE COURT:
Would you like Mr. Chapman to at least guide you here?
BY MR. TOUSSAINT:
I want Mr. Trent on the stand....
BY THE COURT:
That’s not the question.
BY MR. TOUSSAINT:
Me or him could, it don’t matter if he ask him the questions as long as he asks him the questions I want him to ask. BY THE COURT:
Let me once again tell you. You chose to leave voluntarily.
BY MR. TOUSSAINT:
But that’s not the way they say everything was gonna [sic] go Your Honor.
BY THE COURT:
He has testified, and I will not call him again. All right, who is your next witness Mr. Toussaint.
BY MR. TOUSSAINT:
I only have one witness, Trent Brig-nac.
BY THE COURT:
He is not testifying, he has already testified. Do you have any additional witnesses?
BY MR. TOUSSAINT:
No sir, I sure don’t.
| UBY THE COURT:
If you have no additional witnesses you are resting then?
BY MR. TOUSSAINT:
I don’t know what y’all talking about. BY THE COURT:
That’s why....
BY MR. TOUSSAINT:
I want Trent to get on the stand so I can ask him the questions that was happening at grand jury room across the hall when I gave that false statement that I killed that girl and I didn’t kill her.
BY THE COURT:
You had your opportunity this morning, but you chose not to be here.
BY MR. TOUSSAINT:
Your Honor, they switch everything up, he just told you, he told me none of my witnesses are gonna [sic] be called until tomorrow.
BY MR. FONTENOT:
Your Honor, can I address that issue?
BY THE COURT:
Proceed.
BY MR. FONTENOT:
If you recall when the State did rest, we had probably an hour or more than a half hour break between the time the State rest [sic] and the time the defense called Mr. Brignac, which is more than enough time for Mr. Toussaint to come up from downstairs to address Mr. Brig-nac if he so choose [sic].
BY THE COURT:
It’s too late.
Jj^BY MR. TOUSSAINT:
I [sic] been asking to come back up and he [sic] a witness they said that he was up here and I [sic] been banging on that door to come back up.
BY THE COURT:
You walked out this morning, the trial continued in a normal fashion. Do you have a witness Mr. Toussaint? Call your witness, if not, we....
BY MR. TOUSSAINT:
You don’t have to play the tapes or none of that, just do y’all closing.
BY MR. CHAPMAN:
It’s kind of like you can say that we rest, we rest.
BY MR. CHAPMAN:
One other housekeeping. As far as jury charges and that type of thing, do you want Mr. Toussaint to handle that directly, or does he want me to review that on his behalf?
BY MR. TOUSSAINT:
What’s that?
BY MR. CHAPMAN:
The jury charges.
BY THE COURT:
The instructions to the jury. It’s a legal technical....
BY MR. TOUSSAINT:
He can handle that. The only thing I wanted to do was talk to Trent. He can handle the rest of it.
WRY THE COURT:
All right, Mr. Chapman will review the charges. Bring the jury in.
JURY ENTERING COURTROOM
BY THE COURT:
Please be seated.
All right, does the defense have any additional witnesses? Do you have any additional witnesses?
BY MR. TOUSSAINT:
No sir.
Court subsequently recessed for the day. The next day, the following occurred:
BY THE COURT:
Before we take the jury in, Mr. Tous-saint, I understand you have a statement you wish to read to the court?
BY MR. TOUSSAINT:
Good morning Your Honor.
If it pleases the court. I have fired my lawyer two times before this trial started, and again yesterday you keep re-appointing me the same lawyer. I even said I could hire one, you said you were going to proceed. I asked the court to excuse me yesterday, while I was gone you re-appointed Mr. Chapman as my lawyer with me not being in the courtroom again, and then you made the guard come and get me and talk to me about representing myself. I am not a lawyer. If that was the case you should have let me hire one. I do not know what to do at this time, but I know that I am not getting a fair trial. As soon as /all found out I was trying to hire one y’all put a rush on everything. The only thing I want is a fair trial and a fair jury. Thank you. I would like for the record to reflect, no, I am not representing myself because it is too late in this trial to change things now. Have a blessed day.
BY THE COURT:
Mr. Toussaint, you certainly have the right to represent yourself, but the law of the State of Louisiana prohibits a person from 117just terminating their lawyer at the last minute and using this as a basis to try to get a continuance. We are too far into this matter now. Now, if you wish to represent yourself, I need to caution you about the consequences of it. As you have said, you are not a lawyer, you do not know the procedural steps, you do not know the protocol that is required in the presentation of a case to the jury, but considering your educational background and your experiences, I want you to understand that it could be very devastating for you to try to represent yourself. Do you understand that sir?
BY MR. TOUSSAINT:
Yes sir, but I been trying to fire my lawyer months before this Your Honor. It’s not just something that happened yesterday.
BY THE COURT:
We’re at the stage now Mr. Toussaint where either you are going to represent yourself or Mr. Chapman will conclude the case for you. You have to decide which one you want.
BY MR. TOUSSAINT:
Well, you already decided Your Hon- or. It’s too late to change things now. BY THE COURT:
Now, if you do not want Mr. Chapman representing you, you certainly have that right, but you are putting yourself into great risk by doing that.
BY MR. TOUSSAINT:
Your Honor, you keep re-appointing Mr. Chapman as my attorney.
BY THE COURT:
Well, that is because....
BY MR. TOUSSAINT:
I cannot represent myself Your Hon- or. I wanted to hire a lawyer; you told me you was gonna [sic] proceed. This was way before this trial started.
BY THE COURT:
The first time you told me you wanted to hire a lawyer was five days before the trial.
\WRYMR. TOUSSAINT:
No, that’s not true.
BY THE COURT:
Anyway, that’s where we are.

In State v. Lewis, 07-944 (La.App. 5 Cir. 3/25/08), 982 So.2d 866, the defendant, through counsel, filed a written motion requesting that he be allowed to represent himself. At a hearing on the issue, the trial court asked the defendant whether he had any training that would allow him to represent himself. The defendant answered that he did not. The trial court then asked the defendant why he wanted to represent himself. The defendant indicated dissatisfaction with his attorney as well as confidence in his knowledge of and ability to handle his case. Lastly, the trial court asked the defendant whether he had ever selected a jury or tried a case. The defendant answered no to both questions. Following this limited questioning, the judge court ruled that it would allow the defendant to “do a certain amount of the defense” for himself, but defense counsel would remain in the courtroom in the event the defendant needed advice. Id. at 869.

The fifth circuit found it was questionable whether the above exchange was sufficient to constitute a valid waiver of the defendant’s right to counsel. However, the fifth circuit did not find it necessary to make a determination on that issue. The court noted the defendant did not object to the trial court’s ruling on the issue of self-representation and acquiesced when the trial judge informed him that he could do a certain amount of defense for himself, but that his court appointed defense counsel would be there to assist him.

The fifth circuit further noted that while the parties alleged the defendant waived his right to counsel, the record indicated that defense counsel was present at all court proceedings subsequent to the trial court’s ruling on the issue of 11flself-repre-sentation. Specifically, the minute entries indicated that defense counsel appeared for trial on June 18, 21, and 28, 2007. On each of those occasions, the trial was continued. Then, on August 20, 2007, the defendant appeared, again with defense counsel, and requested a continuance of the trial, which was denied by the trial court. The transcript from the August 20, 2007 hearing showed that defense counsel did, in fact, assist defendant. He prompted the defendant to move for the continuance and also objected on his behalf when it was denied. The next day, the trial court considered numerous pre-trial motions which the defendant had filed. Once again, the minute entry from that date indicated the defendant represented himself but was assisted by defense counsel. Following the denial of his motions on August 21, 2007, the defendant, with the clear representation of counsel, withdrew his not guilty pleas and pled guilty to the charged offenses. At the beginning of the guilty plea proceedings, defense counsel advised the trial court that he had filled out the waiver of rights form with the defendant and had explained those rights to him. Moreover, the waiver of rights form was signed by the defendant and defense counsel. In the form, the defendant indicated that he was satisfied with the way his attorney and the trial court had handled his case. Defense counsel also represented the defendant in the guilty plea proceedings on the multiple bill, and thereafter, filed a motion for appeal on the defendant’s behalf.

The fifth circuit went on to find that the defendant had the assistance of counsel throughout the proceedings and was fully-represented by counsel at the time he entered his guilty pleas. Therefore, the defendant’s rights were not violated by the trial court’s ruling on the issue of self-representation.

In State v. Treadway, 97-901 (La.App. 5 Cir. 3/25/98), 710 So.2d 1121, writs denied, 98-1634 (La.9/25/98), 725 So.2d 490, 00-1197 (La.1/12/01) 780 So.2d 1067, the defendant filed a pre-trial motion for permission to represent himself. The day that trial was set to begin, the trial judge addressed the motion and ruled the defendant would have the opportunity to assist his court-appointed defense counsel. At the same hearing, appointed counsel made arguments on behalf of the defendant and the defendant never re-urged his motion to represent himself. On the date trial actually began, the defendant filed several pro se motions. In one motion, he complained he was not satisfied with defense counsel’s representation. The exchange below then occurred:

THE DEFENDANT:
Your Honor, I’m not happy with Ms. Guste as counsel—
THE COURT:
—expound on the record—
THE DEFENDANT:
—whatsoever. The other lawyer was supposed to be—
THE COURT:
Mr. Treadway, I’m, going to tell you something that it’s not in your best interest to continue talking once the jury comes in the room, okay.
THE DEFENDANT:
That man attorney that was here last week was supposed to be present here today also.

Id. at 1123.

The fifth circuit stated this exchange indicated the defendant merely wanted a different attorney. The fifth circuit further stated:

Treadway did at first seek pro se representation but he subsequently was afforded all of the benefits of legal representation. Perceivably, he agreed with everything Ms. Guste did or did not do. In any event, Treadway on appeal has not alleged any mistake by Ms. Guste or has he pointed out any flaw in the manner his defense was presented.
|21The trial judge did not conduct a full hearing to ascertain whether Tread-way was sufficiently adept to represent himself; however, inasmuch as he was ably and competently represented by counsel following the in-court exchanges with the trial judge, the need for a formal waiver of counsel was abrogated. On January 23, 1997, it would seem that Treadway had abandoned his pro se motion.
Treadway states in his brief to this Court that he was not allowed to question any witness or to argue his case. He does not say that during trial he wanted to do any of these things but was denied the opportunity, either by Ms. Guste or the trial judge.
We see no prejudice or reversible error in Treadway’s consenting to Ms. Guste’s trial representation although early on he had moved for pro se representation and on the day of trial said that he wanted Ms. Guste dismissed and “the man attorney” present.

Id. at 1123-24.

In the instant case, we need not determine whether Defendant validly waived his right to counsel. As in Lewis, 982 So.2d 866, and Treadway, 710 So.2d 1121, Defendant was represented by counsel throughout the proceedings. Mr. Chapman was present at all times during trial subsequent to Defendant’s request to fire Mr. Chapman and/or represent himself. Mr. Chapman made closing arguments to the jury and was present when the jury was instructed and the verdicts rendered. Further, Mr. Chapman was present when Defendant was sentenced, and he filed a Motion for Appeal on behalf of Defendant.

Having thoroughly reviewed the record, we find that Defendant had the assistance of counsel and was fully represented by counsel throughout the trial. Therefore, we find that Defendant’s rights were not violated by the trial court’s ruling on the issue of self-representation.

DISPOSITION

Defendant’s conviction and sentence for second degree murder is affirmed. Defendant’s convictions for simple arson with damages over $500.00 and theft of a motor vehicle over $500.00 are reversed; the sentences imposed for those two | ^convictions are vacated; and, the matter is remanded to the trial court for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . “In Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)], the United States Supreme Court recognized that a trial court may not force a lawyer upon a defendant when the defendant insists he wants to conduct his own defense and voluntarily and intelligently elects to proceed without counsel.” State v. Brown, 03-897, p. 28 (La.4/12/05), 907 So.2d I, 22.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    In the Matter of CAT ISLAND CLUB, L.L.C.
    No. 11-1557.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      William M. Ford, Alexandria, LA, for Appellee, Court Appointed Liquidator.
    Charles Ray Minyard, Lafayette, LA, for Appellee, Craig A. Davis.
    Ricky L. Sooter, Provosty, Sadler, de-Launay, Fiorenza & Sobel, APC, Alexandria, LA, for Appellants, Tommy Pentecost and David Gaspard, Jr.
    John W. Munsterman, Alexandria, LA, for Appellee, Ty-Bar Industries, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

hTwo members of a limited liability company appeal the grant of a summary judgment seeking dissolution of the company and the appointment of a liquidator of the company’s property. We affirm the trial court’s judgment in favor of Ty-Bar, one of the members of the limited liability company, for the reasons expressed below.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting Ty-Bar’s motion for summary judgment seeking dissolution of the limited liability company; and
(2) whether the trial court erred in appointing a liquidator to sell the property of the limited liability company.

II.

FACTS AND PROCEDURAL HISTORY

Cat Island Club, L.L.C. (LLC) was formed on March 16, 2000. George C. Gaiennie, III, registered agent for the LLC, executed the Articles of Organization and the Initial Report and filed these documents with Louisiana’s Secretary of State. The Initial Report listed seven initial members of the LLC:

1. Ty-Bar Industries, Inc. (Ty-Bar)
2. Craig A. Davis (Davis)
3. Tommy Pentecost (Pentecost)
4. David L. Gaspard, Jr. (Gaspard)
5. Brent Odom Bencaz (Bencaz)
6. Daniel Thomas Fontenot (Fontenot)
7. Martin James Fischer (Fischer)

12Ty-Bar is owned by Dean Tyler and William C. Barron. They solicited members for the formation of the LLC to purchase land for a hunting and camping spot in West Feliciana Parish.

On April 7, 2000, Ty-Bar purchased 383.46 acres of land, in its own name, for $350,000.00 and collected capital contributions from the other members of the LLC. Pentecost, Gaspard, and Davis made capital contributions of $50,000.00 each, paying $10,000.00 in cash and signing promissory notes for the $40,000.00 balances, in favor of Ty-Bar. Bencaz paid $50,000.00 in cash to Ty-Bar. The record does not reflect the amount of the capital contribution of Ty-Bar, though it appears that $50,000.00 was the anticipated amount. Pentecost and Gaspard aver that on April 7, 2000, they signed an original twelve-page Operating Agreement reflecting seven members who each owned an equal 1/7 membership interest in the company, but they did not retain a copy for their own flies.

Three months later, on July 7, 2000, without amendment or further documentation, Ty-Bar executed an eleven-page Operating Agreement which lists only five “initial” members. This Operating Agreement indicates that Ty-Bar owns 3/7 membership interest, and therefore 3/7 of the voting power, in the LLC. It further contains a new death clause, according to Pentecost and Gaspard, and it is missing the signature blocks for Fontenot and Fischer, who, as it turns out, never made their capital contributions. The last page of the Operating Agreement in the record indicates at the bottom center that it is “Page 11 of 12 Pages.” Pentecost and Gaspard aver that the twelve-page Operating Agreement they signed in April was changed after they signed it.

On July 7, 2000, Ty-Bar, as seller, executed an Act of Cash Sale, conveying the 383.46 acres of land to the LLC, for $500,000.00, not $350,000.00, and the land was encumbered by Ty-Bar’s mortgage with Red River Bank. The bank’s mortgage is not in the record, and the amount of the mortgage is not known. As in the ^Operating Agreement, the signature and notary blocks for each of the members of the LLC are at the back of the sale document, on pages with no text, and are executed, and notarized in different cities. As in the Operating Agreement, Pentecost and Gaspard signed in Alexandria on April 7, 2000; Bencaz signed in Baton Rouge on April 7, 2000; Craig Davis signed in Lafayette on June 29, 2000; and Ty-Bar signed last, as a member of the LLC, in Alexandria on July 7,2000.

Bencaz died, and his representative sold his interest in July 2010 to the other members of the LLC for $22,000.00. Pentecost and Gaspard believed, prior to Bencaz’s death, that each member owned an equal 1/5 of the LLC. Pentecost and Gaspard transmitted $22,000.00 for Bencaz’s interest, but $11,000.00 was returned to them. Ultimately, Ty-Bar purchased one half of Bencaz’s interest for $11,000.00, and Pentecost and Gaspard purchased the other half for $5,500.00 each. The fourth remaining member, Craig Davis, did not purchase any of Bencaz’s interest.

In December 2010, Ty-Bar filed a petition to dissolve the LLC and subsequently filed a motion for summary judgment on that issue. Craig Davis supported dissolution. Pentecost and Gaspard filed an opposition. The trial court granted the motion for summary judgment ordering dissolution of the LLC, and it appointed William Ford as liquidator. Pentecost and Gaspard filed this appeal.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to | interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

IV.

LAW AND DISCUSSION

Pentecost and Gaspard contend that the trial court erred in granting Ty-Bar’s motion for summary judgment seeking dissolution of the LLC. They argue that dissolution of the LLC and liquidation of the property was improper and that the asset, the land, should be put in the possession of the members and partitioned in kind.

Dissolution

The formation and operation of limited liability companies in Louisiana is governed by La.R.S. 12:1301, et seq. In his Written Reasons for Judgment, the trial judge took the eleven-page Operating Agreement at face value and found that the majority votes of the LLC (Ty-Bar’s 3/7 and Davis’s 1/7) had approved dissolution under La.R.S. 12:1318. We find that judicial dissolution was proper under La. R.S. 12:1335, but not dissolution based upon majority consent under La.R.S. 12:1318, because of the disputes over the Operating Agreement, the percentages of membership interests expressed in the Operating Agreement, and the manner in which the deceased member’s interest was acquired. The statutory distinction is significant because it affects the distribution of the net assets after liquidation.

More specifically, La.R.S. 12:1334, entitled “Dissolution,” provides in pertinent part:

Except as provided in the articles of organization or a written operating agreement, a limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following:
ls(2) The consent of its members in accordance with R.S. 12:1318.
(4) Entry of a decree of judicial dissolution under R.S. 12:1335.

Here, the Articles of Organization are very general and only address dissolution to the extent that a person dealing with the LLC can rely upon a certificate executed by a representative of Ty-Bar. The Operating Agreement entered into the record does not specifically address the dissolution of the LLC, and the portion stating that Ty-Bar’s membership interest is greater is in dispute. Therefore, based upon La.R.S. 12:1334(2), if the LLC’s Operating Agreement or its Articles of Organization do not provide for the dissolution of the company, the LLC can be dissolved by the consent of the majority under La.R.S. 12:1318.

Statutory dissolution by consent under La.R.S. 12:1318 provides that one member gets a single vote, and it takes a majority of those single votes to dissolve the LLC. More specifically, in pertinent part, La. R.S. 12:1318, entitled, “Voting rights of members,” provides (emphasis added):

A. Unless otherwise provided in the articles of organization or a written operating agreement, each member of a limited liability company shall be entitled to cast a single vote on all matters properly brought before the members, and all decisions of the members shall be made by majority vote of the members.
B. Unless otherwise provided in the articles of organization or a written Operating agreement, a majority vote of the members shall be required to approve ...:
(1) The dissolution and winding up of the limited liability company.
(2) The sale, exchange, lease, mortgage, pledge, or other transfer of all or substantially all of the assets of the limited liability company.

| fiHere, since Bencaz passed away, there are only four remaining members of the LLC. With Davis and Ty-Bar voting in favor of dissolution, and Pentecost and Gaspard voting against it, the vote is two for and two against, and there is no majority consent under R.S. 12:1318, and, therefore, no consent under the consent portion of the dissolution statute, La.R.S. 12:1334(2).

Notwithstanding, an LLC can also be dissolved under La.R.S. 12:1334(4) through the entry of a decree of dissolution under La.R.S. 12:1335. Section 1335, entitled “Judicial dissolution,” provides:

On application by or for a member, any court of competent jurisdiction may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.

While Pentecost and Gaspard argue that judicial dissolution under La.R.S. 12:1335 is not applicable because it is still “reasonably practicable” to carry on the business of the LLC, we disagree. Numerous assertions and accusations have arisen surrounding the operation of the LLC and the ownership interest of the members. There also appear to be competing interests regarding the use of the land, the only asset of the company, and the reason for which the LLC was created. In alleging a fraudulent Operating Agreement, Pentecost and Gaspard clearly believe there is self-dealing on the part of Ty-Bar. Ty-Bar and Davis want dissolution and liquidation of the land while Pentecost and Gaspard do not. The members have 17clearly reached an inability to work toward any goals or reasons for continued association with each other.

There is very little Louisiana jurisprudence interpreting the limited liability statutes, even though the Limited Liability Company Law has been enacted since 1992. We find Weinmann v. Duhon, 01-1267 (La.App. 5 Cir. 3/26/02), 818 So.2d 206, writ denied, 02-2082 (La.11/1/02), 828 So.2d 574, on subsequent appeal, 08-186 (La.App. 5 Cir. 10/28/08), 997 So.2d 647, writs denied, 08-2814, 08-2815, 08-2830 (La.3/13/09), 5 So.3d 117-118, instructive in its application of La.R.S. 12:1335. There, the fifth circuit found that the trial court lacked authority to set aside various provisions of the LLC’s operating agreement that had led to an impasse among its members, and that the court should have ordered the LLC’s dissolution after it was requested by two of its owners.

Similarly, we find that it is not reasonably practicable to carry on business among the members and that judicial dissolution was proper under La.R.S. 12:1384(4) and La.R.S. 12:1335.

Liquidation

Pentecost and Gaspard take the position that instead of dissolution and liquidation, the only asset of the LLC, the 383.46 acres of land, should be placed in the possession of the members, so that they can effect a partition in kind. Ty-Bar and Davis argue that this would result in another lawsuit and that the trial court was authorized to appoint a liquidator under La.R.S. 12:1335 and La.R.S. 12:1336(B). The trial court found that Pentecost and Gaspard had no interest in the land itself under La. R.S. 12:1329 and, therefore, had no cause of action for a partition of the land. The court then appointed the liquidator, William Ford. Pentecost and Gaspard assert that it was error to do so. We disagree.

| ^Louisiana Revised Statute 12:1329 states that: “[a] membership interest shall be an incorporeal movable. A member shall have no interest in limited liability company property.” Our jurisprudence has interpreted this to mean that individuals cannot assert property claims as members of an LLC where the disputed property interests are the property of the separate legal entity. See Kelly v. Porter, 08-4310 (U.S.E.D.La.1/22/10), 687 F.Supp.2d 632; Northeast Realty, L.L.C. v. Misty Bayou, L.L.C., 40,573 (La.App. 2 Cir. 1/25/06), 920 So.2d 938; Van Meter v. Gutierrez, 04-0706 (La.App. 4 Cir. 2/16/05), 897 So.2d 781.

We note however, that, while the statutes prohibit a member from demanding that a distribution be in the form of property, see La.R.S. 12:1326, in post-dissolution proceedings, the statutes do not prohibit the liquidator from making a distribution in the form of movable or immovable property. See La.R.S. 12:1340(D).

Additionally, La.R.S. 12:1336, entitled “Winding up,” provides for the appointment of a liquidator, as follows (emphasis added): such appointment shall not be operative until both of the following occur:

A. Except as otherwise provided in the articles of organization or a written operating agreement, upon dissolution the members shall wind up the limited liability company’s affairs. The windup of the limited liability company’s affairs may be conducted by appointment of one or more liquidators to. conduct the windup and liquidation. However,

|fl(l) Notice of authorization of the dissolution, stating that the limited liability company is to be liquidated out of court and giving the name and post office address of each liquidator, has been published at least once in a newspaper of general circulation in the parish in which the limited liability company’s registered office is located, and a copy of such notice, with the affidavit of the publisher of the newspaper to the fact of such publication attached, has been filed with the secretary of state.

(2) Articles of dissolution have been filed with the secretary of state in accordance with R.S. 12:1339.

B. However, any court of competent jurisdiction may wind up the limited liability company’s affairs on application of any member or his legal representative or assignee or of any liquidator.

The authority to appoint a liquidator is also given to the court under La.R.S. 12:1340(E).

Here, the trial judge stated in his judgment that he was appointing Mr. Ford to serve as liquidator with all of the authority granted to him under La.R.S. 12:145(C). This statute is found in Louisiana’s Business Corporation Law, but it is nevertheless applicable. “All limited liability companies, regardless of date of organization, shall have the powers, rights, and privileges provided for a corporation organized under the Business Corporation Law (R.S. 12:1 et seq.), and provided for a partnership organized under Title XI of Book III of the Louisiana Civil Code.” La.R.S. 12:1303. Thé trial court’s judgment further stated that the liquidator would be subject to the court’s supervision, and that any party could seek relief from the trial court for any decisions made by the liquidator. We find no error in the trial court’s 1 ^appointment of a liquidator, subject to the trial court’s supervision and the liquidator’s adherence to the Limited Liability Company Law, La.R.S. 12:1301, et seq, and the findings expressed in this opinion.

With regard to the final distribution, the trial court found that the proceeds from the sale of the land should be distributed under La.R.S. 12:1337, first to return the capital investment to each member, and then to distribute the remainder of the proceeds to each member based upon each member’s interest in the LLC. This is correct, though the membership interests in this case are not yet established in the record of this appeal.

V.

CONCLUSION

Based upon the foregoing, we affirm summary judgment based upon judicial dissolution under La.R.S. 12:1335, and we affirm the appointment of a liquidator subject to the court’s supervision and the Limited Liability Company Law at La.R.S. 12:1301, et seq.

Costs are assessed against Tommy Pentecost and David L. Gaspard, Jr.

AFFIRMED.

      . On July 2, 2001, a year after selling the land to the LLC, Ty-Bar sold timber off of the land to Tyler Timber, Inc. for $190,500.00. Dean Tyler signed as buyer for Tyler Timber, Inc. While there was no reservation of timber rights in the sale document, Pentecost and Gaspard aver that it was discussed by the members of the LLC that Ty-Bar would receive the first timber proceeds as payment for its interest in the LLC.

      . Pentecost and Gaspard assert that prior to Bencaz’s death, they believed that the five members, Ty-Bar, Davis, Bencaz, Pentecost, and Gaspard, each owned 1/5 of the LLC. Ty-Bar argues that Pentecost and Gaspard had to have known that Ty-Bar had a greater interest because when they purchased part of Bencaz’s interest, the Cash Sale stated that Ty-Bar was buying 3/6 of Bencaz’s interest, and that Davis, Pentecost, and Gaspard were buying 1/6 each of Bencaz’s interest. We find that of no moment for several reasons: the Cash Sale in the record is not signed by any LLC member; it does not represent what ultimately occurred, as Davis did not purchase any of Bencaz’s interest; it is dated July 15, 2010, ten years after the LLC’s formation and just five months before Ty-Bar filed its petition for dissolution; Pentecost and Gas-pard aver that they sent a check for $22,000.00 to purchase Bencaz’s interest, but one half, or $11,000.00, of their transmittal was returned to them.

      . Louisiana Revised Statute 12:1326, entitled ‘‘Distribution in kind,” provides:
      Except as provided in a written operating agreement, a member, regardless of the nature of the member’s contribution, shall have no right to demand and receive any distribution from a limited liability company in any form other than cash. No member shall be compelled to accept from a limited liability company a distribution of any asset in kind to the extent that the percentage of the asset distributed to the member exceeds the percentage in which the member shares in distributions from the limited liability company.

      . Louisiana Revised Statute 12:1340, entitled, "Certificate of dissolution; assets omitted from liquidation; post-dissolution proceedings,” provides at Subsection (D):
      Any movable or immovable property inadvertently or otherwise omitted from the liquidation shall vest in the members conducting the liquidation or liquidator, for the benefit of the persons entitled thereto, and be distributed accordingly.

      . Louisiana Revised Statute 12:1340, entitled, "Certificate of dissolution; assets omitted from liquidation; post-dissolution proceedings," provides at Subsection (E):
      Following cessation of the separate existence, the members conducting the liquidation or liquidator shall still have power to take all action required to preserve the interests of the limited liability company, its creditors, and members. The court shall have power, on application by any interested party, to appoint, ex parte or on such notice as the court may order, a liquidator or new liquidator for any proper purpose in case of the death, disability, or unwillingness to serve of the last previous liquidator or last member.

      . La.R.S. 12:1337, entitled, "Distribution of assets,” provides in pertinent part:
      A. Upon the winding up of a limited liability company, any assets remaining after paying or adequately providing for the payment of all debts and liabilities of the limited liability company, including all costs and expenses of the liquidation and any and all contingent liabilities of which the members or liquidator has knowledge, shall be distributed as follows:

      (2) Except as provided in the articles of organization or a written Operating Agreement, to members and former members, first, for the return of their capital contributions, and secondly, respecting their membership interests, in the proportions in which the members share in distributions.


author: AMY, Judge.

text:
    Mason GODFREY v. Paul REGGIE, et al.
    No. 11-1575.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      David F. Dwight, Robert C. McCorquo-dale, In-House Counsel, Lake Charles, LA, for Defendant/Appellee, Deputy Eugene Thibodeau.
    Robert S. Kleinschmidt, Jr., Assistant District Attorney, Lake Charles, LA, for Defendants/Appellees, Paul Reggie, John DeRosier.
    Mason Godfrey, Jackson, LA.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|, After he was arrested and charged with intimidation of a public official, the plaintiff filed suit against several people involved in his arrest and prosecution, alleging malicious prosecution, false imprisonment, and intentional infliction of emotional distress. The defendants filed various requests with the trial court, including exceptions of prescription, no cause of action, and insufficiency of service of process. After a hearing, the trial court sustained the exceptions and entered judgment dismissing the plaintiffs suit. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Mason Godfrey, was arrested and charged in a separate criminal case with intimidation of a public official, a violation of La.R.S. 14:122, in connection with events that occurred on October 17, 2005. A jury subsequently convicted the plaintiff of that charge. On appeal, a panel of this court reversed and entered judgment on the lesser included offense of threatening a public official, a violation of La.R.S. 14:122.2. State v. Godfrey, 08-828 (La.App. 3 Cir. 2/18/09), 4 So.3d 265. However, the supreme court reversed and reinstated the plaintiff’s conviction and sentence. State v. Godfrey, 09-630 (La.12/1/09), 25 So.3d 756. On remand, this court vacated the plaintiffs habitual offender adjudication and remanded for resentencing. State v. Godfrey, 08-828, 08-1231 (La.App. 3 Cir. 3/3/10), 32 So.3d 1020, writ denied, 10-758 (La.10/29/10), 48 So.3d 1097.

Alleging malicious prosecution, false imprisonment, and intentional infliction of emotional distress, the plaintiff filed this civil suit against Calcasieu Parish District Attorney John DeRosier, Assistant District Attorney Paul Reggie, hand Deputy Eugene Thibodeau of the Calcasieu Parish Sheriffs Office. The gist of the plaintiffs suit is that Mr. Reggie and Deputy Thibodeau, along with various other persons, conspired to ensure that the plaintiff was falsely charged and convicted of intimidation of a public official. Deputy Thibo-deau filed exceptions of prescription and insufficiency of service of process. Mr. DeRosier and Mr. Reggie filed exceptions of prescription and no cause of action.

In 2009, a hearing was held on the exceptions. The plaintiff, who was incarcerated at that time, was transported to the courthouse but was not brought to the courtroom. The record indicates that the trial court conducted the hearing in the plaintiffs absence. The trial court entered judgment granting the defendants’ exceptions and dismissing the plaintiffs suit. Based on the plaintiffs absence from the courtroom, a panel of this court reversed the trial court’s grant of the exceptions and remanded the matter to the trial court. Godfrey v. Reggie, 10-914 (La.App. 3 Cir. 2/2/11), 55 So.3d 1015.

On remand, the plaintiff filed a motion to compel certain discovery. Mr. DeRosier and Mr. Reggie subsequently filed a motion to set a hearing date on the exceptions and requesting that the trial court stay discovery until the exceptions were resolved. That request was granted and a hearing date was set. At the hearing on the exceptions, the plaintiff objected to the order staying discovery and filed a motion to recuse Judge Planchard from the case. The trial court denied the motion to recuse as moot, and, finding that additional discovery would not be helpful on the issues presented at the exceptions hearing, declined to revisit that issue. After hearing the evidence and the arguments of the parties, the trial court |3sustained the defendants’ exceptions and subsequently entered judgment dismissing the plaintiffs suit. Additionally, citing the plaintiffs repeated interruptions and lack of respect for the court, the trial court found the plaintiff in contempt of court and ordered him to serve three months in the parish jail, consecutive to any sentence he might currently be serving.

The plaintiff now appeals. Although he does not designate any “assignments of error,” he presents several arguments, including that the trial court erred in: 1) finding that he did not file his in forma pauperis application until after prescription had run; 2) denying his motion to recuse; 3) failing to grant his motion to compel discovery and in staying discovery; 4) granting the exception of insufficiency of service of process because this is a prisoner suit; 6) granting the exception of no cause of action; and 7) holding him in contempt.

Discussion

Motion to Recuse

The plaintiff first complains that the trial court erred in failing to grant his motion to recuse Judge A.J. Planchará from this case. The plaintiff filed his |4motion to recuse Judge Planchará at the exceptions hearing. In his motion, the plaintiff contends that the judge was a witness to the incident underlying his conviction for intimidation of a public official. According to the plaintiffs brief, he filed a motion to recuse Judge Planchará from his criminal case. However, the record indicates that that motion was denied.

The record indicates that this case was allotted to Judge David Ritchie. On April 29, 2011, Judge Planchará, sitting pro tem-pore, signed an order granting Mr. DeRo-sier and Mr. Reggie’s “Motion to Fix Hearing Date for Peremptory Exceptions of Prescription and, Alternatively, No Cause of Action and Motion for Suspension of Discovery.” At the hearing, Judge Rit-chie stated “Judge Planchará is not assigned this case. He was here for a couple of days taking my place” while Judge Rit-chie attended a conference. Judge Ritchie also explained that, even if Judge Planch-ará were recused, it would not affect the validity of any actions he took before his recusal. Accordingly, Judge Ritchie denied the motion as moot.

Under these circumstances, we find no error in the trial court’s denial of the plaintiff’s motion to recuse Judge Planch-ará. La.Code Civ.P. arts. 151; 154.

Discovery Issues

The plaintiff further asserts that the trial court erred in failing to rule on his motion to compel discovery and in granting the defendants’ motion to stay discovery. Further, the plaintiff asserts that it was error for the trial court to consider the defendants’ motion to stay discovery because it was contained within a motion to set hearing. After this court issued its opinion in Godfrey v. Reggie, 55 So.3d 1015, the plaintiff filed a “Request for Production of Documents” seeking various items, including the audio transcript of the October 2005 hearing in his 15criminal case and a copy of Mr. Reggie’s autopsy. Approximately six weeks later, the plaintiff filed a “Brief in Support of Motion to Compel Discovery.” We observe that the record does not contain an associated Motion to Compel. After the plaintiff filed these documents, Mr. DeRo-sier and Mr. Reggie’s counsel filed a motion to fix a hearing date for the exceptions and to stay discovery. DeRosier and Reggie contended that if the exceptions were sustained, discovery would be rendered moot and that it was necessary to stay discovery in order to avoid waste of time, expense, and effort. As previously discussed, Judge Planchard granted DeRosier and Reggie’s motion while acting as pro tempore judge.

At the hearing on the exceptions, the plaintiff objected to the stay of discovery. The trial court gave the plaintiff an opportunity to explain why additional discovery was necessary for the hearing on the exceptions. However, according to the record, the trial court found that the discovery was immaterial to the issues immediately before the court.

A panel of this court discussed the trial court’s authority when dealing with discovery issues in Rozas v. Montero, 05-484, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 444, 447, stating:

“Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery.” Trahan v. State ex rel. Dept. Health and Hospitals, 04-743, p. 2 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245, 1248 (citing Moak v. ILL. Cent. R.R. Co., 93-783 (La.1/14/94), 631 So.2d 401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990)). “Such discretion will not be disturbed on appeal absent clear showing of abuse.” Trahan, 886 So.2d at 1248-49.

Louisiana Code of Civil Procedure Article 1426(A) addresses protective orders relating to discovery. It states, in relevant part:

A. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make 16any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place.
(4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.

Nonetheless, the Louisiana Supreme Court has found that it was error to stay discovery prior to an exceptions hearing where the discovery requests were relevant to the exceptions at issue. Bridges v. Hertz Equip. Rental Corp., 08 — 400 (La.6/20/08), 983 So.2d 1256.

Here, the issues being addressed at the hearing on the exceptions were an exception of prescription, which concerned the timing of the plaintiffs in forma pauperis application; an exception of insufficiency of service of process, which concerned the timing of service of the suit; and an exception of no cause of action, which concerned the defendants’ immunity from suit. A review of the record indicates that the plaintiffs discovery requests were irrelevant to these issues. When given an opportunity to explain why his discovery requests were relevant, the plaintiff was unable to do so. Further, we note that the trial court limited the stay of discovery to the period before the exceptions were resolved. Accordingly we find no error in the trial court’s grant of the motion staying discovery.

With regard to the plaintiffs contention that the trial court erred in failing to rule on his motion to compel discovery, we first observe that, although plaintiff filed a brief in support of his motion to compel, no motion to compel is contained within the record. See La.Code Civ.P. arts. 961, 962. However, even assuming that the plaintiff filed a motion to compel, we decline to rule on this issue as it was 17rendered moot by the grant of the defendants’ motion to stay discovery. See Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 25 (La.4/12/05), 907 So.2d 37, 55 (quoting La. Associated Gen. Contractors, Inc. v. State of La., 95-2105, p. 10 (La.3/8/96), 669 So.2d 1185, 1193) (“An issue is ‘moot’ where it ‘has been deprived of practical significance and made abstract or purely academic.’ ”). Further, with regard to the plaintiffs contention that the defendants were required to file a separate motion in order to request that discovery be stayed, we observe that the plaintiff has failed to brief this issue. Thus, we treat it as abandoned pursuant to Uniform Rules—Courts of Appeal, Rule 2-12.4.

Accordingly, we find no error in the trial court’s rulings with regard to discovery issues.

Exception of Prescription

Alleging that he filed an in forma pauperis affidavit concurrently with his petition, the plaintiff also asserts that the trial court erred in sustaining the exception of prescription. In their exceptions, all of the defendants asserted that the plaintiffs suit had prescribed because he failed to pay the required filing fees or file an in forma pauperis application before the date of prescription.

In Board of Com’rs v. Estate of Smith, 03-1949, 03-1950, p. 5 (La.App. 4 Cir. 9/2/04), 881 So.2d 811, 815, writ denied, 04-2696 (La.1/7/05), 891 So.2d 689, the fourth circuit discussed the exception of prescription, stating:

An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal or after the close of evidence, but prior to its submission after trial. LSA-C.C.P. arts. 927 and 928(B). LSA-C.C.P. art. 929 provides when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case. LSA-C.C.P. art. 931 allows the introduction of evidence at the trial of all peremptory exceptions, except the objection of no cause of action. The trial court is not bound to accept as true the allegations of plaintiffs petition in its trial of the peremptory exception. Bowers v. Orleans Parish School Bd., 95-2530 (La.App. 4 Cir. 5/29/96); 694 So.2d 967, 972. When | sevidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Id. Davis v. Hibernia Nat. Bank, 1998-1164 (La.App. 4 Cir.1999) [ (La.App. 4 Cir. 2/24/99)], 732 So.2d 61, 63.

Ordinarily, the burden of proving prescription is on the moving party. Dugas v. Bayou Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. “However, if prescription is evident on the face of the pleadings, ... the burden shifts to the plaintiff to show the action has not prescribed.” Id. at 830.

The plaintiffs claims for false imprisonment and/or arrest and intentional infliction of emotional distress are subject to a one-year prescriptive period. “Delic-tual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” La.Civ.Code art. 3492. See Matthews v. City of Bossier City, 42,202 (La.App. 2 Cir. 8/15/07), 963 So.2d 516. Further, “prescriptive statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished; of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted.” Bustamento v. Tucker, 607 So.2d 532, 537 (La.1992). A cause of action “for false imprisonment, which includes a claim for false arrest, arises on the day upon which the plaintiff is imprisoned and released.” Matthews, 963 So.2d at 520.

Louisiana Civil Code Article 3462 states, in part, that “[prescription is interrupted ... when the obligee commences action against the obligor, in a court of competent jurisdiction and venue.” This court has previously found that, where the plaintiff did not submit a filing fee or in forma pauperis application within the one-year prescriptive period, the filing of a petition does not interrupt prescription. Gant v. Alexander, 04-27 (La.App. 3 Cir. 5/12/04), 872 So.2d 1280. But see Trusclair v. Hill, 05-1908 (La.App. 1 Cir. 9/15/06), 943 So.2d 1127.

An indigent litigant may prosecute a civil suit “without paying the costs in advance or as they accrue or furnishing security therefor.” La.Code Civ.P. art. 5181(A). However, in seeking this privilege, the litigant must file certain documents with the court, as delineated in La. Code Civ.P. art. 5183. Article 5183(A) states:

A. A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion if requested later, to which he shall annex:
(1) His affidavit that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means, accompanied by any supporting documentation; and
(2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
(3) A recommendation from the clerk of court’s office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of the court.

According to the record, the plaintiffs complaint is filemarked October 12, 2006. The incident which is the basis of this lawsuit occurred on October 17, 2005. At the hearing, the defendants introduced several letters from the Clerk of Court’s office, dated November 30, 2006, and February 15, 2007. The November 30, 2006 letter from the Clerk’s office states “[w]e are holding PETITION FOR DAMAGES — HOLDING FOR PAUPER INFORMATION OR COSTS.” The February 15, 2007 letter from the Clerk’s office states that “[w]e are holding PETITION FOR DAMAGES — I HAVE ENCLOSED THE PROPER PAUPERj^FACTS FOR YOUR CONVENIENCE.” The defendants also introduced an in forma pauperis application filed on April 3, 2007.

Although the plaintiff contends that he filed an in forma pauperis application from the United States District Court — Western District of Louisiana concurrently with his petition, such a filing is not contained in the record. We note that Mr. DeRosier and Mr. Reggie’s attorney stated at the hearing that the plaintiff did file such an application with his petition but that he included neither the Fourteenth Judicial District Court form nor an accompanying order. The transcript of the exceptions hearing indicates that the plaintiff showed the trial court these documents, but failed to submit them into evidence. An appellate court cannot review evidence that is not in the record and cannot receive new evidence. Hover v. Farber, 05-613 (La.App. 5 Cir. 1/31/06), 922 So.2d 637.

The record provides adequate support for the trial court’s conclusion that, while the plaintiff may have submitted his petition to the Clerk of Court prior to the expiration of the one-year prescriptive period, he failed to submit either costs or an in forma pauperis application until April 3, 2007. Accordingly, there is sufficient evidence to support a finding that the plaintiffs filing was not complete for the purposes of interrupting prescription. Gant, 872 So.2d 1280. Further, the plaintiffs in forma pauperis application was not submitted until April 3, 2007, more than five months after prescription had occurred.

Thus, we find no error in the trial court’s grant of the exception of prescription.

Exception of Insufficiency of Service of Process

The plaintiff also complains that the trial court erred in granting Deputy Thibodeau’s exception of insufficiency of service of process.

|n Insufficiency of service of process, “including failure to request service of citation on the defendant within the time prescribed by Article 1201(C)” is a declinatory exception which may be raised pursuant to La.Code Civ.P. art. 925. As referenced by Article 925, La.Code Civ.P. art. 1201(C) addresses the time for requesting service of process, stating, in relevant part, that:

Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.

See also La.R.S. 13:5107. Further, La. Code Civ.P. art. 1672(C) addresses the appropriate remedy when an exception of insufficiency of service of process is sustained. It states:

C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

At the hearing, Deputy Thibodeau submitted evidence which indicated that, despite several notices from the Clerk of Court’s office, the plaintiff did not request service until September 5, 2008, and did not provide service instructions until September 30, 2008. Thus, the record indicates that the plaintiff did not |12request service within 90 days of filing the petition. Further, there is no indication that the plaintiff attempted to show good cause why service was not requested. Boyd v. Picayune, 11-119 (La.App. 5 Cir. 11/15/11), 82 So.3d 298; Bolner v. Daimler Chrysler Corp., 01-1285 (La.App. 5 Cir. 6/26/02), 820 So.2d 1252, writ denied, 02-2263 (La.11/15/02), 829 So.2d 430.

The plaintiff also complains that the trial court erred in failing to find that this was a prisoner suit pursuant to the Louisiana Prison Litigation Reform Act (PLRA) and that, once his pauper application was granted, the service requirement was suspended pursuant to La.R.S. 15:1188 until the trial court authorized service. The PLRA defines a “prisoner suit” or a “civil action with respect to prison conditions” as “any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.” La.R.S. 15:1181.

The plaintiffs suit does not, as contemplated by La.R.S. 15:1181, challenge the conditions of his confinement or the effects of actions by government officials on his life. Accordingly, we find no merit to the plaintiffs argument concerning the applicability of the PLRA to his suit. See Colquitt v. Claiborne Parish, La., 36,260 (La.App. 2 Cir. 8/14/02), 823 So.2d 1103 (An inmate’s lawsuit contending that the district attorney violated his right to speedy trial was not subject to the PLRA). Cf. McCoy v. State ex rel. Jones, 39,323 (La.App. 2 Cir. 2/17/05), 901 So.2d 1109, writ denied, 05-960 (La.2/3/06), 922 So.2d 1161. (An inmate’s suit alleging unnamed state tort law claims directly correlated to the conditions of his confinement or effects of actions by government officials on his life as a person confined in prison and was subject to the PLRA).

| ,/Therefore, we find no error in the trial court’s grant of Deputy Thibodeau’s exception of insufficiency of service of process.

Exception of No Cause of Action

The plaintiff also contends that the trial court erred in granting Mr. DeR-osier’s and Mr. Reggie’s exception of no cause of action. Mr. DeRosier and Mr. Reggie asserted that they were entitled to absolute prosecutorial immunity for their actions in prosecuting the plaintiff.

The exception of no cause of action “is designed to test the legal sufficiency of the petition to determine whether the plaintiff is afforded a remedy in law based on the facts alleged in the petition.” E. Baton Rouge Parish Sch. Bd. v. Wilson, 08-536, p. 14 (La.App. 1 Cir. 6/6/08), 992 So.2d 537, 545-46, unit denied, 08-1479 (La.12/12/08), 997 So.2d 560. No evidence may be admitted to support or controvert the allegation that the petition fails to state a cause of action. La.Code Civ.P. art. 931. Thus, for the purposes of resolving an exception of no cause of action, the well-pled facts in the petition must be accepted as true. Wilson, 992 So.2d 537. Further, appellate courts review the resolution of an exception of no cause of action de novo. Id.

In Knapper v. Connick, 96-434, p. 10 (La.10/15/96), 681 So.2d 944, 950, the supreme court addressed the issue of whether prosecutors are entitled to absolute immunity, concluding:

We are persuaded that granting absolute immunity to prosecutors from malicious prosecution suits is appropriate when the activities complained of fall within the scope of the prosecutor’s role as an advocate for the state and are intimately associated with the conduct of the judicial phase of the criminal process. In certain cases, determining whether the conduct complained of falls within the ambit of absolute immunity protection may not be an easy task.

The plaintiffs allegations concern Mr. DeRosier’s and Mr. Reggie’s actions in charging and prosecuting the plaintiff with obstruction of justice. There is 114sufficient evidence in the record to support a determination by the trial court that these activities were within the scope of the prosecutor’s role as. an advocate for the State and sustained the exception of no cause of action. Based on our review of the record, we find no error in the trial court’s grant of the exception of no cause of action in favor of Mr. DeRosier and Mr. Reggie.

Further, we find that' the plaintiffs petition fails to state a cause of action for malicious prosecution. On its own motion, an appellate court may notice the failure of a petition to state a cause of action. La.Code Civ.P. art. 927; Eubanks v. State, Dept, of Transp. & Dev., 620 So.2d 954 (La.App. 3 Cir.), writs denied, 629 ,So.2d 353 (La.1993). One of the requirements of a malicious prosecution charge is the bona fide termination of the criminal proceedings in favor of the plaintiff. In his petition; the plaintiff alleges that, in connection with the incident occurring on October 17, 2005, he was arrested and charged with “simple assault” and “obstruction of justice.” Elsewhere in his petition, the plaintiff alleges that the “simple assault” charge was “ultimately rejected” by the prosecution. The plaintiff makes no reference to the disposition of the aforementioned “obstruction of justice” charge, which arose from the same incident. Accordingly, the plaintiffs petition does not allege that there was a termination of the proceedings in his favor. Thus, having failed to plead one of the key elements of a malicious prosecution claim, his petition fails to state a cause of action for malicious prosecution. Se Matthews, 963 So.2d 516; Gardner v. Cornett, 506 So.2d 967 (La.App. 3 Cir.), writ denied, 511 So.2d 1155 (La.1987).

The plaintiffs complaints concerning the exception of no cause of action are without merit.

Contempt

Finally, the plaintiff complains that the trial court inappropriately found him in contempt of court. A contempt judgment is generally an interlocutory judgment not subject to appeal; however, “some cases have permitted a review on appeal where the appellate court was reviewing other related appealable matters.” Taylor v. Johnson, 532 So.2d 557, 558 (La.App. 3 Cir.1988) (quoting State v. Sampson, 498 So.2d 1145, 1147 (La.App. 3 Cir.1986)). Thus, we will address the merits of the plaintiffs claim.

The trial court’s authority to hold a person in contempt for actions committed in the immediate view and presence of the court is contained within La.Code Civ.P. art. 222, which states, in relevant part:

A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.
Any of the following acts constitutes a direct contempt of court:
(1) Contumacious, insolent, or disorderly behavior toward the judge, or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court, or to impair its dignity or respect for its authority;
(3) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a pleading, brief, or other document filed with the court in irrelevant criticism of another attorney or of a judge or officer of the court;
(4) Violation of a rule of the court adopted to maintain order and decorum in the court room[.]

| ^Louisiana Revised Statutes 13:4611(l)(d), defines the permissible punishment “[f]or any other contempt of court ... by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.”

Louisiana Code of Civil Procedure Article 223 provides that a person who has committed a direct contempt of court may be found guilty and punished by the court without any trial other than an opportunity to be heard orally by way of defense or mitigation. Because the facts constituting direct contempt are within the knowledge of the trial court, procedural safeguards such as the right to a hearing and the right to counsel do not attach. Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143. However, in a criminal contempt, i.e., one which is designed to punish the offender for “contemptuous behavior in the presence of the court[,]” the accused is entitled to certain constitutional safeguards, including “the presumption of innocence, the right to proof of guilt beyond a reasonable doubt, and the right not to be compelled to testify against himself.” In re Milkovich, 493 So.2d 1186, 1188-89 (La.1986). Accordingly, when an appellate court reviews a criminal contempt conviction, it “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant’s acts constituted contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority.” Id.

The record indicates that, despite the plaintiffs contentions to the contrary, the trial court gave the plaintiff, who was representing himself, substantial leeway in making his arguments to the court and in making objections. Further, the record 117reveals that the trial court warned the plaintiff at least seven times that he should not interrupt when the court was speaking. The plaintiff also made several statements that can be construed as disparaging the integrity of the trial court, the Clerk of Court’s office, and the judicial system as a whole. After the plaintiff interrupted the trial court again, the trial court found that the plaintiff was in contempt of court and imposed a sentence of three months in the parish jail, consecutive to any sentence that the plaintiff might already be serving. The record also indicates that the plaintiff contended that he “wasn’t arguing” and that he “simply ask[ed the trial court] a question that I didn’t understand.”

Based on this evidence, we find no error in the trial court’s finding that the plaintiff was in contempt of court.

DECREE

For the foregoing reasons, the judgment of the trial court sustaining the exceptions filed by Calcasieu Parish District Attorney John DeRosier, and Assistant District Attorney Paul Reggie, and Deputy Eugene Thibodeau of the Calcasieu Parish Sheriffs Office is affirmed in all respects; Further, the trial court’s order holding the plaintiff, Mason Godfrey, in contempt is affirmed. Costs of this proceeding are assessed to Mason Godfrey.

AFFIRMED.

      . According to the record, Mr. Reggie passed away during the pendency of this litigation.

      . Deputy Thibodeau’s last name is spelled as both "Thibodeaux” and "Thibodeau” in the record. We adopt the spelling used in his appellate brief.

      .The record indicates that this case was allotted to Judge David Ritchie. However, Judge Planchard was sitting as a pro tempore judge when he signed the motion to set a hearing and stay discovery.

      . Although the plaintiff did not designate any assignments of error, as required by Uniform Rules — Courts of Appeal, Rule 2-12.4, he did include several "Statement of Issues Presented for Review," which encompass the arguments discussed herein. We note that the court may consider as abandoned any specification or assignment of error which has not been briefed. Uniform Rules- — Courts of Appeal, Rule 2-12.4. However, the plaintiff, who is representing himself, is not a lawyer and:
      as such, not trained, educated, and experienced in the law. We are also cognizant of a citizen’s right to have access to the courts of this state including [his] right to have [his] case reviewed by an appellate court. See La. Const, arts. 1 § 19 and 22. Accordingly, we prefer to look to substance rather than form, in reviewing cases presented to us by lay persons. Further, we have recently reviewed a case where an appellant's brief did not conform to Rule 2-12.4 by exercising our inherent power and duty under the Louisiana Code of Civil Procedure Article 2164 to render any judgment which is just, legal, and proper upon appeal. Conner v. Palermo Constr. Co., Inc., 00-1399 (La.App. 3 Cir. 2/28/01); 782 So.2d 1132.

        St. Agnes Health/Rehab. Ctr. v. Ledet, 00-2023, pp. 2-3 (La.App. 3 Cir. 3/21/01), 782 So.2d 1145, 1146-47.

      . In Godfrey, 4 So.3d at 270, this court observed that the plaintiff's motion to recuse in the criminal case was heard by another judge, that Judge Planchard "testified that he had no recollection of the events in question,” and that the plaintiff’s motion to recuse was denied.

      . The plaintiff's malicious prosecution claim will be addressed separately herein.

      . We acknowledge the supreme court’s opinion in Filson v. Windsor Court Hotel, 04-2893, p. 4 (La.6/29/05), 907 So.2d 723, 726, which held that "[w]here the objection is based on service outside the 90-day time limit of La. C.C.P. art. 1201(C), La. C.C.P. art. 1672(C) specifically provides that the manner for objecting is by filing a motion for involuntary dismissal.” However, the legislature amended Article 1672(C) the following year, to include the phrase "upon the sustaining of a declinatory exception filed by such defendant,” in addition to a contradictory motion by any other party. See Acts 2006, No. 750. § 1. Therefore, we find no error in the defendant's use of the declinatory exception raising the objection of insufficient service of process to obtain a dismissal of the plaintiff’s petition. See, e.g., Burge v. State, 10-51 (La.App. 1 Cir. 6/11/10), 43 So.3d 235, rev'd on other grounds, 10-2229 (La.2/11/11), 54 So.3d 1110.

      . La.R.S. 15:1181-1193.

      . The elements of a claim of malicious prosecution are "(1) [t]he commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.” Wiley v. Wiley, 01-0726, p. 4 (La.App. 3 Cir. 11/7/01), 800 So.2d 1106, 1109, writ denied, 01-3232 (La.2/8/02), 809 So.2d 129.

      . We observe that the record elsewhere indicates that the plaintiff was charged with and ultimately convicted of intimidation of a public official. However, for the purposes of an exception of no cause of action, we must accept the well-pled facts in the petition as true. Wilson, 992 So.2d 537.