author: PER CURIAM. WEIMER, J.,

text:
    Melissa O’DWYER, Laura Franks, Jiala Baclay, Rachel Carraway, Mark Bates, Tamika Thomas-Magee and Anavernyel Neyland-Pryan v. OUR LADY OF THE LAKE NURSE ANESTHESIA PROGRAM through OUR LADY OF THE LAKE COLLEGE and Yvonne Bahlinger in her official capacity as clinical Director, Assistant Program Director.
    No. 2013-CC-0703.
    Supreme Court of Louisiana.
    May 17, 2013.
    Rehearing Denied June 21, 2013.
   PER CURIAM.

|TWe granted certiorari in this matter in order to determine whether plaintiffs must produce audio recordings and a witness for deposition prior to the defendants’ witness deposition. Because we find that the recordings were made for impeachment purposes, we hold that under the rule set out in Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La.5/20/97), 693 So.2d 1164, the production of the witness and audio recordings should not be disclosed until after defendants’ witness’ deposition.

Plaintiffs, nursing students, filed the instant suit against Our Lady of the Lake Nurse Anesthesia Program (“OLOL-NAP”), alleging defendants targeted plaintiffs for termination from the nursing program through harassment, bullying, stalking, and intimidation.

The matter proceeded to discovery. Plaintiffs filed a motion to compel the deposition of Phyllis Pederson, the director of OLOL-NAP and a fact witness, which the trial court granted. Later, the parties participated in a phone conference with the trial judge. At that time, OLOL-NAP informed the trial court they wished |2to take the deposition of Mike Ellender, a student at OLOL-NAP, who is in possession of audiotaped conversations between him and Ms. Pederson. At that time, the trial court ordered Mr. Ellender’s testimony and the audiotapes be produced prior to the deposition of Ms. Pederson. This order was not reduced to writing.

Thereafter, plaintiffs filed a motion for reconsideration, arguing Ms. Pederson’s deposition should be taken before the deposition of Mr. Ellender and production of other impeachment evidence, including audio surveillance by Mr. Ellender, whom plaintiffs contend is an impeachment witness. In support, plaintiffs relied on Wol-ford,, in which this Court found a plaintiffs deposition should be taken prior to the production of video surveillance impeachment evidence, and the impeachment evidence must be produced within a reasonable amount of time prior to trial. After a hearing, the trial court denied plaintiffs’ motion for reconsideration.

Plaintiffs sought supervisory review from this ruling. The Court of Appeal, First Circuit, denied the writ, stating:

This Court declines to exercise its supervisory jurisdiction. The criteria set forth in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981)(per cu-riam) are not met.

Plaintiffs now apply to this court, seeking priority attention and a stay to protect the production of impeachment materials.

In Moak v. Illinois Central Railroad Co., 631 So.2d 401 (La.1994), this Court discussed the general rule that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. The Court stated that the trial judge has the discretion to determine the appropriate timing for the pre-trial discovery of surveillance materials and the trial court may determine in any particular factual | osituation when the production of surveillance films, tapes or photographs will most likely assist the search for truth.

Next, in Wolford, this Court modified that general rule, holding that a trial court should not order the disclosure of surveillance tapes until after a deposition. The Court stated:

This rule best serves the overarching purpose of our system of justice — to search for the truth. Ours is an adversarial system of justice that relies on the ability and resources of adversaries to uncover the truth by testing each other’s evidence through a variety of methods, the most important of which is cross-examination. Moreover, in an adversarial system, the defendant has a right to a defense and to cross-examination. In a personal injury case, surveillance videotape can be critical to the defendant’s defense and ability to effectively cross-examine the plaintiff. Surveillance materials may thus serve an important function in the search for truth and, absent special circumstances, their value should be preserved by delaying their disclosure until after the deposition of the plaintiff.

Wolford, 693 So.2d at 1167-8.

Then, in Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La.2/22/07), 950 So.2d 654, this Court narrowed the holding in Wol-ford, explaining that the opinion only applied to surveillance tapes made for the purpose of impeachment, and that in cases involving tapes of the actual incident, the tapes are generally discoverable and the non-mover has the burden of showing special circumstances to delay discovery. Such cases are thus governed by the general rule that a trial court shall have control over the timing of discovery.

Here, as stated above, we find that the surveillance audio tapes were made for the purpose of impeachment of defendants’ witness rather than as direct evidence and, therefore, the production of such impeachment materials should be delayed until after defendants’ witness’ deposition following the exception to the general rule set out in Wolford.

WRIT GRANTED; REVERSED; REMANDED

VICTORY, J., dissents for the reasons assigned by Justice WEIMER.

WEIMER, J., dissents and assigns reasons.

WEIMER, J.,

dissenting.

Li respectfully dissent. The majority reverses the district court’s discovery ruling on a finding “that the surveillance audio tapes were made for the purpose of impeachment of defendants’ witness rather than as direct evidence, and therefore, the production of such impeachment materials should be delayed until after defendants’ witness’ deposition.” O’Dwyer v. Our Lady of the Lake Nurse Anesthesia Program, No. 13-CC-0703 (La.5/17/2013), majority op. at 1254. This finding — that the audio tapes were made for the purpose of impeachment only — is belied by the plaintiffs’ own pleadings. As the plaintiffs candidly acknowledge in their application to this court, “[t]he audio tapes and testimony are unique evidence that may well be used for direct or impeachment purposes.” (Emphasis added.) Indeed, plaintiffs insist “[t]he discovery to be had through Mr. Ellender may be used as substantive, corroborative, or impeachment evidence at trial.” (Emphasis added.)

Given the admitted fact that the audio tapes are not exclusively impeachment evidence, I believe the case is governed by the rationale of Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La.2/22/07), 950 So.2d 654. In Bell, this court limited the |2holding of Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La.5/20/97), 693 So.2d 1164, to surveillance materials made after an incident for purposes of impeaching the plaintiff:

Throughout the opinion [in Wolford ], this Court, although using the generic term “surveillance videotape,” clearly was speaking of surveillance videotapes made after an injury had occurred, for the purpose of impeaching a plaintiff as to the extent of his or her personal injury and any claimed limitations resulting therefrom. As stated, in such a case, the plaintiff would have the burden of showing special circumstances allowing pre-deposition disclosure. In other cases, such as the instant one, where a surveillance videotape shows the actual accident and was not created for the specific purpose of impeaching the plaintiff, surveillance videotapes are ... generally discoverable under our discovery rules. Because the videotapes are generally discoverable, it is the defendant, rather than the plaintiff, which must show special circumstances which would require postponing the production of the material.

Bell, 06-1538 at 3, 950 So.2d at 656. In this case, while the audio tapes were made after the incident forming the basis of this case (the termination of plaintiffs from the nursing program), there is no indication (as plaintiffs’ pleadings confirm) they were made exclusively for impeachment purposes; although, in addition to providing direct evidence of the defendants’ alleged wrongdoing, they may also serve that purpose. As a result, following the reasoning of Bell, I believe the audio tapes are discoverable, absent a showing of special circumstances by the plaintiffs.

In its review of the matter, the district court did not find any special circumstances that would justify delaying production of the audio tapes pending the deposition of Phyllis Pederson. Considering the broad discretion afforded to the district court when regulating pre-trial discovery (Moak v. Illinois Central Railroad Company, 93-0783 (La.1/14/94), 631 So.2d 401, 406-407) I cannot find any basis for concluding that the decision of the district court was an abuse of that broad discretion. Therefore, I respectfully dissent from the majority opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Panagiotis KONDYLIS v. Sheriff Jack STRAIN, Jr. and Deputy Carl Perilloux.
    No. 2013-C-562.
    Supreme Court of Louisiana.
    May 17, 2013.
   PER CURIAM.

^GRANTED. At issue is the correct interpretation of the Corrections Administrative Remedy Procedure (“CARP”), La. R.S. 15:1171, et seq., and whether the publication requirement in La. R.S. 15:1173 applies to sheriffs operating parish jails. For the reasons that follow, we find that the court of appeal erred in finding that sheriffs are required to publish their individual administrative remedy procedui-es with the Department of State Register.

In this particular case, Panagiotis Kon-dylis was an inmate at the St. Tammany Parish jail and was allegedly injured during his incarceration. He filed suit against Sheriff Strain and Deputy Perilloux for his alleged injuries. The St. Tammany Parish Sheriffs Office has an administrative remedy procedure which requires an inmate to file a grievance within ninety days of an incident if the inmate has a complaint against the prison and/or prison staff. Failure to exhaust the administrative remedies within the prescribed time period amounts to an abandonment of a legal claim pursuant to La. R.S. 15:1172. This particular grievance procedure of the St. Tammany Parish Sheriffs Office has been in place since 1996 and is described in full in the “Inmate Rules and Regulations” handbook, which is given to all inmates at the time of booking and is posted throughout the jail. Mr. Kondylis failed to comply with the grievance procedure following the alleged incident and instead filed the abovejreferenced2 lawsuit. As a result, Sheriff Strain and Deputy Perilloux filed exceptions of prematurity and no cause of action.

Mr. Kondylis opposed the exceptions, contending that the failure of the St. Tammany Parish Sheriffs Office to publish its administrative remedy procedure in the State Register rendered such procedure invalid. The trial court considered the evidence presented and ruled that Sheriff Strain’s office, as a political subdivision (as opposed to a state agency), was not required to publish its administrative remedy procedure.

The court of appeal reversed, finding La. R.S. 15:1173 specifically provides, “[t]he administrative remedy procedure shall be published in the State Register.” (Emphasis added). In doing so, the court of appeal did not adequately consider the Administrative Procedure Act (“APA”). The APA governs the sheriffs adoption of the administrative remedy procedures articulated in CARP published in the State Register. Specifically, the court of appeal did not give proper weight to the APA’s language that excludes political subdivisions from the requirement of publication. See La. R.S. 49:954(A) (“Each rule making agency shall file a certified copy of its rules with the Department of State Register. No rule ... shall be effective, nor may it be enforced, unless it has been properly filed with the Department of State Register.”); La. R.S. 49:951(2) excludes “political subdivision” from the definition of “agency.”). Instead, the court of appeal emphasized that the more specific rule regarding publication provided by CARP trumped the less specific provisions of the APA and that the two acts should not be read together. It found that the APA was only meant to fill in the gaps created by CARP and that because CARP was not silent on the publication issue, no reference to the APA was necessary.

laSheriff Strain and Deputy Perilloux filed the instant writ application, arguing the court of appeal erred in finding that political subdivisions, such as sheriffs, are required to publish their administrative remedy procedures in the State Register. We agree that the court of appeal’s interpretation is erroneous.

We note that this is a res nova issue so there is no jurisprudential guidance. However, the factual and legislative background are valuable in determining the proper interpretation of the applicable provisions of both CARP and the APA and in ascertaining the result that their interplay mandates. First, factually relevant and legally telling is the absence from the State Register of any sheriffs published administrative remedy procedures. This fact was presented to the trial court via a letter from the Department of State Register confirming that none of the individual sheriffs offices have published in the State Register. Thus, under the court of appeal’s analysis, all current procedures governing complaints by inmates against sheriffs and parish jail personnel would have no legal force. The absence of any publication by any sheriff warrants close consideration of the statutes themselves and the legislative history behind the statutes.

Upon consideration of this legislative history, we find that CARP was introduced in 1985 to allow the Department of Public Safety and Corrections to adopt an administrative remedy procedure in line with federal guidelines. The original statute included the current language of La. R.S. 15:1173, which provides “[t]he administrative remedy procedure shall be published in the State Register.” In 1988, the legislature amended a different provision of CARP, La. R.S. 15:1172(A), to allow parish sheriffs to implement the administrative remedy procedure used by the Department of Public Safety and Corrections pursuant to the APA:

Upon adoption of the administrative remedy procedure, in accordance with the Administrative Procedure Act, and the implementation of the | procedure within the department or by the sheriff, this procedure shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action they may claim to have against the state of Louisiana, the Department of Public Safety and Corrections, or its employees, the contractor operating a private prison facility or any of its employees, shareholders, directors, or officers, or a sheriff, or his employees or deputies. (Emphasis added).

The court of appeal looked solely to the language of La. R.S. 15:1173 to find that publication of the administrative remedy procedure is a prerequisite for validity of the procedure. However, the language that made the procedure applicable to the sheriffs in the first place (La. R.S. 15:1172) specifically references the APA. Thus, we must look to the APA. To ignore the reference to and content of the APA ignores an important statutory interpretation rule that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. ABL Mgmt., Inc. v. Bd. of Supervisors of Southern Univ., 00-0798, p. 6 (La.11/28/00), 773 So.2d 131, 135.

The APA requires an a “agency” to file its rules with the Department of State Register, see La. R.S. 49:954(A), and the definition of “agency” articulated therein, see La. R.S. 49:951(2), excludes “political subdivisions,” such as sheriffs. In order to give every word and every provision meaning, the two acts (CARP and APA) must be read in pari materia. Not requiring the sheriffs to publish their individual procedures does not lead to an absurd result; rather, it is logical to conclude that the legislature did not intend to impose a redundant publication requirement. Instead, we find the true purpose of La. R.S. 15:1172 was to allow sheriffs to implement the procedures already adopted and published by the Department of Public Safety and Corrections.

1 r,Notably, the publication statute, La. R.S. 15:1173, which originated prior to the amendment that authorized sheriffs to use the procedure adopted by the Department of Public Safety and Corrections, was never amended to require sheriffs to publish their procedures. Clearly without an amendment to the publication statute to make it applicable to sheriffs, the original language of La. R.S. 15:1173 cannot impose publication obligations on sheriffs since the sheriffs were not contemplated when the statute was originally enacted.

For the above reasons, we find sheriffs are not required to publish their individual administrative remedy procedures in the State Register. Accordingly, we reverse the court of appeal’s ruling and reinstate the trial court’s granting of the exceptions of prematurity and no cause of action.

       Justice Hughes is recused in this matter.


text:
    In re Andre F. TOCE.
    No. 2013-B-1086.
    Supreme Court of Louisiana.
    May 31, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into respondent’s arrests for driving while intoxicated. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Andre F. Toce, Louisiana Bar Roll number 16769, be suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety, subject to the conditions set forth in the petition for consent discipline. Any failure of respondent to comply with said conditions may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    STATE ex rel. Marlon J. BANKS v. STATE of Louisiana.
    No. 2012-KH-2670.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Banks, Marlon J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 13815-08; to the Court of Appeal, Third Circuit, No. 12-135.

Denied.


text:
    STATE ex rel. Delmar BRADFORD v. STATE of Louisiana.
    No. 2012-KH-2671.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Bradford, Delmar; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 416-359; to the Court of Appeal, Fourth Circuit, No. 2012-K-1581.

Denied. Relator must first address his request for a cost estimate to documents to which he is entitled under the Public Records Law to the records’ custodian and may then seek judicial review in an independent action under the district court’s civil jurisdiction. R.S. 44:31; R.S. 44:35; State ex rel. McKnight v. State, 98-2258 (La.App. 1st Cir.12/3/98), 742 So.2d 894.


text:
    STATE ex rel. Undra H. MARTIN v. STATE of Louisiana.
    No. 2012-KH-2672.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Martin, Undra H.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 703173; to the Court of Appeal, First Circuit, No. 2012 KW 1582.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Travis CARTER v. STATE of Louisiana.
    No. 2012-KH-2673.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Carter, Travis; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Gourt Div. B, No. 111497.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Anthony J. SMITH v. STATE of Louisiana.
    No. 2012-KH-2674.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Smith, Anthony J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 99-CR-760; to the Court of Appeal, First Circuit, No. 2012 KW 1795.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Morgan KING v. STATE of Louisiana.
    No. 2012-KH-2694.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re King, Morgan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 258759; to the Court of Appeal, Second Circuit, No. 47,-207-KA.

Denied. Relator must first file an application for post-conviction relief in the district court under the provisions set out in La.C.Cr.P. art. 926 et seq.


text:
    STATE ex rel. Calvin Lee CRADDOCK v. STATE of Louisiana.
    No. 2012-KH-2715.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Craddock, Calvin Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 397650; to the Court of Appeal, First Circuit, No. 2012 KW 1660.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Alfred DECLOUET v. STATE of Louisiana.
    No. 2012-KH-2726.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Declouet, Alfred; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 07-1540; to the Court of Appeal, Fifth Circuit, No. 12-KH-674.

Denied.


text:
    STATE ex rel. Robert E. JACKSON, Jr. v. STATE of Louisiana.
    No. 2012-KH-2727.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Jackson Jr., Robert E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. O, No. 96,366; to the Court of Appeal, Second Circuit, No. 48,-014-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Audwin B. WELCH v. STATE of Louisiana.
    No. 2012-KH-2728.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Welch, Audwin B.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. F, No. 2005-168145; to the Court of Appeal, First Circuit, No. 2012 KW 1449.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Randy ELLIS v. STATE of Louisiana.
    No. 2012-KH-2729.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re Ellis, Randy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 17,570; to the Court of Appeal, Second Circuit, No. 47,862-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


author: GUIDRY, J.

text:
    WELLS FARGO BANK, N.A. v. Diana L. TONAGEL.
    Nos. 2012 CA 0380, 2011 CW 2400.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.
    Kent A. Lambert, Brian M. Ballay, Roy C. Cheatwood, Laura M. Williams, New Orleans, LA, Charles H. Heck, Jr., Monroe, LA, for Plaintiff/Appellant Wells Fargo Bank, N.A.
    Diana L. Tonagel, Mandeville, LA, Defendant/Appellee, Pro Se.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   GUIDRY, J.

|2Wells Fargo Bank, N.A. (Wells Fargo) appeals from a judgment of the trial court confirming a default judgment in favor of Diana Tonagel and ordering that the Order of Seizure entered on August 12, 2010, be vacated and that the seized property be returned to Tonagel; ordering that the mortgage loan be reinstated without penalty; awarding Tonagel damages and attorney’s fees on her reconventional demand; and ordering that the law firm of Dean Morris, LLP and attorney Charles H. Heck, Jr. be disqualified from representing any party relative to these proceedings. For the reasons that follow, we vacate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On August 10, 2010, Wells Fargo filed a petition to enforce security interest by ex-ecutory process, seeking the issuance of a writ of seizure and sale of mortgaged property securing a 2009 loan made to Ms. Tonagel. An order commanding the St. Tammany Parish Sheriff (Sheriff) to seize and sell the property affected by the mortgage was issued on August 12, 2010. A writ of seizure was issued on the same date. Unable to effectuate service upon Ms. Tonagel, Wells Fargo moved to have a curator ad hoc appointed by the trial court. The trial court subsequently appointed attorney James Casey Fos to receive service.

Thereafter, on January 21, 2011, Mr. Fos, on behalf of Ms. Tonagel, filed a Petition for Injunction of Judicial Sale, Motion to Disqualify Counsel, and Recon-ventional Demand for Damages, Payment of Costs and Attorney’s Fees. In this pleading, Ms. Tonagel sought: to have the August 12, 2010 order of seizure and sale set aside and the writ of seizure recalled; to enjoin the Sheriff from proceeding with the sale of the property; reinstatement of the mortgage without penalties; to enjoin the law firm of Dean Morris and attorney Charles H. Heck, Jr. from acting as counsel for Wells Fargo; damages for Wells Fargo’s unauthorized Ruse of executory process; damages for Wells Fargo’s bad faith and unfair trade practices in violation of the Louisiana Unfair Trade Practices Act (UTPA); and attorney’s fees.

An order was subsequently signed by the trial court on January 24, 2011, granting a hearing for preliminary injunction of judicial sale, with, the date to be determined. It further ordered that Wells Fargo appear for a hearing on January 31, 2011, and show cause why the court should not enter an order in favor of Ms. Tonagel granting her request to vacate the order of seizure entered on August 12, 2010, for disqualification of counsel for Wells Fargo, and for an award of damages, costs, and attorney’s fees, reinstatement of the mortgage loan without penalty and/or all other relief as is reasonable. However, the parties subsequently agreed to re-schedule the judicial sale for a later date and continue the hearing.

Nevertheless, on May 6, 2011, Mr. Fos sent a request to the trial court asking that it enter a preliminary default against Wells Fargo on the reconventional demand, stating that Wells Fargo was served with the reconventional demand on January 24, 2011, but as of the date of the request, it had not filed an answer to the demand. Thereafter, on May 10, 2011, the trial court ordered entry of a preliminary default against Wells Fargo by way of a minute entry.

On May 17, 2011, the trial court held a hearing to confirm the preliminary default judgment entered against Wells Fargo, at the conclusion of which the trial court rendered judgment in favor of plaintiff in reconvention, Ms. Tonagel, and against Wells Fargo as prayed. The trial court signed a judgment on May 24, 2011, finding the allegations of fact and law as pled in the petition for injunction, motion to disqualify and reconventional demand for damages were well founded and that Ms. Tonagel had made a prima facie case warranting judgment as prayed for in the pleadings. The judgment ordered the seizure entered August 12, 2012, be vacated and ordered the Sheriff to return the property to Ms. Tonagel; ordered |4the mortgage loan be reinstated without penalty and that all penalties, fees, and charges by Wells Fargo be removed; disqualified Dean Morris, LLP and Charles H. Heck, Jr. from representing any party relative to these proceedings; awarded Ms. Tonagel damages totaling $75,000.00 and attorney’s fees in the amount of $5,000.00; and awarded treble damages for Wells Fargo’s fraud and/or unfair trade practices in violation of the Louisiana UTPA, La. R.S. 51:1401.

Wells Fargo subsequently filed a motion for new trial, asserting lack of notice as required by La. C.C.P. art. 1702(A); the absence of evidentiary support for the relief sought by Ms. Tonagel; and the relief granted contravened applicable substantive law. Following a hearing on Wells Fargo’s motion, the trial court signed a judgment on November 23, 2011, granting a new trial in part as to the award pursuant to the UTPA and denied the motion for new trial as to all other issues. Thereafter, on December 21, 2011, the trial court signed an order, consented to by the parties, vacating the portion of the May 24, 2011 judgment awarding Ms. Tonagel treble damages and attorney’s fees for violation of the UTPA and ordering that the remainder of the court’s May 24, 2011 judgment shall remain in full force and effect and is designated as a pai’tial final judgment, finding no just reason for delay. Wells Fargo now appeals from the trial court’s judgment.

[..DISCUSSION

Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in all other cases allowed by law La. C.C.P. art. 2631. Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both. La. C.C.P. art. 2642. When utilizing the injunction procedure, the petition for injunction shall be filed in the court where the executory proceeding is pending, either in the executory proceeding or in a separate suit, and the injunction proceeding shall be governed by the provisions of Articles 3601 through 3609 and 3612, except as provided in Article 2753. La. C.C.P. art. 2752.

In the instant case, Ms. Tonagel filed a Petition for Injunction of Judicial Sale in the executory proceeding, which also included a reconventional demand for damages and attorney’s fees for the wrongful seizure of the property at issue and for purported violations of the UTPA. A defendant in a principal or incidental action must file an answer within fifteen days after service of citation upon him, except as otherwise provided by law. La. C.C.P. arts. 1001 and 1035. If a defendant in a principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. La. C.C.P. art. 1701(A). This judgment of default is commonly referred to as the “preliminary default.” See Power Marketing Direct, Inc. v. Foster, 05-2023, p. 10 (La.9/6/06), 938 So.2d 662, 669. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes. La. C.C.P. art. 1701(A).

Louisiana Code of Civil Procedure article 1702(A) sets forth two procedures for confirmation of a default judgment, with the defendant’s actions in the case determining the procedure to be utilized by the plaintiff. Power Marketing Direct, 05-2023 at p. 10, 938 So.2d at 669. If no answer is filed timely, the plaintiff may confirm the judgment of default after two days, exclusive of holidays, from the entry of the judgment of default. La. C.C.P. art. 1702(A). However, when a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default. La. C.C.P. art. 1702(A).

Courts have held that in order to obtain a valid confirmation of a default judgment, strict compliance with the procedural requirements of La. C.C.P. art. 1702(A) is required. See Nickens v. Patriot Home Systems, 97-0291, p. 5 (La.App. 1st Cir.6/29/98), 713 So.2d 1179, 1182; Jules v. Lege, 618 So.2d 1121, 1122 (La. App. 5th Cir.), writ denied, 629 So.2d 344 (La.1993). Further, if a judgment of default is confirmed before the expiration of the delay prescribed by statute, i.e., two legal days after entry of the preliminary default if no answer is timely filed or seven days after notice is sent if the defaulting party has made an appearance of record, the confirmation of the judgment of default is premature, and the judgment is null and invalid. Power Marketing Direct, 05-2023 at p. 11, 938 So.2d at 670. A final judgment shall be annulled if it is rendered against a 17defendant against whom a valid judgment of default has not been taken. La. C.C.P. art. 2002(A)(2); see also Power Marketing Direct, 05-2023 at p. 11, 938 So.2d at 670.

In the instant case, Ms. Tonagel requested on May 6, 2011, that the trial court enter a preliminary default against Wells Fargo on her reconventional demand, stating that service had been made on counsel for Wells Fargo on January 24, 2011, and that as of the date of its request, Wells Fargo had not filed an answer to its reconventional demand. On the same date, Ms. Tonagel also notified Wells Fargo by certified mail of her intent to seek a preliminary default. Thereafter, on May 10, 2011, the trial court entered a judgment of default against Wells Fargo, and following a hearing on May 17, 2011, confirmed the default judgment.

Wells Fargo asserts on appeal that the trial court erred in confirming a default judgment against it because Ms. Tonagel failed to comply with the notice requirements of La. C.C.P. art. 1702(A). Specifically, Wells Fargo asserts that Ms. Tona-gel failed to provide Wells Fargo with notice of the date of entry of the judgment of default by certified mail at least seven days before confirmation of the default judgment.

The Legislature added this particular notice requirement when it amended La. C.C.P. art. 1702(A) through Acts 2001, No. 512. The amendment specified that notice of the date of entry of the default judgment must be given to the party in default who made an appearance of record. Power Marketing Direct, 05-2023 at p. 15 n. 6, 938 So.2d at 672 n. 6. “Appearance of record” is intended to have the same meaning as in La. C.C.P. art. 1671, and includes filing a pleading such as any one or more of the exceptions, appearing at a hearing, and formally enrolling as counsel of record. Comments-2001 (b) to La. C.C.P. art. 1702. The purpose of this amendment is to conform default procedure to the rationale set forth in Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817, that it is |8an “ill practice” to confirm a judgment of default, without notice, against a party that has already filed pleadings constituting an appearance of record in the litigation proceedings. Comments-2001 (a) to La C.C.P. art. 1702.

Wells Fargo initiated the executory proceeding, seeking the seizure and sale of the mortgaged property, and obtained an order from the trial court granting the requested relief. Ms. Tonagel filed a petition for injunction of judicial sale, motion to disqualify counsel, and reconventional demand for damages in the executory proceeding in defense of and in response to Wells Fargo’s action. Both actions arise out of the same seizure and sale of the property and concern an identical issue, i.e. the validity of the executory proceeding. Therefore, from our review of the record, and considering the plain language as well as the intent of the legislature in amending La. C.C.P. art. 1702(A), we find that the record demonstrates that Wells Fargo made an appearance of record in the litigation proceedings, and Ms. Tonagel was required to provide it with notice of the date of entry of the judgment of default by certified mail at least seven days, exclusive of holidays, before confirmation of the default judgment. See Russell, 96-2649 at pp. 2-3, 686 So.2d at 819 (finding it was an ill practice for a plaintiffs attorney to obtain a default judgment without attempting to notify the opposing attorney when the opposing attorney in an on-going petitory action had participated in the litigation proceedings); Power Marketing Direct, 05-2023 at pp. 18-19, 938 So.2d at 674 (finding it was an ill practice for plaintiff to fail to notify defendant of his intent to seek a default judgment given plaintiffs knowledge that defendant lacked notification and considering that defendant was actively prosecuting and defending its rights in Ohio litigation involving identical issues arising out of the same contractual dispute between the same parties); Duckworth Properties, L.L.C. v. Williams, 10-0244, pp. 5-6 (La.App. 4th Cir.11/24/10), 52 So.3d 287, 291 (finding it was an ill practice for plaintiff to take a default judgment against the ^defendant in one jurisdiction while a suit arising out of the same contractual dispute was pending in another jurisdiction.)

As evidenced by the record, Ms. Tonagel failed to provide Wells Fargo with notice of the date of the entry of the judgment of default by certified mail at least seven days, exclusive of holidays, before confirmation of the judgment of default. While Ms. Tonagel sent a letter by certified mail to Wells Fargo on May 6, 2011, enclosing its request to the clerk of court to enter a preliminary default, which was received by Wells Fargo on May 9, 2011, it does not notify Wells Fargo of the date of the entry of the judgment of default, which judgment was not entered until May 10, 2011. As previously noted, strict compliance with the procedural requirements of La. C.C.P. art. 1702(A) is required in order to obtain a valid confirmation of a default judgment. Therefore, because Ms. Tonagel failed to send the required notice to Wells Fargo, the judgment confirming the default is null. See Jackson v. Culotta, 10-879, p. 4 (La.App. 5th Cir.3/29/11), 62 So.3d 803, 804.

CONCLUSION

For the foregoing reasons, we vacate the May 24, 2011 judgment confirming Ms. Tonagel’s default judgment and remand this matter to the trial court for further proceedings. All costs of this appeal are assessed to Diana Tonagel.

JUDGMENT VACATED AND REMANDED; WRIT DISMISSED; MOTION TO STRIKE DISMISSED.

      . After reviewing the trial court’s May 24, 2011 judgment and the November 23, 2011 order certifying the judgment as final, and considering the overriding inquiry of whether there is no just reason for delay as well as the other non-exclusive criteria trial court's should use in making the determination of whether certification is appropriate, we find that the trial court properly certified the May 24, 2011 judgment as a final appealable judgment. See R.J. Messinger, Inc. v. Rosenblum, 04-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122; Motorola, Inc. v. Associated Indemnity Corp., 02-1351, p. 16 (La.App. 1st Cir. 10/22/03), 867 So.2d 723, 732.
      In addition to filing the instant appeal, Wells Fargo also filed a supervisory writ with this court on December 27, 2011, seeking review of the trial court’s partial denial of its motion for new trial. In an interim order dated March 28, 2012, the previously filed writ application was referred to the panel to which the appeal is assigned. See Wells Fargo, N.A. v. Tonagel, 2011-2400 (La.App. 1st Cir.3/28/12), 117 So.3d 1263, 2013 WL 2456115 (unpublished writ action). However, because the May 24, 2011 judgment is a final, appealable judgment, and the writ application raises the same issues raised in the appeal currently before us, we hereby dismiss the writ application as moot. See Code v. Department of Public Safety and Corrections, 11-1282, p. 5 (La.App. 1st Cir. 10/24/12), 103 So.3d 1118, 1123 n. 6, writ denied, 12-2516 (La. 1/23/13), 105 So.3d 59.

      . Because we find Ms. Tonagel failed to comply with the notice requirements for confirming the default judgment against Wells Fargo, we specifically do not address whether her reconventional demand is properly asserted in this executory proceeding. See La. C.C.P. art. 462; see also La. C.C.P. art. 2644 (noting that a plaintiff in an executory proceeding may convert it into an ordinary proceeding).

      . Wells Fargo filed a motion to strike supplemental trial exhibits with this court on June 29.2012, requesting that this court issue an order striking documents added to the trial court record which it asserts were not previously filed with the trial court and were not properly authenticated or admitted. Because these documents allegedly relate to the confirmation of the default judgment, which judgment we have determined to be null, we dismiss the motion to strike as moot.


author: LOLLEY, J.

text:
    Holland BYRD, Plaintiff-Appellant v. Broc LINTON, Charles Faktor, Betty Beam, Michael Beam, Johanna Thomas and Code 3 Place, LLC, Defendants-Appellees.
    Nos. 48,191-CA, 48,192-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.
    Rehearing Denied Aug. 1, 2013.

      Talley, Anthony, Hughes & Knight, Mandeville, LA, by Craig J. Robichaux, for Appellant.
    Mayer, Smith & Roberts, Shreveport, LA, by Steven E. Soileau, for Appellee, Colony Ins. Co.
    Dick D. Knadler, for Appellees, Betty Beam, Michael Beam, Code 3 Place, LLC.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

11 Holland Byrd appeals the judgment of the 26th Judicial District Court, Parish of Bossier, State of Louisiana, wherein the trial court granted Colony Insurance Company’s (“Colony”) motion for summary judgment dismissing Byrd’s claim against Colony. For the following reasons, we affirm the trial court’s judgment.

FACTS

On June 26, 2010, Holland Byrd attended a party at a lounge in Bossier City, Louisiana, owned by Betty and Michael Beam named Code 3 Place, LLC (“Code 3”). Broc Linton and Jessica Celeste Soes arrived at Code 3 on a motorcycle later in the evening. Byrd insists that despite Linton’s obvious intoxication upon arrival, Code 3 employee Charles Faktor and owner Michael Beam continued to serve alcohol to Linton. At one point, Linton and Soes attempted to leave the party on the motorcycle; however, as Linton began to start up the motorcycle, Soes fell off the back after being pulled off by Byrd or falling of her own accord. In either case, Linton responded by tackling Byrd to the ground and severely beating her. Byrd suffered serious injuries as a result of Linton’s beating, and Linton was subsequently convicted of second degree battery.

Byrd filed suit against Linton alleging battery. Byrd also named as defendants Code 3, the Beams, and Code 3 employee Charles Faktor, claiming that they failed to remove Linton from the premises even though he was visibly intoxicated, failed to intervene in the melee between Linton and Byrd, and served Linton alcohol and contributed to the drunken rage in which he savaged Byrd. Colony insured Code 3 at the time of the incident | ¡¡with a commercial general liability policy (the “CGL policy”). Colony also insured Code 3 with a surplus lines liquor liability endorsement (the “liquor liability endorsement”).

Colony filed a motion for summary judgement asserting that neither the CGL policy nor the liquor liability endorsement covered the incident due to two virtually identical and explicitly stated exclusions in each of the two policies which denied coverage for liability arising out of an “assault, battery, or assault and battery committed by any person” (the “battery exclusion”). The trial court granted Colony’s motion for summary judgment, and Byrd now appeals. As defendant/appellees, Code 3 and its owners have answered this appeal in support of Byrd’s assertion that the trial court erred by granting summary judgment in favor of Colony.

DISCUSSION

As her first assignment of error, Byrd asserts that the battery exclusion does not apply, because her claim against Code 3 relies upon a theory of negligence and not a claim arising out of assault or battery and, therefore, the trial court erroneously found the battery exclusion applied. We disagree.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Young v. Marsh, 46,896 (La.App.2d Cir.01/25/12), 86 So.3d 42. Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits show that there is no genuine issue as to material Rfact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue exists to preclude the grant of summary judgment where reasonable persons, after considering the evidence, could disagree. Toston v. St Francis Medical Center, 47,529 (La.App.2d Cir. 12/17/12), 108 So.3d 197.

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Because an insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. Hudson v. Jager Bomb LLC., 47,501 (La.App.2d Cir.11/14/12), 107 So.3d 712. In an action under an insurance contract, the insured bears the burden of proving the existence of the policy and coverage, while the insurer bears the burden of showing policy limits or exclusions. Gonzales v. Geisler, 46,501 (La.App.2d Cir.09/21/11), 72 So.3d 992.

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Straughter v. Hodnett, 42,827 (La.App.2d Cir.01/09/08), 975 So.2d 81, writ denied, 2008-0573 (La.05/02/08), 979 So.2d 1286.

Here, the liquor liability endorsement does not provide coverage for specific acts of negligence but for liability arising out of an occurrence. The battery exclusion in the liquor liability endorsement, which is virtually identical to the CGL policy battery exclusion, states (quoted verbatim):

A. SECTION I — LIQUOR LIABILITY COVERAGE, 2. Exclusions is amended and the following added:
This insurance does not apply to:
Assault, Battery or Assault and Battery “Injury” arising out of or resulting ¡from:
1. “Assault”, “Battery or “Assault and Battery” committed by any person;
2. The failure to suppress or prevent “Assault”, “Battery” or “Assault and Battery” by any person;
3. The failure to provide an environment safe from “Assault”, “Battery” or “Assault and Battery”;
4. The failure to warn of the dangers of the environment which could contribute to “Assault”, “Battery” or “Assault and Battery”;
5. “Assault”, “Battery” or “Assault and Battery” arising out of the negligent hiring, supervision, or training of any person;
6. The use of force to protect persons or property whether or not the “injury” was intended from the standpoint of the insured or committed by or at the direction of the insured.
B. SECTION V — DEFINITIONS is amended and the following is added:
15“Assault” means:
a. an act creating an apprehension in another of immediate harmful or offensive contact; or
b. an attempt to commit a “Battery”. “Battery” means an act which brings about harmful or offensive contact to another or anything connected to another.
“Assault and Battery” means the combination of an “Assault” and a “Battery”.

The clear wording of the battery exclusion evidences an intent for the exclusion to apply to any claim arising out of an assault and/or battery. Thus, it is absolutely clear that any way Byrd may have worded her claim, it arose from a battery by Linton, who was criminally convicted of same. Due to the clear wording of the exclusion, such a claim is obviously excluded from coverage under either the CGL policy or the liquor liability endorsement. The trial court correctly held that the occurrence which gave rise to the liability was the battery of Byrd by Linton regardless of how her cause of action is termed and, therefore, policy coverage was excluded. See Cortinez v. Handford, 490 So.2d 626, 628 (La.App. 2d Cir.1986).

Next, Byrd argues that the trial court erred by not finding that the battery exclusion in the liquor liability endorsement violated public policy. Byrd insists that the liquor liability endorsement was purchased by the Beams in order to extend coverage to the liability excluded from the CGL policy. She maintains that the additional coverage which the liquor liability endorsement seemingly provided was taken away by the battery exclusion, effectively rendering the additional coverage useless. Byrd argues that enforcement of the battery exclusion in the liquor liability endorsement goes |fiagainst public policy because Colony is allowed to sell a surplus liquor liability endorsement which provides virtually no additional coverage to the named insured. We disagree.

The record does not support Byrd’s allegation that the battery exclusion renders the liquor liability endorsement worthless. The liquor liability endorsement provides additional coverage for liability “imposed on the insured by reason of the selling, serving, or furnishing of any alcoholic beverage,” just not for claims arising out of assaults and/or batteries that arise from the sale, serving, or furnishing of alcohol. Had the Beams purchased an endorsement which specifically covered liability arising out of assaults and batteries, then perhaps such an exclusion would render the additional coverage worthless. However, the endorsement here specifically extends coverage for liability arising out of the provision of alcohol and the record reflects that the battery exclusion was clearly and explicitly stated in both the CGL policy and the liquor liability endorsement. Furthermore, there is nothing ambiguous about the language of the exclusion which could lead to multiple interpretations. The trial court correctly held that the battery exclusion in both the CGL policy and the liquor liability endorsement served to deny liability coverage for Byrd’s claim, and this assignment of error is without merit.

Finally, Byrd claims that the trial court erred by granting summary judgment, because Colony failed to produce any evidence proving that the Louisiana Commissioner of Insurance would have authorized the battery exclusion contained within the liquor liability endorsement. Byrd insists that, while Louisiana does not require the Commissioner of Insurance to |7approve surplus lines insurance forms, surplus lines insurance forms must still meet the minimum qualifications required of approved insurance forms which are authorized by the Commissioner of Insurance. Byrd claims that Colony’s failure to prove that the Commissioner of Insurance would authorize its surplus lines form defeated its motion for summary judgment. We disagree.

Louisiana R.S. 22:446 specifically states that, “Approved unauthorized insurers delivering surplus lines insurance in this state shall not be required to file or seek approval of their forms and rates.” Given that Colony is an approved unauthorized surplus lines insurer statutorily exempt from the requirement of submitting its insurance forms to the Commissioner of Insurance, it does not follow that Colony should be obligated to prove upon motion for summary judgment that the Commissioner of Insurance would approve its forms. Furthermore, there is no indication that the battery exclusion in the liquor liability endorsement would not be authorized by the Commissioner of Insurance.

Ultimately, the trial court correctly found that insurance coverage for the damages arising from Linton’s battery upon Byrd was excluded under both the CGL policy and the liquor liability endorsement, and there were no genuine issues of material fact precluding summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be paid by Holland Byrd.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY and PITMAN, JJ.

| j Rehearing denied.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Trent D. SMITH, Appellant.
    No. 48,196-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles R. Scott, District Attorney, Geya D. Prudhomme, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before LOLLEY, PITMAN & GARRETT, JJ.
   PITMAN, J.

| defendant, Trent D. Smith, pled guilty to attempted second degree kidnapping, in violation of La. R.S. 14:44.1 and 14:27. Defendant was sentenced to serve 20 years at hard labor. Defendant now appeals his sentence as excessive. For the reasons stated herein, we affirm.

FACTS

On October 8, 2011, at approximately 11:30 p.m., the victim, Miranda Thomas, parked her vehicle in a parking lot at 600 Market Street in Shreveport. Defendant immediately parked his vehicle alongside hers. As Thomas exited her vehicle, Defendant approached her and ordered her to get into his car. Defendant applied an electronic control device or “stun gun” to her back and stomach areas, picked her up and forcibly put her into his car in the front seat on the passenger’s side. Thomas could not get the passenger’s side door to open from the inside, nor could she lock the door manually.

Realizing that the keys to Defendant’s car were in the ignition and that the vehicle was still running, Thomas grabbed the keys and escaped through the driver’s side door. She ran, while screaming for help, to the nearby Phoenix Underground nightclub. Defendant did not chase her, but ran away instead. When Thomas determined that Defendant was not following her, she reported to 911 on her telephone that she had been attacked with a “Taser” in a parking lot.

When the police responded to Thomas’s 911 call, Defendant approached them and denied attacking Thomas. Thomas, however,_[¿dentified Defendant as the man who had attacked her, and Defendant was arrested and charged with second degree kidnapping.

Trial was set for July 23, 2012. Defendant appeared in court and, pursuant to a plea bargain agreement, pled guilty to the reduced charge of attempted second degree kidnapping. Under the terms of the plea agreement, the state agreed to allow Defendant to plead guilty to the reduced charge and to seek no sentencing enhancement or file a multiple offender bill. There was no agreement as to sentencing, and Defendant acknowledged that the maximum term of imprisonment possible was 20 years. Defendant agreed with the factual basis for his plea as presented by the state, and the trial court accepted Defendant’s guilty plea as freely and voluntarily given. Sentencing was set for August 1, 2012.

Prior to the sentencing hearing, Defendant submitted a sentencing memorandum providing information on his personal history, his family and his criminal history. Letters of support from Defendant’s aunts, cousins, brother and friends were submitted.

At the hearing, testimony was given by Officer Daniel Albrecht, the patrol officer dispatched to the scene. Officer Albrecht described Thomas as distraught and crying, with scratches on her face and marks on her stomach area and arm. The stun gun was found in the parking lot near the vehicles of Thomas and Defendant. Officer Albrecht testified that Defendant approached him with his hands up claiming that he had not harmed Thomas, but Defendant was arrested after Thomas identified him as her attacker.

1 ¡¡Thomas also testified at the sentencing hearing and stated that Defendant tased her three times before he forcibly put her in his car. She described her escape from the car, and the 911 recording was admitted into evidence and played in court. Thomas testified that she had burns on her stomach from the stun gun, bruises on her knees, scrapes on her feet and scars that remained on her face.

Defendant presented a DVD video of statements by his wife, mother, and other family members. The video witnesses spoke in his support and discussed his relationship with his three-year-old daughter. Defendant spoke briefly and apologized for any grief he had caused and asked for the court’s mercy.

The trial judge considered the evidence presented and noted that Defendant had pled guilty to a lesser charge, which reduced his maximum sentence exposure from 40 years to 20 years. The trial judge also noted that Defendant benefítted from the state’s agreement not to charge him as a fourth felony habitual offender, which would have subjected him to a term of life imprisonment.

The trial judge reviewed the facts of the case and characterized the use of the stun gun as “absolutely horrendous.” He stated that, although the question was unanswered, common sense led to the conclusion that what Defendant intended to do with Thomas was something “extremely violent” and “brutal.”

The trial judge reviewed Defendant’s criminal history, which began with his first felony of aggravated battery in 1992, followed by several [4misdemeanors from 1993 through 1995, and the second and third felonies of armed robbery and felony theft in 1997. After reviewing the sentencing guidelines found in La. C. Cr. P. art. 894.1, the trial judge found that there was an undue risk Defendant would commit another crime and that he was in need of correctional treatment. He also found that any lesser sentence than the one imposed would deprecate the seriousness of the crime and that Defendant’s conduct manifested deliberate cruelty to his victim. The trial judge further noted that Defendant used actual violence in committing his crime and that, considering his history of extreme criminal acts, Defendant was unlikely to respond affirmatively to probation since prior probations had proved to be ineffective. The trial judge concluded that “the maximum possible sentence is the only sentence that is appropriate” and sentenced Defendant to 20 years’ imprisonment at hard labor, with credit for time served.

Defendant filed a motion to reconsider sentence, arguing only that his sentence was excessive. The trial court denied the motion and noted that Defendant had substantially benefitted from his plea to a reduced charge and the state’s promise not to file a multiple offender bill. The trial court further found that Defendant’s random attack on a helpless young woman in a public place outweighed any potential mitigating factors. This appeal followed.

\r,DISCUSSION

Excessive Sentence

Defendant complains that the maximum sentence of 20 years’ imprisonment at hard labor is unduly harsh and excessive because: (1) he is not the worst of offenders, (2) the sentence creates a hardship on his wife and child, (3) the sentence is a needless infliction of pain and suffering and (4) mitigating factors should have been given more weight and a lesser sentence imposed.

In opposition, the state argues that the trial court had sufficiently considered all mitigating factors, having reviewed the letters submitted on Defendant’s behalf by his family and friends, as well as the video of statements by Defendant’s wife and family, noting the hardship to his family. However, the aggravating factors, i.e. Defendant’s prior convictions, the violent nature of the instant offense, as well as the substantial benefit he received in pleading guilty to a lesser charge and not being charged as a fourth felony habitual offender, show that the imposed sentence was not shocking to the sense of justice or out of proportion to the seriousness of the offense or a purposeless/needless infliction of pain and suffering.

La. R.S. 14:44.1, second degree kidnapping, states:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
|fi(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.
C. Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:27, attempt, states:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immatei'ial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
_b!
(3)In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fíne, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

The second prong of the test requires that a determination be made regarding the constitutional excessiveness of a sentence. A sentence | ¡¡violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Washington, 46,568 (La.App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 11-2305 (La.4/27/12), 86 So.3d 625.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792. The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App.2d Cir.12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

19Where the defendant’s motion to reconsider sentence alleges mere exces-siveness of sentence, on appeal, the reviewing court is limited to considering whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,321 (La. App.2d Cir.9/21/11), 72 So.3d 952.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

The 20-year sentence imposed in this case is within the sentencing range of 0-20 years allowed under La. R.S. 14:44.1 and 14:27 for attempted |insecond degree kidnapping. The maximum sentence was imposed, and it is neither statutorily nor constitutionally excessive.

The mitigating factors were thoroughly reviewed in this matter. The trial court accepted evidence from the defense in the form of statements from Defendant’s family and friends describing him as a devoted husband, father and family member. The trial court, however, found that the aggravating factors of Defendant’s crime, including its extremely violent nature, outweighed the mitigating factors. The trial court also noted that Defendant’s criminal history showed a pattern of escalating violence through the years and that Defendant had received a substantial benefit from the plea bargain agreement offered by the state since he would have faced a life sentence had the state chosen to try him and to file a habitual offender bill against him as a fourth felony offender.

Based on the facts as stated by the trial court, the maximum sentence imposed is not disproportionate to the severity of this violent crime and does not shock the sense of justice. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Trent D. Smith, are affirmed.

AFFIRMED.

      . Although the record refers to the electronic control device as a "Taser,” the device was actually a generic stun gun.


text:
    STATE of Louisiana, Appellee v. Kevin Ray FISHER, Appellant.
    No. 48,220-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, II, District Attorney, Brian Harrist Barber, Geya D. Williams, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

11Kevin Ray Fisher was convicted by the First Judicial District Court, Parish of Caddo, State of Louisiana, of one count of armed robbery with a firearm in violation of La. R.S. 14:64 and was sentenced to 23 years’ hard labor without the benefit of probation, parole, or suspension of sentence. Fisher now appeals. For the following reasons, we affirm his conviction and sentence.

FACTS

Fisher was arrested, along with a cocon-spirator, on January 5, 2005, while attempting to rob a McDonald’s restaurant in Shreveport, Louisiana. During an interview by the Shreveport Police Department, Fisher implicated himself in multiple other armed robberies in the area. Although it initially charged Fisher with four counts of armed robbery, the State ultimately filed an amended bill of information charging him with only two counts of armed robbery. Count I charged Fisher with a robbery that took place at a Louisiana Dollar General store in Greenwood, Louisiana. Count II charged Fisher with a robbery that took place at a Dollar General store in Shreveport.

On July 29, 2010, a jury convicted Fisher of both counts of armed robbery and after the requisite delay, the trial court imposed concurrent sentences of 24]é years for each count with an additional 5 years pursuant to the firearm enhancement law, La. R.S. 14:64.3. In total, Fisher received 29/¿ years at hard labor without the benefit of probation, parole, or suspension of sentence. However, upon appeal, Fisher’s conviction for the armed robbery of the Greenwood Dollar General was reversed and his ^sentences vacated, because the State failed to produce sufficient evidence to obtain a conviction. State v. Fisher, 46,997 (La.App.2d Cir.02/29/12), 87 So.3d 189 (“Fisher /”). The matter was remanded for imposition of a new sentence on the remaining count of armed robbery.

On remand, a sentencing hearing was conducted and after reviewing a presen-tence investigation, the trial court imposed a sentence of 18 years’ hard labor without the benefit of probation, parole, or suspension of sentence along with an additional five years pursuant to the mandatory firearm enhancement statute. This appeal followed.

DISCUSSION

As his sole assignment of error, Fisher argues that the sentence imposed by the trial court is excessive, and the trial court failed to articulate a factual basis for the sentence imposed. Fisher insists his sentence was only designed to punish him for exercising his right to go to trial and successfully appealing his conviction and sentences Fisher I. Fisher argues that the lighter sentences received by his eoeon-spirators upon accepting plea deals evidences the trial court’s intent to punish Fisher for exercising his right to trial and appeal. We disagree.

The test applied by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983);s State v. Wash ington, 46,913 (La.App.2d Cir.02/01/12), 86 So.3d 697, writ denied, 2012-1407 (La.11/21/12), 102 So.3d 54. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La. App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Moton, 46,607 (La.App.2d Cir.09/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it |4shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Walls, 47,006 (La.App.2d Cir.02/29/12), 86 So.3d 71.

There is no requirement that code-fendants be treated equally by the sentencing judge. State v. Rogers, 405 So.2d 829 (La.1981); State v. Howard, 44,180 (La.App.2d Cir.05/13/09), 13 So.3d 729. The disparity of sentences between code-fendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Savoy, 2011-1174 (La.07/02/12), 93 So.3d 1279; Howard, supra.

Louisiana R.S. 14:64(B), discussing the penalty for armed robbery, states:

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

Additionally, the mandatory five year enhancement for the use of a firearm set forth in La. R.S. 14:64.3, states in pertinent part:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

Here, the trial court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1, and Fisher’s sentence was not excessive. First, the trial court noted that Fisher was only 16 years old when he committed the offense and that he had matured considerably since his last appearance in court, exhibiting a greater understanding and appreciation for the | ¡^consequences of his actions. The trial court further noted that Fisher was not the leader of the group responsible for the armed robbery for which he was convicted. However, the trial court also stated that the offense for which Fisher was convicted was not likely his only offense and that his involvement was strongly suspected in several other armed robberies, aside from the conviction later reversed in Fisher I. So considering, a review of the record indicates that the trial court provided an adequate factual basis for the sentence imposed.

Second, the sentence imposed by the trial court does not shock the conscience given the aggravating nature of the crime for which Fisher was convicted as well as the other crimes which he confessed to or was suspected of but not charged for. The trial court imposed a sentence only eight years greater than the mandatory minimum sentence of 10 years’ hard labor. The additional five year sentence for the use of a firearm was statutorily imposed and, therefore, is beyond our consideration. That Fisher’s coconspirators received the benefit of a lesser sentence upon accepting a plea deal does not detract from the rectitude of Fisher’s sentence. Furthermore, although none of Fisher’s victims suffered physical harm, they were exposed to an extreme threat of violence and will forever remember the terror he forced upon them. While it is unfortunate that Fisher must serve a great majority of his youth behind bars, his actions were of a very serious nature, the sentence imposed by the trial court reflected the gravity of his actions, and Fisher’s sentence will not be disturbed upon appeal.

1 ^CONCLUSION

For the foregoing reasons, the conviction and sentence of Kevin Ray Fisher are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    SABINE STATE BANK & TRUST COMPANY, Plaintiff-Appellee v. LOUISIANA DEPARTMENT OF SOCIAL SERVICES, Frances Pesnell, Tracy N. McElduff, Serena K. Barmore and Billy McElduff, Jr., Defendants-Appellants.
    No. 48,259-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Sheri L. Stapleton, for Defendant/Appellant, State of Louisiana DCFS, Child Support Enforcement.
    John L. Whitehead, Many, LA, Cory B. Wilson, for Plaintiff/Appellee, Sabine Bank.
    Napper, Madden & Rogers, Ruston, LA, by Thomas W. Rogers, for Defendant/Ap-pellee, Frances Pesnell.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

hThe critical issue to be resolved in this concursus proceeding against a state agency is whether it was sufficient to serve only the attorney general or whether it was necessary to also serve the head of the state agency. For reasons that follow, we find that the service of citation on only the attorney general was sufficient for purposes of La. R.S. 13:5107. Consequently, we find that the trial court’s judgment that denied the state agency’s exception of insufficiency of service of process was correct.

We further find that the evidence presented to the trial court clearly supports the conclusion that Frances M. Pesnell was the sole owner of the certificate of deposit held by Sabine Bank.

Facts and Procedural Background

The facts giving rise to this case are not in dispute. The State of Texas requested that the State of Louisiana intercept assets belonging to Billy McElduff, Jr. (“McEl-duff’), to satisfy delinquent child support payments. The amount of arrears owed was $26,983.37. The Sabine State Bank and Trust Company (“Sabine Bank”) received from the Louisiana Department of Children and Family Services, Support Enforcement Services (“DCFS-CSE”) a Notice to Freeze the assets of McElduff. Sabine Bank had a certificate of deposit in the amount of $75,484.74 in the names of Frances M. Pesnell, Tracy N. McElduff, Susan K. Barmore and Billy McElduff, Jr., all residents of Lincoln Parish.

Sabine Bank filed a petition for concur-sus in the Third Judicial District Court in Lincoln Parish, Louisiana, naming as defendants the four parties listed on the certificate of deposit and the DCFS-CSE.

| i>Sabine Bank’s petition was filed on October 19, 2011. The DCFS-CSE was served through the Louisiana Secretary of State and the Office of the Louisiana Attorney General on November 15, 2011. On January 20, 2012, Ms. Pesnell filed a motion and order to limit the time in which DCFS-CSE had to file an answer pursuant to La. C.C.P. art 4657. An order was signed on January 23, 2012, which granted DCFS-CSE ten days from date of service of the motion to file an answer. Service of the motion and order was made upon DCFS-CSE through the secretary of state on February 1, 2012, and the attorney general on February 2, 2012.

On March 1, 2012, DCFS-CSE filed a motion requesting an extension of time to file an answer. The court granted an extension until March 22, 2012. DCFS-CSE then filed an exception of insufficiency of service of process on March 12, 2012 (fax filed on March 8, 2012). Also, on this date, Ms. Pesnell filed a motion to vacate DCFS-CSE’s motion for extension of time to answer. Both parties were required to brief the motion and exception at a hearing held on March 12, 2012. On April 9, 2012, the court issued a ruling denying DCFS-CSE’s exception and vacating the motion for extension of time. Even so, DCFS-CSE filed an answer in this proceeding |Hon April 19, 2012. Ms. Pesnell filed a motion to vacate and expunge DCFS-CSE’s answer which was granted on May 17, 2012.

A hearing was held on July 9, 2012. DCFS-CSE waived its appearance at the hearing by letter from its counsel. Ms. Pesnell, Barmore and Lunsford, all of whom were listed as holders on the certificate of deposit, testified. Barmore and Lunsford testified that they were listed for administrative purposes and had no authority to claim the money. Lunsford testified that Billy McElduff, Jr., Ms. Pes-nell’s son who was in prison at this time, verbally admitted having no claim to the money. Ms. Pesnell testified that the certificate of deposit with Sabine Bank was purchased entirely with a royalty check made payable to her that she had received from her deceased husband’s estate. She further testified that she was the beneficiary of all interest income from the certificate of deposit and the income was reported on her tax return. Ms. Pesnell’s address was the only one listed on the certificate of deposit.

Judgment was rendered finding that the CD was the sole property of Ms. Pesnell and ordering Sabine Bank to cancel the notice to freeze, intercept, and/or encumber assets. DCFS-CSE was ordered to pay all costs of the proceeding totaling approximately $2,338.40. The court further ruled that Ms. Pesnell was to have full and uncontrolled discretion to access the funds from in the certificate of deposit. Following the judgment, Ms. Pesnell withdrew all funds from the certificate of deposit.

DCFS-CSE filed a motion for suspen-sive appeal.

| ^Discussion

This court must determine whether the trial court erred in finding that Sabine Bank perfected proper service of process by serving the original petition and order to DCFS-CSE to answer on the áttorney general. La. R.S. 13:5107(A)(1), provides:

In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana ... and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against. (Emphasis added).

The Louisiana State Supreme Court has interpreted La. R.S. 13:5107(A)(l)in two recent decisions. In Whitley v. State Bd. of Supervisors of Louisiana State University Agricultural and Mechanical College, 11-0040 (La.07/01/11), 66 So.3d 470, a medical malpractice suit against Louisiana’s Medical Center (“University”) in New Orleans where service was made solely on the Chairman of the LSU Board of Supervisors, the supreme court wrote:

The use of the word “may” followed by the use of the words “or” and “and” in numerous instances throughout the statute makes this provision convoluted and confusing ...
Key to our interpretation of this statutory provision is the fact that LSA-R.S. 13:5107(A) contains a single verb phrase, that is, “may be obtained,” which modifies all of the phrases that follow it, including | F,those that appear after the conjunctive “and” in question. Therefore, from a grammatical standpoint, citation and service:
1. may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and
2. may be obtained by citation and service on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and
3. may be obtained by citation and service on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
Providing permission to request service on the AG and the head of the agency does not impose a requirement that the plaintiffs request for service pertain to both. The fact that these phrases are joined by a conjunctive “and” does not make the phrases mandatory. If the legislature had intended to require a request for service on multiple individuals, it could have done so by use of mandatory language such as “shall” or “must.”
Therefore, Whitley’s request for service of citation on the University satisfied the requirements of La. R.S. 13:5107(A) and afforded the University an opportunity to request the legal representation to which it was entitled.

Whitley, 66 So.3d at 477.

In Burnett v. James Const. Group, 10-2608 (La.07/01/11), 66 So.3d 482, the plaintiff brought a negligence action against the State through the Department of Transportation and Development (“DOTD”) and other defendants seeking to recover damages arising from an automobile accident. Plaintiff requested service on the DOTD through the attorney general. The court addressed the issue of whether plaintiffs request for service and citation upon the attorney general alone within 90 days from the | ficommencement of the action satisfied the service requirements of La. R.S. 13:5107 and La. R.S. 39:1538. The Louisiana Supreme Court held that a double request for service of citation in suits against the state and its agencies is not necessary and service on the attorney general alone satisfied the service requirements of R.S. 13:5107(A) and La. R.S. 39:1538. Failure to request service on the department head and Office of Risk Management within 90 days did not entitle DOTD to a dismissal of the claim; therefore, the trial court erred in failing to allow service as required by La. C.C. art. 932(A). Burnett, supra.

In any action in which the state or a state agency, entity, or employee is sued, service of the citation must be made within the 90-day period upon either the head of the agency sued or the state attorney general. La. R.S. 13:5107. In tort actions, however, the head of the agency, the attorney general and the Office of Risk Management (ORM) shall be served. La. R.S. 39:1538. The case sub judice is not a tort action.

Based upon the Louisiana Supreme Court’s recent interpretation of La. R.S. 13:5107, the trial court correctly ruled that Sabine Bank effected proper service when it served the concursus petition on DCFS-CSE through the attorney general. It was unnecessary for Sabine Bank to request additional service upon the head of the state agency.

The next issue this court must address is whether the trial court erred in its decision not to allow DCFS-CSE’s responsive pleadings to be considered. Louisiana law provides that if a defendant fails to answer a concursus proceeding within the time delays allowed for that of an ordinary ^proceeding, any party may move for an ex parte order for the court to limit the response time, which may not exceed ten days from service of the order. The defendant’s failure to answer within the delay extended by the court will preclude him from answering or asserting a claim against plaintiff. La. C.C.P. 4657. However, if one of the defendants in the con-cursus proceeding is a state department, the notice of the court’s order to limit the delay for answer shall be sent to the attorney general. If no answer is filed within 15 days of the attorney general receiving notice, a judgment may be entered as provided by law. Specifically, La. C.C.P. art. 4657.1 provides:

A. Notwithstanding any other provision of law to the contrary, prior to the taking of a final judgment in any concur-sus in which one of the defendants is the state or any of its departments, offices, boards, commissions, agencies, or instru-mentalities, the notice of the order of court limiting the delay for answer, together with a copy of the petition or other demand, shall be sent by the party moving for the order to the attorney general by registered or certified mail or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general.
B. If the order of court is served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails. In addition, the return receipt shall be attached to the affidavit which was filed in the record.
C. If no answer is filed within fifteen days immediately following the date on which the attorney general or the first assistant attorney general received notice of the order to answer as provided herein, a judgment may be entered in the concursus proceeding as provided by law.

Sabine Bank filed its petition for concui’-sus on October 19, 2011. DCFS-CSE received service of the petition and citation through the |sLouisiana Attorney General on November 15, 2011. On January 20, 2012, Ms. Pesnell filed a motion and order to limit time in which to file an answer, pursuant to La. C.C.P. art. 4657. Service of the motion and order was made upon DCFS-CSE through the attorney general on February 2, 2012, which allowed DCFS-CSE 15 days to file an answer. La. C.C.P. art 4657.1. On March 1, 2012, 15 days past the extended deadline, DCFS-CSE filed a motion and order for an extension of time for the state to answer or file exceptions.

The trial court did not err by setting aside all of DCFS-CSE’s responsive pleadings. The motion and order to limit time was served on DCFS-CSE on February 2, 2012. DCFS-CSE failed to file an answer within the 15-day time limit set forth by La. C.C.P. art. 4657.1. As a result, the trial court’s initial decision to grant DCFS-CSE extended time to file an answer or exception was invalid. DCFS-CSE was time barred from filing any responsive pleading.

Conclusion

For the reasons set forth above, the trial court ruling is affirmed.

      . C.C.P. art. 4657 provides:
      If a defendant fails to answer within the delay allowed by law, any party may move for an ex parte order of court limiting the time in which an answer may be filed in the proceeding. In such event, the court shall order all defendants who have not answered to file their answers within a further delay to be assigned by the court, not exceeding ten days from the service or publication of the order. The failure of a defendant to file an answer within the delay as extended by the court precludes him thereafter from filing an answer, or from asserting his claim against the plaintiff:

      . Ms. Pesnell has filed in this court a motion to dismiss the appeal, urging two grounds. First, she contended that DCFS-CSE voluntarily and unconditionally acquiesced in the judgment as evidenced by a letter from its attorney on June 29, 2012, waiving DCFS-CSE’s appearance at the July 9, 2012 hearing. Secondly, Ms. Pesnell argued that this court has no jurisdiction over the contested funds since she withdrew them from the bank. The motion to dismiss was referred to on the merits of the appeal.