author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Steve E. ADAMS.
    No. 11-KA-1052.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, LA, for DefendantyAppellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant appeals his conviction and sentence for second degree murder in violation of La. R.S. 14:30.1. For the following reasons, we affirm.

PROCEDURAL HISTORY

On January 18, 2007, a Jefferson Parish Grand Jury issued an indictment charging defendant, Steve Adams, with the second degree murder of Brandon Spincer in violation of La. R.S. 14:30.1. Defendant was arraigned and entered a plea of not guilty. On December 1, 2009, the matter proceeded to trial and on December 3, 2009, a twelve-person jury found defendant guilty as charged. On December 9, 2009, defendant filed a motion for new trial, which the trial court denied. After defendant waived sentencing delays, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal follows.

| FACTUAL BACKGROUND

Defendant and Ms. Charla Bell had known each other since childhood and had dated for four or five years. Throughout their relationship, the couple broke up and reunited several times, becoming engaged at one point. Each time the relationship ended, defendant took it poorly and became upset. At the time of the victim’s murder, Ms. Bell and defendant were not in a relationship and she had recently moved out of the house she shared with defendant and into an apartment with her cousin, Trelles Stamps. Ms. Bell began dating the victim, Brandon Spincer, in November of 2006.

On the date of the murder, November 20, 2006, Ms. Stamps saw defendant at or near the apartment she shared with Ms. Bell three times prior to the shooting. At one point, defendant came to the apartment with Ms. Bell’s brother, but left after Ms. Stamps informed them that Ms. Bell was not at the apartment. Later, defendant reappeared alone, but Ms. Stamps did not answer the door. That afternoon, Ms. Stamps and her friend, Monisce Hall, were out shopping when Ms. Stamps received a call from defendant, who told her that he wanted to fight for his love. When Ms. Stamps and Ms. Hall returned to the apartment complex sometime between 4:00 and 5:00 p.m., Ms. Stamps noticed defendant driving his white pickup truck down the street adjacent to the apartment complex.

At the time of the murder, Ms. Bell had been dating the victim for a week or two. After the victim finished work that day, he and Ms. Bell ran errands before heading to Ms. Bell’s apartment in the victim’s vehicle, a white Oldsmobile Alero. They arrived in the parking lot and parked behind Ms. Stamps and Ms. Hall, who had arrived minutes before and were parked in Ms. Stamps’ vehicle “chatting.”

|4Ms. Bell exited the victim’s vehicle and approached her friends sitting in Ms. Stamps’ vehicle. She talked to Ms. Stamps and Ms. Hall briefly, then began walking to the front door of her apartment. As she did so, she heard at least four gunshots. She turned to see a white pickup truck, which she recognized as defendant’s, and a man wearing a blonde wig, which she recognized as her own wig left behind when she left the home she had shared with defendant.

Ms. Stamps testified that when she heard the gunshots, she stepped out of her vehicle and saw defendant in a wig firing a gun into the victim’s vehicle. Ms. Hall, the passenger in Ms. Stamps’ vehicle, testified that after she heard the gunshots, she saw Ms. Bell running towards the victim’s vehicle. Ms. Hall then reached her hand out to pull Ms. Bell into Ms. Stamps’ vehicle. When Ms. Bell got into the vehicle, she screamed, “Casper just killed Brandon!” The women sped away in panic, thinking that defendant would follow them.

Ms. Stamps called 911. Before Ms. Bell arrived at the police station, defendant called her and told her that he loved her. Defendant told Ms. Bell that he heard someone was trying to hurt her, so he wanted to make sure she was okay. Later that evening, defendant again called Ms. Bell and she told him to turn himself in to authorities.

At the police station, Ms. Bell, Ms. Stamps, and Ms. Hall each separately identified defendant as the gunman from a photographic lineup. At trial, Ms. Stamps testified that she is one-hundred percent certain that defendant shot the victim. Ms. Bell also testified with certainty that defendant shot the victim. Ms. Hall testified that she did not see defendant shoot the victim; however, she | identified defendant by photographic lineup after the shooting because she heard her friends, who knew defendant well, screaming in the car that defendant had shot the victim.

Mr. Xenophrone Brumfield testified that he was at his girlfriend’s apartment, which is in the same complex where the murder occurred, on the evening of November 20, 2006. Mr. Brumfield is an officer with the HANO Police Department and was in the shower when he heard several noises that sounded like gunshots. He jumped out of the shower and looked out a window to see a black male wearing a white “thigh-high” jacket standing near the rear driver’s side of a white vehicle. Mr. Brumfield put on shorts, grabbed his weapon, and ran outside. He noticed the victim sitting in the driver’s seat of a white vehicle, discovered that the victim was dead, and called 911. Subsequently, Mr. Brumfield identified defendant as the gunman from a photographic lineup.

Mr. Nicholas Chisesi testified that on November 20, 2006, Chisesi Brothers Meat Packing Company employed defendant and that his time card for that day reflected that he reported to work at 6:30 а.m. and clocked out at 8:31 a.m. A notation on the time card indicated that defendant walked off the job that day. Mr. Chisesi also testified that defendant’s work uniform included a white jacket.

On November 21, 2006, the day following the murder, defendant surrendered himself to police. He was advised of his rights, indicated he understood them, and executed a waiver thereof. Defendant gave an initial statement in which he denied any involvement in the murder. A few hours later, defendant gave a second statement in which he admitted that he shot the victim but claimed he did so in self-defense. In his second statement, defendant stated that he | fiwent to Ms. Bell’s apartment on the evening of November 20, 2006, to try to work things out with her. As he approached the victim’s vehicle, he noticed the victim sitting in the driver’s seat and thought he saw the victim reach for something to point at him. Fearing for his life, defendant shot the victim, drove away, and later threw the gun in Lake Pontchartrain.

At trial, defendant denied shooting the victim and claimed that his confession was coerced. Defendant testified that Jefferson Parish Detective Meunier, “grabbed me, he pulled on me, he pulled the chain [t]hat the handcuffs was on and was forcing me to make a statement telling me that I was going to spend the rest of my life in jail if I don’t give him something.” Defendant also testified that Detective Meunier promised to get defendant a “deal” if he confessed.

Ms. Cheryl Adams, defendant’s mother, testified that she accompanied her son to the detective bureau on November 21, 2006. Ms. Adams waited four or five hours while her son was in a back room with detectives. Officers eventually brought Ms. Adams to the interview room, where she learned that her son had confessed to the murder. Defendant told his mother that the detectives intimidated him and told him he would not see his family again if he did not confess. Ms. Adams testified that defendant appeared “very haggard” and “confused.”

Colonel Timothy Seanlan of the Jefferson Parish Sheriffs Office Crime Laboratory, an expert in the fields of firearms, tool mark analysis, and crime scene reconstruction, testified that two projectile fragments were recovered from the driver’s seat of the victim’s vehicle. Colonel Scan-lan also testified that gunshot residue was present on the victim’s hands, which is indicative of the gunman being in close proximity to the vehicle and victim. However, detectives found no weapons inside the victim’s vehicle and no casings were recovered from the scene.

17Pr. Karen Ross, an assistant coroner in Jefferson Parish and an expert in the field of forensic pathology, performed an autopsy on the victim. Dr. Ross concluded that the victim’s manner of death was homicide and the cause of death was multiple gunshot wounds.

DISCUSSION

In his sole assignment of error, defendant contends that he was denied his right to present a defense on two grounds: (1) the trial court prohibited the cross-examination of Detective Meunier and the introduction of testimony and evidence concerning an alleged false confession taken by Detective Meunier from a suspect in an unrelated criminal case; and (2) the trial court prohibited the cross-examination of Charla Bell concerning conversations she had with defendant after the murder and prohibited defendant from testifying as to one such conversation.

Alleged False Confession

Defendant gave two statements to police. In his first statement, defendant denied any participation in the victim’s murder. In his second statement, defendant confessed to the murder, though he claimed he shot the victim in self-defense. At trial, and now on appeal, defendant asserts that his second statement taken by Detective Meunier was a coerced false confession. In support of this assertion, defendant sought to introduce evidence of an unrelated criminal case in which he alleges Detective Meunier, through physical force and coercion, obtained a false confession from the suspect.

Prior to trial, the state urged a motion in limine to exclude any evidence of the alleged false confession taken by Detective Meunier in the unrelated criminal case. The trial court granted the state’s motion, finding the evidence and testimony Isinadmissible under La. C.E. art. 608(B). Defendant asserts that the trial judge abused his discretion in excluding the evidence.

Defendant sought to admit evidence of the alleged false confession taken by Detective Meunier in the unrelated criminal case for two reasons: (1) to impeach Detective Meunier’s credibility and (2) to prove that Detective Meunier had the habit, custom, or routine practice of eliciting false confessions from suspects through force or coercion and that he acted consistently with that habit or practice when he elicited defendant’s confession. We will address each theory in turn.

To preserve for appellate review an alleged error in a trial court’s ruling excluding evidence, counsel must make known to the trial court the nature and substance of the excluded evidence. “This can be effected by proffer, either in the form of a complete record of the excluded testimony or a statement describing what the party expects to establish by the excluded evidence.” State v. Magee, 11-0574 (La.9/28/12), 103 So.3d 285, 326.

At trial, defense counsel cross-examined Detective Meunier as follows:

Q: Now, the term false confession, that is a term we heard, correct?
A: Yes.
Q: What is a false confession?
A: A false confession would be an admission of guilt for which the person making the admission is not actually responsible; not responsible for that offense.
Q: That happens, doesn’t it?
A: I believe that happens.
Q: It happened to you, didn’t it?
A: It never happened to me.
MR. SCHLEGEL:
Objection, Your Honor.
THE COURT:
Sustained.

At the conclusion of trial, defense counsel made the following proffer:

RYour Honor, it was my intention to cross examine Detective Meunier regarding the issue of this being a false confession and the — what I expected to get and illicit [sic] from Detective Meu-nier was regarding a case that he was the lead detective on State of Louisiana versus Christopher Lindsey and Cedric Evans, which was case number-054600. In that case Christopher Lindsey was arrested and interrogated and gave either two—
He gave two statements, the first of which was exculpatory. The second one which was given about four hours later at 4:43 a.m. was inculpatory in that it put him at the scene of a murder where there were only two people involved and they clearly would have been principals based upon the rest of the testimony. Subsequent to that statement he was indited [sic]. Four and half years later DNA test results come back which confirmed that he could not have committed the crime, was not on the scene, as there was DNA found in the fingernails which matched the subject which had not yet been arrested. So clearly the statement that was given at 4:43 a.m. to Detective Meunier was a false confession. Now I had planned to call Christopher Lindsey as a witness to ask him exactly what Detective Meunier had done to him and his testimony would have been similar to that of Mr. Adams in that he was intimidated, he was physically abused and he gave in and gave a statement as a result of what Detective Meunier did to him. And I felt that that would have been evidence to directly impeach Meunier’s testimony that he didn’t force, threat or coerce anyone. And it would have been a direct contradiction to Meunier saying he’d never been involved in a false confession.
* * *

Defendant contends that the trial court’s ruling, limiting the cross-examination of Detective Meunier regarding the Lindsey case and preventing the introduction of testimony from that suspect, Christopher Lindsey, denied him of his constitutional right to present a defense.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813. However, this right does not require a trial court to permit the | ^introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. The trial court is accorded great discretion in evi-dentiary rulings and, absent a clear abuse of that discretion, rulings on admissibility of evidence will not be disturbed on appeal. State v. Magee, 11-0574 (La.9/28/12), 103 So.3d 285, 321.

La. C.E. art. 607(A) provides that the credibility of a witness may be attacked by any party, including the party calling him. La. C.E. art. 607(D) further provides that “extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness[.]” The admissibility of extrinsic evidence to impeach credibility of a witness however is subject to the relevancy balancing test of La. C.E. art. 607(D)(2), which requires the court to determine whether “the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.” La. C.E. art. 607(D)(2); State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, 330; State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065, 1069-72. Therefore, although La. C.E. art. 607(D) permits a party to attack the credibility of a witness through extrinsic evidence, this grant is necessarily subject to the relevancy balancing test of La. C.E. art. 607(D)(2) and further to the limitation set forth in La. C.E. art. 608(B), which provides:

Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.

Here, the defense sought to impeach Detective Meunier by introducing evidence of the detective’s interrogation of a suspect in an unrelated criminal case. InThe allegation that Detective Meunier obtained a false confession in a separate case does not involve a criminal conviction but concerns an alleged particular act or course of conduct, which La. C.E. art. 608(B) expressly prohibits. See State v. Hollins, 97-627 (La.App. 5 Cir. 11/25/97), 704 So.2d 307, 309, writ denied, 99-0507 (La.8/25/99), 747 So.2d 50. Accordingly, the trial court did not err in excluding, under La. C.E. arts. 608 and 609.1, any testimony or evidence concerning the alleged false confession in the Lindsey case.

Further, we find that, even if the evidence could be relevant to attack Detective Meunier’s credibility for impeachment purposes under La. C.E. art. 607(D), the prejudicial impact and other considerations would greatly outweigh the probative value of the evidence. Examination of Detective Meunier, Mr. Lindsey, and potentially other witnesses in addition to the admission of evidence regarding the circumstances surrounding the alleged false confession in the Lindsey ease would likely consume significant time at trial. Further, such testimony and evidence would require the jury to first determine whether Detective Meunier actually elicited a false confession in the Lindsey case, thereby potentially confusing the jury as to the issues presented at trial. Thus, we find the trial court did not abuse its discretion in excluding the evidence under La. C.E. art. 607.

Defendant also sought to admit evidence of the alleged prior false confession to prove that Detective Meunier had the habit, custom, or routine practice of eliciting false confessions from suspects through coercion and that he acted | ^consistently with that habit or practice in eliciting a false confession from defendant.

La. C.E. art. 406 provides that “[ejvidence of the habit of a person ... is relevant to prove that the conduct of the person ... on a particular occasion was in conformity with the habit or routine practice.” Therefore, evidence that demonstrates an individual’s habit or routine practice may be deemed relevant to prove an individual acted in conformance with that habit. State v. Stringer, 06-800 (La.App. 3 Cir. 12/6/06), 949 So.2d 464, 478. “A habit or routine practice is very specific and must be nearly invariable and semiautomatic.” Id. citing State v. Flowers, 574 So.2d 448, 452 (La.App. 2 Cir. 1/23/91). “When the evidence of a habit consists of ‘specific instances of conduct,’ the instances must be ‘sufficient in number to warrant a finding that the habit existed or that the practice was routine.’ ” State v. Martin, 582 So.2d 306, 315 (La.App. 1 Cir. 5/16/91), writ denied, 588 So.2d 113 (La.1991), citing La. C.E. art. 406.

We find that, even if defendant could prove that Detective Meunier obtained a false confession in the unrelated Lindsey case, that singular occurrence is not sufficient to prove that Detective Meunier has a habit or routine practice of eliciting false confessions from suspects through coercion. Accordingly, we find the trial court did not abuse its discretion in excluding the evidence and that exclusion of the evidence did not deprive defendant of his right to present a defense. This assignment is without merit.

Conversations with Charla Bell

Defendant argues that he was denied his right to present a defense when the trial court prohibited the cross-examination of Ms. Bell concerning conversations she had with defendant following the murder. Further, defendant asserts that the | istrial court improperly prohibited defendant from testifying as to conversations he had with Ms. Bell following the murder.

Regarding defendant’s claim that the trial court limited the cross-examination of Ms. Bell, the record belies defendant’s assertion. A review of the record confirms that defense counsel did in fact cross-examine Ms. Bell about conversations she had with defendant immediately after the shooting:

Q: Now, you indicated that after this shooting occurred that you had a telephone conversation with Mr. Adams?
A: Uh-huh.
Q: You indicated to this jury that Mr. Adams, it is your testimony, that he shot and killed Brandon Spincer?
A: Yes.
Q: You spoke with him on the phone after this happened?
A: Yes.
Q: You spoke with him on many occasions after this happened, isn’t that true?
A: Yes.
Q: You could have hung up on him. You could have called the police. You could have done anything, but you chose to speak with him, isn’t that true?
A: Initially, I was hanging up on him. Right after the incident the detective wanted me to talk to him, so that they could try to get a confession or something out of him.
Q: The cell phone?
A: Yes.
Q: You say that they [sic] were phone calls that were made from Steven to you that were on your cell phone?
A: Uh-huh.
Q: Did you turn that cell phone over to the police?
A: No, I didn’t turn the cell phone over to the police.
Q: Did you tell the police in your statement that they could listen to the messages that he gave you?
A: Yes.
Q: That would prove that he did this and he was out to get you?
A: Yes.
Q: You turned that over to the police?
A: I told them about it.
Q: Did you turned [sic] your phone over to the police?
A: It was a home phone number, so I couldn’t turn my home phone number over. But I gave them access to go and check my voicemails.
Q: Did you tell Detective Rodrigue that you can check my voicemail; I got like 14 messages?
A: Yes.
Q: Voicemail to where your cell phone or?
A: My home phone.
luQ: You gave that information to the police?
A: Yes.

Defense counsel also cross-examined Ms. Bell regarding phone calls she received from defendant while he was incarcerated awaiting trial in this matter:

Q: Isn’t it true, Miss Bell, that after Steven was arrested you called his number?
A: No.
Q: You called his mother at his house on several occasions?
A: No.
Q: Never called her at all?
A: No.
Q: Trying to get in touch with him?
A: His mama and I don’t even get along, so, no.
Q: Isn’t it true take [sic] after he was in jail under arrest being held, that you continued to call him and spoke with him over the phone, clearly, hundreds of times from wherever you were?
A: I wouldn’t be able to call him because he was incarcerated. So the phone calls that were made were phone calls made towards me.
Q: Okay. You answered these phone calls?
A: In the beginning, no, but after awhile, yes.
Q: You spoke to him?
A: Yes.
Q: The person that you claim killed Brandon Spincer?
A: Yes.
Q: You spoke to him regularly, correct?
A: Yes.
Q: You didn’t want to come to court and testify, correct? You lived out of town?
A: Correct.
Q: You have conversations with him over the phone, many different places, many different times, correct?
A: Correct.
Q: Part of the conversations, is it not true, Miss Bell, is that you told him you weren’t going to come to court because this was all a big misunderstanding? Isn’t that true?
A: That is not true.
Q: Isn’t that true that you said, you know that he didn’t do it and that you were not going to come to court, and as a matter of fact you didn’t come to court until you were placed in jail and released?
A: As a matter of fact that is not true. I never said it to Steven anything dealing with the case. The conversations that we had were strictly based on our relationship, not on me coming to court or not. And the reason why I decided to come to court is because Brandon’s family deserves closure.

Contrary to defendant’s assertion, defense counsel was permitted to cross-examine Ms. Bell regarding conversations she had with defendant after the murder. 11fiTherefore, this argument is without merit.

Defendant also argues that he was denied his right to present a defense when the trial court prohibited him from answering questions concerning conversations that he had with Ms. Bell about the shooting. During the direct examination of defendant, the following occurred:

Q: Okay. Did you have a conversation with [Charla Bell] regarding what happened that night?
A: Yes, I did.
Q: And what did she tell you?
MR. SCHLEGEL:
Objection, hearsay.
THE COURT:
Sustained.
MR. WILLIAMS:
Your Honor, note my objection. That is for impeachment purposes of her testimony.

At the conclusion of trial, defense counsel proffered the following:

And while we’re proffering I’d like to proffer that when Mr. Adams testified he was about to go into the conversations he had with Charla Bell I believe that what he was going to say which was that she told him that she would never testify against him, that she knew that he didn’t do it, but she felt like she was under pressure and that she would be in trouble if she came back. And I felt like that deprived him of a right to present a defense. Number-2, it directly contradicted what Ms. Bell said.

Defense counsel sought to introduce defendant’s testimony regarding what Ms. Bell told him after the murder to impeach Ms. Bell’s trial testimony that she agreed to testify because she knew defendant had committed the murder. The trial court excluded this evidence as inadmissible hearsay. A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. State v. Wright, 11-0141 (La.12/6/11), 79 So.3d 309, 316.

Hearsay is a statement made out of court offered as evidence in court to prove the truth of the matter asserted by the statement. State v. Everidge, 96-2665 (La.12/2/97), 702 So.2d 680, 685 (citations omitted). Hearsay is excluded because hfithe value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. Id. In order to fall within the definition of hearsay, the statement must be offered to prove the truth of the statement’s contents. Id. In the present case, Ms. Bell’s out-of-court statement was that she knew defendant didn’t commit the murder. As defense counsel stated in his objection to the trial court’s ruling, this evidence was offered not for the truth of the matter asserted, but for impeachment purposes since Ms. Bell had testified at trial that defendant did commit the murder. Therefore, such testimony is not hearsay evidence offered for the truth of the matter asserted; rather, the testimony was offered to impeach Ms. Bell’s trial testimony that defendant did murder the victim.

The Louisiana Supreme Court has recognized that La. C.E. art. 607(D)(2) permits the introduction of a prior inconsistent statement, even though it is inadmissible hearsay, for the limited purpose of attacking the credibility of a witness. State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065. Thus, even if this evidence constituted inadmissible hearsay, we find it nevertheless admissible for impeachment purposes. Accordingly, we find the trial court abused its discretion in prohibiting defendant’s testimony regarding conversations he had with Ms. Bell after the shooting that would directly contradict Ms. Bell’s trial testimony.

However, we find the trial court’s error to be harmless in this case. Everidge, 702 So.2d at 684-86. Harmless error occurs where the guilty verdict actually rendered was surely unattributable to the error. Id. The evidence presented against defendant at trial was overwhelming. Ms. Stamps, who identified defendant in a photographic lineup as the gunman, testified at trial that she recognized defendant’s vehicle at or near the apartment complex on the day of the murder and also had received a phone call from defendant that day during which 117he told her he wanted to fight for his love; Mr. Brumfield, the neighbor-witness, identified defendant by photographic lineup as the gunman and defendant’s work uniform was consistent with Mr. Brum-field’s description of the gunman’s clothing. The 911 recordings played for the jury and introduced into evidence at trial speak volumes and clearly implicate defendant in the crime.

The correct inquiry for the appellate court to determine whether an error is harmless is whether, assuming that the damaging potential of the testimony were fully realized, the error was harmless beyond a reasonable doubt. State v. Massey, 11-358 (La.App. 5 Cir. 3/27/12), 97 So.3d 13, 29, writ denied, 12-0993 (La.9/21/12), 98 So.3d 332; State v. Sherman, 630 So.2d 321, 324 (La.App. 5 Cir.1993), writ denied, 94-0258 (La.5/6/94), 637 So.2d 1086.

We find that even if defendant had been permitted to testify as to Ms. Bell’s prior statement to him that she knew defendant had not committed the murder, the evidence at trial was still sufficient to convince a rational trier of fact that defendant was guilty beyond a reasonable doubt. Accordingly, we find the trial court’s error to be harmless in this case and does not warrant reversal.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

A review of the sentencing transcript reveals that the trial court failed to indicate whether defendant’s sentence is to be served at “hard labor.” La.C.Cr.P. art. 879 requires a court to impose a determinate sentence. State v. Horton, 09-250, p. 11 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376. If the applicable sentencing statute allows discretion, the failure to indicate whether the sentence is to be served at “hard labor” is an impermissible, indeterminate sentence. Id. at 376-77 (citation | isqmitted). The trial court imposed defendant’s sentence pursuant to La. R.S. 14:30.1(B), which mandates the sentence to be at hard labor. Because the underlying statute, La. R.S. 14:30.1(B), required the sentence be served at hard labor allowing no discretion to the trial judge, the error was harmless and requires no corrective action. State v. Stewart, 10-389 (La.App. 5 Cir. 5/10/11), 65 So.3d 771, 783-84, writ denied, 11-1245 (La.1/20/12), 78 So.3d 140.

AFFIRMED

      . On January 19, 2007, defendant was arraigned and pled not guilty. On January 17, 2008, defendant entered a plea of not guilty by reason of insanity. A competency hearing was conducted during which both the state and defense stipulated to the sanity commission report and the trial court found defendant incompetent to stand trial. Subsequently, on July 15, 2009, a competency hearing was again conducted during which the state and defense stipulated to the sanity commission report and the trial court found defendant competent to stand trial. On October 15, 2009, defendant withdrew his plea of not guilty by reason of insanity and entered a plea of not guilty.

      . Ms. Stamps’ daughter and Ms. Hall’s son were also in the backseat of Ms. Stamps’ vehicle. •

      . The record reflects that defendant’s nickname is Casper.

      . The 911 recording, which demonstrates apparent panic in the vehicle and clearly implicates defendant in the murder, was played for the jury.

      . The women drove to a relative’s home, a friend's home, and an Orleans Parish police station before eventually each arriving to a police station in Jefferson Parish, where the murder occurred.

      . At trial, defendant testified that he walked off the job to check on his grandmother, who he claimed was sick at the time.

      .At trial, defendant denied walking off the job with his white work jacket.

      . Dr. Ross testified that the victim suffered from gunshot wounds to his left cheek, the left side of his chest, his left elbow, and his back. Dr. Ross opined that the wound sustained to the victim's cheek appeared to be the initial one since it exhibited atypical qualities consistent with shattered glass striking the victim's face along with the projectile.

      . The evidence offered in support of defendant’s claim that Mr. Lindsey gave a false confession consists of Mr. Lindsey’s exculpatory statement, defendant’s assertion that Mr. Lindsey gave an inculpatory statement, and a minute entry which counsel suggests reflects that the charges against Mr. Lindsey were dismissed. Defense counsel did not proffer Mr. Lindsey's alleged inculpatory statement. Further, the minute entry preferred in the trial court is not contained in the record on appeal. This Court provided defense counsel with the opportunity to supplement the record with this minute entry and he failed to do so. However, as discussed above, even if the evidence proffered reflects what defendant claims, we still find the evidence properly excluded.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    SIMMS HARDIN COMPANY, LLC, Sharp Electric, Inc., Gallo Mechanical, Inc., Commercial Paint Company, Inc., Crasto Glass and Mirror Company, Inc., and Year Round Heating and Air Conditioning, Inc. v. 3901 RIDGELAKE DRIVE, L.L.C., Construction South, Inc., and Fidelity and Deposit Company of Maryland, Dorothy Watkins, Wife of/and Edwin C. Dorvin, Dwayne R. McClure, Bryan P. Scofield, Patricia Barilleau, Wife of/and Donald C. Zerangue, Francis Lopinto, Wife of/and William J. Dwyer, Anna Cannizzaro, Wife of/and Robert A. Steiner, Sr., America, Wife of/and German Gacharna, and Anthony P. Doughty.
    Nos. 12-CA-469, 12-CA-548, 12-CA-607.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Anne L. Neeb, Attorney at Law, Metair-ie, LA, for Appellant, 3901 Ridgelake Drive, L.L.C.
    Danny G. Shaw, Mark W. Frilot, Beatriz Q. Richmond, Attorneys at Law, Mande-ville, LA, for Appellee, Simms Hardin Construction Company, LLC.
    Denise C. Puente, Christopher B. Conley, Peter S. Thriffiley, Jr., Attorneys at Law, New Orleans, LA for Appellee, Commercial Paint Company, Inc.
    J. Warren Gardner, Jr., Oscar M. Gwin, IV, Attorneys at Law, New Orleans, LA, for Appellee, Crasto Glass and Mirror Company, Inc.
    Gregory Marsiglia, Attorney at Law, New Orleans, LA, for Appellee, Year Round Heating and Air Conditioning.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

lain these consolidated appeals arising out of one district court case, defendant/appellant, 3901 Ridgelake Drive, L.L.C. (“Ridgelake”), appeals several summary judgments rendered in favor of plaintiffs/appellees on their Joint Petition to Enforce Contractors’ Liens under the Private Works Act, La. R.S. 9:4801 et seq., awarding plaintiffs/appellees various amounts due on their liens and dismissing Ridgelake’s reconventional demand against them, as described below. Plaintiffs [Simms Hardin Construction Company, Inc. (“Simms Hardin”), Sharp Electric, L.L.C. (“Sharp Electric”), Gallo Mechanical, L.L.C. (“Gallo”), Commercial Paint Company, Inc. (“Commercial Paint”), Crasto Glass and Mirror Company, Inc. (“Crasto Glass”), and Year Round Heating and Air Conditioning Company, Inc. (“Year Round”) ] are various subcontractors who provided materials and construction services to build a condominium development known as |4Pontchartrain Caye Condominiums, of which Ridgelake was the owner and developer.

On appeal, Ridgelake argues that the lien affidavits filed by plaintiffs were invalid under La. R.S. 9:4822(G) because they did not distinguish between or itemize the nature and extent of materials and labor furnished, and did not particularly identify the individual properties (the particular condominium units) to which they attached. Ridgelake also argues that the lien affidavits were invalid because the Private Works Act does not allow a subcontractor to lien an entire condominium project when the subcontractor is aware that it is working on individual condominium units owned by different owners.

In brief, appellees argue that these appeals are moot because the liens were cancelled after Ridgelake obtained lien release bonds from a surety company, and therefore, the validity of the liens is no longer at issue. Alternatively, appellees argue that the liens were valid and proper under the Private Works Act, and accordingly, all judgments should be affirmed. For the following reasons, we affirm the judgments of the trial court under review.

FACTS AND PROCEDURAL HISTORY

Ridgelake, the owner and developer of the Pontchartrain Caye Condominiums project, contracted with Construction-South, Inc. (“ConstructionSouth”) to build the condominium complex. Construction-South in turn entered into subcontracts with plaintiffs, respectively, for various particular aspects of the construction, including painting, electrical work, and heating and air-conditioning installation. During the period between February 16, 2007 and April 12, 2007, Ridgelake sold several of the condominium units to individual owners.

On April 16, 2007, each of the plaintiffs recorded individual “Statement of Lien Claim” affidavits, asserting their rights under the Private Works Act. On IsApril 11, 2008, plaintiffs filed a Joint Petition for Enforcement of Contractors’ Liens against Ridgelake, ConstructionSouth, their surety under the contract, and the individual condominium unit owners, alleging that the defendants were jointly and severally liable to plaintiffs, respectively, for various specified dollar amounts representing labor, materials, and supplies provided by plaintiffs pursuant to their respective subcontracts, and that despite amicable demand, plaintiffs had not been paid. In order to release the individual condominium units from the effects of the recorded liens, Ridgelake substituted lien release bonds in place of each of the subcontractors’ liens on the project property and cancelled the liens, thereby removing the liens from the immovable property and providing plaintiffs with a right of action against the bonding company that issued the lien release bonds, International Fidelity Insurance Company (“IFIC”). In response, plaintiffs added IFIC as a party to this litigation, asserting their claims against the lien release bonds. It has been asserted in briefs and in the record that IFIC has in fact paid all amounts due the subcontractors pursuant to the lien release bonds.

Other issues between Ridgelake, the subcontractors, and the unit owners proceeded to arbitration and other proceedings in federal court. According to the record, the binding arbitration resulted in a decision against Ridgelake and in favor of the subcontractors on the issue of defective work, although allowing Ridgelake certain credits against the total amounts owed to the subcontractors.

1 fiRidgelake filed an Answer, Peremptory Exceptions, and Reconventional Demand in 2009. In the exceptions, Ridgelake argued that plaintiffs had no cause of action and no right of action against Ridgelake because the liens were not timely filed, i.e., not within 60 days of substantial completion of the applicable work, as per La. R.S. 9:4822, and thus their suit was prescribed. The reconventional demand asserted a damage claim against plaintiffs in the amount of $695,000, the cost of the lien release bonds purchased by Ridgelake, and ongoing damages for every day that the subcontractors’ liens remained on the public records.

The exceptions were heard and denied in a written judgment dated January 21, 2010. Ridgelake appealed and also noticed its intent to file a writ application. In a ruling dated June 29, 2010, this Court dismissed Ridgelake’s appeal, finding that the judgment in question was interlocutory and thus not appealable. Simms Hardin Company, L.L.C., et al v. 3901 Ridgelake Drive, L.L.C., et al, 10-354 (La.App. 5 Cir. 6/29/10) (motions to dismiss appeal granted). This Court also found that no writ application requesting supervisory review of this judgment had been properly filed, and thus declined to consider the merits of the matter at that time.

On September 24, 2010, Ridgelake and IFIC filed a joint motion for summary judgment seeking a ruling that the subcontractors’ liens were invalid. Movers argued that the liens were invalid under La. R.S. 9:4822 because the liens “failed to reasonably itemize the obligation giving rise to the claim or privilege ... because it is impossible to tell which claim is associated with which property.” They also argued that the Private Works Act did not allow a subcontractor to lien the entire immovable “in globo.” Following a hearing on December 9, 2010, the trial court denied the motion by written judgment dated January 6, 2011. The record does not reflect that Ridgelake and IFIC sought this Court’s supervisory review of that judgment.

| yPlaintiffs/appellees then proceeded to file a series of motions for summary judgment against Ridgelake and IFIC, to-wit:

• On November 21, 2011, Sharp Electric moved for summary judgment against Ridgelake and IFIC for the amounts claimed under its lien affidavit, asserting that there was no genuine issue of material fact, as the trial court had previously found the liens to be valid. The motion was heard on December 14, 2011 and granted on January 31, 2012.
• On December 29, 2011, Crasto Glass filed a motion for summary judgment, also seeking judgment against Ridge-lake and IFIC for the amounts claimed on its lien affidavit, which motion was heard on January 31, 2012 and granted on February 15, 2012.
• On January 3, 2012, Simms Hardin filed a motion for summary judgment, also seeking judgment against Ridge-lake and IFIC for the amounts claimed on its lien affidavit, which motion was also heard on January 31, 2012 and granted on February 15, 2012.
• Also on January 3, 2012, Gallo filed a motion for summary judgment, also seeking judgment against Ridgelake and IFIC for the amounts claimed on its lien affidavit, which motion was heard on February 15, 2012 and granted on February 28, 2012.
• On January 5, 2012, Commercial Paint filed a motion for summary judgment, also seeking judgment against Ridge-lake for the amounts claimed on its lien affidavit, which motion was also heard on January 31, 2012 and granted on February 15, 2012.
• Finally, on January 23, 2012, Year Round filed a motion for summary judgment, also seeking judgment against Ridgelake and IFIC for the amounts claimed on its lien affidavit, which motion was heard and granted on February 15, 2012.

Meanwhile, on January 18, 2012, Ridge-lake filed an Opposition to Commercial Paint and Simms Hardin’s motions for summary judgment, also including within that pleading a “Cross Motion for Summary Judgment,” arguing that the liens were invalid on the same grounds it had asserted in its 2010 motion for summary judgment that was denied on January 6, 2011. On January 26, 2012, IFIC also filed an opposition to these motions for summary judgment, therein also adopting Ridgelake’s “Cross Motion for Summary Judgment.”

IsRidgelake was present at the hearing on several of the motions for summary judgment that was held on January 31, 2012. However, Ridgelake did not appear at the hearing on February 15, 2012 on the remaining motions for summary judgment despite having received notice of the continuance of those motions at the January 31, 2012 hearing.

Following the grants of the subcontractors’ motions for summary judgment on February 15 and February 28, 2012, Ridgelake timely appealed those judgments. These appeals are docketed as Appeal No. 12-CA-469.

Meanwhile, on March 12, 2012, plaintiffs filed a joint motion for summary judgment, seeking dismissal of Ridgelake’s reconven-tional demand, since only one of the six summary judgments granted in favor of plaintiffs in January/February of 2012 had done so. Following a hearing on April 19, 2012, at which Ridgelake did not appear, this motion was granted on May 4, 2012, dismissing Ridgelake’s reconventional demand. Ridgelake appealed this judgment twice (the first notice of appeal was filed on June 28, 2012 and was docketed as Appeal No. 12-CA-548; the second notice of appeal was filed on July 5, 2012 and was docketed as Appeal No. 12-CA-607). On October 16, 2012, this Court consolidated Ridgelake’s appeals.

MOOTNESS OF THE APPEALS

In all three of these consolidated appeals, appellees argue that the appeals are moot because the liens were cancelled long ago; therefore, the issue of their validity is therefore moot. We disagree. Though the liens have been cancelled and appellees have apparently all been paid their lien claim amounts under the lien 19release bonds, Ridgelake’s reconventional demand asserted a damage claim against appellees for the amount that it paid to obtain the lien release bonds, arguing that the liens were invalid. Ridgelake has appealed the judgment of May 4, 2012 that dismissed its reconventional demand. Thus, the issue of whether the liens were valid is directly relevant to whether the trial court’s dismissal of Ridgelake’s recon-ventional demand was proper.

LAW AND ANALYSIS

As each appeal concerns the granting of motions for summary judgments, we are governed by the law concerning summary judgments. Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for trial on that issue. Id. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110.

| inSummary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45.

The substantive issues involved herein fall under the Private Works Act, as discussed below.

APPEAL NO. 12-CA-469

In this appeal, Ridgelake appeals the summary judgments rendered against it on February 15 and February 28, 2012. These judgments concern the separate motions for summary judgments filed by five of the plaintiffs seeking specific monetary judgments on their respective lien claims.

On appeal, Ridgelake argues that each of the summary judgments rendered on February 15 and February 28, 2012 must be reversed because the liens were Ininvalid. First, we note that the validity of the liens was not the subject matter of the motions for summary judgment that led to the appealed judgments, but rather the issue then was the sums due on the liens. The issue of the validity of the liens was previously addressed in Ridgelake and IFIC’s joint motion for summary judgment filed in 2010, which was denied by written judgment dated January 6, 2011. A review of the transcript of that hearing and subsequent hearings shows that the trial court ruled on the merits of the claim, rather than denying summary judgment on the basis that genuine issues of material fact remained. The trial court disagreed with Ridgelake’s arguments and ruled that the liens were not invalid under the Private Works Act on the grounds asserted by Ridgelake and IFIC.

Though the validity of the liens was not at issue in the motions for summary judgment that are the subjects of these consolidated appeals, the judgment of January 6, 2011 denying Ridgelake and IFIC’s joint motion for summary judgment may be raised here. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment from which the party has taken the appeal. Sporl v. Sport, 00-1321 (La.App. 5 Cir. 5/30/01), 788 So.2d 682, 684, writ denied, 01-1926 (La.10/12/01), 799 So.2d 506; Ellefson v. Ellefson, 616 So.2d 221, 224 (La.App. 5 Cir.1993), writ denied, 617 So.2d 1183 (La.1993), and writ denied, 617 So.2d 1183 (La.1993). Given that the summary judgments in plaintiffs’ favor on the lien amounts and the summary judgment rendered on May 4, 2012 dismissing Ridge-lake’s reconventional demand are final judgments, the denial of Ridgelake’s motion for summary judgment on January 6, 2011 regarding the validity of the liens may be reviewed by this Court at this time.

| 12The Louisiana Private Works Act provides a method for contractors and others to recover the costs of labor and/or materials from a party with whom there is no contract. La. R.S. 9:4801 et seq. A claim against the owner of the immovable is secured by filing a lien against the immovable on which, in this case, the materials were incorporated or labor was performed. The purpose of a statement or claim of privilege is to give notice to the owner (and the contractor) of the existence of the claim and to give notice to persons who may deal with the owner that a privilege is claimed on the property.

The Private Works Act is in derogation of general contract law, and thus must be strictly construed. Nevertheless, in interpreting the Private Works Act, we must not overlook the legislative intent and fundamental aim of the act, which is to protect materialmen, laborers and subcontractors who engage in construction and repair projects. LSA-R.S. 9:4801 et seq.; Bernard Lumber Company, Inc. v. Lake Forest Construction Co., Inc., 572 So.2d 178 (La.App. 1 Cir.1990). Moreover, strict construction cannot be so interpreted as to permit purely technical objections to defeat the real intent of the statute, which is to protect materialmen, laborers and subcontractors who engage in construction projects. Authement’s Ornamental Iron Works v. Reisfeld, 376 So.2d 1061 (La.App. 4th Cir.1979); Morgan v. Audubon Const. Corp., 485 So.2d 529 (La.App. 5 Cir.1986).

Hibernia Nat. Bank v. Belleville Historic Dev., L.L.C., 01-0657 (La.App. 4 Cir. 3/27/02), 815 So.2d 301, 305-06, writ denied, 02-1177 (La.6/14/02), 818 So.2d 785.

La. R.S. 9:4822(G) provides that a statement of a claim or privilege:

(1) Shall be in writing.
(2) Shall be signed by the person asserting the same or his representative.
(3) Shall reasonably identify the immovable with respect to which the work was performed.
(4) Shall set forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably itemize the elements comprising it including the person for whom or to whom the contract was performed, material supplied, or services rendered.

Ridgelake argues that the lien affidavits are invalid because:

113(1) they did not reasonably identify the immovable with respect to which the work was performed;
(2) they did not reasonably itemize the elements comprising material supplied or services rendered; and
(3) they did not reasonably identify the property subject to the lien.

Ridgelake also argues that the lien affidavits fail to specify what work was done or materials were used in each individual unit.

Clearly, the lien affidavits filed by each subcontractor meet the first and second requirements of La. R.S. 9:4822(G), as they are in writing and are signed by an appropriate representative of the respective subcontractors. At issue are the third and fourth requirements.

First, Ridgelake argues that the lien affidavits do not reasonably identify the immovable with respect to which the work was performed and do not reasonably identify the property subject to the liens. Here, Ridgelake argues that the lien affidavits referenced the wrong lot numbers (those lots numbers prior to the resubdivision of several lots into one lot for the project), and also that they designated property greater than that on which the condominiums were built, which additional property was owned by third persons. In response, appellees argue that this is a “technical” defect that does not otherwise invalidate the liens because the property description was adequate to put third persons on notice that the subject property had a lien against it, until the liens were bonded out by Ridgelake.

In each of the lien affidavits filed by the plaintiffs, the property is identified as:

Lots 7, 8, 9,10, 11,12 and 13, Square 53, Harlem Parkway Subdivision, Parish of Jefferson, State of Louisiana otherwise known as Pontchartrain Caye Condominiums, 3901 Ridgelake Drive, Metair-ie, Louisiana.

In Hibernia Nat. Bank v. Belleville Historic Dev., L.L.C., 01-0657 (La.App. 4 Cir. 3/27/02), 815 So.2d 301, 305; writ denied, 02-1177 (La.6/14/02), 818 So.2d 785, the Court of Appeal reversed a trial court judgment that found the property description in the hen affidavit inadequate under the statute, holding:

The municipal address was listed as 913 Pelican Avenue instead of 813 Pelican Avenue. However, we find that the discrepancy to be of no moment for two reasons. First, the notice of contract described the property with a lengthy legal description annexed thereto as “Exhibit A.” Nowhere is there a municipal address used to identify the work site. Secondly, we note that pursuant to La. R.S. 9:4831(C) a notice of contract, notice of termination, statement of claim or privilege or a notice of lis pendens is required to contain a property description sufficient to clearly and permanently identify the property. The statute specifically provides that naming the street or mailing address, without more, is not sufficient to comply with its mandate. Further it specifically states that a description which includes the lot and/or square and/or subdivision or township and range shall meet its requirements. (Emphasis added.)

Upon review, as was found in Hibernia, we find that the property description contained in each of the lien affidavits in question is adequate under La. R.S. 9:4822(G). Though the property description used the original lot numbers prior to the resubdivision of the property into one lot, the description comported with the statute’s requirement to put the owners and third persons on notice regarding which immovable property was subject to the privilege.

Ridgelake further argues that the lien affidavits in question do hot particularly identify which work was performed on which particular condo unit. However, the record shows that the work performed by each subcontractor was performed throughout the entire condominium development prior to the sale of individual units. In Hibernia, the court found that the following description adequately met the statute’s requirements of specificity:

... to furnish labor material to construct twenty-one (21) condominium units at Belleville Condominiums, a project of Belleville Historic Development, L.L.C. Said work was performed as per the aforementioned contract.

|1fiWe likewise find that lien affidavits in question adequately meet the statute’s requirements of specificity.

Ridgelake also argues that the individual lien affidavits do not adequately describe the work performed or the materials supplied. Ridgelake argues that the “lump sum” amounts in each affidavit, without explanation, do not meet the statutory requirements of La. R.S. 9:4822(G). Ridgelake cites Tee It Up Golf, Inc. v. Bayou State Construction, 09-855 (La.App. 3 Cir. 2/10/10), 30 So.3d 1159, in support of its position. There, the contractor, Bayou State, was hired by John Nobles and/or Tee it Up Golf to construct a strip mall and to do improvements on Nobles’ private home. When outstanding invoices were left unpaid, Bayou State filed materialman’s liens on each of the properties, but for the identical amount in each lien, without distinction of which work was performed on which property. Noble sought to have the liens cancelled for numerous deficiencies, including the “failure to reasonably itemize the elements comprising the amounts and obligations asserted.” Each of the liens stated the debt owed on “Materials Supplied” as a lump sum of $180,762.59. The Third Circuit held that simply noting “a lump sum amount cannot meet the statutory requirement to set forth the amount and nature of the claim giving rise to the privilege.... ” Further, the court found that there was no attempt to itemize the elements comprising the amount claimed, a requirement of the statute. The court affirmed the trial court’s ruling ordering that the liens be cancelled.

Tee It Up Golf is distinguishable from the present case. The lien affidavits in this case are attached to the original petition and are summarized as follows:

• Sharp Electric’s lien affidavit claims the amount of $91,492.60 for “electrical and lighting work.”
• Commercial Paint’s lien affidavit asserts a claim for the amount of $58,563.10 for “wall preparation and general painting work.”
Ikí* Simms Hardin’s lien affidavit claims the amount of $106,248.00 for “framing, insulation, and drywall installation.”
• Gallo’s lien affidavit claims the amount of $78,382.20 for “plumbing installation work.”
• Crasto Glass’s lien affidavit claims the amount of $45,346.80 for “aluminum framing and glass and glazing installation work.”
• Year Round’s Statement of Lien claim claims the amount of $119,028.70 for “air conditioning and ventilation work.”

In the lien affidavits, the descriptions of the work performed are individualized as to each subcontractor and sufficiently describe the work performed by each. Further, this case does not involve separate and distinct parcels of immovable property as was the case in Tee It Up Golf (the strip mall and the private home). Though the condominiums were sold as individual units, the various subcontracts were for construction work to be performed on the condominium complex as a whole.

Ridgelake additionally argues that the lien affidavits are all identical in form, they all ask for the same amount of attorney’s fees, they are all notarized by the same person, they are all executed on the same day, and they have perfectly sequential mortgage book document numbers indicating that they were all filed at the same time. These facts, however, are not violations of the Private Works Act and thus do not affect the validity of the lien affidavits.

For the foregoing reasons, we find that the lien affidavits involved in this case all contain a sufficient property description and a sufficient description of the work performed that gave rise to the claim, and thus the lien affidavits are not 117invalid on these bases. Because no genuine issues as to material fact remain and the movers are entitled to judgment as a matter of law, the summary judgments involved in Appeal No. 12-CA-469 are affirmed.

APPEAL NOS. 12-CA-548 AND 12-CA-607

In these appeals, Ridgelake appeals the May 4, 2012 grant of the joint summary judgment in favor of five plaintiffs dismissing Ridgelake’s reeonventional demand. In both appeals, Ridgelake asserts the same grounds as asserted in Appeal No. 12-CA-469, that the liens were invalid. Given that we have found, supra, the liens to be valid for the reasons expressed above, and because no further grounds on appeal have been asserted in these appeals, we accordingly affirm the trial court’s judgment of May 4, 2012 that dismissed Ridgelake’s reeonventional demand. Because the liens were valid, Ridgelake has failed to show that it sustained any compensable damages by obtaining the lien release bonds to cancel the liens from the subject property. Again, because no genuine issues as to material fact remain and the movers are entitled to judgment as a matter of law, the summary judgment involved in Appeal Nos. 12-CA-548 and 12-CA-607 is affirmed.

CONCLUSION

For the foregoing reasons, the summary judgments rendered in favor of plaintiffs/appellees on February 15 and 28, 2012, and on May 4, 2012, are hereby affirmed. All costs of these appeals are assessed to appellant.

AFFIRMED

      . Simms Hardin, Sharp Electric, Gallo, Commercial Paint, Crasto Glass, and Year Round are sometimes referred to herein collectively as "plaintiffs.” Only three of the plaintiffs have filed briefs as appellees herein: Simms Hardin, Commercial Paint, and Crasto Glass. They will sometimes be referred to herein collectively as "plaintiffs/appellees” or "ap-pellees.”

      . Plaintiffs’ petition names Fidelity and Deposit Company of Maryland as the surety company which issued a labor and material payment bond and a performance bond in connection with the condo construction project. This surety company is not involved in this appeal.

      . Plaintiffs' petition names the individual condo unit owners as Dorothy Watkins, wife of/ and Edwin C. Dorvin, Dwayne R. McClure and Bryan P. Scofield, Patricia Barilleau, wife of/and Donald C. Zerangue, Frances Lopinto, wife of/and William J. Dwyer, Anna Cannizza-ro, wife of/and Robert A. Steiner, Cynthia Anthony, wife of/and Michael S. Brandner, Sr., American, wife/and German Gacharna, and Anthony P. Doughty. These individuals are not involved in this appeal.

      . The arbitration decision was confirmed in a judgment rendered on August 5, 2011 in the proceeding entitled ConstructionSouth, Inc. v. Gayle O. Jenkins, 669-185, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.

      . Although Ridgelake includes Sharp Electric as one of the parties in its certificate of service, Ridgelake's motions for appeal did not include Sharp Electric’s summary judgment dated January 31, 2012. Accordingly, this judgment is not under review before this Court in these consolidated appeals.

      . Only five of the six plaintiffs joined in this motion; Gallo did not. Gallo had previously filed a separate motion for summary judgment on this claim, which was granted by the trial court in open court on February 15, 2012, and was included in Gallo’s written judgment dated February 28, 2012.

      . The judgment notes that a hearing took place. Ridgelake is not listed in the judgment as having appeared at the hearing.

      . Although appellant attaches to its brief in Appeal No. 12-CA-469 the Judgment dated May 4, 2012 concerning the joint motion for summary judgment filed by plaintiffs, Simms Hardin, Sharp Electric, Commercial Paint, Crasto, and Year Round, as an exhibit to appellant's brief, the May 4, 2012 Judgment is not before tire Court in this appeal, but rather is involved in Appeal No. 12-CA-607, which is consolidated with this appeal and is discussed infra.

      . Ridgelake argues in brief that it filed a cross motion for summary judgment in response to plaintiffs' separate motions. This is not the case, however. As noted above, Ridgelake’s "cross motion for summary judgment” was asserted on January 18, 2012 within its Opposition to Commercial Paint and Simms Hardin’s motion for summary judgment filed on January 5, 2012. A motion for summary judgment must be filed and served on the opposing parties in accordance with La. C.C.P. art. 966(B). This was not done in this case. Thus, Ridgelake did not properly urge a cross motion for summary judgment, notwithstanding IFIC’s attempt to "adopt” that pleading in its January 23, 2012 opposition to the motions for summary judgment filed by two of the plaintiffs. Also, the record does not contain any judgment on Ridgelake’s purported cross motion for summary judgment.

      . Compare: Bradley Electrical Services, Inc. v. 2601, L.L.C., 11-0627 (La.App. 4 Cir. 12/14/11), 82 So.3d 1242, where the Court of Appeal affirmed a trial court ruling that dismissed the contractor's claims and cancelled the liens in the mortgage records for failing to set forth the nature of the obligation giving rise to the debt and for failure to itemize the materials supplied. Contractor Notoco, who supplied electrical materials to Bradley for improvements on a building, supplied the following description of the debt in the lien, which both the trial court and Court of Appeal, relying on Tee It Up Golf, found to be insufficient:
      There is an unpaid balance of One Hundred ninety five thousand two hundred eighty and fourteen cents ($195,280.14) Dollars, together with contractual interest per an-num until paid, any assessed late fees, attorney's fees of $150.00 plus all costs, for services rendered.

      . It is not entirely clear why Ridgelake filed two motions for appeal regarding the May 4, 2012 judgment. In the motion for appeal in Appeal No. 12-CA-607, the judgment on appeal is described as having been rendered on May 7, 2012, yet in brief it is described as having been rendered on May 4, 2012. The record shows only one judgment was rendered, on May 4, 2012, with a notice of that judgment having been mailed on May 7, 2012.


author: STEPHEN J. WINDHORST, Judge.

text:
    Karen BAKER, et als. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 12-CA-480.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Sidney D. Torres, III, Roberta L. Burns, Beau F. Camel, Attorneys at Law, Chalmette, LA, for Plaintiffs/Appellants.
    John W. Waters, Jr., Kristin Mosely Jones, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Wayne J. Fontana, Skye S. Fantaci, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ^Plaintiffs appeal from a decision of the trial court granting exceptions of prescription filed by defendant, Louisiana Citizens Property Insurance Corporation (“Citizens”). For the reasons that follow, we affirm the judgment of the trial court and we remand this matter for further proceedings to allow plaintiffs the opportunity to amend and supplement their petition within twenty-one days of the date of this opinion.

Plaintiffs were insureds of Citizens on August 29, 2005 when Hurricane Katrina made landfall on the Gulf Coast. On July 22, 2009, plaintiffs filed suit for damages alleging that Citizens failed to initiate loss adjustment in a timely manner, failed to tender any undisputed amounts after receiving satisfactory proof of loss, and failed to tender the total amounts due under the policy. Therefore, they were entitled to the amounts due under the policy as well as cumulative penalties and attorneys’ fees. Plaintiffs further contended that they were putative members of the class described in Orrill, et al. v. Louisiana Citizens Property Insurance Company, and that they had executed and mailed “opt out” forms so as to be able to pursue their claims against Citizens individually.

Citizens filed exceptions against each of the plaintiffs, alleging that, based on the Louisiana Supreme Court, in Taranto v. Louisiana Citizens Property Insurance Corporation, 10-0105 (La.3/15/11), 62 So.3d 721, their actions were prescribed.

Plaintiffs responded that there were at least five putative class actions whose petitions describe the same transactions or occurrences from which plaintiffs’ claims arise and whose proposed definitions include the claims of plaintiffs. Pursuant to La. C.C.P. art. 596, these suits serve to suspend the tolling of prescription as to plaintiffs’ claims. These class actions are Christenberry v. Louisiana Citizens Property Insurance Corporation, No. 06-8819, Civil District Court for the Parish of Orleans; Orrill v. AIG, Inc., 05-0888, Civil District Court for the Parish of Orleans; Press v. Louisiana Citizens Fair Plan Property Insurance Company, 06-5530, Civil District Court for the Parish of Orleans; Oubre v. Louisiana Citizens Fair Plan, 625-567, 24th Judicial District Court for the Parish of Jefferson; and The State of Louisiana v. AAA Ins., 07-5528, Eastern District of Louisiana (also known as the “Road Home ” litigation).

After a hearing, the trial court found that plaintiffs’ causes of action were prescribed and rendered judgment in favor of Citizens. In its ruling, the court relied on this court’s holding in Lester v. Exxon Mobil Corp., 09-1105 (La.App. 5 Cir. 6/29/10), 42 So.3d 1071, writ denied, 10-2244 (La.12/17/10), 51 So.3d 14. However, Lester was recently overruled by Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-2835 (La.11/2/12), - So.3d -, 2012 WL 5374248, and thus the | ¡¡trial court’s reliance on Lester constitutes legal error. Accordingly, we review this matter to determine whether, applying the correct rule of law, plaintiffs’ claims are prescribed. Duckworth, supra.

The Louisiana Legislature enacted Act 802 which extended the one-year prescriptive period for filing suit for damages arising out of Hurricane Katrina to August 30, 2007. Lila, Inc. v. Underwriters at Lloyd’s, London, 08-0681 (La.App. 4 Cir. 9/10/08), 994 So.2d 139; Harris v. Louisiana Citizens Property Insurance Company, 12-176 (La.App. 5 Cir. 11/30/12), 106 So.3d 207. Citizens acknowledged that it contractually extended the prescriptive deadline for its insureds to September 4, 2007. The plaintiffs’ petition was not filed until July 22, 2009 and thus is on its face prescribed.

La. C.C.P. art. 596 provides in part:

A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

[fiPlaintiffs alleged that they are members of timely filed class actions which operate to suspend prescription, namely Oubre, Onill, Press, Christenberry and the “Road Home ” litigation.

When an exception of prescription is heard prior to trial, evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Taranto, supra, at 726. In the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. Duckworth, supra at -.

Statutes involving prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Quinn v. Louisiana Citizens Property Insurance Corporation, 12-0152 (La.11/2/12), 118 So.3d 1011, 2012 WL 5374255. The party urging prescription ordinarily bears the burden of proving prescription. Taranto, supra at 726. However, if the petition is prescribed on its face, the burden shifts to the party opposing prescription to show the action is not prescribed. Id.

At the hearing on the exception of prescription filed in this case, no evidence was introduced by either the plaintiffs or defendant. Thus, the merits of the exception must be decided on the facts set forth in the petition, with all of the allegations accepted as true. Williams v. Louisiana Citizens Property Insurance Company, 12-603 (La.App. 5 Cir. 4/10/13), 115 So.2d 27, 2013 WL 1442624.

In order to show that prescription has been suspended by a class action proceeding as provided in La. C.C.P. art. 596, a plaintiff filing an independent suit must establish three facts:

|71) the existence of a timely filed class action proceeding against the defendant;
2) that he or she is a member of the class described or defined in the identified class petition; and
3) that the claims asserted in the independent action arise “out of the transactions or occurrences described” in that petition.

Quinn, supra at 1016.

In their petition, plaintiffs herein asserted that they were putative class members in one class action proceeding, but that they had “opted” out of that proceeding. No class definition is given in the petition, and therefore the class is not described or defined as required by La. C.C.P. art. 596. None of the other classes, in which plaintiffs alleged they are putative members, are listed in the petition. We find that, considering the allegations presented in the petition, and accepting those allegations as true, plaintiffs failed to establish that they were members of any timely-filed class action proceedings. Williams, supra; Harris, supra.

Because their petition was prescribed on its face, the burden shifted to plaintiffs to show that their claims were not prescribed. Absent a stipulation of facts, a contradictory hearing on an exception of prescription is an evidentiary proceeding. At the hearing on the exception of prescription, plaintiffs did not present any testimony or other evidence to support their claims that they were members of Oubre, Orrill, Press, Christenberry, the “Road Home litigation, or any other timely filed litigation. Instead, the exception was submitted on oral argument and memoranda of law. Documents attached to memoranda do not constitute evidence and cannot be considered on appeal. Caro v. Bradford White Corp., 96-120 (La.App. 5 Cir. 7/30/96), 678 So.2d 615, 618. Thus, plaintiffs failed to prove that their claims were not prescribed, and because the claim was prescribed on its face, the trial court did not err in granting defendant’s exception of prescription.

18When a court sustains an exception of prescription, it should permit amendment of the plaintiffs pleadings if the new allegations which the plaintiff proposes raise the possibility the claim is not prescribed, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain. Quinn, supra at 1023. Therefore, we remand this matter to allow plaintiffs to amend and supplement their petition to allege facts that would show that their claims have not prescribed within twenty-one days from the date of this opinion. See Harris, supra.

For the above discussed reasons, we affirm the trial court’s judgment granting Citizen’s exception of prescription. We remand this matter to the trial court to allow plaintiffs the opportunity to amend and supplement their petition within twenty-one days of the date of this opinion.

AFFIRMED AND REMANDED

      . The plaintiffs named in the petition were Karen Baker, Beverly Butler, Virginia Butler, Gerald Hayes and Thomas Rhodes. Both Hayes and Rhodes settled their claims with Citizens and were dismissed from this suit.

      . The "opt out” form is not attached to the plaintiff's petition.

      . Citizens also argued in brief that plaintiffs failed to heed the "opt out” deadline of Orrill, and therefore have tacitly agreed to be members of the Orrill class. That issue was not heard or ruled on by the trial judge and will not be discussed in this appeal.