author: AMY, Judge.

text:
    Shannon Todd BORDELON v. KEY ENERGY SERVICES, INC.
    No. 14-39.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Michael E. Parker, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Key Energy Services, Inc.
    Jere Jay Bice, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Claimant/Appellee, Shannon Todd Borde-lon.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

liThe claimant sought workers’ compensation benefits after allegedly sustaining injury in a work-related accident. Although the employer disputed whether the injury was work-related, it largely defended the claim pursuant to La.R.S. 23:1081, noting a post-accident drug screen revealed the presence of cocaine and amphetamines in the claimant’s system. The workers’ compensation judge ruled in favor of the claimant, awarding both compensation benefits and penalties and attorney’s fees. The employer appeals. For the following reasons, we affirm'.

Factual and Procedural Background

The claimant, Shannon Todd Bordelon, alleged that he severely injured his finger while working for Key Energy, Inc. in April 2012. Mr. Bordelon asserted that the alleged accident occurred when a crank he was using to lower a light tower spun out of control, striking his hand. Mr. Bordelon testified that upon reporting the accident at the work site, he was taken to the Acadiana Center for Orthopedic and Occupational Medicine for an initial evaluation. Following an examination, x-rays, and a post-accident drug test, Mr. Borde-lon was referred for immediate treatment at an emergency room.

Once at the emergency room, Mr. Bor-delon was treated for a fracture of the finger and a laceration. Although surgery was recommended upon consultation with a hand surgeon, the surgery was not completed at that time. Instead, the employer denied further compensation benefits and terminated Mr. Bordelon’s employment on May 2, 2012. The employer did so after receipt of the results of the post-accident drug test, which identified the presence of cocaine and amphetamines.

li>Mr. Bordelon alleges that, thereafter, the condition of his finger began to worsen but that medical care providers denied treatment in light of the work-related nature of the problem. Mr. Bordelon explained at trial that he eventually began reporting that he sustained the injury while playing basketball due to the need for treatment. Ultimately, Mr. Bordelon underwent two surgeries which resulted in the partial amputation of the injured finger.

Mr. Bordelon filed this matter seeking workers’ compensation benefits as well as penalties and attorney fees. Key Energy and its compensation insurer defended the claim on the basis of La.R.S. 28:1081, pointing to both the positive drug test and the claimant’s statements to medical providers that he injured his finger while playing basketball. At the hearing, Mr. Bordelon denied cocaine use, but admitted to having ingested two tablets of his girlfriend’s weight loss drug two days before the accident. He denied that he felt any of the drug’s effects at the time of the accident. Mr. Bordelon further challenged the validity of the drug screen and alleged that the testing facility’s failure to follow protocol in processing the sample may have resulted in his sample being confused with that of another patient.

Following a hearing, the workers’ compensation judge ruled in favor of the claimant. In reasons for ruling, the workers’ compensation judge found that the causation of the work-related accident was not related to drug use. Therefore, the judge awarded compensation benefits, subject to a credit for unemployment benefits and undeclared income received during the contested period. The judge additionally determined that Key Energy failed to adequately investigate the occurrence of the accident and instead denied benefits upon receipt of the positive |3drug test. Therefore, the resulting judgment included $2,000.00 in penalties and $15,750.00 in attorney fees for the improper termination of benefits.

Key Energy appeals, asserting that:

1. The Hearing Officer erred in awarding penalties and attorney’s fees on a claim that was denied because of a positive post-accident drug test.
2. The Hearing Officer erred in concluding that Key Energy was not entitled to the presumption that Plaintiffs intoxication was the cause of his accident found at La.R.S. 23:1081.
3. The Hearing Officer erred in concluding that Plaintiff rebutted the presumption that his intoxication was not a contributing cause of his accident.

Discussion

La.RS. 23:1081

Key Energy defended this matter, in part, on the defense of intoxication provided by La.R.S. 23:1081. However, as stated above, the workers’ compensation judge rejected that defense. In reasons for ruling, the judge recognized that Mr. Bordelon contested whether the testing protocol was followed in obtaining the sample for the drug screen and that he additionally challenged whether any intoxication caused the subject accident and resulting injury. On appeal, Key Energy’s arguments pursuant to La.R.S. 23:1081 are two-fold. First, it contends that the workers’ compensation judge erred in failing to apply the presumption that intoxication was the cause of the accident. It further argues that the workers’ compensation judge erred in its determination that Mr. Bordelon rebutted that presumption by establishing that intoxication was not a contributing cause of his accident.

|4Louisiana Revised Statutes 23:1081 sets forth an employer’s defenses to a claim for compensation. With regard to intoxication, La.R.S. 23:1081 provides that:

(1) No compensation shall be allowed for an injury caused:
(b) by the injured employee’s intoxication at the time of the injury[.]

Paragraph (2) thereafter indicates that it is the employer’s burden of proving that he or she is exempt from providing compensation because of injury for any reason provided by the subsection, including intoxication.

With regard to Key Energy’s arguments in these assignments of error, La.R.S. 23:1081 provides certain presumptions as follows:

(3) For purposes of proving intoxication, the employer may avail himself of the following presumptions:
(5) If there was, at the time of the accident, evidence of either on or off-the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.
(8) In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee’s use of the controlled substance only by a preponderance of the evidence. In meeting this burden, the results of employer-administered tests shall be considered admissible evidence when those tests are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.
(12) Notwithstanding any language to the contrary, once the employer has met the burden of proving intoxication at the time of the accident, it shall be presumed that the accident was caused by the | ^intoxication. The burden of proof then is placed upon the employee to prove that the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.

Thus, and assuming for purposes of discussion of this assignment that Key Energy established intoxication by the positive drug test, La.R.S. 23:1081(12) establishes a presumption “that the accident was caused by the intoxication.”

Key Energy suggests that the workers’ compensation judge’s ruling reveals ambiguity as to whether it applied the presumption, noting that the judge discussed Mr. Bordelon’s challenges to the integrity of the testing procedure. While it is true that that the workers’ compensation judge noted the argument regarding the testing protocol, there is no indication that the presumption was not applied. Rather, the ruling acknowledged “[t]he governing law is Louisiana R.S. 23:1091 [sic] which creates two separate rebuttable presumptions that apply to workers’ compensation cases where intoxication is an issue.” Thereafter, the workers’ compensation judge addressed Mr. Bordelon’s contention that the testing protocol was not followed.

Ultimately, however, the workers’ compensation judge recognized that: “The crucial question here really is if cocaine or one of its metabolites were in the body of Shannon Bordelon, was he impaired at the time the crank handle spun out of control, smashing his hand in the process. Was the degree of intoxication a contributing cause of this accident or not.” Thereafter, the workers’ compensation judge concluded that any intoxication was not a cause of the accident, stating that:

In the instant case, no one — not a single witness — suggested, much less said, that Mr. Bordelon appeared impaired in any fashion. It appears that the impairment (if that’s the correct term) really applies to the apparatus that Mr. Bordelon was using at the time of the accident.
Testimony was that under normal circumstances, lowering a tall metal tower is relatively safe because the hand crank is controlled by a device that prevents the crank from going out of control. In this case, |fiit appears that the hand crank was released by the mere pulling of the pin which immediately released the entire weight of the structure onto the handle.
It does not appear that Mr. Borde-lon’s lack of attention, lack of focus, poor judgment, delayed reaction or much of anything else had to do with the weight of the tower pushing immediately and directly on the crank, causing it to spin out of control in reverse.
I cannot recall the defense ever mentioning the potential problem with this hand crank, choosing rather to put their entire focus on the drug screen, which has problems, serious problems, of its own.

Thus, notwithstanding the question of whether the workers’ compensation judge applied the presumption, it is clear that the workers’ compensation judge’s ultimate determination was consistent with La.R.S. 23:1081(12). That provision establishes that, even upon the application of the presumption, the claimant may “prove that the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.”

After review of the record, we find no manifest error in the workers’ compensation judge’s conclusion that any intoxication was not a contributing cause. Rather, the testimony supports a determination that Mr. Bordelon rebutted the presumption available to Key Energy through La. R.S. 23:1081. Mr. Bordelon explained that the accident occurred on a damp morning when the handle to the light tower crank was wet. He stated simply that, unlike other cranks he was accustomed to, this crank did not have a safety mechanism on it and that the wet handle slipped from his hand, spun out of control, and struck his hand. The workers’ compensation judge acted within its factfinding role in accepting that testimony as credible. Additionally, as noted by the workers’ compensation judge, the record evidences an absence of testimony revealing any indicia of intoxication.

^Accordingly, we find no merit in Key Energy’s assignments regarding application of the presumption of La.R.S. 23:1081(12) and Mr. Bordelon’s corresponding rebuttal of that presumption.

Penalties and Attorney Fees

Key Energy next challenges the workers’ compensation judge’s determination that it failed to reasonably controvert the claim. Notably, Key Energy starkly presents its question to this court as “whether it is ever appropriate for a Hearing Officer to award penalties and attorney’s fees following denial of a claim because of a positive drug test.” The employer suggests that there is no indication that it acted unreasonably in denying the claim given the positive drug test.

The workers’ compensation judge awarded penalties ($2,000.00) and attorney’s fees ($15,750.00), finding that Key Energy failed to reasonably controvert the claim in its denial of benefits. In this regard, La.R.S. 23:1201(F) provides that:

Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim....
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

|sOn appeal, we review a decision to award penalties and attorney fees as a question of fact and, therefore, subject to the manifest error or clear error standard of review. Long v. Bengal Transp., 13-793 (La.App. 3 Cir. 12/11/13), 127 So.3d 1103, writ denied, 14-0098 (La.3/14/14), 135 So.3d 607.

While Key Energy suggests that the positive post-accident drug screen provided the reasonable basis for its denial, the workers’ compensation judge determined that Key Energy single-mindedly relied upon the intoxication presumption of causation without appropriately considering alternative causes. Further, the workers’ compensation judge noted that Key Energy also questioned the occurrence of the work-related accident, despite clear evidence that the injury was, in fact, sustained on the job site. On these points, the workers’ compensation judge explained:

Granted, the alleged accident was not witnessed, but the employer’s argument that Mr. Bordelon did not have his finger shattered by the out-of-control hand crank as he described it does not fit entirely well within the chronology of what the evidence shows happened. Right after he reported the alleged accident, he was taken to the employer’s office for a few days [sic] by a supervisor, and then driven to a doctor in Lafayette. The medical reports suggest, actually say in plain terms, that the injury was traumatic. The suggestion that he sustained this injury before he went to work and then presented himself with a severely smashed hand to his supervisor when he got on the job seems far more creative than credible.
The theory that Mr. Bordelon was not injured on the job and that he invented the out-of-control crank theory apparently did not appear to be the employer’s initial response. As a matter of fact, the employer seemed to have been struck with the idea of a faked accident just about the same time as he got in his hand a positive drug report.
The scenario of a hand crank which spun out of control because it was not equipped with a standard safety device which prevents the handle from becoming uncontrollable seems plausible, even likely, given the circumstances. And the injury that he reported was not some esoteric, subjective hard-to-diagnose pain, but was rather a bleeding, shattered hand, hurt severely enough for a surgeon to immediately see the need for an operation.

|nThe workers’ compensation judge further rejected Key Energy’s contention that it did not credit Mr. Bordelon’s statement regarding the occurrence of the work-related accident in light of his statement to health care providers that he was injured playing basketball. Instead, the workers’ compensation judge noted that Mr. Borde-lon admitted the false statement, saying he did so because he had been turned away repeatedly by health care providers in light of the work-related nature of the occurrence. The workers’ compensation judge observed that: “Afraid he would lose his finger if he did not give [sic] some sort of treatment soon, he went to Charity Hospital and lied to them about the circumstances of how he was hurt.” The record indicates that Mr. Bordelon thereafter received treatment for the condition.

Returning to Key Service’s reliance on the positive drug screen in its defense, the workers’ compensation judge found that, in addition to the fact that Mr. Bordelon challenged the way the drug screen was conducted:

It looks as if when the employer read the positive drug screen, it terminated not only all medical and indemnity benefits but also ceased any meaningful communication with Mr. Bordelon. I can’t see where much, if any, investigation was conducted into the incident at all. The employer’s actions suggest that he was under the impression that a positive drug screen pretty much ends the inquiry, but that’s simply not true. At trial, no co-worker disagreed with Mr. Borde-lon’s story of how the accident occurred.
I think the overarching problem here was that once the employer saw the term “test positive”, it was decided that the case should be closed and shut instantly and no more investigation or inquiry was required. That assumption is incorrect.
The employer seemed to totally disregard the facts of the accident and then to dismiss out of hand any idea that anything other than impairment or intoxication played a role in this evident.
ImBecause the defendant did not reasonably controvert this claim, attorney’s fees and penalties are appropriate. Total reliance on the results of a drug screen, especially one of questionable validity, should not trigger an automatic, knee-jerk termination of all worker’s compensation benefits when other significantly relevant facts and circumstances should be investigated, reviewed, and considered.

We find no manifest error in this conclusion. Certainly, La.R.S. 23:1081 provides the defense of intoxication and provides an employer with certain presumptions. Significantly, however, La.R.S. 23:1081(12) instructs that, even upon application of the presumption of causation, the employee may rebut that presumption of causation.

As pointed out in reasons for ruling, Key Energy was aware that Mr. Bordelon presented on the work site with a serious laceration and fracture requiring immediate medical attention. Yet, at the hearing, it defended its claim on a subsequent statement of causation made by the claimant only some period after benefits had been denied. Additionally, and even in the presence of the positive drug screen, Mr. Bordelon offered the only evidence regarding the contributing causation of intoxication, or lack thereof, by denying that he had suffered from the effects of any substance taken prior to the occurrence. Neither did his medical records reflect any observations regarding intoxication. Finally, Mr. Bordelon’s girlfriend testified that when she spoke with Mr. Bordelon immediately after the accident, he was in pain, but he did not otherwise sound impaired.

Simply, Key Energy had a positive drug screen and relied upon that drug screen exclusively. Given the surrounding circumstances as permissibly determined by the workers’ compensation judge, we find no manifest error in its imposition of penalties and attorney fees.

This assignment lacks merit.

\ ^Additional Attorney Fees

Finally, we note that, in his brief to this court, Mr. Bordelon seeks additional attorney fees for work performed on appeal. However, we do not make an additional award insofar as Mr. Bordelon has filed neither an appeal nor an answer in pursuit of those fees. See La.Code Civ.P. art. 2133.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to the appellant, Key Energy Services, Inc.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    MARK A. GRAVEL PROPERTIES, LLC v. EDDIE’S BBQ, LLC, et al.
    No. 14-46.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Ricky L. Sooter, Provosty, Sadler, De-Launay, Fiorenza & Sobel, APC, Alexandria, LA, for Defendants/Appellees: Eddie’s BBQ, LLC, et al.
    Scott M. Brame, Alexandria, LA, for Plaintiff/Appellant: Mark A. Gravel Properties, LLC.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|, The parties herein were involved in the sale of a parcel of real property. However, a dispute arose regarding whether the seller improperly burdened the property with an additional servitude after the sales contract was signed and recorded. After the seller refused to cancel the servitude, the purchaser filed suit, seeking to compel the seller to void the servitude and proceed with the sale. After a trial, the trial court found that no sales contract had been confected because there was no meeting of the minds. The purchaser appeals. For the following reasons, we affirm.

Factual and Procedural Background

This litigation involves the sale of a piece of real property owned by one of the defendants, Eddie’s B-B-Q, LLC. The property is located on Castle Road behind the Eddie’s B-B-Q restaurant and adjacent to the Ahrens Ewing Towne Centre. Although Eddie’s B-B-Q restaurant shares a name with the owner of the real property, Eddie’s B-B-Q, LLC, the record indicates that the restaurant is located on property owned by another defendant, Smead Corporation. The record also indicates that the management of Eddie’s BB-Q, LLC and Smead Corporation involves several of the same parties, including one of the defendants, Edward K. Ah-rens, Jr., and his son, Daniel Ahrens.

The record further indicates that, in 2011, Eddie’s B-B-Q, LLC and Ahrens Ewing Towne Centre entered into a servitude agreement which allows access from Castle Road to the Ahrens Ewing Towne Centre across the paved portion of the property. However, one of the disputed issues in this litigation is access to and |2from Eddie’s B-B-Q restaurant across the paved portion of the property. Edward K. Ahrens, Jr. testified that it is necessary to cross the paved portion of the property in order to access Eddie’s B-B-Q restaurant drive-through. Further, Daniel Ahrens testified that access across the paved portion of the property was necessary for deliveries to Eddie’s B-B-Q restaurant. According to Daniel Ahrens, such access had been permitted “from the beginning.”

At some point, Eddie’s B-B-Q, LLC listed the property for sale, and the plaintiff, Mark A. Gravel Properties, LLC, became interested in purchasing the property. The parties signed an Agreement to Purchase/Sell on May 9, 2012. Attached to the agreement was a property condition disclosure form, which stated that there was “Cross Access with Towne Centre and Eddie’s BBQ[.]” The record indicates that the agreement was recorded with the Rap-ides Parish Clerk on June 13, 2012. Thereafter, Eddie’s B-B-Q, LLC and Ah-rens Ewing Towne Centre recorded an Act of Correction, which was signed on June 15, 2012, and addressed the existing servitude. Eddie’s B-B-Q, LLC and Smead Corporation also recorded a Reciprocal Servitude Agreement, which was signed on June 15, 2012, and created a predial servitude for pedestrian and vehicular traffic.

Upon discovering that an additional servitude had been created, Mr. Gravel demanded that Edward K. Ahrens, Jr., cancel the Eddie’s B-B-Q, LLC/Smead Corporation servitude. However, the servitude was not cancelled, and the parties did not proceed with closing. Thereafter, Gravel Properties filed this suit against Eddie’s B-B-Q, LLC, Smead Corporation, and Edward K. Ahrens, Jr., individually, seeking to have the Eddie’s B-B-Q, LLC/Smead Corporation | sservitude can-celled and to compel specific performance. Contending in part that the Eddie’s B-BQ, LLC/Smead Corporation servitude was intended to document an already existing agreement and that the access issue had been disclosed to the plaintiff, the defendants filed a reconventional demand, seeking cancellation of the Agreement to Purchase/Sell and an award of the deposit and attorney’s fees, costs, and other expenses.

After a trial, the trial court found that there was no meeting of the minds with regard to the contract and thus that the “contracts fall and that the parties have to be put back in the same position as before the contracts.” The trial court entered judgment dismissing the plaintiffs claims and declaring the Agreement to Purchase/Sell null and void and ordering it cancelled from the public records.

The plaintiff appeals, asserting as error that:

1. The district court erred in applying the law of obligations and contract interpretation to the case sub judice.
2. The district court erred in failing to find the seller committed a bad faith breach of contract.
3. The district court clearly erred in holding there was “no meeting of the minds” when defendants had not even plead “error” as an affirmative defense to the contract.
4. The district court erred in rescinding a valid and enforceable contract to purchase and sell.
5. The district court erred in not can-celling the servitude, created under subterfuge, by the seller after the contract to buy and sell was recorded.
6. The district court erred in failing to order the seller to specifically perform under the contract to buy and sell that was recorded.

|4Discussion

The Trial Court’s Consideration of Lack of Consent

One of Gravel Properties’ assignments of error is that the trial court erred in considering whether a contract existed, because the defendants did not specifically assert error as an affirmative defense. Our review of the record indicates that the defendants did not specifically plead error as an affirmative defense.

However, we find no error on the part of the trial court in considering whether there was consent to the contract. Louisiana Code of Civil Procedure Article 1005 requires the answer to “set forth affirmatively ... duress, error or mistake, ... and any other matter constituting an affirmative defense.” The defendants’ answer does not specifically set forth any affirmative defenses but does contend that the property condition disclosure form contained notification of “Cross Access with Towne Centre and Eddie’s BBQ[.]” “The purpose of [La.Code Civ.P.] art. 1005 is to prevent surprise by giving the plaintiff fair notice of the nature of the defense, thereby preventing interjection of unexpected issues.” Ochsner Clinic Found. v. Arguello, 11-326, p. 8 (La.App. 5 Cir. 11/29/11), 80 So.3d 622, 626. Thus, we find that the allegations in the defendants’ answer sufficiently set forth facts which put Gravel Properties on notice of the consent issue. See LaCross v. Cornerstone Christian Acad. of Lafayette, Inc., 04-341 (La.App. 3 Cir. 12/15/04), 896 So.2d 105, writ denied, 05-128 (La.3/24/05), 896 So.2d 1037.

Additionally, the record indicates that testimony and argument on this issue were offered at trial without objection by Gravel Properties. Although Article 1005 is construed liberally, when the defendant fails to plead an affirmative defense in his answer, no proof may be offered at trial in support of that defense. | American Gulf V, Inc. v. Hibernia Nat. Bank, 99-376 (La.App. 5 Cir. 11/10/99), 749 So.2d 722. “However, where an affirmative defense has not been pleaded but the opposing party nevertheless fails to object to the introduction of evidence bearing on the affirmative defense and which is not relevant to other issues raised in the pleadings, the pleadings are considered to have been enlarged to include the affirmative defense.” Cypress Oilfield Contractors, Inc. v. McGoldrick Oil Co., Inc., 525 So.2d 1157, 1162 (La.App. 3 Cir.), writ denied, 530 So.2d 570 (La.1988). Given the evidence in the record that the defendants put Gravel Properties on notice of the consent issue and that Gravel Properties failed to object to the defendants’ introduction of evidence concerning this issue at trial, we do not disturb the trial court’s consideration of the consent issue.

This assignment of error is without merit.

Extrinsic or Parol Evidence

One of Gravel Properties’ assignments of error concerns the trial court’s consideration of parol evidence. Generally, parol evidence is not admissible to negate or vary the terms of an authentic act or an act under private signature. La.Civ. Code art. 1848. However, “in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.” Id. Additionally, if the written expression of the parties’ common intent is ambiguous, parol evidence is admissible. Campbell v. Melton, 01-2578 (La.5/14/02), 817 So.2d 69. As discussed more fully below, the property condition disclosure form attached to the Agreement to Purchase/Sell provides for “Cross Access with Towne Centre and Eddie’s BBQ.” This statement is ambiguous with regard to whether there was access only between Eddie’s B-B-Q, LLC and Ahrens Ewing | (¡Towne Centre or access between the property and both the Eddie’s B-B-Q restaurant and Ahrens Ewing Towne Cen-tre.

Further, we observe that the initial consideration in this case is whether the requirements for contract formation were met. In those circumstances, several Louisiana courts have considered extrinsic evidence in determining whether a contract was formed. See, e.g., Marcantel v. Jefferson Door Co., Inc., 01-1307 (La.App. 5 Cir. 4/10/02), 817 So.2d 236; Buruzs v. Buruzs, 96-1247 (La.App. 4 Cir. 12/27/96), 686 So.2d 1006. Accordingly, we find no error on the part of the trial court in considering extrinsic or parol evidence.

Existence of the Contract

The heart of Gravel Properties’ assignments of error is that the defendants failed to act in good faith in executing the Agreement to Purchase/Sell and that the trial court erred in finding that there was no meeting of the minds.

“A contract is formed by the consent of the parties established through offer and acceptance.” La.Civ.Code art. 1927. In Philips v. Berner, 00-103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45, writ denied, 01-1767 (La.9/28/01), 798 So.2d 119, the fourth circuit discussed contract formation, stating:

Four elements are necessary for formation of a contract in Louisiana: (1) capacity, (2) consent, (3) certain object, and (4) lawful cause. Leger v. Tyson Foods, Inc., 95-1055 (La.App. 3 Cir. 1/31/96), 670 So.2d 397.
The law has long been clear that in order to find that there was an agreement between the parties and have consent pursuant to [La. Civ.Code] art.1927, the court must find that there was a meeting of the minds of the parties. See. [sic] Buruzs v. Buruzs, 96-1247 (La.App. 4 Cir. 12/27/96), 686 So.2d 1006. Furthermore, it is horn book law that the consent of the parties is necessary to form a valid contract and where there is no meeting of the minds between the parties the contract is void for lack of consent. Stockstill v. C.F. Industries, Inc., 94-2072 (La.App. 1 Cir. 12/15/95), 665 So.2d 802, 820; Howell v. Rhoades, 547 So.2d 1087, 1089 (La.App. 1 Cir.1989).

|7The existence of a contract is a finding of fact, subject to the manifest error standard of review. Dubois Const. Co. v. Moncla Const. Co., Inc., 39,794 (La.App. 2 Cir. 6/29/05), 907 So.2d 855.

The property condition disclosure form, which was executed by Daniel Ahrens, asks whether there are “any easements or servitudes on or affecting this property!/]” Daniel Ahrens indicated that there were and, in the explanation section, wrote that there was “Cross Access with Towne Cen-tre and Eddie’s BBQ[.]” He testified that he assumed that there was a document providing for access for Smead Corporation across the Eddie’s B-B-Q, LLC tract and that “cross access” meant that “all traffic would be able to pass through the Eddie’s Barbeque parking lot, Eddie’s Barbeque Restaurant, through Eddie’s Barbeque office, through to Town Centre, and vice versa and all angles and directions at anytime, the way it’s been from the beginning, not to interrupt any other business from traffic.” According to Daniel Ahrens’ testimony regarding that access, “that’s what we thought we were selling.” He also stated that he listed “Eddie’s BBQ” instead of Smead Corporation because “Smead was the — was the company that bought the real estate and built the building but Eddie’s Barbeque has always been the company that has operated the property and has always tried to make a living there[,]” and that, in his opinion, “every one knew exactly what Eddie’s Barbeque was[.]”

IsEdward K. Ahrens, Jr. testified that he filed the Eddie’s B-B-Q, LLC/Smead Corporation easement in order to maintain the right-of-way from the Eddie’s B-B-Q restaurant to Castle Drive “as it always has been[.]” According to Edward K. Ahrens, Jr., after the Agreement to Purchase/Sell was signed, he discovered that the existing servitude agreement did not include access for Smead Corporation or the Eddie’s BB-Q restaurant. Edward K. Ahrens, Jr. stated that he would not have signed the purchase agreement if the buyer was going to cut off access to the Eddie’s B-B-Q restaurant drive through. He also testified that he informed Mr. Gravel that the sale only included the three parking spaces located next to the office/storage building on the property.

Mr. Gravel testified that he wanted to purchase the property as storage buildings. According to Mr. Gravel, the first time he looked at the property, he was not paying attention to the paved parking area. Mr. Gravel thought that he had the discussion about parking after the Agreement to Purchase/Sell was signed. Mr. Gravel testified that, at the time he looked at the property, it was correct that nothing blocked the public from travelling across the Eddie’s B-B-Q restaurant parking lot, turning left, and swinging back through the drive through. Mr. Gravel assumed that the restaurant was going to shorten its drive through.

Here, there is sufficient evidence in the record to support the trial court’s conclusion that there was no meeting of the minds between the parties with regard to the existence of access across the property for the Eddie’s B-B-Q restaurant. The evidence supports the view that Eddie’s BB-Q, LLC both believed it was selling and intended to sell property which included predial servitudes of ingress and egress for both Ahrens Ewing Towne Centre and Smead Corporation. The testimony indicates that Eddie’s B-B-Q, LLC would not have sold the property |9without that access. Further, the record reveals that Gravel Properties believed it was purchasing property that only included a predial servitude of ingress and egress for Ahrens Ewing Towne Centre. Thus, based on our review of the record, we find no manifest error in the trial court’s finding that there was no meeting of the minds. See Marcantel, 817 So.2d 236; Hartsell v. Pipes Auto Shop, Inc., 318 So.2d 627 (La.App. 2 Cir.1975).

Gravel Properties’ assignments of error which flow from the trial court’s determination that there was no meeting of the minds are without merit.

Bad Faith

Pursuant to La.Civ.Code art.1983, “[cjontracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” However, because we have found no error in the trial court’s conclusion that there was no meeting of the minds, and thus, there was no agreement to breach, we also find no merit in Gravel Properties’ assertion that the defendants performed the contract in bad faith.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed in its entirety. Costs of this appeal are assessed to the appellant, Mark A. Gravel Properties, LLC.

AFFIRMED.

      . Eddie's B-B-Q, LLC is also spelled as "BBQ” in the record. We use the hyphenation contained in the petition.

      . The record indicates that the agreement was signed by Mark A. Gravel, on behalf of Gravel Properties, and Daniel Ahrens, on behalf of Eddie's B-B-Q, LLC.

      . We note that, on several occurrences in the record, multiple parties refer to both Eddie’s B-B-Q restaurant and Eddie's B-B-Q, LLC as “Eddie’s B-B-Q” or "Eddie's”.


author: THIBODEAUX, Chief Judge.

text:
    Dwane LINK v. Shelley Fritz LINK.
    No. 13-1441.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Andrea D. Aymond, Marksville, LA, for Defendant/Appellee, Shelley Fritz Link.
    Chad P. Guillot, Marksville, LA, for Plaintiff/Appellant, Dwane Link.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

_jjThe trial court awarded the father of three minor children sole custody by way of default judgment when the mother failed to appear at the custody hearing. At a subsequent hearing, the trial court asserted that amendments to the custody order would not be subject to the high burden of proof espoused in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). The father appealed, arguing that the Bergeron rule was applicable since the court heard his testimony regarding parental fitness at the custody hearing. Reasoning that custody agreements obtained by default judgments are not considered decrees, we affirm the judgment of the trial court.

I.

ISSUE

We shall consider whether a child custody agreement obtained by default judgment, where a parent presented evidence of parental fitness at the hearing, is subject to the Bergeron burden of proof for purposes of amending the agreement.

II.

FACTS AND PROCEDURAL HISTORY

On February 8, 2013, Dwane Link filed for divorce from Shelley Fritz Link under La.Civ.Code art. 102. A hearing was initially scheduled for March 4, 2013 to determine the custody of the three minor children of the marriage. After numerous continuances, the hearing was rescheduled for June 10, 2013, and Mrs. Link was personally served on June 4, 2013. Neither Mrs. Link nor any attorney 12on her behalf appeared at the hearing. After listening to testimony from Mr. Link regarding Mrs. Link’s parental fitness and why he should be granted full custody, the trial court issued a default judgment, entitled “Considered Decree,” granting Mr. Link sole custody with visitation rights to Mrs. Link at Mr. Link’s discretion.

Mrs. Link subsequently filed a motion for new trial, arguing that she did not appear at the custody hearing as she felt the marriage had been reconciled and the hearing was unnecessary. She also filed a motion and order to dismiss the divorce suit with prejudice on the grounds of reconciliation. After hearing evidence from both parties regarding reconciliation and the reasons Mrs. Link missed the custody hearing, the trial court denied the motion for new trial and the motion to dismiss. However, the court held that the “Considered Decree” granting sole custody to Mr. Link would not be subject to the Bergeron burden of proof and could be amended under the lesser “change of circumstances” standard. The trial court’s conclusion was memorialized in a judgment signed on September 19, 2013. Mr. Link now appeals that judgment, contending that the trial court erred by not holding the custody agreement obtained by default judgment to the Bergeron burden of proof.

III.

STANDARD OF REVIEW

The determination of the trial court in child custody matters is afforded great weight, considering the court is in a better position to assess the best interests of the child and the character of the parties. As such, the court’s rulings will not be disturbed absent a clear abuse of discretion. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); see also Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960).

_k?v.

LAW AND DISCUSSION

While Mr. Link asserts that his child custody agreement obtained by default judgment is subject to the Bergeron standard, we disagree. The burden of proof necessary to modify a custody agreement is dependent on whether the agreement is a considered decree or a stipulated decree:

As earlier stated, the paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95); 653 So.2d 48, writ denied, 95-1488 (La.9/22/95); 660 So.2d 478. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Hensgens, 653 So.2d at 52. When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is “so deleterious to the child as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986), reh’g denied (Sept. 11, 1986).
However, in eases where the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the heavy burden of proof enunciated in Bergeron is inapplicable. Hensgens, 653 So.2d at 52. Instead, where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Hensgens, 653 So.2d at 52....

Evans v. Lungrin, 97-0541, pp. 7-8 (La.2/6/98), 708 So.2d 731, 738. Our court has further recognized that child custody agreements obtained by default judgment are not considered decrees:

A considered decree is one for which evidence as.to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App. [2d Cir.] 2/6/95 [12/6/95]), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96), 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested[,] or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.

Schuchmann v. Schuchmann, 00-094, p. 3 (La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616 (quoting Roberie v. Roberie, 33,168, p. 3 (La.App. 2 Cir. 12/8/99), 749 So.2d 849, 852) (emphasis added).

Here, Mr. Link’s custody agreement was clearly uncontested and obtained by default judgment as Mrs. Link never • made an appearance. While Mr. Link argues that he presented evidence of parental fitness in the form of testimony at the custody hearing which makes this a considered decree, this argument lacks merit. In order to obtain a default judgment, a party need only “establish a prima facie case ... that is admitted on the record prior to confirmation.” La.Code Civ.P. art. 1702(A). While Mr. Link likely satisfied this low evidentiary burden through his testimony, a considered decree in the best interest of the children mandates a higher evidentiary consideration of the circumstances of the litigants that is simply not met by a default judgment proceeding. See McCready v. McCready, 41,026 (La.App. 2 Cir. 3/8/06), 924 So.2d 471. Such considerations are especially necessary in this case, as Mr. Link even admits in his petition for divorce that “it is in the best interest of the minor children that joint custody be awarded to the | ¡¡parties!.]” Finally, while the trial court labeled the default judgment of June 10, 2013 a “considered decree,” this clearly was unintentional given the court’s willingness to not follow Bergeron in the judgment of September 19, 2013, and thus, this label was nothing more than a harmless, albeit careless, error.

Given the jurisprudence, we conclude that the custody order from the default judgment is not a considered decree, and thus, is not subject to the Bergeron burden and may be modified by the lesser “change of circumstances” standard. As such, the trial court did not abuse its discretion.

V.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against Mr. Dwane Link.

AFFIRMED.


author: THIBODEAUX, Chief Judge. CONERY, J.,

text:
    SUCCESSION OF Charley A. CHENEY, Sr.
    No. 13-1455.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Edward Larvadain, Jr., Edward Larva-dain, Jr. Law Office, Alexandria, LA, for Appellants — Wanda Cheney and Patsy Cheney Washington.
    Harry Brenner Sadler, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Appellee — Charley A. Cheney, III.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

|tIn this succession proceeding, the decedent, Charley A. Cheney, Sr., died intestate and was survived by two children and three grandchildren. One of the decedent’s grandchildren, Charley A. Cheney, III, filed a petition to be named the provisional administrator of the estate and subsequently petitioned to consolidate estate funds and manage the decedent’s business. Wanda Cheney and Patsy Cheney Washington, the surviving children of the decedent, filed an opposition to Cheney, Ill’s petition, seeking to remove Cheney, III as provisional administrator and have Wanda appointed administratrix of the decedent’s estate. The trial court, after reasoning that neither Cheney, III nor Wanda had acted appropriately in opening the succession and managing the estate, ordered that neither party should serve as administrator and that both parties should submit a name to the court from which the court would select an administrator. Considering the administrator appointment claim was not raised properly before the trial court, we reverse and vacate the trial court’s judgment and remand the case with instructions.

I.

ISSUE

We shall consider whether the trial court erred by refusing to appoint either Charley Cheney, III or Wanda Cheney as the administrator to the succession, and instead, electing to appoint an administrator from the best qualified nominee of the two heirs.

J¿I-

FACTS AND PROCEDURAL HISTORY

The decedent, Charley A. Cheney, Sr., died intestate on December 8, 2011. His wife predeceased him, and he had five children:

(1) Charley A. Cheney, Jr., who predeceased the decedent leaving three surviving children, Charley A. Cheney, III, Charlene N. Cheney, and Catherine D. Cheney;
(2) Wanda Y. Cheney;
(8) Patsy A. Cheney Washington;
(4) Calvin Cheney, who predeceased the decedent leaving no heirs; and
(5) Ida B. Cheney, who died leaving no heirs.

After the decedent’s death, despite receiving consultation from an attorney regarding the. proper procedure for opening the succession, neither Wanda nor Patsy ever filed a petition to be appointed admin-istratrix and continued to manage the business -without any formal accounting of estate assets.

Frustrated by Wanda’s failure to open the succession for nearly a year, Cheney, III filed a petition to be provisional administrator, to which he was subsequently appointed. However, as a non-resident of Louisiana, he did not appoint a resident agent for service of process until February 28, 2013, which was well after the date of his appointment on November 29, 2012.

As the provisional administrator, Cheney; III filed a petition to consolidate the estate funds into an estate checking account. He also filed a petition to continue business and collect rental incomes of the decedent. In response, Wanda and Patsy filed an opposition to Cheney, Ill’s petition to continue the business. In their opposition, they sought the removal of Cheney, III as | .-¡provisional administrator on the grounds that he had applied to be provisional administrator only to gain access to the estate assets, that he did not inform the other heirs when he filed the petition to be appointed, and that he failed to file a descriptive list of estate assets or post security. The opposition also requested that Wanda be named administratrix of the estate as she was the best qualified heir given her extensive experience in helping manage and run the decedent’s business.

After reasoning that Cheney, III and Wanda could not properly serve as administrators, the trial court ordered each side to submit a name to the court from which the court would select the administrator of the estate. The court further ordered Wanda and Patsy to provide a detailed descriptive list and accounting of the estate’s assets within forty-five days from the date of the judgment. Wanda and Patsy now appeal the trial court’s judgment.

III.

STANDARD OF REVIEW

The decision to either remove or replace a succession representative is within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion. In re Succession of Bijeaux, 06-1256 (La.App. 3 Cir. 2/7/07), 948 So.2d 1222. “However, when one or more trial court legal errors interdict the fact-finding process ... the appellate court should make its own independent de novo review of the record[.]” Evans v. Lungrin, 97-0541, p. 5 (La.2/6/98), 708 So.2d 731, 735. More specifically, the appellate court is required “to render judgment on the record by applying the correct law[.]” Id. (citing Lasha v. Olin Corp., 625 So.2d 1002 (La.1993)).

JJV.

LAW AND DISCUSSION

The appellants’ primary complaint is that the trial court erred by not appointing Wanda administratrix of the decedent’s succession. However, from a procedural standpoint, the trial court actually erred by making any ruling on the administrator issue as it was never properly brought before the court. Louisiana Code of Civil Procedure Article 3096, in pertinent part, provides the applicable procedures for appointing a succession administrator:

At the hearing on the application for appointment as administrator, if no opposition thereto has been filed, the court shall appoint the applicant, unless he is disqualified under Article 3097.
If an opposition to the application for appointment has been filed prior to the hearing thereon, the court shall assign the opposition for trial. After this trial, the court shall appoint as administrator the qualified claimant having the highest priority of appointment.

Given that the appointment of the administrator is premised on a hearing regarding the application for appointment and an opportunity to file an opposition, the language of Article 3096 implies that one must first apply for appointment to initiate proceedings. This is a necessary procedural step to ensure the sanctity of the succession, given the increased duties and liabilities of an administrator as opposed to a provisional administrator.

Here, Cheney, III never petitioned to become administrator; rather, he only petitioned to consolidate estate funds and continue the decedent’s business in his capacity as provisional administrator. As such, Wanda and Patsy may not properly raise the administrator appointment issue for the first time via opposition and must file a formal petition in order to appoint Wanda administratrix. Since no | ^petition was ever filed in these proceedings, the court erred in issuing a judgment on this issue.

We note that even if a petition for appointment had properly been filed, and that petition had been opposed, the trial court did not properly appoint “the qualified claimant having the highest priority” in accordance with La.Code Civ.P. art. 3096. Louisiana Code of Civil Procedure Article 3098 states:

A. When the appointment as administrator or dative testamentary executor is claimed by more than one qualified person, except as otherwise provided by law, preference in the appointment shall be given by the court in the following order to:
(1) The best qualified among the surviving spouse, competent heirs or legatees, or the legal representatives of any incompetent heirs or legatees of the deceased.
(2) The best qualified of the nominees of the surviving spouse, of the competent heirs or legatees, or of the legal representatives of any incompetent heirs or legatees of the deceased.
(3) The best qualified of the creditors of the deceased or a creditor of the estate of the deceased, or a co-owner of immovable property with the deceased.

The trial court elected to choose an administrator from nominees of Cheney, III and Wanda, reasoning that Cheney, III was not best suited for , the position given his lack of business experience, and Wanda was not best suited given her disregard for opening the succession and lack of accounting and potential mingling of assets. However, as the election from nominees is second in priority, it is only an option to the trial court under Article 8098 if the competent heirs seeking appointment are not qualified under the law. The Louisiana Code of Civil Procedure does not provide any necessary qualifications to become administrator; rather, it only lists the following disqualifications under La. Code Civ.P. art. 3097:

|(jA. No person may be confirmed as testamentary executor, or appointed dative testamentary executor, provisional administrator, or administrator who is:
(1) Under eighteen years of age;
(2) Interdicted, or who, on contradictory hearing, is proved to be mentally incompetent;
(3) A convicted felon, under the laws of the United States or of any state or territory thereof;
(4) A nonresident of the state who has not appointed a resident agent for the service of process in all actions and proceedings with respect to the succession, and caused such appointment to be filed in the succession proceeding;
(5) A corporation not authorized to perform the duties of the office in this state; or
(6) A person who, on contradictory hearing, is proved to be unfit for appointment because of bad moral character.

Here, while Cheney, III may lack experience, he is still a qualified heir under the law as he is not subject to any disqualifications. The only argument Wanda and Patsy could potentially raise is that he never qualified as a provisional administrator given that he did not name a resident agent until after his appointment. While he may not have qualified as a provisional administrator, this issue is irrelevant as to whether he qualifies as an administrator, considering these are two separate appointments with different duties and liabilities. Furthermore, while Wanda failed to open the succession and potentially mingled funds without proper accounting, she still is a qualified claimant as her actions do not amount to “bad moral character” that would render her disqualified. See Succession of Browne, 244 La. 36, 150 So.2d 555 (1963). Since both heirs are qualified and have priority, the trial court should have appointed the best qualified heir between them |7to serve as administrator had the issue properly been raised before the trial court. While a determination of the best qualified claimant normally would be subject to a de novo review given the trial court’s legal error, Wanda and Patsy still failed to raise their claim for appointment of administratrix properly, and thus, we cannot issue a judgment on this point. As such, we reverse and vacate the trial court’s judgment regarding the appointment of an administrator. Furthermore, considering Wanda and Patsy were never appointed succession representatives, we reverse and vacate the trial court’s judgment that they be required to render a descriptive list and accounting of all estate assets as they have no obligation to perform these tasks under the law.

Beyond the appointment of Wanda as administratrix, the appellants’ opposition also sought the removal of Cheney, III as provisional administrator. Louisiana Code of Civil Procedure Article 3182 outlines the removal proceedings of a succession representative:

The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 8097(4), or has failed to give notice of his application for appointment when required under Article 3093.
The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.

The Official Revision Comments to Article 3182 further state:

(a) This article drops the requirement that a succession representative be removed only in an ordinary faction commenced by a petition and citation, and permits his removal in a summary proceeding commenced by a contradictory motion of an heir, creditor, or other interested person. Cf. Art. 1017 of the Code of Practice. If the succession representative has committed some act serious enough to justify a court in removing him, then he should be removed expeditiously.

Given that removal actions may be brought summarily, the trial court had authority to rule on appellants’ claim that Cheney, III be removed from his position as provisional administrator even though this claim was first raised via opposition. As the trial court’s judgment failed to address this issue, we remand the case to the trial court with instructions that it should only rule summarily on whether Cheney, III should be removed under La. Code Civ.P. art. 3182, and if not, whether he can continue the business of the decedent in his capacity as provisional administrator in accordance with La.Code Civ.P. art. 3224. The trial court is ordered to set a hearing on these issues within forty-five (45) days of remand.

V.

CONCLUSION

For the foregoing reasons, we reverse and vacate the trial court’s judgment and remand the case with instructions.

REVERSED AND VACATED. REMANDED WITH INSTRUCTIONS.

CONERY, J., concurs in the result and assigns reasons.

CONERY, J.,

concurs in the result for the following reasons.

Lin this case, a request for notice of application for appointment of administrator of the Succession of Charley A. Cheney, Sr. was timely and properly filed by Charley A. Cheney, III pursuant to La. Code Civ.P. arts. 3091 and 3092. He was entitled to notice should anyone apply to be appointed administrator. He was properly appointed provisional administrator and another heir, Wanda Cheney, later filed a motion to remove him as provisional administrator under La.Code Civ.P. art. 3182, and opposed his application to manage the business of the succession he had filed pursuant to La.Code Civ.P. arts. 3224-3225. Wanda also requested in her motion that she be appointed administra-trix. The majority held, and I agree, that Wanda had not filed a proper application to be appointed administratrix. Charley, III was entitled to notice and an opportunity to file an opposition to Wanda’s “application,” even assuming Wanda’s “application” for appointment as administratrix was properly filed. I agree with the majority that it was not.

Since no proper petition for application for appointment as adminisratrix was filed by Wanda with sufficient notice pursuant to La.Code Civ.P. art. 3094, I agree with the majority’s decision to reverse and vacate the trial court’s judgment holding that Wanda “should” not be appointed adminis-tratrix. That issue was not properly before the trial court.

12Since Charley, III has never applied to be appointed administrator, only provisional administrator, I would likewise agree with the majority to reverse that portion of the trial court’s judgment stating that Charley, III “should” not be appointed administrator.

The majority correctly finds removal of a succession representative, which would include provisional administrator, is governed by La.Code Civ.P. art. 3182. I also agree with the majority that the trial judge did not issue a ruling on Wanda’s motion to remove Charley, III as provisional administrator. I agree with the majority’s directive for the trial judge to decide this issue within forty-five days of the remand order. Succession of Armentor, 426 So.2d 1366 (La.App. 3 Cir.1983); Succession of Melton, 649 So.2d 759 (La.App. 3 Cir.1994); Kathryn Venturatos Lorio, 10 Louisiana Civil Law Treatise, Successions and Donations, § 15:6 (2d ed.2013).

However, the majority opinion mentions in dicta that Charley, III, a non-resident, did not appoint a resident agent for service of process until February 20, 2013, which was well after the date of his appointment on November 29, 2012. Since Charley, III did, in fact, appoint a resident agent, his “late” filing of such an appointment would no longer serve as grounds for disqualification under La.Code Civ.P. art. 3097(4), or as grounds for removal under La.Code Civ.P. art. 3182. Succession of Melton, 649 So.2d 759; Succession of Armentor, 426 So.2d 1366; Succession of Smith, 219 So.2d 291 (La.App. 3 Cir.1969).

Likewise, the trial judge made no ruling on Wanda’s motion opposing Charley, Ill’s petition for authority to manage the business of the estate of Charley, Sr., including the right to collect rents from the various pieces of real estate owned by the estate. An interim order permitting Charley, III to manage the business of |sthe estate was filed by Charley, III and signed by the trial judge on April 16, 2013, pursuant to La.Code Civ.P. art. 3224. That order was timely opposed by Wanda and a hearing was held on June 26, 2013. However, since such an interim order “shall expire at the end of forty-five days unless extended by the court” pursuant to La.Code Civ.P. art. 3225, on remand, the trial judge need not rule on this issue, but should make clear that the interim order is no longer in effect, and make such ruling on the necessity for and appointment of someone to manage the business of the estate as may properly be brought before the trial court.

Further, I disagree with the reasoning of that section of the majority opinion which states, ‘We note that even if a petition for appointment had properly been filed, and that petition has been opposed, the trial court did not properly appoint ‘the qualified claimant having the highest priority’ in accordance with La.Code Civ.P. art 3096.”

The wording of the trial court’s judgment on this issue stated only, “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that both parties should submit a name to the court from which the court will select an administrator/adminis-tratrix who will be paid out of the estate funds.” (Emphasis added.) That ruling apparently was made in accordance with La.Code Civ.P. art. 3098(A)(2). Again, the judgment is indeterminate due to the use of the word “should.” Further, the judgment does not set a time within which to submit such a name.

More importantly, however, since no proper application for appointment as ad-ministratrix was filed by Wanda and no application for appointment as administrator, was ever filed by Charley, III, either independently or in opposition to such a motion filed by Wanda, such an order is not only indeterminate, but pre-fmature.4 I concur in the result and would reverse that portion of the trial court’s judgment on that basis, and not on the dicta articulated by the majority on this issue.

I agree with the majority’s decision to vacate that portion of the trial court’s judgment ordering Wanda and Patsy to “provide a detailed descriptive list and accounting of all estate property and file that list into the record of this proceeding with supporting documentation within forty-five days from the date of the judgment.” Neither had filed a proper application to be appointed administratrix and such a ruling is premature.

On proper filing and setting of a motion and order to return succession property by the provisional administrator or duly appointed administrator/administratrix, that issue may then be ripe for decision by the trial court, at which time all property belonging to the succession may be ordered returned. Comberrel v. Comberrel, 12-1589 (La.App. 4 Cir. 6/12/13), 119 So.3d 897; In re Succession of Banks, 11-26 (La.App. 5 Cir. 6/29/11), 71 So.3d 1086.

I agree with the wording of the remand order, but, to the extent that Charley, Ill’s application to continue the business of the succession has expired under La.Code Civ.P. art. 3225, it would appear that the trial court must either extend the order or a new application must be filed.


text:
    STATE of Louisiana v. Anthony DAYE.
    No. 13-1456.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      J. Phillip Haney, District Attorney-16th Judicial District, New Iberia, LA, Angela B. Odinet, Assistant District Attorney-16th Judicial District St., Martinville, LA, for Plaintiff/Appellee-State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, Anthony Daye, Louisiana State Penitentiary, Angola, LA, for, Defendant/Appellant-Anthony Daye.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

| j Defendant, Anthony Daye, was convicted of possession of marijuana, second offense. As a fifth-felony offender, he was subject to a sentencing range of twenty years to life. The trial court sentenced Defendant to life imprisonment. Defendant appeals, contending that the trial court erred by imposing an excessive sentence in violation of the Louisiana Constitution and by denying his Motion to Reconsider Sentence. As we agree that the sentence was excessive, we reverse the trial court’s judgment and remand the case for resentencing.

I.

ISSUES

We shall consider whether the trial court erred by:

(1) imposing an excessive sentence in violation of La. Const, art. 1, § 20; and
(2) denying Defendant’s Motion to Reconsider Sentence.

II.

FACTS AND PROCEDURAL HISTORY

On August 10, 2010, Deputies Ben LaSalle and Wade Bergeron were following a vehicle when they saw the Defendant jump out of the vehicle and start running. Deputy LaSalle saw that the Defendant was running with his right hand underneath his shirt “as if he was concealing something.” Deputy Berger-on got out of the car and chased the Defendant as the Defendant ran through a garage. Deputy Bergeron saw the Defendant stop at a vehicle in the garage and appear to throw something underneath the vehicle. Deputy Ber-geron stopped at the vehicle while Deputy LaSalle continued to chase the Defendant. The Defendant was apprehended by two other agents in the area and was quickly arrested by Deputy LaSalle. Pursuant to a search incident to |2arrest, Deputy LaSalle found $1,551.00 in cash in the Defendant’s pocket.
According to Deputy LaSalle, the Defendant told him he wanted to go to the narcotics office because he could give them information. Sergeant Jason Co-meaux, one of the agents assisting at the scene, testified that the Defendant told them he wanted to talk to them about assisting in large-scale narcotics investigations.
Before transporting the Defendant to the narcotics office, Deputy LaSalle went to the garage where Deputy Ber-geron was waiting. Deputy Bergeron notified Deputy LaSalle that he found a bag containing suspected marijuana and a hand rolled marijuana cigarette in the same area Deputy Bergeron saw the Defendant throw something. Once the evidence was seized, the Defendant was transported to the narcotics office. After advising the Defendant of his rights, Deputy LaSalle asked the Defendant why he exited the vehicle and ran. The Defendant replied, “I had some weed and didn’t want to get caught with it. I knew ya’ll were going to stop us.” When Deputy LaSalle specifically asked the Defendant if the bag of marijuana and marijuana cigarette located in the carport were his, the Defendant answered, “Yes, that was for me.” As for the money found on the Defendant, Deputy LaSalle asked the Defendant if he had a job. The Defendant responded, “No, I just make a little hustle.” Deputy LaSalle testified that based on his knowledge and experience as a narcotics agent in Iberia Parish, the Defendant’s statement meant that he sold drugs. Deputy LaSalle also testified that the $1,551.00 in cash found in the Defendant’s pocket consisted of the following denominations: eleven one dollar bills; six five dollar bills; nineteen ten dollar bills; and sixty-six twenty dollar bills.

State v. Daye, 12-1469, p. 1 (La.App. 3 Cir. 6/5/13) (unpublished opinion).

A jury convicted Defendant of the following charges: guilty of the responsive verdict of possession of marijuana; guilty as charged of a transaction involving proceeds from drug offenses; and guilty as charged of possession of marijuana, second offense. A habitual offender hearing followed, where the trial court found Defendant to be a fifth-felony offender subject to a sentencing range of | ^twenty years to life under La.R.S. 15:529.1(A)(4)(a). Defendant’s prior felony offenses included three felony convictions in 2006 for: (1) Introduction of Contraband into a Penal Institution, a violation of La.R.S. 14:402; (2) Attempted Possession of a Firearm by a Convicted Felon, violations of La.R.S. 14:27 and La.R.S. 14:95.1; and (3) Aggravated Second Degree Battery, a violation of 14:34.7. Defendant also had two convictions in 1998 for: (1) Possession with Intent to Distribute Cocaine, a violation of La.R.S. 40:967(A)(2); and (2) Distribution of Cocaine, a violation of La.R.S. 40:967(A)(1). At the sentencing hearing, the trial court sentenced Defendant to life imprisonment, giving the following reasons:

The Court has reviewed the file concerning Mr. Daye and particularly finds that in this case that on July 27th of this year the Court heard a Habitual Offender Hearing and at that time found and ruled that the defendant is in fact a fifth felony offender and set this date as a sentencing hearing and a sentencing date. Having reviewed the evidence that was presented in the Habitual Offender proceeding as well as today’s proceeding and finding that Mr. Daye has a long history of violating the law, involvement with drugs, involvement with illegal weapons, [and] involvement with violent acts the Court finds that the only appropriate sentence is that Mr. Daye be sentenced to serve the rest of his natural life in prison with the Department of Safety and Corrections. It’s unfortunate that this happens. It’s unfortunate that Mr. Daye has chosen to live his life in this way, but that was his choice and has been his choice for quite some time.
The Court considers that any lesser sentence would deprecate the seriousness of the offense or offenses and will inform Mr. Daye that if he thinks anything has been done in violation of his rights that he has a right to file a Petition for Post-conviction Relief and if he wishes to do so he has two years from the date the judgment of the Court becomes final.

|4On initial appeal, this court determined that there was insufficient evidence to support a conviction for a transaction involving the proceeds from a drug offense. This court also vacated the responsive verdict of possession of marijuana on double jeopardy grounds because the same evidence was used to convict Defendant of both that charge and the second-offense possession. The life sentence was vacated as indeterminate, but the habitual offender adjudication was not set aside. Daye, 12-1469.

On remand, the trial court held a resen-tencing hearing for the Defendant and “reiterated all the comments that it made at the original sentencing” before again sentencing Defendant to life imprisonment. Defendant is now before this court, asserting two assignments of error: (1) that the sentence imposed was excessive, and (2) the trial court erred in denying his Motion to Reconsider Sentence.

III.

STANDARD OF REVIEW

The law is well-settled concerning the standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. [ aThe relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

IV.

LAW AND DISCUSSION

Defendant asserts that his life sentence was excessive and that the trial court erred in denying his Motion to Reconsider Sentence. More specifically, Defendant’s asserts that the trial court did not give sufficient consideration to the facts of this case when fashioning an appropriate sentence. While Defendant acknowledges that his criminal history includes a conviction for aggravated second degree battery, he argues that the present conviction, possession of marijuana, second offense, does not warrant life imprisonment in light of the amount seized. We agree.

A trial court’s lack of sufficient reasons during sentencing is not reviewable as a separate issue if it is not raised in the trial court. See State v. Semien, 06-841 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, writ denied, 07-448 (10/12/07), 965 So.2d 397. Of course, the trial court’s reasoning is subsumed as a sub-issue in the overall excessiveness analysis. See State v. Rubin, 04-1531 (La.App. 3 Cir. 4/6/05), 899 So.2d 180, writ denied, 05-1218 (La.12/16/05), 917 So.2d 1106. Defendant’s argument in his Motion to Reconsider Sentence was limited to a bare claim of exces-siveness. Therefore, he is similarly limited on | fiappeal. La.Code Crim.P. art. 881.1(E). See State v. Jones, 10-786 (La.App. 3 Cir. 4/27/11), 63 So.3d 330, writ denied, 11-1035 (La.11/4/11), 75 So.3d 923.

It is well settled that even when a sentence falls within the statutory sentencing range, it still may be excessive. State v. Forshee, 395 So.2d 742 (La.1981); State v. Sepulvado, 367 So.2d 762 (La.1979). In determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that we consider the following factors:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

While Defendant is a fifth-felony offender for sentencing purposes, and the trial court had discretion to impose a sentence between twenty years and life imprisonment, imposition of the maximum penalty within the sentencing range is excessive and disproportionate given the specific facts of this case. Defendant’s remaining conviction, possession of marijuana, second offense, is a relatively minor felony and only carries a penalty of a fine “not less than two hundred fifty |7dollars, nor more than two thousand dollars, [or imprisonment] with or without hard labor for not more than five years, or both.” La.R.S. 40:966(E)(2)(a). Furthermore, most of Defendant’s past crimes involved non-violent, drug-related offenses. While he was convicted of aggravated second degree battery when incarcerated as well as attempted possession of a firearm by a convicted felon, these isolated incidents do not indicate an extensive predisposition to violence, and the violent or non-violent nature of these past crimes alone cannot be the deciding factor in an excessive-sentence determination. See State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

The imposition of a life sentence for such a small underlying crime also poses a much greater harm than good for society, as such a sentence will only fuel Louisiana’s incarceration epidemic and lead to unnecessary economic and social burdens on inmates and taxpayers alike. See State v. Jackson, 11-923 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243, writ denied, 12-1540 (La.1/18/13), 107 So.3d 626 (Thibodeaux, J., dissenting). While sentence enhancement deters recidivist tendencies and encourages rehabilitation, these goals become tarnished when offenses deserving of a mere slap on the wrist are instead subjected to a “lock-em-up and throw away the key” philosophy. If the applicable enhancement statute provides a range of sentences for the trial court to consider, then the maximum sentence of life without parole should not be levied unless carefully articulated findings and reasons for sentencing clearly justify its imposition.

Furthermore, in comparing sentences for similar crimes, we note that there are no cases directly on point for reduction of a sentence within the sentencing range. However, cases involving reductions below sentencing ranges | sfor similarly-situated, multiple-felony offenders further indicate that Defendant’s sentence should be reduced.

In State v. Kennerson, 96-1518, pp. 22-23 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1382, this court found that the combined effect of individual sentences were disproportionate in light of the crimes committed. This court remanded for sentencing, reasoning that:

Despite the fact that the individual sentences appear to be legally sound, their combined effect is disproportionate to the crimes committed. The facts of the ease indicate that: the crimes were simple burglaries; the burglars did not try to enter the victims’ homes, and the burglars did not manifest a violent intent or act toward the victims. In addition, the value of the items taken from Mr. Bordelon’s truck is unclear, while the burglars took a tire and $75 worth of frozen meat from Mr. Guillory’s shed. Although the defendant is clearly a career thief and burglar, which we in no way intend to condone or minimize, he does not have a violent history. Thus, the record lacks evidence supporting the lower court’s characterization of the defendant as a “dangerous man.”

In State v. Combs, 02-1920 (La.App. 4 Cir. 5/21/03), 848 So.2d 672, the underlying conviction was for possession of cocaine, and the defendant was adjudicated a third-felony offender (the previous felonies were for possession of cocaine and forgery). He was subsequently sentenced to life imprisonment. The fourth circuit found the defendant’s sentence was excessive, as the defendant was thirty-two years of age, had a supportive family who wanted to help him, was not in possession of a weapon when arrested, was only a petty street drug pusher, and was a non-violent offender. Based on these facts, the appellate court found the life sentence was excessive and remanded for resentencing.

| ^Similarly, in State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957, writ denied, 03-3232 (La.6/4/04), 876 So.2d 73, the second circuit found the facts presented a downward departure from a mandatory life sentence where the defendant was convicted of first degree robbery, adjudicated a fourth-felony offender, and sentenced to life imprisonment. The court reduced the Defendant’s conviction to simple robbery, and he was resentenced to life imprisonment without benefits. On appeal, the second circuit concluded the defendant’s prior convictions did not reach a level of culpability and gravity warranting a life sentence and stated:

The supreme court in [State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672] made clear that the fact that defendant’s felonies are non-violent alone is not sufficient to override the legislatively designed sentences of the Habitual Offender Law. Johnson, 709 So.2d at 676. But, it did note that, “the classification of a defendant’s instant or prior offenses as non-violent should not be discounted.” Id. Three of defendant’s four felonies were non-violent. Even his fourth felony, while classified as a violent offense, involved no actual violence. Cf. State v. Hayes, [97-1526 (La.App. 1 Cir. 6/25/99), 739 So.2d 301, writ denied, 99-2136 (La.8/31/00), 764 So.2d 955], There is also no evidence in the record that defendant ever possessed a dangerous weapon, and Ms. Cone, the victim, testified that she never felt threatened.
Furthermore, this particular life imprisonment imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. State, v. Hayes, 739 So.2d at 303. As defendant ages, these costs will only increase due to the need for geriatric health treatments.
The defendant in this case obviously needs lengthy incarceration. We believe that a severe sentence in this case, for example, a sentence of not less than 20 years, in conformity with La. R.S. 15:529(A)(1)(c)(i), but not more 30 years at hard labor, would meet all of the societal goals of incarceration and be constitutional in this case.
|inFor all the reasons above, and after a review of the facts and circumstances of this particular defendant and the instant crime, we find clear and convincing evidence that this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. A sentence of life imprisonment for this defendant, on this record, is “disproportionate” to the harm done and shocks “one’s sense of justice.” State v. Lobato, [603 So.2d 739 (La.1992)]. Thus, we are unable to conclude that this life sentence is not excessive under the constitutional standard.

Id. at 964-65 (footnote omitted).

Considering the specific facts of this case along with the related jurisprudence, we find that Defendant’s life sentence is excessive and unconstitutional. While Defendant’s history of criminal conduct with some violent crimes still necessitates a sentence within the sentencing range, we find that a sentence lower than the maximum would best serve the societal goal of deterring recidivism for this type of offender while not placing an undue burden on the Defendant or the State. As such, we reverse the trial court’s imposition of a life sentence and remand this case for resentencing in accordance with this opinion.

V.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment and remand the case for resentencing.

REVERSED AND REMANDED.

CONERY, J., dissents and assigns reasons.

CONERY, J.,

dissenting.

hi agree that the life sentence imposed on this defendant is unconstitutionally excessive based on the facts in the record before us. Under the habitual offender law, however, the seriousness of the underlying felony is but one factor to consider.

Here, an experienced prosecutor, for whatever reason on that particular day, did not provide a sufficient evidentiary basis to thoroughly and adequately support or justify a life sentence without parole. In addition, an even more experienced and capable trial judge did not articulate and explain on the record at resentencing that he considered and applied all the sentencing guidelines set out in La.Code Crim.P. art. 894.1. Nor did he fully explain clearly why he chose to impose the maximum sentence instead of a lesser sentence within the twenty year to life sentencing range.

Where, as in this case, the underlying felony is relatively minor, it is especially important that the evidence presented must be thorough and complete and the trial judge’s reasons clear as to why the sentence imposed is appropriate for the particular defendant. On its face, a life sentence without parole, even though imposed pursuant to the habitual offender law for this fifth felony offender, [ ?is harsh and unconstitutionally excessive, especially considering that this defendant’s underlying conviction was for possessing a little over an ounce of marijuana as a second marijuana offender. I concur that the sentence must be reversed and the case remanded for resentencing.

I disagree with the majority’s directive that on remand the trial judge must impose a sentence “lower than the maximum.” The trial judge should have the discretion to impose a sentence within the sentencing range provided for by the legislature, twenty years to life without parole pursuant to La.R.S. 15:529.1(A)(4)(a) based on the evidence presented at resentencing.

Because one of the factors in this case is the relatively minor nature of the crime of possession of marijuana second, in order to withstand constitutional scrutiny, the sentence imposed on remand must be based on evidence that more completely and convincingly demonstrates why this defendant, for comprehensive and clearly articulated reasons, deserves the sentence the trial judge in his discretion may finally impose under the habitual offender law. On remand, the prosecutor, if he chooses to do so, should be given every opportunity to put on legally admissible and relevant evidence of the dangerousness of the defendant, including unadjudicated criminal charges and conduct, the aggravating circumstances of this crime, as well as factual evidence of all the underlying felony convictions upon which the habitual offender charge was based. On remand, the defendant should also be given every opportunity to put on mitigating evidence. The trial judge’s decision, as required by law, but especially in a case such as this, should be based on factual findings after a review of all the sentencing factors listed under La. Code Crim.P. art. 894.1, and should include clearly articulated reasons for the sentence eventually imposed within the legislatively approved ^sentencing range. See State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Todd, 03-1040, (La.App. 3 Cir. 2/4/04), 866 So.2d 1040, writ denied, 04-588 (La.7/2/04), 877 So.2d 143.

Under La.Code Crim.P. art. 894.1(B)(7), lack of prior criminal history can be considered as a mitigating factor. As a corollary, in State v. Brown, 410 So.2d 1043 (La.1982), the supreme court held that evidence of unadjudicated criminal conduct can be admissible at sentencing. In this ease, the state argued at sentencing that the defendant had been indicted by the grand jury for second degree murder, a factor that could be extremely relevant in sentencing. However, no evidence was introduced at sentencing on this issue and the trial judge said he did not consider that charge. Though evidence of unadju-dicated criminal conduct is admissible, in order to be useful and persuasive, a full factual basis for that conduct should be presented, and the trial judge should then closely evaluate and carefully examine the weight of the evidence on that issue. See Brown, 410 So.2d 1043; State v. J.S., 10-1233 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185; State v. Turner, 12-688 (La.App. 3 Cir. 12/5/12), 103 So.3d 1258; State v. Billingsley, 13-11 (La.App. 3 Cir. 10/9/13), 123 So.3d 336.

I would not impose limits on the trial judge’s discretion at resentencing. A life sentence may, indeed, be constitutionally permissible if based on legally admissible and sufficient evidence and clearly articulated findings and reasons.

      . Defendant possessed forty-five grams gross weight. The technician testified that the "[g]ross weight means it's the material and it also includes the weight of the bag as well.”