author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Anne GAUTHIER, Cherie Gauthier, and Kevin Lirette v. HARMONY CONSTRUCTION, LLC and Jason Kunstler.
    No. 13-CA-269.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      W. Jared Vincent, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Eric J. Derbes, III, Daniel J. Poolson, Jr. Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendants, Harmony Construction, LLC (“Harmony”) and Jason Kunstler (“Mr. Kunstler”) appeal the trial court’s grant of summary judgment against them. In their first assignment of error, defendants argue the trial court erred in failing to grant their motion to revoke Mr. Kun-stler’s admissions deemed admitted and then rendering summary judgment thereon. In their second assignment, defendants argue the trial court erred by failing to find that a genuine issue of material fact precluded summary judgment, and in rendering judgment in favor ABG Properties, LLC (“ABG”). For the following reasons, we affirm in part and reverse in part the trial court’s judgment, and remand this matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On June 29, 2010, plaintiffs, Anne Gau-thier, Cherie Gauthier, and Kevin Lirette, filed suit against defendants, seeking damages. Plaintiffs complained that they had contracted with defendants for work on their home at 1108 Falcon Road in Metair-ie, and that defendants had failed to properly complete that work.

IsPlaintiffs further complained they suffered damages resulting from this improper work, from the defendants’ failure to pay subcontractors, and from defendants’ misrepresentation that Harmony was a licensed residential contractor.

On September 27, 2010, plaintiffs propounded to defendants interrogatories, requests for production of documents, and requests for admission. On October 12, 2010, defendants’ counsel responded to the requests for admissions on behalf of Harmony, but did not respond to the discovery requests propounded to Mr. Kunstler. More than fifteen days passed without a response from Mr. Kunstler.

Thereafter, pursuant to Rule 10.1 of the Rules for Louisiana District Courts, the parties’ attorneys scheduled a discovery conference. This Rule 10.1 conference occurred on October 20, 2010. At this conference, the parties’ attorneys agreed to a two-week extension of time within which to provide discovery. Mr. Kunstler did not respond within this extended period.

On November 9, 2010, plaintiffs filed a motion to compel discovery, seeking answers to their requests for admissions. On January 14, 2011, the trial court held a hearing on this motion, granted it, and thereafter entered the parties’ consent judgment. In that judgment, the trial court ordered defendants to respond to the outstanding discovery requests no later than January 31, 2011.”

Mr. Kunstler did not respond to the requests for admissions by the trial court’s January 31, 2011 deadline. On February 10, 2011, the plaintiffs filed a motion to compel, for contempt, and for sanctions against defendants. In this motion, plaintiffs moved to compel defendants to respond to their discovery | requests. Plaintiffs also sought a contempt judgment and sanctions against defendants, for their failure to abide by the trial court’s January 14, 2011 judgment. Plaintiffs prayed for the trial court to enter a default judgment against defendants and assess defendants to pay all reasonable expenses, including attorney’s fees and court costs.

On April 25, 2011, Mr. Kunstler answered plaintiffs’ requests for admissions. This answer was given seven months after these requests for admissions were served on him and four days before the hearing on the plaintiffs’ motion for sanctions.

On April 29, 2011, the trial court heard plaintiffs’ motion for sanctions and thereafter granted it. As a sanction for defendants’ failure to comply with discovery deadlines, the trial court deemed admitted the requests for admissions propounded to Mr. Kunstler. The trial court confirmed this order in a written judgment on May 18, 2011.

On June 10, 2011, plaintiffs moved for leave of court to file a second amended petition. Attached to this motion was a copy of their proposed petition. The trial court granted this motion on June 15, 2011, and the plaintiffs filed their second amended petition on June 20, 2011. This amended petition added ABG as a plaintiff.

Thereafter, Mr. Kunstler filed a motion to revoke deemed admissions, seeking to have the trial court reverse its May 13, 2011 order deeming admitted plaintiffs’ requests for admissions to Mr. Kunstler. The trial court heard this motion on August 26, 2011 and denied it. The trial court confirmed this ruling by a written judgment it issued on September 13, 2011.

|fiOn January 25, 2012, plaintiffs filed a motion for summary judgment against defendants. In support of this motion, plaintiffs filed a statement of uncontested material facts and essential legal elements, a memorandum in support, and a reply memorandum in support. In those memo-randa, plaintiffs argued that Harmony was liable for breach of its obligations owed pursuant to its contracts because it failed to properly complete the renovations to the property and because plaintiffs were forced to pay unexpected amounts to subcontractors over and beyond the amount included in the contracts because Harmony failed to pay its subcontractors. Plaintiffs also argued that Mr. Kunstler misrepresented that Harmony was both a commercial and residential contractor.

On April 27, 2012, the trial court held a hearing on the motion for summary judgment and admitted evidence into the record. On June 21, 2012, the trial court issued its judgment granting plaintiffs’ motion for summary judgment. In it, the court stated that the defendants failed to set forth any evidence to contradict plaintiffs motion, but rather relied only on conclusory allegations.

Plaintiffs later filed an unopposed motion to amend the trial court’s June 21, 2012 judgment. This motion sought an amended judgment to specify the amount of plaintiffs’ damages and to exclude a party which had inadvertently been added to the judgment. After a hearing on this motion on September 28, 2012, the trial court granted plaintiffs’ motion to amend the judgment. The trial court rendered its amended judgment on October 29, 2012. From this judgment, defendants now appeal.

\ «DISCUSSION

In this appeal, defendants assign two errors. First, defendants argue the trial court erred in not granting their motion to revoke admissions deemed admitted and then rendering summary judgment thereon. Second, defendants argue that the trial court committed legal error in failing to find a genuine issue of material fact and rendering summary judgment in favor of ABG. Defendants contend that the summary judgment in favor of ABG is improper because it is not a party to the litigation.

Assignment One

With regard to defendants’ first assignment of error, we find that both the Louisiana Code of Civil Procedure and the court’s inherent authority to sanction litigants permitted the trial court to deny Mr. Kunstler’s motion to revoke his admissions deemed admitted.

First, the Louisiana Code of Civil Procedure allows a party to serve upon any other party a written request for the admission of the truth of any relevant matters of fact. La. C.C.P. art. 1466.

Failure of the party to whom the request is directed to answer or object to the request within fifteen days of service conclusively establishes that fact. La. C.C.P. arts. 1467 and 1468. Upon motion, the court may permit the admission to be withdrawn or amended when presentation of the merits will be subserved thereby and no prejudice will result to the party who obtained the admission. La. C.C.P. art. 1468.

State, Dep’t ofSoc. Servs. v. McCorkle, 97-13 (La.App. 5 Cir. 4/29/97), 694 So.2d 1077, 1079, writ denied, 97-1399 (La.9/5/97), 700 So.2d 517.

The language of article 1467 is clear; the matter is admitted unless a written answer or objection is served on the party making the request within the specified |7time after service of the request. Vardaman v. Baker Center, Inc., 96-2611 (La-App. 1 Cir. 3/13/98), 711 So.2d 727, 733. Generally, the courts have given full effect to articles 1467 and 1468 when there has been a total lack of response to requests for admissions. Id. at 732.

However, article 1467 is not a trap set for the litigant; it provides many options for the party on whom the request is served. For example, if the party cannot answer within the specified time, the court may allow additional time. See La. C.C.P. art. 1467; Vardaman, 711 So.2d at 733. Several Louisiana courts have allowed late-filed denials to requests for admissions to constitute requests for withdrawal of those admissions, even if the responses were provided extremely late and were not presented to the court by a motion to withdraw or amend the admissions. Id. at 732. Furthermore, this Court has found that these articles should not be applied automatically when the merits of an action would be served by allowing an untimely answer to constitute an intent to withdraw the admission. State, Dep’t of Soc. Servs., supra, (citing Hoskins v. Caplis, 431 So.2d 846 (LaApp. 2 Cir.1983)).

Here, Mr. Kunstler did not respond to the requests for admission until April 25, 2011. This response came seven months after the plaintiffs propounded the requests to Mr. Kunstler. Because this response came after the fifteen day period provided for in La. C.C.P. art. 1467, the trial court was permitted by the Code of Civil Procedure to deem these requests for admissions admitted.

Second, the trial court deemed these requests for admissions admitted as a sanction. We recognize that the trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion. Bravo v. Borden, 07-380 (LaApp. 5 Cir. 12/27/07), 975 So.2d 36, 39 (citing Hutchinson v. Westport Ins. Corp., 04-1592 (La.11/8/04), 886 So.2d 438).

Here, Mr. Kunstler did not respond to the requests for admissions within the fifteen day time period as required by La. C.C.P. art. 1467; he did not respond after attempts to resolve the dispute were made by his and the plaintiffs’ attorneys pursuant to a Rule 10.1 conference; and he did not respond to these requests for admissions within the extended time period for response set by the court’s January 14, 2011 judgment. Mr. Kunstler only responded to plaintiffs’ requests for admissions four days before the scheduled hearing on plaintiffs’ motion to compel, for contempt, and for sanctions. Under these circumstances, we find that the trial court acted within its sound discretion in sanctioning Mr. Kunstler and then later denying his motion to revoke his admissions deemed admitted.

For these reasons, we find that the trial court did not err in its judgment deeming plaintiffs’ request for admissions to Mr. Kunstler admitted. We will address the summary judgment issue on its merits later in this opinion.

Assignment Two

In their second assignment, defendants argue that the trial court “committed legal error in failing to find a genuine issue of material fact and rendering Summary Judgment in favor of ABG [Properties], LLC, a non-party to [this] litigation.” Appellants make three arguments in support of this assignment of error.

First, defendants argue that “[s]ummary judgment in favor of ABG should be reversed and remanded” because ABG “was not a party prior to the second amending petition being filed” and “ABG is still not a party in this litigation.”

As an initial matter, after examining the record, we find no evidence that appellants raised or submitted this issue to the trial court. Under Rule 1-3 of the |9Uniform Rules of Louisiana Courts of Appeal, this Court reviews only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. While typically defendants’ failure to raise this issue at the trial court would preclude review of this issue on appeal, because this argument raises jurisdictional concerns, we address it on the merits.

The record reveals that on June 10, 2011, plaintiffs filed a motion for leave to file a second amended petition, attaching as an exhibit, their proposed second amended petition. The first paragraph of the second amended petition stated, in pertinent part, that “Made Petitioners herein are: A. Anne Gauthier ...; B. Cherie Gauthier ..:; C. Kevin Lirette ...; D. ABG Properties, L.L.C. (“ABG Properties”).” Plaintiffs claimed in that motion that defendants consented to their motion for leave.

On June 15, 2011, the trial court granted the plaintiffs’ motion for leave. Plaintiffs filed their proposed second amended petition on June 15, 2011. The second amended petition contained the above text adding ABG as a plaintiff. On July 13, 2011, defendants jointly filed an answer to plaintiffs’ second amended petition. Defendants did not object in this answer to the addition of ABG as a plaintiff.

On the record before us, we find that ABG was validly added as a party to this suit by the plaintiffs’ second amended petition. Therefore, defendants’ first argument is without merit.

Next, defendants argue that the admissions relied upon by the trial court were propounded by improper parties or parties whose standing was never properly 1 mpled. Defendants contend that the plaintiffs who propounded the interrogatories were improper parties because those plaintiffs did not own the home on which the work contracted for was to be performed. Defendants take the position that only the home’s owner, ABG, had a right of action. This argument is also without merit.

The record reflects that Kevin Lirette and Cherie Gauthier signed contracts with Harmony for work on the property. We also find evidence in the record, in the form of an act of sale, that this property was owned by ABG, an organization of which Anne Gauthier was a member and a manager. Appellants have entered no evidence into the record to dispute these facts.

It is well established that parties to a valid contract, have a right of action to enforce that contract. La. C.C. art. 2769 (“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”); Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267 (La.10/25/11), 79 So.3d 246, 282, reh’g denied (Jan. 13, 2012) (A contract between a land’s lessee and an oil company for the cleaning and storage of pipes on the land, which allegedly polluted and damaged the land, created personal rights between the parties to the contract, not real rights that followed the land.); Thorn v. Caskey, 32, 310 (La.App. 2 Cir. 9/22/99), 745 So.2d 653, 658 (Where a home builder abandons construction of the home and fails to fulfill his obligations under the contract, he may be found liable in an action for breach of contract. Further, where a building contractor, through his own negligence, is unable to complete the contract and thereupon abandons it, he is liable for the resulting loss, including the amount reasonably expended in minimizing such loss.).

lnOn the record before us, we find that the plaintiffs here each had a right of action in this matter because of the personal rights created by their contract for work on the home. Therefore, each plaintiff was permitted to propound discovery, such as the requests for admissions at issue, to Mr. Kunstler.

Furthermore, even if one of the plaintiffs propounding the discovery was an improper party, we recognize that, “[a]n admission made by a party is not limited to the party who requested the admission. Vardaman, supra at 731 (citing, Smith v. Cumis Ins. Society, Inc., 417 So.2d 1361, 1362 (La.App. 4 Cir.1982)). Accordingly, an admission that is the result of one party’s request for admissions may inure to the benefit of other parties to the same litigation.” On these bases, we find defendants’ second argument to be without merit.

Finally, defendants argue that the trial court erred in failing to find that a genuine issue of material fact is created by the plaintiffs’ second amended petition “as to which party, if any was lawfully represented by the alleged agents.” Defendants contend that the issue of agency is a genuine issue of material fact in dispute because the plaintiffs’ second amended petition alleges a different agency relationship than the plaintiffs’ previous petitions.

Under Louisiana law, the mover on a motion for summary judgment bears the burden of proof that there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966; Wright v. SCC Serv. Solutions, Inc., 07-219 (La-App. 5 Cir. 9/25/07), 968 So.2d 759, 761. If the movant meets this initial burden, the burden then shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Flowers v. WalMart Stores, Inc., 12-140 (La.App. 5 Cir. 7/31/12), 99 So.3d 696, 699. Thereafter, if the adverse party fails |12to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id.

We apply the de novo standard of review in reviewing a district court judgment on a motion for summary judgment. Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La. App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975 (citation omitted). We use “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Id.

On the issued disputed here, we recognize that:

An agency relationship is never presumed. In Louisiana an agency relationship is created by either express appointment of a mandatory under LSA-C.C. art. 2985, or by implied appointment arising from apparent authority. Therefore, an agent’s authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct.

St. Pierre v. Louisiana S.W. Transp., Inc., 08-532 (La.App. 5 Cir. 5/12/09), 14 So.3d 593, n. 5 (quoting Duplessis Cadillac, Inc. v. Creative Credit Servs., Inc., 564 So.2d 336, 338-39 (La.Ct.App.1990).)

La. C.C.P. art. 966(B)(2), in pertinent part, provides that the trial court shall grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law....” Regarding the requirements for affidavits, La. C.C.P. art. 967 provides that it is insufficient for an affiant to merely declare he has personal knowledge of a fact. The affidavit must affirmatively establish that the affiant is competent to testify to the matter stated by a factual averment showing how he came by such knowledge. La. C.C.P. art. 967(A).

When a motion for summary judgment is made and supported [by an affidavit ... ], an adverse party may not rest on the mere allegations or 11sdenials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

La. C.C.P. art. 967(B).

Here, the record reflects that Kevin Lir-ette swore an affidavit stating that he signed both contracts with Harmony as an agent on behalf of Anne Gauthier and ABG. Further, Mr. Lirette’s personal knowledge of these underlying facts is supported by the other allegations of his affidavit, by the contracts he signed with Harmony, and by his live testimony on August 26, 2011, which was entered into the record at the hearing on plaintiffs’ motion for summary judgment. In his live testimony, Kevin Lirette stated that he and his wife, Cherie Gauthier, live in the home, and that ABG owned the home. He further testified that he and his wife hired Harmony to do work on their home. In contrast, defendants submitted no evidence on the issue of whether agency was validly established.

Based on the plaintiffs’ unrefuted evidence of an agency relationship, and because variation between amended petitions and earlier petitions does not itself create a genuine issue of material fact, we find this argument to be without merit.

On the Merits of Plaintiffs Motion for Partial Summary Judgment

Defendants argue the trial court erred in deeming plaintiffs’ request for admissions admitted and thereafter granting the motion for summary judgment on the merits. Our review of the record reveals that the trial court correctly granted summary judgment against defendant, Harmony. However, material issues of fact exist which preclude summary judgment against Mr. Kunstler personally.

In support of their claim against Harmony for breach of contract and damages, plaintiffs offered into the record: their contracts with Harmony; Kevin Lirette’s affidavit and the testimony describing both how Harmony’s work was 114improper and incomplete, and how he and Cherie Gauthier were forced to pay various subcontractors to complete work on the home when Harmony should have paid those subcontractors. Additionally, plaintiffs introduced into evidence multiple authenticated documents showing the cost of Harmony’s breach of contract and failure to properly complete the contracted-for work. We find that this unrefuted evidence sufficiently supports both the trial court’s grant of summary judgment against Harmony for its breach of contract and the damages resulting therefrom, and its judgment against Harmony in the amount of $157,546.30.

On plaintiffs’ fraud claim however, we find that the trial court incorrectly granted summary judgment against defendants. Plaintiffs allege defendants defrauded them when they contracted with Harmony, to their detriment, after reasonably relying on defendants’ misrepresentation that Harmony was a licensed residential contractor. In opposition, defendants argue they did not misrepresent that Harmony was a licensed residential contractor. They argue Harmony did not require a residential contractor’s license because it held a general contractor’s license.

As to defendants’ argument, while the record shows that Harmony held a Louisiana license for Building Construction, there is no evidence that Harmony had a separate sub-classification license in Residential Building Construction.

11sLouisiana Revised Statutes, Title 37 “Professions and Occupations” Chapter 24 “Contractors” governs Louisiana contractors. Contractors are required by La. R.S. 37:2160 to be properly licensed in order to perform work. La. R.S. 37:2156.1 states that all persons who desire to become licensed shall apply and state the classification of work the applicant desires to perform from a list of major classifications. La. R.S. 37:2156.2 contains the major license category classifications of: (I) Building construction; (II) Highway, street and bridge construction; (III) Heavy construction; (IV) Municipal and public works construction; (V) Electrical work; (VI) Mechanical work; (VII) Hazardous Materials; (VIII) Plumbing; and (IX) Specialty classifications. Within each of these classifications, La. R.S. 37:2156.2 provides subclassifications in which a specialty contractor may obtain a license. Under La. R.S. 37:2156.2, “Residential construction” is the eighteenth specialty subclassification of “Building Construction.” There is no separate “Home Improvement Contractor” specialty subclassi-fication within La. R.S. 37:2156.2. Home Improvement Contractors are governed by Chapter 24, Part II.

La. R.S. 37:2165 establishes the Residential Building Contractors Subcommittee which has the authority to issue licenses. La. R.S. 37:2167(A) states, “[n]o person shall work as a residential building contractor ... unless he holds an active license in accordance with the provisions of this Chapter.” La. R.S. 37:2150.1(11) defines “Residential Building Contractor” as an entity “who constructs a fixed building or structure for sale for use by another as a residence” or performs home improvement contracting, when the cost of the undertaking exceeds $75,000.00.

| ^Revised Statute, Title 37, Chapter 24, Part II. “Home Improvement Contracting” addresses residential renovation work. La. R.S. 37:2175.2 requires the “Home Improvement Contractor” to obtain a “certificate of registration” from the Residential Contractors Subcommittee of the State Licensing Board of Contractors and to obtain a “residential contractor’s license” before bidding or entering into any contracts in excess of $75,000.00. However, La. R.S. 37:2175.5 exempts from both of these requirements “(3) Persons licensed as a contractor, subcontractor, or residential building contractor pursuant to Chapter 24 of this title.”

Harmony’s original “Remodeling Agreement” with Kevin Lirette and Cherie Gau-thier described activities in the “Scope of Work” section which are clearly within the ambit of a Home Improvement Contract as defined in La. R.S. 37:2150.1(7) and (8). The original contract price was $40,207.06, well below the $75,000.00 threshold which would require a Residential Builder license.

Furthermore, because Harmony had a building construction license, it was exempted by La. R.S. 37:2175.5 from both the registration and residential building contractor license requirements of La. R.S. 37:2175.2.

La. R.S. 37:2167 states, “[n]o person shall work as a residential building contractor, as defined in this Chapter, in this state unless he holds an active license in accordance with the provisions of this Chapter.” However, Harmony did not violate this prohibition because it did not perform new residential construction such that La. R.S. 37:2150.1(11) would define it as doing the work of a “Residential building contractor.” Rather, as defined in La. R.S. 37:2150.1(7) and (8), Harmony was working as a “Home improvement contractor.” Therefore, Harmony was properly licensed to do the work it contracted to perform under the 117law governing its li-censure requirements, Chapter 24, Part II “Home Improvement Contracting.” La. R.S. 37:2175.1 et seq.

As to plaintiffs’ argument on fraud, we recognize that, “[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” La. C.C. art.1953. “Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations.” La. C.C. art.1954; See also Connell v. Davis, 06-9 (La.App. 5 Cir. 10/17/06), 940 So.2d 195, 206, writ denied, 06-2810 (La.1/26/07), 948 So.2d 175, and, 06-2839 (La.1/26/07), 948 So.2d 178.

“Error induced by fraud need not concern the cause of the obligation to vitiate consent, but it must concern a circumstance that has substantially influenced that consent.” La. C.C. art.1955. “Fraud committed by a third person vitiates the consent of a contracting party if the other party knew or should have known of the fraud.” La. C.C. art.1956. “Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence.” La. C.C. art.1957.

Here, in support of their fraud claim against Harmony, plaintiffs offered into evidence a newspaper advertisement in which Harmony described itself as:

Residential & Commercial

General Contractors

LA LIC # 44764.

Harmony’s newspaper advertisement also promised a “Seven Point Commitment to Excellence Agreement” of which point six was “Be fully licensed and insured.” Plaintiffs also offered into evidence the affidavit and testimony of Kevin Lirette | isclaiming that Harmony, and its employee Mr. Kunstler, had represented that Harmony held a residential contractor’s license and that he and the other plaintiffs would not have contracted with Harmony had they known that Harmony did not hold a residential contractor’s license.

In opposition, defendants introduced their response to plaintiffs’ statement of uncontested material facts. In that response, defendants denied the plaintiffs’ claims, including plaintiffs’ allegations and facts supporting them fraud claim. This response however was unsworn by either Mr. Kunstler or a representative of Harmony; therefore, it cannot serve to rebut the evidence plaintiffs submitted into the record. See Marino v. Parish of St. Charles, 09-197 (LaApp. 5 Cir. 10/27/09), 27 So.3d 926, 930 (“La. C.C.P. arts. 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment.”).

In support of plaintiffs’ fraud claim against Mr. Kunstler personally, in addition to the above evidence, the trial court had for its consideration the deemed admissions of Mr. Kunstler. In relevant part, these admissions stated that Mr. Kunstler was an employee of Harmony; that Mr. Kunstler “represented to Plaintiffs that [Harmony] was a licensed residential contractor during the duration of the project located at 1108 Falcon Road, Metairie, Louisiana;” that Harmony “was not a licensed residential contractor from June 2008 through the present;” that “none of the correspondence provided to Plaintiffs by [Mr. Kunstler] indicated that [Harmony] was not a licensed residential contractor;” and that at the time Mr. Kun-stler “communicated with Plaintiffs regarding retention of [Harmony] for | mhome improvement work, [Mr. Kunstler was] aware that [Harmony] was not a licensed residential contractor.”

Considering all of the evidence on the record, we agree that plaintiffs showed that defendants misrepresented that Harmony held a residential contractor’s license, when Harmony did not. We also find that the unrefuted evidence shows that plaintiffs relied on this misrepresentation when choosing to contract with Harmony for work on the home.

These findings alone however, are insufficient to support the trial court’s grant of summary judgment against defendants on plaintiffs’ fraud claim. As stated above, “[f]raud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill....” La. C.C. art.1954. Harmony had the state licensing appropriate to its home improvement work on the Falcon Lane residence. While its license was for building construction without the separate residential contractor sub-designation, this was not separately required for the work proposed. Furthermore, a trier of fact could find that the advertisement, wherein Harmony stated both that it uses “Residential and Commercial Contractor” license number 44764 and that it was “fully licensed and insured,” was not in and of itself misleading.

Had plaintiffs desired more information, plaintiffs could have easily ascertained more information regarding what licenses Harmony maintained. Harmony indeed was properly licensed and had, in the advertisement, provided its license number. Therefore, material issues of fact exist which prevent summary judgment as to the plaintiffs’ fraud claims against the defendants.

J^CONCLUSION

For the foregoing reasons, we find that Harmony breached its contracts with plaintiffs and caused them damages. We therefore affirm the trial court’s judgment against Harmony in the amount of $157,546.30. However, we reverse the trial court’s judgment to the extent that it granted summary judgment on plaintiffs’ fraud claims against defendants. Because plaintiffs’ fraud claim was the only basis for holding Mr. Kunstler liable in solido with Harmony for $157,546.30, we reverse the trial court’s granting of summary judgment to the extent that it deems Mr. Kun-stler personally liable. We remand this matter for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      . Within this opinion, we have omitted discussion of Gemini Insurance's involvement in this litigation as they have been dismissed from this litigation with prejudice.

      . Also on January 14, 2011, the trial court heard Mr. Kunstler’s previously filed exceptions of improper joinder and no cause of action. The trial court granted these exceptions and gave plaintiffs leave to amend their petition. On January 28, 2011, plaintiffs filed their first amended petition. This petition alleged, inter alia, ''[p]ursuant to LA. R.S. § 12:1320(D), Kunstler is personally liable for his misrepresentations that Harmony Construction was a licensed residential contractor. Such misrepresentations constitute fraud under Louisiana law.”

      . On this date, January 31, 2011, Harmony Construction filed a motion to set aside the consent judgment, alleging that new discovery deadlines should be set given the new allegations in plaintiffs' first amended petition. This motion was not filed on behalf of Mr. Kunstler.

      .Mr. Kunstler moved to take a supervisory writ on this judgment on September 30, 2011. The trial court however denied this motion as untimely on October 11, 2011. The trial court reasoned that more than thirty days had passed since it rendered an oral judgment denying the motion to revoke admissions deemed admitted at the August 26, 2011 hearing. Mr. Kunstler sought appellate review of this decision through a supervisory writ application to this Court bearing docket number 1 l-C-997. This court denied that writ, however, because Mr. Kunstler had failed to attach a copy of the trial court's order of which he complained.

      . The trial court apparently inadvertently rendered its grant of summary judgment against Gemini Insurance. The plaintiffs had not moved for summary judgment against Gemini Insurance.

      . At the outset, we recognize that the trial court only deemed admitted the request for admissions to Mr. Kunstler, not the request for admissions to Harmony. We further recognize that in rendering its judgment, the trial court did not explicitly state that it relied on Mr. Kunstler’s deemed admissions when making its determination. Nevertheless, we address the merits of this assignment of error.

      . In this appeal, appellants contend the plaintiffs' second amended petition “does not make ABG a party-plaintiff [ ... but rather that i]t simply alleges incorrectly that ABG had [... ] prior pleadings[ ... ] filed on its behalf.” This assertion ignores the above quoted language and is incorrect.

      . The trial court’s award of this amount is supported by the transcript from the hearing on August 26, 2011, which was introduced into evidence in support of plaintiffs' motion for summary judgment. That transcript reflects the following exchange between plaintiffs' counsel and Kevin Lirette:
      Q ... Exhibit 5 What is that?
      A This is a comprehensive spreadsheet that shows all payments that had been made to Harmony Construction.
      Q Does it also show the amounts you paid to additional contractors to fix the work?
      A Yes.
      Q Okay. And was there additional work that has not been done that you — for which you paid Harmony?
      A Yes. There is.
      Q And how much is that damage?
      A It's about $9,000.

      . La. R.S. 37:2150.1(7) defines "Home improvement contracting" as “the reconstruction, alteration, renovation, repair, modernization, conversion, improvement, removal, or demolition, or the construction of an addition to any pre-existing owner occupied building which building is used or designed to be used as a residence or dwelling unit, or to structures which are adjacent to such residence or building. ‘Home improvement contracting’ shall not include services rendered gratuitously-”

      . As to Mr. Kunstler's admissions, he represented that Harmony was a licensed residential contractor.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joshua JOHNSON.
    No. 13-KA-75.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Jody Fortunato, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Mary Constance Hanes, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

^Defendant, Joshua Johnson, has appealed his convictions of simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2, and forgery, in violation of La. R.S. 14:72. For the reasons that follow, we vacate defendant’s sentences and remand the matter to the trial court for further proceedings.

PROCEDURAL BACKGROUND

This matter was tried on October 15 and 16, 2012. At the conclusion of the trial, the jury returned unanimous verdicts finding defendant guilty as charged on both counts. On October 30, 2012, defendant filed a motion for an appeal, which the trial court granted on October 31, 2012. On November 8, 2012, defendant filed a motion for a new trial, which the trial court denied that same day. Further on November 8, 2012, the trial court sentenced defendant to ten years imprisonment at hard labor on the burglary conviction, and ten years imprisonment at hard labor on the forgery conviction, to run concurrently. Also on November 8, 2012, the State filed a multiple offender bill of information against defendant, alleging him to be a | .¡second felony offender. On November 13, 2012, the trial court adjudicated defendant to be a second felony offender, vacated the original sentence imposed on the simple burglary conviction, and imposed an enhanced sentence on defendant of twenty-four years imprisonment at hard labor without the benefit of probation or suspension of sentence. On November 13, 2012, defendant filed a motion to reconsider sentence. The record does not reflect that defendant’s motion to reconsider sentence was ruled on by the trial court.

DISCUSSION OF PROCEDURAL ISSUES

Pursuant to La.C.Cr.P. art. 916, a trial court is divested of jurisdiction upon the granting of a defendant’s motion for an appeal. State v. Lampkin, 12-391 (La.App. 5 Cir. 5/16/13), 119 So.3d 158, 162; State v. Sims, 09-509 (La.App. 5 Cir. 2/12/10), 33 So.3d 340, 343, writ denied, 10-0596 (La.10/8/10), 46 So.3d 1264. Once the trial court is divested of jurisdiction, it may take only certain specified actions, none of which include ruling on a motion for a new trial or imposing sentence (except for imposing sentence pursuant to a conviction under the Habitual Offender Law as set forth in La. R.S. 15:529.1.) See La.C.Cr.P. art. 916; accord, State v. Brown, 451 So.2d 1074, 1078 (La.1984) (holding that once a case is appealed, the trial court is without jurisdiction to entertain a motion for a new trial unless the case is remanded to that court for that purpose). Thus, it is clear that upon the granting of defendant’s motion for an appeal in the present case on |4October 31, 2012, the trial court was divested of jurisdiction to subsequently sentence defendant or to rule on defendant’s subsequently filed motion for a new trial.

Although the trial court was divested of jurisdiction when it granted defendant’s motion for an appeal on October 31, 2012, a premature appeal need not always be dismissed when a sentence is imposed after the defendant’s motion for an appeal has been filed. This Court has found harmless a trial court’s imposition of sentence after having been divested of jurisdiction. In State v. Lampkin, supra, although the defendant’s motion for appeal was filed and granted before he was sentenced, this Court chose not to dismiss the defendant’s appeal “as this would only result in a delay of defendant’s right to appellate review.” See also State v. Simms, 03-1459 (La.App. 5 Cir. 12/28/04), 892 So.2d 111, 114, n. 1; State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, 675; State v. Conrad, 620 So.2d 366, 368, n. 1 (La.App. 5 Cir.1993), writ granted, case remanded, 625 So.2d 158 (La.1993); State v. Brooks, 93-1767 (La. App. 4 Cir. 2/25/94), 633 So.2d 816, 818, writ denied, 94-1939 (La.9/3/96), 678 So.2d 548 (choosing not to dismiss the appeal since it would “result in a delay of the appellate process, and hinder [the] defendant’s right to appeal.”).

Additionally, the Fourth Circuit has found harmless the trial court’s denial of a motion for a new trial after having been divested of jurisdiction under specific circumstances. In State v. Robinson, 98-0005 (La.App. 4 Cir. 9/29/99), 743 So.2d 814, 815-16, the trial court denied the defendant’s motion for a new trial which was filed after he was sentenced and after his motion for an appeal was granted. Despite the Supreme Court’s ruling in Brown, supra, the Fourth Circuit in | (Robinson found that although the trial court erred in ruling on the motion for a new trial, because the defendant did not raise the denial of his motion for a new trial on appeal, “any error with respect to the timing of the motion and its denial is harmless.” Robinson, 743 So.2d at 816.

Upon review, we find that the present case is distinguishable from the aforementioned cases. Lampkin, Simms, Washington, Conrad, and Brooks involved imposition of sentences after the trial court was divested of jurisdiction, rather than ruling on a motion for a new trial. Further, in Robinson, although the trial court ruled on the defendant’s motion for a new trial after it was divested of jurisdiction, this error was found to be harmless since the defendant did not raise the denial of his motion on appeal. In the present case, the trial court ruled on defendant’s motion for a new trial after it was divested of jurisdiction; however, unlike Robinson, one of the issues raised by defendant in his motion for a new trial was also raised by defendant on appeal.

There is jurisprudence that holds an untimely-filed motion for an appeal, i.e., filed before sentencing, is “cured” when the motion is subsequently granted after sentencing. See State v. Enclard, 03-283 (La.App. 5 Cir. 6/19/03), 850 So.2d 845, 848, n. 3 (finding the defendant’s prematurely filed motion for an appeal was cured when his appeal was granted after he was sentenced); State v. Hayes, 01-736, (La. App. 5 Cir. 12/26/01), 806 So.2d 816, 818, n. 2, writ denied, 02-0263 (La.10/25/02), 827 So.2d 1169 (same). In these cases, the untimeliness of the | ndefendant’s motion for an appeal was an error attributable to the defendant. In such cases, the trial court “cures” this defect by granting the motion after sentencing the defendant. See Enclard, Hayes, supra. The trial court may take this action because it still has jurisdiction: since it has not granted the motion for appeal, it has not been divested of jurisdiction.

Conversely, in eases where an appeal was prematurely filed and granted, the error is not solely attributable to the defendant. The defendant errs in prematurely filing his motion for appeal; the trial court errs in prematurely granting it. And upon granting the motion, the trial court is divested of jurisdiction and cannot take any action other than those enumerated in La.C.Cr.P. art. 916. Hence, a trial court, thus divested, cannot “cure” an error. As a result, appellate courts are left to determine whether such errors — e.g., a trial court’s imposition of sentence or ruling on a motion for new trial after having been divested of jurisdiction — merit remand.

In making this determination, appellate courts have relied upon equitable considerations of judicial economy. For instance, in Lampkin, supra, although the defendant’s motion for an appeal was filed and granted before he was sentenced, this Court chose not to dismiss the appeal “as this would only result in a delay of [the] defendant’s right to appellate review.” In Brooks, supra, the Fourth Circuit chose not to dismiss the appeal since it would “result in a delay of the appellate process, and hinder [the] defendant’s right to appeal.” And in Robinson, the Fourth Circuit found the trial court’s denial of a motion for a new trial after having 17been divested of jurisdiction was harmless because the defendant did not raise the denial of his motion for a new trial on appeal. Under the particular circumstances of the present case, where the trial court, after having been divested of jurisdiction, denied defendant’s motion for a new trial, the substance of which he then raised on appeal, we find a remand is proper. Before this Court, a court of review, addresses the merits of an issue that the trial court improperly considered, in light of due process considerations, defendant is entitled to have those merits considered by a trial court properly vested with jurisdiction. Although equitable considerations of judicial economy are as pertinent here as in other eases, this case is distinguishable because it presents a definite issue of due process concern. Under such circumstances, we find that defendant’s due process rights should not yield to equitable considerations of judicial economy. Consequently, we are constrained to vacate the sentences imposed on defendant (both his underlying sentences and his multiple offender sentence) and remand this matter to the trial court to rule on defendant’s motion for a new trial, and, if denied, to resentence defendant.

The above findings pretermit a discussion of defendant’s assignment of error on appeal.

CONCLUSION

For the foregoing reasons, the sentences imposed on defendant; (both his underlying sentences and his multiple offender sentence) are hereby vacated and this matter is remanded to the trial court to rule on defendant’s motion for a new trial, and, if denied, to resentence defendant. In the event defendant’s motion for a 18new trial is denied, upon resentencing, defendant’s right to appeal his conviction and sentences are reserved.

SENTENCES VACATED; MATTER REMANDED.

      .Article 916 provides that once a trial court is divested of jurisdiction, it has no jurisdiction to take any action except as provided by law, or to:
      1. Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
      2. Correct an error or deficiency in the record.
      3. Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.

        4. Take all action concerning bail permitted by Title VIII.
      5. Furnish per curiam comments.
      6. Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
      7. Impose the penalty provided by Article 844.
      8. Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

      . It should be noted that the motion in Robinson was untimely because it was filed after sentencing. See La.C.Cr.P. art. 853. Also, the trial court lacked jurisdiction to rule on the motion because it was filed after the trial court had granted the defendant's appeal.

      . In addition, as noted above, unlike in the present case, the motion for new trial in Robinson was untimely.

      . In his motion for a new trial, filed pursuant to La.C.Cr.P. art. 851, defendant argued he was entitled to a new trial because:
      1.The verdict was contrary to the law and evidence;
      2. [The court] erred in admitting letters allegedly written by [defendant] into evidence without requiring the State to authenticate those letters;
      3. [The court’s] ruling on defense counsel’s repeated objections to proceeding to trial despite [defendant’s] obvious mental health issues shows prejudicial error; and, accordingly,
      4. The ends of justice would be served by the granting of a new trial. In the sole assignment of error on appeal, defendant argues that the trial court erred in finding him competent to stand trial.

      . In Simms, Washington, and Conrad, although this Court did not specify equitable grounds for declining to dismiss the appeal, this Court cited cases which rely on the Fourth Circuit decision, State v. Martin, 483 So.2d 1223, 1225 (La.App. 4 Cir.1986), in which that court declined to dismiss an appeal since it "would simply result in a delay of the appellate process, and hinder defendant's right to appeal.”

      . As noted above, the record does not reflect that the trial court ruled on defendant’s motion to reconsider sentence filed on November 13, 2012. However, because we have vacated defendant’s sentences, his motion to reconsider sentence is now moot.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Tremika D. LANG.
    No. 13-KA-21.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

2Pefendant, Tremika D. Lang, appeals her conviction and sentence for conspiracy to commit second degree murder, a violation of La. R.S. 14:26:30.1. For the reasons that follow, the Court affirms defendant’s conviction and remands for correction of sentence.

FACTS AND PROCEDURAL HISTORY

In July 2009, defendant sought to purchase a car at auction; she gave Marvin Hudson $7,200.00 without obtaining a receipt or any documentation. Unable to reach Marvin Hudson after he failed to deliver a car, defendant called and sent text messages to Marvin Hudson’s girlfriend Rose Grace to find Hudson. Defendant sought the promised car or the return of her money. Defendant also went in person to Grace’s home looking for Marvin Hudson. Defendant further exchanged text messages with her then boyfriend Kendrick Henry. These messages conveyed ^defendant’s desire for revenge against Hudson for his failure to deliver the vehicle or return her money.

On July 29, 2009, two male gunmen opened fire at 3601 Tulane Drive in Ken-ner, Louisiana, the residence of Marvin Hudson and Rose Grace. Marvin Hudson’s brother, Jonathan Hudson, was killed, and Michael Cauley was injured. Marvin Hudson was uninjured, and the gunmen remain unidentified.

On November 24, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, with conspiracy to commit second degree murder in violation of La. R.S. 14:26 and R.S. 14:30.1 between July 25, 2009 and July 29, 2009. Defendant was arraigned the next day and pled not guilty. On January 25, 2011, the State amended the bill of information to change the ending date of the conspiracy to October 9, 2009. On January 4, 5, and 6, 2012, the case was tried before a 12-person jury that found defendant guilty as charged.

Defendant filed a Motion for New Trial and Alternatively to Arrest the Judgment that was denied on March 28, 2012. On that same date, after waiving sentencing delays, the trial judge sentenced defendant to imprisonment at hard labor for 17 years. Defendant filed a Motion to Reconsider Sentence that was denied. Also on March 28, 2012, defendant filed a timely Motion for Appeal that was granted.

On April 2, 2012, the trial judge amended the sentence to reflect that it was to be served without benefit of parole, probation, or suspension of sentence. On August 7, 2012, defendant filed a Motion for Clarification of Sentence that was granted. In her ruling on that motion, the trial judge recommended that defendant 14be allowed to participate in all substance abuse and rehabilitative programs available while incarcerated.

LAWAND DISCUSSION

Sufficiency of the evidence.' Defendant argues in her first assignment of error that the evidence was insufficient to support the jury’s verdict. She contends that the only evidence against her was unrelated text messages containing her angry thoughts that were never intended to be acted upon or seen by anyone other than her and her boyfriend, Kendrick Henry. Defendant further contends that none of what she and Henry texted ever came to pass, as Marvin Hudson was not killed or 2tortured, his car was not stolen, his home was not robbed or burned, and no phones were taken. She asserts that she and Henry were simply “trash talking,” that no action was ever taken, and that no plan was ever enacted.

The State responds that a rational fact finder, viewing the facts in the light most favorable to the prosecution, could have found that defendant had the specific intent to kill, and that defendant and Henry were in agreement in their desire to kill Marvin Hudson. The State further responds that defendant’s attempts to physically locate Marvin Hudson were acts done in furtherance of their agreement. The State also asserts that defendant’s consciousness of guilt was evidenced by her sudden flight to Atlanta shortly after the murder, her instructions to friends not to talk to the police about a murder, her lies to the police as to her whereabouts and knowledge of the offense, and her alteration of the appearance of her vehicle after the murder.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond 15a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

Defendant was charged with and convicted of conspiracy to commit second degree murder in violation of La. R.S. 14:26 and 14:30.1. Second degree murder is defined, in pertinent part, by La. R.S. 14:30.1 as follows:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm[.]
Criminal conspiracy is defined by La. R.S. 14:26(A) as:
[T]he agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

Thus, the elements of the crime of conspiracy are: (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, plus (2) an act done in furtherance of the object of the agreement or combination. State v. Tatum, 09-1004, p. 11 (La.App. 5 Cir. 5/25/10), 40 So.3d 1082, 1089.

|fiThe first element of a criminal conspiracy, specific intent, is defined as the “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.C.Cr.P. art. 14:10(1); State v. Zeno, 99-69, p. 6 (La.App. 5 Cir. 8/31/99), 742 So.2d 699, 704, writ denied, 00-105 (La.6/30/00), 765 So.2d 1065. The determination of specific criminal intent is a question of fact and may be inferred from circumstances and actions of the defendant. Id. Proof of a conspiracy may be made by direct or circumstantial evidence. Id., 99-69 at 7, 742 So.2d at 705.

The second element of a criminal conspiracy, the overt act, need not be unlawful. It may be any act, innocent or illegal, accompanying or following the agreement, which is done in furtherance of its object. State v. Jackson, 00-221 (La.App. 5 Cir. 3/15/01), 783 So.2d 482, 487, writs denied, 01-1071 (La.5/9/03), 843 So.2d 385, and 01-1258 (La.5/9/03), 843 So.2d 386. In prosecutions for criminal conspiracy, whether an overt act allegedly served to support the object of the conspiracy is a question for the jury. State v. Ellis, 94-599, p. 41 (La.App. 5 Cir. 5/30/95), 657 So.2d 341, writs denied, 95-2095 (La.12/8/95), 664 So.2d 421, and 95-1639 (La.1/5/96), 666 So.2d 300.

In the earlier trial against Henry, the State presented much of the same evidence that it presented in the instant case. State v. Henry, 12-545, (La.App. 5 Cir. 5/30/13), 119 So.3d 713. Upon review, this Court concluded that the evidence was sufficient to show that Henry conspired to commit second degree murder, as the evidence showed Henry and Lang planned to kill Marvin Hudson, or have someone else kill him, and then carried out acts in furtherance of that plan by text messaging and searching for Marvin Hudson. Id., 12-545 at 11-12,119 So.3d 713.

|7In the instant case, Sergeant Brian McGregor of the Kenner Police Department testified at trial that he sought and obtained cell phone information, including numerous text messages, for defendant Lang, Kendrick Henry, Rose Grace, and other individuals, including Arzia Harris (a suspect), and someone referred to as “Reginald.” The text messages showed that in the days leading up to the July 29, 2009 murder, defendant and Henry became increasingly angry at Marvin Hudson for his failure to return defendant’s money or give her the car she paid for. The text messages further showed that defendant and Henry discussed a plan to locate, shoot, and kill Marvin Hudson. A sampling of the text messages are as follows:

On July 26, 2009, at 12:21 p.m., Henry sent defendant a text saying, “He Gon [sic] Die.” Defendant sent Henry a text on that same date at 12:24 p.m. stating, “I never ahot [sic] nobody or attended on doing it, but I will and I promise.” At 12:28 p.m., Henry sent defendant a text asserting, “he gon [sic] die,” and “he gon [sic] get tortured.” Defendant texted Henry at 12:32 p.m. saying, “I never thought I will be like dis [sic], but I’m ready to my [sic] kill something, really.”

On July 27, 2009, at 6:26 a.m., defendant sent Rose Grace a text telling her to make her “man” give her her money or the car and that she did not want to “take it to another level.” Henry then sent defendant a text on that same date at 7:17 a.m. stating, “After 2day or tomorrow I’m going kill [sic] him.” Seconds later, defendant texted Henry, “Okay. Kool [sic].” On July 27, 2009 at 11:10 a.m., Henry texted defendant, “Set it off Set if [sic] off 50 Shots gon [sic] set it off!” At 11:28 a.m., defendant sent Henry a text asking how they were going to get him, and Henry responded for her to please call. At 12:21 p.m., defendant texted Henry that if nothing happened by Thursday, “then he get popped [sic].” Defendant sent |sHenry a text at 2:01 p.m. indicating that she had gone by Marvin Hudson’s house the day before looking for him. (It is noted that Rose Grace testified that defendant came to her door twice on the Saturday before the murder and asked if Marvin Hudson was home.) Also on July 27, 2009, at 10:39 p.m., defendant texted Grace that she needed the money or the car from Marvin Hudson.

On July 28, 2009, at 7:37 a.m., defendant sent Henry a text asking if he and “Aaron” were going to look for “him” that day or if they were going to get some information that would lead to “him.” At 3:22 p.m. that day, defendant texted Henry that “Aaron” had been looking for “him” all day. At 3:46 p.m., defendant sent Henry a text that she wanted her money and she wanted to kill “him.” Henry texted defendant at 3:50 p.m. stating, “Chill if we find em we find em but we will kill him. U r lookn at a <& of getn ur money back. He gon meet up wit me 2 search [sic].”

Also on July 28, 2009, at 4:02 p.m., Henry texted “Reginald,” saying, “Tel ba 2 give u my grinda because I need 2 take off a serial numba of a k.” At 9:03 p.m., defendant texted Henry telling him to “get him” and “get something.” At 9:06 p.m., Henry sent defendant a text stating, “Dey gon get bullets [sic],” and defendant responded a minute later saying, “Kool [sic].” Defendant texted Henry at 9:09 p.m. telling him to “jack they sh*t [sic] afterwards,” and to search the house and throw away their phones. At 9:10 p.m., defendant sent Henry a text stating, “Then give anthony and eric something, maybe — alero, lol. Anyway, give em something from being down [sic]....” It is noted that defendant drove an Alero vehicle.

On July 29, 2009, the day of the murder, Henry sent an unknown cell phone number a text at 9:39 a.m. saying, “Its kool though! I hope he buying sum caskets! Lol 4 real though [sic].” On that same date at 11:12 a.m., defendant sent Henry a 19text telling him that, “They gotta up they vehicles and they life [sic], I’m sorry,” and “we have to make sure they don’t move, basically just pass to see if they still living there. Nobody ain’t ruining my plans [sic].... ” At 11:27 a.m., defendant texted Henry that she got somebody to call Rose and “he” answered. At 11:38 a.m., defendant texted Henry stating that her partner had pretended like he was a doctor and wanted tomeet with “him” and “he” fell for it. At 4:55 p.m., defendant sent a text to Henry saying, “Dats my last text to him [sic].” “Reginald” subsequently sent Henry a text at 10:04 p.m. stating, “F* *k that I cutt that hoe la la that b*tch.” At 10:11 p.m., at approximately the time of the murder, “Reginald” sent a text to Henry stating, “Come get me lil round.”

On July 30, 2009, additional text messages were sent amongst the parties indicating that defendant and Henry were trying to leave town, that people were looking for them, and that they had to go. On July 31, 2009, Sergeant Michael Cunningham of the Kenner Police Department spoke to defendant on the phone, and defendant told him she could not meet him because she was at her mother’s house in New Orleans. A short time later, Henry called Sergeant Cunningham. Henry told him that he and defendant were on the interstate almost to Atlanta and that they had to leave because they felt their lives were in danger. Henry told Sergeant Cunningham that somebody was looking for the girl who drove a white car with a butterfly sticker on the back, and that defendant had such a car.

Ashley Holmes, defendant’s friend, testified that defendant called her the morning after the murder and told her to tell anyone that called that she (Holmes) did not know anything. Donyelle Bickham, defendant’s friend, testified that she called defendant and asked why a detective called her, and defendant told her to tell them she knew nothing about a murder. Bick-ham further testified that she and defendant worked together, and that defendant never talked to her about moving.

ImSergeant Cunningham and other officers eventually located defendant in Baton Rouge on August 19, 2009, and brought her back to Kenner for questioning. They later arrested defendant and Henry for conspiracy to commit second degree murder. The police took photographs of defendant’s vehicle (after the murder), and it did not have a butterfly on it at that time. After defendant was arrested, Henry told Sergeant Cunningham that he had reported his car stolen on September 25, 2009, and that there was an AK-47 in the ear at that time. Sergeant Cunningham testified that he had told Henry that the murder was committed with an AK-47. Sergeant McGregor testified that he did not develop any information that suggested anyone other than defendant or Henry had a motive to kill anyone outside of 3601 Tulane at the time of the shooting.

We find the text messages between defendant and Henry showed that there was an agreement between them to carry out the plan of killing Marvin Hudson. Additionally, the evidence further showed that defendant and Henry completed acts and made these statements in furtherance of this agreement. The text messages reflected that defendant and Henry actively searched, or had others search, for Marvin Hudson in order to carry out their plan to shoot him. Additionally, Rose Grace testified that defendant went to her house twice the day before the murder looking for Marvin Hudson. Moreover, the evidence showed that shortly after the murder, defendant left town, altered the appearance of her vehicle, and lied to the police about her whereabouts.

Evidence of flight, concealment, and attempt to avoid apprehension is relevant and admissible to prove consciousness of guilt from which the trier-of-fact may infer guilt. State v. Bellow, 08-259, p. 16 (La.App. 5 Cir. 7/29/08), 993 So.2d 307, 316, writ denied, 08-2109 (La.4/13/09), 5 So.3d 162.

|nIn light of the foregoing, we find that a rational trier-of-fact could have found that the evidence was sufficient under the Jackson standard to support defendant’s conviction of conspiracy to commit second degree murder. This first assignment of error lacks merit.

Motion to exclude. In her second assignment of error, defendant contends the trial court erred in denying the defense’s motion to exclude certain evidence under the Confrontation Clause. Defendant argues that her right to confront her accusers was violated when texts from and between Kendrick Henry, “Reginald,” and Arzia Harris were admitted into evidence at trial, even though those individuals, and others mentioned in the texts, did not testify at trial. Defendant contends that she was not able to cross-examine Henry or any of the others as to what the texts actually meant.

The State responds that the Sixth Amendment was not violated by the admission of the text messages into evidence because the text messages were not “testimonial” and therefore not subject to the Confrontation Clause. The State further responds that the text messages were admissible under La. C.E. art. 801(D)(3)(b) because they were made by participants in a conspiracy and in furtherance of the objective of the conspiracy.

Defendant filed a motion in limine to exclude any text messages between defendant and Henry and between Henry and persons unknown. In that motion, defendant contended that she would not be able to cross-examine any witnesses as | 12to the context and/or meaning of those text messages. On the first day of trial, a hearing was held on defendant’s motion wherein defendant made the same argument she made in her written motion. The prosecutor responded that they had previously dealt with that identical issue during Henry’s trial, and that the statements in question were not hearsay because they were made by a declarant while participating in a conspiracy to commit murder. Therefore, he argued that they would be admissible as non-hearsay statements under La. C.E. art. 801(D)(3)(b).

On January 4, 2012, after jury selection and prior to the Court’s preliminary instructions, the prosecutor noted that he was offering the entire record and all proceedings from the earlier case to prove up the prima facie case of conspiracy. They were admitted into evidence. On January 4, 2012, the trial judge denied the defendant’s motion in limine. The trial judge said however, that she would allow defendant to make the same argument if, at the time the text messages were offered into evidence, the defendant did not feel that the State had established a prima facie case. The prosecutor commented that it was not a jury question, but a question for the judge under La. C.E. art. 104(A). The trial judge stated that the prosecutor had previously presented a prima facie case [in the Henry trial], but that if he did not present that same case, he would have to establish a conspiracy. At two points in the trial, the trial judge told defense counsel that, “I’ve denied your motion in li-mine,” and at a bench conference prior to opening statements, the trial judge informed counsel of her ruling again: “Just so you know, we had a hearing with— |regarding1s the text messages and the cell phones, back in May [2011], and in May, I admitted them into evidence.” This ruling preceded the August 23, 2011 severance of co-defendants Henry and Lang; the evidence considered pertained to both Henry and Lang.

Before resting, defense counsel urged the trial judge to grant the motion to exclude certain evidence again; however, defense counsel argued that it was premature because he had not stated whether he was going to call any witnesses. A short time later, defendant said he would not call any witnesses. Afterward, he asked if the trial judge wished to take up the matter concerning his “ongoing objection.” The record indicates that the “ongoing objection” referred to defendant’s motion to exclude certain evidence. On January 6, 2012, before closing arguments, the trial judge again denied defendant’s “objection” to the admission of the text messages and phone records.

Under La. C.E. art. 801(D)(3)(b), a statement is not hearsay if it is offered against a party and it is made by a declar-ant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established. In State v. Lobato, 603 So.2d 739, 747 (La.1992), the Louisiana Supreme Court explained that a prima fa-cie case of conspiracy is established when the State introduces evidence which, if un-rebutted, would be sufficient to establish the facts of the conspiracy. Id. Statements made by co-conspirators which are the object of a defendant’s hearsay objection may be considered by the trial court in making its determination as to whether the State established a prima facie case of conspiracy. Id.

|14In State v. Freeman, 07-363, 2008 WL 2068072 (La.App. 1 Cir. 5/2/08), (unpublished opinion), the defendant argued that the trial court erred in allowing the jury to hear audiotapes of her son arranging a drug deal with a-detective, as the statements of her son were inadmissible hearsay. She also contended that because her son was not available to testify, she was denied her right of cross-examination. The appellate court found that the son’s statements were part of the res gestae under La. C.E. art. 801D(4) and were therefore not hearsay. The appellate court further found that the son’s statements were made while participating in a conspiracy to commit a crime under La. C.E. art. 801(D)(3)(b) and therefore not hearsay. Lastly, the appellate court found that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), since the son’s statements constituted out-of-court declarations of a co-conspirator made in the course and in furtherance of the conspiracy, the Confrontation Clause was not implicated, and the defendant’s right to confrontation was not violated. Freeman, 07-363, at *3-4.

In the instant case, we find that the trial court did not err in finding that the State established a prima facie case of conspiracy. As was discussed previously in defendant’s first assignment of error, the text messages between defendant and Henry showed that there was an agreement between them to carry out the plan of killing Marvin Hudson, and that defendant and Henry completed acts in furtherance of this agreement. Additionally, Rose Grace testified that defendant went to her house the day before the murder looking for Marvin Hudson, which also showed an act in furtherance of this agreement. Moreover, the evidence showed that shortly after the murder, defendant left town, altered the appearance of her vehicle, and lied to the police about her whereabouts.

1^Therefore, because the statements in the text messages were made by declar-ants while participating in a conspiracy to commit murder and in furtherance of the objective of the conspiracy, we find that the text messages were admissible under La. C.E. art. 801(D)(3)(b) and are therefore not hearsay.

We also find that defendant’s assertion that her right to confrontation was violated is without merit. The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to confront the witnesses against him. State v. Jackson, 03-883, p. 17 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118. In Crawford, supra, the Supreme Court restricted the admissibility of testimonial statements as evidence at a criminal trial in situations when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant.

The Crawford Court, however, determined that for a statement to be “testimonial,” the statement at a minimum must include: “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations.” State v. Leonard, 05-42, p. 19 (La.App. 5 Cir. 7/26/05), 910 So.2d 977, 989, writ denied, 06-2241 (La.6/1/07), 957 So.2d 165 (citing Crawford, supra, 124 S.Ct. at 1374). The Crawford Court stated that “testimony” is “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” State v. Leonard, 05-42 at 19-20, 910 So.2d at 989 (citing Crawford, supra, 124 S.Ct. at 1364).

The Sixth Amendment bestows a right of confrontation to confront witnesses who “bear testimony” against him; according to the Supreme Court, an accuser making a formal statement to government officials bears testimony in a sense that a person making a casual remark to an acquaintance does not. Leonard, |lfi,supra. As examples of testimonial statements, the Crawford Court lists affidavits, custodial examinations, depositions, prior testimony, confessions, or similar pretrial statements that declarants would reasonably expect to be used in a prosecution. The Crawford Court also refers to statements as testimonial that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. State v. Leonard, 05-42 at 20, 910 So.2d at 989-90 (citing Crawford, supra, 124 S.Ct. at 1364).

No published Louisiana cases address the issue of whether text messages are testimonial or non-testimonial under Crawford. However, cases in other jurisdictions have addressed that issue and found that the text messages in those cases were non-testimonial. Louisiana cases have addressed the issue of non-testimonial communication being admissible.

In State v. Damper, 223 Ariz. 572, 225 P.3d 1148 (Ariz.Ct.App.2010), the Arizona appellate court concluded that because the content and circumstances of the text at issue demonstrated that the individual did not send it for the purpose of establishing or proving some fact, the message was non-testimonial. In Rodriguez v. State, 273 P.3d 845 (Nev.2012), Rodriguez suggested that the admission of the text messages raised a confrontation issue; however, the Nevada Supreme Court disagreed, finding that the text messages were neither hearsay nor testimonial.

Similarly, this Court has found that statements to a friend or family member in a private conversation are non-testimonial under Crawford. In State v. Leonard, supra, the trial court permitted the murder victim’s girlfriend to testify that the victim told her he was going to Memphis with defendant to buy marijuana. This 117Court found that the victim’s statements to his girlfriend were non-testimonial, because the statements, which were made in a private conversation, did not come within the purview of any of the classes of testimonial statements mentioned in Crawford, and were not made under circumstances in which an objective person would reasonably think that the statements would be available for use at a later trial. Id., 05-42 at 21, 910 So.2d at 990.

Likewise, in State v. Parks, 08-423 (La.App. 5 Cir. 11/25/08), 2 So.3d 470, writ denied, 09-142 (La.10/2/09), 18 So.3d 101, this Court found that the admission of statements the murder victim made to her niece over the telephone on the night of her death were non-testimonial and did not violate the defendant’s right of confrontation. This Court found that the statements did not come within the purview of any of the classes of testimonial statements mentioned in Crawford. This Court noted that the victim was speaking to a friend, and not the police, and that the victim had no expectation that her statement would be of later use to help establish that defendant committed a crime, as she spoke informally and without coercion. Id., 08-423 at 16, 2 So.3d at 479. See also State v. Short, 06-1451, pp. 6-7 (La.App. 3 Cir. 5/16/07), 958 So.2d 93, 97, writ denied, 07-1646 (La.2/1/08), 976 So.2d 715 (statements made were non-testimonial and their admission did not violate the ruling in Crawford, citing State v. Miller, 95 Conn.App. 362, 896 A.2d 844 (2006), “the statements at issue are the sort of remarks to an acquaintance that the Crawford [Cjourt proclaimed to be non-testimonial,” and “[t]he courts of this land, both federal and state, are in agreement that statements made to friends in unofficial settings do not constitute testimonial hearsay.”)

In the instant case, we find that the text messages are not testimonial under Crawford and do not violate defendant’s right of confrontation. The statements contained within the text messages were made in casual, private conversations and 11sdid not come within the purview of any of the classes of testimonial statements mentioned in Crawford. Leonard, supra; Parks, supra. Additionally, defendant Lang, Henry, and the other participants, “Reginald” and Arzia Harris, had no expectation that their statements would be of later use to help establish that defendant committed a crime, as they spoke informally and without coercion. Id. The text messages of the co-conspirators, “Reginald” and Harris, are admissible as the other non-testifying co-conspirator, Henry. The trial court correctly concluded that a prima facie case of conspiracy was established, when she determined that the co-conspirators’ statements were made during the conspiracy and in furtherance thereof. See State v. Tsolainos, 2007-2443, p. 5 (La.App. 1 Cir. 10/10/08), 997 So.2d 46, 49, writ denied, 2008-2653 (La.10/9/09), 19 So.3d 6 (admission of recorded conversation between non-testifying co-conspirators and confidential informant was “non-testimonial” and did not violate Confrontation Clause).

In light of the foregoing, we find that the trial court did not err by admitting the text messages into evidence at trial first as a non-testimonial exception to the hearsay rule, and additionally as non-hearsay statements of co-conspirators. Defendant’s second assignment of error lacks merit.

Excessive sentence. In her third assignment of error, defendant contends that the trial court erred in imposing an excessive sentence. Defendant argues that her 17-year sentence is excessive, considering that it was Henry who had a murderous intent toward Marvin Hudson, and he received only a 13-year sentence. Defendant further argues that it was clear from the texts that she did not want this situation to escalate. She contends that she tried to diffuse it, but that Henry eventually wore her down. She also contends that the trial judge did not enumerate any mitigating factors and recited only boilerplate language that the La.C.Cr.P. art. 894.1 factors were considered and that any lesser sentence would deprecate the seriousness of h9the crimes. The State responds that the mid-range sentence is not excessive, noting that the plot to kill Marvin Hudson was not thwarted, and that two men were shot, one fatally.

At the sentencing hearing, the trial judge told defendant she had presided over defendant and Henry’s trials, and observed that “none of this would have come about but for you.” The trial judge said that defendant wanted Marvin Hudson dead because “he ripped you off of money.” She stated that the text messages were clear, and that defendant was the one who instigated the entire incident, but that did not reduce the culpability of her co-defendant, Henry. The trial judge asserted that she had considered the sentencing guidelines pursuant to La.C.Cr.P. art. 894.1, and that a sentence of 17 years at hard labor in the Department of Corrections would be an appropriate sentence in this case, and that any lesser sentence would deprecate the seriousness of this crime. Defense counsel then informed the trial judge that he was filing at that time a formal motion to reconsider sentence. The trial judge immediately denied the motion.

Afterward, defense counsel said he wanted to put on the record that prior to this conviction, defendant had no convictions either as an adult or as a juvenile, that she was gainfully employed, that she maintained a residence inside this State, and that she had never run into any trouble with the law. Defense counsel asked the trial judge to consider these factors and give defendant a lesser sentence at that time. The trial judge responded that she had considered defense counsel’s arguments, that she was well-aware that defendant had no prior criminal history, and that she had read the pre-sentence investigation prepared by the probation and parole department. The trial judge subsequently denied the motion to reconsider sentence a second time.

lapln her written motion to reconsider sentence, defendant argued that the sentence was excessive based on the fact that she had no prior convictions and that prior to her arrest she had been gainfully employed and maintained a residence. Defendant did not raise the issue of the trial judge’s failure to consider pertinent mitigating factors under La.C.Cr.P. art. 894.1 at the trial court level. As such, defendant is precluded from raising such an issue on appeal. State v. Carter, 07-270, p. 9 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 202. In any event, where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. See State v. Declouet, 09-1046, p. 25 (La.App. 5 Cir. 10/12/10), 52 So.3d 89, 106, writ denied, 10-2556 (La.4/8/11), 61 So.3d 681.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id., 07-332 at 15-16, 975 So.2d at 656.

Defendant was convicted of conspiracy to commit second degree murder in violation of La. R.S. 14:26 and 14:30.1. Under La. R.S. 14:26(B), whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, that whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years. Under La. R.S. 14:30.1(B), whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Therefore, under La. R.S. 14:26(B) and R.S. 14:30.1(B), defendant in the instant case was exposed to a sentencing range of not more than thirty years.

In State v. Bridges, 480 So.2d 926 (La.App. 2 Cir.1986), writ denied, 486 So.2d 732 (La.1986), the defendant, a former sheriff, conspired with others to kill the newly elected sheriff; however, the plan was thwarted. The defendant was convicted of conspiracy to commit second degree murder and sentenced to ten years at hard labor. On appeal, the defendant argued that his sentence was excessive in light of his age and the fact that a co-defendant received a five-year sentence. The appellate court asserted that the sentencing judge was not required to treat co-defendants equally. It found that the sentence was not excessive, noting that it was only one-third of the maximum, and that it was not out of proportion to |22the severity of the offense, nor was it a purposeless imposition of pain and suffering. Id., at 928.

In State v. Leger, 04-1467 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, writ denied, 05-2263 (La.4/17/06), 926 So.2d 509, cert. denied, 549 U.S. 910, 127 S.Ct. 245, 166 L.Ed.2d 193 (2006), three women were murdered. The defendant was convicted of three counts of conspiracy to commit second degree murder and sentenced to twelve years on each count to be served consecutively. The appellate court concluded that the sentences did not shock one’s sense of justice and, therefore, the trial court did not abuse its considerable discretion when sentencing the defendant. The appellate court noted that the defendant had conspired to kill three young mothers, two of whom were the mothers of his children. The appellate court found that while defendant may not have pulled the trigger, his active participation was as heinous as the actions of his co-defendant who shot the victims with a shotgun while their children watched. It further found that the fact that the defendant was not the shooter did not detract from the shocking nature of the crimes for which he was convicted. Id,., 04-1467 at 59-64, 907 So.2d at 778-81.

In the instant case, defendant conspired with her boyfriend to murder Marvin Hudson because Marvin stole her money. The record showed that two men jumped out of a vehicle and fired at least 25 rounds at Marvin Hudson’s residence and at several vehicles parked in front of the residence, with individuals standing outside and sitting in those vehicles. Children were inside of the residence at the time of the shooting. Marvin Hudson was not killed; however, his brother, Jonathan Hudson was, and another individual was injured. Although the seventeen-year sentence is somewhat higher than the ten and twelve-year sentences in the above cases, we find that considering the nature of the crime and the naturej^and the background of the offender, the mid-range seventeen-year sentence was not constitutionally excessive as it was not grossly disproportionate to the offense nor did it impose needless and purposeless pain and suffering. We find that defendant’s third assignment of error lacks merit.

ERRORS PATENT DISCUSSION

Defendant requests errors patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. The review does reveal errors patent.

Arraignment. The record does not reflect that defendant was arraigned on the amended bill of information. La.C.Cr.P. art. 555 provides that:

[a]ny irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

Here, defendant proceeded to trial on the amended charge without objection, thereby waiving any irregularity. Therefore, we find that no corrective action is necessary. See State v. Morton, 12-27, p. 17 (La.App. 5 Cir. 5/31/12), 97 So.3d 1034, 1044-45, writ denied, 12-1476 (La.1/18/13), 107 So.3d 625.

Sentencing Restrictions. On March 28, 2012, the trial judge sentenced defendant to 17 years at hard labor and granted defendant’s motion for appeal. Thereafter, on April 2, 2012, the trial judge, on her own motion, amended the sentence to reflect that it was to be served without benefit of parole, probation, or 1 ..¿suspension of sentence. However, in accordance with statutory and jurisprudential rules, the trial court should not have restricted all benefits.

The issue is whether a defendant found guilty of conspiracy to commit second degree murder is eligible for benefits under La. R.S. 14:26(B). The rule establishing the term of sentence for a criminal conspiracy to commit a crime punishable by life imprisonment-here, second degree murder provided in La. R.S. 14:26(B), which provides:

Whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years. (Emphasis added).

The 17-year hard labor term of sentence for the particular conspired offense, La. R.S. 14:30.1, is clearly within the 30-year parameter established by La. R.S. 14:26(B).

In State v. Ferguson, 393 So.2d 710 (La.1981), the Louisiana Supreme Court provided for an exception of parole eligibility for the murder conspirator. The Court held that a person found guilty of conspiracy to commit first degree murder is eligible for parole under the provisions of La. R.S. 14:26(B). The Court reasoned that La. R.S. 14:26(B) facially does not restrict availability of parole to a murder conspirator. Ferguson, 393 So.2d at 712. The Ferguson Court further gave effect to the “provided, however” clause in La. R.S. 14:26(B) and held that sentences imposed for conviction of conspiracy for offenses punishable for death or life imprisonment could not, as a matter of law, be without benefit of parole. Because the sentencing provisions are the same for conspiracy to commit either 12sfírst or second degree murder, defendant’s sentence must be corrected to allow for the possibility of parole. See Ferguson, supra; State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 711, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058.

DECREE

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and remand for correction of sentence to reflect defendant’s eligibility for parole. We order the Clerk of Court for the 24th Judicial District Court to transmit the original of the amended commitment to the officer in charge of the institution in which defendant is incarcerated, and to the Legal Department of the Louisiana Department of Corrections. See State v. Moody, 11-343, p. 15 (La.App. 5 Cir. 12/28/11), 83 So.3d 1107, 1115; State ex rel. Stark v. State, 06-1457 (La.2/16/07), 949 So.2d 409, 410.

CONVICTION AFFIRMED; REMANDED FOR CORRECTION OF SENTENCE.

      . La. 14:30.1 was amended in 2013; however, those amendments are not germane to the instant case.

      . The same bill also charged Kendrick Henry with the same offense. On August 23, 2011, the State orally moved to sever the defendants, and the trial court granted the motion. Henry’s case proceeded to trial on August 23-26, 2011 in advance of the instant matter.

      . La. C.E. art. 801 provides, in part (D):
      A statement is not hearsay if: ... (3) The statement is offered against a party, and the statement is (b) ... by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established.
      In Section 1 of Act 1300 of 1995, the Legislature substituted "is" for "has been." As such, the law no longer requires the prima facie case of conspiracy to be introduced in evidence before the conspirator’s statement. A prima facie case of conspiracy remains a factual precondition to the admissibility of the conspirator’s statement, but a co-conspirator's statement, sought to be admitted, may serve as evidence of the foundation requirement. See State v. Ellis, 94-599, p. 17 (La. App. 5 Cir. 5/30/95), 657 So.2d 341, 351, writs denied, 95-2095 (La. 12/8/95), 664 So.2d 421 and 95-1639 (La. 1/5/96), 666 So.2d 300.

      . La. C.E. art. 104(A) provides:
      A. Questions of admissibility generally. Preliminary questions concerning the competency or qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of Paragraph B. In making its determination it is not bound by the rules of evidence except those with respect to privileges.
      B. Relevancy conditioned on fact. Subject to other provisions of this Code, when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

      . It is noted that this case is published on the First Circuit Court of Appeal’s website and, therefore, may be cited as authority despite the fact it is not designated for publication. See State in the Interest of S.L., 11-883, p. 2 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 827 n. 2; See also La. C.C.P. art. 2168.

      . See also Stephenson v. State of Texas, 2011 WL 4027721 (Tex.App.-Amarillo) (unpublished opinion), wherein the appellate court concluded that the text messages from the defendant's sister to another person were not testimonial under Crawford, because the texts were statements made during a confidential conversation between friends, and there was no indication that the sister's statements would be used in a prosecution of her brother.

      . Compare State v. Cumella, 517 So.2d 1059 (La.App. 3 Cir.1987), where the court upheld an 18-year sentence for a defendant convicted of conspiracy to commit first degree murder (the victim died), an offense with the same sentencing range as a conviction for conspiracy to commit second degree murder. See also State v. Dozier, 520 So.2d 875 (La.App. 3 Cir.1987), where the court upheld a 15-year sentence for a defendant convicted of conspiracy to commit first degree murder (the victim escaped injury).

      . La. R.S. 14:30.1(B) provides:
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.