author: COOKS, Judge.

text:
    STATE of Louisiana v. Simcoe COLE a/k/a Simco W. Cole.
    No. 12-1404.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 2013.

      Alan P. Haney, Assistant District Attorney, Fifteenth Judicial District, Lafayette, LA, for Appellant, State of Louisiana.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Ap-pellee, Simcoe Cole a/k/a Simco W. Cole.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   COOKS, Judge.

L FACTS AND PROCEDURAL HISTORY

While armed with a paring knife, Defendant, Simcoe Cole, robbed Darrell Fair-burn, who was a guest at a Red Roof Inn in Lafayette. Defendant’s DNA was found on the knife left in Fairburn’s room, and Fairburn positively identified Defendant as the perpetrator.

Defendant eventually was charged by bill of information with one count of armed robbery and found guilty. He was sentenced to serve ten years at hard labor, without benefit of probation, parole, or suspension of sentence. In a separate appeal, that conviction and sentence were affirmed. State v. Simcoe, 12-1039 (La.App. 3 Cir. —/—/—).

The State then charged Defendant as a habitual offender by bill of information filed March 27, 2012. Defendant entered a plea of not guilty on July 26, 2012. A habitual offender hearing was held on October 16, 2012, and Defendant was adjudicated a fourth felony offender. He was then sentenced to serve ten years at hard labor. The State noticed its intent to seek an appeal after the sentence was imposed.

ANALYSIS

The State’s one assignment of error contends the trial court erred in sentencing the Defendant to an illegally lenient sentence, well below the mandatory ninety-nine years in prison mandated by La.R.S. 15:529.1.

At the habitual offender hearing, Defendant acknowledged he was convicted of forgery on January 10, 1994, January 19, 1998, and September 5, 2000, and of armed robbery on October 19, 2011. The State then introduced |adocuments supporting the allegations set forth in the bill of information. Defendant subsequently called Dr. Craig Forsyth to testify as a mitigation specialist.

Dr. Forsyth testified he interviewed between twelve and fifteen people regarding Defendant. Dr. Forsyth classified the Defendant as a “naive check forger” and felt someone off the street might call Defendant a petty thief. He stated the Defendant lacked skills as a criminal and was simply an opportunist.

Dr. Forsyth classified forgery as petty theft. He was questioned regarding the armed robbery and stated, in that regard, Defendant was a one-time loser. He opined the offense involved little planning with little reward; Defendant did not hide his identity, and Defendant used a minimal weapon (a paring knife) to commit the offense. He considered the armed robbery that occurred as “low.”

Dr. Forsyth testified Defendant had been employed as a cook or steward at Taylor International on several occasions over a period of twelve years and explained a cook or steward there was in charge of catering. Defendant was spoken highly of by his employer, and they were dependent upon him. Dr. Forsyth testified Defendant possessed skills and could earn a very good living. Dr. Forsyth further testified Defendant’s friends and family spoke highly of him.

Dr. Forsyth believed Defendant attempted to mitigate the potentially dangerous nature of his conduct in committing the armed robbery by locking the victim in the bathroom. Dr. Forsyth theorized Defendant made sure he would be arrested because he left the victim’s wallet and the weapon, which both had Defendant’s fingerprints on them.

Dr. Forsyth noted Defendant admitted using drugs and alcohol and said they were what caused him to commit the offense. Dr. Forsyth further stated that Defendant’s behavior was anomalistic for him.

| ^Defense counsel argued Defendant was outside the norm of someone who was a habitual armed robber. He noted Defendant had three prior convictions for forgery, one involving less than $20.00 and another less than $100.00. He further argued as follows:

Point taken is that his criminality was minor. And then on an opportunistic time, using a paring knife that was part of his tool and trade because of his cook status, he committed a crime where he took the victims and he isolated them from harm, left the — left the weapon, left the wallet where his identity could clearly be detected, and was completely unshielded from the standpoint of identity because the victim was able to identify him quite easily.
Because of that, he is outside the norm as a habitual armed robber. Because of that, a ninety-nine (99) year sentence would be constitutionally excessive as applied to this human being.

Defense counsel also argued Defendant was fifty years old, and anything more than ten years was tantamount to a life sentence. The trial court subsequently vacated the ten-year sentence previously imposed, found Defendant guilty as a habitual offender, and stated the following:

And while the statute does provide— Revised Statute 15:529.1, Subparagraph 4(A) seems to provide that a person is sentenced to imprisonment for the fourth or subsequent felony for a determinant term not less than the longest prescribed for a First Conviction, but in no event less than twenty (20) years, and not more than his natural life.
Given the facts of this case and the predicate offenses committed by this defendant, all of which the Court is familiar with, and given the testimony of Dr. Forsyth, the Court finds that the provisions of that statute, under these circumstances, seemed to be excessive. And for that reason, the Court will depart and impose the habitual offender sentence of ten (10) years, as previously imposed.

Louisiana Code of Criminal Procedure Article 881.2 provides for review of sentences by the State as follows:

B. The state may appeal or seek review of a sentence:
(1) If the sentence imposed was not in conformity with:
(a) Mandatory requirements of the statute under which the defendant was convicted, or any other applicable mandatory sentence provision; or
(b) The applicable enhancement provisions under the Habitual Offender Law, R.S. 15:529.1; and
(2) If the state objected at the time the sentence was imposed or made or filed a motion to reconsider sentence under this Article.

While the State did not object at the time the Defendant’s sentence was imposed nor did it file a motion to reconsider sentence, it did give notice of its intent to appeal. In State v. Thibodeaux, 12-300 (La.App. 3 Cir. 10/24/12), 100 So.3d 398, this court deemed the State’s giving immediate notice at sentencing of its intent to appeal as the equivalent of an objection to the trial court’s sentence where the parties stipulated as to the defendant’s identity and the predicate offenses.

In State v. Jefferson, 01-1139 (La.App. 5 Cir. 3/13/02), 815 So.2d 120, writ granted on other grounds, 02-1038 (La.1/10/03), 838 So.2d 724, the State argued the trial court erred when it made a downward departure from the statutorily mandated sentence without presenting a basis for the departure, and the defendant received an illegally lenient sentence. The State asked the fifth circuit to vacate the sentence and remand the matter for resentencing.

The fifth circuit noted the State failed to file a motion to correct illegal sentence and did not object to the sentence at the time it was imposed. The State merely made a motion for appeal, and the ground for the appeal was not stated. The fifth circuit went on to state that it must determine whether the State’s actions were sufficient to preserve the issue for appeal.

In finding the matter was properly before the court, the fifth circuit stated:

Recently the Supreme Court ruled that R.S. 15:301.1 has retroactive application. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. The Williams court also considered the authority of the appellate courts to amend or order amended an illegally lenient sentence when the state did not object below or complain on appeal of the leniency. Although the procedural facts of Williams can be distinguished from the case at bar, because in the instant matter the state does complain of the sentence on appeal, we find Williams enlightening and applicable to the instant matter.
In analyzing R.S. 15:301.1 the Williams court found that the provisions of paragraphs A and C were self-activating, but paragraph B requires the court or the state to move to correct the sentence. In this regard, the Supreme Court noted that paragraph B addresses sentencing restrictions other than parole, probation or suspension of sentence. Paragraph B is applicable in the instant case because the sentencing problem of which the state complains is nonconformity with statutory provisions. As we interpret Williams, the state is exempt from the need to file either a contemporaneous objection pursuant to LSA-C.Cr.P. art. 841 or a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1, because of the legislative enactment of R.S. 15:301.1B. State v. Williams, supra at p. 11, fn. 8, 800 So.2d at 798. While the Supreme Court does not specifically refer to LSA-C.Cr.P. art 881.2 in its analysis, we find that article 881.2 must be read in conjunction with article 881.1, which is specifically mentioned. Accordingly, we consider the matter properly before us, and we will review the state’s appeal.

Id. at 123-24 (footnotes omitted).

Based on the supreme court’s interpretation of La.R.S. 15:301.1(B) in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, and the fifth circuit’s opinion in Jefferson, 815 So.2d 120, we find the State does not have to object to the sentence imposed or file a motion to reconsider sentence to seek review of the sentence that was imposed in the case at bar. Thus, we will consider the State’s assignment of error.

The Defendant was convicted of armed robbery, which is punishable by imprisonment at hard labor for not less than ten nor more than ninety-nine years. La.R.S. 14:64. He also had a 1994 conviction for forgery in Caddo Parish, a 1998 conviction for forgery in Bossier Parish, and a 2000 conviction for forgery in |fiBossier Parish. At the time of the armed robbery offense, La.R.S. 15:529.1 provided, in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life....

Based upon La.R.S. 14:64 and 15:529.1, Defendant was subject to a sentence of ninety-nine years to life as a fourth offender. However, the trial court determined such a sentence would be excessive and sentenced Defendant to serve ten years.

In State v. Johnson, 97-1906, pp. 6-9 (La.3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court discussed downward departures as follows:

In State v. Dorthey, supra, [623 So.2d 1276 (La.1993),] this Court held that a trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment”, or is nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime.” Id. at 1280-81. Finding a mandatory minimum sentence constitutionally excessive requires much more, though, than the mere utterance of the phrases above.
|7A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. See State v. Dorthey, supra at 1281 (Marcus, J., concurring); State v. Young, supra [, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525]. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.
A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the cías-sification of a defendant’s instant or pri- or offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.
Instead, to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
Young, 94-1636 at pp. 5-6, 663 So.2d at 528 (Plotkin, J., concurring).
When determining whether the defendant has met his burden of proof by rebutting the presumption that the mandatory minimum sentence is constitutional, the trial judge must also keep in mind the goals of the Habitual Offender Law. Clearly, the major reasons the Legislature passed the Habitual Offender Law were to deter and punish recidivism. Under this statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to |sbreak the law. Given the Legislature’s constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.

After the decision in Dorthey, 623 So.2d 1276, there was an increase in appeals from downward departures from mandatory minimum sentences. In State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, 343 cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001), the court held for a defendant to rebut the presumption that the mandatory minimum sentence is constitutional, he must show:

[H]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

In Lindsey, the defendant was convicted of simple robbery, adjudicated a fourth felony offender, and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Lindsey argued his sentence was excessive, noting he had prior convictions for attempted simple burglary, attempted burglary, and simple burglary. The supreme court found that Lindsey’s sentence was not excessive, stating:

[H]e is exactly the type of offender that the Habitual Offender Statute intends to punish so severely. He is sentenced to life imprisonment because he continues to commit felony after felony. The fact that his last felony was the only violent crime against a person is not an “unusual circumstance” that would support a downward departure. A person with three prior non-violent felony convictions who then proceeds to commit a felony involving violence against a person has shown that his criminal conduct is becoming worse. The goals of the Habitual Offender Statute, to deter and punish recidivism, are satisfied by imposing a life sentence against such a person.

Id. at 344.

|9Clearly, the supreme court in Lindsey emphasized that a defendant’s non-violent record is a factor, but cannot be the only reason the sentencing judge uses to depart from the sentence required by the Habitual Offender Law. A review of the record indicates the sentencing judge in this case was presented with numerous factors leading to his determination to find the sentence mandated by the Habitual Offender Law was excessive in this case. After a thorough review, we find the record and the jurisprudence supports the sentencing judge’s conclusion that there were several factors which clearly and convincingly established Defendant was exceptional, and, due to the particular circumstances of his case, the legislature failed to fashion a meaningful sentence to match the culpability of the offender and the gravity of the offenses.

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

Similarly, in State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957, writ denied, 03-3232 (La.6/4/04), 876 So.2d 73, the second circuit found the |infacts presented justified a downward departure. In Wilson, the defendant was convicted of first degree robbery, adjudicated a fourth felony offender, and sentenced to life imprisonment. On appeal, the second circuit reduced the defendant’s conviction to simple robbery, and he was resentenced to life imprisonment without benefits. The defendant appealed, alleging the mandatory life sentence was unconstitutional as applied to him.

The second circuit noted the defendant had prior convictions that resulted in prison terms of six months, ten months, and two years. The six-month and two-year sentences were initially suspended, but eventually served, because the defendant failed to report monthly to his probation officer. The second circuit concluded the defendant’s prior convictions did not reach a level of culpability and gravity warranting a life sentence and stated:

Defendant is 42 years old and homeless. After he was arrested, he gave the police a recorded statement admitting he was depressed over the death of his son in a train accident on June 29, 1999. He admitted that he has a history of drug and alcohol abuse. He stated that he was drunk at the time he committed the robbery, and felt “hopeless.”
The supreme court in Johnson, supra, made clear that the fact that defendant’s felonies are non-violent alone is not sufficient to override the legislatively designed sentences of the Habitual Offender Law. Johnson, 709 So.2d at 676. But, it did note that, “the classification of a defendant’s instant or prior offenses as non-violent should not be discounted.” Id. Three of defendant’s four felonies were non-violent. Even his fourth felony, while classified as a violent offense, involved no actual violence. Cf. State v. Hayes, supra [, 97-1526 (La.App. 1 Cir. 6/25/99), 739 So.2d 301]. There is also no evidence in the record that defendant ever possessed a dangerous weapon, and Ms. Cone, the victim, testified that she never felt threatened.
Furthermore, this particular life imprisonment imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. State v. Hayes, 739 So.2d at 303. As |n defendant ages, these costs will only increase due to the need for geriatric health treatments.
The defendant in this case obviously needs lengthy incarceration. We believe that a severe sentence in this case, for example, a sentence of not less than 20 years, in conformity with La. R.S. 15:529(A)(l)(c)(i), but not more 30 years at hard labor, would meet all of the societal goals of incarceration and be constitutional in this case.
For all the reasons above, and after a review of the facts and circumstances of this particular defendant and the instant crime, we find clear and convincing evidence that this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. A sentence of life imprisonment for this defendant, on this record, is “disproportionate” to the harm done and shocks “one’s sense of justice.” State v. Lobato, supra [, 603 So.2d 739 (La.1992) ]. Thus, we are unable to conclude that this life sentence is not excessive under the constitutional standard.

Id. at 964-65.

In State v. Hayes, 97-1526 (La.App. 1 Cir. 6/25/99), 739 So.2d 301, writ denied, 99-2136 (La.6/16/00), 764 So.2d 955, the defendant was convicted of theft by misappropriating or taking over $500, adjudicated a third felony offender, and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. The first circuit noted the defendant admitted the theft and returned $693.00. It further noted:

Mr. Hayes was 34 at the time of sentencing. The parole and probation officer recommended a sentence of 10 years. The manager of the business, from whom Mr. Hayes stole the money, stated that he would like Mr. Hayes to serve time, and hoped Mr. Hayes would be rehabilitated after serving time. At the time of the theft, Mr. Hayes had a second employer, who thought highly of Mr. Hayes. The employer found Mr. Hayes to be a good employee, and believed that Mr. Hayes could be rehabilitated.
Mr. Hayes’ criminal record contained the following convictions: two thefts under $100, one theft over $100, several counts of issuing worthless checks, check forgery, simple robbery, and the instant offense, theft of over $500. The simple robbery, was the ‘crime of violence’ ” necessary for the life imprisonment sentence. La. R.S. 14:2(13); La. R.S. 14:2(13)(y); La. R.S. 15:529.1 |12A(l)(b)(ii). The simple robbery occurred in 1991, when Mr. Hayes pushed a minor, and stole his bicycle. None of Mr. Hayes’ crimes involved a dangerous weapon.
This particular life imprisonment imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. Mr., Hayes is a tenacious thief. He obviously needs lengthy incarceration. However, a severe sentence, for example, between twenty and forty years, would have met all of the societal goals of incarceration.

Id at 303. The first circuit then vacated the defendant’s sentence and remanded the matter for resentencing.

The record establishes Defendant’s three prior felony offenses were non-violent (three forged checks which totaled less than $600.00) and, according to the unrebutted testimony of Dr. Forsythe, were best classified as petty theft. The record also established Defendant had a history of gainful employment and was thought highly of by his employer. His children told Dr. Forsythe their father was a good man and had been loving and supportive. The sentencing judge clearly placed great stock in Dr. Forsythe’s belief that Defendant’s actions in committing armed robbery, while serious and deserving of punishment, reflected a spur of the moment plan. Defendant made no attempt to hide his identity, and Dr. For-sythe emphasized Defendant clearly took steps to minimize the possibility of injury to the victims by placing them in the bathroom of the hotel room. Dr. Forsythe characterized this particular armed robbery as “low.”

Furthermore, this particular sentence, effectively amounts to a life sentence for Defendant due to his age. As the courts in Hayes and Wilson noted, such a lengthy sentence imposes an undue burden on the taxpayers of the state, which will only increase as Defendant ages. While we note the armed robbery committed by Defendant in this case did involve the use of a weapon, which distinguishes it from the facts in Wilson, 859 So.2d 957, Hayes, 739 So.2d 301, and Combs, 848 So.2d 672, the facts indicated the weapon used, while unquestionably dangerous, was a weapon conveniently available to Defendant at his job, and Defendant attempted to isolate the victims from any harm by locking them in the bathroom. Therefore, we find no error on the part of the sentencing judge in concluding Defendant put forth clear and convincing evidence that would justify a downward departure.

However, we note the supreme court in Johnson clearly stated that even when a sentencing judge finds clear and convincing evidence to justify a downward departure from the maximum sentence under the Habitual Offender Law, “[the judge] is not free to sentence a defendant to whatever sentence he feels is appropriate under the circumstances.” The supreme court instructed:

[T]he judge must sentence the defendant to the longest sentence which is not constitutionally excessive. This requires a sentencing judge to articulate specific reasons why the sentence he imposes instead of the statutory mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution. Requiring a sentencing judge to re-sentence a defendant in this manner is in keeping with the judiciary’s responsibility to give as much deference as constitutionally possible to the Legislature’s determination of the appropriate minimum sentence for a habitual offender.

Johnson, 709 So.2d at 677.

A review of the record finds the sentencing judge failed to articulate specific reasons as to why he found the mandatory minimum sentence was not appropriate. Louisiana Revised Statutes 15:529.1(A)(4)(b) provides “the person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.” Therefore, we reverse Defendant’s sentence and remand the case with the following instructions set forth in this decree.

i14decree

For the foregoing reasons, we vacate Defendant’s sentence and remand this case to the trial court with instructions that it comply with the Habitual Offender Law or that it articulate specific reasons why a sentence below the mandatory minimum is constitutionally required.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

      . We note the defendant in Lindsey had several crimes of violence in his criminal history, and demonstrated a steadily escalating pattern of criminality. In the present case, Defendant’s conviction for armed robbery was the solé crime of violence on his record and was far removed from his previous criminal activity, which consisted solely of convictions for forgery.


source: Caselaw Access Project

author: EZELL, Judge. COOKS, J.

license: Public Domain

text:
    Raymond CHARLES, Sr. v. TOWING AND RECOVERY PROFESSIONALS OF LOUISIANA, Inc., et al.
    No. CA 12-824.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 2013.

      Bennett Boyd Anderson, Jr., Anderson & Dozier, Lafayette, LA, for Plaintiff/Ap-pellee, Raymond Charles, Sr.
    Larry S. Bankston, Jenna H. Linn, Bankston & Associates, LLC, Baton Rouge, LA, for Defendant/Appellant, Towing and Recovery Professionals of Louisiana Trust.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

^Towing and Recovery Professionals of Louisiana Trust appeals a judgment of the trial court finding that it was estopped from raising the defense of no right or no cause of action. It argues that it is a public liability trust and not an insurer, and therefore there is no right to bring a direct action against it under La.R.S. 22:1269. It also claims that the trial court erred in awarding Plaintiff interest from the date of judicial demand.

FACTS

Raymond Charles was severely injured when a tow truck owned by J.C.’s Wrecker Service, Inc. rear-ended his vehicle on September 14, 2006. Mr. Charles filed suit on September 7, 2007, against J.C.’s, the driver of the tow truck, and Towing and Recovery Professionals of Louisiana (TRPL) Trust incorrectly named as ‘Towing and Recovery Professionals of Louisiana, Inc.’. In the petition, Mr. Charles alleged that TRPL Trust was an insurer doing business in Louisiana and had in full force and effect a policy of general liability insurance insuring the tow truck.

TRPL Trust answered the appeal asserting that its correct name was Towing and Recovery Professionals of Louisiana Trust. However, it also admitted that it was an insurer and that it issued an insurance policy to J.C.’s.

On May 24, 2010, TRPL Trust filed a notice in the record that it had filed a petition for Chapter 11 bankruptcy in federal court on May 17. On November 15, 2010, TRPL Trust filed a notice of removal to federal court. In response, Mr. Charles filed a motion to remand, which was granted by the federal court on February 17, 2011. Mr. Charles then filed a motion for summary judgment on liability and insurance coverage on June 22, 2011. On June 29, 2011, TRPL Trust filed an | ^exception of no right or no cause of action alleging that it is not an insurance company and is not subject to the Louisiana Direct Action Statute.

A hearing was held on August 22, 2011. Mr. Charles’s motion for summary judgment on the issue of liability was granted but was denied as to insurance coverage.

A hearing was held on February 6, 2012, on TRPL Trust’s exception of no right or no cause of action. The trial court agreed that TRPL Trust was a trust and not an insurer. However, the trial court ruled that TRPL Trust was estopped from claiming an exemption from direct action and denied its peremptory exception of no right or no cause of action. Judgment denying the exception was signed on February 12, 2012.

At the same hearing, the court received evidence concerning Mr. Charles’s injuries. After considering the evidence presented by Mr. Charles, the trial court awarded him $400,000 plus costs and interest from the date of judicial demand until paid. Judgment against J.C.’s, the tow truck driver, and TRPL Trust was signed on March 8, 2012. TRPL Trust then filed the present appeal.

RIGHT TO BRING A DIRECT ACTION

TRPL Trust argues that the trial court erred in denying its exception of no right of action and rendering judgment directly against it. TRPL Trust asserts that it is a public liability trust, not a licensed insurer, and that the Louisiana Direct Action Statute is not applicable to Mr. Charles’s claims.

The Louisiana Direct Action Statute refers to a right of direct action, and a defendant challenging a plaintiffs right to proceed under the Louisiana Direct Action Statute should do so by means of an exception of no right of action. Vincent v. Penrod Drilling Co., 372 So.2d 807 (La.App. 3 Cir.), writ denied, 375 So.2d 646 (La.1979); Diamond v. Progressive Sec. Ins. Co., 05-820 (La.App. 1 Cir. 3/24/06), 934 So.2d 739. “Without enabling legislation, the right to direct action does not exist.” Logan v. Hollier, 424 So.2d 1279, 1281 (La.App. 3 Cir.1982).

The supreme court explained the appellate review of a ruling on an exception of no right of action in Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 20-2289, pp. 6-7 (La.10/25/11), 79 So.3d 246, 255-56:

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Id.

Whether a person has a right to bring an action raises a question of law. Id. “A question of law requires a de novo review.” Id. at 256.

At the time of the accident in 2006, La.R.S. 22:46(9)(d) clearly provided that public liability trust funds established by professional associations are not insurance as follows:

The establishment and operation of one or more professional, trade, and occupational or public liability trust funds by professional associations in this state for the purpose of providing a means by which professional malpractice and public liability claims or judgments arising from such claims against members of the associations shall be paid or settled shall not be deemed to be insurance, and the trust shall not be deemed to be a licensed, admitted, or authorized insurer but shall be subject to Subpart E of Part III of Chapter 2, Part IV of Chapter 7, and Chapters 8 and 12 of this Title.

The Louisiana Direct Action Statute, La. R.S. 22:1269, is found in Part IV of Chapter 4, not one of the sections that a professional, trade and occupational, or public liability trust fund was subject to at the time of the accident.

|4TRPL Trust was established as a public liability trust on February 25, 2004. The agreement to act as a public liability trust was filed with the Commissioner of Insurance. As such, it was not subject to the Louisiana Direct Action Statute.

Recognizing that TRPL Trust is a public liability trust not subject to direct action, Mr. Charles argues that TRPL Trust is estopped from any argument that it is a public liability trust not subject to direct action because of its prior representations, judicial admissions, and litigation tactics. Specifically, Mr. Charles claims that TRPL Trust repeatedly admitted that it was an insurer. He also claims that it utilized its status as a direct action insurance company defendant to file a stay in the trial court due to bankruptcy proceedings and to remove the present action to federal court.

Equitable estoppel is a jurisprudential doctrine in which the voluntary conduct of a party precludes him from asserting rights against another party who has justifiably relied on such conduct to change his position so that he will suffer injury if the first party is allowed to retract his conduct. MB Indus., LLC v. CNA Ins. Co., 11-303, 11-304 (La.10/25/11), 74 So.3d 1173. “Strictly speaking, equitable estoppel applies only where a party has made false or misleading representations of fact and the other party justifiably relied on the representation.” Id. at 1180 “There are three elements required to establish equitable es-toppel: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance.” Id. Equitable estoppel is not favored in the law and is a “doctrine of last resort”. Id. at 1181. “Equitable considerations and estoppel cannot prevail in conflict with the positive law.” Gunderson v. F.A. Richard & Assocs., 09-1498, p. 15 (La.App. 3 Cir. 6/30/10), 44 So.3d 779, 789.

While it is true that TRPL Trust admitted it was an insurer, it also stated that its correct name is “Towing and Recovery Professional of Louisiana Trust” in its initial | .^answer to the petition for damages. In his petition, Mr. Charles had referred to it as “Towing and Recovery Professionals of Louisiana, Inc.” This should have put Mr. Charles on notice of the trust status. While TRPL incorrectly admitted that it was an insurance company, there is no indication that TRPL Trust purposefully misled Mr. Charles. On October 12, 2007, Plaintiff was provided a copy of the coverage agreement which evidenced that TRPL Trust was not covered by LIGA in the event of insolvency and also described how legal action could be taken against TRPL Trust.

If Mr. Charles had never filed suit against TRPL Trust, it still would have been in bankruptcy proceedings by May 2010, prior to the trial of matter. On November 16, 2009, Mr. Charles filed an unopposed motion to re-fix the trial scheduled for January 11, 2010. The trial was then re-fixed to July 6, 2010. By the time of the new trial date, TRPL Trust was already in bankruptcy proceedings. It was Plaintiff himself that rescheduled the original trial date.

On March 25, 2010, J.C.’s and the driver of the tow truck filed an unopposed motion to continue and re-fix for trial because Mr. Charles had undergone additional back evaluations and additional testing had been recommended. Anticipating additional discovery after the testing, both parties requested a trial date in 2011 due to conflicts by both parties with the dates available in 2010. Trial was then set for January 10, 2011.

In the meantime, TRPL Trust had the case removed to federal court. Mr. Charles’s motion to remand was set for January 20, 2011, so the case was rescheduled. Following the remand, the case was set for trial on September 6, 2011. Following the filing of Mr. Charles’ motion for summary judgment and TRPL Trust’s exception of no right or cause of action, J.C.’s and the tow truck driver filed an unopposed motion to continue trial because Mr. Charles did not timely provide them with the written |fireports prepared by Mr. Charles’s non-medical witnesses. Trial was then set for February 6, 2012, at which time the exception of no right or no cause of action was heard and ruled upon. Due to stipulation of counsel, Mr. Charles submitted his evidence on damages with the trial court taking the matter under advisement.

As can be seen, trial of this matter was delayed due to conflicts and further testing. If trial had proceeded on July 6, 2010, as re-fixed by Mr. Charles, TRPL Trust would have already filed for bankruptcy. Furthermore, Mr. Charles still has a judgment against J.C.’s and the driver of the tow truck. This is the same position he would have been in if the TRPL Trust had filed an exception of no right of action in the beginning. Therefore, we sustain TRPL Trust’s exception of no right of action.

Our decision on the exception pretermits our consideration of the issue of the award of interest from the date of judicial demand.

For the foregoing reasons, judgment of the district court denying Towing and Recovery Professionals of Louisiana Trust’s exception of no right of action and rendering judgment against it is reversed. Judgment is rendered in favor of Towing and Recovery Professionals of Louisiana Trust and against Raymond Charles, sustaining the peremptory exception of no right of action and dismissing Raymond Charles’s claims against it. All costs of this appeal are assessed to Raymond Charles.

REVERSED IN PART AND RENDERED.

COOKS, J., dissents.

COOKS, J.

Dissents.

| Raymond Charles (Plaintiff) was awarded $400,000.00 in damages, plus costs, and interest from date of judicial demand, for injuries sustained in an accident with a tow truck owned by J.C.’s Wrecker Service, Inc. (J.C.’s). That judgment is not before us on appeal.

The majority recognizes the following individual facts. Towing and Recovery Professionals of Louisiana Trust (Towing and Recovery): (1) Admitted in judicial pleadings that it was an insurer; (2) represented in judicial pleadings it issued a general liability insurance policy which it judicially admitted covered J.C.’s tow truck; (3) used its feigned status as a direct action insurance company as the basis to attempt removal of the case to federal court; and (4) used its feigned status as a direct action insurance company to file a stay in the trial court when it filed federal bankruptcy proceedings. Nevertheless, the majority finds the trial court erred in finding Towing and Recovery is estopped from claiming exemption from the direct action statute because it is a trust not an insurer. I disagree.

The trial court properly denied Towing and Recovery’s exceptions of no right of action and no cause of action. The trial court found that as matter of law Towing and Recovery is a trust, not an insurer. The trial court properly ruled, in |2line with our well established jurisprudence regarding judicial estoppel, that Towing and Recovery is estopped from using its status as a trust to avoid Louisiana’s Direct Action Statute which allows suits against insurers.

The majority ignores a long line of state and federal jurisprudence which supports the propriety of the trial court’s ruling as a matter of law. Relying on the decision in Gunderson v. F.A. Richard & Associates, 09-1498 (La.App. 3 Cir. 8/25/10), 44 So.3d 779, the majority finds that estoppel cannot be applied when “in conflict with positive law.” Id. at 789. This is a complete misapplication of the principle enunciated in Gunderson, and cases cited therein, and in La. Civ.Code art. 4 which provides:

When no rule for a particular situation can be derived from the legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.

In Gunderson, the court faced a completely different scenario than in the present ease. In that case, the defendants were statutorily required to give adequate prior notice to the plaintiff healthcare providers of their intent to reimburse them at a lower PPO rate than the higher workers’ compensation rate for injured workers. This court held the plaintiffs were not estopped from suing the defendants for payments at the higher rate just because the plaintiffs’ did not use their provider agreements to mitigate their damages. We found the defendants in Gunderson could not employ equitable estoppel as a defense to their positive statutory duty of notice and disclosure. That is quite different than the case before us. Here, the majority fails to employ estoppel to the very kind of circumstance the doctrine envisions. As Louisiana Civil Code article 4 expressly states, equitable estoppel requires that this court “resort to justice [and] reason” to determine if Towing and Recovery should be estopped from invoking its status as a trust when it repeatedly | sand deliberately masqueraded as an insurer in judicial pleadings throughout the litigation until it could gain an advantage over the Plaintiff by now asserting it is a trust, not an insurer, in bankruptcy proceedings. This is the very type of behavior judicial estoppel prohibits.

The doctrine of judicial estoppel prohibits parties from deliberately changing positions according to the exigencies of the moment; it is designed to protect the integrity of the judicial process. New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir.1982)); United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993). Judicial estoppel is an equitable doctrine invoked by the court within its sound discretion. Id. (citing Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)).
Courts employ several factors in determining whether to apply the doctrine: (1) whether the party’s later position is clearly inconsistent with its earlier position; (2) whether the party has succeeded in persuading a court to accept that party’s earlier position; (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine. 532 U.S. 742, 75-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).

Ark-La-Tex Timber Co., Inc. v. General Electric Capital Corp., 482 F.3d 319, 332 (5th Cir.07) (emphasis added).

Generally speaking, it may be said that estoppel is a bar which precludes a person and his privies from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative offices, or by his execution of a deed or his representations or conduct, express or implied. See 19 Am.Jur. 601, Verbo Es-toppel, Sec. 2. The general purpose of estoppels is to require honesty, fair dealing and good faith by preventing a person from making contrary representations. 19 Am.Jur. 602, Verbo Estop-pel, Sec. 4. Estoppels are generally classified as one of three kinds: (1) Estoppel by record, as for instance where a party files pleadings in a suit, he may be thereafter estopped to assert a contrary position, where the opposing litigant has relied on such pleadings to his det riment. See Staunton v. Vintrella, 223 La. 958, 67 So.2d 550.(2) Estoppel by-deed, as for instance where a vendor warrants full title to the vendee, the vendor is estopped to thereafter assert an interest contrary to his warranty. See Gaines v. Crichton, 187 La. 345, 174 So. 666.(3) Estoppel ‘in pais’ or equitable estoppel is a term applied to a situation where, because of some conduct on his part, a person is denied the right to assert or prove a certain fact, as for instance where a person has done or said something with the intent to influence the other, and the other has acted upon the faith of it to his detriment, the former is estopped to |4change his position. See Brock v. Black, Rogers & Co., 201 La. 1017, 10 So.2d 790.

Humble Oil v. Boudoin, 154 So.2d 239, 250 (La.App. 3 Cir.1963), writ refused by 245 La. 54, 156 So.2d 601 (La.1963) (emphasis added).

As the Unites States Fifth Circuit plainly said it:

“Judicial Estoppel is a common law doctrine that prevents a party from assuming inconsistent positions in litigation.” In re Superior Creboats, Inc., 374 F.3d at 334 (citing Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988)). “The purpose of the doctrine is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts to suit the exigencies of self-interest.’ Id. (quoting In re Coastal Plains, Inc., 179 F.3d at 205). As an equitable doctrine, “[generally, judicial estoppel is invoked where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’ ” Id. at 334-35 (quoting Scarano v. Cent., R.R. Co., 203 F.2d 510, 513 (3d Cir.1953)).

Kane v. Natl. Union Fire Ins. Co., 535 F.3d 380, 385 (5th Cir.2008) (emphasis added).

Towing and Recovery played “fast and loose” in these judicial proceedings and gained an advantage over the injured Plaintiff in the bankruptcy proceedings. As a result of Towing and Recovery’s false representations used to its advantage when it suited its goals in the litigation, Plaintiff has been put in an unfavorable position as a judgment creditor in the bankruptcy proceedings which works to his detriment in his ability to recover all or perhaps any of his substantial judgment for his injuries. This is not countenanced in our law but is allowed by the majority through its misplaced reliance on the notion that positive law precludes application of equitable estoppel. The jurisprudence does not support the majority’s conclusion. As the United States Fifth Circuit Court of Appeals points out in Kane, the courts recognize three factors in determining the applicability of equitable estoppel:

| s“(l) the party is judicially estopped .only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the [representation] must not have been inadvertent.” (citations omitted) In the context of judicial estoppel, “inadvertence” requires either that [the party] lacks knowledge [of his misrepresentation] or has no motive for [its] concealment.” (citations omitted)

Kane, 535 F.3d at 385-86.

Towing and Recovery’s masquerade as an insurer meets these requirements in this case: (1) Its original position in multiple judicial pleadings and procedures is “clearly inconsistent” with its later position that it is not an insurer; (2) the court in more than one instance accepted Towing and Recovery’s misrepresentation that it was an insurer and had issued an insur-anee policy; and (3) Towing and Recovery did not “lack knowledge” that it was not in fact an insurer but is a trust under the law, and it clearly had a motive in making its representations at each stage of. the proceedings. When it benefítted Towing and Recovery to be an insurer in the litigation it represented it was an insurer and admitted it issued an insurance policy. When it now benefits Towing and Recovery in a different forum, Bankruptcy Court, to be a trust not subject to Louisiana’s Direct Action Statute affecting insurers, it does an about face and insists it is not an insurer but a trust, leaving Plaintiff in a much inferior position in the bankruptcy proceedings to creditors who are ranked superior to him. There is no justice, no preservation of judicial integrity, no fairness, no fair dealing, no good faith, no good whatsoever in the majority’s allowing a party such as Towing and Recovery to play “fast and loose with the courts to suit the exigencies of self-interest,” Kane, 535 F.3d at 385, and thereby gain benefit to itself by relieving it of paying Plaintiff his full compensation awarded by a court of law. For these reasons, I vigorously dissent.

      . In 2010, La.R.S. 22:46(9)(d) was amended to provide that after twelve noon on October 1, 2010, a public liability trust fund is now deemed insurance subject to the provisions of the insurance code.

      . The issue regarding the trust’s status has been resolved by subsequent legislation. See La.R.S. 22:46(9)(d), which now provides such trusts "shall be deemed to be insurance and such trust or trusts shall be subject to the provisions of this Code.” Unfortunately, this statute was not in effect at the time of the accident in this case.


author: JAMES F. McKAY III, Chief Judge.

text:
    EASTERN SAVINGS BANK, FSB v. Donna Lynn PHARR.
    No. 2012-CA-1754.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 2013.

      Charles Kendrick Watts, Jessica W. Chapman, Seale, Smith, Zuber & Barnette, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    David P. Sirera, Mandeville, Louisiana, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JAMES F. McKAY III, Chief Judge.

Ixln this case involving the attempted seizure and sale of a piece of immovable property through executory process, Eastern Savings Bank, F.S.B. appeals the trial court’s granting of a preliminary injunction in favor of Donna Lynn Pharr. We reverse.

FACTS AND PROCEDURAL HISTORY

In April of 2007, Donna Lynn Pharr executed a mortgage note in favor of Eastern Savings Bank, F.S.B. on a piece of immovable property owned by Ms. Pharr, bearing the municipal address of 435 Pelican Avenue, New Orleans, Louisiana 70114. Ms. Pharr failed to pay a number of installments under the note. Eastern Savings Bank claims that it is owed $187, 500.00.

On August 3, 2011, Eastern Savings Bank filed a petition for executory process seeking to seize and sell the immovable property on Pelican Avenue owned by Ms. Pharr. Eastern Savings Bank requested service on Ms. Pharr at the 435 Pelican Avenue address. On September 12, 2011, the trial court signed an order of seizure directing the Orleans Parish Sheriffs Office to seize and sell the|2subject property. The notice of seizure was forwarded to the Sheriffs Office for service on September 22, 2011. The Sheriffs Office attempted on several occasions to serve Ms. Pharr at the Pelican Avenue address before returning the notice of seizure as “un-served several attempts” on October 5, 2011.

On November 2, 2011, Eastern Savings Bank filed a motion to appoint attorney, requesting that the court appoint a curator to represent Ms. Pharr in the foreclosure proceeding pursuant to La. C.C.P. art. 5091. In support of its motion, Eastern Savings Bank advised the court that the sherriffs office was unable to serve Ms. Pharr at the Pelican Avenue address, and that the bank attempted to locate her through an internet skip trace search but was unable to develop any additional current addresses for service. Therefore, on November 7, 2011, the court signed an order appointing attorney Sonija D. Kirk as the curator ad hoc to represent Ms. Pharr. On December 1, 2011, the curator ad hoc filed a curator’s answer, note, and order detailing her unsuccessful efforts to locate Ms. Pharr.

On August 24, 2012, Ms. Pharr (in proper person) filed a petition for preliminary injunction to arrest seizure and sale, seeking to enjoin the sheriffs sale scheduled for September 6, 2012. Ms. Pharr requested that service of the order setting the hearing on the preliminary injunction be made on “Eastern Savings Bank, F.S.B. through counsel of record, 8550 United Plaza'Boulevard, Baton Rouge, Louisiana 70809, (225) 924-1600.” On September 5, 2012, counsel for Eastern Savings Bank received informal notice of the order and filed a memorandum in opposition to defendant’s petition for preliminary injunction to Rarrest seizure and sale. However, the East Baton Rouge Sheriffs Office did not serve the notice of the injunction hearing on Eastern Savings Bank until September 12, 2012.

On September 6, 2012, the trial court signed a judgment granting Ms. Pharr’s petition for preliminary injunction and dispensed with the requirement that Ms. Pharr post a bond in accordance with La. C.C.P. art. 2754. On September 11, 2012, Eastern Savings Bank filed a motion for suspensive and/or devolutive appeal.

DISCUSSION

On appeal, the appellant raises the following assignments of error: 1) the trial court erred in finding that Eastern Savings Bank, F.S.B. was properly served with notice of the hearing on the preliminary injunction in accordance with La. C.C.P. art. 3602; 2) the trial court erred in finding that Eastern Savings Bank, F.S.B. did not comply with the requirements for the appointment of a curator in an execu-tory proceeding as set forth in La. C.C.P. arts. 2674 and 5251; and 3) the trial court erred in dispensing with the requirement that the defendant post a bond as required under La. C.C.P. art. 2754.

In the instant case, the trial court signed an order on September 5, 2012 setting the preliminary injunction for hearing on September 6, 2012. Eastern Savings Bank did receive informal notice of the hearing on September 5, 2012, but was not served by the sheriff until September 12, 2012. At the September 6, 2012 ^hearing, Eastern Savings Bank objected to the lack of timely notice, but the trial court overruled the objection and proceeded with the hearing.

Louisiana Code of Civil Procedure Arth cle 3602 states:

A preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing.
An application for a preliminary injunction shall be assigned for hearing not less than two nor more than ten days after service of the notice.

La. C.C.P. art. 3602.

The mandatory provisions of La. C.C.P. art 3602 require that notice of the hearing be served on the adverse party and that the hearing be assigned not less than two days after service of the notice. In the instant case, the trial court failed to comply with the article’s mandatory provisions.

In its second assignment of error, the appellant contends that the trial court erred in finding that the appellant had not complied with the requirements for the appointment of a curator in an executory proceeding as set forth in La. C.C.P. arts. 2674 and 5251. In pertinent part, La. C.C.P. art. 2674 states:

The court shall appoint an attorney at law to represent the unrepresented defendant in an executory proceeding under the following circumstances:
(1) When the defendant is an absentee;

La. C.C.P. art. 2674.

Louisiana Code of Civil Procedure Article 5251 goes on to define an absentee as:

... a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who. has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown.

La. C.C.P. art. 5251.

A creditor must make a reasonable and diligent effort to determine the whereabouts of a defendant domiciled in Louisiana to support an allegation that the defendant’s whereabouts are unknown and to support the appointment of a curator. Security Homestead Ass’n v. Fuselier, 591 So.2d 335, 338-39 (La.1991) citing Peschier v. Peschier, 419 So.2d 923, 926 (La.1982). This Court has held that “seven returns showing unsuccessful attempts at service” constituted an “adequate showing of ‘diligent effort’ ” as required by La. C.C.P. art. 5251. Carey v. Daunis, 274 So.2d 447 (La.App. 4 Cir.1973). Likewise, the Fifth Circuit has held that repeated attempts to serve a defendant by two deputies and a process server at the relevant address, which appeared to be occupied, constituted reasonable steps to effect service on a defendant. First Nat’l Bank of Jefferson Parish v. Samuels, 618 So.2d 444 (La.App. 5 Cir.1993).

In the instant case, Eastern Savings Bank initially used the Orleans Parish Sheriffs Office to effect service on Ms. Pharr at 435 Pelican Avenue. However, after making several unsuccessful attempts to serve Ms. Pharr at the Pelican Avenue address, the sheriffs office returned the citation with the notation “un-served several attempts.” Thereafter, Eastern Savings Bank attempted to locate Ms. Pharr through a skip trace search via Lexis Nexis Accurinet. However, this attempt was in vain because Ms. Pharr lived at 435 Pelican Avenue. The steps taken by Eastern Savings Bank to serve Ms. Pharr were reasonable. Therefore, based on the record before this Court, the trial court erred in finding that Eastern Savings Bank had not complied with the requirements of the Louisiana Code of Civil Procedure for the appointment of a curator in an executory proceeding.

Rln its final assignment of error, Eastern Savings Bank contends that the trial court erred in dispensing with the requirement that Ms. Pharr post a bond as required under La. C.C.P. art. 2754. La. C.C.P. art. 2754 states: “Except as provided in Article 2753, no temporary restraining order or preliminary injunction shall issue to arrest a seizure and sale unless the applicant therefor furnishes security as provided in Article 3610.” La. C.C.P. art. 3610 provides as follows:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed, by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained. However, no security is required when the applicant for a temporary restraining order or preliminary or permanent injunction is seeking protection from domestic abuse, dating violence, stalking, or sexual assault.

La. C.C.P. art. 3610.

In the instant case, the trial court issued the preliminary injunction on the grounds that Eastern Savings Bank failed “to use diligence in attempting to serve its borrower,” and did not require that Ms. Pharr post a bond because of “the failure of Eastern to exercise the most fundamental requirements of our legal 17system: due process.” However, the requirement of security is mandatory when waiver is not provided by law. See Advanced Collision Services, Inc. v. State, Department of Transportation, 93-740 (La.App. 5 Cir. 1/25/94), 631 So.2d 1245. No such waiver is provided for by law in the situation we are dealing with in the instant case. Accordingly, the trial court erred when it failed to order Ms. Pharr to post a bond.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is reversed and the preliminary injunction in this matter is dissolved.

REVERSED AND RENDERED

      . A. The original debtor, his surviving souse in community, legatees, and legal representative are not required to furnish security for the issuance of a temporary restraining order or preliminary injunction to arrest a seizure and sale, when the injunctive relief is applied for solely on one or more of the following grounds:
      (1) The debt secured by the mortgage, security agreement, or privilege is extinguished or prescribed;
      (2) The enforcement of the debt secured by the mortgage, security agreement, or privilege is premature, either because the original term allowed for payment, or any extension thereof granted by the creditor, had not expired at the time of the institution of the executory proceeding;
      (3) The act evidencing the mortgage or privilege or the security agreement is forged, or the debtor’s signature thereto was procured by fraud, violence, or other unlawful means;
      (4) The defendant in the executory proceeding has a liquidated claim to plead in compensation against the debt secured by the mortgage, security agreement, or privilege; or
      (5) The order directing the issuance of the writ of seizure and sale was rendered without sufficient authentic evidence having been submitted to the court, or the evidence submitted was not actually authentic.
      B. Notwithstanding any of the provisions of this Chapter to the contrary, a claim or an action in redhibition shall not be grounds for the issuance of a temporary restraining order or preliminary injunction to arrest a seizure and sale, without security as provided by law.
      C. Notwithstanding any of the provisions of this Chapter to the contrary, a claim that the attorney's fees established in the mortgage, security agreement, or privilege to be enforced are unreasonable shall not be grounds for the issuance of a temporary restraining order or preliminary injunction to arrest a seizure and sale. Any such claim may only be urged either:
      (1) Prior to the sale by means of a rule to show cause filed not later than ten days, exclusive of holidays, prior to the date of the sale, or
      (2) In conjunction with a proceeding seeking a deficiency judgment to satisfy the debt for which the property was sold.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana IN the INTEREST OF A.S.
    No. 2013-CA-0144.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 24, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

LA.S., a juvenile, appeals the judgment of the Juvenile Court adjudicating him a delinquent on the sole basis that the trial court erred in denying his motion to suppress. Because this Court previously considered the identical issue raised by A.S., we will not re-examine A.S.’s argument on appeal. Accordingly, we affirm the adjudication and sentence.

FACTS AND PROCEDURAL HISTORY

On June 5, 2012, the State filed a delinquency petition charging A.S., then sixteen years old, with possession of marijuana, a violation of La. R.S. 40:966. A.S. then filed a motion to suppress the evidence, which was denied on the merits at the close of testimony in the adjudication hearing. Counsel for A.S. orally notified the juvenile court of her intention to file a writ with this Court on the denial of the Motion to Suppress. The juvenile court then adjudicated A.S. a delinquent as charged.

li>On October 18, 2012, A.S. filed a Notice of Intent to Seek Writs and the trial court set a return date of November 2, 2012, which was extended to November 9, 2012. This Court denied the writ application, finding no abuse of the juvenile court’s discretion.

On November 15, 2012, the juvenile court held a disposition hearing and imposed a disposition of commitment to the Department of Public Safety and Corrections for a period of time not to exceed six (6) months. Execution of the commitment was suspended and A.S. was placed on inactive probation for six (6) months. This appeal followed.

DISCUSSION

In this appeal, A.S. maintains that the juvenile court erred in denying his motion to suppress the evidence. We note that A.S.’s prior writ application concerned the very issue he raises on appeal. We further note that A.S. points to no new information or evidence in support of his current argument. More importantly, A.S.’s appellate brief adopts his writ application verbatim, which also attached the transcript from the adjudication hearing, the same transcript in the appellate record.

This Court recently discussed the propriety of an appellate court’s review of issues considered in prior writ applications in State v. Duncan, 11-0563, p. 26 (La. App. 4 Cir. 5/2/12), 91 So.3d 504, 520:

Under the law-of-the-case doctrine, courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case. Pitre v. Louisiana Tech University, 95-1466, p. 7 (La.5/10/96), 673 So.2d 585, 589. This court has stated that an appellate court will not reverse its pretrial determinations unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result. State v. Gillet, 99-2474, p. 5 (La.App. 4 Cir. 5/10/00), 763 So.2d 725, 728. The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the foil appeal process. State v. Molineux, 2011-0275, p. 3 (La.App. 4 Cir. 10/19/11), 76 So.3d 617, 619.

One distinction between the Duncan case and the instant case is that, in the former case, the two writ applications concerned court rulings from hearings prior to trial (on motions to quash), followed by a full trial on the merits. In Duncan, the defendant argued that the matters addressed by the writ applications “should be reevaluated in light of the entire record.” Id. This Court rejected defendant’s argument, stating:

In the instant case, defendant does not present any new evidence bearing on the correctness of this court’s prior decisions as to the trial court’s denials of defendant’s two motions to quash. Therefore, defendant has failed to demonstrate that this court should not decline to reconsider its prior rulings pursuant to the law of the case doctrine.

Id., See also State v. Caulfield, 10-769, p. 11 (La.App. 5 Cir. 5/24/11), 67 So.3d 600, 607-08 (“we decline to reconsider this Court’s prior ruling on the same motion to suppress evidence issue since there is no relevant, additional information to consider. Defendant fails to present any new arguments, jurisprudence, or evidence to warrant reconsideration of the same issue or to suggest that the prior writ determination was patently erroneous, or that it produced unjust results. Accordingly, we find that the ruling made regarding defendant’s pretrial writ application should not be disturbed.”); State v. Louis, 05-141, p. 5 (La.App. 5 Cir. 7/26/05), 910 So.2d 464, 467 (“[i]n the instant case, this Court considered defendant’s exact argument in its previous ruling on the writ application. On appeal, defendant does not present evidence to show that this Court’s prior ^disposition was patently erroneous or produced unjust results. Contrary to defendant’s assertions, there is no new evidence to warrant reconsideration as the transcript from the motion to suppress hearing ... was attached to the state’s writ application and considered by this Court prior to its decision”).

The instant matter presents a compelling case for the application of the “law of the case” doctrine. Here, A.S. presented no new evidence and, indeed, relied on the very argument (again, verbatim) that was submitted in his writ application, as in the Louis case. A.S. has failed to show that this Court’s prior ruling was patently erroneous or produced an unjust result. Accordingly, we decline to reconsider this Court’s prior ruling. We affirm A.S.’s adjudication and sentence.

AFFIRMED.

      . The State challenged the timeliness of this appeal, citing La.C.Cr.P. art. 914, which states that a motion for appeal "must be made no later than ... (t)hirty days after the rendition of the judgment or ruling from which the appeal is taken” or "(t)hirty days from the ruling on a motion to reconsider sentence.” La. C.Cr. P. art. 914(B)(1) and (2). The State's reliance on this article is misplaced. Under the Children's Code, an appeal must be taken within fifteen days from the mailing of notice of the judgment. La. Ch.Code art. 332(A). La. Ch.Code art. 330(B), however, provides that, with respect to delinquency proceedings under Title VIII (as in the instant matter), "an appeal may be taken only after a judgment of disposition.” (Emphasis added). A.S.’s Motion for Appeal, filed fourteen days after the judgment of disposition, is timely.